Thursday, November 4, 2021

Part I

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What Does ‘The Right To Bear Arms’ Mean? SCOTUS Considers Constitutionality Of New York State Gun Carry Law

The Second Amendment to the United States Constitution reads, “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.” Now, you could argue that for most of American history, that wasn’t a particularly controversial statement, but in recent decades, it’s become more an issue of controversy in the United States precisely because of efforts by states and municipalities to limit or to outlaw or forbid gun ownership or gun use on the part of citizens.

Now, efforts for gun control of course have arisen and gone up and down in recent times, but they have become more and more a part of the national conversation because of the reality of gun violence in the United States. And there is a divide in the United States between those who see gun violence as basically occasioned by guns or access to guns, and those who see gun violence as evidence of human evil, the guns are merely the instrumentality.

Very serious efforts towards gun control at the federal level began to make progress in the 1970s and ’80s, but there was a very important Supreme Court case that was handed down in the year 2008, that was the District of Columbia v. Heller. And in that case, the late Justice Antonin Scalia wrote the majority opinion, which found that in answering the most basic question related to the Second Amendment, found that the Second Amendment means that individual citizens have a right to bear arms. The argument had been made by some, particularly on the left, that reference to a militia, a well ordered militia as required for the maintenance of a free people, made clear that the militia had a right to bear arms, but the argument was individual citizen do not.

That’s been debated in academic circles, it’s been debated and contested in legal circles, but as of 2008 and the Heller decision, the Supreme Court of the United States declared in the majority opinion, it ruled that the United States Constitution Second Amendment in the Bill of Rights means that individual Americans have a constitutional right to bear arms. But what exactly does bear arms mean?

Looking to the Heller decision in 2008, Justice Scalia was arguing for the right of citizens to bear arms in their homes. Now, that would seem to be a nearly undebatable issue, but that tells you something about the state of affairs in the United States, that the issue of whether or not citizens had a right to guns in their homes was an issue of Supreme Court litigation. But yesterday the Supreme Court heard oral argument in what’s already predicted to be another blockbuster case when it comes to gun control laws and the constitutionality of those laws.

In this case, the law has been undertaken by the State of New York, and it basically says that citizens do not have a right to bear arms outside of their homes unless they can prove a particular need to the satisfaction of a government authority. As John Fritze of USA TODAY reports, “At issue for the high court is whether New York can require residents to have a good reason to obtain a license to carry a handgun, a question with ramifications for gun laws nationwide,” says USA TODAY.

We need to understand that the even more fundamental issue is whether or not our constitutional rights are to be put for a government official who will decide if we have the right to exercise those rights or not. That’s a far bigger issue than gun control in this case, but gun control is the catalyst and it’s a natural catalyst on this kind of issue.

Now, again, the state of New York is basically saying that the right to bear arms, according to the Heller decision in 2008, means to bear arms in the home. But as the challengers to the New York law make very clear, that makes no sense, it doesn’t make sense logically, it doesn’t make sense constitutionally, it doesn’t make sense historically, because historically it’s clear that the Second Amendment did not mean that the bearing of arms was limited to one’s home. As a matter of fact, the natural phrase about bearing arms seems to insinuate that there is some public consequence to this, that we’re talking about public space, not just private space, not just a home, a domicile, but we’re also looking at the fact that the challenge to New York law has to do with the fact that according to New York state, a government official must be satisfied that an individual citizen has made a sufficient case as to why he or she should have a permit to bear arms or to carry a handgun outside of the home.

In the oral arguments yesterday, there was some significant intellectual and legal jousting. Two of the most interesting justices when it comes to gun control issues are Justices Samuel Alito and Brett Kavanaugh, they have generally been understood to be very suspicious of any kind of government limitation upon the right to bear arms.

CNN’s Tierney Sneed reported that in the oral arguments, Alito and Kavanaugh “grilled New York Solicitor General Barbara Underwood on whether it was appropriate for New York to second guess the assertions from public carry applicants that they need the guns for self-defense.” Now, an even more pointed argument came in the form of an opinion piece published in the Wall Street Journal by Stephen Halbrook. The title of this article, “When Is a Constitutional Right Not a Right?” And the answer in his article is, “It’s not a right when you need an official approval to exercise it.” Halbrook writes, “If you want to carry a firearm in New York State, you need to convince a local official that you have proper cause. That’s easy,” he says, “in some counties, but almost impossible in others, including New York City.” He went on to say that, “New York is one of only six states,” the others are California, Hawaii, Maryland, Massachusetts, and New Jersey, “that condition the right to bear arms on an official’s discretion, which is not required to exercise any other constitutional right.”

