Andrew P. Napolitano*
While the FBI continued to analyze the emails Hillary Clinton thought she deleted and her advisers pressed her to hire a Republican criminal defense attorney in Washington, a madman used a lawfully purchased handgun to kill a professor and eight students at a community college in Roseburg, Oregon. Looking to change the subject away from her emails, Clinton was quick to pounce.
She who has ripped into Republicans for seeking political gain from the four American deaths in Benghazi, Libya, now seeks her own political gain from the dozens of murdered children and young adults in Newtown, Connecticut, and Roseburg. On the heels of the latter and referring to both tragedies, she launched an emotional attack early this week on the two most recent Supreme Court decisions upholding the personal right to keep and bear arms. She offered to “fix” them should she be elected president.
Her so-called fix consists of a dead-on-arrival legislative proposal making gun manufacturers financially liable for the misuse of their products and an executive order determining the meaning of certain words used in federal statutes.
The liability-shifting proposal is akin to punishing General Motors whenever a drunken driver misuses his Chevy and injures someone. The courts would surely reject that.
The executive order proposal assaults the Constitution. Those in the gun sale business must conduct background checks via computer services offered by the FBI. The background checks look for reports of crimes of violence, domestic violence and mental illness. Private people who occasionally sell their hardware or give guns as gifts are exempt from conducting background checks. Clinton would create a presidentially written and mandated definition of occasional sales and gifts so as to require background checks for all gun transfers -- a requirement Congress rejected.
We are 13 months from Election Day 2016, and Clinton has already promised that she would rule by pen and phone rather than govern by consensus.
As a lawyer, Clinton should know that only the federal courts -- not the president -- can decide what statutory language means. Moreover, if she knew anything about FBI background checks, she would know that they are only as good as the database on which they rely. If a madman hides his mental illness, no database will reveal it.
Her attacks on the Supreme Court decisions were direct. She rejects their characterization of the right to keep and bear arms as a fundamental right -- meaning that it is akin to thought, speech, press, association, worship, travel, etc.
Yet if she were to become president, she would take an oath to uphold the Constitution; that means the Constitution as interpreted by the Supreme Court. The presidential oath of office would require that she execute her duties “faithfully” -- whether she agrees with the law or constitutional provision or not. She apparently has no intention of fulfilling the presidential oath of office.
We are 13 months from Election Day 2016, and Clinton has already promised that she would not enforce Supreme Court decisions with which she disagrees.
What did both the Newtown and the Roseburg tragedies have in common? Both murderers were madmen. Yet neither had a record of mental illness, so the background checks the anti-self-defense lobby loves would not have prevented either of these killers from buying a gun and using it to murder indiscriminately. If killers are prepared to murder innocent children, does Clinton really think they would obey the laws regulating gun ownership?
Both mass murders occurred in no-gun zones. A no-gun zone is the most dangerous place on the planet when a madman intent on killing enters. No-gun zones are arbitrarily designated on public property by local authorities, stripping law-abiding folks of their lawfully owned guns -- their natural right to self-defense -- and exposing them to terror and death.
The Constitution does not permit public no-gun zones any more than it does public no-free-speech zones. If the right to keep and bear arms is truly fundamental, the government cannot interfere with it based on geography. If the Army veteran/college student who stopped seven bullets with his body last week and saved the lives of his classmates (and survived!) had been permitted to carry a gun into the school building, the madman who murdered nine innocents would have been stopped long before police arrived -- long before he completed his killings.
The right to keep and bear arms has more than just the Second Amendment to protect it. By characterizing the right as fundamental and pre-political, the high court accepted the truism that this right is merely a modern extension of the ancient right to self-defense. And the right to defend oneself does not come from the government; it comes from our humanity. It is a natural right.
Who among us, when confronted with the terror of nearly certain annihilation, would concern himself with the niceties of the law? Life itself is at stake. The right to self-defense is a manifestation of the natural instinct for survival, borne in the hearts of all rational people.
But Hillary Clinton rejects that instinct because she prefers we become dependent upon the government -- as long as she is running it.
The police cannot stop mass killings, because they cannot be everywhere all the time. And madmen willing to kill do not fear being lawbreakers. Guns in the hands of the people give not only tyrants second thoughts but also madmen.
Even madmen fear an early death.
*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.