We Have Nothing to Fear but Fear Itself

In the wake of the recent tragedies in Newtown and Aurora, pollsters have been hard at work. Surveys have been conducted measuring the scope and depth of the public's reactions to the shootings. A University of Chicago poll found that three out of four respondents reacted to the shootings in Connecticut with "deep anger." Fifty four percent said they felt "deeply ashamed" that such violence can happen in the U.S. Other polls found that roughly a third of Americans "felt" that there were too many guns in the U.S. Remarkably, according to an Associated Press-GFK poll, Americans are more disturbed at the shootings in Newtown, Ct. than they were after 9/11. Taken together, polls show that Americans are angry, embarrassed, and afraid. Politicians and gun control advocates are well aware of how Americans feel. Those who have long labored to curtail and, in some cases, ban the possession of firearms in the U.S. are seeking to strike while the iron is hot. To this end, President Obama is taking a novel approach. The president has asserted that one right, in this case, the right to keep and bear arms, should not be allowed to eclipse other rights. He argues that a person's fundamental rights to "life, liberty, and the pursuit of happiness" are violated when that person is killed.

In a recent speech Obama made the spurious argument that the right to keep and bear arms infringes upon the fundamental rights to life, liberty, and the pursuit of happiness. He stated that the victims in Newtown and Aurora were denied their rights when they were killed. The president continued by arguing that people who are shot on street corners are being denied their constitutional right to peaceably assemble. He could just as well have said the victims were denied their rights to privacy and free speech as well. The fact is that people who are killed are denied everything. As Clint Eastwood noted poignantly in Unforgiven, "Killing a man is a hell of a thing. You take away all he's got, and all he's ever going to have." Death negates everything. Strangely, President Obama did not extend his logic beyond guns to include other implements of death. After all, a person's rights are violated just as much if he is killed with a hammer as by a gun.

Even if we grant him the argument that being murdered denies a person their due rights, the fact is that guns do not deny anyone anything. Murder is the real culprit, not guns. It is only when a person is killed that their rights cease to exist. The possession of a gun by one person in no way infringes upon the rights of another any more than the possession of a sofa infringes upon the rights of another. If a person chooses to deny another person his fundamental right to life, or any other right  such as the right to peaceably assemble, by killing him there is ample recourse in the law. You simply cannot argue that the ability of one person to violate the rights of another is unconstitutional. If that were the case then the right to own a restaurant can be abridged because it grants the owner the ability to deny the right of some citizens to eat there. Under the president's logic, it would be possible to deny people the right to own a vehicle since if a driver kills another in an accident, he has violated her fundamental right to to life. The fear of dieing in an auto accident can make people reluctant to venture onto the roads thereby denying them their right to liberty. By allowing the right to  protest publicly you impinge upon the rights of others to engage in commerce. You could even make the case that the right against self incrimination should be limited because it can deny a victim her right to justice.

Yes, it is true that rights can conflict. They have, they do, and they always will. Where the president errs is in asserting that it is his responsibility to sort constitutional conflicts out. When rights clash it is up to the courts to reconcile them, not the president or Congress. President Obama should know that. He was a law professor after all. His speech was a rhetorical flight of fancy that put over 300 years of jurisprudence to shame.

When one person violates the rights of another it becomes a matter of law. A crime is committed. The remedy is the enforcement of the law.  If I violate my neighbor's right to liberty I am prosecuted. If I violated by neighbor's right to pursue happiness, I am taken to court. If I violate my neighbor's right to life, I am arrested. There are ample laws to protect a person's rights just as there are ample remedies available if those rights are violated. When one person kills another they are not violating the victim's rights, they are committing a crime. To say that killing a person is a violation of that person's constitutional rights not only makes a travesty of our constitution, it makes a travesty out of logic as well.

Banning firearms is akin to banning automobiles. Even though the vast majority of vehicles are owned and operated responsibly, there are horrible and unnecessary injuries and deaths due to the dangerous actions of drivers. Legally owned and operated vehicles cause death and injury on a massive scale. Last year, 32,376 Americans died traffic related deaths compared with 8,563 who were killed by guns. Many of those who died on the roads were killed due to the carelessness of others. Others died as a result of the criminally reckless actions by other drivers. Ask how many Americans have lost a friend or family member to an automobile accident. Ask how many Americans have lost a friend or family member to guns. Then ask Americans which they are more afraid of, guns or automobiles.

