Dishonest Comparisons Between the Second Amendment and Government Funded Education

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Writing in the Atlantic, Aaron Tang, Professor of law at the University of California, creates a profoundly misleading comparison of the Second Amendment with a fabricated entitlement to an education.

Tang attempts to make the case that Second Amendment supporters and proponents of a theory the Constitution guarantees a right to an equally funded state education are rough equivalents. 

There are minimal similarities in the arguments: a basic right implies a level of supporting rights. You cannot have effective Second Amendment rights without access to ammunition and a place to train. You cannot have an effective right of the press without the ability to own and operate media. You cannot have religious freedom without preventing the government from closing down churches and stopping private choices of conscience.

Tang claims the argument that the right to vote implies the entitlement to a state funded education is equivalent to the argument by Second Amendment supporters that the enumerated right to keep and bear arms implies the right to have access to firing ranges. From the article:

So what do the gun activists argue? It’s worth reproducing this argument from their brief verbatim, with emphasis added to a single word: “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use … after all, the core right to keep and bear arms for self-defense wouldn’t mean much without the training and practice that make it effective.” The Second Amendment may say nothing about the right to practice at a shooting range of one’s choosing, in other words, but that right ought to be recognized implicitly because it is important for an express constitutional right to have full meaning.

Now consider the argument advanced by advocates of a constitutional right to basic literacy. Like gun activists and their right to firearms training, educational-equity advocates recognize that the Constitution says nothing explicit about education. But surely a guarantee of basic literacy skills must be implicit in the document in order for its express rights to have meaning. As the Gary B. complaint puts it, “without access to basic literacy skills, citizens cannot engage in knowledgeable and informed voting,” cannot exercise “their right to engage in political speech” under the First Amendment, and cannot enjoy their “constitutionally protected access to the judicial system … including the retention of an attorney and the receipt of notice sufficient to satisfy due process.”

In order to reach this plausible sounding bit of sophistry, Tang overlooks obvious, blatant differences.

The most obvious and fundamental difference, is no one is claiming the State must pay for Second Amendment training, the creation of ranges, or pay the costs of Second Amendment supporters who use those ranges. The Second Amendment arguments are all about stopping the state from preventing the exercise of Second Amendment rights. The Second Amendment arguments are all about limiting the power of the government to interfere with Second Amendment rights.

An equivalent right to education already exists in the First Amendment, with the right to free speech, freedom of the press, and freedom of religion. The government is not allowed to prevent you from becoming educated.
On the other hand, the proponents of education equality are demanding more power for the state. They are demanding the government provide state run schools. They are demanding the government take from some taxpayers and give money to other taxpayers, to fund what they demand.

They demand an expansion of government power and authority, exactly the opposite of Second Amendment supporters. 

You cannot teach students who are unwilling to learn. Access to basic literary skills already exists. If students want to learn, there are numerous, relatively inexpensive means for them to learn. Parental attitudes are far more important than funding.  Some low funded schools produce excellent results and well educated students. Some high funded schools produce horrible results and poorly educated students. Many students are taught at home, with excellent results.

Government funded and run ranges are not required to exercise Second Amendment rights. They may be desirable. They are likely useful. They are not required.

Government funded and run schools are not required for people to be literate and vote. People were literate and voted long before government funded and run schools became the norm.

The arguments both use the word "implied". The arguments have almost no similarity after that.

Federal government funding of schools has far more to do with creating a government funded propaganda arm for the Democrat party, and funds for the Democrat party via teachers unions, than it has with creating literate citizens.

Government funded schools may be desirable. They are likely useful. They are not required. Federally funded government schools are a recent development.

Professor Tang creates the illusion of equivalency of arguments with the assumption that a right to freedom from government interference is equivalent to an entitlement to government largess.

The Second Amendment is a protection of a fundamental right enumerated in the Bill of Rights. The  Supreme Court has ruled the right existed long before the ratification of the Bill of Rights in 1791. There is no such right enumerated for education, literacy, or even voting. Voting was almost entirely left to the states, with the franchise gradually being expanded more and more and more over the intervening centuries.

