Wednesday, July 15, 2009

Sotomayor and "strict construction"

I'm always looking for reasons to link to Becky C's "Just a Girl in short shorts talking about whatever." Here's one:

On gun control, Sotomayor is a strict constructionist. She has ruled that the Second Amendment only puts limitations on federal firearm restriction -- but the states and localities are free to do as they wish.

I shall now gripe.

I have not carefully reviewed Sonia Sotomayor's record on gun issues, but if that record is as described above, she's about as far from "strict construction" as it's possible to get. We don't have to chase down any 14th Amendment or "incorporation" rabbit holes to establish this. Rather, let us just strictly construct.

The First Amendment, just to set the baseline:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Now 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.

Emphases mine.

One amendment prohibits a specific entity from violating certain rights; the other issues a general prohibition on infringement of a right.

Like I said, we don't have to go to 14 or to "incorporation" here. There's an obvious difference between "X shall not do Y" and "Y shall not be done." There's no simply no way to "strictly construct" the latter to mean "states and localities are free to do as they wish."

Just to pile on a little, let's name-check one more amendment, the Tenth:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Second Amendment clearly prohibits the power to infringe the right to keep and bear arms to the states, because it prohibits that power without qualification. Shall. Not. Be. Infringed. Period.

Presumably the mythical "people" could exercise such a power ... but the only obvious way of doing so would be for them to completely unordain and disestablish the Constitution which they purportedly ordained and established, in which case all bets would be off anyway.

There just isn't any honest way to stuff a government (at any level) power of victim disarmament into the Constitution. Not through "strict construction," not through "original intent," not no way, not no how. The Constitution allows for a lot of bad things, but "gun control" is not one of them.

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