Sunday, July 4, 2010

Do we even need the 2nd Amendment?

After Iowa's Senator Grassley's garbled attempts to pin Elena Kagan on natural rights (Grassley grills Kagan on guns), Oklahoma's Senator Tom Coburn carried it a little further. Both senators were trying to pin Kagan down if rights preexisted the Constitution. Senator Coburn:

Sen. Coburn asked, ""Do you personally believe there is a fundamental right in this area? Do you agree with Blackstone? He said that [the right to self-defense through gun ownership] was a natural right."

Kagan responded, "To be honest with you, I don't have a view of what are natural rights independent of the Constitution."

"So," Coburn asked, "you wouldn't embrace what the Declaration says, that we have certain God-given rights" and that among these are the right to life, liberty, and the pursuit of happiness?"

Kagan answered, "I believe that the Constitution is an extraordinary document, and I am not saying that I do not believe there are not rights preexisting the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws."

Kagan Downplays Declaration of Independence
So when she uses "European Law" as other jurists have done lately, is she lying here?

This is basically a job interview for this position, it should never be a rubber stamp on whoever a president nominates. If I make a false claim in an interview and hired based on those claims, I can be fired. That is a given for almost everyone in this country. Why isn't this the same for a position that affects 330 million plus Americans? Why isn't Sotomayer being impeached after she agreed in the right to arms during confirmation, but now can't find any support within the Constitution or historical documents (A Vote for Kagan Is a Vote to Take Away Your Guns) Why should we expect anything different from Kagan?

The point of trying to pin these nominees down on preexisting rights is this: If the 2nd Amendment, or any other portion of the Constitution, is reversed by law or amendment, do these rights exist?

By Kagan's philosophy - no. The "living, breathing document" can be molded to fit any world view and therefore our rights codified in the Bill of Rights can be nullified.

I'm reminded of an article from years ago from Backwoods Home Magazine regarding a "fictional conversation" between fishing buddies. Editor John Silveira uses this technique to make a point: We don’t need no
steenking 2nd Amendment
“And do you also understand that the Bill of Rights is not the source of our rights. It’s not even a complete list of our rights.”

“What are you talking about?” I asked.

“Mac’s losing it,” Bill said and threw his arms up.

“I’m asking you if you understand that we do not get our rights from the Bill of Rights.”

“Of course we do,” Bill said. “That’s why they wrote the Bill of Rights.”

“I’ve got to agree with Bill,” I said.

Dave said nothing. He seemed to be thinking.

“I’m saying this because the Founding Fathers did not believe we got our rights from the Bill of Rights. Nor did they believe they came about as a result of being American, Christian, of European decent, or white. They believed everyone had these rights even if they lived in Europe, China, or the moon. They called them Natural Rights. Where these rights were not allowed, they believed they still existed but were denied.”

“You should be writing fiction,” Bill said.

“Well, it’s a question as to whether or not our rights exist apart from government,” Mac said. “Let me ask you this,” he said to Bill. “In a country where children have no civil rights, do they still have a right not to be molested? Do women in countries where they have a second-citizen status have the right not to be abused by their husbands, even if the government won’t protect them?”

Bill didn’t answer.

“Then is it too much of a stretch for you to understand that the Founding Fathers believed everyone has the right to free speech, freedom of religion, the right to fair trials...?” His voice trailed off.

Bill still wouldn’t answer.

“In other words,” Dave said, “it’s a question as to whether the rights of the citizens in China are at the pleasure of the government or if they have them but are being denied, or if the Jews had basic human rights in Germany even if Hitler didn’t let them exercise them?”

“Yes. All I want to know is if that’s hard for you to see.” He looked at Bill who was still silent.
Apparently Kagan is trying her best to be silent as well. She can't answer, because acknowledging that rights exist - period - throws the "civil-rights" based government laws right out. The Civil Rights and Voting Rights acts of the 60's are part of that philosophy.

Do we need the thousands of laws on the books if the courts did one simple thing? Follow the Equal Protection clause?

Acknowledging natural rights would acknowledge that citizens are free to do as they wish without interference from government or others, so long as one is not infringing on someone else's rights.

The bureaucrat control freaks can't have that. If it's a law, it can be changed and your rights today will not be passed down to posterity.

Maybe that's the goal.
To disarm the people; that it was the best and most effectual way to enslave them. - George Mason

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