I applaud The Advocate for providing a public forum for the discussion of our Constitution and what government actions do or do not comply with it. I believe that it is vital that every citizen have at least a basic understanding of the law of the land — if for no other reason than to become a more informed voter.
Lee McGee’s response to my letter of April 29 contains several logical inconsistencies and misstates what I said in the first place.
I said that no right contained in our Bill of Rights is absolute and chose the right to free speech as an example. Since we have many laws that restrain speech, the right is not absolute. McGee characterizes these laws not as restraint of an absolute right to free speech but as a punishment for “abuse” of the right. McGee’s problem is that he is confusing “right” with “liberty.”
“Liberty” is control over one’s actions. “Right” involves the legal freedom to take a specific action. Everyone is at liberty to shout “fire” in a crowded theater or to make a defamatory statement. However, no one has the legal “right” to do so. Try either one and you will find out quickly enough.
The general point of my letter (in McGee’s terms) was that, while we are all at “liberty” to do as we please, our legal “right” to take any particular action is quite another matter. This is as true of gun ownership as it is of speech.
McGee is also way off base when he writes about our national documents and “natural rights.” You have to read the Declaration of Independence in light of its era. The prevailing political theory of the time was based upon the divine right of kings. The Declaration posed a divine right of democracy (equality of men) as another alternative. The statement served its purpose but does not form the basis of our legal system. That is the role of the Constitution, legislation, and court opinion.
McGee falls into the very common error of focusing on what the founders said, wrote and thought while ignoring the other 200-plus years of American history and evolving jurisprudence.
I stated in my original letter that outright bans on all guns have been attempted and struck down as unconstitutional. I believe that this is a correct interpretation of the Second Amendment. However, I stand by my opinion that the government has the legal and constitutional authority to keep guns out of the hands of criminals and insane people via background checks.
I look forward to being proven right when and if the U.S. Senate ever comes to its senses.
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