Is Gun Control Unconstitutional?

Ever since the shooting in Newtown, Connecticut six months ago there has been a conversation in this country about gun control. Many on the Left assert that gun control is needed to ensure that situations like that which happened in Newtown do not happen again, while many on the Right assert that gun control measures would not have stopped that tragedy, and instead of restricting access to firearms, we must encourage their widespread availability.

The discussion over the efficacy of gun control measures will go on for years and years to come, but that is not what I am going to be discussing today. Instead, my goal is to clear up some of the common misconceptions that exist in relation to the constitutionality of gun control measures. I will not be addressing all gun control measures, or even attempting to go into the constitutionality of specific gun control measures – those instead will be for future posts on this matter. Instead, my goal is to clear up some of the rhetoric which exists that claims that ANY gun control measure violates the 2^nd Amendment.

Many on the Right, led astray by the rhetoric of the National Rifle Association, believe that ANY gun control measure (whether that be background checks, magazine limits, assault weapons ban, or national firearm registration) violates the Second Amendment of the U.S. Constitution. I call these people “2Aer’s”, because of their extreme fealty to the literal words of the Second Amendment. 2Aers assert that the Second Amendment states that the right to bear arms “shall not be infringed”, and then continue to repeat that refrain as if that ends the conversation. Such a simplistic understanding of the Second Amendment, though making for a good sound bite, clouds what should be a rational discussion on gun control, and perpetuates the idea that exists on the Right that “liberals hate the Constitution”.  

The two most influential cases on the Second Amendment in the past decade would be the Supreme Court’s decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). Heller dealt with D.C.’s complete prohibition on handguns in the home, striking down such a complete prohibition as violating the 2^nd Amendment. McDonald, on the other hand, dealt more with whether the 2^nd Amendment was applicable to the States (relying on SCOTUS’s incorporation doctrine manifesting out of the 14^th Amendment).  These two cases laid out a framework in which other Courts in the United States could address firearm regulations and whether or not said regulations violated the 2^nd Amendment. Unlike what 2Aers claim, though these cases established an individual right to possess a firearm, they did not forestall all governmental regulation of said right. In fact, Scalia, in writing for the majority in Heller, specifically states that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms”. (pg. 626-627 of the decision).  Furthermore, the majority in Heller, though not specifically stating as such, implies that regulations on the carrying of concealed weapons, as well as the restricting of certain types of weapons by the government (eg. assault weapons) would pass Constitutional scrutiny.

Because Heller and McDonald were not clear about how far government can go in regulating firearms, the Courts of Appeal throughout the United States have crafted a two-part test to address these situations. First, the Court will look at whether a particular provision impinges upon a 2^nd Amendment right, and if it does, the Court will look at whether said provision passes constitutional muster under the appropriate level of scrutiny. An excellent example of how the Court addresses a regulation in relation to these two tests is found in the follow up case to Heller that was heard by the D.C. Circuit Court of Appeals in 2011. In that case, the Court looked at whether a basic registration scheme for both handguns and long guns was consistent with the 2^nd Amendment. In finding such a registration scheme  passed the first test in relation to handguns, the D.C. Circuit Court stated that not only were basic handgun registration requirements a longstanding feature of American firearms law, but that any burden on the 2^nd Amendment right was de minimis, as many other features of American life required registration . The registration requirements for long guns on the other hand, because there was not a longstanding practice in America of such a requirement, did not pass the first test, and instead had to be analyzed by the Court.

