I voted for 5, and wrote “In May 1994, President Clinton used the full force of his office to convince House Democrats to drive their majority off a cliff, by enacting a ban on so-called ‘assault weapons’ (ordinary firearms with cosmetically incorrect features). President Obama and House leadership seem determined to repeat a similar mistake, except on a much greater scale.”
Question 2 asked the Left “Is Tim Kaine an asset or a liability as DNC chairman?” The Right was asked about Michael Steele and the RNC. On both sides, only 31% voted for “asset.” The only writer who had anything good to say about Michael Steele was me: “Probably some of each. Still having trouble understanding that his job is to help the team, not to be the star.”
Finally, the bloggers were asked if Obama would be a one-term President. Thirty-one percent on the Left, and 71 percent on the Right thought so. Of course it’s far too early to predict with any confidence, but perhaps it would be accurate to say that his current chances for re-election are in the 30–70% range. He’s far from doomed, but not looking particularly solid right now either. I guessed the one-term would be the more likely result: “He will have plenty of opportunities in 2011–2012 to change his current self-destructive course. But it seems more likely that he will double down on his failures and his policies, which alienate the majority of the American people.”
I don’t have a fully-formed opinion on these topics, and would welcome well-informed comments. Please stick to this issue, not to the merits of the legislation. The most relevant constitutional text would seem to be the following:
Article I, sect. 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article I, sect. 5: Each House may determine the Rules of its Proceedings, . . .
Article I, sect. 7: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill
Also seemingly relevant would be INS v. Chada (1983), which rejected the position that a section 7 cases present a non-justiciable political question. The practice at issue in Chada, the one-house veto, was far more established by practice and by statute than is the Slaughter Solution of “deeming” an unenacted bill to have been enacted.
Tags: Slaughter Solution
The second question asked: “Would the Obama administration be better off if these individuals [David Axelrod and Rahm Emmanuel] had more influence, or less influence?” On the Left, 64% favored more influence for Axelrod, and 100% wanted less influence for Emmanuel. On the Right, 93% wanted less influence for Axelrod, and 50% wanted more influence for Emmanuel. I wrote: “Rahm is politically brilliant, and has a sense of the possible. Imagine how much stronger Obama might be right now if he had followed Rahm’s advice to pass a variety of discrete fixes for health care rather than investing his entire presidency in a huge omnibus bill.” In contrast, “Axelrod’s recent interview in the N.Y. Times indicates that he is among the Obama devotees who have wrongly convinced themselves that the only problem with Obamacare is messaging, rather than substance.
Update: It now appears that the man captured was Taliban commander Abu Yahya, not Adam/Azzam Gadahn/Pearlman. So consider this post a head start for the discussion when Gadahn is brought to justice. Unless a drone takes care of the job first.
Tags: Adam Gadahn
JUSTICE SOTOMAYOR: Would you be happy if we incorporated it and said, reasonable regulation is part of the incorporation? And how do we do that?
MR. FELDMAN: Well, there is the reasonable regulation standard, there is an article by Professor Winkler that we cite in our brief that goes very extensively through the ways that State courts have dealt with their own rights to keep and bear arms and have adopted, really by overwhelming consensus, that kind of a reasonable regulation standard, which generally recognizes
JUSTICE GINSBURG: I thought that Heller –Heller allowed for reasonable regulation.
MR. FELDMAN: Excuse me.
JUSTICE GINSBURG: I thought that the Heller decision allowed for reasonable regulation and it gave a few examples as Justice Scalia mentioned.
MR. FELDMAN: Right. Well, it’s just our view would be that what Chicago has done here, which is permit you to have a — permit you to have long guns but ban handguns, is the kind of regulation that throughout our history jurisdictions in their own — that are most familiar with their own particular needs and their own particular problems, and in a position to balance the –the need for self-defense with the risk to the use of firearms — for violence, for accidental death and or suicide — that the City of Chicago has come up with something that is well within our tradition.
Some clarification here. Heller never adopted a “reasonable regulation” standard. Heller allows for machine gun bans under theory that they are not part of the Second Amendment (that is, they are not Second Amendment “arms”). Restrictions on gun carrying in “sensitive places” are not explained doctrinally, but they are easily comparable to First Amendment “time, place, and manner” rules. Heller says that concealed carry may be banned; in the states, the dominant theory for this restriction was that concealed carry was not part of the right. Finally, Heller’s allowance for conditions and qualifications on the commercial sale of guns was expressed without being described as part of some kind of “reasonableness” test.
