Law, Justice, Righteousness, and the Constitution

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I am a life member of the NRA. Every month I receive the NRA periodical “American Rifleman”. Every issue contains an article by Wayne Lapierre and every one of his articles invariably contains the words “law-abiding citizen”.

The argument is always that law-abiding citizens are entitled to owning and carrying firearms because they do not constitute a danger or threat to other citizens, as potential criminals, or to the government, as potential insurgents. I often wondered what we, the law-abiding citizens, would do, if the laws were no longer just. What if the government made a law that ruled that citizens may no longer own and carry firearms? Since gun owners are law-abiding citizens, would we then all abide by such gun-prohibiting law and surrender our firearms to the government like the British and the Australians did?

The Nazis inherited the 1928 German Gun Control Act, which placed serious restrictions on private gun ownership. Hitler’s 1938 Gun Law changed that generally prohibitive situation to banning Jews and other “non-Aryan” groups of the German population from all gun ownership and even from working in the firearms industry, while at the same time easing restrictions for groups of the population that were friendly to the Nazis like e.g. the German hunters. Goering became the “Reichsjägermeister“ (Imperial Hunter Master) and German hunters were definitely pro-Nazi. I can testify to this because after the war I went through a German hunter education course and I had ample opportunity to read the pro-Nazi graffiti in the bullet-catch areas of the shooting ranges on which I practiced.

Clearly, Hitler’s gun law completely disarmed his adversaries but facilitated access to firearms for his supporters. What if similar gun laws were enacted in the USA? For example, total gun prohibition for white males and/or members of conservative organizations such as the Republican Party, the Heritage Foundation, or Judicial Watch, but no such prohibitions for members of BLM, Antifa, or the Black Panthers. Would you abide by such laws, as did the Germans? If we did, most of us would have to give up our guns. If we did not, we would no longer be law-abiding citizens and the government could say to Mr. Lapierre: “What are you babbling about law-abiding? They do not abide and, based on your own logic, those who do not abide by the law, should not have guns, right?”

The weakness of the “law-abiding” citizen argument is obviously that laws are not always just. We have had our share of unjust laws in the USA. Certainly, the so-called Jim-Crow-Laws in the post-Civil-War South were blatantly unjust. The entire Patriot Act could be considered unjust. Typically, what makes a law unjust is that it enhances the power of those who are already powerful or tramples on powerless minorities or that it legalizes the oppression of one group by another group. Nazi Germany had many such laws.

During the Nuremberg Trial against Nazi military leaders, the American tribunal accused German defendants of having committed atrocities and having performed acts that violated the Hague Convention on Land War. The perfectly plausible defense of the German officers was: “We were under a “Command Emergency” (Befehlsnotstand). We swore allegiance to Adolf Hitler as our Supreme Commander, and we followed the orders we were given.” One SS-Officer was asked by an American prosecutor about his opinion about an order that demanded extreme brutality. He replied: “I have no opinions. I obey orders.” And Goering asked back: “How would you like it if your American soldiers were to debate and question and not follow the orders they were given by their military commanders?” Needless to say, that any German soldier or officer who failed to follow orders given by his superior officer would have been shot on the spot.

My wife’s sister in law had an uncle who became an attorney during the rise of the Nazi movement. His Name was Kurt Jaager. Beginning 1930, “Uncle Kurt” was assigned to the Gestapo for “special tasks”. Beginning in 1940, he was a member of the NSDAP. His Membership number was 7464708. In 1941, he became Prosecutor at the Vienna Special Court. In 1943, he served as prosecutor at the People’s Court (Volksgerichtshof) in Berlin and was responsible for numerous death sentences. Even on April 20, 1945, just about 20 days prior to Germany’s unconditional surrender, he walked with his briefcase to the Brandenburg Prison in Berlin, with the city burning and Russians all over the place, to personally order and attend 28 executions of political prisoners. After the war, Jaager, who drew a German pension as a retired judge, was asked by a journalist why he did this? His answer was: “I just served the law.” (“Ich habe nur dem Recht gedient.”)

This goes to show that laws are not always just and that abiding by the laws or serving them is not always righteous, i.e. morally defensible. When laws are unjust, righteous people have the moral obligation not to abide by them and not to serve them.

Recently, the New York Times published an OP-ED by law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale arguing that the US Constitution is “broken” and “should not be reclaimed”. They reject the fact that the US Constitution is “old”, a “dead end” and lament that it does not reflect our present reality adequately.

I beg to differ. A Constitution is a basic law, i.e. it constitutes the foundation for all laws and regulations enacted by a society. It is the benchmark of their adequacy respectively inadequacy and it must therefore be of a more permanent and less transient nature than laws and regulations based on it. Therefore, a constitution must be written in rather general terms and enshrine basic guidelines and ideas rather than regulate issues in detail.

To further ensure that laws made by the legislators are in sync with the principles and core values laid down in the Constitution we have a Supreme Court. Plus, our Constitution is not complete rigid and unchangeable. There are rules in the Constitution for how to change it and it has been changed 27 times since March 4, 1789 – almost once every 10 years.

We can have a debate about whether or not and if so to what extend the core values on which the Constitution is itself founded have changed or perhaps more correctly – have been deliberately changed to undermine the Constitution.