In Heller (2008), the Court found that rational basis review (that is, that the Government can basically have whatever policy it wants to as long as it has a rational basis for doing so) was not an appropriate standard of review for firearm regulations. Instead, the Court left open what standard of review was appropriate. If a firearm regulation burdens a right at the “core” of the 2^nd Amendment (self-defense in one’s home), Heller suggests that strict scrutiny is an appropriate standard of review. Strict scrutiny is when a regulation has to have a compelling government interest, be narrowly tailored to that interest, and must be the least restrictive means to accomplish the government’s goal. Outside of the firearm regulations that burdened the “core” of the 2^nd Amendment right, Heller left open the ability of lower Courts to use a less restrictive level of Court scrutiny (intermediate scrutiny) to analyze firearm regulations.  If a firearm regulation furthers an important governmental interest in a way that is substantially related to that interest the Court will find such a regulation Constitutional. Though in the follow up case to Heller, the D.C. Circuit could not rule on whether long gun firearm registration was constitutional (it did not have enough information), it deemed that such a regulation was deserving of intermediate scrutiny, as the regulations did not prevent an individual from possessing a firearm in the home.

In review, per current Supreme Court case law, the 2^nd Amendment does not establish a complete ban on any regulation of firearms by the Government. Instead, the Court has left the Government a large amount of wiggle room in how it chooses to craft its firearm policies. As long as a firearm regulation does not burden the core of the 2^nd Amendment right – that is, self-defense in the home – it likely will not be subject to strict scrutiny, and instead will be subjected to the less onerous intermediate scrutiny. Though the sound bite of “shall not be infringed” may play well to a rabidly pro-gun base, it does not tell the whole story behind the 2^nd Amendment, and instead leads to an uneducated and ignorant populous.

As this is a very fluid and misunderstood area of the law, I will continue over the next few weeks to analyze specific gun control policies from a constitutional perspective. As always, I welcome any questions and comments that my readers may have. 

On Portman, The LGBT Community Disappoints Me

Ohio Republican Senator Rob Portman came out in favor of marriage equality late Thursday night, to the shock of pretty much the entire political world. Basing his decision to change his position on marriage equality because of his son Will, Portman wrote a powerful article in the Columbus Dispatch that was published early Friday morning. When I first heard the news, I was proud of Senator Portman for making this bold announcement, and though I did not agree with everything in his column, I took Senator Portman’s announcement as a sign of movement within conservative politics on LGBT issues. Yet not everyone was as happy as I was with Portman’s announcement. From the Right, we saw claims that Will Portman would get AIDS, that the Senator turned his own son gay by sending him to Yale, and that though his son was gay the Senator should be thinking about the public policy issues, rather than the emotional connection that he had with his son.  On the Left, we saw criticism that Portman was being “narcissistic” as he seemingly only cares about things when they directly affect him, that he didn’t go far enough in his support, and that he only did this for politically expedient reasons.

Though I cannot control what either side feels about Senator Portman’s announcement, it is important to note a few things. First, Senator Portman’s announcement was not about liberals or the LGBT community. It was about his son, and the personal journey that he has gone through with Will on this issue. He owes our community nothing and it is inappropriate for us to make this moment about our needs and our community.  Yes, he may be a politician, and yes, his votes have impacted our community, but he came out in support of equality for his son, not because he wanted to win props with us.

Second, though Senator Portman has changed his position on this issue because he has a son who is gay, if does not follow that he has engaged in “narcissistic politics” in only supporting something when he is directly impacted by it. Though it may make members of our community feel better to claim such, they need to look in the mirror and take stock of their own life experiences before passing judgment.  We ALL have different journeys in life on how we either come to terms with our sexuality or accept those in our life who are LGBT. Are our parents narcissistic when they take three years to change their views on homosexuality when their child’s sexual orientation is made known to them, or are they going through the exact same process that we did? Was I being narcissistic because I didn’t fully accept myself in high school, and instead did not deal with accepting my sexual orientation till I was in college? Are my grandparents narcissistic because before I came out they were against rights for LGBT people, yet have since found the ability to support – even with their strong conservative religious views – ENDA and civil unions? Was President Obama being narcissistic as he “evolved” on this issue, based upon his experience with LGBT people? People who claim that Senator Portman is narcissistic for changing his position based upon his personal experience not only demean those people who HAVE changed their position because of our coming out – people that we consider allies for our community – but they also demean each and every LGBT person who has worked through the coming out process.

