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Thursday, June 26, 2008

Individual right to bear arms vindicated: Ron Paul supporters dismayed?

One of the neo-Confederate Ronulan cultists lovely folks at lewrockwell.com is already registering dissatisfaction with the Heller decision.

Why? Because, according to Stephan Kinsella's interpretation of the law, the Second Amendment only forbids the federal government from banning guns (actually, that's inaccurate: the claim is more that the Second Amendment and the entire Bill of Rights are "irrelevant and redundant .")

Well, isn't Washington, D.C. under federal jurisdiction, and doesn't that mean the Second Amendment would apply? Things are not so simple. He cites approvingly Kevinn Gutzman's claim that, " the District of Columbia, insofar as it behaves as a state, is properly treated as a pseudo-state by the Supreme Court."

Thus, if D.C. must be treated like a state, then the federal Supreme Court can't overturn a gun ban on Second Amendment grounds, since, as noted, the Amendment (and the entire Bill of Rights) is only supposed to apply to the federal government. QED.

The Cato Institute's Tom Palmer called this line of reasoning "just plain dumb," but, anyway, that's the argument. It's the reason why not everyone is celebrating in Lincoln-hating land today. Stephan Kinsella and others are worried that the 2nd Amendment will be applied against the states through the 14th Amendment, and that highly restrictive state gun laws in places like Chicago will be struck down next.

Let me put that point more concisely: some of Ron Paul's supporters are dismayed by today's Supreme Court decision because they think it might be used in the future to prevent a democratic mob from trampling on an individual's rights. But Ron Paul himself thinks it's just fine for such mobs to restrict a person's liberty, just so long as the mob and the individual reside in the same state.

And people wonder why I refuse to call them libertarians.

 

UPDATE:

Timothy Sandefur responds to Stephan Kinsella here better than I ever could.

Posted by Terrence Watson on June 26, 2008 | Permalink

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Comments

Keyword is 'some'..

I'd be surprised if it was 2.

Posted by: Mike | 2008-06-26 7:06:57 PM


"Let me put that point more concisely: some of "Ron Paul's supporters are dismayed by today's Supreme Court decision because they think it might be used in the future to prevent a democratic mob from trampling on an individual's rights. But Ron Paul himself thinks it's just fine for such mobs to restrict a person's liberty, just so long as the mob and the individual reside in the same state."

Avalanche!

Ron et al don't understand freedom, Bill of Rights, nor the lessons of history.

The NDP would be proud.

Posted by: h2o273kk9 | 2008-06-26 7:52:10 PM


Mr. Watson,

I'm an anarchist. All actions of any state are illegitimate and criminal. Are you an anarchist, or a statist?

Anyway, how does the fact that all state actions are illegitimate demonstrate that the United States federal Constitution empowers that limited-powers central state with the power to stop every conceivable rights violation committed by other states?

Posted by: Stephan Kinsella | 2008-06-26 9:00:27 PM


Just seems to me, if the name Ron Paul is involved, SOME people have got to make an issue. As for me, I find most of his arguments very compelling and historically sound. Beats the crap they are shelling out in the media, anyway.

Posted by: Scott Harmon | 2008-06-26 9:53:51 PM


There sure are a bunch of morons posting on this site. Probably some McCainiac moles.

Posted by: Freedom | 2008-06-26 9:56:13 PM


Mr. Kinsella,

First, thank you for personally responding to this post.

Second, as to your question about anarchy, I follow A. John Simmons and distinguish between the _legitimacy_ of a government and the moral justification (or lack thereof) for particular acts of government (or other acts more generally speaking.)

No arguments for the legitimacy of political authority pass muster. Therefore, I am a philosophical anarchist, and believe that no one has any special moral obligation to obey the law.

But I also believe in individual rights, and I believe that it is good when individual rights are protected. When a government, any level of government, is blocked from violating individual rights, I think that's a good thing. That's why today is a good day.

For an explanation of why I don't trust democracies, especially local democracies, to protect the rights of individuals, one can do no better than to look to Federalist 10.

Thank you again for commenting on my post.

Best,

Terrence C. Watson

Posted by: Terrence Watson | 2008-06-26 10:43:44 PM


This is a Republic, not a democracy, idiot...

Posted by: Fritz | 2008-06-26 10:49:18 PM


Mr. Kinsella,

One other thing: I'm not sure if the Constitution really does empower the federal government to stop the states from violating people's rights. I think Randy Barnett makes a pretty good case to that effect, though.

