SUPREME COURT JUSTICES ARE DUMB

The recent Supreme Court decision in U.S. v. Rahimi displayed a lack of real-world understanding of the purpose of rights. The Justices spent a lot of time arguing whether you could tell if shooting your girlfriend is a natural right by looking at history. And they missed that the point of enumerating rights is due process, in the actual courts where rights are attacked in the present day. The US Supreme Court is basically Marxists who asked “what outcome is good”, and then assumed the people could obtain that outcome with a wave of the hand.

Curing cancer, is not so simple as determining what is a tumor, and then letting a Texas court remove it. The government is a surgeon of rights. If the surgeon is clumsy, the shield is broad. If the Texas government cannot remove right A without cutting into right B, then the government cannot attack right A.

The point of enumerating the Second Amendment, is to say no surgery of gun rights by the federal government is allowed. It is not to enumerate the list of natural rights, assuming the process can select between them. It is to restrict the process for infringing rights, assuming the process will be indiscriminate and abusive. The Second Amendment is a restriction on the creation of processes, not a statement of which outcomes of those processes are legal. Otherwise we could have an amendment like “innocent people have a right to not be in prison”. We have a right to a jury trial, but to no federal trial of gun rights, because such a trial will never be fair.

The Second Amendment has two parts, a natural rights or outcomes part, and a due process part. The natural rights or outcomes part is “the right of the people to keep and bear arms”. The due process part is “being necessary to the security of a free state… shall not be infringed”. The question the Court faced is does the law strip away restraint on the government by removing such process as is due, to sort between people who are really an imminent threat to their girlfriends, and abusing the law to oppress people. The Second Amendment is as broad, as the process for infringing the natural rights is clumsy and open to abuse.

Your right to own a gun arises from your right to do things with it that are legal. We can say these include hunting for food, property defense, self defense, and national or community defense. So that if hunting is illegal and you don’t do it for food, and if you live on a space station and it is illegal to shoot people in self defense to avoid depressurizing, you do not have a right to carry a gun around. But all we need for Rahimi, is to say that property defense and national or community defense are rights, shooting your girlfriend is not a right.

The reason they enumerated the right in the Second Amendment was because the government has an interest in one of these, social or community defense. The government has an incentive to disarm competing factions and threats to its power. The government has no corrupt incentive to stop you shooting your girlfriend. But if a foreign government is allowed to stop you shooting your girlfriend, the government will use that legal doorway as an excuse to take your guns and oppress you, to cultivate their power over you and your property and beliefs. The question is not what are the rights, but what is the separation process.

So the question the Court faced was not whether the Second Amendment was enumerated to protect the right to conspire or plan to shoot your girlfriend. The question the Court faced was does the law include such process as is due, to surgically separate that government interest from and thereby conserve, your general blunt rights against government intrusion and oppression. The Justices took the opposite approach. They assumed that a law against shooting your girlfriend would not be abused to oppress the poor based on race and religion, and due process was not an issue. And they instead spent all their time poring over history to answer the ridiculous question, is shooting your girlfriend a historical natural right.

The correct approach is to begin with the obvious fact that the Second Amendment was not enumerated to protect your right to shoot your girlfriend. It was enumerated because any government process that lets the government interfere with your gun rights at all, will be abused to disarm and oppress you. So the only question that remains is one of due process, does a preliminary finding by a judge that you are an imminent threat to your girlfriend, sufficiently sort between people who really are an imminent threat to their girlfriends, and people the government is just bullying because it can.

If Rahimi hunted for food, then the difference between a prison sentence and a surety bond which let him hunt in private, might be relevant. And nor was a 15-year sentence for criminals who own guns an issue. The only issue is whether creating a process to protect girlfriends from imminent threats, strips citizens of the broad and blunt protection necessary to stop the government from abusing any law to oppress people. One outcome is legal – stopping you shooting your girlfriend – the other outcome is not. The sorting process is the outcome. So the question is whether the process created by the law is legal. Is there a process where the mayor can just point at people and say “that person is dangerous”?

Whether the process creates an illegal outcome, cannot be determined by looking at history, but by looking at the actual courts and judges where the process takes place in the present day. So you would ask: Is there sufficient deterrence to girlfriends lying about their boyfriends in court in Texas, such as are they aggressively prosecuted for perjury? Are judges willing to sign anything the executive branch asks them to sign – anything that does not involve praying – with a remarkably uncritical attitude when it involves poor or black people? Do judges ignore that affiants have a pattern and incentive of lying, to casually strip rights of anyone you walk into court and point the finger at? Are Texas courts finders of fact, or a rubber stamp ritual on the will of the local majority faction?

The question is whether Texas courts provide more or less discrimination between natural rights and abuse, than some government in England. 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. (Madison’s “stronger faction” and Hamilton’s “major voice of the community” still necessitate courts protecting rights.) 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. The right to shoot your girlfriend shall not be infringed, because the process is imperfect.

Given the Justices are insular morons in la-la land who think prosecutors being allowed to lie will not torture the innocent for votes, their opinion 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 recent historical events, to answer those questions. Will the outcome be protecting girlfriends which is legal? Or will it be disarming and warehousing undesirables in prison, not in proportion to whether they are actually a danger but based on the prejudices of the irrational and violent crowd?

If all that were necessary is stating which outcomes are good and which are prohibited, and then the government could enforce those outcomes without difficulty, we would not need courts or laws, just a happy kibbutz. But we need distributed information and decision processes, such as those created by private property and gun rights, and rights to due process in court. The purpose of the Constitution is to create and protect those independent and autonomous information and decision processes which are good, and disrupt those processes arising from human fallibility and the nature of the crowd which are bad, not to say which outcomes are good which is too obvious.