The right to carry a gun is mentioned in our federal Constitution. The entitlement of same-sex couples to a state-issued marriage license is not mentioned in the Constitution. In fact, there is no mention of marriage at all in the Constitution. Yet, a Kentucky clerk who declined to sign a gay marriage license was thrown in jail last year, while the D.C. Attorney General, Karl Racine, who refuses to issue gun carriers permits in Washington, remains at large and is succeeding in illegally enforcing the ban on concealed or open carry district-wide.
Last week, D.C. District Judge Richard Leon, one of the only remaining originalists in the D.C. court system, ruled that the district’s ban on concealed carry (for all but those with exceptional reasons) violated the plain meaning of the Second Amendment, our history and traditions dating back to Common Law, and the Heller decision. Yet, instead of filing for an injunction against the ruling to keep the D.C. law in place pending appeals (which, given the craziness of the D.C. Circuit, will likely go in their favor), the D.C. government is refusing to issue permits. This from D.C. resident Devin Watkins writing at the Federalist:
After the order, I went to apply for a concealed-carry permit in the District of Columbia. The police officers there told me the D.C. attorney general’s office had ordered them to ignore the court order and continue to deny applications. Thinking there might be some kind of mistake, I contacted the AG’s office, which explicitly told me if I had a complaint about what they did I could file that complaint online.
This is why the courts are a dead-end for conservatives. Even in the rare case when we get a constitutional ruling, the Left and blue state governments, unlike Republicans, will just ignore the courts.
I’m seeing a lot of conservative writers on social media point out the Democratic hypocrisy as it relates to their feelings about Kim Davis and the marriage opinion from the Supreme Court. I’d like to add that the scandalous duplicity is even worse than it appears. Consider the following differences:
- Kim Davis was upholding the most basic self-evident truth concerning the building block of all civilization. Marriage has always been defined as between a man and a woman. Even the most ardent proponents of gay marriage must agree that marriage is a state institution and there is no mandate for gay marriage in the Constitution. In fact, the act of sodomy, much less the recognition of a gay marriage, was banned in every state for the entire history since the Fourteenth Amendment, including in 1868 when it was ratified. Davis worked in the clerk’s office in Kentucky for 27 years upholding state law, predating even the human concept of a homosexual marriage. In 2004, 75% of the state’s voters agreed to preemptively protect against the assault on marriage by defining it as a union between a man and a woman. Davis had the law, history, tradition, and the Constitution on her side, yet she was sent to jail for a week for not signing a revolutionary document.The right to carry a gun, on the other hand, is not only the second fundamental right of the Bill of Rights, it was regarded as a pre-existing inalienable right predating the Constitution and was certainly binding on the states. Why is AG Karl Racine not marched off to jail for defying it? Sadly, it is those caught exercising their constitutional right to carry in the district who will be arrested instead.
- Unlike the petitioners for gay marriage licenses in Kentucky, who were asking for an affirmative privilege from state government, gun rights activists in D.C. are asking for freedom from negative action taken against them. Nobody is asking for a license; in fact, most gun owners would rather not go through the invasive process. Licenses are only for the good of the state governments that want to clamp down on gun rights. All petitioners are asking for is to not be thrown in jail for exercising their inalienable right to protect themselves on the dangerous streets of Washington.The petitioners in Kentucky, on the other hand, were free to live together. They were asking for state recognition of their private lives. The D.C. gun bans are more analogous to anti-sodomy laws, which take negative action against an individual who engages in a specific behavior. As Justice Thomas noted in his dissent in Obergefell, the gay marriage ruling illegally and absurdly created a non-existed positive right to a state benefit. A true fundamental right is freedom from negative governmental action taken against a basic right. Anti-carry laws fits that description; marriage laws do not.
- It’s not like Kim Davis blocked gay marriages throughout the state. She sought to protect her personal religious beliefs and take her name off the document. Racine, on the other hand, is blocking issuance of carrier permits throughout the district.
- D.C. is a federal jurisdiction, not a state. It is even more directly and obviously bound by the Bill of Rights and the decisions of the federal courts than states.
Given what the federal government is doing to Judge Roy Moore in Alabama for not changing the state’s marriage laws, it’s time conservatives in red states stop genuflecting to a one-sided judicial battle. After all, we are the ones with the Supreme law of the land on our side.
Updated 5/25 3:55pm ET: In response to the article in the Federalist accusing the D.C. government of defying the court order, the D.C. Attorney General’s office has responded by noting they are now in compliance with the court order. They posted on the metropolitan police department’s website a note stating that residents will no longer need to “comport with the Good Reason requirement.” The Federalist article has been updated to reflect this news. Given the myriad of obstacles the AG’s office will likely continue to place in front of applicants, don’t hold your breath expecting a single resident to be issued a carriers permit with the alacrity gay marriage licenses have been issued immediately since the Obergefell decision.
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.