Alright y'all, welcome back to the show, it's Anti-War Radio, I'm Scott Horton.
And I'm stoked because I get to talk to my friend Jacob Hornberger, he is the founder and the president of the Future of Freedom Foundation, their web address is fff.org.
And you can not only read what Jacob writes there, but you can also read Sheldon Richman, Bart Frazier, Anthony Gregory, Jim Bovard, Andy Worthington, Richard Ebling, Wendy McIlroy, and other excellent libertarian writers like that.
Welcome back to the show, Jacob, how are you doing?
Oh, fine, thank you, Scott, honored to be back.
Well, I appreciate you joining us today.
So, the Supreme Court ruled something about guns, teach me.
Yeah, it's a great decision, and good news for libertarians and everybody else who believes in freedom.
They held that the Second Amendment, right, that guarantees the right to keep and bear arms applies to the states as a result of the incorporation doctrine of the 14th Amendment.
The other side, of course, is claiming that the states should be free, the state governments to do whatever they want with respect to banning guns and so forth, and the Supreme Court overruled that position and said, nope, the 14th Amendment applies to the states, and it incorporates the Second Amendment just like it incorporates the First and the Fourth and the Fifth and the Sixth.
Now, isn't it interesting that the 14th Amendment has been around all this time, and this is the first time, I mean, almost all the rest of the Bill of Rights, maybe, well, I guess not the 10th, but certainly other parts of the Bill of Rights have been the First Amendment, the Eighth Amendment, the Fifth and Sixth Amendments, of course, have been incorporated for use by the Justice Department against the state governments, right, and this is the first time that the Second Amendment, that's basically what's happening here, right, is the federal government is saying that the Bill of Rights bans the states from violating the U.S. Bill of Rights, too.
Right, the 14th Amendment does.
That's right, and they've previously, the movement started in the late 1800s of this notion that the Due Process Clause of the 14th Amendment incorporates certain fundamental basic rights that are enumerated and guaranteed in the first eight amendments of the Constitution, and so gradually over the decades into the 20th century, they started incorporating the right to counsel, freedom of speech, freedom of religion, and so forth, and I think the only ones that are left are the Third Amendment, the quartering of troops, and I think maybe civil jury trials and civil cases and grand jury indictments, maybe, but this was the first time that they were squarely faced with this issue of the Second Amendment.
Does the 14th Amendment incorporate the Second Amendment, just like the other rights?
But it's a close decision.
It's a five-to-four decision.
All right, now, I bet it's probably interesting who wrote what, because I know there were a bunch of concurring opinions and, I guess, two different dissents.
Is that right?
Yeah, I think so.
I'm not real clear.
I haven't read all the dissents carefully, but Alito wrote the majority opinion along with, I think he was joined by Roberts, Scalia, Kennedy, and Thomas, and Thomas had a separate concurring opinion, which was kind of interesting.
He brought this argument that the petitioners were raising about the privileges and immunities clause of the 14th Amendment, where they were trying to get that expanded, where it had been severely limited as far back in the late 1800s by the slaughterhouse cases.
But Scalia, I mean, Thomas was the only one that bought into that position, and instead they relied on the incorporation doctrine of the due process clause.
And then the dissent was written by Stevens, and that dissenting opinion was joined by Breyer, and Ginsburg, and Sotomayor, and somebody else.
All right.
Now, tell us about this debate between the privileges and immunities clause and the due process clause.
Well, you know, as you know, in the 14th Amendment, it used a clause called the privileges and immunities of citizenship.
And then it also said that no state shall deprive any person of due process of law.
So a case came up in the late 1800s called the slaughterhouse cases that involved a mercantilist law that the state of Louisiana had passed that required all slaughterhouses in the state of Louisiana to close down, and all the butchers had to use the monopoly state-granted slaughterhouse.
And so the butchers that were being put out – the slaughterhouses that were being put out of business by this law – filed a lawsuit against the state of Louisiana that reached the Supreme Court that said, look, they're depriving us of a fundamental right, our right to sustain our lives.
