MARXIST SUPREME COURT MISUNDERSTANDS RIGHTS | WITHOUT DUE PROCESS THERE IS NO LAW

The problem with government infringing guns or speech, is that it cannot be done but corruptly. Its legality depends on measuring that corruption. It is not against the outcome that rights are a shield, but against corruption in deciding the outcome.

The recent Supreme Court decision in U.S. v. Rahimi misunderstands rights and American tradition, to instead pursue “good” outcomes being decided by the collective will, i.e. Marxism. The process and its imperfection were glossed over. And the only imagined limit, was whether history permitted or restrained the popular outcome desired by the legislature.

But the process is the outcome. The outcome cannot be decided directly, and historical permission for an outcome does not legalize a present process. All good outcomes are good, and nobody would advocate arbitrarily restraining good outcomes such as not shooting your girlfriend, with rights, just because they let you shoot her 100 years ago. And guys being made sport of by elected prosecutors for votes, and spending 15 years in prison based on having a lying girlfriend, is not a good outcome. Rights are blunt defenses against the intrusion of imperfect processes creating bad outcomes, not against good outcomes.

The Supreme Court’s opinion in “U.S. v. Rahimi” could have been as simple as “We agree the purpose of the Second Amendment is not so you can get drunk and shoot your girlfriend. A preliminary finding by an elected local judge that you are an imminent threat, under threat of 15 years in prison, is sufficient process to sort between the whether you really are an imminent threat to your girlfriend, or whether the government is oppressing you.”

But this opinion would raise the real questions, such as where did 15 years come from, how long are you prohibited to own a gun, what subsequent process are you entitled to, and will elected judges and local voters abuse this to torture minorities? The Justices would then have been correct to do an inquiry into historical events, to answer those questions.

It is easy to answer the question “Is the benefit of the Second Amendment that we can defend from invaders and our own farms? Or is it that we can shoot our girlfriends and other random people when we get drunk?” The Justices amazingly spent a great deal of time answering this question, out of fear they might impose their own prejudices against shooting your girlfriend.

The larger question they needed to answer is “When the government tries to stop you shooting your girlfriend, does it somehow end up getting perverted into religious oppression? And so does the Second Amendment somehow prohibit the government trying to protect your girlfriend or something, for this reason? Does the Second Amendment stop laws against shooting your girlfriend for some reason, like because the government is corrupt, or maybe because religion lets you shoot your girlfriend, or it is all bound up somehow? If the reasons why are not logic but accidents in the mists of history, can we at least see what, exactly, was prohibited?”

Having become confused, the Justices look to history for some guidance. But the confusion is clarified by breaking it up into two questions, “1) Do you have a right to shoot your girlfriend, and 2) Can such a process be created which gives the government power to stop you shooting your girlfriend, without the government abusing that power to violate your actual rights?” If you don’t begin with the assumption of the corruption and imperfection of government, of course you will have no idea why we have a Second Amendment, and therefore you will have no idea whether the purpose of law is maybe to let you shoot your girlfriend.

This is just as easy as answering the question “Do we want our farms to be productive? Or do we want to starve?” Nobody would then say the government seizing farms, for the purpose to make sure they are productive, does not violate American law and tradition because the outcome is allowed. The right to private property does not mean we all get to own farms or guns, it means the government cannot decide who owns farms or how they are operated. The right to private property means the government is limited to laws and processes when infringing your ownership of your land, which laws and processes design the circumstances when they can take it.

If the government could improve the productivity of your farm, or could stop you shooting your girlfriend, of course they would be allowed to. But because such impulses of the crowd have counterproductive results, they must be restrained from sticking their hands in at all, whatever the good intention. The Supreme Court needed to look at history to see whether the infringement process produced the intended result, not whether the government in 1720 actually wanted you to get drunk and shoot your neighbor.

The problem the utopian Supreme Court completely glossed over, is the problem all Marxists gloss over: Is the government capable of sorting whether you are planning on hunting food or shooting your girlfriend? And even if it can, does it care or have any incentive to achieve the beneficial outcome? Or will it just use the law as a means to bully random people and cultivate its own power? The central problem is how does the government and people actually behave? And given the imperfection of government, is it legal to try to stop people who are about to shoot their girlfriends, using what process?

Of course the Second Amendment was not created because the government back in England would otherwise stop you shooting your girlfriend. Just like private property was not designed because communists would otherwise end war and hunger. The Second Amendment was created because the government as a practical matter will spend its energies oppressing you, if allowed to interfere with your gun rights. So the question is, does a domestic-violence gun law bypass such process as is historically found to be necessary or due, to make sure the government is not oppressing you?

