Friday, August 13, 2010

You can’t do that in a Constitutionally Limited Republic

In a recent decision, the Supreme Court ruled that a community can’t ban the possession of guns. It is a right that is not only safe guarded specifically in the Second Amendment of the Constitution, it is a right that is guaranteed by the Nine Amendment.

That's right, the Ninth amendment. Even if there wasn’t a Second Amendment, the Ninth states that just because the document listed some of the rights that people have (the Bill of Rights), doesn’t mean it is all the rights that are “retained by the people.”

An argument that could be applied is that if the voters of the community decide they don’t want anyone owning a gun, even for a very good reason, then the government should not have the right to trample on the rights of the voters by declaring the law unconstitutional. That would be absolutely true if we lived in Greece 2,500 years ago. At that time, the form of government was a straight forward democracy. In a democracy, the majority rules absolutely. If one more voter supported the banning of guns than the other side, there would be no guns. And, more importantly, the Supreme Court would have nothing to decided, the voters have spoken.

But, we live in a constitutionally limited republic. The difference from a straight forward democracy is that the majority does get to make the rules but they can’t make rules that violate the rights of the minority without good reason.

In California, Chief U.S. District Judge Vaughn Walker ruled that the ban on gay marriage passed by the voters of California is unconstitutional. Charles J. Cooper, the lead counsel defending the ban, said, “The decision whether to redefine the institution of marriage is for the people themselves to make, not a single district court judge…” (1) The attorney seems to believe we are living in a democracy and not a republic.

As stated above, something can't be banned just because a majority of voters support it. In this case, the rights of people who would like to marry, the minority, would be violated. In a constitutionally limited republic, the government can not allow the rights of the minority to be violated without good reason.

The U. S. District Judge made the best ruling possible in the case of marriage.

(1) http://www.theoaklandpress.com/articles/2010/08/13/news/cops_and_courts/doc4c645dd9dfda6976950235.txt

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