It is an enormous stretch to compare a right implied by a foundational, fundamental, enumerated right, such as the implied right to transport firearms to a range which welcomes you, outside the jurisdiction of your domicile; to an implied entitlement of an implied entitlement of a right to vote, to have the state pay for the education which you desire, by taking money from another jurisdiction to pay for the education in your jurisdiction.

He states Second Amendment supporters admit there is no explicit mention in the Constitution of the implied right to training.

Then he states the argument of an implicit entitlement of public education is equivalent. It isn't. It does not start with an explicit right. It starts with a claim that an entitlement is required to exercise a right.  Exercise of Second Amendment rights does not require an entitlement.

An equivalent for the Second Amendment would be claiming the government must provide everyone with firearms.

There has never been a right to a government funded education in the United States Constitution.  (Some state Constitutions have a right to education in the text, Arizona is one)

There has never been a Constitutional right to government provided food.

There has never been a Constitutional right to government provided police protection.

There has never been a Constitutional right to government provided housing.

There has never been a Constitutional right to government provided firearms.
 
Some of those things may be desirable. They are not Constitutional rights.

There can not be a legal right to those things, because Constitutional rights limit government. They protect you from what the government would do to you.

To say there are Constitutional rights to economic products is to say the government must control the economy and make sure everyone has equal outcomes. Otherwise, the "right" would not be "equal" under the law.

This fundamental misapplication of the word "right" requires a fundamental transformation of the structure of government. In essence, it requires the economy to be run by the government, with who gets how much determined by bureaucracies or the courts, instead of from a combination of effort, determination, skill, talent, luck, and, yes, government.

A right exists, even if you do not exercise it. Everyone has Second Amendment rights, not just gun owners.  Everyone already has the right to seek and obtain an education, protected by the First Amendment, even if they do not exercise that right.

Some redistribution has happened, of course. Redistribution has never been a right. It is a combination of charity and forced redistribution of wealth, to use the force of government to take what would not be given.

This is exactly opposite of the theory of the Constitution.

Constitutional rights limit what government can do to you. They do not define what governments must do for you. Limiting what the government can do to you does not require the government to take resources from someone else.

To equate the arguments for implied Second Amendment rights, which limit what the government is allowed to do, with implied requirements for the government to pay for an education is fundamentally dishonest.

After setting up the argument, by ignoring the direct, obvious differences between a foundational right restricting government, and a demand for more government to take from some, and give to others, Professor Tang makes this statement:

The identical logical structure that underpins these otherwise distinctive arguments presents a puzzle for the Supreme Court. How can it in good faith accept a theory of implied constitutional rights for gun owners only to reject the same argument for schoolchildren? Yet the consensus among close followers is that this is the most likely outcome: Gun-rights activists believe the Court is primed to deliver them a victory in New York State Rifle & Pistol Association, while educational-equity advocates recognize that the Court’s conservative majority is unlikely to rule in their favor.

They should rule differently. The logical structure is not identical. It is fundamentally different.

The information about the difference is well known in legal circles. It is hard to believe Professor Tang does not understand the theory of natural law and the need to limit governmental power, which is foundational to the entire structure of the Constitution.  The federal government is granted significant, but limited powers by the Constitution. The power to infringe on the right to keep and bear arms is not one of those powers.

He rejects that structure. He works hard to replace it with the Progressive construct of a living Constitution; a Constitution meaning only what the current justices are pressured to have it mean at any given moment.  Attorney General William P. Barr recently gave a superb speech clarifying the differences in the Progressive vision of expansive government versus the founders vision of limited government.

The Second Amendment has been infringed in various ways over the history of the United States. Those infringements do not change the foundational right. The Supreme Court has ruled the right to keep and bear arms existed long before the Constitution. The Second Amendment is in place to protect the right, not to create it.

Until 1968, citizens could order anti-tank and anti-aircraft cannons and their ammunition in the mail. Most people, in most places, had easy access to modern firearms, ammunition and ranges.

The Supreme Court is coming out of a long period, during which the words of the Constitution were often ignored, exactly because of the Progressive theory of government Professor Tang is promoting.

An important part of the theory of Progressive governance is the necessity of lying to the population, in order to achieve the objectives the governing elite wishes to enact. This is called "manufacturing consent".

The United States is in the process of rejecting that theory, and in restoring a Constitutional government of limited powers.


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