Besides, even if the Constitution, as it stands, doesn't empower the federal government to enforce a strong presumption of liberty against the states (on 9th and 14th Amendment grounds), why don't you and Ron Paul vocally support altering the Constitution in that direction?

Wouldn't that be a libertarian thing to do?

Best,

Terrence

Posted by: Terrence Watson | 2008-06-26 10:52:43 PM


Fritz,

"This is a Republic, not a democracy, idiot..."

And thank God for that! The less say the mob gets over my life the better, no? Whether federal, state, local, who wants a bunch of strangers dictating his or her life?

And that's why I do NOT support Ron Paul.

Terrence

Posted by: Terrence Watson | 2008-06-26 10:56:35 PM


Who is Terrance Watson? Why should his opinion matter?

Posted by: daddysteve | 2008-06-26 11:00:40 PM


This whole posting is "just plain dumb".

Every Ron Paul supporter I've ever met supports Second Amendment rights and quite specifically rejoiced in today's ruling. Ron Paul has made his *support* for rulings upholding individual rights like these quite clear.

Just because one random person brings up an esoteric line of reasoning on a blog that is often supportive of Paul is no reason to go slandering "Paul supporters" everywhere and misrepresent Paul himself. . . but I guess it does drive web traffic to this site lol.

Posted by: Doug Bayless | 2008-06-26 11:01:00 PM


Doug Bayless,

You're missing the point. There's nothing invalid about the reasoning the Lew Rockwell folks are using.

If you think the Bill of Rights cannot be applied to the states, and if you think D.C. should be treated as a state by the Supreme Court, then you should (and will) reject the Heller decision.

That's not esoteric. It's basic logic. Given the premises the Lew Rockwell folks accept (premises Ron Paul seems to accept as well, given the fact that he rejects the doctrine of incorporation -- see his response to Lawrence v. Texas, as well as many other things), they are right to have qualms about today's decision.

However, I happen to think at least one of their premises is a bit wonky, namely the assertion that the Bill of Rights does not apply to the states. Their argument is valid, but unsound.

At the same time, it's not slandering a person to point out the implications of his own argument. Have you ever heard of "reductio ad absurdum"?

Best,

Terrence

Posted by: Terrence Watson | 2008-06-26 11:23:30 PM


Psst. Your foolish prejudice is showing. Read for yourself what Ron Paul supporters are saying:

GUN OWNERS WIN IN THE SUPREME COURT
http://www.dailypaul.com/node/53503

Supreme Court Decision on Gun Ownership
http://www.dailypaul.com/node/53544

BREAKING NEWS: DC Handgun Ban Overturned!
http://www.ronpaulforums.com/showthread.php?t=144522

Posted by: Daniel | 2008-06-27 1:09:38 AM


Same garbage reporting as always.

State's can decide what they want to do...that is if you believe in that.

Go ahead an poo-poo on RP folks. You've happily proclaimed you'll never like or "get" Ron Paul.

Fine and dandy. Get over your jealousy and write something that has a point.

Posted by: Matthew | 2008-06-27 1:27:32 AM


Same garbage reporting as always.

State's can decide what they want to do...that is if you believe in that.

Go ahead an poo-poo on RP folks. You've happily proclaimed you'll never like or "get" Ron Paul.

Fine and dandy. Get over your jealousy and write something that has a point.

Posted by: Matthew | 2008-06-27 1:28:16 AM


haha, yeah right, what the heck is this garbage post all about?
Oh yeah, I forgot, The McInsaniacs are trying to distract and bach Ron Paul! Well:

The entire Neo-cons are trying since more than 30 years to shut dr. Ron Paul down, but see what's the result: American people are fed up with lies and have enough, they are waking up to the reality: An Economic crisis caused by the depreciation of the dollar by the federal reserve, an isolationist foreign policy of the neo-cons, waistful domestic programs pushed by the socialists (democrats) and a patriot act that undermine civil liberties and whiped up the bill of rights.

Well, who has the solutions? McInsane and his lobbyist? NO

Hussein Obama and his lobbyists? NO

There is only one man who is fighting for this country since more than 30 years and his name is Ron Paul, he knows the issues and has the solutions, will you embrace them or just keep your head in the sand and keep saying meeeeeeeaaaaaah?

Posted by: James | 2008-06-27 6:59:58 AM


You completely discredited yourself in the first sentence. I know you snidely lined it out as if you just learned otherwise. But standing where I am, I see you have no idea what a neo-con is, if you could even bat an eye in the general direction of a Paul supporter. The general Republican party hated and mocked Paul for being a full supporter of the Constitution. His website has touted pro-gun beliefs since day one of his campaign.