Our experiences shape our perceptions and views on life and reality. That is not narcissism; that is one of the bedrocks of human existence. So instead of criticizing Senator Portman for being narcissistic or having a lack of empathy, the LGBT community should welcome him into the fold and show others who are on the fence that we are truly accepting of all. 

In Tennessee, Racist Students Can Refuse to Counsel Blacks

In a move of bi-partisan stupidity, the Tennessee Legislature is once again making itself out to be a mockery among people outside the fringe. What have they done now? Oh, just following the Michigan House's lead in attempting to pass a bill that would have far reaching consequences for graduate programs at every one of Tennessee's Public Universities. In a vote of 7-2, the Senate Education Committee passed a bill that goes before the full Senate on Monday, purporting to protect "religious freedom".

Senator Joey Hensley R-Hohenwald (of "Don't Say Gay fame when he was in the House last year) has partnered with Representative John DeBerry D-Memphis, to propose SB514

A public institution of higher education operating under chapter 8 or 9 of this title shall not discipline or discriminate against a student in a counseling, social work, or psychology program because the student refuses to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the student, if the student refers the client to a counselor who will provide the counseling or services. 

To no ones surprise, this piece of legislation's intent is to protect the "first amendment rights" of social work, psychology, and counseling students to not have to provide counseling services to LGBT people. In fact, that is what the questions by Republican Senators on the Senate Education Committee focused on (change therapy etc.). Yet the bill has the potential to go much farther in its impact. For example, what about the Christian individual who comes to a Jewish graduate student seeking assistance? Under this bill, because the Jewish student might have an issue with how the Christian individual depends upon Jesus to help him through a difficult issue, said student is within his legal right to refuse service. Or what about the Christian student who has a religious belief (based out of the curse of Ham) that African Americans are beneath him and not deserving of help? Under this bill, that student would not be allowed to be disciplined for the lack of service.

Welcome to Tennessee, where our State Legislature wants to ensure that not only do anti-gay students not have to counsel LGBT clients but that racist students can stay in their program and only deal with white people. Though the bill may have only meant to attack the LGBT community, it has a far greater, and negative, effect than Hensley or DeBerry could have imagined.

LGBT Equality In Inconvenient Geographies

The following document is a report written by Adrian Shanker, the President of Equality Pennsylvania, which has been reprinted here with his permission. It is an important contribution to the discussion on how LGBT groups can work towards full equality in States like Tennessee, Michigan, and Pennsylvania or any other state which is not deep blue, but either deep red or purple. Take some time to read the report and let me know your thoughts:

LGBT Equality In Inconvenient Geographies:

The path toward victory for full, national, LGBT equality could not be clearer. National leaders know that in order to win nationwide, they need to start winning where it’s less popular. And that means changing how we fight for equality so we can win in less convenient geographies. It’s easier to fight for equality while swimming through deep blue waters. But for those of us who’ve chosen to fight for equality in the purple or red states, we have a bigger challenge ahead of us, but also a bigger reward. Because when we win in our inconvenient geographies, we know that the equality movement is winning the struggle nationwide. We know that the path toward full, national LGBT equality runs right through where we stand, and that we are the ones who need to lead the fight.

For allies in the progressive movement who desperately want to expand civil rights to their LGBT constituents, the challenges are the same. Without the coalitions in place to support equality, and without public support in geographies they represent, it is a challenge and a political risk, for an elected official to lead on equality if the campaign is not winnable. As progressives in moderate or conservative states, we need to focus where we can win, because we know we can’t win everything – at the same time, civil rights for the LGBT community cannot wait indefinitely. There is a balance that needs to be reached. If the LGBT community can work with the progressive community to build alliances while simultaneously educating the community at-large about our issues, then we can build public support as well as political clout with our allies.

