Posted on May 11, 2021



Absolute Nonsense

Biden's Bill of Rights is arbitrary


Daniel Clark



"No amendment to the Constitution is absolute. You can't yell fire in a crowded theater and call it freedom of speech." So said President Joe Biden, while announcing a series of gun control executive orders early last month. His allusion to Oliver Wendell Holmes was intended to lend his claim the force of constitutional authority, but does it?

The limitations of our constitutional rights are defined in the Constitution, and they are not all the same. The language of the First Amendment does not also apply to the Second, but Biden conflates them here in order to justify gun restrictions that he surely knows to be unconstitutional. For starters, Holmes' example was correct as far as it went, but he misrepresented it in such a way as to justify an unconstitutional judicial power grab. Beginning from the reasonable premise that the First Amendment would not protect somebody who had incited a panic, Holmes took it upon himself and his colleagues to decide where its protections end.

In fact, the reason that falsely shouting fire is not constitutionally protected is that it would not be a matter of federal law. The First Amendment says, "Congress shall make no law ... abridging the freedom of speech." This is a restriction on the power of the federal government only. It does not address abridgments upon the freedom of speech at the state or local level. Applied properly, the First Amendment is a textbook example of federalism, in that it distinguishes between federal and state powers with regard to individual freedoms. Ever since Justice Holmes smeared this distinction, the Supreme Court has struggled to impose its own arbitrary boundaries, the "fighting words" standard from Chaplinsky v. New Hampshire and the obscenity test from Miller v. California being the most glaring examples.

This anti-federalist approach has been furthered by the wholly unconstitutional "incorporation doctrine" that the Court gradually concocted in a series of rulings throughout the early-to-mid-Twentieth Century. Incorporation is based on the false premise that the Bill of Rights originally applied only to the federal government, followed by the equally false belief that the Fourteenth Amendment took the Fifth Amendment's restrictions on federal power and incorporated them among the states. All one needs in order to disprove this doctrine is to let the Bill of Rights speak for itself. When the Fifth Amendment says, "No person shall ... be deprived of life, liberty, or property, without due process of law," it means these things shall not be done -- not by Congress, not by the states, not by anyone.

The Fourteenth Amendment's declaration that "No State shall ... deprive any person of life, liberty, or property, without due process of law" was merely a reiteration of the parallel clause from the Fifth. "No person shall be deprived" already meant by any state, the serial disobedience of the provision notwithstanding. So the judicial contrivance of incorporation is doubly wrong. Not only did the Fourteenth Amendment not project the Fifth Amendment to the states, to which it already applied, but the argument that other constitutional provisions may now be reinterpreted through the Fourteenth Amendment has no logical basis whatsoever. There is no language in the Fourteenth Amendment suggesting that the word "Congress" in the First Amendment might possibly encompass a state assembly, city council or local school board.

Here again, it is the Constitution, and not Justice Holmes or President Biden, that has defined its limitations. Once a person has been given due process, he may be deprived of life (by execution), liberty (by imprisonment and forced labor) or property (by the assessment of fines). This is so because the Fifth Amendment says it is, and not just because somebody in a position of power feels that he's got to draw a line somewhere.

Now let's look at the Second Amendment. It does not say the right to keep and bear arms is conditional upon a well-regulated militia being necessary to the security of a free state. Rather, it states as a fact that one is necessary, and that, this being the case, the right of the people to keep and bear arms shall not be infringed. Its reach is not limited to Congress, nor does it allow that this right may be infringed through due process of law. It does not say you may be prohibited from owning firearms if you have a criminal record, if you have a particular medical condition, or if someone "red flags" you.

In other words: Yes, Joe, the Second Amendment is absolute.



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