This is a basic right.
We have a right to engage in enterprise, open our – and run our own slaughterhouses.
And they were relying on the 14th Amendment and saying that this is a privilege and immunity of citizenship, that it's basic to be an American citizen to be able to sustain your life through labor and operate your own business.
And also the idea that they were being deprived a fundamental right under the due process clause.
Well, the court severely limited the privileges and immunities clause.
They just said no, that this applies to certain rights that are necessarily connected to the federal government, like maybe the right to vote or things like that.
So they severely limited it.
And they had a broader interpretation of the due process clause, but nonetheless they denied that particular right as fundamental and protected by the 14th Amendment.
So the monopoly slaughterhouse ends up winning the case.
Well, when this gun rights case came along, the petitioners saw it as an opportunity to overrule essentially the slaughterhouse's severe limited interpretation of privileges and immunities.
They made the argument that, look, this is a right that is fundamental to American citizenship.
And they went back and talked in terms of what had happened with blacks after the Civil War and how the Southern racists were disarming them and depriving them of an ability to protect themselves, not just from the Ku Klux Klan and the private white bigots, but also from state officials that were just indiscriminately killing blacks.
Well, the Supreme Court just said, no, we're not going to revisit slaughterhouse.
We're not going to expand the privileges and immunities.
And by the way, we can easily deal with this case under the due process clause.
Now, but you say that it was Thomas that tried to take up that privileges and immunities thing?
Yeah, that Thomas has an extensive opinion.
I mean, almost as long, I think, if not longer than the majority opinion, where he argues that the privileges and immunity clause should be expanded.
I haven't read his analysis carefully, but I'm willing to bet that he's saying that slaughterhouse was wrongly decided in that sense, that the privileges and immunities clause really does mean something substantive, because for all practical purposes, and critics have pointed this out, that the Supreme Court effectively just read the privileges and immunities clause out of the Constitution, out of the 14th Amendment, because for all practical purposes, it has really served no useful function at all.
And so I think what Thomas is saying is that's not the intent of the people that crafted that clause.
They meant it for something to be substantive and involving that when you're an American, you have certain fundamental rights and privileges for being an American, and one of these is the right to keep and bear arms.
So that it's, in other words, it's rooted in being an American.
It's not rooted in the Supreme Court prohibiting a state from doing this.
Well, and that is a very important precedent.
But now, so if I think back about some of the incorporation cases, you can see where there have been clear benefits to individual liberties, such as the Miranda decision, or I forgot the name of the decision, but the one that enforces the exclusionary rule to illegally seized evidence and that kind of thing.
They also said, oh yeah, we're here to protect your First Amendment right, but you can't yell fire in a crowded theater.
And oh yeah, and in fact, even in this case, oh yeah, you have the right to bear arms.
Not that we're saying that all the local and state gun laws are unconstitutional, just this one.
And so it sort of seems like, yay, the Supreme Court intervenes, but what they really do is give the states carte blanche for what you and I both know is beyond their authority.
Well, not yet.
I think it's too soon to reach a judgment on that, because this is actually, as you know, a follow-up to the Heller decision, where the District of Columbia had a total gun, handgun ban within the district, and they said, no, the federal government, which is essentially D.C., cannot do this.
The right to keep and bear arms is a fundamental right.
Well, what they're saying in these two decisions is, you cannot have just an absolute ban on gun ownership, including handguns here.
It's just, you're not allowed to do that.
It's telling that to the states and to the federal government.
But what they're saying is, look, we're not saying that all restrictions on guns are unreasonable.
We're not making a decision on that.
I mean, that was not an issue before them.
They're saying there might be some restrictions that are reasonable.
There might not be some.
Some might be enacted that are not reasonable.
So all they're saying is, we're not going to make a blanket decision on that right now.
We'll wait until the case comes up.
All right, everybody.
We're talking with Jacob Hornberger.