Despite the clear danger that automobiles pose to our safety, no one is proposing that automobile ownership be curtailed, let alone banned. The response has been to craft regulations to make cars safer and increase sanctions against those who operate their vehicles recklessly or illegally. No one is proposing that the ownership of automobiles and trucks be curtailed.to prevent death. Licensed, yes. Establishing an age limit to operate, yes. Requiring routine inspections and punishing criminal operation of vehicles, yes. But restricting their possession, no. Even MAD does not propose that car ownership be restricted.

You say that automobiles are necessary and that we have to live with the dangers they present. But there were times when firearms were necessary, despite the risks attendant to possessing them. There still are. In any event, you do not forfeit constitution rights when they are deemed unessential to ordinary life.

Individual rights have frequently proved a hindrance to government objectives. The right to privacy restricts the government's ability to gather information. The rights against unreasonable searches and seizures hinders the government's ability to collect evidence of a crime. The right to have an attorney obstructs the government's ability to interrogate suspects. This is because constitutional rights do not exist to facilitate the operation of government. Neither do they exist  to serve some common good. Quite the contrary. They exist to preserve the liberty of citizens, not to benefit society or improve the efficacy of government.

The president asserts that we have the right to go about our lives free from fear that we will be killed. He states that our rights are violated when we are killed. To that end he wants to rid us of our constitutional right to keep and bear arms. The debate on firearms is being driven by emotion, not reason. It is being driven by fear. The chances the average, law abiding citizen being killed by a firearm are remote. Nevertheless, it is not uncommon for that same citizen to feel he is somehow in jeopardy because someone else was shot, yet feel perfectly safe in their vehicle even as they drive by a fatal wreck.

Yes we have a constitutional right to life, liberty, and the pursuit of happiness. We have laws to ensure that those rights are protected. That is why we have government to protect those rights. But what can we do if it is the government that is threatening our rights? We can only rely on the courts (or citizen militias if you are inclined to that way of thinking). It is the function of the courts to sort out what rights citizens have and do not have, not the president. The president should not be allowed to usurp the power of the courts. His job is not to interpret the constitution. His job is to defend it. Over the last century there have been many attempts by a president to circumvent the constitutional restraints on their power. Some have succeeded, some have failed. We witnessed President Bush's effort to circumvent the Constitution by denying prisoners the right to challenge their detention in court. We are now witnessing an attempt by President Obama to circumvent the Constitution by asserting the power to define and prioritize rights.

The recent mass shootings were spectacular. Through the sensational efforts of the media, the American public has been saturated with the images and details of the killings. Because of this, the American people have become afraid. We want steps taken to make sure these things will not happen again. When the lives of our children and loved ones are at stake, emotion runs high. But emotion makes for bad law. As is frequently the case, we are prepared to surrender our liberty if we are persuaded that by doing so lives will be saved. This is a misstep that has undone free societies since the beginning of time. Long after danger has passed, the restrictions will remain in place.

The president was careful to follow his reasoning to its logical conclusion. Our rights only mean something if we are alive to enjoy them. If we accept his argument, then every right, even the Constitution itself, must be subordinated to the safety of the individual. Laws would be measured by the extent to which they protected or endangered the life of a citizen. That is a recipe for a government no thinking American would want to live under. The law exists to protect citizens from each other. The Constitution exists to protect people from the government.

Since its very inception, the Constitution has endured numerous assaults borne of fear. From the Alien and Sedition Acts to the internment of Japanese Americans in WWII and segregation, fear has led many Americans to abandon parts of the Constitution. We may like to think that now, in the 21st century, we are no longer subject to unconstitutional spasms of fear. We are. Recent events prove that. Increasingly, Americans are being told that we have a choice. We can live in a free country, or a safe country. What they do not seem to realize is that in a country where people are not free, no one is safe.

People should not have to forfeit their rights when those rights are abused by others. I should not have to suffer the loss of my right to privacy if someone else takes advantage of that right to plot a crime. My right to free speech should not be curtailed because it can be abused by others to spew hatred and fear. My right to assemble peaceably should not be denied because it can spawn a riot. You do not deny citizens their right to privacy because privacy allows some the secrecy they need to hatch plots. I should not have to give up my automobile if a driver runs his vehicle through a crowd of children. Law abiding citizens should not be denied their right to keep and near arms because firearms are used by others to commit crimes. In our country you are supposed to punish the guilty, not the innocent. It is when the public is in a frenzy to restrict rights that rights are most important.