“Radical Views”: Republican Senators Who Think The Violence Against Women Act Is Unconstitutional
Since then-Delaware Senator Joe Biden first authored the law in 1994, the Violence Against Women Act (VAWA) has earned bipartisan praise for providing vital protections against domestic violence and assistance to victims. But of the eight Senators — all Republicans — who voted Monday against even considering VAWA renewal, at least four apparently did so because they believe the bill is unconstitutional.
Several of these senators have expressed similarly radical views about the constitutional role of the federal government in other contexts. Sen. Mike Lee’s (R-UT) claimed that national child labor laws, Social Security and Medicare violate the Tenth Amendment, for example; and Sen. Ted Cruz (R-TX) once led a Tenth Amendment project at a conservative think tank and co-authored a paper proposing an unconstitutional process to nullify the Affordable Care Act. The four senators who claim that the Violence Against Women Act is unconstitutional are:
1. Sen. Jim Risch (R-ID): In a statement, Risch explained: “It is at the state and local level where I believe enforcement and prosecution must remain. The federal government does not need to add another layer of bureaucracy to acts of violence that are being handled at the state and local level. In addition to my 10th Amendment concerns, this legislation raises additional constitutional questions regarding double jeopardy and due process. I opposed this legislation, however well intended it was, because it is another effort of the federal government extending its reach into the affairs of state and local jurisdictions.”
2. Sen. Rand Paul (R-KY): In a 2012 letter explaining his opposition to last year’s VAWA re-authorization attempt, Paul wrote: “Under our Constitution, states are given the responsibility for prosecution of those violent crimes. They don’t need Washington telling them how to provide services and prosecute criminals in these cases. Under the Constitution, states are responsible for enacting and enforcing criminal law. As written, S. 1925 muddles the lines between federal, state, local and tribal law enforcement.”
3. Sen. Mike Lee (R-UT): In 2012, Lee claimed VAWA “oversteps the Constitution’s rightful limits on federal power. Violent crimes are regulated and enforced almost exclusively by state governments. In fact, domestic violence is one of the few activities that the Supreme Court of the United States has specifically said Congress may not regulate under the Commerce Clause. As a matter of constitutional policy, Congress should not seek to impose rules and standards as conditions for federal funding in areas where the federal government lacks constitutional authority to regulate directly.”
4. Sen. Ted Cruz (R-TX): A Cruz spokeswoman told ThinkProgress: “For many years, Senator Cruz has worked in law enforcement, helping lead the fight to ensure that violent criminals—and especially sexual predators who target women and children—should face the very strictest punishment. However, stopping and punishing violent criminals is primarily a state responsibility, and the federal government does not need to be dictating state criminal law.” While the statement does not explicitly call VAWA unconstitutional, his previous comments leave little doubt that that is what he means.
These senators’ apparent belief that the federal government cannot constitutionally play a role in preventing violence against women is not even shared by most Republican members of Congress. 216 House Republicans agreed just last year that the Constitution does not prohibit a version of the Violence Against Women Act. The Supreme Court did strike down one piece of VAWA in 2000, but it left most of the law intact.
While the other four Senators who voted against the “motion to proceed” did not respond to a request for an explanation of their votes, Sen. Tim Scott (R) voted for the watered-down House version of VAWA last year and Sen. Marco Rubio (R-FL) claims he supports a scaled-back version of the legislation.
By: Josh Israel, Think Progress, February 2, 2013
“Constitution? What Constitution?”: Paul Ryan Refuses To Provide For The General Welfare
When the members of the 113th Congress of the United States took office this week, they swore an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic and to “bear true faith and allegiance to the same.”
The preamble to that Constitution establishes its purpose: “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…”
The Constitution rests a special responsibility in this regard on the legislative branch of the federal government, declaring that the Congress shall use its powers to tax and spend to “provide for the common Defence and general Welfare of the United States.”
A good debate can be had about the precise meaning of “the general Welfare of the United States.” The founders had that debate—with James Madison and Alexander Hamilton differing vociferously—and it has continued in the Congress and the courts to this day.
But even in the 1790s, there was broad understanding that providing for the “general welfare” involved the taking of steps to protect the people from “misfortune, sickness, calamity or evil”—and to help them respond to such circumstances. Then, as now, “calamity” was understood to involve epic storms, floods and natural disasters.
It is difficult to imagine a recent crisis that more precisely fits the definition of “calamity” than Superstorm Sandy and its aftermath, which has left hundreds of thousands of Americans with destroyed or damaged homes and made it impossible for thousands of businesses to operate along the East Coast of the United State. Whole communities are struggling simply to return to something resembling normal.
