USA – -(AmmoLand.com)- In his final, answering brief submitted to the US Supreme Court (embedded below, must-read) in the case of NY State Rifle and Pistol Association v. Bruen, attorney for the NYSRPA, Paul Clement makes a statement which I believe undermines his position and perpetuates the problematic attitudes that keep us fighting for our rights decade after decade.
It all boils down to the improper application of the word “allow.”
Regular readers of my columns already know what comes next, as this is a pet peeve of mine, which I come back to fairly frequently. Some will say I’m just arguing semantics or being too nit-picky, but words matter, and if we, defenders of rights, use the terminology of our opponents, the invaders of rights, we are ceding ground in advance of the fight.
In his scathing brief, [some say thorough takedown of New York] Clement answers the arguments put forward by New York State and the various “friends of the court” who have weighed in on New York’s behalf. He very effectively and systematically takes apart their arguments, exposing the hypocrisy, double-speak, and evasion of history and legal precedents in those arguments and the laws they defend.
But then Clement says this: “The state takes its revisionism so far as to claim there is no example in all Anglo American history of the carry rights petitioners seek. In fact, at least 43 states allow just that, while, as in Heller, only a few jurisdictions follow New York’s lead of presumptively denying a right that the Constitution guarantees to all…”
My complaint is that, if indeed “the Constitution guarantees to all,” this right, (which should be acknowledged to preexist the Constitution), then exercise of the right is not something which any state does, or can, “allow.” Those 43 states do not “allow” the exercise of the right to carry a handgun outside the home for self-defense. They recognize the right. They honor the right. They have laws that specifically avoid infringing on the right. But they most certainly don’t “allow” the exercise of the right.
Rights are not something that states “allow.” Rights are either recognized and respected, or they are infringed, suppressed, and violated.
Saying that states “allow” the exercise of the right to arms, is like saying that states “allow” the free exercise of religion, or that they “allow” citizens to read books of their choice. Taking the argument farther, it’s like saying that 43 states “allow” their citizens to breathe.
The word “allow” simply has no place in any discussion of rights, except as described below. Using the word as Clement did, is inaccurate, lazy, and undermines our position. By using the word “allow,” Clement, along with a broad swath of rights advocates and our media, is making a huge and false concession.
No one – no person or entity of government can “allow” something over which they have no legal authority.
I can’t “allow” my neighbors to watch TV or change their furniture. The city government can’t “allow” me to vote. And no one, not my neighbor, the city, county, state, or federal government, can “allow” me to exercise my God-given rights, including the right to protect myself and my family, and my right to the means to effectively do so.
Suggesting that anyone does have the authority to “allow” the exercise of our rights, also suggests that they have the authority to disallow the exercise of those same rights.
Rights are rights. If the government has the authority to forbid or “allow” an activity, then that activity is not a right, it’s a privilege. And any time anyone uses language that shifts activities from being rights to being privileges, they are diminishing those rights and offering support to the extremists who want to infringe on them. The only place the word “allow” has in any discussion of rights, is in the context of what the Constitution and we, the people, will allow the government to do that might interfere with or encroach upon our rights.
With all due respect to Mr. Clement, who many readers might recognize as the former Solicitor General who represented the government in their unsuccessful defense of DC’s unconstitutional gun bans in the Heller case, using the word “allow” in the context he did in his brief, is simply inexcusable.
Since leaving the office of Solicitor General, Clement has been the go-to attorney for the National Rifle Association in Supreme Court cases. That makes sense, as there’s no question that Mr. Clement knows his way around the law and the Court. As any good attorney will tell you, the attorney’s job is to represent the client to the best of their ability, regardless of their own feelings or interpretations of the law. As attorney for the government, Clement argued for the preservation of DC’s repressive and unconstitutional laws. Just two years later, as attorney for the NRA, Clement argued successfully for the application of the Heller decision to all states, under the “incorporation doctrine” of the Court, under the Fourteenth Amendment, in the case McDonald v. Chicago.
I believe Clement received more credit in that case than was really due him though, as the case was built and brought by the Second Amendment Foundation, and argued by Alan Gura, who was also the lead attorney for Heller. In the eleventh hour, the NRA petitioned for and received permission to join the McDonald case, and the 30 minutes for oral arguments was divided down the middle. With Gura first arguing that the Court should apply the Second Amendment to the states under a proper reading of the 13th Amendment, correcting over a century of bad precedents going back to the post-Civil War Court. Clement, in his turn, argued the more conservative line, calling for the Court to apply the Second Amendment as a fundamental right under the Due Process Clause of the Fourteenth Amendment.
Because the Court chose to go with Clement’s remedy, rather than Gura’s, Clement was the one who got much of the credit, with some claiming that he “rescued” the case from Gura. I think that’s too generous to Clement, and far too dismissive of Gura. McDonald, like Heller, was Gura’s case. He put it together, led it through the courts, and convinced the Supreme Court to grant certiorari and hear the case. His push for the Court to reverse precedents, which virtually all constitutional scholars agree are erroneous and flawed, was worth trying. Gura knew that it was a long shot, so he had always taken a dual-pronged approach, arguing that the Court could either apply the Second Amendment to the states via a correct reading of the Thirteenth Amendment. Or they could take the less drastic route of accomplishing the same thing via the “incorporation doctrine” and the Fourteenth Amendment. Had the NRA and Clement not joined the case, Gura would certainly have argued both options during oral arguments – as he did in his briefs – and the Court would have reached the same conclusion they eventually did, via the “incorporation doctrine.”
Soon, the Court will deliver a ruling on New York’s oppressive rules regarding the issuance of concealed carry permits. Of course, the whole idea of requiring a permit to exercise a right is ludicrous on its face, but the legislative and judicial systems, along with a majority of the populous, have been living in a state of cognitive dissonance for decades. And for decades, those of us who understand the difference between a right and a privilege, have been trying to shine a light on the glaring inconsistencies and pushing for actual adherence to the Constitution and the natural laws recognized by the founders.
But if we can only win a small sliver of reality and constitutionality at a time, we’ll take it.
Attorney Clement is clearly a smart guy, and good at what he does. I fully expect him to be victorious in NYSRPA v. Bruen (New York), though it will be interesting to see just how far backward some of the Justices will bend, trying to avoid a declaration that the Second Amendment actually means what it says. I believe it is worth noting that, smart as he is, Mr. Clement could be more effective, if he would avoid using language that cedes ground without even putting up a fight.
Let’s stop allowing our language to support false assumptions about the nature of our rights.
New York State Rifle & Pistol Association, Inc., v. Kevin P. Bruen, Reply Brief For Petitioners