Former Supreme Court Justice Robert Jackson warned us that “the Constitution is not a suicide pact.” However, a fundamental precept of law and regulation in the United States is that the government, when it is going to infringe on a fundamental and constitutional right, must not only have a compelling interest in doing so, but must also do so in the least restrictive (to our rights) way that accomplishes the goal.
Unlike last year’s “red flag” bill, which received a modicum of support from Republican politicians, this year’s bill tramples on citizens’ Second Amendment rights much more aggressively than necessary to protect the public’s safety.
There has been for many years a disturbing trend among politicians and other elected officials to take the words of their oaths of office as a mere formality, or as “hocus-pocus,” such as a Wiccan might say in casting a spell. But every president and governor and legislator (not least state senators who also swore an oath when joining the Marines), every cabinet member and every law enforcement officer puts his or her hand on the Bible (or other holy book of choice) and swears to support the constitution of the United States.
Yes, in Colorado the oath also requires a promise to uphold both the constitution and the laws of our state, but at every level of American government service, allegiance is first owed to the constitution of the United States of America.
It’s not just progressives — who have always disdained the limits the constitution puts on their dreams of ever-larger government — who have abandoned their explicit oath to support and defend the constitution. As George W. Bush signed the clearly unconstitutional Bipartisan Campaign Finance Reform Act, also known as McCain-Feingold, he wrote that ”(c)ertain provisions present serious constitutional concerns.
Had he honored his oath, he would have refused to sign the bill into law. It is not only for judges to protect us from the overreach of politicians; it is for everybody who takes the oath. It is all the more true in an age when too many judges have abandoned fidelity to their oaths and to the plain meaning of the constitution. We simply cannot rely on the judiciary, especially here in Colorado, where judges let politicians call taxes “fees” to avoid the otherwise inevitable defeat of their tax hikes when put to a vote of the people.
Therefore, without confidence that courts will uphold their actions as legal, it is nevertheless a valuable reminder of their oath, of its importance, of the fact that it has true meaning, to see sheriffs and commissioners from counties large and small coming to the defense of the constitution in opposing the Democrats’ new red flag bill, which would strip a citizen of his constitutional rights without having been convicted of or charged with a crime, and without having been judged by a mental health professional as posing a risk to himself or others.
The burden should not be on those public officials who stand up for the constitution to explain why they are doing so, but for those who stand against the constitution to explain why they should be allowed to do so.
Ross Kaminsky is the morning host on TalkRadio 630 KHOW in Denver. A version of this column first appeared in the Pueblo Chieftain.
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