Our Gun Rights Are GOD Given, A Quibble with Clement

Hand of a god given rights iStock-CreativaImages 475552813
Our Gun Rights Are GOD Given, A Quibble with Clement iStock-CreativaImages

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.

They don’t.

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


About Jeff Knox:

Jeff Knox is a second-generation political activist and director of The Firearms Coalition. His father Neal Knox led many of the early gun rights battles for your right to keep and bear arms. Read Neal Knox – The Gun Rights War.

The Firearms Coalition is a loose-knit coalition of individual Second Amendment activists, clubs and civil rights organizations. Founded by Neal Knox in 1984, the organization provides support to grassroots activists in the form of education, analysis of current issues, and with a historical perspective of the gun rights movement. The Firearms Coalition has offices in Buckeye, Arizona and Manassas, VA. Visit: www.FirearmsCoalition.org.

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I Haz A Question
I Haz A Question (@ihazaquestion)
1 month ago

“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.”

– Patrick Henry, Speech to the Virginia Ratifying Convention, June 5, 1778

Vince Warde
Vince Warde (@vincewarde)
1 month ago

“If you don’t have sword, sell your coat and buy one” (Luke 22:36)

Rodoeo
Rodoeo (@rodeo)
1 month ago

You have to believe in God to believe we have God given rights and the left don’t believe. Religion just gets in the way of their total power and control.

nod
nod (@nod)
1 month ago
Reply to  Rodoeo

I believe getting rid of religion is a goal for advancing the communist party. Maybe FJB or AOC will chime in here.

Knute Knute
Knute Knute (@knute)
1 month ago
Reply to  Rodoeo

I would argue that the State LOVES religious fundamentalism. It’s just that they demand that the State be your God. Thus all other faiths must be destroyed, to be replaced by them as the one and only, all powerful, omnipotent, One.

loveaduck
loveaduck (@elbee1943)
1 month ago
Reply to  Rodoeo

No, it becomes a birthright.

Boz
Boz (@boz)
1 month ago

When CW2 starts, we must not “aIIow” the opposing side to remain. No quarter. Leave and go to Liberia and NEVER return, or be pIanted 1.8288 meters beneath the soiI.

Roland T. Gunner
Roland T. Gunner (@freecompanier)
1 month ago

Rights are absolute.

Roland T. Gunner
Roland T. Gunner (@freecompanier)
1 month ago

But the abuse of which can be sanctioned.

swmft
swmft (@swmft)
1 month ago

the need for machine guns is there are more control freaks that want to take your hard earned money/goods than work to have their own. fbi robbing people in sanfran, when a judge bared them from doing just what they are; civil asset forfeiture is a crime , theft by sherif of Nottingham, where is robin hood to fix it

nrringlee
nrringlee (@nrringlee)
1 month ago

The first and foremost duty of government at all levels is to defend individual liberty. Lacking that, government serves no valid purpose. That is where we are now with our rogue federal government.

I Haz A Question
I Haz A Question (@ihazaquestion)
1 month ago
Reply to  nrringlee

The Federal Government has only a few original and constitutionally valid obligations: to coin money (abandoned and given over to the Fed Reserve), to guard the nation’s borders (abandoned), to guarantee fair interstate commerce (today there is severe overreach), etc.

Knute Knute
Knute Knute (@knute)
1 month ago

Abandoned and given over to the Federal Reserve… a private, for profit, corporation, I might add. For any that haven’t read “The Creature From Jekyyl Island”, and don’t want to, simply look up “federal reserve” in the phone book. You will find it in the private business pages right next to Federal Express. Not in the Government pages. It is no more federal than Federal Exress is, and has no reserves.

GomeznSA
GomeznSA (@gomeznsa)
1 month ago

I Haz – seventeen specif duties/responsibilities to be precise. Anything beyond those 17 are likely unconstitutional.
See Art.1 Sec. 8 for the list…………………..

nrringlee
nrringlee (@nrringlee)
1 month ago

Spot on. Language counts. The Progressive New Left knows that and that is exactly why they spend so much time and effort crafting Orwellian language meant to obscure and not edify. This is one such case of many where twist of one word turns philosophical concepts on their collective heads. And this has been going on since the first time an American political type adopted the word ‘progressive’ to identify their tribe and their contempt for Natural Law. God is not dead. Nor are his followers. God grants rights as a condition of life. He burdens us with a moral… Read more »

I Haz A Question
I Haz A Question (@ihazaquestion)
1 month ago
Reply to  nrringlee

“NY state is the epicenter of Progressive ideology.”

