“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
“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
“Unfinished Business”: Next Time, The NRA Will Lose
How stupid does the Senate background-check vote look now, I ask the pundits and others who thought it was dumb politics for Obama and the Democrats to push for a vote that they obviously knew they were going to lose. I’d say not very stupid at all. The nosedive taken in the polls by a number of senators who voted against the bill, most of them in red states, makes public sentiment here crystal clear. And now, for the first time since arguably right after the Reagan assassination attempt—a damn long time, in other words—legislators in Washington are feeling political heat on guns that isn’t coming from the NRA. This bill will come back to the Senate, maybe before the August recess, and it already seems possible and maybe even likely to have 60 votes next time.
You’ve seen the poll results showing at least five senators who voted against the Manchin-Toomey bill losing significant support. Kelly Ayotte of New Hampshire is the only one of the five from a blue state, so it’s probably not surprising that she lost the most, 15 points. But Lisa Murkowski in Alaska lost about as much in net terms. Alaska’s other senator, Democrat Mark Begich, lost about half that. Republicans Rob Portman of Ohio and Jeff Flake of Arizona also tumbled.
Egad. Could it possibly be that those pre-vote polls of all these states by Mayor Bloomberg’s group were … right? All the clever people pooh-poohed them, because, well, they were done by Mayors Against Illegal Guns, and because it just seemed impossible that 70 percent of people from a red state could support the bill. But the polls were evidently right, or at least a lot closer to right than the brilliant minds who laughed at Joe Manchin and Pat Toomey and Harry Reid.
Something remarkable is happening here. Now, the pressure is on the other side. It’s on the NRA—gathering this Friday and Saturday, incidentally, for its annual convention, its first annual convention since Newtown. I think you’ll agree with me that the group has put a tremendous amount of thought into how to change its image, do a little outreach, present a picture of itself that will confound its critics. Or not: Sarah Palin will open the meeting, and Glenn Beck will close it. The list of eight political speakers—current and former elected officials plus John Bolton—features not a single Democrat. They’re really battening down the hatches.
And they are going to lose. I talked with a couple of knowledgeable sources about what’s going on now. Five Republicans, I’m told, have expressed some degree of interest in the bill: Ayotte, who would appear be a near-certainty to switch her vote; Flake, also a likely; Murkowski; Dean Heller of Nevada; and Bob Corker of Tennessee. Tennessee seems like a tough state to be from when casting such a vote as a Republican, but Corker is someone who at least tries once in a while to have conversations with Democrats.
On the Democratic side, as you’ll recall, four Democrats voted against Manchin-Toomey: Begich, Heidi Heitkamp of North Dakota, Mark Pryor of Arkansas, and Max Baucus of Montana. I’m told that Begich would like to switch, just needs to figure out how he can get there. Heitkamp is a bigger question mark. Pryor is probably lost.
That leaves Baucus. Shortly after the last vote, he announced he was retiring. That ought to mean that he should feel free enough to vote for the bill this time. It’s hard to know what Baucus actually believes—if that matters. He has a solid NRA career rating, but he’s cast enough votes the other way (supporting the assault weapons ban and the Brady waiting period) to make the other side suspicious. Before he announced he was quitting, the NRA was running ads against him.
What he believes may matter less than how he wants to spend his Senate afterlife. If he wants to stay in Washington and make money, he’ll be more likely to vote for Manchin-Toomey, because he’ll be dependent to some extent on Democratic money networks that were furious with him after the vote. If he just wants to move back to Montana, who knows.
That’s eight potential switches, where six are needed. One of those six, remember, is sure to be Harry Reid. He cast a procedural no vote because only senators who vote against a bill can bring it to the floor again, but obviously, if it is going to pass, he’ll vote for it. Even so getting to 60 will still be a heavy lift. And then there’s the House. So certain matters remain unclear.
But some things are quite clear. Manchin and Toomey deserve great credit for sticking with this. Democrat Kay Hagan of North Carolina, also up for reelection next year but a supporter of the bill, is every bit as at risk as Pryor and Begich are, and she makes them look like cowards. And clearest of all is the fact that, far from that vote being some kind of devastating blow to Obama or the Democratic Party, it accomplished a lot. It pulled a few bricks loose from the wall. Next time, that wall just might crumble.
By: Michael Tomasky, The Daily Beast, May 2, 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
“How Conveniently We Forget”: Chuck Grassley Called On Democrats Not To “Use” Newtown Deaths
Histrionics broke out at a Senate immigration hearing this morning when Senator Patrick Leahy called on Republicans not to use the Boston bombings as a weapon in the immigration debate. “Last week, opponents began to exploit the Boston Marathon bombing,” Leahy said. “I urge restraint in that regard.”
Perhaps the most prominent Republican official to have drawn a link between the bombings and the immigration reform proposal is Senator Chuck Grassley. And so, at today’s hearing, Grassley offered some curious pushback to Leahy that tells us a lot about how some conservatives are approaching both debates. Yes, Grassley actually said this:
“When you proposed gun legislation, we did not accuse you of using the Newtown killings as an excuse,” Grassley said. “I think we’re taking advantage of an opportunity when once in 25 years we deal with immigration to make sure every base is covered.”
Really? Here’s what Grassley himself said back on January 30th, over a month after the shootings:
Although Newtown and Tucson are terrible tragedies, the deaths in Newtown should not be used to put forward every gun control measure that has been floating around for years.
What’s more, Senator Rand Paul and other Republicans have accused the Obama administration of using the families as “props” in the push for gun control.
To be clear, if conservatives want to seize on the Boston bombings to make a political argument about immigration reform, that’s not necessarily something we should automatically condemn, as some Dems are doing. As Jonathan Bernstein notes, we should respond to events with politics. Politics are everywhere and they are inescapable. If major, consequential, nationally riveting events aren’t supposed to trigger debate over how we should organize ourselves and solve our problems, what should trigger it?
For the reasons I outlined this morning, I don’t believe the Boston bombings tell us anything all that relevant about how we should approach immigration reform policy. But pointing that out isn’t the same as claiming there’s anything inherently wrong or inappropriate about trying to apply an event such as the Boston bombings to the current policy debate. Substantively rebutting the argument that the bombings tell us something about how we should approach the argument over the path to citizenship is not the same as condemning the act of making that argument.
Now, it’s true that in pointing to major events to justify a political argument, one can cross the line from legit policy argument into demagoguery. For the record, I don’t think Grassley has done that yet. He merely said the bombings should be part of the discussion as we seek to determine what’s wrong with our current immigration system. That’s not the same as claiming, as others have, that the Boston bombings show that we should end the immigration reform debate entirely.
Similarly, Obama and Democrats said the Newtown shootings should be part of a broader discussion over how to respond to, and reduce, gun violence.
Grassley, however, only seems to believe this is appropriate in the case where he thinks it will help his cause.
By: Greg Sargent, The Plum Line, The Washington Post, April 22, 2013
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