Important DC Circuit Second Amendment Ruling

Ken AshfordConstitution, Gun Control3 Comments

The Second Amendment of the U.S. Constitution reads:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Grammatically, it’s an awkward sentence, and much has been made of the "well-regulated militia" phrase.

Basically that controvery boils down to this:  Does the presence of the Militia Clause mean that the "right" is an individual right, or a collective right?  In other words, do individuals have a right to carry arms insofar as they are necessary for a Militia, or is it, quite simply, does the right exist for all individuals for any reason?

Remember, when the Second Amendment was ratified, there was no standing army in the United States.  Our young country was defended by homegrown militias — people who fought and defended using their own firearms.

The interpretation of the Second Amendment interpretation has real-world implications.  If it is a collective right, then theoretically, government can ban the use of "arms" to the extent that they are not used for militia (which effectively means the Second Amendment has no weight in present day terms, since we don’t really have militias).  On the other hand, if it is an individual right, then theoretically, government cannot ban the right to own arms at all.  As you might expect, gun control advocates prefer a collective right interpretation; gun enthusiasts prefer an individual right interpretation.

There are powerful arguments to either side.

Collective rights arguments

  • The Second Amendment uses the phrase "the people" — suggesting a collective right — rather than "persons" — which suggests an individual right (see, e.g., Fifth Amendment)
  • If the Framers intended the right to inure to individuals, the Militia Clause would have been left out altogether.  In other words, the Second Amendment would read something like: " the right of persons to keep and bear Arms shall not be infringed."
  • "Bear arms" is a distinctly military phrase (and was back in the 18th century), suggesting that the Framers were, like the Military Clauses suggests, thinking about the right pertaining only to the necessity of a Militia, and not "individual" rights.

Individual rights arguments

  • State constitutions of the day, which were the boilerplate patterns for the U.S. constitutions, used similar language, but clearly intended for there to be individual rights, separate and apart from rights relating to a Militia.
  • The Militia Clause does not express a prequisite for allowing citizens to have guns, but it merely states a reason (and not the only one)
  • Most of the other amendments in the Bill of Rights (with the exception of freedom of association and freedom of the press) inure to the benefit of the individual.
  • "The right of the people" does not necessarily suggest a collective right (see, e.g., the Tenth Amendment)

The U.S. Supreme Court has never addressed this question directly, save for a 1939 case involving sawed-off shotguns.  There, the Court held that sawed-off shotguns could be banned by the government and it would not violate the Second Amendment, because the Second Amendment’s "obvious purpose to assure the continuation and render possible the effectiveness of such [militia] forces."  However, while seeming to support a collective rights view, there was enough "wiggle language" in the court opinion to suggest that the Court was not wholeheartedly rejecting an individual rights point of view.

I’ve studied this at length in the past and, as much as I am a supporter of gun control, I find the legal scholars who say the Second Amendment is an individual right have the better argument.

Today, the DC Circuit issued an opinion on this very subject.  Like a few other circuit courts earlier in the past ten year, they found that the Second Amendment protects an individual right.  The opinion is, I think, very lucid, and address many of the arguments from the "collective rights" perspective.

Someday, probably within the next 5-10 years, the U.S. Supreme Court will come down on this issue (in fact, this case on appeal may be the one).  But in the meantime, the DC Circuit case coming down today is an important one, and one that gun control advocates (like me) are clearly not going to like, even though (in my view) it is the legally correct decision.

Key languge from the opinion below the fold

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FBI Violated Patriot Act

Ken AshfordWiretapping & SurveillanceLeave a Comment

But for a scandal-ridden administration and a scandal-weary public, the exclusive report by ABC news would probably be considered a "bombshell".  Sadly, it’s probably just going to be thrown on the pile as yet another abuse of laws and the Constitution by the Bush Administration — a cabal who never feels beholden to follow the law and Constitution in the first place:

The FBI repeatedly failed to follow the strict guidelines of the Patriot Act when its agents took advantage of a new provision allowing the FBI to obtain phone and financial records without a court order, according to a report to be made public Friday by the Justice Department’s Inspector General.

The report, in classified and unclassified versions, remains closely held, but Washington officials who have seen it tell ABC News it documents "numerous lapses" and describe it as "scathing" and "not a pretty picture for the FBI."

FBI Director Robert Mueller is scheduled to brief Congress on the report at noon.

The officials say the inspector general found the FBI underreported by at least 20 percent the use of the controversial provision, known as National Security Letters, NSLs, in required disclosures to Congress.

The Patriot Act gave FBI agents the ability to demand telephone, bank, credit card and library records by issuing an administrative letter, bypassing the need to seek a warrant from a federal judge.