Feldman was astute to cite Winkler’s Michigan Law Review article, since that article argued that state RKBA cases use a “reasonableness” standard, which Winkler interprets as meaning that almost any anti-gun laws (including a handgun ban) are alright, as long as people are allowed to own some type of firearm.
In a forthcoming Santa Clara Law Review article, Clayton Cramerand I argue that Winkler overstates the degree of state judicial deference to anti-gun laws; we also argue that the weak standard of review cases are plainly invalid as Second Amendment guides post–Heller–since the D.C. ban itself would have been upheld under the standard Winkler describes (and for which he advocated in a Heller amicus brief along with Erwin Chemerinsky).
In McDonald, BTW, Winkler joined the all-star professors team whose amicus brief advocated for Privileges or Immunities enforcement of the right to arms.
Regarding today’s oral argument, I thought that all three attorneys did a good job arguing on behalf of their respective positions. As it turned out, only Paul Clement found a majority of the Court favorable to his core argument, but that’s no strike against the skills of Gura or Feldman as Supreme Court advocates.
Categories: Guns, McDonald v. City of Chicago, Supreme Court 113 Comments
At the oral argument in Heller, Justice Kennedy noted that Miller “kind of ends abruptly.” In the Heller decision, the Court observed that Miller was “virtually unreasoned.” Many scholars have wondered what Justice McReynolds was trying to do by writing such an opinion.
The Heller Court pointed out that many lower courts had “overread” Miller. A recent post on the Legal History Blog provides some evidence that legal scholars may also have overread Miller, for Miller may not have been written to mean much at all, other than perfunctorily upholding the National Firearms Act against a facial challenge. The post highlights Barry Cushman’s 2003 University of Chicago Law Review article Clerking for Scrooge. Cushman’s article reviews the 2002 book The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR’s Washington.
Since high school, John Knox had been star-struck by the Supreme Court Justices, attempting to strike up correspondences with them, sending them birthday greetings, and so on. After graduating from Harvard Law School, Knox landed a clerkship with Justice James McReynolds for the 1936–37 term. McReynolds preferred to work out of his D.C. apartment, rather than in the Supreme Court’s then-new building. Knox’s role was secretarial. Knox later wrote: “I appreciated his anti-New Deal view and agreed with it, but that was the only thing I could possibly agree with him on. He was selfish to an extreme, vindictive, almost sadistically inclined at times, inconceivably narrow, temperamental, and heaven knows what. All of his employees lived in a reign of terror and were crushed under foot without any hesitation on his part.”
More relevantly for Miller, McReynolds “found great difficulty in expressing himself in writing and, sadly enough, was genuinely lazy.” In the September of the clerkship, Knox had dinner at the home of Mr. and Mrs. Edward Everett Gann. The Ganns were well-connected in Washington; Mrs. Dolly Gann was the sister of Herbert Hoover’s Vice-President, Charles Curtis (1929–33). Mr. Gann was a friend of McReynolds, and accidentally caught McReynolds in a tryst with a woman. Knox recalled Gann’s words: “I concluded finally that he is not really interested in the work of the Court any more. He’s old, evidently bored with life and would probably retire now if he could do so without letting other conservatives on the Court ‘down.’”
While McReynolds was remarkably even-tempered when President Roosevelt announced his Court-packing plan in 1937,
McReynolds appears to have been equally if not more greatly irritated by the amount of work he had to do in the spring of 1937. One of McReynolds’s defining characteristics, on Knox’s account, was sloth. . . . Nor was Knox impressed with the amount of time McReynolds put into the preparation of those opinions he actually did write. The first opinion of the term went through only two drafts, and McReynolds spent only about three and one-half hours working on it, including the hour he had spent studying the briefs of the case before he had begun his dictation. He devoted only slightly more time to his second opinion. Laboring over opinions in a “scholarly” manner was apparently not Mac’s style.
McReynolds was upset when he was assigned the dissent in an important labor law case (Anniston Manufacturing Co v Davis), which he knew would have to be long. His dawdling delayed the release of the opinion, eventually leading the other dissenters to come to his apartment to try to help him get the opinion done. McReynolds finally decided “he was going to employ the ‘paste and shears’ method, quoting verbatim from lower court opinions excerpted in the briefs rather than composing his own prose.”