Obviously, the authors of our Constitution believed in these core values or basic principles, which they enshrined in their basic law:

  1. People have certain God-given rights, among them the right to live free and to improve their lives as much as possible.
  2. Government has only one legitimate task: to protect these God-given rights.
  3. Government is only legitimized through the consent of the governed.
  4. Power tends to corrupt those who wield it and must therefore be restricted. This is accomplished by splitting it up between the Legislative, Judicative and Executive branches of government and by dividing decision-making power between the central government, the states, and the citizens.
  5. The power of all government agencies should be minimized as much as possible and the liberties of the citizens should be maximized as much as possible.

The authors of the Constitution had something Doerfler and Moyn lack: wisdom and distrust in human ability to wield power responsibly.

It is plain to see that the overarching value of the American Constitution was and is liberty. Liberty is by necessity risk, insecurity, inequality, and inequity. Liberty is dangerous. It allows the individual to fully develop his or her talents and capabilities and it invites competition, which creates inequity. We have a statue of Liberty in the Harbor of New York and not a Statue of Equity and Security.

In opposition to this central value of liberty, so-called “progressive” or “liberal” teachers and professors like Mr. Doerfler and Mr. Moyn have “educated” several generations of young Americans to value equity and security more than liberty. Our Constitution was designed for a type of citizen who wants to be free, is willing to carry their own weight, and is willing and capable to compete in a free market economy.

Doerfler and Moyn are right in their claim that this type of Constitution does not jibe with the core values and life expectations of the new generation of citizens they have created. This new American is represented by two seemingly opposite types of humans: the snowflakes who are deeply afraid of any challenge to their timid world view and need protection even against critical speech, and the bully type who responds to any opposing view or attitude with rioting and violent action against persons and objects.

This new American has been brainwashed by our educational institutions to believe that (s)he is entitled to being taken care of by others from the cradle to the casket. They have been told that they “deserve” free education, free housing, free food, free clothing, free phones, free everything just because they are there. The notion that in fact nothing is ever “free” and that somebody must always pay or work for what others do not pay or work for never seems to cross the minds of these folks.

Despite of what Doerfler, Moyn, and our socialist mainstream media are suggesting, I do not believe that most Americans have already given up on liberty. I base my assessment on my daily polls talking with people from all walks of life at gas stations, in food stores, at the drug store, in hardware shops, or in restaurants. But most people are also not revolutionaries. They love their families, their peaceful lives, their homes, their grill parties in the back yard, their boat trips. Not everybody is a Patrick Henry. But I can see the day come when liberal policies will have made this peaceful life impossible and average citizens will have to consider that not resisting will surely deliver them into government servitude, while resisting may give them a fighting chance to remain free.

While radicals push for rapid change, the Constitution slows them down. It prevents radical, fast, inconsiderate, counterproductive change that will, in the end, result in the opposite of what its promotors intended. Here is how this works:

Socialists and Communists preach equality, equity, and 100% social security. Liberty to them is only unwanted risk and insecurity. Since inequity comes from inequality and since inequality is a natural trait in humans and even in animals, they must force people to be equal so as to achieve social and economic equity. To force unequal people to behave like they were equal requires coercion. Unequalistic behavior must be punished. Competition must be made impossible. Excellence must be subdued. Performance must be discouraged. Those who do not conform must be “corrected” (“reprogrammed” as AOC calls it) in re-education camps. Uncorrectable individuals must be declared insane and locked up in mental institutions. Since all means of production have been collectivized, the ruling elites must produce everything through a centrally controlled planned economy system, the focus of which is on environmental sustainability, not on satisfying consumer needs. It will be based on 5 – 10-year plans. Since the planners cannot accurately anticipate what people want and need in 10 years and how technology will develop, their system will constantly produce the wrong stuff in the wrong quantities. Hence, they must not only control what the economy may produce, but also what consumers may consume. This turns any centrally planned economy inevitably into a system of bureaucratic administration of the lack of almost everything for almost everybody except for the privileged all-powerful elites – as it indeed happened in the old Soviet Union and the German Communist state, the DDR. Out the window goes your equity.

Since central planning of production and consumption makes the elitist government all-powerful, it has total control of every facet of the lives of the people. Needless to say, that a police state is very safe – at least for the ruling class and those who quietly succumb and conform to its rules. One of the key arguments of old Nazis in Germany in defense of the Hitler regime was: “There was no crime. Everybody could leave their house door open.” One wonders if those who are demanding more government-guaranteed security and safety today, would be happy with such a social safety guaranteed by a Gestapo or GPU (FBI).

Until we replace the Statue of Liberty with a Statue of Security and Equity, I will continue to assume that a significant majority of Americans prefer liberty and private property of the means of production over equity and economic totalitarianism. Our Constitution can change, has changed, and will continue to change. However, we should be careful not to change it too fast or too radically because it is the foundation of our society, our laws, and our value system. If you destroy the foundation of a building, the building will collapse.

If Professor Doerfler of Harvard and Professor Moyn of Yale are truly advocating for the complete destruction of our society and the complete replacement of our value system with an opposite one, I guess they would also not mind a full-fledged civil war. Because it will ensure the same result.

Webster’s defines ‘justice’ as a combination of ‘fairness’, ‘decency’, and ‘righteousness’. All of these concepts are relative and open to interpretation. In the end, our Constitution needs to reflect what a majority of Americans consider just, fair, decent, and righteous. To get to a new consensus about our commonly shared basic values will take a lot of time and open debate. Censorship, police state mentality, brainwashing, and rioting are not part of this debate. Radical rejection of our Constitution won’t do much good either. If you think the foundation of your house needs to be replaced, you’d better go about it in a very careful and circumspect manner – lest you have no house anymore.

Me, I’d rather live in dangerous liberty than in secure servitude. How about you?

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