Category Archives: rights

“Rights” and Precedent

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There is considerable discussion concerning whether a constitutional right to an abortion existed and was taken away by the Supreme Court’s just released ruling on Dobbs or whether, as Justice Alito emphasized in his Dobbs opinion for the Court that such a right never existed, it was merely the creation of Roe and then claimed again in Casey.

And therein lies the point of this post.

There is no right to an abortion contained in our Constitution, whether couched in the 14th Amendment or in any other part of the document—not literally, not figuratively, not encompassed in any penumbra.

Nevertheless, the claimed right has been, and rightly so, the law of the land since the 1973 Roe ruling, as are all Supreme Court rulings the law of the land from the moment of publication of the ruling. But it’s not a very durable law.

That’s a problem with Court rulings, a problem closely analogous with Presidential executive actions: Executive Orders and the like. Any “right” created by a Court ruling can be withdrawn by a subsequent Court ruling, just as any Presidential executive action can be withdrawn by a subsequent President.

The rights acknowledged in our Constitution, in contrast, can only be undone by a supermajority of us American citizens, through a supermajority of our States.

A Supreme Court precedent should be deeply respected. However, as Justice Clarence noted in his Gamble v United States concurrence,

In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions [whosever view of erroneous, I add]…over the text of the Constitution and other duly enacted federal law.

And [emphasis added]

This view of stare decisis follows directly from the Constitution’s supremacy over other sources of law—including our own precedents.

By their nature, no precedent can be the final word, else we’d have neither Brown nor Citizens United nor Janus, and we’d have only war to which to resort regarding rulings like Dred Scott and the war organizations like Ruth Sent Us and Jane’s Revenge currently threaten over Dobbs, that politicians like Chuck Schumer threatened if Court rulings didn’t go his way, that Cori Bush and Maxine Waters currently threaten, and that Federal government officials like Merrick Garland and Joe Biden indirectly threaten with their refusal to enforce Court rulings of which they personally disapprove.

A Grievous Error

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The Wall Street Journal‘s Editorial Board had one in its piece last Wednesday. In that opinion, the Editors touted the gun control “compromise” then-soon to be passed by the Senate (and actually passed the next evening). One of the things of which the Board is so enamored is this mandate:

The state laws must contain due-process protections—including the right to an in-person hearing, to know the evidence used to justify a red-flag order, and to have counsel present.

Noting Orwellian here.

It isn’t possible for red flag laws to have due-process protections. The accused’s weapons are confiscated solely on the accusation of another, and the accused must then prove his own fitness in order to get them back—a process that takes weeks, at best. On his success, it then takes additional weeks to months actually to get his weapons returned. So much for the government’s requirement to prove the charge.

That’s the destruction of the accused’s due-process, not the protection of them.

Red flag laws also are destructive of due-process protections for related persons. If another, unaccused, is in the same household and legally owns weapons, those are seized too, all in the name of denying the accused any access at all. That ancillary person then must then go into court and defend her possession, taking weeks to do so, and taking additional weeks to months actually to get them back. So much for the government’s requirement to prove the unrelated person’s unfitness to have her weapons.

That’s the destruction of the related person’s due-process.

A 2nd Amendment Ruling

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The Supreme Court, by a 6-3 ruling, has struck down a New York law that required citizens to show a proper cause and good moral character in order get a license to carry a firearm outside the home. That “proper cause” and the goodness of a citizen’s “moral character” were as defined by the State’s government personnel, and if they didn’t feel like it, or if the “need” didn’t suit them, or if these Moral Superiors didn’t like the man, they blithely could deny the applied-for license.

Justice Clarence Thomas, writing for the Court, said that was unconstitutional.

“The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,'” Thomas wrote.
Thomas added that there is “no other constitutional right” that requires an individual to demonstrate some sort of special need to government officers in order to obtain a concealed carry permit.
“That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense,” Thomas added.

And

New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.

Here’s New York Governor Kathy Hochul’s (D) preemptive reaction to the then-pending ruling:

Hochul vowed in May to call for an emergency legislative session this summer to craft new gun legislation as a means to work around the expected high court decision that curtailed the state’s concealed carry permit law.

Manhattan District Attorney Alvin Bragg (D) announced that his office is

analyzing this ruling and crafting gun safety legislation that will take the strongest steps possible to mitigate the damage done today.

These are canonical examples of why the 2nd Amendment is so necessary.

Notice, too, that this ruling looks like the beginning of the end for the concept of a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.

The Court’s ruling can be read here.

The Fed and Equity

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And, no, I’m not writing about house ownership type equity. This concerns the Fed’s potentially increasing role in “social equity.”

The Wall Street Journal Editorial Board expressed concern about Progressive-Democrats trying to legislate into the Federal Reserve’s mandates the matter of “racial equity.” They’re correct as far as they went, but they based their concern on the Fed’s existing workload and on the question of how to assess “racial equity” in the Fed’s pronouncements and enforce the concept in its controls.

The Editors, though, missed the most important distinction and problem.

Whether or not “racial equity” is a matter to be taken seriously, it’s a political matter only, and so belongs only to the political branches of our Federal government—Congress and the White House.

The matter has no place in any Central Bank, including ours. The Federal Reserve’s function, in particular, is to protect our currency by protecting our economy—by working, under its existing statutory instructions, to maintain stable pricing, maximum employment, and moderate long-term interest rates (which means working to maintain stable pricing, since employment and interest rates fall out of that).

The Fed has no business or place in the political environment.

I Disagree

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(Surprise.)

Oklahoma’s Attorney General John O’Connor (R) thinks banning “assault weapons” (whatever those are in the real world) looks like a big action, but it really isn’t.

Banning assault weapons looks like it’s a big action, but it really isn’t a big impact. We’re going to dance around all this, Neil, for a long time, but the fact is it’s criminals and people with some type of either long-term or temporary mental illness or depression. That’s the culprit. Only those people shoot people outside of our military.

He’s wrong. While such a ban would have little impact on availability to criminals and the insane, it would have a very large impact on us average Americans‘ ability to see to our own needs and purposes.

But the truly large impact would be on our Constitution and so on our individual rights (and duties). If allowed to stand, such a ban would degrade our 2nd Amendment, weakening it against additional and steadily broadening bans until our 2nd Amendment no longer exists in any material form.