The Smallest Minority: March 2016

So, over at Quora someone asked, What would you do if guns became illegal in the US? I responded:

As the saying goes, "When guns are outlawed, only the government and outlaws will have guns."

There's another saying: "After the first felony, the rest are free."

But there's an even more appropriate saying: "...an act of the Legislature repugnant to the Constitution is void." (Marbury v. Madison, 1803) And yes, I believe I understand what is and isn't "repugnant to the Constitution," and more importantly, I have the right to make that judgement.

That drew this comment:

I agree with most of what you have written Kevin, right up to the end. You DON'T have a right to make that judgment. That decision is reserved for the courts and until such time as a lawfully passed law has been approved, it is the law of the land. Once the courts declare it unconstitutional, then it is no longer a law.

This is the whole scenario with the wackadoos out at the Malheur National Wildlife Refuge, and with the Bundys in Nevada. You are not free to interpret the Constitution nor the laws in any way you choose...

To which I replied:

"You DON'T have a right to make that judgment. That decision is reserved for the courts and until such time as a lawfully passed law has been approved, it is the law of the land. Once the courts declare it unconstitutional, then it is no longer a law."

Here I'll quote Judge Alex Kozinski of the 9th Circuit Court of Appeals:

"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."

If I wait for "the courts to declare it unconstitutional" I would already be disarmed.

Fuck. That.

The response?

Yeah sorry Kevin....didn't realize you were part of the tin foil hat crowd. Please just nevermind.

You know me, I couldn't stop there:

No, not the tinfoil hat crowd. They think Armageddon is imminent. I'm with the tinfoil yarmulke crowd. We don't think it likely, (see "exceptionally rare circumstances" above) but we also don't consider it impossible. We've read history.

Apparently he wasn't finished either:

LOL...OK, poor analogy on my part !

But while I recognize that laws can be unconstitutional, PEOPLE don't get to decide that. That is the purpose of the court system...

So I decided to take him to school:

Yes, PEOPLE do. As law professor Mike O'Shea put it, "So the Constitution says Roe, but it doesn't say I have the right to keep a gun to defend my home, huh?"

The court system is made up of PEOPLE. People we should hold to a higher standard, but people nonetheless. Have you ever READ any court decisions? Here's another of my favorite Kozinski quotes:

"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or...the press” also means the Internet...and that "persons, houses, papers, and effects" also means public telephone booths....When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

"It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences."

What you're advocating is surrender to authority. You've abandoned your responsibility as a citizen to understand and defend your rights "against all enemies, foreign and domestic" when you insist that we're just supposed to accept what five black-robed officials on a panel decide. You can read, study, and understand what you've been promised by the system that was set up to protect those rights yourself.

Your argument boils down to "You're not qualified!"

Like hell we're not.

That got him warmed up:

Not a question of "qualified" Kevin. It is a question of what our Constitution says is how our government works. You don't have to like the Roe vs. Wade decision anymore than I like the Heller decision. But those are the law of the land now since they are the decisions of the SUPREME Court. I capitalize that for a reason, because it is the ULTIMATE decider and serves as a check on the Legislative and Executive Branches.

Kozinski can write whatever he wants to, just like you or I can. The difference is that his writings nor yours or mine carry any legal weight. If you want to change the Constitution to make the way the US government operates different, that is fine and there is a procedure for amending it that is clearly laid out in the document itself. But as a citizen of this country, you are governed by the laws passed in your state and by the federal government. No place in any of those laws does it say you get to interpret the laws as you personally see fit.

"What you're advocating is surrender to authority". Yes, that is exactly what living in a country is all about. We have a common system of laws that supposedly apply equally to call citizens and visitors. You don't get to make up your own laws, nor disregard those made up by the governments who govern where you are.

Your last paragraph is exactly what the Cliven Bundy's and LaVoy Finicums of the world believe. "The law doesn't apply to me if I don't agree with it". Well, YES IT DOES! If you don't like it, then there is a procedure for changing the laws of this country and you need to get a majority of the people to support the changes you want to make. This is a democracy on some levels and a republic on others. Why are you willing to argue about your individual rights, while completely ignoring the process by which you were granted those rights. The true disconnect is when people (and that would include you in this discussion) think they get to define their own rights as being different from that which others believe them to be. That is the purpose of the court system...to make sure we are all on the same page as to what is and what isn't acceptable. You don't get to make that call unfortunately, no matter how much you may not like it.

