“There Are No ‘Absolute’ Rights”: Limitations Are Both Possible And Necessary
Every time I write a column on guns, the howl arises that I am talking about a right that is enshrined in the Constitution, buddy, and I better watch myself. The howl then transmutes into an extended harangue that this right is absolute, and no libtard fascist, whether me or the Satanesque Dianne Feinstein, is going to limit the right in any way. The first soldier to charge across this rhetorical veld is followed by hundreds harrumphing their assent. The only problem is that it’s an ahistorical, afactual, and barbaric argument. No right is absolute. In fact, the Second Amendment arguably has fewer restrictions on it these days than many of the other first ten, and there is and should be no guarantee that things are going to stay that way. In fact, if we’re ever going to be serious about trying to stop this mass butchery that we endure every few months, they cannot.
Let’s begin by going down the list and reviewing various limits placed on nearly all the amendments of the Bill of Rights (I thank Doug Kendall of the Constitutional Accountability Center for helping me out here). The First Amendment, of course, guarantees the right to free speech and assembly, and to worship as one pleases. There haven’t been that many restrictions placed on the freedom to worship in the United States, although there is a steady stream of cases involving some local government or school board preventing someone from wearing religious clothing or facial hair or what have you. Sometimes a Christian school or church is denied a zoning permit; but more often it’s the freedom to worship of a minority (Muslim, Sikh, etc) that is threatened.
As for free speech, of course it is restricted. Over the past 50 or so years in a series of cases, courts have placed a number of “time, place, and manner” restrictions on free speech. To restrict speech in general, the government must meet four tests. But this is always being revised and negotiated. Here’s one restriction on the Bill of Rights that I’d wager most conservatives would happily approve of. In 1988, the HHS under Reagan promulgated rules prohibiting a family-planning professional at a clinic that received federal dollars from “promoting” (i.e. telling a woman about) abortion. This was challenged partially on free-speech grounds. In Rust v. Sullivan (1991), the Supreme Court held that these rules did not violate the clinicians’ free-speech rights. So far as I can see, this is still law. It’s just one example from many free-speech restrictions that have been imposed over the years, as you can see here.
Let’s skip the Second Amendment for now. The Third Amendment—my personal favorite—proscribes the private quartering of troops. Not so relevant to life today—in fact, the Supreme Court has apparently never considered a Third Amendment challenge. Onward.
The Fourth Amendment protects against unreasonable search and seizure, and of course there are loads of exceptions to this right, the most notable being that whenever an officer of the law has reason to think an imminently dangerous situation exists, s/he may invade a citizen’s privacy. Then there’s the question of the “exclusionary rule,” by which evidence deemed to have been improperly obtained can be excluded as evidence. Jurisprudence on this question goes back a hundred years, and this very interesting paper notes that it has been two decades since the Court upheld the application of the exclusionary rule in a search-and-seizure case. Since then, the Rehnquist and Roberts courts have ruled six times—every time for the government, i.e., limiting the constitutional protection. (Funny, isn’t it, how many of these other, non-gun limitations on the Bill of Rights are championed by conservatives?)
The Fifth Amendment most famously protects against self-incrimination. Kendall notes that there have indeed been almost no restrictions placed on this right—inside the trial courtroom. Outside the courtroom, however, limitations are rife, having to do mostly with circumstances of interrogations and confessions made within them. This amendment also provides for due process, and that means Miranda rights, and again here, we know from recent news stories that not everyone is immediately read them, and we also know that it’s conservatives who have always despised Miranda in the first place and seek to limit or overturn it today.
The Sixth Amendment provides the right to counsel and a speedy trial, and here again, our time is witness to a slow watering down of these rights by the Court’s conservative majority, as in 2009’s Montejo v. Louisiana. The Seventh Amendment guarantees the right to a trial by jury in civil cases, and this contains a blatant restriction: the Court has never “incorporated” this right to apply to states, where the majority of civil cases are tried, so most civil cases don’t include this right. And the Eighth Amendment, against cruel and unusual punishment, has been much contested with respect to issues like juvenile crime. The Ninth and Tenth Amendments don’t enumerate specific rights as such and so aren’t relevant.
Now, back to the Second Amendment. I’m sure that pro-gun extremists know very well about Scalia’s famous opinion in Heller (2008), which dramatically expanded gun rights. But even in that decision, Scalia himself said that Second Amendment protections could apply only to weapons “in common use at the time.” Chris Wallace asked Scalia in 2012 about semiautomatic weapons and extended magazines, and he said: “What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor. So yes, there are some limitations that can be imposed.”