On Friday, mere hours after swearing an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic” and to “bear true faith and allegiance to the same,” the House of Representatives faced a simple vote on the most basic federal intervention on behalf of the victims of Superstorm Sandy: a measure to temporarily increase the borrowing authority of the Federal Emergency Management Agency to assure that the National Flood Insurance Program could meet its obligations.
One hundred and ninety-one Democrats voted for the first real response by Congress to a disaster that occurred more than two months earlier. They were joined by 161 Republicans, including Majority Leader Eric Cantor, R-Virginia, and Congresswoman Michele Bachmann, R-Minnesota.
But sixty-seven House members —led by House Budget Committee chairman Paul Ryan—voted “no.” The House Budget Committee chairman termed the maintaining of the existing flood-relief program to be “irresponsible.”
Ryan, as is frequently the case when it comes to matters constitutional, was precisely wrong.
One of his few clearly defined responsibilities, one of the few clearly defined responsibilities of any House member, is “to provide for the general Welfare.” They swear an oath to do so. And, barely hours into the new Congress, Ryan and his compatriots rejected that oath and a fundamental premise of the Constitution it supports.
By: John Nichols, The Nation, January 5, 2012
“A Need To Exercise Judgment”: When The First And Second Amendments Clash
Battles over either the First Amendment or the Second Amendment often share similar dynamics, with defender/exercisers of the amendments arguing that the freedoms granted by the founding fathers are (nearly) absolute, and should not be modified just because sometimes people get hurt by them. But the issue gets stickier when a situation pits the First against the Second.
A newspaper in White Plains, N.Y., has enraged local (and not-so-local) gun owners by publishing an interactive map revealing the names and addresses of gun owners in the area. The information is public (and New York’s Freedom of Information Law is fairly expansive), so it’s not as though the newspaper unearthed secret documents or data and published it. What’s different now is that the Internet and other technology allows a newspaper—and for that matter, any blogger or website commentator—to make public information very, very public—so much so that the people affected feel they have been violated.
Some of the gun owners reacted aggressively, posting the names and addresses of editors and reporters at the Journal-News (including the guy who does the puzzle page) and making not-so-veiled threats against the journalists’ safety. The Journal-News has been unfazed, and is seeking similar gun owner information from another county to publish. That county is balking, and the paper is ready to go to court. Since the information is public, experts believe the paper will likely win, a victory for the First Amendment.
Meanwhile, the paper has been forced to hire armed guards at two of its offices to protect employees in light of the threats. That, in a way, is a victory for the gun owners and their interpretation, at least, of the Second Amendment. The First Amendment is in full force on the paper’s website, but without the Second Amendment, editors and reporters might not feel safe publishing it. On the other hand, were so many guns not so easily available, perhaps they might not have felt threatened in the first place.
There will surely be a discussion in Washington—though perhaps not much action—on gun safety and gun rights. And newspapers will continue to defend the right to free speech. But in both cases, there’s an issue of sheer judgment. Sure, some information is available to the public and should be. Does that mean newspapers should make it that much easier to learn? Some newspapers routinely report the names and salaries of public employees—even low-level employees. It’s not secret, and the workers are paid by public funds. But is it really necessary to publish what most of us consider private information? There’s an undercurrent of judgment to such lists, as though the public employees have to defend every penny they make (while well-paid CEOs of privately-held companies do not).
The names of convicted sex offenders are also public. Should newspapers publish these names, perhaps with an interactive map? To a parent, the answer might be a no-brainer; wouldn’t you want to know if a pedophile was living in the neighborhood? But publication of such information also makes it virtually impossible for an ex-con to return to society. He or she would be shunned, even in danger, wherever he went. How does someone become part of a noncriminal community in those circumstances?
Gun owners are not by definition criminals, of course. But guns are dangerous weapons if they are in the wrong hands or if there is an accident. Surely, many people would want to know if someone in their neighborhood had a gun. But is the publication of the information itself not just a little provocative? And perhaps it’s also a bit revealing—the anonymous people who posted threatening comments on the Internet (along with the addresses of Journal-News employees) probably weren’t the sort of people, prior to the controversy, neighbors feared would shoot them. But their aggressive reaction to the Journal-News list suggests some of them might have a dangerous streak.
Exercisers of the First and Second Amendments are understandably vigilant in defending their beliefs. But both should exercise judgment as well.