Not deterred, I fired back:

"You don't get to make up your own laws, nor disregard those made up by the governments who govern where you are."

Do you routinely drive faster than the posted speed limit? Are you aware that, most likely, you commit Three Felonies a Day?

"Why are you willing to argue about your individual rights, while completely ignoring the process by which you were granted those rights."

See, that's what defines the difference between our worldviews. I wasn't granted anything. I'm supposed to be living under a government established with the duty to protect the rights I have simply by existing.

How's that working out? Rand's Atlas Shrugged and Orwell's 1984 were supposed to be warnings, not instruction manuals.

"The true disconnect is when people (and that would include you in this discussion) think they get to define their own rights as being different from that which others believe them to be."

Now here we are somewhat in agreement. I've spent a lot of time thinking about and writing about rights, and at one point I wrote:

A "right" is what the majority of a society believes it is.

To that, however, I added this:

What good is a "right to keep and bear arms" if it gets you put in jail? What good is a "right to keep and bear arms" if using a firearm to defend yourself or someone else results in the loss of your freedom, or at least your property? What good is a "right to keep and bear arms" when you live in a city that denies you the ability to keep a gun in your home for self protection?

This is a battle for public opinion, make no mistake.

It is a battle the powerful and their useful idiots have been winning.

Your rights are meaningless when the system under which you live does not recognize them. Or worse, scorns them.

If you want to keep your rights, it is up to YOU to fight for them. Liberty is NEVER unalienable. You must always fight for it.

"If you will not fight for right when you can easily win without blood shed; if you will not fight when your victory is sure and not too costly; you may come to the moment when you will have to fight with all the odds against you and only a precarious chance of survival. There may even be a worse case. You may have to fight when there is no hope of victory, because it is better to perish than to live as slaves." - Winston Churchill

Welcome to the battle for public opinion. We appear to be on different sides.

That put him off:

Thanks for the dialog. Speeding is not a felony, and as soon as you started quoting Ayn Rand that ended my interest in continuing the discussion. Keep fighting the good fight.

But I wasn't done yet:

Point of fact: I didn't "quote" Rand. I gave the title of one of her books, along with the title of one of Orwell's. With respect to Rand, I like this quote (about, not by her):

"Perhaps the biggest mistake an intellectual can make is to try to parlay his one brilliant insight into a unified theory of existence. Ayn Rand made this mistake with Objectivism. Objectivism was useful for thinking in certain limited realms, but Rand sought to apply Objectivist thinking to every aspect of the human experience, including love. The result is a sterile philosophical landscape, extending out of sight in all directions.Tellingly, Rand was unable to live according to her ideals. This is part of what makes Rand so disagreeable; the almost hysterical denial of subjectivity's inevitable, essential role in our lives. And it makes her not only disagreeable, but wrong."

The fact that you reacted so viscerally to the mere mention of her name says more about you than about me.

Now I will quote Rand so you can feel justified in abandoning the dialog:

"The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities."

To which he replied:

Kevin, we just see the world very differently and arguing about that on Quora does neither of us any good. The title of this whole thread was "What would you do if guns became illegal in the US". In order for that to happen, there would need to be a constitutional amendment and that requires a 2/3 vote of the states, so I don't see that happening.

We obviously disagree on the role of the courts in interpreting the constitution and the laws passed by the legislative branches of government. That's fine. We are each entitled to our own beliefs.

My concern is with people who somehow view our government as evil and restricting their freedom. The USA is one of the freest places on the planet. I believe that in my heart. If you don't, then so be it, again, your choice, but I don't know what individual rights you believe you are not getting in this country.

Good luck and again, thanks for the dialog.

One more final parting shot by me:

"Kevin, we just see the world very differently and arguing about that on Quora does neither of us any good."

Odd, I thought that was what the internet was for!

;-)

"My concern is with people who somehow view our government as evil and restricting their freedom."