Now I don’t trust him to rule that way as far as I could throw him, but if even Scalia is saying that, then yes, limitations are both possible and reasonable.
Imagine what conservatives would think of a group of liberals who insisted, while threatening an insurrection, on a pure and absolute interpretation of the Fourth or Sixth Amendment—and imagine how ridiculous they would look to average Americans. Hunters, sportsmen, collectors, and even defenders of their homes (misguided as they may be, according to the statistics certainly do have rights to keep and bear arms that are reasonable and should not be trampled. But the idea that any right is unrestricted is totally at odds with history, the law, and reality. And the idea that a group of Americans possesses an absolute “right” to own and keep weapons that can—and in practice do—kill numerous innocent people in seconds, destroying families and communities and tearing at the nation’s collective soul, is barbaric and psychotic. As the old saying goes: if you want to shoot an assault weapon, go enlist.
For civilians, meanwhile, we’re one Supreme Court justice away from getting some sanity and balance to interpretations of the Second Amendment, and the only thing I can’t decide is whether it would be more delicious for Barack Obama to appoint that judge or for Hillary Clinton to do it.
By: Michael Tomasky, The Daily Beast, May 5, 2013
“Cherry Picking The Constitution”: Conservative Constitutional Hypocrisy On Gun Control And The 4th Amendment
The Second Amendment and the Fourth Amendment. They’re like kissing cousins, separated in the Constitution by a mere 32 words. And lately they’ve been all over the news.
Now, I don’t know how you feel about the amendments; maybe you have no opinion of them at all. But ask some conservatives and it’s like they don’t even appear in the same document. And when you think about it, that’s a pretty strange thing. Pretty revealing, too. Here’s why:
If you read the Second and the Fourth Amendments without knowing anything about the surrounding politics and then were asked which one conservatives like better, you might well pick the latter. If ever there was an amendment written to appeal to people who are skeptical of big government, this is it. There’s the big bad government, it wants to take your property and your freedom, but the Fourth Amendment says “no way, not on my watch.” It’s a Tea Partier’s dream.
But conservative courts have spent the past few decades carving one exception after another out of the Fourth Amendment and, if the reaction to the Boston Marathon bombing is any indication, a loud contingent on the right is intent on finding even more.
No, it’s the Second Amendment that most conservatives love. Try to pass even the most benign measure aimed at reducing gun violence, as the Senate did just days ago, and they’ll marshal their every resource to defeat it. The reason: They say it’s because they’re strict constructionists and any restraint on guns would violate the plain meaning of the Second Amendment.
One approach to one amendment, a very different approach to another. How to reconcile? There’s one thing that can help make sense of this mess: a marked lack of intestinal fortitude.
Let’s say your thinking about criminal justice is principally governed by being afraid. In that context, if you think guns are an effective way to protect yourself, you’ll want your right to have guns interpreted as expansively as possible, because you’re afraid of what will happen to you if it isn’t. And you’ll want the rights of people who have been accused of committing crimes to be interpreted as narrowly as possible so they are taken off the streets.
As it happens, that’s a pretty good summation of conservative doctrine when it comes to these amendments.
All of which reveals something else about how conservatives think when they look at the Constitution:
It matters who its provisions are perceived to be protecting. Conservatives think the Second Amendment protects them, so they want it as unfettered as possible; but they think the Fourth Amendment protects someone who they find threatening, so they want it to be as weak as possible.
You can take this approach to constitutional interpretation, of course, but if you do, please stop suggesting it has anything to do with fidelity to profound constitutional principles.
There can be no doubt that the Fourth Amendment makes it harder on law enforcement to solve some crimes, but it does so in the service of a larger goal: protecting the accused from the unfettered predations of an overreaching state or the passions of the mob. And, as has been roundly discussed, the idea that the Second Amendment was designed to allow every citizen to be a weapons armory all their own reflects a willful misreading of history.
Both amendments reflect trade-offs that the framers consciously made. We may not like them, but they’re there. And respect for the Constitution requires that we recognize them. If you call yourself a strict constructionist, you can’t pick and choose which provisions of the Constitution you are going to strictly construe. If that’s your approach, there’s another word that may provide a more apt description: hypocrite.
In a lot of cases, fear is a good thing. It’s a warning system that keeps us out of trouble, guides us away from danger, and, in some cases, keeps us alive. But when we allow fear to be the guiding principle of our public policy that gives rise to dangers all its own.
Many conservatives spend a lot of time portraying themselves as tough guys, straight shooters who don’t let emotion get in the way of what has to be done. In the same breath they are likely to portray liberals as weak and craven. But this is just one example of how the reverse is true.
