Voters’ Prosecutorial Discretion and Moving Toward Insurrection


Facebook post from Ken Block got me thinking, last night.  Block simply asked where the line is for our right to bear arms under the Second Amendment, and it seemed to me there are basically two responses:

  1. The Second Amendment places no restrictions whatsoever.
  2. Some reasonable line (say military-grade weapons) may be imposed no matter what the Bill of Rights says.

Number 1 is certainly terrifying to contemplate with a little imagination.  Would anybody want school shooters with rocket launchers or a nuclear-armed Google?  But in its way, number 2 is even more disturbing, if taken literally, because it means that the Constitution is all but useless as a guarantor of our rights.

I think what we’re seeing with the debate over gun rights and gun control is that citizens use a sort of prosecutorial discretion when defending their rights.  Those who pay attention to the actions of government (particularly those who did so during the reign of Barack Obama) have come across instances of the government’s not enforcing some law on the grounds (or pretense) that they don’t have the resources to pursue every violation of the law and have a right to use their discretion to figure out what is worthy of pursuit.  If that means that an entire category of violation goes without prosecution, then the law essentially has no effect.

As citizens, we do something similar, even with our Constitutional rights.  If you ask me what rights the constitution recognizes with regard to weapons, I’ll say that there are no limits.  We can have any weapon, anywhere, because our right cannot be “infringed.”  To those who say the Founders could not have imagined modern weaponry, I respond that the Founders left us a means of amending our Constitution.

If, however, you ask me at what point I’d be willing to do more work to protect my right to bear arms than simply point out the plain language of the Bill of Rights, then the picture would be very different.  Something pretty close to current law is enough to keep from agitating on a particular side, and if enough people agree, then current law stands.

Therein lies the problem that the gun debate exposes better, perhaps, than any other.  The political Left recognizes that the Constitution can essentially be amended without anybody’s recognizing that it has been.  Get some activist judges to follow a concept of a “living Constitution,” and the threshold for citizens to begin defending their rights becomes higher, because it now involves changing the nature of the courts, not just appealing to them.

In general, we’ve become too lazy about defending our rights and are therefore allowing government activists to make too many assumptions about what our rights are or aren’t.  I’ll state it succinctly: American citizens have a right to own and carry any weapons we damn well choose. There is a level of control, however, that won’t raise enough opposition to block enforcement, but that doesn’t change the nature of our rights, and we’re reaching the point that a failure to acknowledge is undermining our Constitutional order.

Having enjoyed too much success with their “living constitution” approach, the Left is now asserting a right to force people to follow new laws by simply convincing a judge or winning a narrow majority in a legislature, or even pushing through an executive order.   Apart from being dictatorial, this is extremely dangerous.  The entire point of our Constitutional order is to keep us from lording it over each other and therefore sparking violence.

The notion that a narrow majority or a cultural elite can erase a Constitutional right with merely a feeling about what’s reasonable is becoming too obvious to fall under prosecutorial discretion.  That notion, broadly written, is largely what produced the surreal election of Donald Trump to the presidency, and putting down that electoral insurrection will only push people toward more extreme forms.

  • Christopher C. Reed

    “the surreal election of Donald Trump” I never really felt what Alice felt in “Through the Looking Glass” until that morning. Still have to pinch myself…Is it just possible the Red Queen is not merely dead, but really, truly, clearly dead? OH frabjous day…

    “putting down that electoral insurrection will only push people toward more extreme forms”. Golden Dawn? Lega Nord? Revolution of the form is for those excitable continentals. Russians, French, always decapitating their kings….tsk, tsk. Not for the Anglosphere, thank you. It’s just not done…bad form, you know.. We prefer revolution within the form, though we probably have to thank some obscure Prussian for the terminology.

    The insurrection will come creeping on the feet of insolvency, county by county declining to comply with unfunded mandates…for fiscal reasons, of course. Pity.

    I find your arguments, mon ami, difficult to follow, for reasons I suspect more syntactical than dialectical.