Author: Ellwood "Sandy" Sanders

Gun Rights: A Somewhat Forgotten but Essential Liberty (Guest Post by Sandy Sanders)

~ Ellwood "Sandy" Sanders ~ Leave a comment

This guest post by my friend Sandy Sanders is his second in the Lincoln-Douglas Debates II series – the Sanders-Scott Debates. The first entries, on abortion policy, are here and here. Sandy’s entry on this issue is also posted at Virginia Right. You can read my entry on this issue at Foggy Bottom Line here.

Your Vote in November for President Could Decide your Right to Keep and Bear Arms!

It may not happen again. But I have to thank Canadian Prime Minister Justin Trudeau for demonstrating the essential importance of gun rights enshrined in basic law (from the CBC):

Trudeau announces ban on 1,500 types of ‘assault-style’ firearms — effective immediately

A couple of little gems from the article:

“These weapons were designed for one purpose and one purpose only: to kill the largest number of people in the shortest amount of time,” Trudeau said. “There is no use and no place for such weapons in Canada.”
While he acknowledged that most firearms owners are law-abiding citizens, he said hunters don’t need this sort of firepower.

To be honest, the firepower needed to hunt is none of the government’s business. And it gets worse – it’s not even an Act of Parliament (as bad as that might be) it is a regulation:

The ban will be enacted through regulations approved by an order-in-council from cabinet — not through legislation. Trudeau said the government was ready to enact this campaign promise months ago, before the COVID-19 pandemic disrupted the legislative agenda.

Here is the text of the Second Amendment:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

And Virginia (Virginia was first: June 12, 1776 – Art. I, Sect. 13):

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

The language is very similar. Here is the corresponding right to keep and bear arms in the Canadian Constitution:

…

It’s blank. There isn’t any. And now the people in Canada have lost an important and essential liberty: the right to keep and bear arms.

This is a good start for an essay on guns. Alas, I have to move to, not too exciting for most readers, court cases.

The issue on what does the Second Amendment mean was not squarely placed before the Supreme Court until 2008. (Yes there was a Depression-era case involving sawed-off shotguns [United States v. Miller, 307 U.S. 174 (1939)] that held that possession of such a weapon that was was not part of the arsenal of a militia was not protected by the Second Amendment.) Some think that is because few questioned the Second Amendment right until more recently.

In 2008, the Supreme Court of the United States held that a non-felonious citizen has a right to possess a weapon in self-defense (subject to certain administrative requirements) in District of Columbia, et al. v. Heller [554 U.S. 570 (2008)]:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful fire-arm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

There are a number of exceptions:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

There is also an exception (admittedly very unclear) prohibiting “dangerous and unusual” weapons. It could be read to prohibit “assault weapons”. That case will someday reach the Court.

I apologize for all the legal cases and there is one more but it can be easily discussed: McDonald, et al. v. Chicago (561 U.S. 742 [2010]) where the Second Amendment is “incorporated” into the Fourteenth Amendment and thus enforceable against state and local governments.

Alas, there is little analysis in all these cases. What judicial scrutiny – what standard does a government restriction on the right to keep and bear arms have to meet to be constitutional. Strict scrutiny is a very compelling state interest and the least restrictive alternative must be used. Rational based scrutiny is pretty much what it implies: If the state law has a rational basis, it will be upheld. There is also an intermediate level of scrutiny. It requires the government to assert an important interest and there has to be a substantial basis between the state law and the important governmental interest. It is very likely that the right to bear arms will either have strict scrutiny or intermediate scrutiny.

Most of the explicit constitutional rights (e.g, freedom of expression) receive strict scrutiny and so does some classifications (race-based classifications); the major classification that receives the intermediate level of scrutiny is gender-based classifications.

This would speak powerfully for strict scrutiny but the Fourth Circuit (the federal appellate court that has jurisdiction over Virginia) has adopted the intermediate level of scrutiny and upheld the so-called “assault weapons” ban. (The federal court held that assault weapons were military style weapons and not protected by the Second Amendment at all.)

There is one major problem with not applying strict scrutiny to Second Amendment rights: An explicit personal right gets less constitutional protection (“…small not be infringed”) than another explicit personal right (“Congress small make no law…”). There has to be an important reason for such a distinction.

The Supreme Court will decide this issue at some time. Virginia laws such as the banning of most private sales or transfers of firearms (so-called “Universal Background Checks – a misleading term at best in that universal background checks are in fact required for all sales through federally-licensed dealers), and the so-called “red flag” laws (which raise another constitutional issue: Procedural due process – is the manner the state provides for a hearing to be heard on the deprivation of gun rights fundamentally fair); I think the one gun a month law is probably constitutional.