This means that LGBT activists need to multi-task. On one hand, continue building public support and broader coalitions for equality issues and on the other, find an LGBT angle on the issues that are coming to a head more quickly, and those which are allies in the Democratic Party, organized labor, or other progressive organizations have been successful in bringing to the forefront. We need to continue building support for non-discrimination and relationship recognition – but with the realism that our issues may not be ready for a vote, and at the same time, assisting our allies in their efforts to pass progressive legislation they have fought hard for.

Doing this doesn’t mean taking a back seat, it actually means taking the passenger seat. It means that the LGBT community will be fighting side-by-side our progressive allies to win progressive reforms in moderate and conservative states. To be sure, not every issue is one in which it is appropriate for the LGBT community to engage itself. But for those of us who believe in intersectionality, that our struggles between communities are intrinsically linked, we know that by working together with our progressive allies, we are making our states more equal for all of us. And we can be sure that our allies will work just as hard when we have the ability to bring our issues to the forefront.

It’s hard for me to understand why we need to wait for LGBT issues to be ready for consideration. I grew up in Westchester County, NY, in a town 45-minutes north of New York City. Years before New York won marriage equality, the Westchester County Executive, Andrew Spano, had appointed a full time liaison to the LGBT community, was sponsoring an annual LGBT youth conference, and he signed an Executive Order granting county recognition to legally-performed same-sex marriages. Surely, there were fights to be had for full equality in New York, and there still are. But my experience as a New Yorker tells me that they continue to be on the fast track to equality, just as all of our deep blue states are. With that context in mind, it’s hard to understand why we in other states need to wait, even to bring up the most
basic of civil rights issues: non discrimination, hate crimes, and bullying in our schools.

The cultural context in which I was raised makes it difficult for me to understand people who don’t believe that every person is due equal access to opportunity. But the cultural context in Pennsylvania, where I now live, reminds me that in some instances I am the only LGBT person an elected official knows, and that we have so much work to do. Activists in deep blue states didn’t just wake up and win equality – they worked for years supporting progressive legislation tangentially related to LGBT equality, but more directly to the progressive movement. They worked for years electing candidates who supported equality, and they worked for years to educate the community in which they live about the need for equality, and the same strategy is needed in purple and red states today.

Pennsylvania, much like some states in the south and the west, has an identity crises. On one hand, we have socially-progressive Republicans in Philadelphia and it’s suburbs, and on the other hand, we have socially-conservative Democrats across central and western PA. We have Philadelphia Democrats who want to run for office on a marriage equality platform and we have Republicans from Erie who are sometimes better on our issues than Democrats from the same region. Pennsylvania is a big state – seven hours drive from Philadelphia to Erie – and there’s lots of room for diversity of opinions in every corner of Pennsylvania.

I chose to live in and fight for equality in Pennsylvania because winning here is harder than in a sea of deep blue. But winning here also means changing how we communicate our issues. It requires using different messages, different tactics, and in some cases, even different spokespersons. The reality is that the path from now to marriage equality is long, and just because our neighbors in New York and Maryland have done it, doesn’t mean that our legislature will move any faster. In Pennsylvania, much like a majority of southern and western states, we lack all forms of LGBT equality. We lack a nondiscrimination law to protect LGBT people from discrimination in housing, employment and public accommodation; we lack a state hate crimes law to give local law enforcement the training and power to prosecute bias crimes against the LGBT community; we lack an LGBT-inclusive anti-bullying law to protect LGBT youth in our public schools, and we have no form of LGBT relationship recognition. And yet, I feel that we are winning. It’s true that a statewide victory has not been within reach, but we have worked diligently to advance equality in an effective way despite the lack of state-level legislative success.

Our success in advancing equality has meant three things: 1) shifting our LGBT activist focus from statewide to local, 2) Becoming increasing involved in the electoral process, and 3) building political clout within the larger context of the progressive community.

