Who is a Threat to the Rule of Law ?

From the Fall 2020 Archives

Recently, several Democrat friends have expressed concerns that Republicans are a threat to the "rule of law."

I take myself to have good reason to be extremely skeptical that such a concern is grounded in anything approaching reality.

A concern for the "rule of law" implies a concern for details of the Constitution and the natural law that under-girds it and that it seeks to protect, that it was designed to protect. "The rule of law" has to include protection of natural rights against lawless legislation or regulatory schemes.

Take for instance the contemporary Democratic rhetoric about the limits to the natural right to self defense with a firearm. I could take any number of examples as illustrative of this rhetoric. Take a recent example, TMZ's double-teaming of Colion Noir. In that 9 minute exchange, the TMZ double-team implied that the Second Amendment protected no individual whatsoever from legislative or regulatory encroachments on the natural right to self defense with a firearm. The TMZ people were partisan Democrats, and obviously so.

Here's another specific: You'll hear Democrats say that gun owners should be licensed like we license drivers of cars. The analogy goes like this. Cars are like guns. They are both dangerous. So, regulatory schemes that license car drivers should also apply to gun owners.

I've personally heard this analogy dozens of times on campus. A recent book by a Christian Biola-trained philosopher used the analogy. Again, the assumption is that there is no sacrosanct natural right to self defense with a firearm--no limit, in principle, to what the bare majority of voters or a state agency can legitimately will into existence through regulation to restrict the right to self defense or (as is more often the case) to criminalize the right to self defense.

What is stunning, to me anyway, is that I have never heard, even from a Biola-trained Christian philosopher who has been trained in attention to detail that the "respect for the rule of law" requires, is the obvious -- glaringly obvious, on its face -- disanalogy with regulation of cars and drivers, on the one hand, and guns and gun owners, on the other.

Drivers licenses regulate *driving* cars, not owning or possessing them.

There is no direct analogy between regulation of drivers licensing and gun possession and ownership.

Moreover, the drivers license only regulates driving on public roads, not on private property, unless that private property is open to the public, like for example, Biola University is, where the private security force there enforces, as a matter of private security, the California Vehicle Code. They do so because the laws governing publicly funded education mandate the enforcement of the code on campus.

But if someone owns a multi-acre ranch, you can drive without a license on the ranch. As soon as your tire hits off the property, such a driver would be in violation of the California Vehicle Code.

A person could be arrested for DUI and not lose their property right in the vehicle. The vehicle is still owned by that person; the person still lawfully possesses it, even if they lose their driver's license. They have a right, upon paying the fee, to remove it from impound if it was impounded, and to remove it immediately. It's their property. They are a car owner. In fact, they could still drive the vehicle on their own private property without risk of arrest (absent danger to others).

In fact, the analogy between cars and guns comes back to bite the Democratic hand that nurtured it, but in a way that teaches us something about the true "respect for the rule of law."

Government is always seeking ways to take private property away from individuals. This is just what Government does. Government is hungry. Like any organization, its natural inclination is to expand and grow. It's not just Pepperdine that seeks to expand and grow -- they're just a small, humble Christian college and so of course they need satellite campuses in Westlake Village and Irvine dozens of miles away (why not Shanghai, too?). Small churches become mega-churches. Sacramento incorporates essentially Riverside County, too, in many respects. Why not? Washington, D.C., engulfs Cheyenne in many respects.

What is the legitimate end to this extension? What is the appropriate revocation of such asserted Government rights against the property of people?

The people are biased and prejudiced. This applies to every single member of the body politic, because people are people. That's how all people are. The biases and prejudices change over the years. But those fears and resentments and prejudgments are there, rooted increasingly in the greatest threat to the "respect for the rule of law"--a small attention span.

If a faction has an increasingly small attention span, and is proud of it for one reason or another, and that faction gains power, the prejudices of that group will assert its fear to increase the power of Government over private property.

If you're a part of a faction that doesn’t have the attention span to attend to details in an argument by analogy, and you happen to be afraid of guns, because you're afraid of how they look, what they sound like, you didn't grow up with them, have no interest or see no need to protect yourself (you've been fortunate to have others do that for you, or you're just lucky), but on the other hand you did grow up with cars, like them, find them fun and cool, and so have no problem with more rights for car owners than for gun owners, you're prejudiced and biased in that way toward *more* Government power and control over gun owners but not over car owners, even as you make the argument by analogy between cars and guns.

You might even feel real good about yourself as you do so.

You'll miss--because fear causes our minds to freeze up as if in trauma, so that we can't follow details essential to the argument--you'll miss the glaring disanalogies between proper regulation of public drivers (not car owners), and proposed regulation of gun owners on private property.

You'll protect property rights of the ones who have demonstrated themselves to be publicly dangerous in cars. You'll defend their private ownership and even private driving of cars after their conviction for DUI. You'll even defend their continued right to possession of all the private property in their home that includes alcohol or drugs. That nice whiskey collection, all that beer--as well as their right to continue to buy, legally, such items (with no limit whatsoever), as well as the right to continue to purchase a car, with no background check , no waiting period, no limit whatsoever beyond economic limits of how much money they have, while insisting that the most law-abiding, decent, treasured citizen, who has fought for his country, even, is a criminal if he takes possession of a box of .22 without a background check. Because you have no self-awareness and virtually no attention span.

So much for "respect for the rule of law" in that case.

There's much more to be said about "respect for the rule of law."

For instance, my doctoral dissertation was on Separation of Powers and the rule of law. No one can legitimately claim "respect for the rule of law" who does not respect the Separation of Powers. The moral purpose of the Separation of Powers was based in the natural law articulated in our first organic law of the United States: the Declaration of Independence. Separation of Powers exist, and is justified, by its protection of Individual Liberty.

In my research, the contemporary Democratic appointments to the bench are less likely than the Republican appointments to respect Separation of Powers, based on the extensive record that I saw in my research.

I'm seeing a trend. But it requires an attention span and a self-awareness of some of ones' own fears, triggers, prejudices, and biases.

In my opinion, one of the legacies of the Democratic party is the decreased attention span on college campuses across the land to hear arguments that one is afraid of, or that one's colleagues or group (the political faction of the Democrats) is afraid of or thinks you should be afraid of. The problem is, these vast numbers of new voters don't have an institutional pressure, traditionally supplied by Higher Education, to carefully examine their own fears, prejudices, assumptions.

That is the greatest threat to "the respect of the rule of law" that I have seen in the past two decades and a half that I have been in Higher Education as a faculty member and/or as a student.

Copyright Lucas J. Mather, 2020
All Rights Reserved
Originally published to Facebook on Friday 30 Oct 2020 at 12:58 pm

Dr. Lucas J. Mather, Ph.D. has taught courses from Logic and Ethics to Law and Public Policy at the university-level for nearly 20 years. He is the host and producer of The Republican Professor Podcast. He teaches in the government department at Azusa Pacific University in Lost Angeles County, California.

If you’d like to support the work financially, provide feedback, or suggests topics or guests for the TRP newsletter and Podcast, send an email to the.republican.professor@gmail.com . He’d love to hear from you.