The ‘right to life’ I’m referring to has nothing to do with abortion. I’m talking about the right Thomas Jefferson meant when he wrote, in the Declaration of Independence:
“We hold these truths to be self-evident, that all men are … endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of happiness.”
Life is no doubt listed first because if you aren’t alive, other rights don’t much matter.
The American colonists’ opposition to the English King and Parliament’s disregard of their historic rights as English subjects had been going on since the 1760’s, and was mostly peaceful. That was until the ‘shot heard round the world’ (we still don’t know who shot first) was fired on April 19, 1775, on the town square in Lexington, Massachusetts.
What prompted that shot was British troops marching toward Concord to seize a supply of gunpowder from the colonists. A group of armed colonists confronted the ‘redcoats’ on the Lexington square and refused to disperse when ordered to by the British commander. They were there to oppose seizure of the gunpowder.
Without that powder, the colonists would be unable to defend themselves from criminals — or from the British government. It was this latter contingency that the British intended to forestall by seizing the powder.
The open rebellion shooting war began because the British intended to disarm the colonists so they’d be easier to control and subdue. The right of citizens of self-defense against their own government is the primary reason our founders included the Second Amendment in the Bill of Rights.
As Jefferson wrote in the Declaration just a few months after Lexington, to secure the ‘unalienable rights’ he’d referred to “Governments are instituted among Men, deriving their just powers from the consent of the governed… That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it”
The “People” can’t “alter or abolish” their government if they are unarmed. Those who want to take away our firearms in 2022 know that — which is why they want to take them.
In June, the Supreme Court decided New York State Rifle & Pistol Association v Bruen. This case is the third in triad that, began with District of Columbia v Heller in 2008, then McDonald v Chicago in 2010.
In Heller and McDonald the Court “recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.” New York State Rifle holds “consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.
The unusual thing about this New York case is that (as the Court notes at the outset of the opinion) both sides agree with the holdings in Heller and McDonald. The conflict arose about how a New York citizen can exercise that right.
Cutting through all the media hype — here’s what this case was all about. New York, like 48 other states, regulates the carrying of handguns in public by requiring a license to do so. Each state’s legislature has enacted laws regulating who can be licensed — and the requirements for obtaining a license.
Requirements vary between states, but in general they all require that an applicant be a law-abiding citizen, with no criminal history, nor of mental illness or substance abuse, and some level of training in firearm use/safety. New York had similar objective requirements, but it had an additional subjective “special need” requirement — which was the constitutional issue decided by the Supreme Court in the case.
Forty-three states have a process known as “shall issue”, meaning that if a citizen of that state complies with the ‘objective’ requirements, then the state must issue a license to the applicant. New York, however, was one of just six states that followed a “may issue” process – and the New York “may” was contingent on a citizen proving, to a government official, that “proper cause exists” to issue a license.
So what is “proper cause”?
“No New York statute defines proper cause. But New York courts have held that an applicant shows proper cause only if he can demonstrate a special need for self-protection distinguishable from that of the general community.”
“[L]iving or working in an area noted for criminal activity” is not “proper cause”. The citizen applicant must show evidence “of particular threats, attacks or other extraordinary danger to personal safety.” In other words, unless you have been personally, directly threatened (and have evidence of the threat) you can’t show “proper cause” of a “special need” for a license to carry a handgun in public — and your application will be denied.
Under that criteria, even if you are shot by a street thug in a random robbery in which you were just a target of opportunity, you won’t have “proper cause” of “special need”. Being shot in that circumstance was just usual criminal business – not personal toward you!
So under the New York licensing law a citizen’s ability to exercise an “unalienable” right only exists if a government official allows it.
A right is not “unalienable” if it can only be exercised with the government’s permission. That is the very antithesis of the principle upon which this nation was founded.
Here’s what the Court said in ruling the “proper cause” requirement unconstitutional.
“The constitutional right to bear arms in public for self defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self defense…”
“New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.”
