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In a recent unanimous, 3-0, decision, the 9th U.S. Circuit Court of Appeals upheld California's unconstitutional ban on dangerous-looking rifles, a.k.a., "assault" weapons. In their infinite wisdom, the judges on this august body decided that there is no individual right to own or possess firearms.
I can almost hear them...
"Hey, don' y'all go lookin' at the actual words of the Second Amendment, ya hear. Don' pay no mind to sech junk as 'the right of the people.' Jes 'cause all t'other 'mendments refers to private citizens, we'uns knows better'n when it comes right down to danjerous wippons. Only the State kin have the right to authorize sech in the hands of soldiers and m'litia and so. We also don' wanna hear nuthin' neither 'bout 'numerated powers or 'buse of guvmint powers or 'strictive clauses on the State. Fuhgit 'bout no 'fringin', either. A few bans here 'n' there don' 'mount to no 'fringmens. Don' y'all fergit that or we'll sen' summa our boys wit their wippons to whup yo ass."
Oh, yeah...
When this ruling came down, a lot of people were incredulous and outraged. One well-known figure who discussed this lunacy was radio talk-show host, conservative Rush Limbaugh. Unfortunately, as with many issues where real freedom hits the road (as opposed to the conservative-style simulacra of what constitutes liberty), Limbaugh got the implications of this decision from the Left Coast only half right.
He complained that the judges could not see what was plainly stated in the Constitution and, specifically, in the Bill of Rights. If he had stopped there or extended his observations to the State's evasion of other guaranteed rights and limits on the government's granted powers -- e.g., a hard money standard, requirements for Congressional declarations of war, the Ninth and Tenth Amendments (that acknowledged other, unspecified rights that are retained by the people and/or the States) -- Limbaugh would have helped advance the freedom he (often) champions.
Depressingly, the push from the Circuit court and the shove of his conservative roots collided and sent Limbaugh reeling off into Never-neverland. Immediately after (correctly) pointing out the obtuseness of the judges in ignoring the obvious, Rush then railed against courts that see things that (supposedly) aren't in the Constitution.
Limbaugh's criticism focused on his far-too-common mini-crusade against "privacy." While one would initially suppose that a conservative might favor a sanctuary against the prying eyes of Big Daddy, to acknowledge the truth about the Constitution's role in safeguarding privacy would be to undercut the Right's position on one of their pet causes: abortion.
This detour into the absurd traces most prominently to the failed nomination of Judge Robert Bork to the Supreme Court. Bork was famous (or infamous) for claiming he could find no general right to privacy in the Constitution. While he accepted the Fourth Amendment and its explicit protections of "the people to be secure in their persons, houses, papers, and effects," he did not think, for instance, that a state law banning contraceptives was unconstitutional. Nor was he particularly convinced that legislatures do not have the authority to ban all kinds of things that aren't directly listed in the Constitution: "That's what I meant when I said that, you know, privacy to do what? We don't know. Privacy to take cocaine in private; privacy to fix prices in private; privacy to engage in incest in private?" (The answers to his questions are: yes, yes, and no.)
In essence, Bork seemed incapable of conceptual thought regarding the Constitution and could only accept and agree to the specific concretes mentioned therein. "I was making the point that where the Constitution does not speak -- there is no provision in the Constitution that applies to the case -- then a judge may not say..." The Ninth and Tenth Amendments? Nothing much of value there for that worthy personage. After all, when those amendments discuss "certain rights" and "powers," they don't precisely spell out what those rights are powers are, now do they?
(Of course, not listing those rights and powers was the very point of those amendments, but, hey! Who are we -- lowly plebeian, private citizens that we are -- to explain such lofty things to our lords and masters?)
Such Borkian literal- and narrow-mindedness provides Limbaugh and his brethren a sandy foundation for pushing their nonsensical version of the supreme law of the land. They are so wedded to the abortion bugaboo that they will twist and tear and bend and warp the plain words of the Constitution in their sometimes frenzied attempts to impose their will upon the rest of the country.
(Of course, the Supreme Court case that changed abortion laws in this country was a tad goofy in the first place for hauling out "privacy" as the justification for legalizing abortion. Women have the right to choose because they are sovereign over their own bodies. Privacy is, at best, merely a secondary support.)
Conservatives who cling desperately to the faulty notion that the lack of the word "privacy" in the Constitution justifies their religious-based desire to prohibit abortion never have the courage to follow through on the radical implications of what they say. Imagine if it were true that we only have the rights expressly and unequivocally placed in the Constitution. Anything else would be subject to legislative proscription.
Just ponder all the aspects of life we take for granted but that are not dealt with in the Constitution...or that were even imagined when its authors lived:
You would have no right to food. Or water. Or any consumables.
Forget Mickey D's or chocolate or Evian or beer. The State could outlaw them whenever it so desired.
Oh, wait... The State has outlawed alcohol...and still does in some places. And let us not forget the "cocaine" that so disturbed Bork. Plus, the State already tells you what will or will not be available on your grocer's shelves, how it will be packaged, how it will be prepared, what will or can be written on it, what claims will be permitted, what colorings or sweeteners it will allow...
You would have no right to sex or marriage or children.
Forget choosing your wife or your husband or how many children you can have or the manner in which you will (or will not) conceive those offspring.
Oh, wait... The State has outlawed gay marriages and polygamy. In many places, sodomy and oral sex -- even between men and women -- is verboten. One state court already forbade a man who sired too many children on welfare from having any more fruit-of-his-loins running around. Plus, contraceptives once were banned...and even simple information about them was deemed pornographic. Gay adoptions are likewise not to be sanctioned in some jurisdictions.
You would have no right to shelter or to own your own home.
Oh, wait.... The State has outlawed houses or apartments that don't match their building codes and zoning laws. In some places, it is a criminal offense to cut down a tree, paint your house, or place a couch on your front porch without permission. Many localities prevent a landlord from refusing to rent to people he dislikes or who violate his values. In other cities, the person who owns a building is forbidden to decide for himself how much rent he can charge.
You would have no right to run a business or to hold a job.
Oh, wait... The State has outlawed the selling of certain products. In many places, a business owner can only hire people of a certain age, let them work so many hours, pay them no less than a minimum, provide them with insurance or benefits. In other situations, a person cannot offer a service or hold down a job without a license or a permit or a State-issued identification card or accept work for less than other people are willing to take.
You would have no right...
Let's face it: to present-day politicians, no one has any rights, i.e., areas off-limits to the State's ham-fisted interference. Anything and everything is subject to permission or prohibition or restriction or authorization from some duly anointed bureaucrat. There is no aspect of life or society -- no matter how trivial, precious, or secret -- that is safe from the prying eyes and meddlesome fingers of some politician somewhere.
Once upon a time, we enjoyed indivisible rights.
Now, sadly, all that remains are invisible ones.