In 2010, after Democrats lost the Governor’s race and a significant number of state legislative seats, we realized that we had no possibility of winning a statewide legislative battle. Rather than waiting it out, we shifted our focus to the local level, but outside of our progressive strongholds of Philadelphia and Pittsburgh to our less convenient geographies across the state. We localized the state-level issues we were fighting for (namely non-discrimination and relationship recognition) and were successful passing over a dozen local ordinances regarding these issues. Doing so meant building new and less likely coalitions and making our case in a more compelling way than ever before. And in some cases, it has meant that we can’t be our own messengers, that the message is more compelling, in some instances, when delivered by an unlikely ally – a labor leader, a faith leader, a Republican, a corporate CEO. All of this is transferable to other states with inconvenient geographies.

By focusing where the LGBT movement is less likely to have the political clout it does in, say,
Philadelphia, we’re able to make more targeted wins into statewide victories. We’ve all heard about Vicco, Kentucky, a city in Perry County, Kentucky with all of 316 residents. When Vicco passed a nondiscrimination ordinance inclusive of the LGBT community, the world knew about it. Not because Vicco was the target of a lengthy campaign, but because it was an unexpected win along the theme of a statewide and a national issue: Non-discrimination. By taking a larger issue and localizing it, a tactic we have used in Pennsylvania as well, we are able to grow public opinion on these issues by demonstrating strong local support for commonsense reforms. And in Pennsylvania, we’ve seen the dominoes fall – once a few municipalities take action, residents in nearby towns and boroughs start asking their local elected officials to do the same. Currently, 30 municipalities in Pennsylvania have passed laws to ban discrimination in employment, housing, and public accommodation based on sexual orientation and gender identity, almost half of these laws passed in the last two years. Similarly, our legislature works at tortoise speed, and it would be a surprise if marriage equality were to be passed at the state level in the short term. However, the momentum from the LGBT community on this issue is strong, and the desire to see action is even stronger. The key to statewide success is growth in public opinion, so again the focus has been local, with municipalities enacting laws to grant same-sex domestic partner benefits and Mayors across the state endorsing marriage equality. These actions over the course of two years have generated positive media, including newspaper endorsements, for marriage equality and in turn, recent polling has suggested that public opinion for marriage equality has increased. The latest poll, by F&M, shows 52% support for marriage equality, and a recent poll by PPP shows 53% support among registered Republican voters for some form of LGBT relationship recognition (civil unions or marriage equality.) Previous polls had both of these numbers very low – and the public opinion surge is the result of the local media we’ve garnered across the state as well as the national trends on the issue.

In Pennsylvania, we knew we weren’t going to get a statewide non-discrimination law pushed through the legislature, so we hunkered down and passed more than a dozen municipal ordinances. We knew we weren’t going to get a marriage equality law through the legislature, so we approached Mayors of cities large and small and asked them to endorse marriage equality. Both of these tactics worked in our favor because both dramatically increased public opinion for our issues and created a farm team of local elected officials with a record on our issues, so that when they seek higher office, we have an assurance of where they stand.

Political power primarily comes from votes – so we formed an endorsement process and begun getting involved in electoral change. As a non-partisan organization, we endorse LGBT-affirming candidates from both parties, but significantly more Democrats seek our endorsement than Republicans. The same is true for Labor and environmental organizations that endorse candidates. We never endorse Democrats who are opposed to equality, but we have found that numerous Democrats who were previously noncommittal on LGBT equality, are willing to now say they support equality because they have seen our power at the voting booth. Likewise, we have helped to elect a few top-targeted Democratic challengers in the state, and the Democratic Party appreciates our efforts with their targeted candidates. Each candidate seeking our endorsement needs to be supportive of equality – but we also want them to win – so we set realistic expectations for each race we seek to endorse in regarding what our criteria will be, recognizing that winning statewide means that we need to have elected officials across the state who are warm to working with us --- not just in the urban centers. It’s also about building a farm team. In the past election cycle, we supported Democratic candidates for each of our three row offices, all of whom won. All are supporters of LGBT equality, but with varying degrees of an ability to make the changes we need. We are working with them to enact changes they are able to make, but we also are well aware that if any of them were to run for Governor in the future, we have a candidate who we know is fully supportive of LGBT equality. Just as we built clout with the labor movement, we have done so with the Democratic Party structure as well. And rather than working against the party, we worked with the Party. A number of openly gay Democratic State Committee members proposed a resolution for the party to endorse marriage equality. After it passed, we helped educate our community about the support the Democratic Party has shown. I am confident that it helped the Democrats on Election Day.