I would argue Sacramento as having that unfortunate title, with San Francisco and Los Angeles also competing for it here in CA.

Henry Bowman
Henry Bowman (@henry_bowman)
1 month ago

San Fran and L.A. are the new Sodom and Gomorrah.
The same Creator that gave us our Rights will also judge these heathens.

Deplorable Bill
Deplorable Bill (@deplorable-bill)
1 month ago
Reply to  Henry Bowman

Friday, April 13th, 2029. That day will see a rock the size of the golden gate bridge hit just off shore of San Diego going from East to West. It’s named aphopus (phonetic spelling only) after the Egyptian god of destruction. Look it up for yourselves.

Arm up and carry on.

Henry Bowman
Henry Bowman (@henry_bowman)
1 month ago

Bill, I pulled up NASA to see what they had. They say Apophis is not going to hit Earth anytime in the next 100 years. As subject-matter experts on N.E.O. (near-Earth orbit) threats, I’ll roll with their assessment.
https://www.nasa.gov/feature/jpl/nasa-analysis-earth-is-safe-from-asteroid-apophis-for-100-plus-years
That being said, I do believe that God will find other ways to punish these wicked heathens. You’ll find the details of that in the Book of Revelation.

GomeznSA
GomeznSA (@gomeznsa)
1 month ago

I Haz – perhaps we should agree that ANY place in kalypornia is the west/left coast epicenter and noo yawk city is the east coast version.

2gats
2gats (@2-gats)
1 month ago

I’m crossing my fingers but thinking we’re about to be screwed. BIG TIME!

Henry Bowman
Henry Bowman (@henry_bowman)
1 month ago
Reply to  2gats

That’s why we are seeing a sudden increase in mass shooting incidents.

False Flag Shooting Brace Yourselves.png
Deplorable Bill
Deplorable Bill (@deplorable-bill)
1 month ago

Like it or not, believe it or not, this nation is founded upon righteous Judaeo/Christian commandments, principals, precepts and mandates. My marching orders for being armed come from Luke 22:36 and they are further written into law in our constitution as the 2A. That actually says all we need to know. Our unalienable, GOD given rights to life, liberty, the pursuit of happyness, of self defense, to keep and bear arms, defense of others, to peaceable assemble (not riot), speaking your peace, freedom of, not from religion etc are, in fact, unalienable and are not subject to anyone’s or any… Read more »

2gats
2gats (@2-gats)
1 month ago

And if they do screw us…….tell us that”shall not be infringed” means no right outside your home or that .gov may regulate at will or that the right is subject to restrictions….then what? What if they pluck the 2A right out of the bill of rights and attempt to render it symbolic? The constitution….and particularly the bill of rights is a contract with the people of this country. If it is rendered null, the country is OVER! We are so constrained by our wealth that we don’t make a peep for fear of some alphabet agency destroying our lives. We… Read more »

Roland T. Gunner
Roland T. Gunner (@freecompanier)
1 month ago
Reply to  2gats

Let the Nation be awash in hot, smoking brass.

nrringlee
nrringlee (@nrringlee)
1 month ago

Our Constitutional Republic was crafted for a moral people. A faithful people. The progressives and now the Progressive New Left have destroyed that in our culture and in our politics. We live with the consequences.

Henry Bowman
Henry Bowman (@henry_bowman)
1 month ago

Let’s not forget Psalm 144:1 and Psalm 82:3-4

Militia Psalms 144.1 png.png
Mack
Mack (@mackhh)
1 month ago

Basically, the Framers used the phrase rights privileges and immunities.

As in Article IV, Section 2:

“the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

That is because rights are granted exclusively by the Creator and is short for Natural Rights. Only God can revoke such a right. The state has no authority to revoke such a right, that would be an infringement.

A state that grants a privileges may revoke it later.