Sunday, May 29, 2016

Is Ryan Bundy Right?

Ryan Bundy is not happy in jail.  Well, I guess that's the idea of jail, but Ryan has some very specific complaints.  He can't hang out with his friends, which violates his constitutional right of assembly, he can't wear his Mormon underwear, and perhaps most notably, this:
"He also argues that his Second Amendment rights have been violated, presumably because guns are not allowed in jails."
Now, I know that, at first reading, that seems to be one of the most ludicrous things that you have ever heard in your life, but after thinking about it, I am not so sure.  I am basing my current thinking on Antonin Scalia's now infamous 2008 majority opinion in District of Columbia v. Heller, which found for the first time an individual right to own firearms.

I have spoken before about this disingenuous court decision, but let me remind you:
"The Court held that the first clause of the Second Amendment that references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term “militia” should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service.... Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to “guarantee an individual right to possess and carry weapons in case of confrontation.”
Or, in Scalia's own words:
"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia...The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms...The “militia” comprised all males physically capable of acting in concert for the common defense."

Let's just include the actual text of the second amendment here, for reference:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
As I have pointed out before, Scalia's opinion relies on the absolutely ludicrous assertion that the exact literal text of the Constitution applies as written, except the parts that Scalia doesn't like.  This example alone demonstrates the utter dishonesty of both Scalia's and Conservative legal scholars' interpretation of the Constitution, which to them means whatever they get paid to say it means.  Well, okay, but there is another grotesque flaw in their argument, which Ryan Bundy's recent lawsuit brings to light.  There is absolutely nothing in the now-truncated second amendment that forbids prisoners to be armed; in fact, as prisoners are part of "the people," their right to keep and bear arms must be protected too.


Sure, way down in this opinion, Scalia makes some mealy-mouthed reference to felons not having guns, but that is sheer nonsense, in light of his insistence in a literal reading of those parts of the Constitution that he deems to exist.  There is absolutely nothing unclear about the phrase "the people;" the amendment does not say "some of the people," or "the people that a Supreme Court justice in 2008 considers worthy of Constitutional protection."  In fact, we can now conclude that:

1.  The Constitution is to be taken literally, except those parts that Conservative Justices decide do not count.

2.  It is, however, not to be taken literally when it leads to a conclusion they don't like.

Any decent, marginally honest reading of Scalia's decision in District of Columbia v. Heller, must, I assert, end up by concluding that prisoners, who are, in fact, among "the people," do in fact have the right to keep and bear arms while in jail.  This is a grotesque, nonsensical notion, but it is the direct consequence of Scalia's twisted reasoning, which is now the law of the United States.

I never thought I would be caught saying this, but in the present case, Ryan Bundy is right.

2 comments:

Grung_e_Gene said...

Green Eagle,

Guns for criminals is a topic I often use to trip up right-wing 2nd Amendment Fanatics. Often I pose whether an arrested domestic abuser who is awaiting trial should be able to retain his firearms. Often their "logic" ties them up in knots as they try to justify allowing a said accussed criminal continued access to his firearms. If they stay around (often they depart with libtard insults) I ask if the accused should be able to have the weapons in court? And if they've stayed around this long they expose themselves as racist blinkered soverign citizen maniacs that most conservatives are these days.

As a corollary I should note conservatives have no problem with hispanics or blacks being deprived of guns and other basic rights because as Donald Trump has shown, nearly all conservatives, are racist bigots who want to create a White Power Government in which non-right-wing nut jobs are subject to arrest and murder everyday.

Green Eagle said...

Their religion gives them two thousand years' practice of twisting a document to appear to mean whatever they want it to, and they have turned the skill they developed in the process to the Constitution. And after all, if it's okay to do that to God's word, it's okay to do it to the works of man.