Tag Archives: Constitution

#Enough Thoughts and Prayers, rights aren’t necessarily conveniences

Mass Shooting Victims

The photos of the victims of mass killings in this country show the faces of America. White, black, brown, gay, straight, men, and women. From the very young to the elderly.  And they all died too soon at the hands of those who could arm themselves with lethal weapons without any inconvenience.

The 2nd Amendment says we all have the right to keep and bear arms … there is NO mention in the Amendment that purchasing firearms has to be “convenient.”

The gun fetishists among us cry that their “rights are infringed” if they are to be inconvenienced in any way when purchasing or procuring lethal weapons. They cite their imaginary well greased slippery slope to full tilt gun control.

And, lo! cry the fetishists and their allies, any imposition of a burden of responsibility is a denial of our civil liberties.  But, wait a minute. It is inconvenient to register to vote – however, that’s the inconvenience we accept to prevent voter impersonation.  It’s inconvenient to edit and fact check news articles – but that’s the inconvenience we accept as part of the freedom of the press to avoid charges of libel.

It is inconvenient for government officials to get search warrants, but that’s the balance we have to prevent unlawful searches and seizures.  It’s inconvenient for the judicial system that a person may not be compelled to testify against himself – but that’s the inconvenience we accept to make the system work under constitutional principles.

How easy it appears to be to have advocates of the implementation of the Patriot Act speaking of national surveillance, and justifying those National Security Letters, while bemoaning the restrictions on those included on the terrorist watch list who seek to purchase lethal weapons.

If we didn’t infer “convenience” in the 2nd Amendment, then might we have fewer suicides, fewer murders, fewer mass shootings and killings.  Fewer funerals, fewer remembrances, fewer tragedies, and a much safer society?

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Filed under Congress, conservatism, gay issues, Gun Issues, Hate Crimes, Senate, terrorism

Original Sins: The Nevada GOP Platform and Originalism

GOP Elephant Fear7. Have you read the Nevada Republican Party Platform? Describe your position on the platform and its relationship to your office.” Item Seven, questionnaire for candidates seeking endorsements from the Nevada Republican Party. [Ralston]

One instant impression from glancing over the contents of the Platform is that Winston Churchill was correct:  “Why, you may take the most gallant sailor, the most intrepid airman or the most audacious soldier, put them at a table together- what do you get? The sum of all fears.”

A candidate who supports the platform as drafted for 2012 could easily state that his or her advocacy is representative of the fear of our own government, the fear of changing demographics, the fear of immigrants, and the fear of some ethereal and intangible loss of control.  The document begins with a discussion of their perspective of the U.S. Constitution, including the insertion: “We expect our elected representatives and the courts will interpret the Constitution using original intent and context.”  (emphasis added)  This, one supposes, is intended to relieve some of those fears.

Original Sins

Really? Because Originalism, as a framework for Constitutional interpretation, is  about as entangling and self contradictory as can be imagined.   Here’s an example:

The Constitution forbids “cruel and unusual punishment.”  What does that mean?   Does it mean that we should return to the interpretation applied as late as 1837 in North Carolina?

“…by 1837, North Carolina required death for the crimes of murder, rape, statutory rape, slave-stealing, stealing bank notes, highway robbery, burglary, arson, castration, buggery, sodomy, bestiality, dueling where death occurs, hiding a slave with intent to free him, taking a free Negro out of state to sell him, bigamy, inciting slaves to rebel, circulating seditious literature among slaves, accessory to murder, robbery, burglary, arson, or mayhem and others.”  [Frontline]

However, the death penalty for slave incitement, or other abolitionist activities wasn’t included in statutes in New York or Pennsylvania.  By 1815 several states had reduced the application of the death penalty to two crimes, but some southern states actually increased its application to crimes committed by enslaved persons.   With this history in mind, what did the framers of the Constitution intend? Did some intend that the death penalty was cruel and unusual in cases of burglary? Did others assume the death penalty was appropriate, and neither cruel nor unusual, for those who harbored run-away slaves?

