“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
“Safe And Effective”: All Women Should Have Quick, Confidential Access To Emergency Contraception
Earlier this week, the Food and Drug Administration took an important step for millions of women by moving emergency contraception out from behind the pharmacy counter and making it available to people ages 15 and older with valid identification.
As a doctor, I know that this is good news and a great first step. Emergency contraception is a safe and effective form of birth control that can prevent pregnancy if taken within five days of unprotected sex. By reducing barriers, this announcement will help more women prevent unintended pregnancy.
At the same time, the Obama administration said this week that it is appealing last month’s federal ruling that would have eliminated the age restriction completely. Citing scientific research and evidence, the judge removed the age and point of sale restrictions that made it harder for all women to access emergency contraception. That ruling should stand.
Unprotected sex sometimes happens – a condom breaks or non-consensual sex occurs. When it does, all women, regardless of their age, need access to emergency contraception quickly and confidentially.
Remember, emergency contraception prevents pregnancy. The sooner it is taken, the more effective it is (but if you are already pregnant, it won’t work). That’s why removing unnecessary barriers that delay access can help a woman prevent an unintended pregnancy.
The research shows that emergency contraception is safe for women of all ages, including young people. Research also indicates that teens understand how to use emergency contraception and understand it is not intended for ongoing, regular use. It doesn’t increase risky behavior either.
A recent study published in the medical journal Pediatrics found that sexual activity is exceedingly rare among the youngest adolescents. However, when sex does occur among teens under 14, it is often non-consensual and contraceptives are not used.
So despite some of the myths out there, emergency contraception is a safe, effective way to prevent pregnancy for all women, regardless of age (though, as someone who talks to parents everyday about health care, I also know it’s crucial that parents have conversations with their children about these issues).
The good news is that this week’s decision makes it a whole lot easier for women to get access to emergency contraception. More should be done to remove all barriers and unnecessary hurdles. While the teen birth rates have declined significantly in the last two decades, they are still high, including in states that lack access to medical providers and preventive health care.
That’s why, as a doctor, I know it makes good scientific and medical sense to expand access to emergency contraception to all women.
By: Deborah Nucatola, MD, Senior Director of Medical Services for Planned Parenthood Federation of America, Debate Club, U. S. News and World Report, May 3, 2013
“Taxation Without Representation”: American Citizens Sould Be Treated Like American Citizens
Vice President Joe Biden is right: There should be two senators from the District of Columbia, not to mention at least one voting member of the U.S. House. Americans living in the U.S. capital, in other words, should have the basic rights of citizenship that they are currently denied.
The fact that more than 630,000 U.S. citizens living in the United States of America are not represented in Congress is an outrage and an insult to the most fundamental right due to all American citizens: representation in government. Remember the American Revolution (and the original tea party)? They were complaining about taxation without representation. More than two centuries later those residing in what should be the living symbol of democratic ideals of representative government are experiencing taxation without representation.
As a point of comparison, imagine the outrage if Boston (with an estimated 2011 population of more than 625,000) was removed from the congressional map; or Seattle (more than 620,000 as of 2011); or Milwaukee (597,000 in 2011); Las Vegas (589,000 in 2011); or Atlanta (432,000 in 2011).
This is a mostly but not entirely partisan issue, though it is often seen through that rather puerile lens. It’s gotten support from prominent conservatives like Ken Starr and Viet Dinh. And at least partial restoration of these basic American rights nearly occurred four years ago before it was derailed by – wait for it – a squabble over gun rights.
Parting thought: For the first 10 years of the District of Columbia’s existence, before it became the seat of the federal government in 1800, D.C. citizens had congressional representation. When Maryland and Virginia ceded the land to the government for the creation of the District, those living there were still allowed to vote in their old states’ congressional and legislative races. Once the federal government moved to D.C., those basic rights were revoked. That revocation is a festering wound on the country’s democratic spirit.
Congress gaveth and then tooketh away … it’s time it giveth back.
By: Robert Schlesinger, U. S. News and World Report, May 3, 2013
“The Choice Now Is Between Bad And Worse”: Is It Too Late For The GOP To Save Itself With Latinos?
Since the 2012 election, there’s a story we’ve heard over and over about Republicans and the Latino vote. After spending years bashing immigrants, the party got hammered among this increasingly vital demographic group this election cycle, whereupon the party’s more pragmatic elements woke up and realized if they don’t convince Latinos the GOP isn’t hostile to them, they could make it impossible to win presidential elections. They’ve got one shot on immigration reform. Pass it, and they can stanch the bleeding. Kill it, and they lock in their dreadful performance among Latinos for generations.
This story is mostly true. But I’m beginning to wonder if it isn’t already too late for the GOP to win Latinos over. It’s going a little far to suggest that Latinos could become the equivalent of African Americans, giving 90 percent or more of their votes to Democrats in every election. But is it possible that so much damage has already been done that even if immigration reform passes, Republicans won’t see any improvement in their standing among Latinos?
Since we’re talking about what might happen in the future, this is all speculative, and it’s a little ridiculous to predict that anything that happens now will hold for “generations.” One generation, maybe, but nobody can say what the political landscape will look like in 30 or 40 years. But let’s think about how this is likely to play out in the near term.
