Biden’s planned gun control actions do not pass muster
On Thursday, in a Rose Garden statement, Biden announced that he’s going to take myriad executive actions, all purporting to save Americans from gun violence. In fact, as is almost invariably true for leftists, just about everything he said was a lie, including “and” and “the.” In an epic segment on his show, Tucker Carlson reveals that the truth behind Biden’s lies is that he will disarm law-abiding Americans who oppose his political agenda. The purpose of this post is to show that, as a purely legal matter, he lacks the authority to carry out any of his threats.
The Second Amendment states simply:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
The Supreme Court, in 2008’s District of Columbia v. Heller, gives a masterful disquisition about the law and history behind the Second Amendment’s language. Suffice to say that we are all the militia and that the government has only the most limited power to interfere with our right to keep and bear arms. Rifles, even if they have cool attachments, are still “arms.”
While there are rights as fundamental as the Second Amendment – namely the other enumerated rights in the Bill of Rights – there are no rights that are more fundamental. Indeed, the Second Amendment is unique in having an entire amendment dedicated to it. The others are portmanteau amendments that gather several related doctrines under a single heading.
At this point, it’s important to point out that the Bill of Rights is not a set of liberties that the government graciously grants to the People. (I have capitalized “People” in this context because I’m using it in its constitutional sense of “We the People.”) If the government gives something to the People, it’s merely a privilege. When it comes to privileges, the government can dole them out and take them away again.
By contrast, the People have “unalienable rights” because they came from the Creator – that is, whether you’re religious or not, they came from a source greater than government. It is true, however, as Biden said in one of his few accurate statements, “no amendment is absolute.” Thus, the People have graciously allowed the government to impose some limitations on their constitutional rights, but those limitations must benefit the People, not the government. The benefit can accrue to the government only insofar as it is a means to protect or support the People.
To determine that benefit, the Supreme Court has held that, when the government infringes on fundamental rights, its action must pass a standard called “strict scrutiny.” The left’s beloved Roe v. Wade contains the most trenchant and best-known articulation of that standard. In that case, after concluding that the Constitution included an unwritten – but now constitutionally protected – right to privacy, the Court explained how limited the government’s power was to infringe on that right:
Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest,” Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S., at 485; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308 (1940); see Eisenstadt v. Baird, 405 U.S., at 460, 463-464.
Roe v. Wade, 410 U.S. 113, 155-56 (1973).
And therein lies the most unique attribute of the Second Amendment: It is the only stated right that enables the People to remind the government about the almost complete inviolability of the other rights. Without the Second Amendment, the other parts of the Bill of Rights are merely wishes and suggestions.
Now that I have (I hope) laid down the operating principles, I can make the case that Biden’s Executive Order – which is the weakest form of action since the president cannot make laws – fails to meet the strict scrutiny standard. Or even better, Tucker Carlson can make that case.
As Carlson pointed out, despite all his talk of gun violence, nothing in Biden’s Executive Order addresses gun violence. Instead, the entire order is aimed at disarming those people who are most law-abiding and who believe most strongly that government must be constrained from unduly infringing upon the People’s inherent rights:
Once you appreciate that Biden’s Executive Order does nothing to affect gun violence and everything to infringe on the Second Amendment rights of law-abiding Americans, you can appreciate that it doesn’t come close to meeting the strict scrutiny that all government actions must face when they impinge on explicitly expressed constitutional rights.
IMAGE: Patriots with modern weapons by Docrock.
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