A constitutional parable

Plus a letter from the mailbag

There is a lot of concern about losing our rights as Americans. We are blessed with freedoms that are unheard of in much of the world, freedoms that came at a high price over hundreds of years. Among many Americans, there is a feeling that we need to be ready to defend those freedoms, violently if necessary. This week, however, is an example of why such bellicosity is not necessary.

By now, the story of New Mexico Gov. Michelle Lujan Grisham is well-known around the country. Last week, Grisham announced an Executive Order that would unilaterally suspend the state’s laws allowing the carriage of guns in certain high-crime areas.

Photo by Anthony Garand on Unsplash

I'll assume that the governor’s motives were good because gun crime is a serious problem, but her methods left a lot to be desired. We have a system of laws that protect our rights, even in times of crisis. In fact, it is in times of crisis that it is most important to follow the rule of law because good intentions can lead to very dark places.

As C.S. Lewis once wrote, “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated, but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”

So, it was with some relief that I watched the nation rally against Gov. Grisham this week. First, as I wrote on Monday, New Mexico law enforcement officials announced that they would not participate in enforcing what they saw as an unconstitutional edict.

The police resistance was quickly put into practice as gun owners peacefully rallied in an Albuquerque park on Sunday, carrying their guns as legally permitted under state law. Sometimes acts of civil disobedience, even peaceful ones, result in arrests or fines. Not this time. Local police declined to interfere with the protest.

And it wasn’t just gun owners who opposed the Executive Order. Gun control advocates such as David Hogg and Rep. Ted Lieu (D-Calif), a member of the Congressional Task Force on Gun Violence Prevention, decried the governor’s actions as unconstitutional.

Gov. Grisham’s problems mounted quickly. New Mexico’s attorney general wrote to the governor to inform her that he would not defend the Order in court. Raul Torrez noted that labeling the gun violence problem as a public health emergency was questionable and that “the data do not support the conclusion that gun violence in our community is attributable to otherwise law-abiding citizens exercising their constitutional right to carry firearms for protection outside the home.”

Coming on the heels of Torrez hanging the governor out to dry, a federal judge issued an injunction against enforcement of the carry ban. US District Court Judge David Urias, a Biden appointee, said that the Order violates Supreme Court precedent and forbade New Mexico from enforcing the ban until a hearing can take place in October.

Can we look at the actions of honorable people on the left this week and seriously claim that the “gun grabbers” are just waiting for any opportunity to eviscerate the Second Amendment, to be followed quickly by the rest of the Constitution? I’ve said for years now that the prohibition and confiscation of personal firearms is not a realistic possibility.

In an apparent attempt to put the best face on her disastrous policy, Gov. Grisham said in a statement, “Over the past four days, I've seen more attention on resolving the crisis of gun violence than I have in the past four years.”

Well, maybe, but she also poisoned the well and united both sides of the debate against her policy. That’s not the best sort of attention to gather.

My point here is that the system worked. There was an unconstitutional encroachment on personal freedom, which never should have happened but sometimes does. The public banded together against the overreach, police refused to enforce it, and a judge blocked it. Ultimately, I have no doubt that the Order will be either struck down or withdrawn.

So much for the “sheeple” blithely going about their business as their rights are stripped away.

If we are honest, the same is true in many other cases. Over the past few years, we have seen dramatic confirmation of our right to bear arms and our freedom of religion. As I pointed out a while back, our freedom of speech is much better protected now than it was a hundred years ago.

Sometimes, we do have legitimate arguments about the details of our freedoms. People of good faith can have different opinions and understanding of what laws mean.

But when the chips are down, most of us agree on the big issues. Issues like whether state governors (or presidents) can simply wave away large portions of the law, for instance. And it shouldn’t matter whether the politician in question is on your side or not. Or whether you like the result or not.

I applaud the gun control advocates who stood up to oppose Gov. Grisham’s Order. We need more of this sort of principled opposition.

The irony is that I do believe that restrictions on the Second Amendment can be constitutional. Reasonable restrictions on licensing and where guns are permissible in public places should be allowed if the legislature agrees on the law. But not when a governor circumvents the legislative process with a public health order.

One reason we disagree is that we have different - and sometimes incorrect - understandings of what our rights are. For example, we have the right to freedom of religion but that doesn’t mean that governments can’t place restrictions on religious meetings in a pandemic. It does mean that governments can’t single out churches for closure while keeping businesses and concerts open. We have the right to educate our children at home but not the right of veto power over public school curriculums. We have autonomy over our own bodies, but that right becomes limited when we make decisions that harm others, from aborting babies to refusing to comply with mask and vaccine mandates in a pandemic. We have different ideas of what restrictions on guns are reasonable and permissible under the Constitution.