If a person is to judge Constitutional intent based on the interpretations of the framers then it’s imperative to know which framers to follow.  Are we to follow the intent as conceived in North Carolina? Or Pennsylvania? Or New York?  At this point we come to the second obvious problem with Originalism, the context.

What context? Do we define the context as that applicable to the delegates to the Constitutional convention from North Carolina?  It seems absurd to try to tease out the original context of “cruel and unusual punishment” when half the nation had Slave Statutes on their books, and half didn’t.  Is “whipping” a cruel and unusual punishment?  Caning, whipping, and beating have virtually disappeared in western democracies, while still being retained in some Asian and African nations.   We would have to ask the Originalists what they would make of the 1994 outcry when an American teenager, Michael Fay, was caned for vandalism in Singapore.   Was that “cruel and unusual” by our standards? If so, then haven’t our “standards” (or our interpretation) changed since the early 19th century?  Cass Sunstein articulates the essential problem with any attempt to create the illusory context for Constitutional interpretation:

“Whenever circumstances change, originalists have to engage in some extrapolation, asking how the original understanding applies to problems on which We the People had no view. When they engage in that extrapolation, they aren’t asking a purely historical question, but instead about the best or most appropriate understanding of a constitutional principle in an unanticipated context — the very question that originalists want to avoid.” [Bloomberg]

The extrapolation becomes a highly subjective exercise, which contrasts sharply with the perceived objectivity sought by conservative Originalists.  What would Alexander Hamilton and Thomas Jefferson have thought of the Dodd-Frank Act regulating the bankers whose manipulations caused the recent financial crisis?  Hamilton favored a strong central government, but he was also a proponent of banking and commercial interests. Jefferson favored a decentralized government, but he opposed the establishment of a national bank.   Attempts to re-litigate the Federalist and Anti-Federalist positions on commerce and banking would have precious little bearing on the issues related to such recent adaptations as credit default obligations, and derivative swaps.

The arguments underpinning the Nevada Republican Platform on Originalism imply a fear of a changing legal environment, perhaps one in which rights are extended to groups of people not counted in the framers notions of citizenry, such as African Americans, but the contentions themselves demand the (1) selection of pertinent 19th century opinion makers; (2) application of a context in which to interpret a statute which may or may not be appropriate to the specific issue debated; and (3) pure guess work as to how those who wrote the Constitution might be inclined to opine on modern institutions.  The Originalism which starts out to be objective, steadfast, and true, quickly devolves into subjective, transient, and relative.

Based on the essential problems with Originalism as expressed in the Nevada GOP platform a person would do well to follow Jon Ralston’s advice on Item 7.

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Filed under Nevada politics, Politics

The Ultimate Silliness of the Unrestricted Rights Argument

ConstitutionAs the Nevada Legislature considers three bills today from the NRA/ALEC offerings (easing restrictions on concealed carry permits, and allowing firearms on campuses) [TBN]  A person can only hope  that the most inane argument possible won’t be expounded on behalf of their passage.   It goes like this: “We have a RIGHT to bear arms.”

Yes, you and I do.  However, to argue that this particular “right” is so essential as to preclude any restriction is — no matter how it’s considered — is ludicrous. There are NO rights without some restrictions predicated by responsibility.

We have the right of Free Speech.  However, nothing in the First Amendment allows  me to slander another individual.  Likewise, nothing in that august Amendment offers me any succor if I indulge in such irresponsible behavior as to cause immediate danger to others — in the classic expression: I cannot yell “FIRE” in a crowded theater just to see what might happen for my own infantile amusement.

We have a Free Press.  What we do not have is the permission to engage in libel.   NRS 200.510 is quite clear about this:

“A libel is a malicious defamation, expressed by printing, writing, signs, pictures or the like, tending to blacken the memory of the dead, or to impeach the honesty, integrity, virtue, or reputation, or to publish the natural defects of a living person or persons, or community of persons, or association of persons, and thereby to expose them to public hatred, contempt or ridicule.”

