For decades, for pretty much all my adult life, I have been a pretty standard political conservative. Had high hopes for the “tea party” wing of the party when it started up, even went to a few rallies. Over the last 6 years or so, my enthusiasm has been waning – to the extent that I no longer can call myself a Republican, and have deep suspicion of my own conservative leanings. My knee just doesn’t jerk that way anymore.
But this is not the place to explore that. Instead, I wanted to comment on the recent/current doings in the House of Representatives, and one contentious idea in particular: that being the proposal that a person who is on a “watch list” or a “no fly” list by ineligible to purchase a firearm. Sounds pretty reasonable at first glance. And I do agree that “something should be done.” The trick is to do the RIGHT thing while avoiding the wrong; to avoid doing the wrong thing for the right reason. We so much want to do something, that this will be a natural error for us to fall into. And I think there is a danger here that far surpasses the danger of a person of ill intent getting a firearm.
One of the basic principles of the constitution is that certain things, “rights” are not given to us by the government. They are ours by virtue of our humanity. We don’t get them by virtue of law; instead, law regulates their proper use (when can one yell “fire!”?, What religious practices – if any – can be obstructed? (animal sacrifice? Human sacrifice?, What, if any, firearms are not included in that “shall NOT be infringed” clause? Pistol? 0.50 caliber heavy machine gun? RPG?). And we get a way to hammer out those regulations when we get it wrong, or when we get it right. The Court system; ultimately, the Supreme Court.
And when we STILL can’t get good answers that align with our base principles, we can well say that the founders got it wrong here. And we can change the constitution. It’s been done 27 times, and not just long ago; five times in my lifetime. But we need pretty general agreement that the document needs to be changed.
I don’t have a severe problem with those who think our gun laws need to be changed. Most of the changes I think are on the “we have to do SOMETHING, even if it is meaningless” side. But I am not against the attempt.
The problem I have in “no fly/no buy” is that it takes a right recognized in the constitution as one of those fundamentals (and the Supreme court has ruled that it is an individual right), and treats it as if it were a permission granted by the government (like driving at 55, or at 75, or at all), which they may modify or withdraw as they see fit. Rights don’t work that way. Whatever my views on gun ownership (I have never owned one), I don’t want things I have by right to be cavalierly restricted by government.
I can see that the protest – “It is not cavalier – it is according to the “no-fly list” but that won’t do. That list is produced by a bureaucratic effort – perhaps very well intentioned, perhaps very accurate; no doubt the agents placing names on that list are very good at their job. But again, it is drawing an equivalence, and a direct actionable link between a permission (to board a commercial airliner) and a right (to keep and bear arms). Going again to the constitution, the idea in the 5th amendment seems to require a pretty high bar of “due process” before removing a right from a person – such as locking him up in prison. A bureaucracy placing a name on a list is hardly due process.
What distresses me is how many people who have a reason to be suspicious of big government (and I mean my liberal friends from the 60s and 70s, people I went to school with), are suddenly so trusting of big government. They are willing to grant the government the power to remove a constitutional right from a person simply through a clerical, bureaucratic act. A name on a list.
Would this not work the same way for “freedom of assembly” (you can’t meet with THEM, their name is on a list.)? or freedom of the press (you can’t write that, your name is on the list)? Again, I have no particular axe to grind about the 2nd amendment –But if we got it wrong, we need to change it. If we can simply ignore it, then we cannot complain when other administrations ignore other parts that they disagree with.
And I guess that rounds me back to my opening statement – that I can no longer call myself a conservative. I didn’t say quite that, I said I can no longer consider myself a Republican. And that is the truth. But the other side has not won me. There is a tendency to value the constitution when it suits my agenda, and ignore it when it does not –sort of like the way many folks read the Bible. And those who realize that they do this excuse it by saying the alternative is a slavish belief that the founders were next to perfect, and that the document is Holy Writ. And that is obviously just foolish. (it would be). I think this tendency is much more evidenced by the left than the right, although it is specifically violations of this principle – the use of bureaucratic power by big government to get around and thwart the US. Constitution (here in Texas) – that caused me to repudiate the Republican Party.
I think the founders themselves recognized the folly in taking their writings as perfect. That is why they provided a method for amending their work. It is a good method, and good that it takes broad consensus, over a number of years. Foundational changes SHOULD be like that, and not subject to winds blowing back and forth – even here we have erred on the side of too freely changing, think prohibition.
Removal of any fundamental right, as guaranteed in the Constitution, should need court approval. This is not over-burdensome; it is done all day every day in the process of gaining search an arrest warrants. Court supervision to cover the removal of fundamental rights. It cannot be a clerical entry on a list.