Bruen: We May be Going About This Wrong – JP

The Virginia state senate just passed a bill essentially outlawing the AR-15 and similar firearms.

Now, anyone who’s familiar with the Bruen ruling and its two-part test knows that this bill simply ignores that ruling.

If the bill passes into law, gun rights groups will have to spend time, money, and effort going to court to have the law overturned. And while they’ll succeed, the same thing will just keep happening in other jurisdictions.  It’s a game of whack-a-mole.

It occurs to me that some enterprising state, controlled by conservatives, should do something like enact a law requiring prayer in school or something else that would drive progressives crazy.

Why?  Because progressives would start trotting out Supreme Court rulings:  You can’t have prayer in schools because of Bob v. Carol, Ted v. Alice, and so on!

To which the appropriate response would be:

Oh, we’re paying attention to Supreme Court rulings now?  Because, after looking at the gun control laws being passed in places like California and Virginia, we thought we were past that. If progressive states don’t have to listen to the Supreme Court, why should conservative states?

Hard to argue with that logic.

And it seems as though we have passed the point where the Supreme Court gets the final word on anything because state legislatures are learning to use the trick that the Court has been using almost since its inception:  If you just pretend that words that clearly say one thing actually mean something quite different, then you can claim that ‘the law’ is whatever you want it to be.

Which brings us full circle to the very first public comments I ever made, back in 2014, when I asked:

If legislatures are going to ignore the limits placed on them by their constitutions, why shouldn’t individuals ignore limits placed on them by those legislatures?

Substitute courts for constitutions (which many people believe is a reasonable thing to do), and you get another special case of a more fundamental question:

Does paying attention to what legislatures, and courts, and executive agencies say, bring us closer to the rule of law, or take us further away from it?

It’s getting harder to deny, I think, that the answer is further away.

That being the case, it’s probably time to scrap the whole system and go back to the drawing board, starting with the fundamental ideas of the Declaration of Independence.  (Which happen, by the way, to be the fundamental ideas of the GOP platform since the creation of the party — on paper, if not in practice.)  These are:

(1) people form governments to protect the rights they already have; and

(2) those governments get their just power to act from the consent of the governed.

Except, this time, we should actually take them seriously.

Or we could just start from the Golden Rule,

What is hateful to you, do not do to your fellow man.

and restrict ourselves to laws of the form

Because I do not wish to have someone else do ________ to me, I consent to be punished if I do it, or try to do it, to someone else.

At heart, these are really the same thing.   And we don’t need layers of legal priests to interpret them for us.

Could we do this?  Well, there is certainly precedent for it.

Back when the Continental Congress met to amend the Articles of Confederation, they came out of the meeting with a completely new plan for government, to completely replace the existing one.

They didn’t ask for permission to do that.  They didn’t consider whether it was allowed by the current framework or try to work within that framework.  They just did it.

And we could do it again.   When will it be time for that?  Again, we can turn to the Declaration for the answer:

all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed

We’ll do it when the evils stop being sufferable.  Or, as many people have said when enough of us get sick and tired of being sick and tired.