Competing rights: Florida shooting highlights tension between two rights

By the way: Between 1988 and 2016, the average number of traffic fatalities on U.S. roads was 37,000.

Competing rights
The Declaration of Independence recognizes the inalienable rights for “life, liberty, and the pursuit of happiness,” but the Constitution explicitly protects “only” life and liberty: Happiness is not mentioned in the highest law of the land (note, however, that even though the Declaration has no standing in the U.S. legal system, the pursuit of happiness has an important role in American legal history, and the pursuit of happiness has been cited in some of the U.S. Supreme Court’s important decisions on marriage).

The question that events such as the Florida school shooting raises has to do with the clash between two constitutionally protected rights: The right to bear arms and the right to life and liberty.

In two landmark decisions, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), the Supreme Court opted for a strict and literal reading of the language of the Second Amendment, with no other reasonable considerations. The judges in the majority also saw no need to look at the “intent” of the framers’ language in order to interpret the language broadly in light of current norms of human conduct and the growing complexity of society

The Constitution regards right to life as the only fundamental right, from which all other rights are derived. The right to life means that a human being has a fundamental right to live, which also means that this human being has the right not to be killed by another human being.

The question that the mass shooting in Florida, and similar tragedies, raises is whether or not the absolutist reading of one right – the right to bear arms – is undermining an even more fundamental right: the right to life.

“All the laws but one”
Which brings us to Abraham Lincoln.

On 25 May 1861, U.S. soldiers arrested John Merryman at his home in Maryland. He was a lieutenant in the Maryland State Militia, and on orders from the governor he burned rail bridges north of Baltimore to prevent the passage of northern troops through the city. The army captured Merryman and he was put in a cell at Fort McHenry, held without charges and denied legal counsel.

Chief Justice Roger B. Taney, on learning of the case, issued a Writ of Habeas Corpus to Fort McHenry’s commanding officer, Major George Cadwalader. Cadwalader, however, citing orders from President Lincoln, had the Writ refused at the Fort’s gate.

Taney’s written opinion – it became known as “Ex Parte Merryman” — stated that only Congress, in cases of extreme emergency, has the power to suspend the Writ. He castigated Lincoln for overstepping his Constitutional limits by suspending the Writ.

Lincoln rejected Taney’s opinion, and refused to honor it. His argument: An extreme state of affairs warranted an emergency action, and Congress was not in session, so the responsibility to act fell to him.

In response to Taney’s opinion, Lincoln pointed to the tension between laws which may arise as a result of extreme circdumstances. He asked whether an absolutist reading, which refused to entertain the temporary suspension (even violation) of one law even if such a refusal meant that all other laws would go unexecuted, and governing itself would collapse, was justified. Lincoln wrote: “Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated?”

The arrests of sympathizers of the Confederacy continued, and Lincoln suspended the Writ as far north as Massachusetts and Maine. On 3 March 1863, Congress, now in session, authorized Lincoln to suspend the Writ.

We are not in the middle of a Civil War now, there is no state of emergency, and no one is calling for the suspension of the Second Amendment. The question, rather, is one of reasonable and sensible balance between competing rights. To paraphrase Lincoln’s words: Should we be so adamant and so narrowly restrictive in our refusal to read the Second Amendment more broadly, even if the result of this absolutism is that other rights – fundamental rights —are being eroded?

Ben Frankel is the editor of the Homeland Security News Wire