By: Susan Milligan, U. S. News and World Report, January 3, 2013
“But Not For Statutory Rights”: Gun Nuts Ignore The First Amendment To “Protect” The Second
Protect the Second Amendment, screw the First!
Tens of thousands of people have signed a petition calling for British CNN host Piers Morgan to be deported from the United States over his gun control views. And sadly, I’m not surprised.
Morgan has taken an aggressive stand for tighter U.S. gun laws in the wake of the Newtown, Conn., school shooting. Last week, he called a gun advocate appearing on his Piers Morgan Tonight show an “unbelievably stupid man.” And that is Mr. Morgan’s opinion, which he is entitled to, whether you like his accent or not. Entitled to, you ask? Is he a citizen of this country?! Well, there are a few folks, namely our founding forefathers, and more currently constitutional legal experts, who were pretty clear with regard to whose speech is protected by the First Amendment. Noncitizens and permanent residents are also protected under the First Amendment–that is unless, like those of us who are citizens, we’re yelling fire in a crowded theatre.
But that doesn’t seem to faze the gun rights activists. They are fighting back, creating a petition on December 21 on the White House E-petition website. This was done by a user in Texas accusing Morgan of engaging in a “hostile attack against the U.S. Constitution” by targeting the Second Amendment. It demands he be deported immediately for “exploiting his position as a national network television host to stage attacks against the rights of American citizens.” The petition has already hit the 25,000 signature threshold to get a White House response.
Unfortunately for Tex and those who signed this petition, they shouldn’t hold their breath. Noncitizens, and especially permanent residents, have statutory rights to remain in the country unless they’ve done (or there’s sufficient reason to think they’ve done) certain bad things—at least until Congress revises the statutes to broaden the grounds for deportation. Even if the Executive Branch decides to deport someone, it has to have statutorily authorized grounds, and it has to provide hearings at which an immigration judge decides whether the conditions for deportation are met. The government may not criminally punish noncitizens—or presumably impose civil liability on them—based on speech that would be protected if said by a citizen. See Bridges v. Wixon (1945).
And how has Piers Morgan responded? Actually, he seemed unfazed, perhaps even amused by all of this. On Twitter he urged his followers to sign the petition, and in response to one article about the petition he said “bring it on” as he appeared to track the petition’s progress. “If I do get deported from America for wanting fewer gun murders, are there any other countries that will have me?” he wrote.
What bothers me about this is the blatant hypocrisy of those gun rights proponents. As a liberal, I push for stricter gun control measures; I always have, even before Columbine, Virginia Tech, Tuscon, Aurora, Portland, and Newtown, and I have been attacked by the right for wanting to take away their Second Amendment right to bear arms. I and other liberals have been clear we don’t want to take their rights away, we just want to protect other Americans, especially our children by restricting military-style weapons with high volume magazine clips. Yet when someone voices their opinion and it is completely contrary to what a gun proponent believes, they have no trouble tramping on their rights…namely the First Amendment.
Look, I’m no Piers Morgan fan. As a broadcaster, I get tired of radio programmers and networks hiring people with pretty British accents. I’m a fan of not only buying American, but “hiring American,” since I know so many people out there who are unemployed in the field of broadcasting and, quite frankly many of whom I feel are much more talented and qualified interviewers and broadcasters than Mr. Morgan. I don’t make the decisions as to who they put on the air at CNN, but I do have a choice what network or program I tune into. And I can assure you, Mr. Morgan’s show is not on my list of favorites programmed on my television.
If the gun enthusiasts really want to hurt Mr. Morgan for his opinions, they should realize it’s his ratings, not his residence address they should be attacking. Because if Mr. Morgan’s ratings plummet, CNN will hand him his walking papers and as Mitt Romney once proposed, Mr. Morgan will deport himself–perhaps back over the pond for a better cup of tea.
By: Leslie Marshall, U. S. News and World Report, December 26, 2012
“The NRA’s Worse Nightmare”: Gun-Rights Advocates Should Fear History Of Second Amendment
On Sunday, New York Sen. Chuck Schumer went on CBS’s Face The Nation and argued that people who support gun control “have to admit that there is a Second Amendment right to bear arms”.
Schumer’s effort to reach out to the gun-rights community may be well-intentioned, but it is also deeply ironic. If the nation truly embraced the Second Amendment as it was originally written and understood, it would be the NRA’s worst nightmare.
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.
It’s time for a history lesson about one of America’s most popular and least understood rights. It’s also long past time to expose the hollow, ignorant fawning over the Second Amendment by gun-rights advocates for what it is.
