Restricting liberty

He went on to state that the founding fathers couldn’t have envisioned how weapons were going to turn out and would want them restricted heavily today.

In a sense, I believe he’s right, but only in a sense. The founding fathers actually passed laws limiting the ownership of some weapons. Only the military could have cannons and warships, for instance. There has always been a distinction between self- defense or hunting weapons and military heavy weaponry. In America, you can’t own an atomic bomb, but you can have a high-powered rifle.

The principle of limiting liberty is not new to America nor a principle which the founding fathers utterly rejected. They recognized that some speech had to be limited in order to have any sort of coherent society, and that without giving up some non-essential expression of some rights, no one would have any rights. Before you start typing your comment, let me explain.

Everyone has the right to liberty. However, we put some people in jail. This restricts the free expression of their right to liberty, and as a society we all agree that happens to people who so abuse their liberty that for our good and their punishment they must be restricted.

Or, consider speech. You have the right to freedom of speech, but that right cannot be freely expressed to deliberately cause monetary or reputational harm to anyone. Slander and libel are both illegal because they cause more harm to society than restricting speech does.

All liberties face some restriction, for without any restrictions at all, none would have liberty at all, either. Oppression by those who were strongest and least limited by honor and virtue would result in less liberty for all the rest. If anyone can do anything, the only the worst and strongest will be free. So we all give up just a little bit to enjoy a great deal more: this is the essence of the “social contract.”

So in that sense, Breyer is correct; the founding fathers saw some limits on ownership of weapons. But he takes it too far and in the wrong directions. For instance, he envisions the bill of rights differently than the founding fathers did, arguing that a Washington DC ban on all handguns is perfectly constitutional. Why?

Again, in a sense I agree. This is the basic principle of modern federalism, where individual states are free to pass laws and allow things that others do not. If you want to have socialized medicine in your state, then you’re free to do so, even if its a really bad idea. If you want gay “marriage” in your state and can get the majority of fellow voters to agree, then you can, while other states can deny it.

The problem here is that Justice Breyer is taking a US Constitutional law – the 2nd amendment – and acting as if its optional. The US Constitution is not optional to the states, all states must obey the law of the land in every state, regardless of their whims and the votes of the people living there. This isn’t negotiable, every amendment of the constitution is nation wide or the rule of law is a joke. No matter how people vote or what the government of say Ohio thinks is best for its citizens, they could not just ignore the 13th amendment per say,  so why should any other other jurisdiction just ignore the 2nd amendment.

Even a liberty lover like myself understands from time to time liberty has to be restricted to have order and civilization, but only in the least manner possible and with the greatest caution. Justice Breyer would have states able to defy the constitution and limit our rights for the latest political wind from the left (this would also open it up for the right too and just be a huge mess), but the founding fathers would have utterly and categorically disagreed.

There is a reason we have the rule of law and it states with the Constitution.