Senator Feingold has issued a statement:

This report proves that "trust us" doesn’t cut it when it comes to the government’s power to obtain Americans’ sensitive business records without a court order and without any suspicion that they are tied to terrorism or espionage. I fought hard to prevent abuses of this power when the Senate debated reauthorizing the Patriot Act last year. I will work with Senator Leahy and Senator Rockefeller to make sure the Judiciary and Intelligence Committees conduct full and prompt investigations, and I will press for quick Senate action on sensible reforms to help prevent future abuses of National Security Letters.

Glenn Greenwald points out something important:

That the FBI is abusing its NSL power is entirely unsurprising, …but the real story here — and it is quite significant — has not even been mentioned by any of these news reports. …[T]he NSL reporting requirements imposed by Congress were precisely the provisions which President Bush expressly proclaimed he could ignore when he issued a "signing statement" as part of the enactment of the Patriot Act’s renewal into law. Put another way, the law which the FBI has now been found to be violating is the very law which George Bush publicly declared he has the power to ignore.

***

When a country is ruled by an individual who repeatedly and openly arrogates unto himself the power to violate the law, and specifically proclaims that he is under no obligation to account to Congress or anyone else concerning the exercise of radical new surveillance powers such as NSLs, it should come as absolutely no surprise that agencies under his control freely break the law.

Exactly.  When the President himself specifically declares that he can ignore a particualr law, is it any wonder that the FBI ignored the law?

UPDATE:  The audit report (warning: very very large PDF) is now available.  CNN provides these bulletpoint details:

• Poor bookkeeping, records management to blame, one official says
• FBI reported checking on phone, e-mail records of 3,501 people over two years
• FBI said it made 9,254 record requests, but audit shows figure is 20 percent more
• Unlike subpoenas, targets of national security letters not notified

Hoist, Petard — You Know How It Goes

Ken AshfordRepublicans, Sex/Morality/Family ValuesLeave a Comment

AP:

Former House Speaker Newt Gingrich acknowledged he was having an extramarital affair even as he led the charge against President Clinton over the Monica Lewinsky affair, he acknowledged in an interview with a conservative Christian group.

"The honest answer is yes," Gingrich, a potential 2008 Republican presidential candidate, said in an interview with Focus on the Family founder James Dobson to be aired Friday, according to a transcript provided to The Associated Press. "There are times that I have fallen short of my own standards. There’s certainly times when I’ve fallen short of God’s standards."

Gingrich argued in the interview, however, that he should not be viewed as a hypocrite for pursuing Clinton’s infidelity.

"The president of the United States got in trouble for committing a felony in front of a sitting federal judge," the former Georgia congressman said of Clinton’s 1998 House impeachment on perjury and obstruction of justice charges. "I drew a line in my mind that said, ‘Even though I run the risk of being deeply embarrassed, and even though at a purely personal level I am not rendering judgment on another human being, as a leader of the government trying to uphold the rule of law, I have no choice except to move forward and say that you cannot accept … perjury in your highest officials."

Riiiiiiight.  Because it was until Clinton got in front of a federal judge that Newt started pursuing him. (NOT!)

V Monologues Controversy Update

Ken AshfordWomen's IssuesLeave a Comment

The New York Times covers the story today, here.  It doesn’t add much to what I posted yesterday, except that it adds the views of "Vagina Monologues" author Eve Ensler:

In an interview on Wednesday, Ms. Ensler said that she called the girls on Monday to praise them and offer her support.

“Why a school has a problem with teenagers saying the word vagina is beyond me, and is truly a throwback to the dark ages,” she said. “It’s just shocking in 2007 to even be engaged in this dialogue.”

Also, the story mentions that because of the news publicity, the girls have won a temporary reprieve from their one-day "in-school suspension" [Question: what does an in-school suspension mean, exactly?]  It looks like the local school board is going to look into the matter at a public meeting.  Oh, that would be so cool to go to.

Finally, it looks like the attempt by school officials to suppress the uttereance of the word "vagina" has backfired.  Seriously backfired:

Classmates have gone so far as to make T-shirts and posters to protest the punishment, and a Facebook site opposing the suspensions has attracted attention from people nationwide who have posted messages like: “We support you, and we support your courage. Vagina Pride!”

***

Not that the students here seem to need encouragement. On Web sites, at school and among their supporters, the girls are now being referred to by a term popularized by their heroine, Ms. Ensler: the “Vagina Warriors.”

Looks like. no matter what happens, the girls can claim victory . . . and they do.

Democratic Leadership Announces Plan For Iraq

Ken AshfordIraqLeave a Comment

The key detail: President Bush will be required to certify on July 1, 2007 and again on October 1, 2007 whether the Iraq government is meeting key benchmarks in reducing violence and other areas.