Now, that’s absolutely crucial, and that’s the most fundamental issue before the court in this case. Is it lawful? Is it constitutional for a state to put individual citizens in the position of having to satisfy a public official that they can exercise a constitutional right? This takes us back to 2008, it takes us back to the Heller decision. And in that Heller decision that became such a landmark case, the court’s decision and Justice Scalia’s majority opinion made abundantly clear clarifying as if it had been necessary earlier in American history, that the right to bear arms is the right of all American citizens.

Now, if it is recognized as a constitutional right, the government’s default position, and that means not only the federal government, but state governments and local governments, the government’s default must be to assume and to respect the fact that individual American citizens have the right to exercise that constitutional right. They don’t need a government permission for free assembly, they don’t need government permission, they don’t need a government official to allow free speech, they do not, we do not require some kind of advanced approval from government in order to exercise religious liberty, that is the absolute reversal of America’s constitutional logic.

But when it comes to gun control, that’s the problem, there are governments, local, state, and there are those who want to see Congress legislate in such a way that this constitutional right has made something that is provisional. And in the case of New York, it turns out that in places like New York City, it’s not just provisional, it’s almost impossible to obtain.

In a crucial paragraph in the article by Steven Halbrook, he writes, “In Heller,” that means the Heller decision in 2008, “which concerned the right to keep arms in the home, the court observed that laws forbidding that carrying of firearms in sensitive places, such as schools and government buildings are presumptively valid.” And then Halbrook notes, “That implies that restrictions applicable at all public places aren’t presumptively valid.”

Now, that’s legal language, but let’s understand what’s at stake here. He’s saying that even in the Heller decision the Supreme Court recognized that there are certain places, but a severely limited number of places where the constitutional right to bear arms doesn’t prevent government from saying, “You can’t carry a gun in there.” And the examples given were schools and government buildings, particularly just to give an example, courthouses, this doesn’t mean that the Constitution requires governments to allow citizens to carry guns freely into courthouses or schools. But the point that is being made in this article by Stephen Halbrook is that the very listing of those exceptions means they all are rare exceptions. The implication here is that if it’s not a school, if it’s not a courthouse, if it’s not a government building that presumptively the government doesn’t have a right to say you can’t bear arms.

But Justice Scalia back in that 2008 decision made the very wise insight that our understanding of the Second Amendment, for that matter, the entire Constitution, requires understanding the historical practice and the historical context. Let’s just ask the question honestly, if we were to go back to the 1790s, when the constitutional order was new, did anyone believe that the presumption should be that government could tell individual citizens that they could not carry guns in public? You just look at the historical practice, that doesn’t make sense. But if it doesn’t make sense in historical practice, then you’re going to have to come up with some kind of argument if you’re going to try to argue for gun control that is really separated from that history. But there we reach a very interesting point.

USA TODAY ran an article in anticipation of the oral arguments yesterday, and the headline in the article by John Fritze at USA TODAY is, “Gun case could hinge on 700-year-old law.” Now, that ought to get your attention, when’s the last time you heard about a 700 year old law? In this case, the law goes back to 1328, it was the Statute of North Hampton in England, and this medieval prohibition said in the language that goes back 700 years, “No man, great or small could go nor ride armed by night or by day in fairs, markets or elsewhere.” Now, that sounds very interesting, but actually even at face value, it just says something very much like Justice Scalia said in 2008, “If there are exemptions to the right to carry arms, they must be limited and well specified and justified.”

Paul Clement, who’s the attorney for the two men who are suing New York State over this statute, Paul Clement made the argument, however, that if you look at the historical context, the context was that those who are being outlawed here had gone into those places in order to commit acts of terror. You can understand that the acts of terror themselves would be illegal. So, you’re looking at a very interesting context where now virtually both sides agree the history matters, and now they’re arguing over history. That is at least to some an improvement over where those who were pushing for gun control were arguing in years past.

But nonetheless, it is likely that the Supreme Court, or at least a majority of the justices of the Supreme Court are going to believe, and they’re going to state, they are going to rule that a basic constitutional right is a basic constitutional right, and no government at any level has the right to say that you would have some government official who would have to certify that a citizen has the right to exercise a constitutional right. That kind of government claim of power is disastrous when it comes to our entire constitutional order.

Part II

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Toxicity Of Identity Politics In Public Schools — How Should Parents Respond?