It may be be that crossing from a surety bond to a prison sentence as the process to penalize brandishing a gun, crosses the line between outcomes, from good to oppressive. It may be that one process denies minorities guns for being poor, and the other one is abused to put minorities in prison, while in neither case does any actual judge care if poor people’s girlfriends are protected.

The question the Supreme Court needed to answer and did not even examine, is whether the law included process as is necessary to sort between people who really were a threat to their girlfriends, and people who were from an unpopular religion. Will an elected judge use any lie from a local female, as an excuse to disarm any unrelated person from the local minority faction?

If an infringement does not require such process as is due to avoid violating your rights, it violates your rights. Saying your girlfriend has to lie or a judge has to be crooked for it to violate your rights, forces an inventory of those factors from the present, not an inventory of whether the ideal outcome was permitted in the past.

RIGHTS AND PROCESSES

The Supreme Court actually paid their clerks to inquire into a question like: Was there a historical law against shooting your girlfriend? Not just your neighbor, not just some jerk at a bar, but specifically your girlfriend, in the Georgian era? Is shooting your child a close enough “historical analogue”, or do we need a “historical twin”? Never mind the process, were people who planned on committing crimes, or who conspired to, or who were in the process of committing crimes, restrained? Of course criminals were restrained in the past. As were innocent people, and process is the difference.

The Justices misunderstood that the question they were faced with was whether the designed outcome of a law – a dangerous person not having a gun – was unconstitutional under the Second Amendment. They explicitly said the issue they faced was not whether the desired outcome was obtained with due process. But the issue of whether the outcome is decided with due process, is always the question the Supreme Court faces. Outcomes cannot comply with rights or the public benefit, unless they are determined by such process as is necessary to achieve that compliance rather than just stoke conflict.

The question is not what outcomes are good, it is how is the government still restrained, or are its restraints broken by this law? It is not was there a historical law restricting this outcome, it is what process was there then or today, to restrain the government from arbitrarily taking guns? Only Clarence Thomas doubted the importance of intended or purported outcomes (which can be assumed without needing research), and looked at the method of restraint which creates the actual outcome.

Justice Thomas recognized that restricting whether you allowed to own a gun based on whether you are “dangerous” or “peacable”, can have an effect the same as getting rid of the Second Amendment. It is saying that anyone whom some executive or collective is able to casually label as “dangerous” does not have the right to have a gun. Who is dangerous to whom? Can the government restrict the gun rights of someone who is dangerous to foreign enemies, or to his wife? You need a process, for making sure someone is not disarmed for having a dangerous religion, under color of being dangerous to his wife.

So the right is a right to who decides who is dangerous, pursuant to what law and process, or a right to bar any law or decision process if no government can decide fairly. But Justice Thomas then went on to ignore whether there was due process – whether the judge could decide fairly – and to instead only look at whether the outcome was allowed, saying “Rahimi does not ask the Court to consider, and I do not address, whether §922(g)(8) satisfies the Due Process Clause.”

What Justice Thomas called “the Nation’s historical tradition of firearm regulation” is the tradition that the right to have a gun is not transacted without such process as is due for the specific restriction, e.g. a surety bond for angry people. No outcome allowed by history, no matter how beneficial, can be achieved using arbitrary executive power or collective whim. No good outcome can be pursued, without such process that will make it likely to be obtained.

RIGHTS AND POPULAR OUTCOMES

The reason we have private property is not because the majority of people enjoy looking at a rich guy’s mansion. It is because more independent decision makers means more money, more weapons, and more population. So that civilizations which have courts that protect private property against human impulses, will expand and displace those which do not, through Darwinian selection.

Rights are values which are beneficial to, but unlikely to be protected by the public crowd or 51% majority. The frog asks the scorpion “Why did you sting me when we will both drown?” The scorpion answers “It is my nature.” The nature of man is to live in a way that leads to war, starvation, and misery. Rights are a check on this nature, a check on people making decisions they have an impulse to make.

Rights imply people will pass laws which they imagine are beneficial, but are not. So Supreme Court justices try to figure out what is this genetic code of things voters want to do but should not? They look for a “historical analogue” to see if the right to private property or to have a gun, really prohibits the majority from passing some law. But what they should look at, is the processes permitted to decide outcomes. Private property is a distributed process for deciding how land will be used. What voters want to do is shortcut distributed processes in favor of the collective will, for some perceived good.

