Monthly Archives: November 2007

What’s At Stake In Parker v. D.C.

Constitution, District of Columbia v. Heller, Individual Rights, Keep and Bear Arms

Mike Cox writes in the Wall Street Journal about what’s at stake in the D.C. gun control case now before the U.S. Supreme Court. At issue in the case is whether the Second Amendment protects an individual right to keep and bear arms, or whether the right is a “collective” one referring to the states’ right to form militias. With the exception of one Federal Circuit Court of Appeal, the consensus since the 1930s has been that the right is a collective one, thus justifying on a constitutional basis nearly any gun control measure you can think of.

As Cox notes, the language and history of the Bill of Rights clearly indicates otherwise:

The rights guaranteed in the Bill of Right are individual. The Third and Fifth Amendments protect individual property owners; the Fourth, Fifth, Sixth and Eighth Amendments protect potential individual criminal defendants from unreasonable searches, involuntary incrimination, appearing in court without an attorney, excessive bail, and cruel and unusual punishments.

The Ninth Amendment protects individual rights not otherwise enumerated in the Bill of Rights. The 10th Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Here, “the people” are separate from “the states”; thus, the Second Amendment must be about more than simply a “state” militia when it uses the term “the people.”

Consider the grammar. The Second Amendment is about the right to “keep and bear arms.” Before the conjunction “and” there is a right to “keep,” meaning to possess. This word would be superfluous if the Second Amendment were only about bearing arms as part of the state militia. Reading these words to restrict the right to possess arms strains common rules of composition.

Colonial history and politics are also instructive. James Madison wrote the Bill of Rights to provide a political compromise between the Federalists, who favored a strong central government, and the Anti-Federalists, who feared a strong central government as an inherent danger to individual rights. In June 1789, then-Rep. Madison introduced 12 amendments, a “bill of rights,” to the Constitution to convince the remaining two of the original 13 colonies to ratify the document.

Madison’s draft borrowed liberally from the English Bill of Rights of 1689 and Virginia’s Declaration of Rights. Both granted individual rights, not collective rights. As a result, Madison proposed a bill of rights that reflected, as Stanford University historian Jack Rakove notes, his belief that the “greatest dangers to liberty would continue to arise within the states, rather than from a reconstituted national government.” Accordingly, Mr. Rakove writes that “Madison justified all of these proposals (Bill of Rights) in terms of the protection they would extend to individual and minority rights.”

One of the earliest scholars of the Constitution and the Bill of Rights, Justice Joseph Story, confirmed this focus on individuals in his famous “Commentaries on the Constitution of the United States” in 1833. “The right of the citizens to keep and bear arms,” Story wrote, “has justly been considered, as the palladium of the liberties of republics, since it offers a strong moral check against the usurpation and arbitrary power of rulers . . .”

Based on the evidence, arguing that the Second Amendment right is somehow collective, when every other right protected by the Bill of Rights is clearly individual, is not only nonsensical, it is a perversion of history.

Update: As I’ve been reminded, the correct style of the case now before the Supreme Court is District of Columbia v. Heller.

Update #2: I should also note that the article of the Wall Street Journal article excerpted above is the Attorney General for the State of Michigan.

Doug Mataconis
http://www.belowthebeltway.com

Libertarians: The New In-Crowd

Politics, Strategies For Advancing Liberty

The Washington Times notes that a lot of people want to call themselves libertarians these days:

It’s altogether fitting that the new host of “The Price Is Right” — a game show on which contestants try to guess the going rate of various consumer products — is a free-market enthusiast.

More intriguing is said host’s part-time job: libertarian proselytizer.

Comedian Drew Carey can be seen on a series of funny-but-not-kidding Internet-TV episodes sponsored by the Reason Foundation, a Los Angeles-based think tank. So far, Mr. Carey has recommended the privatization of highways as a solution for metropolitan traffic congestion and criticized the federal crackdown on medical marijuana.

Mr. Carey joins the libertarian fold along with the illusionist-comedians Penn & Teller and HBO talk-show host Bill Maher, who has called himself a libertarian for several years.

As the Times’ notes, it’s unclear what that means but what is clear is that it’s merely the reflection of a trend that’s true for American politics as a whole:

It’s not likely libertarianism will become a true third-party alternative; it’s a temperament to which both major parties will need increasingly to appeal.

Mr. Gillespie compares the ideas that underlie libertarianism to a “marinade.”

“Our culture has been soaking in it for years,” he says.