If immigration reform fails because of anti-immigrant sentiment from the GOP’s right wing, that’s obviously a disaster for them. But even if it passes, that might be only a marginally better outcome. The debate itself could be making things worse by giving the anti-reform forces a bigger platform to express their views, even if other elements of the party are trying to put on a friendlier face. And if a bill does pass, who’s going to get the credit? Barack Obama, of course. It’ll be trumpeted in the media as the major legislative accomplishment of his second term (either the first, or the only, depending on how the next few years go), and much of the story will be about him for no reason other than that he’s the president and that’s how these things work; the president is the protagonist of most of the stories told about what happens in Washington, whether he deserves to be or not.
Furthermore, the legislation will almost certainly pass with the votes of almost every Democrat in both houses of Congress, and over the opposition of most Republicans. It doesn’t need many Republican votes, and for every Republican officeholder who wants to see it pass, there are probably two or three who feel enough pressure from the party’s right wing that they’ll end up voting against it, if for no other reason than to forestall a primary challenge— the primary thing every Republican member of Congress fears these days.
So how is this debate going to look to the public as the vote approaches? On one side you’ll have Obama and the Democrats, along with a few Republicans; on the other side you’ll have a whole lot of Republicans, some of whom will no doubt continue to say offensive things about immigrants. For good measure, many people will assume, whether it’s true or not, that the Democrats are sincere in their support of immigration reform, while the Republicans who join them are doing it just to save their political skins. When it’s over, Obama will declare victory, and everyone will know that it happened because the intransigent Republicans were defeated. Some conservative Republicans running in primaries around the country will still see immigrant-bashing as a potentially fruitful campaign tactic, giving voters the occasional helpful reminder about where much of the party stands. And in the next election (and the one after that, and the one after that), the default assumption among Latino voters will continue to be that your average Republican despises and distrusts them. That isn’t to say that any individual Republican candidate can’t overcome that assumption and win the votes of significant numbers of Latinos, but it will be a very difficult thing to do, and most will fail when they try.
So at this point, it certainly looks like the two potential outcomes are that conservative Republicans succeed in killing immigration reform, which is disastrous for the GOP, or it passes, which is only a little bit better. If they’re going to change their image among Latino voters, it’s going to have to be a long-term project.
By: Paul Waldman, Contributing Editor, The American Prospect, April 30, 2013
“To Know Him Is To Dislike Him”: Ted Cruz On How To Make Enemies And Alienate People
As we discussed a month ago, Sen. Ted Cruz’s (R-Texas) career on Capitol Hill is off to a difficult start. The Atlantic noted “a remarkable number of both Republicans and Democrats” have already come forward “to say that they think Cruz is kind of a jerk.” The New York Times added that “even some Republican colleagues are growing publicly frustrated” with the right-wing freshman.
It can, however, get worse. In fact, Cruz seems to be going out of his way to make enemies and alienate people.
Just a few days ago, Cruz made an unannounced appearance at the FreedomWorks Texas Summit, where he openly mocked his Senate Republican colleagues, calling them “squishes” who don’t like to be held accountable.
“Here was their argument,” Cruz said of Senate Republican. “They said: ‘Listen, before you did this, the politics of it were great. The Democrats were the bad guys. The Republicans were the good guys. Now we all look like a bunch of squishes.’ “Well, there is an alternative: you could just not be a bunch of squishes.”
It’s worth pausing to appreciate the irony: Cruz was the one afraid of a debate on reducing gun violence, and it was his GOP colleagues who were kowtowed into ignoring common sense and popular will.
But even putting that aside, it’s unclear who the senator thinks he’s impressing by taking cheap shots at his ostensible allies. It’s reached the point at which even Jennifer Rubin wants the Texas Republican to stop “being a jerk.”
Wait, it gets worse.
In Cruz’s version of events, he’s the hero of his own morality play, killing gun reforms singlehandedly, eking out a surprise victory at the last minute, thanks to his awesome awesomeness.
Dave Weigel rained on Cruz’s parade.
But Cruz blurs the timeline. In his version of events, Democrats were convinced up to the last minute that they could break 60 votes on Manchin-Toomey (“the look of shock from the senior Democrats!”) and Republicans shamed Cruz for his … well, for his ballsiness, in this telling. Fellow Republicans, says Cruz, were “yelling at us at the top of their lungs! Look, why did you do this! As a result of what you did, I gotta go home and my constituents are yelling at me that I’ve got to stand on principle!”
Back on Earth, Democrats basically knew that they wouldn’t break 60 on the night before the series of gun votes; Connecticut Sen. Chris Murphy tweeted his disappointment. Cruz was in those rooms with GOP senators, and I wasn’t, but if they were angry at him on the week of April 8, it wasn’t because they disagreed with his gun stance, or lacked principle. It was because they considered it astrategic.
Reporters who live in D.C. and spend too many daylight hours talking to politicians, we get that. This was a pretty simple story of ideological preferences and interest group pressure. But Cruz wants a voter back home, a Republican activist, to learn something else — a Jimmy Stewart tale, in which the rest of the GOP was ready to sell you out until one man stood up and thundered “nay.”
All of this dishonest grandstanding may make right-wing activists swoon, but it should also cause Cruz some trouble on Capitol Hill. Senators have traditionally forged relationships with their colleagues in order to build coalitions and be more effective in passing legislation. Cruz is going out of his way to do the opposite — scolding his veteran colleagues, lecturing them on his wisdom, and creating conditions in which just about everyone who knows him dislikes him.
This should make it all but impossible for Cruz to play a constructive role in the chamber, though that may not matter to him, since he doesn’t seem especially interested in governing anyway.
By: Steve Benen, The Maddow Blog, April 30, 2013
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