Setting aside something that makes you feel secure on a personal level in the advent of reforms that will actually make many others safer and sticking to the principles upon which our country was founded even in times of crisis — that’s what takes guts. And it’s time for conservatives to show some.
By: Anson Kaye, U. S. News and World Report, April 25, 2013
“Guns, But Not Trials, For Terror Suspects”: The Land Of Liberty According To Lindsey Graham
South Carolina Sen. Lindsey Graham is not pleased that the Obama administration decided to prosecute Boston Marathon bombing suspect Dzhokhar Tsarnaev in civilian court, even though it would probably be illegal and counterproductive to treat the U.S. citizen as an enemy combatant.
The senator, a lawyer and reserve Air Force JAG officer himself, called for stripping Tsarnaev of his constitutional rights to due process even before the 19-year-old was captured Friday evening. “The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise,” Graham said on Twitter on Friday. “Under the Law of War we can hold #Boston suspect as a potential enemy combatant not entitled to Miranda warnings or appointment of counsel.”
But Graham seems to hold the opposite view when it comes to different constitutional rights for those accused or suspected of terrorism. At a press conference he set up this afternoon to slam the White House on the enemy combatant decision, he was asked about legislation that would stop people on the Terrorist Watch List from buying guns. Here’s his response:
GRAHAM: “I think, anyone who’s on the Terrorist Watch List should not lose their Second Amendment right without the ability to challenge that determination. I think, Senator Kennedy was on the Terrorist Watch List. There’ve been people come up on the watch list. I did not want to make that a — the basis to take someone’s Second Amendment rights away. What I would suggest, is that if you come up on the Terrorist Watch List, you have the ability to say, “No, I’m not a terrorist.” And that would be the proper way to do that.
Currently, the federal government can only prevent a firearm sale for 11 reasons — suspected ties to terrorism, or even suspicion that a gun would be used in an attack, are not one of them. Between February 2004 and December 2010, 1,453 people on the terror watch list tried to buy a gun and over 90 percent were not stopped.
Democratic Sen. Frank Lautenberg’s bill to close what he calls the “terror gap” would not automatically strip anyone’s Second Amendment rights, as Graham suggests. It would, in fact, allow “any individual whose firearms or explosives license application has been denied to bring legal action to challenge the denial.” In Graham’s world, Tsarnaev would have no such clear recourse to challenge his status as an enemy combatant.
The Terrorist Watch List is imperfect and there are plenty of legitimate civil libertarian arguments to be made against restricting firearms access to people on the list, since people on it haven’t been convicted of any crimes and they’re not even allowed to know whether they’re on the list. For instance, Ted Kennedy was, indeed, briefly and erroneously placed on the no fly list in 2004, though that’s a different list. But Graham’s opposition to limiting the Second Amendment rights of people suspected of being terrorists is wholly inconsistent with his support for completely stripping away their Fifth and Sixth Amendment rights to a fair trial in court.
Contrast his opposition to closing the “terror gap” with this, from a 2011 New York Times article:
Citizens who are suspected of joining Al Qaeda are opening themselves up “to imprisonment and death,” Mr. Graham said, adding, “And when they say, ‘I want my lawyer,’ you tell them: ‘Shut up. You don’t get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined Al Qaeda.’ ”
So the only right that Graham seems interested in preserving for people suspected of being affiliated with al-Qaida is their right to purchase firearms.
The NRA also opposes closing the “terror gap,” fearing that it would be used to strip the Second Amendment rights of “Americans who disagree with the policies of the Obama Administration,” “who believe in federalism,” or “who post their political opinions on the Internet.”
By: Alex Seitz-Wald, Salon, April 22, 2013
“Elected Official Edition”: Lindsey Graham Presents The Worst Response To Boston So Far
Sen. Lindsey Graham (R-The Worst) has some helpful suggestions for the Obama administration and, I guess, the thousands of FBI agents and police officers currently searching for Boston Marathon bomb suspect Dzhokhar Tsarnaev, in case any of them follow him on Twitter: Don’t read Tsarnaev his rights, if you catch him alive, because terror:
The last thing we may want to do is read Boston suspect Miranda Rights telling him to “remain silent.”
— Lindsey Graham (@GrahamBlog) April 19, 2013
If captured, I hope Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes.
— Lindsey Graham (@GrahamBlog) April 19, 2013
If the #Boston suspect has ties to overseas terror organizations he could be treasure trove ofinformation.
— Lindsey Graham (@GrahamBlog) April 19, 2013
Graham wasn’t done, telling the Washington Post’s Jennifer Rubin (sigh): “This is Exhibit A of why the homeland is the battlefield.”