He's the founder and the president of the Future Freedom Foundation, FFF.org.
And we'll be back after the news.
All right, welcome back to the show.
Anti-war radio.
I'm Scott Horton.
And I'm talking with Jacob Hornberger.
He's the founder and the president of the Future Freedom Foundation at FFF.org.
And we're talking about the McDonald decision of the U.S. Supreme Court on the, in the Chicago gun case.
And Jacob, the Fox News lady, just said at the top of the hour, which may mean that the truth is the exact opposite, I don't know, set me straight, that they didn't even strike down the freaking law in question here.
Well, it's not real clear what they did, what they did.
They ordinarily would have just reversed the case.
And what they did was they reversed and remanded for further rulings in accordance with their opinion.
So there's no question that they're striking down the law.
All they're doing, though, is they're sending it back to the trial court saying, here's our opinion.
Issue your new rulings accordingly.
And so they're just simply reversing and rendering.
I'm not really clear why they did that.
But there's still no question but that that law has been stricken down.
The total handgun ban law in Chicago has been struck down.
I see.
So if the court said, oh, yeah, we're taking the Supreme Court's opinion into consideration, but we still want to uphold this law, they'd just take it right back to the Supreme Court and they would say, no, we already told you.
Right.
They will not do that.
I mean, they cannot do that.
Once the Supreme Court says that this thing is out, that's it.
My hunch is, and I'm not sure of this, that there may have been mixed up some restrictions that were part of the case, not just the handgun ban, but maybe a registration requirement, whether it was reasonable or not and so forth.
And the court said, look, we're not going to make an opinion on any kind of restrictions here as to what's reasonable and not reasonable.
So my hunch is that the trial court upheld the constitutionality of the ban and never had to reach any ruling on restrictions there.
And I think what's going to happen now is they're going to have to go back and determine whether some restrictions are available, assuming that the ban is totally out, which it is.
I mean, the ban is totally out by now.
And so now I think the court is going to have to rule accordingly.
All right.
Now, on the larger issue of gun rights, I talked with Ron Paul, I think it was the beginning of last week, and he had a great line that he told the Washington Post back when he was running for president in 2008 where they were asking him about how he wants to dismantle the empire.
And he said, oh, come on, we could defend this country with a couple of good submarines.
And I asked him about that, and I said, that was a great line.
You really think that?
And he said, oh, yeah, of course.
And, in fact, we don't need a standing army at all.
The militia of the United States, which I guess means you and me, Jacob, ought to be perfectly capable of defending our own selves.
Well, that's exactly the way the Founding Fathers, that was the basis on which this nation was founded.
As you know, the militia wasn't the National Guard, which the status claim.
The militia really meant the population, the people, that people were free to own guns or not own guns.
That was their choice.
But the idea was that the concept of the citizen-soldier, that, look, if this country is invaded, you can rely on well-trained, self-trained citizen-soldiers to rally to the defense of their country.
In fact, those are the fiercest fighters, the ones that are fighting to protect their families and their freedom and so forth.
And what does a standing army accomplish for us?
All it's done is establish a foreign empire that has killed a lot of people, maimed a lot of people overseas, destroyed countries, and caused this perpetual terrorist blowback threat that now puts us in perpetual warfare, which gives the government the ability to take away our freedoms, which is exactly what's happened.
This is what the framers warned us would happen with a large standing army.
Do you think that either of these two Supreme Court decisions on guns recently, either Heller or McDonald, could somehow be interpreted to mean that, no, the people of the country do not have the right to come before the state and all that kind of thing, in this malicious sense that you're talking about?
It's just an individual right to protect your bedroom from burglars and that kind of thing?
Well, this latest decision goes off on that, because they stressed a lot of what happened with respect to Chicago people and how they were unable to defend themselves against burglars and how the murder rate has soared since this gun ban went into effect.
And so the entire opinion revolves around self-defense against other violent people in the private sector.
