June 30, 2015

The Right to Marry and the Right to Carry


The Civil War had just ended. The south had been reduced to rubble, the slaves were freed, the prisoners returned home, but now came the problem of how to insure that the legal ramifications of this war would remain in place as well as the problem of what to do about the debt accrued by the Confederacy over the course of the war. If the now united nation refused to pay the southern debt, would that also force them to default on all war debt? There were many voices both in the general public and in the body politic that were of the opinion all debt accrued during the war, both public and private, should be completely removed from the books so that the entire country could start over again from zero. Naturally, both domestic and foreign banks were not at all happy with this idea of debt forgiveness, not to mention the millions of private citizens who held war bonds from the United States, the Confederate States, or both!

The newly freed slaves were another matter. At one point before the war Congress had debated the idea of paying slaveholders for their slaves. That idea was no longer an issue, but the same people who had put it forward now had another idea: force the former Confederate states to pay each freed head of household "reparations" in the form of land (40 acres) and a mule to work that land. If not the former Confederate states, then perhaps the former slaveholders themselves? No laws were ever passed by Congress or state legislatures granting reparation to the former slaves, however, the debate over reparations sparked yet another debate: were the former slaves even citizens? Many of the former Confederate states refused to acknowledge that the freed slaves were Americans. An idea that began gaining popularity in both the north and south was the idea that the former slaves should be expatriated back to their "home" countries in Africa, despite the fact that the vast majority of slaves were not from Africa at all, but had been born into slavery in the United States.

The Fourteenth Amendment became the final solution to all of these debates after it was passed by Congress in 1866 and finally ratified in 1868. The section most important to today's thoughts is Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This section has been quoted in dozens of Supreme Court decisions, including the recent decision to redefine "marriage" to include same-sex couples:

The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.
...and a few paragraphs later adds:
The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet each may be instructive as to the meaning and reach of the other.
...but this court decision not stop there. It went on to provide both philosophical and legal justifications for redefining "marriage" to include same-sex partners:
The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry.
...and this led into a very surprising conclusion regarding who can demand an inherent right be recognized regardless of the existence of a law seeking to restrict that right:
While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.
...now maybe I'm jumping the gun a little bit, but all this talk of "an inherent right" keeps reminding me of the Second Amendment:
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Does this mean that since the State of Ohio has granted me permission to carry a loaded firearm concealed on my person at all times and in all places neither restricted by law nor marked by a "No Concealed Carry Allowed" sign prominently displayed at the entrance, I can now exercise this inherent right in all fifty states?

Bearing Arms: SCOTUS ruling on same-sex marriage mandates nationwide concealed carry reciprocity
Allen West: YEEhaw! This side-effect of the gay marriage ruling will make liberals EXPLODE
Breitbart: Same sex ruling sets up national reciprocity for concealed carry