Monday, February 6, 2023

A pithy comment from an Oklahoma court on restricting the Second Amendment


A tip o' the hat to Sean Smock on MeWe for highlighting this gem from the US District Court for Western Oklahoma.  The court ruled earlier this month that banning gun possession by marijuana users is unconstitutional.

The first caveat, that the prohibition on possession by a felon be longstanding, makes sense. If not for this limitation, a legislature could circumvent the Second Amendment by deeming every crime, no matter how minor, a felony, so as to deprive as many of its citizens of their right to possess a firearm as possible. Imagine a world where the State of New York, to end-run the adverse judgment it received in Bruen, could make mowing one’s lawn a felony so that it could then strip all its newly deemed “felons” of their right to possess a firearm. The label “felony” is simply “too easy for legislatures and prosecutors to manipulate.”
Remarkably, when presented with this lawn-mowing hypothetical argument, and asked if such an approach would be consistent with the Second Amendment, the United States said “yes.” So, in the federal government’s view, a state or the federal government could deem anything at all a felony and then strip those convicted of that felony—no matter how innocuous the conduct—of their fundamental right to possess a firearm. Why? Because courts must defer to a legislature’s judgments about what is and is not a felony, says the United States. It’s as if Bruen’s command regarding the inappropriateness of such deference to legislative judgments has been lost in translation. In a sense, one must applaud the United States for its steadfast commitment to its legal position. But “giv[ing] legislatures unreviewable power to manipulate the Second Amendment by choosing a label” is inconsistent with the entire point of constitutionalizing a fundamental right in the first place: to restrain a legislature’s ability to infringe that right through legislation. What would remain of the Second Amendment if the Court were to accept the United States’ view that a legislature could prohibit the exercise of the right it protects simply by declaring anything or everything a felony? Nothing. Maybe that is what the federal government desires, but it is hardly what the Constitution requires.

There's more at the link (pages 22 to 24).

That's a very important point, and a pivotal aspect of the trial in question.  If something can be declared illegal, or a misdemeanor, or a felony, merely by the stroke of a legislative pen, then we have no fundamental rights at all.  All of them exist at the whim of the powers that be, who may or may not be legitimately elected or appointed to office, and may or may not be willing to subordinate their wishes, desires and policies to prior legal restraint such as the provisions of a fundamental, overriding law (i.e. a constitution).

We're seeing this in so many ways that it would be laughable, if it weren't so serious.  It's a worldwide problem.  Take the situation in England, long regarded as the home of free speech.  Two recent reports belie that.

As the first report notes:  "Pro-life advocate Emily Rarick wrote, 'This is absolute madness. How can someone be arrested for praying?' ”  I couldn't agree more.  I'll go further.  It largely depends on whose prayer is considered "politically correct", and whose is not.  I guarantee you, if Muslims (whose religion considers abortion every bit as sinful and wrong as does Christianity) had been praying there, the police would have been conspicuous by their absence.  This is nothing less than official discrimination on the basis of religion.

In the USA, we have the First Amendment to safeguard us from that . . . but will it safeguard us if a government or other entity decrees that prayer of a particular sort, or in a particular place, is not in fact prayer but political speech or action, and therefore subject to regulation?  The same applies to preaching what one's faith says to be the truth.  In Canada, the Supreme Court has ruled that "Biblical Speech Opposing Homosexual Behavior is a ‘Hate Crime’ ".  Here in the USA, the American Civil Liberties Union has gone so far as to claim that religious freedoms are being used as an excuse to discriminate against others on the grounds of sexual orientation and other issues.  In so many words, restrictions are being placed around our constitutional rights and freedoms until they're at best diminished, if not actually regulated out of existence.

Take one's right to self-defense.  There are jurisdictions in the USA today where any attempt to defend oneself against unlawful attack will be regarded as "taking the law into your own hands", or "vigilante justice", or any of a number of loaded terms.  Your odds of being at least charged, if not prosecuted and convicted, for doing so are relatively high, no matter how great your legal justification for your actions.  This makes a mockery of the right that underlies the Second Amendment (defense against unlawful threats, whether from invaders, or criminals, or any other illegal source).  I consider myself very fortunate to live in a state (Texas) where the rights of law-abiding citizens and property owners are given their proper consideration when responding to any criminal act.  However, even here, there are local jurisdictions (e.g. Austin, Houston) where those rights are under attack.

As the time-honored saying reminds us, "The price of liberty is eternal vigilance".

More and more government entities, local, state and federal, are trying to do an end-run around the Constitution by passing laws restricting individual rights.  We're going to have to remain ever vigilant to spot them as they arise, and deal with them before they become yet another crippling instrument of oppression in the hands of the "nanny state".

We owe a vote of thanks to US District Judge Patrick Wyrick for standing up for our constitutional rights against such bureaucratic overreach.



Anonymous said...

Clearly, there's a line to be drawn, though it's difficult to define it. I'm reminded of David Codrea's statement that if someone is too dangerous to own a gun, then he's too dangerous to be allowed in society, i.e. he should be in jail. IIRC, he also made the argument that among those most in need of self-defense are ex-cons.

Old NFO said...

That is going to make things interesting!

SiGraybeard said...

I guarantee you, if Muslims (whose religion considers abortion every bit as sinful and wrong as does Christianity) had been praying there, the police would have been conspicuous by their absence.

If Muslim community in the UK had any sense about Public Relations and the worth of public acceptance, they would stand outside the abortion clinics waiting to be arrested for praying silently. (shrug) Maybe they think they've won that battle already.

Anonymous said...

Remember the City and state attacks on churches in 2020? They didn't have a problem criminalizing worship and prayer ... I am CERTAIN we will see it again; next time they'll find a different excuse.
I would assume that people in parts of the US are working on the "discrimination" tactic now, and probably others we don't know about.