Thus if I’m inclined to publish something maliciously lying in order to make someone or some group contemptuous, then neither the U.S. Constitution nor the Statutes of Nevada will support this kind of juvenile behavior.

We have the right to peaceably assemble.  Indeed we do, however if we “peaceably” assemble in a crowded intersection during rush hour, we’re going to get removed.   No one in his or her right mind is going to laud our endeavors, and our fellow highly irritated citizens will no doubt be more inclined to cheer the police officers who remove the unsafe bottle-neck we’re creating in traffic.   We may picket a location, but we cannot block a location. We may assemble in crowds as large as a Presidential Inauguration on the Mall or as small as a street corner protest — but whatever the size we are to behave ourselves as responsible persons.

We may exercise our freedom of religion.  However, we do not countenance sacrificing virgins, or even small animals.  No matter how much we may crave beneficent winds in our sails, it is unseemly (and unprotected) to sacrifice any Iphigenia on our own altars of Aulis.   Nevada law has an entire chapter (574) devoted to protecting animals.  We can’t leave pets unattended in hot motor vehicles (NRS 574.195) much less offer them up to appease the gods.

We may petition the government to redress our grievances.   Petitions were a hotly contested item during the English Civil Wars when the monarch was pleased to ignore all such requests, until forced to do so by cannons.  We’ve had a rough history with this right — especially when the Congress of the U.S. decided it would hear no more petitions from Abolitionists in regard to the issue of slavery and instituted the Gag Rule.   The elimination of the Gag Rule requires a government to read a petition — it doesn’t require that it act upon it.   There are limits.

Note that even in the 3rd Amendment which restrains any government from housing military personnel in private homes is limited by the phrase “but in a manner to be prescribed by law.”

The 4th Amendment allows us freedom from “unreasonable” searches and seizures by authorities.  It doesn’t allow a person to stockpile a collection of purloined merchandise in a garage the door to which is wide open and the stolen property is there for any and all to see.  Nor would the provisions of the 4th Amendment allow protection from having a neighbor report shipments of stolen property arriving for storage in the garage.

The 5th Amendment introduces some of our judicial rights: No double jeopardy, no prosecution without  a presentment or indictment, no deprivation of life or property without due process of law, and no property taken without just compensation, no self incrimination.    However much we have taken the Double Jeopardy idea to heart, nothing prevents the D.A. from filing separate counts of murder if there is more than one victim.  There is no self-incrimination required, but nothing in modern law prevents a spouse from testifying if it’s voluntary.  We can appeal a decision to have property seized, and appeal the level of compensation, but we probably can’t get away with charging a local government $12 billion for our shack which is about to get “re-developed” in a neighborhood improvement plan.   Again, there are limits.

The 6th Amendment extends our judicial rights: Speedy and public trials, impartial juries, information about the charges, confrontation of witnesses, subpoena power for witnesses on our behalf, assistance of counsel.  Once more there are limits.  A person has a right to counsel, but not necessarily to the highest priced white shoe law firm available.  The accused has a right to confront witnesses, but this has been augmented by video testimony in situations in which the witness is too fragile to attend court, or too emotionally vulnerable (as in children) to face a packed courtroom.   Amendment 7 lists another judicial right, that to a trial by jury for civil cases, and the guarantee that appeals courts will adhere to the rules of common law.   So, there are supposed to be 12 jurors?  Not necessarily, since Colgrove v. Battin it’s been permissible to have 6 jurors in civil juries.  [CRS/LII]

Amendment 8 forbids excessive bail and cruel and unusual punishment.   There was a time when a person could get 5 years hard labor for stealing an umbrella, or three for stealing a rasher of bacon in the U.K. [Telegraph] There was a time in this country during which horse theft would result in capital punishment.  What is “cruel and unusual” is a matter of continual debate.   Would bail set so high that an accused criminal could not possibly provide it be considered “excessive,” or a polite way to tell the murderer-rapist he’s not going anywhere before trial? We assume that these questions and definitions are subject to interpretation, and are not literal reminders to return to the days of public hangings, whipping posts, and hanging for horse theft.

