Tag Archives: freedom

“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 Any “right” created by a Court ruling can be withdrawn by a subsequent Court ruling, just as any Presidential executive action can be withdrawn by a subsequent President.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.

“Negotiate”

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French President Emmanuel Macron is at it again vis-à-vis Ukraine.

French President Emmanuel Macron said Ukraine would eventually have to hold peace talks with Russia, while Ukrainian troops fought hard to hold back the Russian invasion force in the country’s east.
“At some point, when we will have helped Ukraine as much as possible to resist, when I hope Ukraine will have won and fighting will have stopped, we will have to negotiate,” Mr Macron told reporters while visiting French troops in Romania.

Whose definition of victory, though? Whose definition of what’s possible? Whose definition of fighting will have stopped?

Will the fighting have stopped because the Ukrainians have run out of weapons and ammunition because wobbly (to use a Margaret Thatcher term) nations like France have decided for Ukraine that it’s enough and stopped supporting Ukraine materially and materiel-ly?

Will Macron decide for Ukraine that fighting—or supplying Ukraine—is no longer possible? Will Macron decide for Ukraine when “victory” had been achieved?

Ukraine is in a war for its very existence as a polity and as a society, and it’s fighting a barbarian bent on destroying that polity and society. Macron apparently has forgotten his own nation’s struggles for existence in two wars in the last century, the first of which threatened its existence but for the unalloyed aid of other nations, and the second of which did erase France from the map except for one part that was a satrap of another nation and the other part that was a rump country wholly subsidiary to that other nation, an erasure undone only by the unalloyed aid of other nations.

The only victory possible for Ukraine has already been articulated by Ukraine’s President, Volodymyr Zelenskyy. That victory consists of the Russian barbarian (my term) gone entirely from Ukrainian territory.

I suggest that the only negotiation with the barbarian that is possible once he’s driven from Ukrainian territory is how far back into Russia from the Ukrainian border all roads and railroads must be torn up and plowed over.

“We, Europeans, we share a continent, and geography is stubborn: it turns out that at the end of it, Russia is still there,” [Macron] said.

Macron’s cheap snark, despite itself, puts a premium on victory on Ukrainian terms and on subsequent negotiation on my term. We do, indeed share a continent under stubborn geography. However, France is still there, as I noted above, only because other nations came, without hesitation or reservation, to its aid.

So it must be for Ukraine. France above all owes this debt to Ukraine, owes this debt to Europe.

Lost Hope

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That’s the position of the Iranian people regarding President Joe Biden (D). Khosrow (security-protected identity):

The Iranian resistance have lost all hope in the Biden administration. The price of President Biden’s policy on the people of Iran and the region is one being paid with our blood and the destruction of our lives.

They won’t be alone in not too long. Israeli blood and destruction—Israel’s existence—will be in the wind when Biden gets his way on his Iranian nuclear weapons deal, and Iran gets its nuclear weapons along with billions of dollars in cash payments and billions more in lifted economic sanctions.