Petitioners in this case, are the New York Rifle & Pistol Association, “a public-interest group organized to defend the Second Amendment rights of New Yorkers”, and two “law-abiding, adult citizens of Rensselaer County, New York” — Brandon Koch and Robert Nash. Koch and Nash were both denied licenses because they showed no evidence of proper cause of a special need.
The Respondents are Kevin Bruen, “the superintendent of the New York State Police, who oversees the enforcement of the State’s licensing laws”, and Richard McNally “a New York Supreme Court justice, who oversees the processing of licensing applications in Rensselaer County.”
So under the New York law, an official of the executive branch (the police superintendent) and an official of the judicial branch (a New York Supreme Court justice), were enforcing a law enacted by the legislative branch that thwarted the freedom of citizens to exercise the right of self-defense.
All three branches were exceeding their limited powers in collusion against the citizens’ unalienable right to life. That violated the Second and Fourteenth Amendments to the United States Constitution.
In this five-part series, I’ve shown how the United States Supreme Court carried out its constitutional duty to enforce the United States Constitution. The bedrock of the Constitution is to limit the power of government by, among other means, dividing the power among three independent branches, and forbidding each to encroach on the power of the other — the ‘separation of power’ principle I explained in Part One.
Part One referred to Federalist #51 for James Madison’s explanation of the need for government to “control itself” against encroachment on the “unalienable rights” we fought a revolution to secure. Madison went on to explain how to best accomplish that “control”.
“In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself.”
The five cases I’ve explored in this series illustrate nearly the entire range of separation of power.
In Part Two I discussed how in West Virginia v EPA an administrative agency of the executive branch exceeded its power by encroaching “the peculiar province of the legislature to prescribe general rules for the government of society.” The Court struck down an EPA regulation that would have empowered un-elected bureaucrats to have “unprecedented power over American industry.”
The effect of that case extends beyond the arcane regulation in struck down. The holding limits the power of all federal agencies to enact regulations.
Part Three explained how the Court affirmed the limits of its own power by holding that nine unelected federal judges don’t have the authority to encroach on the power of the states to regulate the health of their citizens through the democratic process. The Court said, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives” within each state.
They held in Dodds v Jackson Women’s Health Organization that in the prior Roe v Wade, and Planned Parenthood of Southeastern Pennsylvania v Casey the Court had itself exerted power over the states that it did not have under the Constitution. This illustrated Madison’s explanation that “the power surrendered by the people, is first divided between two distinct governments” – the states, and the federal government. When the states created the federal government, they gave it only limited power over them – and even the Supreme Court itself cannot exceed the limits of that power.
Relying on that same principle of division of power between the states and federal governments, Part four addressed two cases in which agencies of state governments exceeded their power vis a vie of citizens’s rights provided by the federal constitution. In Carson v Makin, and Kennedy v Bremerton School District agencies of the states of Maine and Washington, respectively, deprived their citizens of their right of “free exercise” of religion under the First Amendment.
The Court said, “We are aware of no historically sound understanding of the Establishment Clause that begins ‘to mak[e] it necessary for government to be hostile to religion in this way’.”
Just as the federal power was limited by the state legislatures in Dodds, state power is limited by the federal constitution in the Carson and Kennedy . Each distinct government checks the power of the other.
That’s how our federal system was designed by the founders to work. Disperse power “between two distinct governments” so it can’t become concentrated and tyrannical.
Dispersal of power was again re-affirmed in New York State Rifle & Pistol Association v Bruen where all three branches of New York state government worked together the infringe the rights of its citizens to defend themselves.
The right of self-defense is a natural right as old as human existence that has been recognized in the legal systems of every organized society throughout history. Self-defense against others (including government itself) is the very reason our founders included the Second Amendment in the Bill of Rights.
Defense of one’s own life is the “unalienable” “right to life” enshrined in the Declaration of Independence. By definition, “unalienable” means you can’t be deprived of it by government. New York did just that by requiring its citizens to prove (to a government official) why they should be licensed to carry a handgun in public to defend themselves.
The Court succinctly pointed out that we don’t have to explain why we want to exercise our fundamental rights. Government lacks the power to make us do so.
All five of these case stand for the same principle. The limits of government power over the people.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.