Brink Lindsey, vice president for research at the libertarian Cato Institute and the author of “The Age of Abundance: How Prosperity Transformed America’s Politics and Culture,” says that since the end of World War II, the country has unconsciously arrived at a vaguely libertarian-ish consensus: It’s culturally tolerant and yet demands personal responsibility for socioeconomic success.

“Generally speaking, the hump of the bell curve of American public opinion is more libertarian than it is distinctly liberal or conservative,” Mr. Lindsey says.

Now, it’s important to note that Lindsey isn’t arguing that the American public is on the verge of embracing the gold standard or privately owned roads. Doctrinaire libertarianism — especially in its sometimes wild anarcho-capitalist varieties — is unlikely to ever be part of the mainstream of American political thought.

What Linsdey points to, though, is nonetheless encouraging; which is that we are approaching a point where the political consensus will be biased in favor of individual choice and against authoritarianism and state action. Therefore, while we’re not likely to see any time soon a day when the New Deal or the Civil Rights Act of 1964 is repealed, we’re also not likely to see the birth of a European “social democracy” and, if anything, the power of the state in American life will shrink rather than expand.

Many libertarians and classical liberals would tell you that’s not perfect; but it’s a start, and it’s better than nothing.

Doug Mataconis
http://www.belowthebeltway.com

Remembering A Forgotten Genocide

Foreign Affairs, History

During one horrible year starting in 1932, the truth of Stalinism came to be seen in the massacre by starvation of as many as ten million people in what has come to be known as the Ukranian Terror Famine.

The massacre started 75 years ago today when the Soviet Government issued an order increasing the portion of their harvests that Ukranian farmers were required to give to the state, and it resulted in a wholesale collectivization of agriculture in the region. Now, the government of Ukraine is seeking official recognition for what some say was the massacre that gave Hitler the idea that murdering every Jew in Europe might just be possible:

KRASYLIVKA, Ukraine (AP) — After authorities broke into Yakiv Atamanenko’s home in autumn of 1932 and confiscated the family’s food, his mother and two brothers died of starvation and their bloated bodies were tossed among others in a freshly dug grave on the outskirts of this farming village.

Mr. Atamanenko and other survivors said their neighbors, Oleksandra Korytnyk and her husband, ate their two children. “They cut their children into pieces and ate them,” recalled Mr. Atamanenko, now a frail, gray-haired 95-year-old.

In the end, he and others said, the Korytnyks died as well.

Today, Ukraine marks the 75th anniversary of the terrible famine of 1932-33, engineered by Soviet authorities to force peasants across what was then the U.S.S.R. to give up their privately held plots of land and join collective farms. Millions perished.

It will offend the heck out of the Russians, but it’s time that history recognized an event as equally evil as the Holocaust.

Doug Mataconis
http://www.belowthebeltway.com

Ron Paul, Federalism, And Racism

Election '08, History, Individual Rights, Politics

Prior to Thanksgiving, I noted the criticism that law professor David Bernstein had leveled against the Ron Paul campaign for the associations that have been noted with neo-nazi groups like Stormfront.

In a follow-up post, Bernstein talks about the Paul campaign’s official statement on racism which in essence states:

Government as an institution is particularly ill-suited to combat bigotry. Bigotry at its essence is a problem of the heart, and we cannot change people’s hearts by passing more laws and regulations.

It is the federal government that most divides us by race, class, religion, and gender. Through its taxes, restrictive regulations, corporate subsidies, racial set-asides, and welfare programs, government plays far too large a role in determining who succeeds and who fails. Government “benevolence” crowds out genuine goodwill by institutionalizing group thinking, thus making each group suspicious that others are receiving more of the government loot. This leads to resentment and hostility among us.

Racism is simply an ugly form of collectivism, the mindset that views humans strictly as members of groups rather than as individuals. Racists believe that all individuals who share superficial physical characteristics are alike: as collectivists, racists think only in terms of groups. By encouraging Americans to adopt a group mentality, the advocates of so-called “diversity” actually perpetuate racism.

The true antidote to racism is liberty. Liberty means having a limited, constitutional government devoted to the protection of individual rights rather than group claims. Liberty means free-market capitalism, which rewards individual achievement and competence – not skin color, gender, or ethnicity.

Bernstein responds as follows:

[A]t best this statement reveals a naive faith in the idea that government is the root of all problems, as in the old joke, “How many libertarians does it take to screw in a light bulb? None, the market will take care of it!” Don’t like racism? Reduce the federal government and it will go away!