You fail to promote anything but angry and hate. I'm sure it will get the people you want to follow your words.

I think of Ayn Rand warning of Neo-Cons in the late 60's and 70s. Then of Ron Paul coming up a hero of individuality, proudly talking about his first edition Atlas Shrugged signed by Greenspan.

You make me sick. It is alright to have your crazy socialist opinions on how to enslave the minds of men, but to accuse the only individualist candidate and his supporters of wanting the rights of men to fail, you have crossed the line. But then, your immorality serves your goals of immoral leaders spending and killing and spending and lying and spending and stealing.

Posted by: Joshua Wise | 2008-06-27 8:12:56 AM


Um, no, Ron Paul believes in a right to bear arms. The only issue with the Bill of Rights is the issue of states rights which in this century's political context means LESSENING the size of government and governmental control. We don't want the state to ban guns, either, which is a problem I had with the Supreme Court ruling not clarifying that states couldn't do this either. However, I wasn't looking at purist interpretation, and in the long run a states rights position DOES, unfortunately, these days, present the most defensible defense of personal liberty. At least the individual has a better chance of influencing policy at a more local level, and can keep a closer eye on how much special interests are skimming off of the top of programs.

Posted by: spinnikerca | 2008-06-27 9:40:10 AM


Atleast now you can defend yourself from unlawful entry into your homes. Crooks and others will think twice. Anyone, I mean anyone, trying to violate your constitutional rights to protect your being and your family's wellbeing, will have to deal with you and your right to defend yourselves. So , the next time , masked people entering your home in the middle of the night, you will atleast have some way to defend your family against such intrusions.

Posted by: TripleX | 2008-06-27 10:35:12 AM


Look, guys and gals, it's very simple...

14th Amendment incorporation. If you think the Bill of Rights (e.g. the 2nd Amendment) should limit state governments as well as the federal government, then you probably believe in the doctrine of incorporation.

Look here for a great discussion of incorporation that shows even my remarks here are a little too imprecise:
http://sandefur.typepad.com/freespace/2008/06/how-14th-amendm.html#more

Ron Paul does not believe in the incorporation of the Bill of Rights via the 14th Amendment. He says as much here:

http://www.lewrockwell.com/paul/paul259.html

and here:

http://www.ronpaul2008.com/articles/238/what-does-the-first-amendment-really-mean/

So Ron Paul doesn't believe in incorporation. He believes the Bill of Rights only applies to the federal government. If this is what he believes, then he's committed to the position that there would be nothing illegitimate about a state completely banning firearms, or putting people in jail for criticizing the Governor.

That's it, guys. That's all. If you reject incorporation, then you've committed yourself to the acceptance of tyranny. Ron Paul doesn't need to say, "I accept local level tyranny" in order for me to draw out the logical implications of his position.

Which I have just done for you. Again.

Terrence Watson

Posted by: Terrence Watson | 2008-06-27 10:49:35 AM


I agree with Terence.

And to add fuel to the fire, let's not forget the racism of Paul's old newsletters.

After all, why do you think the Lincoln-haters
hate incorporation? Could it be that the post-Civil War amendments prohibited the states from denying basic rights to African-Americans

Posted by: Craig | 2008-06-27 5:17:15 PM


"After all, why do you think the Lincoln-haters
hate incorporation? Could it be that the post-Civil War amendments prohibited the states from denying basic rights to African-Americans?"

Craig: good question. I wonder if you're on to something. It could certainly explain why certain white nationalist organizations found Ron Paul's campaign so... appealing.

Best,

Terrence

Posted by: Terrence Watson | 2008-06-27 7:21:13 PM


Terence,

If not racism (and let's not forget Paul's noxious newsletters) what else could explain this hostility to a the federal government guaranteeing equal rights throughout the union?

Posted by: Craig | 2008-06-28 2:50:47 PM


So, all this back-biting aside, if a right to keep and bear arms is a personal right and, one would assume, an inalienable right besides, can felons now go ahead and arms themselves once they've "paid their debt" or will they remain second class citizens?

Posted by: reason | 2008-06-28 9:12:27 PM


Just for the record, Ron Paul himself has spoken in support of the Supreme Court's ruling...

http://www.fortbendnow.com/pages/full_story?article-Paul-Supports-Supreme-Court-Ruling-On-DC-Gun-Case=&page_label=home&id=100371&widget=push&instance=home_news_bullets&open=&

“Today is an exciting day for the Bill of Rights as the Supreme Court ruled in a landmark case that individuals do indeed have a Constitutional right to own guns. I am pleased with this ruling,” Paul said. “As a strong proponent of Second Amendment rights, it is encouraging to see the Supreme Court defining this important right as an individual right against federal intrusion.”

