Call it the Cuomo Constitution — after Governor Andrew Cuomo of New York. He’s in the news, as we marked in our editorial yesterday, for arguing that the federal government should be more aggressive in setting a national approach to the rules of engagement in the war against the novel coronavirus. Here’s how Mr. Cuomo put the point in a press call with Governors Lamont of Connecticut and Murphy of New Jersey:
“I make sure all the rules are the same in my state. New York City can’t do anything different than Nassau County or Suffolk County or Westchester County because if that happens people will just shop among the different locales. You close a bar in Nassau but you leave it open in New York City, all you’re doing is having people drive from Nassau County to New York City, which is the last thing we want to do.
“It’s also true among states. If I take certain actions, or Governor Lamont takes certain actions, we’re all in the same area, any one of our residents can get in the car and just drive to the neighboring state to do whatever they want to do. So we have agreed to a common set of rules that will pertain in all of our states. So don’t even think about going to a neighboring state because there’s going to be a different set of conditions.”
That might sound reasonable in respect of a medical emergency like the coronavirus, but how does it sound as a general principle? And how does Mr. Cuomo himself behave in the face of a clear national regulation, even foundational law, applying to the whole country — like, say, the Second Amendment? The Founders certainly intended that to apply to the whole country. They wrote it directly into the Bill of Rights.
Well, yo, ho, ho and a bottle of rum. It turns out that this view of the Second Amendment is not favored by the governor of America’s most progressive state. He defies the Second Amendment. He wants to regulate guns. Plus, too, he turns his back on the First Amendment — free speech, right to petition — and sics his financial regulators on the National Rifle Association for trying to defend the Second Amendment in the State of New York.
It’s not our intention here to sneer at Mr. Cuomo. His father, Governor Mario Cuomo, was exceptionally friendly to The New York Sun, notably so given our differences. He’s gone five years, alas. It turns out, though, that his father and we were in love with, in the Constitution, the same parchment. When Mario Cuomo died, we recounted how he’d changed our thinking on the constitutional question of war declarations.
Maybe something surprising will come out of the contretemps in which the current Governor is embroiled. There are, after all, two ways to address his concerns. Either have the federal government step in and, in respect or the coronavirus, set the rules for all the states and then enforce the federal format. Or Mr. Cuomo could adjust to the prospect that Connecticut and New Jersey might pursue different approaches to danger.
Our point yesterday was that Mr. Cuomo was trying to address this constitutional conundrum by striking with Connecticut and New Jersey an agreement that itself would be a violation of the constitutional prohibition on states making any agreements that aren’t approved by Congress. This editorial is animated by the broader question — on which side is Mr. Cuomo in the constitutional contest (don’t forget sanctuary cities)?
And which side is the true conservative position? There is a school of thought, after all, that the Bill of Rights, of which the prohibition on gun control is the second article, was designed to apply solely to Congress. After the 14th Amendment, the courts began incorporating the Rights Bill against the states. It was only in 2010, in McDonald v. City of Chicago, that the right of the people to keep and bear arms was incorporated.
Is the true conservative position in favor of incorporating the Second Amendment against the states? Or is it in favor of the states’ rights to set their own blasted gun policies? It’s not our intention to resolve that question in this editorial. Only to put into relief the fork Mr. Cuomo is facing. If he wants a uniform rule, the Second Amendment would be a terrific place to start. How his father would have relished reasoning out this question.