At worst, by completely ignoring the historical role of racism in American society, and the diminished but not insubstantial role racism by whites continues to play in our society, and focusing criticism only on advocates of “diversity,” (even, apparently, when they advocate only voluntary, non-governmental action to achieve diversity), the Paul campaign is appealing to the Pat Buchanan (and beyond) wing of the “Old Right”, while trying to preserve some plausible deniability on race to its more tolerant libertarian constituency.

That’s not to say that personally Paul isn’t really against racism; in the absence of evidence to the contrary, I assume that he is. Rather, the point is that his campaign seems to be taking the same unfortunate position that Goldwater did in 1964; condemning racism in general on principled libertarian grounds, but providing winks and nods that support from racists for racist reasons would be welcome.

Dale Franks makes even stronger comments about the Paul campaign’s statement:

In essence, Mr. Paul’s message is that government causes racism. But he ignores what must be a necessary corollary of that belief: if government has the power to cause racism, it must also necessarily have the power to combat it. You simply cannot have the power to do one without the other.

In a certain sense, of course, Mr. Paul makes a valid point. To the extent that government itself attempts to create favored and disfavored groups, it perpetuates racism. And one can certainly argue that government has in some cases done precisely that.

But one cannot ignore the fact that government action has, by and large, reduced overt discrimination in the last two generations. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 essentially destroyed—completely and permanently—the Jim Crow laws of the South. Yet, any acknowledgment of this is sadly lacking in Mr. Paul’s statement. Yes, government at the state level created Jim Crow. But government at the federal level eliminated it.

On some level, it seems clear that Bernstein and Franks are correct, at least about the naivety of the idea that it’s only primarily the Federal Government that is the source of the problems that create racism.

» Read more

Doug Mataconis
http://www.belowthebeltway.com

Law Enforcement Using Cell Phone Location Technology

Constitution, Individual Rights, Police Watch, Privacy, Technology, The Surveillance State, The War on Drugs

Yesterday, the Washington Post reported on an alarming increase in the use of cell phone tracking technology by federal law enforcement:

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.

Such requests run counter to the Justice Department’s internal recommendation that federal prosecutors seek warrants based on probable cause to obtain precise location data in private areas. The requests and orders are sealed at the government’s request, so it is difficult to know how often the orders are issued or denied.

But some of those requests have become public, and they show that law enforcement agents are relying on a standard far below probable cause to justify their access to technology that essentially acts as a personal GPS tracking device:

In a stinging opinion this month, a federal judge in Texas denied a request by a Drug Enforcement Administration agent for data that would identify a drug trafficker’s phone location by using the carrier’s E911 tracking capability. E911 tracking systems read signals sent to satellites from a phone’s Global Positioning System (GPS) chip or triangulated radio signals sent from phones to cell towers. Magistrate Judge Brian L. Owsley, of the Corpus Christi division of the Southern District of Texas, said the agent’s affidavit failed to focus on “specifics necessary to establish probable cause, such as relevant dates, names and places.”

Owsley decided to publish his opinion, which explained that the agent failed to provide “sufficient specific information to support the assertion” that the phone was being used in “criminal” activity. Instead, Owsley wrote, the agent simply alleged that the subject trafficked in narcotics and used the phone to do so. The agent stated that the DEA had ” ‘identified’ or ‘determined’ certain matters,” Owsley wrote, but “these identifications, determinations or revelations are not facts, but simply conclusions by the agency.”

Instead of seeking warrants based on probable cause, some federal prosecutors are applying for orders based on a standard lower than probable cause derived from two statutes: the Stored Communications Act and the Pen Register Statute, according to judges and industry lawyers. The orders are typically issued by magistrate judges in U.S. district courts, who often handle applications for search warrants.

In one case last month in a southwestern state, an FBI agent obtained precise location data with a court order based on the lower standard, citing “specific and articulable facts” showing reasonable grounds to believe the data are “relevant to an ongoing criminal investigation,” said Al Gidari, a partner at Perkins Coie in Seattle, who reviews data requests for carriers.

Another magistrate judge, who has denied about a dozen such requests in the past six months, said some agents attach affidavits to their applications that merely assert that the evidence offered is “consistent with the probable cause standard” of Rule 41 of the Federal Rules of Criminal Procedure. The judge spoke on condition of anonymity because of the sensitivity of the issue.

While some judges appear to be holding law enforcement back on this issue, the majority are rubber-stamping the warrant requests, and law enforcement is responding by relying upon the technology in an increasing number of cases.

That cell phone in your pocket may not be watching you, but it can tell Big Brother where you are.

Doug Mataconis
http://www.belowthebeltway.com
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