I suggest that both of these laws are constitutionally problematic. Banning an entire class of gun sales is a clear infringement on the right to bear arms probably not shown to effectively prevent mass shootings but will affect the right to self-defense. Red flag laws could be constitutional if the firearm possession issue is subordinate to the matter at hand: Is the owner of the firearm(s) a threat to him/herself or others? If so, custody could be the answer without emphasizing gun rights. (A relative or friend could have authority to temporarily seize the gun(s) until a later court says give them back to the owner.) The fact that it takes law enforcement to start the process under the Virginia red flag law leans the law toward it being constitutional. Finally, there are two ancillary issues, one fairly important and another not as critical to courts looking at the law as written: The important issue is that protected speech cannot be a reason to take guns, even if that speech is “mean and hateful”. The speech has to be a clear imminent threat to violence. The second is that different countries and cities in Virginia might have unstated but very different standards for the seeking and taking of guns. I would think Wise County would have a very different view of the criteria to remove guns than say Arlington County. But that might arise after the law is in effect for some time but not compelling to its initial constitutional review. Judges will assume fair and even application of a law in its initial review.

I apologize for all the legal stuff! Hence I must close with this: Four justices of the Supreme Court (Justices Sotomayor, Ginsburg, Breyer and Stevens) held in BOTH Heller and McDonald basically held that there is NO personal right to bear arms. Stevens has even after he left the Court, suggested the Second Amendment ought to be repealed. Stevens was replaced by Justice Elena Kagan who is not likely to be materially different on gun rights.

Let us also remember (please note to the Public Safety Minister in Canada) that one right to the right to keep and bear arms – which I am afraid the late and great Justice Scalia did not adequately give enough credit to in Heller: An armed citizenry is a threat to tyrannical government.

James Madison is quoted as saying both the right to bear arms and limited government are defenses against tyranny:

“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”

George Washington said:

“A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies.” 

Both quotes came from here.

Thankfully, the people of the US have as Jefferson put it, “the rational and peaceable instrument of reform”, the ballot.

Alas it is today unfortunately true: Who you cast that ballot for in 2020 for President and United States Senate is critical to the continuance to your right to bear arms. I’d run ads in key states saying exactly that.

ABORTION: What Is To Be Done?

~ Ellwood "Sandy" Sanders ~ Leave a comment

This is a guest post from my good friend Elwood “Sandy” Sanders, who blogs at Virginia Right. and his first entry in our new “Lincoln-Douglas II: The Sanders-Scott Debates.” This essay will be cross-posted at Sandy’s site. You can read my initial entry in the series here.

Let’s Start With What It Is: Willful Taking of a Human Life

I found out in my research that there is some dissent or at least some questioning the idea that science says life begins a conception. From WIRED:

Inside the body, fertilization can happen hours or even days after insemination, as the sperm travels up the fallopian tube. This journey also induces changes in the membrane of the sperm, called capacitation, that ready it to fertilize eggs. (The discovery of artificial capacitation was key to making in vitro fertilization possible.) As the fertilization researcher Harvey Florman has said, “Fertilization doesn’t take place in a moment of passion. It takes place the next day in the laundromat or the library.”

But even fertilization isn’t a clean indicator of anything. The next step is implantation, when the fertilized egg travels down the fallopian tube and attaches to the mother’s uterus. “There’s an incredibly high rate of fertilized eggs that don’t implant,” says Diane Horvath-Cosper, an OB-GYN in Washington, DC. Estimates run from 50 to 80 percent, and even some implanted embryos spontaneously abort. The woman might never know she was pregnant.

Assuming that fertilization and implantation all go perfectly, scientists can reasonably disagree about when personhood begins, says Gilbert. An embryologist might say gastrulation, which is when an embryo can no longer divide to form identical twins. A neuroscientist might say when one can measure brainwaves. As a doctor, Horvath-Cosper says, “I have come to the conclusion that the pregnant woman gets to decide when it’s a person.”

Lest you think I’ve gone liberal on my readers, I think that whether human life begins at conception (fertilization) or implantation or gastrulation. I think it is clear that there is an awesome event going on here in the womb. It reminds me of my seventh grade biology teacher when speaking on the question of the reproduction of plants, said that how some things happen can only be answered by faith in God. Abortion almost always occurs after a embryo has attached to the womb. It is a willful taking of human life.

