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“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

May 6, 2013 Posted by | Bill of Rights, Constitution | , , , , , , , | 1 Comment

“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

April 24, 2013 Posted by | Constitution, Terrorism | , , , , , , , | Leave a comment

“Who’s Doing The Terrorizing?”: Lindsey Graham Pulls A Page Straight Out Of The Bush-Cheney Playbook

Apparently on Friday, before Dzhokhar Tsarnaev was apprehended, Sen. Lindsey Graham was already torquing up the hysteria by taking the position that Tsarnaev not receive his Miranda warning before being interrogated. Graham–who, not to imply anything from this, is one of those lucky men who can go into any barbershop and the get the exact look he wants simply by saying, “I’d like the Adolf Hitler haircut”–tweeted “If captured I hope [the] Administration will at least consider holding the Boston suspect as [an] enemy combatant for intelligence gathering purposes.” He then added “The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.'”

The Brothers Tsarnaev will never be known as anything but terrorists, but Boston certainly doesn’t look like a town that has been terrorized to me. Defiant? Sure. Inspired? Definitely. There’s a kind of a civic euphoria arising from the realization that town came through this blow with strength and intelligence and courage. From the first responders on Monday, to the individuals who opened their homes to stranded runners, to the full-throated expression of patriotism that infused the way Bruins fans sang the national anthem, to an exemplary performance by the law enforcement authorities, Boston has a lot to be proud of. They don’t look terrorized to me.

It’s the Lindsey Grahams who are terrorizing people by suggesting that this threat maybe might possibly be so enormous that we have to deny Dzhokhar Tsarnaev his rights as an American citizen. This is a page straight out of the Bush-Cheney playbook, the idea that we have to start throwing away our most important values and traditions in order to be secure.

It’s nonsense. Denying Dzhokhar Tsarnaev his rights won’t improve my safety. Let’s face it: if I really wanted to improve my safety, I would lose twenty pounds.

By: Jamie Malanowski, Washington Monthly Political Animal, April 21, 2013

April 22, 2013 Posted by | Boston Marathon Bombings | , , , , , , | Leave a comment

“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

April 22, 2013 Posted by | Boston Marathon Bombings, Constitution | , , , , , , , | Leave a comment

   

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