There is no law that says for me I cannot plant corn during a flood, even though the socially desired outcome is that my crop is successful. That success is created by leaving it up to me to decide when to plant my corn. The public mob cannot decide in the street, who is dangerous and should not be allowed to own a gun. Even though historically, there might be some public good or reason to prohibit felons owning guns. The public mob in the street would give guns to the most violent. The public mob is blocked from making these collective decisions, by rights.

The purpose of rights is not to design outcomes, but to create and protect distributed processes for making decisions. Otherwise the mob in the street could decide which outcomes are good and bad, without needing laws and courts to enforce them. I decide what crops to plant on my farm, you decide what cops to plant on your farm. I have a gun, to make sure that I can decide what to do with my crop, rather than a criminal or some collective deciding for me. And to make sure my nation’s fate is not decided by your nation.

Rights, are rights to have things decided by some process other than the collective will or executive whim. Private property and jury trials, are a process for deciding what to plant and who goes to prison, other than by the collective will. The right to own a gun, means that who has a gun is not decided by the collective will. Distributed rather than centrally-directed ownership of guns means distributed decision making or parallel processing.

Otherwise we could just have a right that people who commit murder go to prison. So a state might pass a law that anyone whom cops see commit murder goes to prison, and anyone who is innocent goes home. The Supreme Court would ask does this violate the right to a jury trial? They would find that when there was the right to a jury trial, there were also people in prison. So the key is that the right to a to a jury trial is not just a ritual or stage play, it is the method of deciding who goes to prison. So the right to own a gun, is something that must be transacted using due process. It is the right to the process, not to the outcome.

We cannot free the innocent or feed the hungry, we are all trapped in our own little world of the process distributed to us. So what is the process, that taking away someone’s gun interferes with? Does it interfere with a legal process of protecting a farm or a nation? Or does it interfere with an illegal process, of infringing a private life? Protecting my farm was good in the 1700’s, shooting my girlfriend was bad in the 1700’s.

The recent Supreme Court decision in U.S. v. Rahimi, said the right to have a gun does not include the right to have a gun when you are a threat to your girlfriend. You do not have a right to the process which decides whether your girlfriend lives or dies. You can decide whether you have a gun, because you can decide how your property is used, and you can protect your nation deciding its destiny. But you cannot decide whether your girlfriend lives or dies. The right to make that decision is distributed to your girlfriend, or to no one.

But the right to have a gun cannot be the right to have a gun only under certain conditions, if this requires the assumption that God and man have perfect knowledge of whether those conditions exist. Your right is the right to who decides whether you can have a gun, by who decides whether those conditions exist, by who decides if you are a threat to your girlfriend, using what process, and under what incentives or biases to create one outcome versus another.

Neither the process for convicting your girlfriend of a crime and sentencing her to death, nor for determining if you are about to shoot her, can be perfect. It may be that we cannot make a process wise and incorruptible enough to decide either, and so we must bar any process that would endeavor to make such a decision. A shortage of judges due to drug cases, and a scarcity of court resources, would deprive us of the processes adequate to transact rights to guns or life.

The Second Amendment determines can the executive, or the will of the collective, decide who owns a gun or not. And if not, what distributed processes can be used to decide whether you can own a gun, based on what distributed processes are you going to use the gun to decide. The socially good outcome, is protecting your whim as the process deciding how your property is used, protecting that no process is allowed to decide if your girlfriend lives or dies, and no outside process being allowed to decide whether you own a gun, unless such a process can be created as is due to discriminately protect those other processes rather than indiscriminately oppressing you.

RIGHTS AND HISTORY

The purpose of all rights, from owning your property to owning your body, is to protect a process. If we assumed government is perfect and all-knowing and there is no process or abuse problem, there would be no residual question of whether an outcome is allowed, because outcomes are processes. Outcomes are only good because they create good processes, e.g. processes where you work your field rather than shooting your girlfriend. God does not need rights to distribute processes.

But it might not always be so simple as whether you are allowed to shoot your girlfriend, which is obvious so then the only problem left to examine is process. Like what about hunting? Would we have to look at history to see if hunting is covered by the Second Amendment? Is history useful or necessary to resolve ambiguous questions of what rights and processes we value? It is likely that unambiguous rights in the present, in an analytical methodology, will work better than history to inform boundaries on discretion in the present circumstances.

If hunting is illegal, or you don’t hunt for food or have a right to, then your right to have a gun is not bound up with your right to hunt. Your right to have a gun is based on your right to do things with it that are legal to do today. Together with the problem that the government is too corrupt and clumsy to surgically remove only the parts you are not allowed to do. So if it is illegal to hunt, but the government is too clumsy to stop you hunting without stopping you defending your country, then a law that infringes your right to bear arms to stop you hunting, is unconstitutional. And a law that infringes your right to shoot your girlfriend need not worry about any right to hunt.