Part of the path to victory in inconvenient geographies, means that we can’t lead our supporters and our allies in the progressive movement down an unwinnable path. It’s not about compromising our core values, but it is about strategically considering what we can achievably win. If we can’t win on our choice of issue, then shouldn’t we join with our progressive allies on legislation that they can win on? If we don’t have the support to win the votes we need then a further pursuit of an unwinnable campaign will only empower opponents to believe that they’ve beaten back an attempt toward equality. On the other hand, if we partner with progressive allies on relevant state policy issues that indirectly relate to our community – but that are the issue of the day for the progressive movement, we win political clout and progressive policy change. For example, we joined a coalition pushing against a Republican plan to privatize
Pennsylvania’s liquor stores. The issue was sharply opposed by organized labor, and we joined with them arguing that privatization, in a state that doesn’t provide non-discrimination to LGBT employees, puts LGBT employees at risk for employment discrimination. We asked our membership to contact their legislators to oppose the privatization plan and certainly built some political clout with the statewide labor movement. Similarly, we joined a coalition to fight against the now-enacted “Voter ID” law. The law was passed by a Republican legislature, the house Majority Leader even stated that the bill was being passed to help elect Mitt Romney. The Democratic Party was most at risk with this bill, but so were numerous minority communities. We saw our allies at the NAACP and the AARP join the fights against the bill and we recognized that identification discrimination is very common for transgender voters, and that this  legislation created a natural alliance with the Democratic Party to fight against the bill. By assisting the progressive movement with these legislative struggles, we build stronger alliances and we know that we can count on their support for our legislation when we have the votes to bring the issue to a head.

Winning equality means changing hearts and minds. It also means changing laws, but we can’t do that in a vacuum. Laws will change when we have done the work we need to do to educate elected officials about the lack of equality, when we have built the coalitions we need to advance legislation, when we have broadened public support on issues of importance (and have commissioned poling that demonstrates our success), and when we have built political clout to be able to call on our elected officials to prioritize our legislation. We can’t always hit the ground running, sometimes we need to strategize first. Sometimes we need to build stronger alliances with the progressive community, build more political power through the electoral process, build clout by having successfully supported other progressive legislation. LGBT issues do not exist in a vacuum, and LGBT-specific legislation isn’t the only way to define success – supporting labor, supporting voting rights, supporting family-sustaining wages, supporting education – these are all progressive issues that make us more equal.

Why Roy Herron is good for the TNDP

There has been a lot of consternation by Tennessee liberals today with the successful bid of former State Senator Roy Herron (myself and the former Senator are in the photo on the left) to lead the Tennessee Democratic Party. I get their concern, I really do, and I understand the frustration of the Left in Tennessee (yes, they are there) at the election as chairman of the TNDP a leader who is much more Republican in his political positions than Democratic. As a liberal myself, I would also rather see someone who shared my values be at the helm of the Democratic Party in Tennessee, yet at the same time, I recognize the reality of politics in the Volunteer State and hence applaud Herron's election. 

