Wednesday, March 19, 2008

Never mind what "the law" says -- it's about rights

"Justices Agree on Right to Own Guns" proclaims the headline.

Say this in your best Captain Kirk voice: Riiiight.

If you read the article, you'll see that nothing has been decided yet. There have been no rulings from those nine self-anointed masters of the law. They can claim that they "agree" on "gun rights" all the live long day, and all it will take is five to write an "opinion" declaring that "D.C.'s ban is a reasonable limitation." Your rights, according to the law.

My friend Billy Beck was already pessimistic, "I believe that this will not go well." I share the sentiment.

The problem is like how the old song goes: "I fought the law, and the law won." When rights fight the law, sadly, the law usually wins.

In just over three years (I missed my own blog's anniversary!), my blog is a fossil record of the evolution of my economics, politics and philosophy. I've learned that even something like the Constitution isn't as important as what is right. Compare here and here with what I'm about to say. What's spelled out in the Bill of Rights, as nice and good as they may sound, is not as important as the absolute fact of people's God-given rights, which existed a priori to men chiseling laws in stone, applying ink to parchment, or even realizing that they had rights. But mankind has grown so dependent on law that whether you're in Russia, China, the Philippines, Burma, Saudi Arabia, Zimbabwe, Venezuela, Mexico, the United States, nearly every nation on this planet, people are accustomed to following, no, not just that, but obeying "the law."

There are only two problems with that. First is that the law can be (and historically often is) "interpreted" however a ruling authority desires, no matter how well-intentioned, benevolent or foresighted the law's framers were. I will get to the second later on.

Coming up on three years later, who -- besides Billy -- remembers the horrific Kelo decision? Still a lot of people, you say? Granted. But how many of them simply accept what happened? And how many are still angry enough that, as I put it, "five of the nine justices...finished killing the Bill of Rights by effectively declaring that private property rights exist only insofar as government permits"? Who is livid that Kelo and others, for fighting for their rights to keep their homes, were charged back rent?

It hasn't quite been two weeks since the California Supreme Court ruled that homeschooling is illegal. But do you see the problem with the homeschooling advocates' methods? They tried to argue about the law, not what was right.
Michael Smith, president of the Home School Legal Defense Association (HSLDA), said in a March 3 statement that the organization "strongly disputes this interpretation of California law" and is studying the decision.
"But," you might say, "they'd lose if they argued about moral principles." So? They lost anyway! At least if they had argued that the law was wrong, they'd have lost while making a principled stand. They'd have made a point, instead of fighting a losing battle over what the law "means." The law was rendered simple by the court: children are the property of the state, to be educated according to the state's wishes and demands.

Aren't your rights too important to be left to others' interpretation?

The second problem is that laws are not inherently correct or just. Don Boudreaux is worth quoting over and over:
Just because words are written on paper and subjected to hocus-pocus beneath a soaring marble dome does not mean that these words are truly “law,” or even that the government officials who wrote and voted for them want them to be taken literally.
I don't expect many today remember, or even have heard of, Hiibel v. Nevada. The facts were never disputed: Hiibel and his daughter were both arrested over complete horseshit. It was eventually proved that there wasn't even enough to create "suspicion" of the supposed domestic violence, and the pigs arresting Hiibel had to admit (at least tacitly) that he had done nothing wrong. What was continued to be disputed was whether Hiibel was required by the law to give ID. Hiibel refused to submit to tyranny, and eventually the Supreme Court said he had to: "Papers please!" A week later, Hiibel's op-ed was published in the Los Angeles Times, with the very apropos title "He fought the law, and the law won." Exactly! Hiibel was right by any principle of true liberty, but he was wrong according to the law. People think the Fourth Amendment will protect them, but "the law" is meaningless when even the best-intentioned law can be perverted. Read again about the Kelo decision, and how the Fifth Amendment should have been invoked to stop eminent domain, not encourage it.

Conservatives have no right to be surprised that the law can be turned against people who have committed no crime. After all, they're the ones who cry loudest for "law and order," who insist "But it's the law and must be obeyed and enforced!" when it comes to illegal immigration, anti-abortion laws, laws that allow police to trample people's rights, "vice" crimes, sodomy, and anything else they don't like. Conservatism boasts plenty of morons like Mark Levin who are lawyers yet haven't the first clue as to what "the rule of law" means. Ironically their "But it's the law" stance disappears when it comes to gun control and things they don't like.

I usually don't talk too much about this. You see, I was much like Hilbel's daughter. Like her, I was once the victim of "peace officers" and their miserable lies. "Overzealousness" nothing -- they abused their authority, barged into our family home with no probable cause let alone a warrant, threatened my safety, . Like with Hilbel's daughter, the "domestic violence" charges against me were dismissed, because the alleged victim was not harmed and never wanted the charges pressed in the first place! Fortunately for me, I was not arrested, but I nearly was. Twice: first during the encounter, then later because the county DA failed to notify me to appear in court. This after the alleged victim personally told the DA to stop the nonsense of prosecuting a non-crime!

In the Hilbels' situation and mine, it didn't matter what was right, only that the law gave authority to government to override our rights. Law today involves so much, too much legal positivism. Legal positivism has been rightfully criticized by freedom-minded invididuals like Friedrich Hayek. Morally, "there can be no law without a legislative act," which effectively reduces law to permitting people to do certain things within what legislators allow. Practically, because law must define everything people can do, it's unnecessarily complex than the simpler "negative concept of liberty": "people are free to do what they want except," and as espoused by classic liberals like Frederic Bastiat, "except" means "except for what infringes on others' same rights." But most of all, legal positivism rests on a law's infallibility.

My friend Charlie has pointed out this of the Utah Code. the first is dangerous for the two, because it's wide open to interpretation. Even if you're interfering with a "peace officer" who is committing a crime (such as wrongly apprehending an innocent person), you've broken the law and can be punished. And this with this are bluntly evil, because of their circular logic. It's a crime not to reveal your identity to a police officer, and a police officer can stop and demand your ID etc. if he suspects you are committing or have committed a crime, so he could stop you if he suspects you won't reveal your ID. Such a combination makes Larry Hiibels out of all of us -- or as Ayn Rand warned,
There's no way to rule innocent men. The only power government has is the power to crack down on criminals. When there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.
As I've said elsewhere, good law ties down government, not people. Good law defends rights, and if it defines actions, it's only to define how government is to administer itself, not tell people how to live their lives. Bastiat taught us that "Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place." Rights are superior to law, because law is merely to defend rights.

O.J. Simpson's criminal trial resurrected the concept of "jury nullification" in modern America, but a completely flawed one. Jury nullification was the people's way of nullifying what they deemed was a bad law. But now court proceedings are legal positivism whereby a judge instructs jurors that they must decide according to the law, instead of leaving them free to decide according to what is right. Ask Laura Kriho, who by her conscience and view of the evidence wanted to acquit. Isn't law subservient to the people, or are the people subservient to the law? If the former, then the people have the right to ignore and/or overturn the law, no matter what the legislative, executive or judiciary branches can say. If the latter, then judges are well within their rights to hold jurors in contempt, as one did with Kriho.

We have dark times ahead; this country can only get worse before it gets better. Those of us who believe in liberty must fight based on the principles of what is right and just. We only entangle ourselves by focusing on "the law," whether it's arguing our own "interpretations" or seeking to pass/repeal laws. Doing so is only playing government's game, by government's rules, and even if we do win an occasional battle, it's only by technicality, and we'll eventually lose the war.

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