If a surgeon could not distinguish between liver and pancreas, he would be forbidden from cutting into us at all. The broad generality of prohibitions arising from the Second Amendment, is in proportion to the nimbleness of the process in its vicinity. We would not say the blind surgeon can cut into us, as long as a judge says it is only to remove the pancreas. If a judge is just as likely to take guns from black people as from people who are generally dangerous, then the broad right is against the judge doing anything.

The qualities of the court processes we set up today – whether they are nimble or clumsy or corrupted – cannot be determined based on what happened in The Massachusetts Bay Colony in 1635. If we have less corrupt judges today, and less right to hunt, we might for the first time be permitted a law to stop you shooting your girlfriend. Or maybe a surety bond which let you hunt in private, might give way to a prison sentence for owning any gun at all.

What about carrying guns in cities? Do I have a right to self defense? Do cities have a right to limit guns, to keep the peace? People in the Georgia Colony did not look at London, or at ancient Sparta, to limit their decisions as to whether citizens were allowed to own guns. The precedent they handed us, is do what is right for your city in your time, like we did in our city in our time. Whether requiring or blocking guns was right for their city, was not affected by what was done in another previous city, and was not intended to deprive us of the same discretion they used. No city passes a gun law thinking “this is going to tell future people in a different city what laws they have to pass”.

The boundaries of the Second Amendment are not defined by the passing needs or arbitrary decisions of some handful of historical cities that kept good journals. The boundaries are do you have such democratic process as is due, to make sure the needs of self defense are balanced against mass-shooting chaos? And do you have such procedural process as is due, to make sure the laws designed for that balance are not used to disarm or oppress minorities or to overthrow the government? Do you have process as is due to discriminate between allowing the good processes and stopping the bad ones?

Is a permitting process where the government decides who can carry a gun, such process as is due, to make sure rights are not infringed arbitrarily or racially, but in proportion to the risk of mass shootings balanced against equal rights of self defense? Do you have a democratic feedback process, and then procedural due process, to make sure the law is actually being used only for the legally allowed benefit it was sold as providing?

Does the Second Amendment give me a right to self defense, or does a right to self defense give me a right to have a gun? Self defense is a right that is shaped and infringed at the discretion of local lawmakers. The Second Amendment does not prevent local lawmakers from limiting self defense. It prevents local government from disarming the populace either undemocratically, or without procedural due process as is necessary to make sure they are meeting the democratic goals of self-defense as sold, not just disarming minorities.

If your right to carry a gun outside your home in the city is based on self defense, then it has the limits of your right to self defense, which governments have been allowed to limit without violating the Second Amendment. If you live on a space station, and the government passes a law against shooting in public to avoid air leaks, then you have no right to self defense on the street, and therefore no right to carry a gun.

But suppose you have a right to own a gun to defend your nation against invading aliens. Can they then confiscate guns of anyone who lives on a space station? If there is not adequate process as is due, to prevent them abusing the law against shooting on the space station, to achieve the corrupt result of confiscating guns stored for fighting aliens, then they cannot take away your guns under color of trying to stop people from shooting holes.

There needs to be a process to make sure foreign or treasonous judges aren’t just labeling you dangerous to disarm you. Don’t check history, check if the judge is green and has an antenna on his head. If so, then the law designed to protect space station air pressure chills your right to fight aliens in the actual process available, and therefore is unconstitutional. The process is the outcome.

Consider a city where everyone has a gun and everyone is allowed to shoot anyone in self defense at any time. That law will be used to allow popular people to shoot unpopular people at any time, within their own ability to lie and the discretion of the justice system to let their friends torture people. In that case, without such process as is due to sort between legitimate and fake cases of self defense, your right to own guns and self defense would be limited by other people’s right to life. You carrying a gun would make you imminent to harm unpopular people, the same as your girlfriend. The Second Amendment does not protect the right to carry guns and shoot anyone you want, when taking your gun away is the only process available to stop you violating those people’s rights.

Cities have a discretion to do what is necessary to meet their immediate needs, so long as they have such process as is due to keep that separate from disarming minorities and oppressing people. The discretion bumps up against less ambiguous rights, which the Second Amendment right derives from or is restricted by. So the boundaries to the Second Amendment, can be found using an examination combining other less ambiguous rights, present circumstances, and available processes, not in some ancient tale.