You haven't studied history much, have you? I don't view our government as evil and restricting of freedom, I view all government as evil and restricting of freedom. I share that opinion with Thomas Paine:

"Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one; for when we suffer, or are exposed to the same miseries by a government, which we might expect in a country without government, our calamity is heightened by reflecting that we furnish the means by which we suffer..."

However, I am not an anarchist - note the qualifier that government is a necessary evil.

"The USA is one of the freest places on the planet. I believe that in my heart."

So do I. But as a friend asked once, "When was the last time you built a bonfire on a beach, openly drank a beer and the presence of a policeman was absolutely no cause for concern? Hmmm?"

I am also constantly reminded of John Philpot Curran's warning:

"The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

I'm an atheist, but the sentiment rings true.

"...I don't know what individual rights you believe you are not getting in this country."

It's not the ones I'm not getting, it's the ones I have I'm fighting to ensure I don't lose. Ask the (former) residents of New London, CT about their property rights. Ask the Tea Party victims of the IRS about their free speech rights. Look into the abrogation of your 4th Amendment rights of protection against unreasonable search and seizure with respect to vehicle searches and "asset forfeiture." Read Glenn Reynold's Columbia Law review piece Ham Sandwich Nation: Due Process When Everything Is a Crime. Speeding isn't a felony, no, but study the expansion of felony law. Were you aware that in some jurisdictions walking out of a restaurant on a $25 check is a felony? Or staying in a multiplex cinema and catching a second feature without paying for it?

You are aware of the loss of rights that goes along with a felony conviction, aren't you?

Yes, the USA is one of the freest places on the planet, but government is power concentrated in the hands of a few, and power corrupts and attracts the already corrupt. Ignore that fact at your peril.

Supreme Court Justice Learned Hand once wrote, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. While it lies there, it needs no constitution, no law, no court to save it."

Does arguing on Quora do any good? Maybe not for you, but I'm not writing to convert you. I'm writing so that others who read these threads might get exposed to ideas that they had not previously considered, and that might actually get them to think and study for themselves.

THAT is what I think the Internet is really for.

I don't expect him to reply again, but you never know.

UPDATE, 3/27: There were some other commenters, which started this final thread:

You seem very happy to subject yourself to the authority of others.

Interesting, but not applicable to anyone else.

To which our respondent replied:

I subject myself to the legally passed laws of the Republic Robert. It is the nut jobs out there who seem to think they have the ability/right/duty or whatever else you want to call it to selectively decide which laws apply to them or must be followed.

Given that opening, I asked him:

So Rosa Parks should have stayed in the back of the bus, then. Check. And I assume you've never heard of Jury Nullification?

He seemed surprised by this:

What does this have to do with Rosa Parks or Jury Nullification? Nevermind...forget that I asked...

But I wasn't letting him off that easily.

No, no! Let's pursue this logic train all the way to the end of the tracks! You stated that you subject yourself to the legally passed laws of the Republic. The law that forced Rosa Parks to the back of the bus was one such law. You're stating that she should have obeyed it - that she had no ability/right/duty to "selectively decide" that it didn't apply to her, and that when brought to trial the jury didn't have the ability/right/duty to decide - in the face of the law and the judge - to acquit her because she had clearly violated the legally passed law, right? That we mere individual citizens don't have the RIGHT to judge those laws for ourselves.

I can draw no other conclusion from your statements. YOU can draw no other conclusion from your statements. Rosa Parks had no right to violate the legally passed law of the Republic. Period.

Or explain to me how I'm misinterpreting your position.

This was ignored or unseen until someone else asked him about it later, and I pointed him to the question.

You can almost hear the Cognitive Dissonance grinding between his ears:

Kevin, I have no interest in continuing this discussion with you so please stop posting responses to me. Civil disobedience is not a Constitutional issue and that is where this conversation began. Again, thank you for the dialog, but I do not wish to hear from you further.

Hell, I thought what were discussing WAS civil disobedience. Here's another place to quote someone quotable - Winston Churchill: "Men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing had happened." Anyway, I've apparently hurt his brain enough, and he's served his illustrative purpose, so I let him go: