Avatar of admin


Joe the Plumber Said 'Your Dead Kids Don't Trump My Constitutional Rights.' Could He Be Right?

June 13, 2014 in Economics

By Robert A. Levy

Robert A. Levy

Joe “the Plumber” Wurzelbacher did himself (and gun advocates) no favors when he wrote “your dead kids don’t trump my constitutional rights.”

He posted those incendiary words soon after Elliot Rodger went on a killing rampage in California, killing six people, three with a knife and three with a gun. In the weeks since, there has been more gun violence, most recently in Oregon.

He incited near universal furor. But is there a kernel of truth to that claim?”

To be fair, Wurzelbacher’s letter — directed to the parents of the gunshot victims — was replete with expressions of sympathy; but those civilities were undermined by his indelicate and insensitive harangue against Richard Martinez, whose son was among the murdered. Martinez had attacked “craven, irresponsible politicians” and the National Rifle Association for his son’s death.

Not surprisingly, the media have focused on Wurzelbacher’s rabble-rousing dictum that public safety — even if kids are mowed down by guns — is subordinate to Second Amendment rights. What should we make of that claim? Is there a kernel of truth in defense of Joe the Plumber?

Let’s start with this proposition: Constitutionally guaranteed rights are not absolute. For example, the First Amendment instructs that government “shall make no law … abridging the freedom of speech.” Yet we have laws that prevent incitement to riot, lying in commercial ads, and defamation, among other abridgments.

Similarly, when the Second Amendment directs that “the right … to keep and bear Arms shall not be infringed,” it does not ensure that a deranged person can possess a machine gun in a schoolroom. Some people, some weapons and some circumstances can be regulated. The Constitution does not preempt common sense.

On the other hand, the Supreme Court declared in District of Columbia v. Heller (I was co-counsel to Mr. Heller) that the right to bear arms is “fundamental.” That means individuals enjoy a presumption of liberty and government bears a heavy burden to vindicate regulations that compromise core Second Amendment freedoms. The burden-of-proof point is critical.

Even Judge Richard Posner, who had been highly critical of the Heller decision, wrote in an Illinois case that:

“a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden.”

Ditto for the latest calls …read more

Source: OP-EDS

Leave a reply

You must be logged in to post a comment.