And good people can disagree about both the rightness or legality of abortion. But since it’s a willful taking of human life, it ought only to be allowed in rare circumstances.

Let me cite Secretary Clinton, yes Hillary Clinton, who said abortion should be “safe, legal and rare.” But not in the way she means.

I mean that abortion should be safe and legal in rare situations and here is my proposal:

Abortion should be legal only in three situations:

Life of the mother is in danger (or a serious physical threat to her life)

Rape or incest promptly reported to the authorities

A child is likely to be born with a serious deformity that will affect his or her quality of life in a substantial way.

Now, I do not say abortion is RIGHT (not sin) in some – even most of those situations. I would probably say abortion IS sinful in situations two and three described above. And after say 20 weeks, I’d drop situations two and three.

Now, we turn to the law. Roe v. Wade was a Supreme Court case decided in 1973 (January 22 – that is why the March for Life occurs about that time) which found that the Substantive Due Process clause of the US Constitution stated that in the early stages of pregnancy the abortion decision was up to the mother, her doctor and/or her pastor. But after viability, there was a different rule and then the state could protect life.

Substantive Due Process is a judge-made interpretation of the due process clause to invalidate laws the courts did not like. It depends on who’s ox is being gored as to do you like substantive due process. It protects abortion and contraception but also private schools, parental rights and by extension homeschooling. Substantive due process is problematic is that it is difficult to establish what are the parameters and limits of the doctrine to prevent judges from having the last word on laws in a democratic republic.

I think the solons in Washington thought they had decided the matter for good and only some extremists on both sides (Roe did NOT hold that a woman had an absolute right to an abortion) would fuss about legal abortion but the opposite occurred.

It must be respected the pro-life position; they believe they are saving babies or future babies from certain death. Now almost every politician in the state legislatures (and most in Congress as well) were male. It might have been better if those male legislators had been more discreet and sensitive in their language/discussion of intimate decisions of women.

A future Supreme Court Justice (and future cultural icon) Ruth Bader Ginsburg suggested – when she was nominated for the Supreme Court – maybe the SCOTUS went too far in Roe:

The seven to two judgment in Roe v. Wade declared “violative of the Due Process Clause of the Fourteenth Amendment” a Texas criminal abortion statute that intolerably shackled a woman’s autonomy; the Texas law “except[ed] from criminality only a life-saving procedure on behalf of the [pregnant woman].” Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court’s splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have served to reduce rather than to fuel controversy.

But Justice Blackmun tried to, in Roe, write a comprehensive decision that answered every conceivable future question. Roe was described by Professor John Hart Ely in the Yale Law Journal as legislation and a decision that does not “pretend to be” constitutional analysis.

“[The abortion decision] is not constitutional law and gives almost no sense of an obligation to try to be….What is frightening about Roe is that this super­protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.”

I would rather have no legal abortions at all than unfettered judicial law-making. And I prefer not to have either one.

By the way, if you want to see how extreme the pro-abortion forces are, consider this paragraph from the Time article cited above on Ginsburg:

Kate Michelman, then president of the National Abortion Rights Action League, called on the Senators to determine “whether Judge Ginsburg will protect a woman’s fundamental right to privacy, including the right to choose, under a strict scrutiny standard.” The questioning was strong enough that Ginsburg’s husband Marty Ginsburg, one of the fiercest advocates for her judicial career, got academics to call the White House and clarify that she was talking about the Court’s thinking in 1973, not the ultimate decision.

I still think abortion ought not to have become a federal question. I believe the Sanders objections could be enshrined in law beyond state objection through the establishment of legal defenses required by the PROCEDURAL Due Process clause. In fact, Roe v. Wade could be upheld in such a way as to gut most “choices”. Overruling the case is not necessary.

But before we overthrow Roe, let’s consider the other side of the issue: If abortion is a willful taking of human life, than technically the government could assert jurisdiction over all women of child-bearing age similar to Ceausescu’s Romania where there were inspections of pregnant women. I would suspect few pro-lifers would agree with that kind of of regime and I certainly do not.

So where do we go from here? There’s always the curse of getting what you want. (One reason why Jesus does not answer every prayer with yes.) If Roe is overruled or severely limited, the GOP and pro-life Dems and Libertarians better have some reasonable solutions to this issue. The result of getting this issue wrong is to ensure most women vote a straight liberal Democrat ticket in most of the states and the Federal government for a generation, maybe two. I recommend pro-life lawmakers adopt something like the Sanders position with some serious but science/evidence based regulations of abortion based on abortion being a willful taking of human life.