Posted by: Jeremy Maddock | 2008-06-30 1:24:02 AM


Terrence,

Thanks for your comments. A few responses.

I am glad you are an anarchist. It is hypocritical of a non-anarchist (statist) to pretend to be holier than thou than an anarchist, as I am.

You said, "But I also believe in individual rights, and I believe that it is good when individual rights are protected."

I fully agree wit this, of course.

"When a government, any level of government, is blocked from violating individual rights, I think that's a good thing."

Of course it's a good thing. This is a libertarian or political judgment. But this does not mean that (a) the Constitution supports this judicial decision; or (b) that it's an *unadulterated* good thing.

I do not believe I have argued that it's a bad thing if a federal court stops the states from violating rights. This part of it is, of course, good. But if this good thing is achieved at the expense of the central state becoming more powerful by acting without legal authority--by acting as if it does not need legal authority--this can be an "on the other hand...".

Libertarians often trumpet decisions like Lawrence, Heller, or criticize those like Kelo, not only on libertarian grounds--but on grounds that the decision is consistent (or not) with the Constitution. It is this that I take issue with. For example, if the Court decided that the income tax was unconstitutional, I would cheer, but I would not dishonestly claim that their decision was supported by the Constitution--it's just that I wouldn't care; I care more about rights, than the Constitution. People like Palmer feel a need to pretend that they are always the same.

"For an explanation of why I don't trust democracies, especially local democracies, to protect the rights of individuals, one can do no better than to look to Federalist 10."

I do not trust them either. That does not mean that the government of Zimbabwe is legally authorized to interfere with the "democracy" in California; nor that the US has a right to interfere with Canada's internal affairs; nor that the UN has a right to tell Houston what to do.

The blatant dishonesty and lack of integrity shown by people like Tom Palmer is not in their political opinions, or even in the dishonesty of their insistence that the Constitution is libertarian, but in characterizing people like me as being in favor of the unlibertarian actions of a local state, merely because I do not recognize that the Constitution authorizes the central state to intervene. It is incredible.

"One other thing: I'm not sure if the Constitution really does empower the federal government to stop the states from violating people's rights."

Good. Then we are in basic agreement.

"I think Randy Barnett makes a pretty good case to that effect, though."

I think this is basically wishful thinking. But anyway, this is merely a constitutional-legal question, not a libertarian one.

"Besides, even if the Constitution, as it stands, doesn't empower the federal government to enforce a strong presumption of liberty against the states (on 9th and 14th Amendment grounds), why don't you and Ron Paul vocally support altering the Constitution in that direction?"

First, I don't speak for Ron Paul, but I believe he has advocated any number of constitutional amendments that would move us in the right direction. Second, I have advocated altering it in any number of ways, in plenty of publications. I am an anarchist and advocate for it to be abolished. But I would be in favor of any number of structural reforms to improve matters. Giving the feds--the most powerful and dangerous central state on the face of the earth--more power vis-a-vis the states would not be one of them, however, because I believe this would further erode federalism. And federalism itself, in my opinion, was the chief limit on the central state's power; and it is this that should be revised. I would advocate reviving the Kentucy Resolution of Jefferson and give states the power to nullify unconstitutional acts of the feds. As for the states, I would advocate strict limits on their power--something along the lines Barnett suggests in either a state constitution (applying to state law) or a federal one (applying to federal law) would be great. I woudl not even mind the feds having veto power over state law if states had a similar power over the feds, so that it's bilateral, and so that the feds don't come to dominate and thus become unlimited, as they virtually are now.

For just a sample of some of the things I've recommended, see my "Legislation and the Discovery of Law in a Free Society" or "Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey's Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights", both available here: http://www.stephankinsella.com/publications.php -- where I list several ways to limit the power of states (mostly the federal government), such as:

* The amendment proposed by Marshall de Rosa:
"When a national majority of each State’s chief judicial official declares a decision by the U.S. Supreme Court to be inconsistent with the U.S. Constitution, the said decision shall thereby be negated and precedent restored. The States’ designated chief judicial officers shall convey their declarations to the U.S. Solicitor General, who in turn will notify the Chief Justice of the U.S. Supreme Court to take appropriate measures consistent with this amendment."