This ultimately comes down to if legislators can rationally weigh public safety and self defense, and put this into a procedural system that realizes only these goals. Whether some city in the past attempted to or succeeded is of little relevance once this question is answered one way or the other from present-day observations. If girlfriends or judges lie, or gun owners can’t afford lawyers or seem to always end up in prison if they are poor or from the wrong political party, then the law or the process may be unconstitutional, or the remedy may be permitted by the Second Amendment.

If my legislator had the infinite wisdom to reduce my total risk of death, with some law that both decreased my risk of getting shot and my self defense capability at the same time, of course he would be allowed to. It is because he is clumsy and lacks such wisdom, that he is barred from interfering with my gun ownership at all. So it is the clumsiness of the surgeon, not the desired benefit if the surgeon is successful, which demands boundaries blocking his interference. It is because legislators cannot put us in luxury as pets, that we broadly and bluntly block their interference promising to, not because people 200 year ago liked shooting girlfriends.

PRESENT PROCESS DICTATES RIGHTS

No past lawmaker assumed that every future judge would be able to do such research, to find out what laws were allowed in different cities 200 years earlier, and what parts of those laws were still relevant in his time. Justice Jackson pointed to the problems this creates for lower courts which need rules and standards to close cases, rather than research assignments. The more practical research that judges can do, is does this right find boundaries today, in more basic rights which are unambiguous, and in methods of analysis based thereupon.

Justice Scalia once said rights had changed because police had become more professional, or because extant forces exist to make sure the process is adequate. Scalia was wrong, and must not have examined actual circumstances that existed at the time. Laws from history also might not reflect what people actually did in their time. But the point is, Scalia said the exclusionary rule is not itself a right, but a way to mitigate rights violations from a transient imperfect process. You have a right to the exclusionary rule, if the process is corrupt.

So whether the exclusionary rule is necessary to protect less ambiguous Fourth Amendment rights, according to Scalia requires an examination of the present process, not of whether they used the exclusionary rule 200 years ago. So a surety bond or a preliminary restraining order, might not mitigate the problem or create the good outcome in the present circumstances, depending on the actual judges and the actual courts where it is put into practice. People who beat their wives might have a Second Amendment right to own guns for self defense, if they are black and judges are racist.

The Second Amendment, like the First Amendment, finds boundaries where other rights begin, which boundaries can be measured from the history of the present day using an analytical methodology, as Justice Barrett suggested in Vidal v. Elster. If judges cannot be trusted to do this – cannot be trusted to examine actual process in the present such as are cops penalized for lying to convict the unpopular – then their historical research is not likely to produce good results either.

The general principles of good have not changed much from history to today. The question is whether today there is such process as is due, to separate narrow cures to extract the good from the present circumstances, from resulting disproportionate infringements of other rights.

People who are dangerous to their girlfriends or neighbors are never allowed to have a gun, not now or historically. The process that is due, is for a court to make a preliminary finding that you are an imminent threat. The enforcement process of a surety bond may be allowed by history. But if a threat of 15 years in prison is found to be necessary or due to enforce compliance (or to work better when you are penniless and don’t have a right to hunt), then a preliminary hearing under threat of 15 years in prison provides such process as is due, to infringe your Second Amendment rights.

So it is illegal to shoot your girlfriend. But a law that decides who can or can’t have a gun without a lot of process, and rather at the whim of some elected official, is unconstitutional on its face because it indiscriminately prevents people protecting their property. Unless an elected local judge making a preliminary finding that you are an imminent threat to your girlfriend, provides such process as is due for the circumstances.

So the question the Supreme Court faced is not “Does stopping dangerous people having guns historically conflict with the right to have them?” Of course not. People in prison, or returning punts on a football field or whatever, have never been allowed to carry guns. The question is “Is an elected local judge deciding someone is dangerous, and if so he can get 15 years in prison, such process as is due to transact someone’s general rights to have a gun?”

The lower Fifth Circuit court got U.S. v. Rahimi wrong, by correctly using the incorrect Bruen methodology to look at history. The Supreme Court got it right, by tacitly accepting that the process was adequate simply by not being provoked to question whether the process was adequate, and instead having a gigantic useless charade of an argument over whether the point of the Second Amendment was to let you shoot your girlfriend, which of course it never was.

Clarence Thomas would have applied scrutiny of the process which you have a right to, to reach the correct decision that the law was allowed under the Second Amendment because the process is adequate to sort the beneficial outcome. But Justice Thomas got it wrong by correctly applying the incorrect Bruen history methodology, to say the Second Amendment protects that you can shoot your girlfriend, even if the government has a nimble enough process to only infringe this right.