The Heller decision, though, made it very clear that the core basis of the right to keep and bear arms, and why it was protected by the Second Amendment, is to protect yourself against tyranny and the prospect of tyranny.
And the best decision on that I think I've ever read in a judicial decision is Judge Kaczynski's opinion in Silvera v.
Lockyer.
I mean, that is a fantastic opinion, where he says, look, this is the doomsday protection, that everybody knows that the United States government could never get that bad.
But in the unlikely event that it ever really did get that bad, that those people that don't own guns are going to rue the day.
And that's what happened, for example, in Nazi Germany, is that they didn't have the right to keep and bear arms.
So it's a mistake that he argued can only be made once, that if you ban all the guns and then you do get this tyrannical government, you're out of luck, you're up the creek.
And so it's the ultimate insurance policy against tyranny.
And they did point that out in the Heller case, which I think was very important.
Well, and I'll go ahead and point out that King George III never claimed the right to murder any American citizen he wanted.
I mean, on a battlefield, sure.
But Obama's claimed more power even than the Bush guys ever did.
But before I let you comment about that, I want to add one more thing for you to comment on, too, which was a friend of mine, her son is a firefighter.
And when HBO did the miniseries about John Adams, he was talking about it with his firefighter friends.
And they were saying, dude, I don't know.
Those founding fathers, they were pretty extreme.
That's pretty radical stuff.
I just can't.
And they're backing away from the idea that this is an honorable legacy, that these men would overthrow the British king and be as radical as they were in their behavior and their ideology, too, I guess, in order to do so.
Well, they're right.
I mean, the founding fathers were very radical.
I mean, it was incredible what they brought into existence.
And the Declaration of Independence is probably the most radical political document ever written that says that man has been endowed with fundamental rights that preexist government, that government's our servant, and it exists for the purpose of protecting these rights, and if it starts destroying them, it's the right of the people to alter or abolish government.
I mean, it's hard to get more radical and more extreme than that.
And yet that's the philosophy on which our government was founded.
And all these rights, freedom of speech, freedom of religion, and understanding that the government is the biggest threat against these rights and our freedoms and so forth, which is really what the Bill of Rights is saying, that this was radical to the extreme, and yet it's also the inspiration for mankind.
And it's so funny to me, though, that in a country where we're all so brainwashed with the nationalism of even the founding era, because it's really what we all have in common is the Declaration of Independence, our agreement that everybody gets a fair trial, that kind of thing, that at the same time, that revolutionary legacy scares the hell out of people.
Absolutely.
Well, this is where the government's been so effective in producing submissive, compliant, good little citizens that are dependent on the welfare state.
They look at the federal government as their daddy, as their god, as their provider, and so forth.
And so the irony is that as you've built up this massive big government, you end up with a very small, frightened, weak citizenry.
And it should be the other way around.
So you've got a couple of terrorist threats arising from US foreign policy, and a lot of people are ready to say, oh, throw away our freedoms.
We don't care what you have to do.
Just keep us safe.
Well, that's not the way our ancestors looked at it.
They said, nothing's more important than our freedom, and you're not going to take it away, not even for the pretense of safety.
And also because they understood that when you end up making that trade, you lose both your freedom and your safety.
And here we are.
We have the president claiming the ultimate power to murder American citizens on anywhere on the planet that is the battlefield, or the battlefield that is the planet Earth, I guess is maybe the better way to put it, and to protect us from Anwar al-Awlaki and a couple of guys from Minneapolis who went to go fight in Somalia in a covert war that you and I both know doesn't even really exist.
Jacob?
Well, and also to protect us, supposedly, from people that are motivated by the fact of US foreign policy.
And what we libertarians have argued from the beginning, if you dismantle this empire, you eliminate the threat that the government then uses to go and do all these horrible things.
That's why we've got to get to the root of this problem, and that's US foreign policy.
All right, everybody.
If you want to be smart, go to FFF.org and read everything there.
It'll take you about 20 years.
Thank you, Jacob.
Hey, thank you, Scott.
