The second amendment and the fourteenth amendment

This is an interesting time to be living in the state of New Jersey. While almost all of our Constitutional rights are being eroded at the state and federal level, some rights are actually expanding. Recently there have been a spate of cases involving the second amendment which have gone to higher courts.

The 9th circuit court of appeals ruled that San Diego county's standard of "good cause" for carrying a gun was unconstitutional. While this is not in New Jersey, it is promising in that New Jersey's standard for carrying a gun ("justifiable need") is even more restrictive than California's. In local news, New Jersey's restrictive carry laws are being challenged at the Supreme Court level by the Drake case as well as the Pantano brief.

However, given the slow and bumpy progress on restoration of our second amendment rights, Someone asked the question, on facebook, whether the courts' eagerness to step in and immediately crush state laws on marriage (such as in Virginia, Kentucky and California) can be used to advantage for the fight to get courts to recognize actual rights enshrined in the Constitution (specifically the right to keep and bear arms).

Of course, someone had to inject some pro-homosexual "declaration of rights" and I responded with a post that was immediately declared "the stupidest thing" and I was labeled an "asshole." Not the first time, nor the last. But Facebook isn't a good place for making a reasoned argument (a good place for argument, bad place for reason) and so I decided instead of continuing the conversation there I'd put it here where I can write a longer piece (and perhaps be called new names).

And so, "resolved: same sex 'marriage' is not a 'right' in the sense of the second amendment."

First off, let's look at the second amendment [emphasis mine].

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.

The Supreme Court has ruled that this is a right of every individual. The state can have a legitimate interest in regulating it, but cannot abolish the right itself. Thus states are free to enact laws that restrict the sale of guns (to minors, for instance) and to ban certain specific models of guns, but not to make arbitrary or sweeping restrictions (such as a ban on all handguns).

Now let's look at section one of the fourteenth amendment (aka the equal protection clause) that allegedly makes marriage a right [emphasis mine].

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.

The fourteenth amendment was put in place after the civil war and the intention was that you could not make laws that restricted blacks but did not apply to whites. So the claim of same sex marriage supporters is that gays are denied equal protection under the marriage laws because they are not allowed to marry.

But that is clearly not the case. There is no law preventing homosexuals from marrying. They have the same privileges in respect to marriage as every other person, citizen or non-citizen, in the USA and are therefore already treated equally under the law. In fact, may homosexuals are married. The issue is not with the legality marriage, but with the redefinition of marriage.

So the questions to be asked are "what is marriage?" and "does government have a legitimate interest to regulate it?"

Traditional marriage supporters will tell you that marriage is a union of one man and one woman for the benefit of children, and the mutual benefit of the spouses. Same sex marriage supporters will tell you that marriage is a contract between two people who love each other. Both answers re true, but what do they imply in terms of society and government? Let's look at each definition as if it were the true one and examine the ramifications.

If marriage is a union of one man and one woman for the benefit of children and the mutual benefit of the spouses, we have the marital situation as it has existed for at least five thousand years. Civil laws restricting marriage date all the way back to Hammurabi (remember him?) Under this definition the state has a legitimate interest to regulate marriage, because society benefits when children are raised by a father and a mother rather than the state having to support single parent families or feed and house "feral" children. By giving married couples preferential benefits society assures that the next generation of citizens are cared for and educated. This also tends to decrease income disparity and protect women's rights.

If marriage is a contract between two people who love each other, we have a situation where the state regulates love. What interest does the state have in recording whether two people love each other? Is not that their own affair? The argument is often made that the state has an interest in inheritance rights. The inheritance rights of children today does not depend on the marital status of their parents, and why should the state care (other than recording it for tax purposes) about inheritance between two adults? Arguments about medical insurance are specious, since the state has never made a law saying that insurance companies couldn't offer insurance to policy holders' lovers.

So if marriage it truly just a contract two between people who love each other, it should be a matter of contract law, not a matter of civil rights. the government should stay out of the marriage issue altogether. And this is a position that some people take. It's a very libertarian position. But what are the implications of this?

If marriage is a civil right that government shouldn't regulate or restrict in any way, then it should not be restricted in any way. Anyone who wants to enter into this kind of contract should be allowed to do so. Siblings should be allowed to marry, and parents should be allowed to marry their children. There is no legal reason why this should not be allowed, provided the parties give consent. Likewise, married people should be allowed to marry, so polygamy and polyandry must be allowed. Again, there is no reason why more than two people can't be signatories of a contract. Likewise, legal entities such as businesses are capable of entering into contracts, so someone shoudl literally be able to marry their job.

"But Mike," you say "You're being ridiculous!" Am I? Show me a compelling legal argument why. The closest to anything I have seen is for someone to point out that the definition of a marriage is between two people. But it's not actually between two people, it's between one man and one woman. Saying it's between two people is already making an arbitrary expansion of the definition to fit a case you want to include. So who's to say others can't expand it to fit cases they want to include? What makes your definition stand the test of time, when no other one will?

But what about existing case law involving the fourteenth amendment. Wasn't it used to expand marriage to include interracial marriage? And isn't being gay just like being black?

Well, let's assume that being gay is like being black (although the jury is out on scientific evidence). The fourteenth amendment didn't give black people the right to marry. They were already married. And marriages between blacks were not considered inferior or different in any way from marriages between whites. What the court ruled was that interracial marriages were no less marriages because they people didn't like them. But it did not change the definition of marriage or couples. As I pointed out, homosexuals are free to marry other homosexuals. They are free to marry heterosexuals.

I could write so much more on the subject, had I the time, but I think what i have written is sufficient to show that same sex marriage does not fall under the umbrella of a civil right, and certainly not a basic right (like the right to bear arms). I'm open to discussion on the matter, but the only responses I have received was to be called names. I don't consider that to be a cogent argument.

Posted in: America,Constitution,gay marriage,Guns,law,natural law