Progressives in Tennessee, though an important part of the Democratic coalition in the State, need to realize that they are not living in New York City, California, of even Tennessee’s eastern neighbor Virginia. As a whole, the Tennessee electorate is pro-life, anti-gay, and pro-gun. They are social conservatives who believe that they cannot vote for the Democratic Party in Tennessee because in doing so, they would be voting against God and their religious values. This is not a unique position that only plagues Tennessee, we see it all over the United States – individuals who vote Republican solely based upon social conservative values knowing full well that those same Republicans screw them over economically.   Thus, in order to compete in a socially conservative state like Tennessee, Democrats need to broaden their tent; they need to accept social conservatives into the Democratic coalition and give them a seat at the table.

The election of Roy Herron as Chairman of the TNDP will accomplish this. He is more likely to attract and back candidates in rural districts that share socially conservative values, yet are economically Democratic; something that a liberal party chairman would be less likely to do. This allows Tennessee voters to be ok with voting for Democrats at the State level, while voting Republican at the national level. Some will say that this strategy has already been tried (Rachel Walden over at Women’s Health News asserts this), yet in doing so they miss what has actually happened. Voters in rural districts do not vote Republican because they would rather just vote for the real thing as opposed to the “republican-lite” Democrat. Instead, voters in rural districts NEED to know that their perception of the TNDP as a bastion of “baby killing, pro-gay, anti-gun evil liberals” is not correct. They need to know that they CAN vote in good conscious for an individual who lines up with their beliefs on social issues, as well as protects their economic issues.  With the election of Roy Herron as party chairman, this much needed perception shift can be accomplished.

This is what matters to me in Tennessee politics, and one can call me practical, a realist, fighting against my values, whatever. But in the end, I would rather have a Democratic majority in the State Legislature made up of both social/economic conservatives and liberals who I know would most likely not touch social issues, than a Republican majority that ONLY worries about social issues, and lets the people of Tennessee sink deeper into economic disparity. 

Buffalo Wild Wings Is Clearly Violating the Second Amendment

So the famous American wing chain Buffalo Wild Wings, has decided to put signage (left) on the front doors of many of their restaurants. Naturally, this has caused quite a frenzy on the Right, as individuals are claiming that their "second amendment rights" are being violated by the new policy and that BWW is "unpatriotic" because of their decision.

It is not surprising that many individuals who claim fealty to the Second Amendment don't actually understand what the Second Amendment means, or even what the Constitution as a whole means. Does the Constitution regulate private action? Can it dictate that private companies like facebook and twitter respect "freedom of speech"? No. In no way has the Constitution ever applied to private businesses. Buffalo Wild Wings, as a private company, can decide to implement a policy that restricts individuals from carrying guns on their property in the same way that I could tell someone that they cannot carry a gun into my house.

Pro "we want to carry guns everywhere" individuals (I won't call them pro-second amendment, as I believe that one can respect the second amendment AND believe in gun control), are free to not eat at BWW, and that is their choice. They can engage in a boycott much like the LGBT community has decided to do when it comes to Chick-fil-A, and based upon the effectiveness of their boycott, they may be able to change BWW's policy. Yet what these individuals cannot do, is claim that their rights are being violated, because it was never their "constitutional right" to carry a weapon into a Buffalo Wild Wings restaurant in the first place.

A Response to Brandon Vogt: Part Two - Equality and Marriage

A few days ago, I started a series in which I analyze Brandon Vogt’s critique of the top ten reasons that marriage equality supporters give for the Government to recognize marriage (my first analysis is here). Today, we will be looking at the second argument in favor of marriage equality, and Mr. Vogt’s critique of it. He claims,

2. Same-sex marriage is primarily about equality.

This argument is emotionally powerful since we all have deep, innate longings for fairness and equality. Moreover, history has given us many failures in this area, including women banned from voting and African-Americans denied equal civil rights. The question, of course, is whether same-sex couples are denied equality by not being allowed to marry each other. 