For those disagreements, we have the judicial system and the Constitution. It works pretty well. Most of the time anyway. It is the rule of law by objective judges that is the biggest protector of our rights, not the shotgun in your hall closet.

The system worked this week and it worked peacefully. That should be celebrated and emulated.

HUNTER INDICTED: As I was writing this article, the news broke that Hunter Biden has been indicted on three counts related to unlawful gun purchases.

BIDEN VS TRUMP: I don’t mean this the way you think. We had a question asked on my piece yesterday about the impeachment inquiry that I thought was good enough to address here.

Here’s the question:

Perhaps I am mistaken, but wasn't Trump impeached at least in part for abuse of power? Didn't the New Orleans 5th Circuit Court of Appeals just hand down a decision stating that the executive branch engaged in a violation of the first amendment? Doesn't our president take an oath to uphold the constitution? And as such would failure to do so and in fact actively engaging in the violation, not qualify as an abuse of power? Why are you willing to give Biden a pass on this yet are so willing to condemn Trump? It has been found that the American public has been consistently lied to over the past several years regarding issues ranging from WMD, to 2016 Russian election interference, to Covid origin cover-ups and vaccine mandates, to the FBI's lies about the Hunter Biden laptop which could be considered by many to be election interference by our own government agencies. etc. Maybe these aren't grounds for impeachment per se, but they certainly seem like an extreme abuse of power and authority and outright violations of our constitution and if that was good enough to be used against Trump it seems it should be good enough to be used against Biden.

My response:

That’s a great question (or series of them).

I agree with a lot of what you say, but there are key differences in the situation between the two presidents. For example, the ruling against the Biden Administration isn’t a ruling against Joe Biden himself.

In the ruling that you speak of, it was not Joe Biden who sent messages to social media companies asking (and sometimes apparently demanding) that posts be taken down. It’s unlikely that Biden ordered or was even aware of the specifics of the interactions, which were carried out by low-level employees.

For that matter, the Twitter files showed that similar interactions were carried out by Trump Administration officials. We don’t hear people saying that Trump should be impeached a third time for this sort of violation of the First Amendment.

I do think that some of the interactions violated the First Amendment, but some were probably okay. Notifying the site of problematic posts should be permissible, but demanding that they be removed should not.

Having said that, all presidents are going to screw up, but not all screw-ups should be impeachable. If the Biden Administration abides by the court ruling and allows the judicial process to play out, that makes a difference. That’s especially true since the constitutional questions about technology often cover unbroken ground. We’re writing new precedents here.

Contrast that with Donald Trump.

In Trump’s case, it was TFG who personally ordered congressionally appropriated aid for Ukraine to be withheld. Further, he did this not for what he perceived to be the good of the country but for the good of his re-election campaign, as then-Chief of Staff Mick Mulvaney admitted. Trump then lied about what he had done and attempted to cover up his actions.

Beyond that, I think that people often confuse lies with being wrong. For a lie, there has to be intent to deceive. Sometimes deception is assumed but not proven.

You mention several issues. I’ll take those quickly:

WMD - an error based on faulty intelligence and the fact that Saddam was known to have had WMD (and in fact did have rotting stockpiles of the stuff)

COVID-19 origin coverups - We don’t know where COVID originated. If anyone is covering this up, it’s the Chinese. There is no consensus within the US government or the scientific community. People who tell you that it was definitely a lab leak are either lying to you (intentionally deceiving you) or are ignorant of the facts.

Vaccine mandates - Again, this was unsettled law. Vaccine mandates are legal for state governments and have been since Jacobson v. Massachusetts in 1905. Federal mandates were less certain, but companies can require vaccines for their workers and have long been able to do so. Some parts of the federal government, such as the military and healthcare organizations regulated by OSHA can require vaccinations.

Russian election interference - This was not a lie. Even Donald Trump’s intelligence officials acknowledged the evidence that Russia intervened in the 2016 election.

Hunter Biden’s laptop - Again, this seems to be an error rather than a lie. And I’ll point out that it was the FBI led by Donald Trump’s appointee during his Administration that we are talking about here.

So there’s the answer in a nutshell. Trump’s abuse of power was personal and for his own benefit. When it comes to Biden, most of the discussion is about things that other government employees have done under his watch. And in some cases, Biden is even getting blamed for things that happened under Trump’s watch.

There should be a high bar for impeachment. Repeated, willful abuses of his office by Donald Trump met that standard.

TWEET OF THE DAY: I’m bringing back the Tweet of the Day to share a clip from the press conference about the capture of Danelo Cavalcante. On what must have been a dare, a reporter asked, “Was there any concern he would team up with another small man to step inside a trench coat ‘Little Rascals’ style?"

It’s a priceless moment. Watch it here.