If Bush certifies that, yes, the Iraqis are meeting them, then withdrawal would begin on March 1, 2008, and be completed by September 1 of that year.

If Bush certifies on July 1 that, no, the Iraqis are not meeting their benchmarks, then withdrawal would commence immediately and conclude in six months. If he certifies that the Iraqis are meeting the benchmarks on July 1 but not on October 1, then the same six-month withdrawal would kick into gear.

Anyway you slice it, we’re out of Iraq by 9/2008 at the latest.

Are Dems soft on the war on terror?  No.  Here’s another part of the proposal:

Democrats also intend to add $1.2 billion to Bush’s request for military operations in Afghanistan, where the Taliban is expected to mount a spring offensive.

And Dems support the troops, too:

The bill also would add $3.5 billion to Bush’s request for veterans’ health care and medical programs for active duty troops at facilities such as the scandal-scarred Walter Reed Medical Center in Washington.

Criticize that, GOP.

UPDATE:  Full details about the bill here.

Polar Bears And Soviet-Style Directives

Ken AshfordBush & Co., Environment & Global Warming & Energy1 Comment

BabypolarbearThe efforts of the Bush Adminstration to keep everyone "on message" (no matter how absurd that message is) are Stalineqsue:

Internal memorandums circulated in the Alaskan division of the Federal Fish and Wildlife Service appear to require government biologists or other employees traveling in countries around the Arctic not to discuss climate change, polar bears or sea ice if they are not designated to do so.

Over the past week, biologists and wildlife officials received a cover note and two sample memorandums to be used as a guide in preparing travel requests. Under the heading “Foreign Travel — New Requirement — Please Review and Comply, Importance: High,” the cover note said:

“Please be advised that all foreign travel requests (SF 1175 requests) and any future travel requests involving or potentially involving climate change, sea ice and/or polar bears will also require a memorandum from the regional director to the director indicating who’ll be the official spokesman on the trip and the one responding to questions on these issues, particularly polar bears.”

The sample memorandums, described as to be used in writing travel requests, indicate that the employee seeking permission to travel “understands the administration’s position on climate change, polar bears, and sea ice and will not be speaking on or responding to these issues.”

Electronic copies of the memorandums and cover note were forwarded to The New York Times by Deborah Williams, an environmental campaigner in Alaska and a former Interior Department official in the Clinton administration.

“This sure sounds like a Soviet-style directive to me,” Ms. Williams said.

Me, too.

Fox News Now Hyping A “War On Easter”

Ken AshfordGodstuffLeave a Comment

Easterwar320240

Oh, brother.

The hyper of this non-story is Fox’s John Gibson, and the main evidence in his accusation is that certain communities have things like "Spring Egg Hunts" and "Spring Bunnies" and so on.

Somebody needs to sit Gibson down and explain to him the Christian doctrine which he thinks he’s defending.  He might be surprised to learn that bunnies and eggs play absolutely no bibical role in the resurrection of Christ.  Read your Bible, John.

In fact:

"The bunny is a fertility symbol with no religious connection to Easter," added Cunningham who was the Christianity editor for the in the HarperCollins Dictionary of Religion. "The egg, which was popularized in Greece, Russia and Eastern Europe in connection with Easter, does not have a religious connection to Easter. By taking away the term ‘Easter,’ these symbols to some extent return to their pre-Christian roots as symbols of spring fertility."

The Search For An Obama Scandal Grows

Ken AshfordElection 20081 Comment

Really, is this the worst the media can dig up?

Two weeks before the US senator from Illinois launched his presidential campaign, he paid parking tickets he received while attending Harvard Law School, officials said yesterday.

Obama received 17 parking tickets in Cambridge between 1988 and 1991, according to the city’s Traffic, Parking & Transportation Department.

Of those tickets, he paid only two while he was a student and paid them late, said Susan Clippinger, the office’s director.

In January, about when the Globe began asking local officials about Obama’s time at Harvard, including any violations of local laws, someone representing the senator called the parking office to inquire about the decades-old tickets.

On Jan. 26, the remaining $375 in fines and fees were paid by credit card using the city’s website, Clippinger said. She said she didn’t know who paid them.

It’s getting ridiculous.

MichaelStickings quips:

In related news, Obama is half-black, or something, may or may not be Muslim, may or may not belong to a pseudo-Christian cult that promotes racial segregation, has the suspicious middle name “Hussein,” and is only one consonent of separation away from Osama. Oh, and when he was younger he attended an Indonesian school that’s really a terrorist training camp, something called a “madrassa,” you know, highly dubious and foreign-sounding. And there were those shady real estate deals in Chicago. So, really, there’s no way he can be president. He’s totally unqualified and he’s probably a traitor. For God’s sake, he doesn’t even pay his parking tickets on time!