In short, not one of the first 8 Amendments to the U.S. Constitution is considered so sacrosanct that it is not subject to limitations and interpretations.  At least not in reasonable circles.

The unreasonable ones have an alternate theory of Constitutional development in which the 2nd Amendment is the foundation of the others.  If so, then why is it second?  Or, more rationally, if it is considered foundational then are there no other, less violent, measures assumed for the furtherance and maintenance of American rights?  The answer, of course, is that there are.

You have the Right to Vote.   Any question regarding the structure and content of the U.S. Constitution is put to a VOTE, including the 2nd Amendment.  Amendments may be added, we added 27 of them.  Amendments may be repealed, we’ve repealed one of them, the 18th (Prohibition).   The inclusion of enumerated rights depends not upon who wins the Battle of the Capitol Mall, but upon which side marshals the best arguments and secures the most votes for a proposition.

The propensity to indulge in armed violence to maintain a “right” does not indicate that the urge is synonymous with the founding principle of American democracy — only that some people are perfectly willing to use violence in order to perpetuate a provision.   We have, indeed, fought to preserve the liberties listed in the Bill of Rights, and our Constitutional form of government, World War II being one of the best examples.  We fought, and survived, a heinous Civil War to preserve our form of federalism.  We did not necessarily engage in warfare to preserve an individual’s right to fight.

Flights of Fantasy

Some of the most fantastical arguments for the unlimited and literal interpretation of our 2nd Amendment are based in hypothetical terms the validity of which are wide open to critique.  What if the Government Came To Take Our Guns?  A possibility NO ONE is seriously suggesting.  What if the Iranians, the North Koreans, the Arabs, the Chinese, or any other popular bogeymen du jour invades us?    This isn’t going to happen if we’re getting what we pay for in terms of national defense:

US military spending

We have 11 aircraft carriers, 22 cruisers, 61 destroyers, 26 frigates, 53 submarines, and other craft to a total of 285 vessels. [USNavy]  Spain and Italy each have 2 aircraft carriers, everyone else has one to none. [GFP] And, the Iranians and North Koreans are going to do what?

Only in the per-fervid imaginings of screenwriters and those who have some difficulty determining the difference between fiction and non-fiction are we facing any immediate threat from anyone anywhere.  Theirs are gossamer dreams of gore and glamor  more congenial to Hollywood gadget movies than to any form of life as we know it.

And Temper Tantrums

The only other explanation offered for an armed citizenry at the ready to fight off the Intruder is more readily aligned with childish temper tantrums than practical politics.   On a personal level, I was about as happy with the Bush Administration as I was with the prospect of multiple  root canals without benefit of anesthetics.  However, I had, and used, the best tool available to reject the policies of that Administration — my vote.    I felt no need to run to the nearest gun retailer, no need to gather an arsenal.  My vote was sufficient.   If I am not well pleased with the policies and legislation put forward by any administration I have the first tool in the box to display my disagreement — my vote.  However, I am not, nor will I ever be the Center of the Universe, I share this country with 330,000,000 others.   Some will agree, and others not.  Should a majority of my fellow citizens disagree with me what do I do?  I wait for the next election.

The only thing on offer from those who need the porous bulwarks of imagination to justify their need for armed resistance every time some bit of legislation is not to their liking is a dazzling display of how little faith they have in this country and its political institutions.   How depressing to think that there people so disengaged from our civic life that they’ve convinced themselves violent rebellion is better than civil participation.  How dejecting the prospect that they believe their right to bear arms is more imperative than their right to vote?

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