But next, we’re going to shift to several scenes in the United States where the issue, the toxicity of identity politics comes very much to the fore. First, we’re going to look at an article that appeared in the front page of USA TODAY telling us that culture wars are now raging in school board fights across the United States. The interesting thing here is that this team of reporters is telling us, and we’re hearing this over and over again in the media, that Republicans, including the winning gubernatorial candidate, Glenn Youngkin in Virginia, are falsely running against critical race theory. And the falsity they claim is the fact that critical race theory, the language at NPR, the language at CNN, the language in so many of these media outlets is that CRT, or critical race theory, is only taught at the university level. And the claim being made by NPR and CNN is that CRT is taught in no local school jurisdiction.

Now, that’s just intellectually dishonest, and here you see how the media often stacks the conversation they’re reporting and their commentary. If it’s true that CRT is not taught in any school system anywhere, then of course, it would be a false issue. But the false issue is actually the claim that it’s not being taught. Now, the sense in which NPR and CNN and others can make that claim is that it’s unlikely that elementary school, middle school, high school students, let’s just say K or pre-K through 12 students are being told, “Listen children, today we’re going to talk about critical race theory. I’m going to give you the history, the genealogy of critical race theory, as it emerged in law schools,” and eventually comes down now to the seventh grade.

No, the point is they are not going to say in almost any context, “Look, what I’m giving you is undiluted critical race theory in identity politics,” but that is what they’re giving. And very interestingly, a lot of this has come to the attention of parents, not just because students are bringing something home from school, but because during the COVID-19 pandemic with so many students learning at home, parents got an earful of what their students were being taught. Furthermore, those students are bringing home things such as privilege diagrams in which you have students going through the exercise of identifying their privilege.

You have virtually all the product of critical race theory that is being taught in schools at virtually every level. And if it’s not being taught directly to students, you might say in the first or second grade, maybe it is, maybe it isn’t, but it is nonetheless creating the framework of the entire educational process, the policies of the schools, and for that matter, the sense of morality that the school is going to communicate to students.

I want us to see this article, this front page article at USA TODAY. Again, the headline, “Culture wars rage in school board fights,” because the claim being made here is the claim we’re going to confront over and over again. And that is that if you do not allow unbridled progressive ideas in the schools to be basically forced fed to children, then you are creating an unsafe environment for some students. The team of reporters claim, “Restrictions on lessons about race or bands on inclusive signage,” that means LGBTQ, “moves often unseen by school boards that are shifting more conservative, have made school harder for kids of color and LGBTQ students”–the next two words, “teens say.” In other words, these reporters found teenagers who said that these school board policies that have forbidden say inclusive symbolism, that really means progressive ideology coming in the form of the LGBTQ message and all the rest, if that is not allowed, then their schools are unsafe.

The USA TODAY article includes this paragraph, “We know that all humans, but particularly young people, have to feel safe in their bodies and their hearts and their minds to be available to learning,” that said by Melanie Willingham-Jaggers, identified as the interim executive director of GLSEN, “A nonprofit that advocates for LGBTQ+ inclusion in schools.” Willingham-Jaggers went on to say, “You can’t learn if you feel like you’re under threat.” What does under threat mean? Well, in this case clearly, explicitly, it means that if the schools don’t advertise publicly and coerce advertisement of the progressivist agenda, then they are making the schools unsafe.

Now, here’s where we need to note this really does now make the issues clear, it makes the issues clear in so many public schools and virtually all public schools eventually, it makes very clear that the public schools are teaching morality, they are going to teach some morality, they’re going to teach someone’s morality, they are right now, the question is who’s morality? And at this point, we know who, and we know who is demanding to be in the driver’s seat, and we know how the media are complicit to this.

USA TODAY virtually every single day runs articles about the fact that parents who have an interest in the education of their own children and resist their children being force fed this progressivist ideology, they’re being treated as the enemies who are making schools unsafe for other children. Now, as we think about this, we understand there’s good news and bad news in recent developments. The bad news is the more important in this case, and that is that the entire industry of the cultural production process is now thoroughly committed to this kind of ideology and this kind of agenda. It’s not something that can be fixed just with a school board meeting or a policy. I’m not saying those things don’t matter, they do matter, and it’s important that Christian parents show up and show up demanding respect for their parental involvement in the education of their own children.