In contrast to the libertarian fantasies that drive the contemporary debate about firearms in America, the Founders understood that liberty without regulation leads not to freedom, but anarchy. They understood that an armed body of citizens easily becomes a mob. In other words, a bunch of guys grabbing their guns and waving a flag emblazoned with a rattlesnake is not a militia.
A cursory look at the history of the Second Amendment shows that regulation was a central part of its rationale—putting “well regulated” at the very start of the amendment was no accident. For instance, starting in the colonial period, states enacted a variety of “safe-storage” measures to deal with the danger posed by stored gunpowder. A 1786 law went as far as prohibiting the storage of a loaded gun in any building in Boston.
But many people who defend gun rights today are more than happy to skim over the first part of the amendment in their zeal to embrace the second. (The NRA itself literally chopped off that pesky first half when it chiseled the words on the face of its old headquarters.) As a result, our modern gun-rights ideology is often unmoored from any sense of corresponding civic obligation.
This ideology claims to rely heavily on the Second Amendment, and yet it is rooted not in the Founders’ vision, but in the insurrectionary ideas of Daniel Shays and those who rose up against the government of Massachusetts in 1786 and 1787. Indeed, there are gun-rights advocates today who think the Second Amendment actually gives them the right to take up arms against the government—but if that were true the Second Amendment would have repealed the Constitution’s treason clause, which defines treason as taking up arms against the government!
This is all so deeply twisted: after all, the Founders framed the Constitution in part as a response to the danger posed by Shays’ Rebellion.
As a result, our modern debate over gun rights has virtually nothing to with the Founders’ Second Amendment; that debate actually started about 30 years after the Amendment was adopted. What emerged was the notion that reasonable regulation was not inconsistent with the right to bear arms. In fact it was the only option in a heavily armed society.
Up until the 1980s, there was no “individual-rights” theory of the Second Amendment. Many states had adopted provisions protecting an individual right to own guns, but this tradition was distinct from the Amendment. All that changed when right-wing think tanks undertook a conscious effort to fund new scholarship to rewrite the amendment’s history. At first that effort was not well received, even in conservative circles. As late as 1991, former Supreme Court chief justice Warren Burger famously called the idea of an individual right to bear arms “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special-interest groups that I have ever seen in my lifetime.”
But the revisionism ultimately won over most of the legal establishment, reaching its zenith in 2008, when the Supreme Court broke with 70 years of established jurisprudence and affirmed that the Second Amendment protects an individual right to have guns in the home for reasons of self-defense.
In order to do this, the majority followed the lead of gun-rights advocates and essentially excised the first clause of the amendment—the “well-regulated militia” part—from the text.
(Let us pause briefly to note the irony that the opinion, District of Columbia v. Heller, was written by none other than Justice Antonin Scalia—America’s staunchest defender of originalism, or reading the Constitution according to its supposed original meaning.)
If the Heller court had simply said, “Look, most Americans think the Amendment is about an individual right, and no one really cares what James Madison or the average man on the street in 1791 thought”—then the case would be pretty uncontroversial. Instead, Scalia produced a pompous, error-filled opinion that has done more to discredit his beloved originalism than a generation of liberal academics ever could.
Even leading conservative legal scholars have harshly criticized the ruling: federal judge Richard Posner said most professional historians reject Scalia’s historical analysis in the case, and described Scalia’s jurisprudence as “incoherent”. Perhaps even more damning, J. Harvie Wilkinson, a federal judge appointed by Ronald Reagan, compared Heller to Roe v. Wade.
Of course, the fact that the Second Amendment is now treated as an individual right has almost no bearing on gun regulation, because no right is absolute. You can’t shout “Fire!” in a crowded theater, nor can you fire a gun in one.
And most Americans—including those who own guns—are open to reasonable gun regulation. The only people who oppose such policies are the NRA, extreme gun-rights advocates, and the craven politicians who do their bidding.
But what would such regulation look like?
For one thing, we could have a comprehensive system of firearm licensing and registration. At the moment we have none (even though it is hard to fathom how one might ever muster a militia without such a system). To avoid the irrational fears of gun confiscation, such a system ought to be instituted by the states, which maintained militias long before the Second Amendment existed. Could anyone with even a minimal understanding of the history of the Second Amendment seriously maintain that a state-based system violated the Amendment’s text or spirit?
The bottom line is that although we hear the Second Amendment invoked all the time, few of those who trumpet it the most vehemently realize that restoring the Founders’ vision of the Second Amendment would be a call for more gun regulation, not less.
By: Saul Cornell, The Daily Beast, December 18, 2012
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