That is just the worst, dumbest, least helpful, wonderful (and totally predictable) response to a terror attack, Senator Graham. Making America “the battlefield” is sort of the point of terrorism (well, the point is also “killing Americans” and often “somehow causing America’s foreign policy to change in a way that is actually the opposite of the way that terrorism always makes America’s foreign policy change” but most terrorists aren’t great strategic thinkers, that is why they fucking bomb civilians).
So Tzarnaev is an American citizen, and while he may be a terrorist, terrorism is a crime. In America, when we arrest people for crimes we are required to inform the criminals that they have certain rights under the Constitution — the Constitution is this old list of rules that people like Sen. Lindsey Graham claim to revere — and we do this not just to make the criminal justice process fairer but also so that prosecutions don’t fall apart because of police misconduct.
This “don’t read terrorists their rights” line is weird nonsense even if you do think “terrorism” is a magical word that turns crime into super-crime-where-the-Constitution-doesn’t-count. Tsarnaev may be doing poorly in college, but he’s presumably watched enough television that if police tell him his rights he will not be surprised to hear them.
Anyway, Graham doesn’t even have to worry because the Supreme Court and the Justice Department have already basically rolled back Miranda to the point where once you say “terror” you basically only have to read someone their rights if you feel like it.)
Graham also told Rubin that it would be “nice to have a drone up there” because yeah what is impeding this investigation so far is that no one has access to any airborne cameras. IF ONLY WE HAD AIRBORNE CAMERAS.
This will remain the dumbest response to this week’s chaos until John McCain urges war with Russia and/or Liz Cheney urges war on Chechnya.
By: Alex Pareene, Salon, April 19, 2013
“First, Ignore John McCain And Lindsey Graham”: The Legal Process Ahead For Dzhokhar Tsarnaev
There were some preliminary reports last night that Dzhokhar Tsarnaev had been read his Miranda rights, but that turns out not to have been the case — the bombing suspect is in federal custody, but for now, as Rachel explained on the show last night, he has not been made aware of his rights, with officials citing a public-safety exception.
The details of the process obviously matter. There are certainly legitimate questions right now about other possible explosive devices that may pose a threat in the city of Boston, so it stands to reason that law enforcement would seek to get immediate information before Tsarnaev is told he can remain silent. That said, Emily Bazelon also raises sensible concerns about “stretching the law” and misapplying the public-safety exception.
This element of the process, however, is temporary — the exception comes with an expiration date, and will no longer be an option for officials after about 48 hours from the time Tsarnaev was taken into custody. The broader question — I’m reluctant to call it a “debate” since the path seems so obvious — is what happens after that. Sens. John McCain (R-Ariz.) and Lindsey Graham (R-S.C.) have some thoughts on the matter.
Two powerful GOP senators are calling on the Obama administration to treat the captured suspect in the Boston Marathon bombings as an “enemy combatant” and deny him counsel even though he is reportedly an American citizen. [...]
Regardless his citizenship status, McCain and Graham say Dzhokhar Tsarnaev gave up his rights to a criminal trial when he allegedly participated in the bombings.
“Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel,” McCain and Graham said.
McCain and Graham are playing a dangerous game here. In case anyone’s forgotten, we’re talking about an American citizen, captured on American soil, accused of committing a crime in America. These Republican senators are arguing, in effect, that none of this matters anymore.
The same week in which Senate Republicans insisted that the Second Amendment is sacrosanct, McCain and Graham are arguing that the Fourth Amendment is a nicety that the nation must no longer take seriously.
By all accounts, the Obama administration is prepared to ignore the senators’ suggestion.
Even if authorities determine that the Tsarnaevs received support from an overseas terrorist organization, the Obama administration official said the government will not seek to declare him an enemy combatant and try him before a military commission, as it has done with senior al Qaeda officials captured overseas and imprisoned at the Guantanamo Bay detention camp. Administration officials see that scenario as a non-starter, the official said, particularly given the fact that Dzhokhar Tsarnaev is an American citizen, naturalized last September.
That’s encouraging. Even for those on the right who are indifferent to civil liberties, the fact remains that civilian trials for terrorist suspects have proven to be an effective method of trying, convicting, and sentencing criminals, including accused terrorists. Military commissions, meanwhile, have proven to be an ineffective method.
When it comes to national security, foreign policy, and counter-terrorism, McCain and Graham have a track record of being remarkably wrong with incredible consistency. The more the Obama administration ignores their advice, the better.
By: Steve Benen, The Maddow Blog, April 20, 2013
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