But the bad news is this battle is not something that can actually be won with vote A, vote B, or vote C, not when the entire cultural production process is now largely, if not totally, sold out to the moral revolutionaries. And they are so ensconced in power, it is really very difficult at this point to imagine how they can be displaced or even how they’re forward progress can very adequately be checked.

But nonetheless, there is good news, and the good news is this, when American parents, and it’s not just Christian parents, certainly Christian parents are at the forefront, but when American parents find out what is being taught to their children, they are still outraged. And as we saw in the Virginia election that took place on Tuesday, that outrage has a political opportunity, an opportunity to vote officials in office, not just governors, but senators, members of Congress, local school board members, all the way down the political roster. The good news is that there is still sufficient political sense on the part of American citizens, and in particular, American parents, that they are not going to be willing to go along with this when they discover what is being force fed to their children. But again, this is an ongoing issue, it’s an ongoing battle. The headline in USA TODAY said, “It’s an ongoing culture war,” and that’s one thing on which we certainly agree.

Part III

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When Charges of Racism Are Weaponized for Politics, the Actual Sin of Racism is Obscured

But next, going back to the state of Virginia, the editorial board of the Wall Street Journal ran a headline, “The Big ‘Racist’ Fail In Virginia.” Racist is put in quotation marks. And the editors of the Wall Street Journal, again, one of America’s most influential newspapers, the editors write, “One salutary result from Glenn Youngkin’s victory in Virginia, Tuesday, is the failure of Democratic racial demagoguery. Throughout the campaign,” they write, “Democrats and their media allies assailed Mr. Youngkin and his supporters as closet white supremacists. MSNBC’s Joy Reid,” they say, “said the issue of education and critical race theory is code for white parents don’t like the idea of teaching about race.” The editors of the Journal point out that the Washington Post Jonathan Capehart made similar kinds of allegations and, Terry McAuliffe, the losing governor candidate, the Democratic nominee in this case “was especially nasty as he closed his campaign this weekend saying of his rival, ‘He’s run a racist campaign from start to finish.'”

But then the editors write this, this is really important, “So, what did all these racist Virginia voters do Tuesday night? In addition to electing Mr. Youngkin as governor, they elected Winsome Sears as Lieutenant Governor, she will be the first African-American woman to be elected to statewide office in Virginia history.”

Now, that’s just stunning, so here you have the accusation that white supremacists elected Glenn Youngkin, but at the same time, these white supremacists elected the first black woman to serve in statewide office in Virginia ever. Now, you have to understand how critical theory works in something like this and how the left’s thinking adapts to something like this.

So, they understand the optics are bad. the optics are this, Republicans elected not only a governor, they elected the first black woman elected to statewide office in all of Virginia’s history. The optics don’t look good for the Democrats to accuse Republicans of being racist, but they have a way around this, and their way around this is twofold, and the most important Marxist concept here is false consciousness. The Marxist claim of false consciousness comes down to this, it may be true that Winsome Sears is a black woman, but she is not identifying fully as a black woman or she wouldn’t be running as a Republican, in other words, she doesn’t really count as a black woman in terms of the claim of false consciousness.

Christians understand there’s a deeper problem here, and that deeper problem is that racism is a sin, it is favoritism, and showing preference on the basis of skin color. Showing preference on the basis of anything, according to scripture, is wrong in this context. So, what we need to note here is that when the left labels those who are conservative as racist when they are not, that actually makes it far more difficult to understand and grapple, honestly, with the very real sin of racism. But the editors of the Journal are right about one other positive development, evidently voters in Virginia didn’t buy the slander.

Finally, let me just mention a heads up. Just think about Tuesday’s election and understand what a big story it is. Now, in the days ahead, especially going through this next weekend, we’re going to need to pay attention to the conversation in the media, the conversation in the national context, the conversation, the arguments coming from both Republicans and Democrats, especially Republican and Democratic leaders, politicians. The reason we need to pay close attention is because the immediate aftermath of an election, such as took place on Tuesday, brings out immediate comments, but then especially the party on the losing end, in this case, generally the Democrats, they have to come back and try to explain why Tuesday happened.

You can just buckle your seatbelts and know that this is going to be a very interesting weekend ahead with Democratic leaders trying to explain it was this or it was that. The most amazing argument thus far is coming from Democrats who lost the election in Virginia because of the overwhelming impression that the party was too liberal, National Democratic leader saying that the reason the election went as it did is because the party isn’t liberal enough. That argument may change by Sunday, but I fear not.

We’ll be tracking that argument, tomorrow we’ll be back not only with The Briefing, but with your questions for the Mailbox.