As DeRosa explains, this would allow controversial Supreme Court decisions to be overturned “more expeditiously and competently” than at present. The states would not have to “resort[] to a cumbersome amendment process or the national congress that is significantly detached from states’ interests.” Also, the amendment would have a chilling effect on the Supreme Court, making it more reluctant to issue unreasoned or unconstitutional decisions, just as lower courts are reluctant to issue decisions that may be overturned by higher courts. In essence, this amendment would “heighten popular control over unenumerated rights jurisprudence, and to that extent a significant portion of originalism would be recovered.”

* Because *legislation* is a dangerous and pernicious way to "make" law, I would support an amendment requiring supermajority requirements for any statutes at all to be enacted (even in states)

* Limit any statute to replace a single judicial decision.

* Sunset provisions that automatically repeal any legislation after a given time, if not renewed.

* Jury trial in ALL cases, even civil.

* Another Amendment proposed by Joseph Sobran: "Any state may, by an act of its legislature, secede from the United States."

*amend the Constitution to repeal the incorporation doctrine

*to eliminate judicial supremacy (sometimes confusingly referred to as “judicial review”), the idea that the Supreme Court is the sole and final arbiter of the Constitution and constitutionality. Instead, the original scheme of separation of powers required concurrent review, sometimes referred to as Jefferson’s tripartite theory of constitutionalism. Under concurrent review, each branch (executive, legislative, judicial) has an equal right to determine the constitutionality of government action.

***

"So Ron Paul doesn't believe in incorporation. He believes the Bill of Rights only applies to the federal government. If this is what he believes, then he's committed to the position that there would be nothing illegitimate about a state completely banning firearms, or putting people in jail for criticizing the Governor."

This is completely incorrect. It is the Tom Palmer way of "reasoning." Just because one does not believe the U.S. federal government has been granted the constitutional authority to overturn state laws does NOT mean one thinks those state laws are illegitimate! Come on. This is like saying that unless you are in favor of one-world (libertarian) government, you believe there is "nothing illegitimate about" unlibertarian acts of local states. This is like saying that unless the you agree that the federal government has the right to enact a general law banning murder (which they do not have), then you are in favor of murder!

Terrence, surely you are aware that until the 1920s or so, the Bill of Rights clearly did NOT apply to the states? When the Bill of Rights was ratified in 1791, some states had an official state religion! Recognizing this reality does not mean one thinks this was a legitimate practice.

"If you reject incorporation, then you've committed yourself to the acceptance of tyranny."

This is utterly and completely false, unfair, and unreasonable. First, it is very clear, in my mind, that--whether I like it or not--the Fourteenth Amendment does NOT "incorporate" the Bill of Rights. Now, it MIGHT apply a "broad range" of fundamental rights to the states, but that is directly, through the privileges & immunities clause, not through incorporation. But notice that the P-I clause does not even mention rights. As Raoul Berger explains, that phrase only meant a narrow set of rights. See his Berger, Raoul, Government by Judiciary: The Transformation of the Fourteenth Amendment (1977). http://www.stephankinsella.com/texts/berger_judiciary.pdf

As to why it can't incorporate the bill of rights, consider this: first, it can't incorporate the 10th, since that's federalism--or do people think the 14th meant to transform the states into mini-federalist governments of enumerated powers not having even the power to outlaw murder? And it can't incorate the ninth amendment, since the open-ended grant of rights, or open-ended restriction of power, is counter to the nature of states as having plenary legislative power (as opposed to the feds, which have enumerated power, so the Ninth makes sense with respect to them -- see on this this post: The Squalid Bill of Rights: "will go a great way in preventing Congress from interfering with our negroes" http://www.lewrockwell.com/blog/lewrw/archives/021794.html ). So what's left, amendments 1 thru 8? Well what about the original first 2 amendments, one of which was never ratified, the other which was ratified recently--now the 27th amendment. Should that be "incorporated" too? Anyway, what about the 5th amendment? It guarantees due process rights. So I suppose that's incorporated too. But if so, why does the 14th Amendment have a due process clause? Isn't this superfluous, if the P-I clause already incorporated the DP clause of the 5th Amendment?

The bottom line is that there is something deeply wrong with libertarians trusting the federal government--the most powerful and dangerous state ever to have existed--as a benefactor and protector of our rights! That criminal gang certaintly doesn't ESTABLISH our rights, as one LP bozo recently said. http://www.independentpoliticalreport.com/2008/06/libertarian-party-marks-heller-victory/

To believe we can approach the criminal gang known as the US government in hopes that we can tweak or reform or persuade it to assume more power to police the states and stop the states from violating rights (and refrain from stopping states from, oh, legalizing marijuana), is more than stupid and naive, it is obscene and unlibertarian.

Posted by: Stephan Kinsella | 2008-07-02 4:41:59 PM



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