To answer that, we first must understand equality. Equality is not equivalency. It does not mean treating every person or every group in exactly the same way. To use an analogy, men and women have equal rights, but because they significantly differ they require separate restrooms. Equality means treating similar things similarly, but not things that are fundamentally different. 

Second, there are really two issues here: the equality of different people and the equality of different relationships. The current marriage laws already treat all people equally. Any unmarried man and unmarried woman can marry each other, regardless of their sexual orientation; the law is neutral with respect to orientation just as it ignores race and religion. 

The real question is whether same-sex relationships differ significantly from opposite-sex relationships, and the answer is yes. The largest difference is that same-sex couples cannot produce children, nor ensure a child’s basic right to be raised by his mother and father. These facts alone mean we’re talking about two very different types of relationships. It’s wrong, therefore, to assume the state should necessarily treat them as if they were the same. 

Same-sex marriage advocates may argue that it’s discriminatory to favor heterosexual spouses over homosexual couples. With all of the benefits flowing from marriage, this unfairly endorses one set of relationships over another. But if the state endorsed same-sex marriage, it would then be favoring gay “spouses” over unmarried heterosexual couples. The argument runs both ways and is ultimately self-defeating.

First, Mr. Vogt claims that equality does not equal equivalency. That is correct; our society does treat things differently even though there is may be equality between them (men and women’s restrooms being an example).  He then goes on to say that when discussing marriage laws in the United States, we need to understand that there is a difference between how the law treats an individual, and how the law treats a relationship. He asserts that our current marriage law is neutral on its face, and that any unmarried person, regardless of their sexual orientation, can marry anyone of the opposite sex. Though it may seem persuasive, this is a common, yet easy to rebut argument, that those who are opposed to marriage equality bring to the table.

With this assertion, Mr. Vogt glides over the real meaning of equality. Equality is not that each person is treated the same (as we have already agreed too above), but is instead that each person has the ability to access the right in question in the same way. Our current marriage laws fail that test, and therefore they are not truly equal. A gay man or a lesbian woman cannot experience the marriage right in the same way by marrying someone of the opposite sex as they can by marrying someone of the same sex. For homosexuals, marriage, and the emotional experience that it provides us, can only be fully shared with those who are of the same sexual orientation. Therefore, keeping marriage limited to an expression between two people of opposite genders, does not allow LGBT individuals access to fully enjoy the marriage right.

Mr. Vogt then discusses the differences between the relationships and whether same-sex relationships are the same as heterosexual relationships. Again, he asserts that the state needs not recognize homosexual couples as equal to heterosexual couples because same-sex couples cannot produce children or “ensure the child’s basic right to be raised by his mother and father”.  First of all, a child being raised by his mother and father is not a “right”; it may be what Mr. Vogt views is ideal, but it is not a right in the legal sense (but that is an argument for another day). Mainly though, Mr. Vogt’s assessment is based upon the fact that he views the states purpose in recognizing marriage is to ensure procreation.  First, as I said here, though procreation may be one purpose that government encourages marriage, it has not been – and isn’t currently – the only reason why marriage exists as a government institution.  For example, Government recognizes that it is GOOD for society to have stable economic and emotionally integrated relationships. For Government purposes, marriage is also an efficient way of determining inheritance rights, who makes medical decisions, and privileges when it comes to legal proceedings.  Second, just because there is a slight difference between two groups, does not mean that Government should treat those groups differently. If there was, then we would be going back into a “separate but equal” mentality – one which I highly doubt that Mr. Vogt agrees with.

Lastly, Mr. Vogt asserts that if we grant same-sex partners the rights and benefits of marriage, then we are discriminating against unmarried heterosexual partners. This argument is a non-sequitur. A heterosexual couple who is unmarried still has the ability to enter into the government recognized marriage relationship. Currently, same-sex couples do not have that ability. By opening up marriage rights to same-sex couples, the State will be ensuring that both heterosexual and homosexual couples, if they so choose, can enter into state-sanctioned marriage.