This is from a conversation in the comments below one of Steve’s recent posts. It seems relevant to a lot of what’s happening just now, so I thought I’d post it separately.
Where [many people] see lots of different problems, I see only a couple that underlie all the others.
The first — not to sound like a broken record or anything — is confusing consent with majority rule, acting as if those are the same when, in fact, they are nearly opposites.
The second is confusing form with function.
Legislatures pass laws, and eventually, people start to think that as long as the legislature follows certain formalities (introduce a bill, hold hearings, vote, send to the executive for signature), then whatever they enact must be a valid law.
Judges issue opinions, and eventually, people start to think that as long as the judges follow certain formalities, then whatever they want to rule on must be a valid precedent, i.e., ‘the law.’
Regulators issue regulations, police issue ‘lawful orders’, presidents and governors issue ‘executive orders’, and all of these are considered to have ‘the force of law’. And so on.
People seem to have completely given up the idea that if government officials try to exercise a power that their written constitutions — their job descriptions — do not delegate to them or clearly prohibit them from having, then what they say or do isn’t binding on anyone.
Imagine how different things would be if people were willing to look at laws, regulations, orders, and judicial opinions coming from government officials and say:
Look, we can read our constitutions as well as you can, and what you’re trying to do is so clearly outside of the legitimate scope of what you can do that we’re just going to ignore it. And if you try to force the issue, you’ll meet with armed resistance.
I think this is exactly what the Second Amendment means by ‘the security of a free State.’