Now United States v. Miller becomes easier to understand. All eight Justices (Douglas, then new to the Court, did not participate) have voted in conference to uphold the statute. The lower court opinion is a mere conclusory assertion. Miller’s attorney did not even brief or argue the case, but instead told the Court to rely on the Department of Justice brief. (We now know that the district court judge, the local U.S. Attorney, and, perhaps, the defense attorney, were colluding in order to bring the weakest possible case to the Supreme Court, in order to affirm the National Firearms Act.)
So imagine you’re Chief Justice Hughes. Given that you have to assign McReynolds a majority opinion from time to time, Miller is the perfect case. The Court is unanimous, meaning that McReynolds will not be burdened with responding to dissenting arguments. Indeed, since the case is uncontested, writing the majority opinion would be especially easy. McReynold’s product in Miller was consistent with his lazy and slapdash approach. Perhaps the other Justices, while recognizing that there was room for improvement in the opinion, decided not to press McReynolds for changes, lest McReynolds fail to get around to making any revisions, and thereby further delay the progress of the Court’s business.
All of the opinion-writing Justices in District of Columbia v. Heller took their work much more seriously than McReynolds apparently took his work in Miller, and so both the majority opinion and the two dissents directly and carefully addressed many of the important Second Amendment questions which McReynolds had conspicuously ignored.
[W]hat we have seen in recent years gives me pause. . . . Those changes have come directly from the courts in a series of rulings that have effectively worked to exclude the body politic from the ongoing search for constitutional meaning.
. . .No fewer than seven times in the last seven Terms, the Supreme Court has invalidated part of a federal statute on the ground that Congress exceeded its power to regulate commerce, its power to enforce the Fourteenth Amendment, or its inherent power within our system of “dual sovereignty.” Those statutes include the Gun-Free School Zones Act, the Religious Freedom Restoration Act, the Brady Handgun Violence Prevention Act, the Trademark Remedy Clarification Act, the Age Discrimination in Employment Act, the Violence Against Women Act, and the Americans with Disabilities Act.
. . .
United States v. Lopez, the 1995 case that said that Congress cannot make it a crime to knowingly possess a gun within 1,000 feet of a school, was the first time in sixty years that the Court had imposed a substantive limit on what Congress can and cannot do under the Commerce Clause. Echoing a prophecy stated in an earlier era, the Court warned that if the law were upheld, then “there never will be a distinction between what is truly national and what is truly local.”
[Paragraph on United States v. Morrison, Kimel v. Florida Board of Regents, and Alabama v. Garrett.]
Beyond the damage that these cases do to civil rights, and the fact that they upset settled understandings of congressional power, what is troubling about them is that they do not occur at a time in our Nation’s history when there is a significant public clamor for a different constitutional vision. To be sure, there has been a general tendency in recent decades in favor of a smaller role for national government, although many have rethought such notions in the wake of September 11th. But more importantly, the recently invalidated statutes themselves provide compelling evidence that the American people are not the true wizards behind the Court’s velvet curtain.
The Gun-Free School Zones Act passed the House by a vote of 313 to 1; it cleared the Senate by unanimous consent. . . .
But even more astounding than the Court’s willingness to override commonsense legislation with such broad support is its eagerness to do so in terms which are deliberately designed to exclude Congress—and by extension, the American people—from playing a part in defining what the Constitution requires and what it permits. The recent cases do not pretend to be opening arguments in a longer debate. Instead, they are self-conscious pronouncements asserting the Court’s authority to be the sole and final arbiter of constitutional meaning. More and more, it seems, Congress and the American people, by extension, are regarded by the Court as mere targets of judicial discipline, unable to live and govern themselves within “judicially enforceable outer limits.”
The Court may have the final say on constitutional interpretation, but I do not see any reason why it should have the only say. . . .
When the Constitution says that Congress shall have power “to regulate commerce ... among the several States,” does that not suggest that Congress has some role in determining what counts as interstate commerce? . . . The Court’s recent opinions seem to say no. In the eyes of the Court, whatever Congress may think the Constitution permits or requires does not seem to count for much.
The net result is that Congress is now left to navigate a doctrinal minefield of magic words. . . . The next time I consider school safety legislation, should I wonder whether school safety is “truly national” or “truly local”? And as I work on hate crimes legislation or a bill to ban workplace discrimination based on sexual orientation, how can I be sure it is a “congruen[t] and proportional” response to a constitutional wrong before I hear the answer from the other side of Constitution Avenue?
These questions begin to give you some idea of the anxiety I feel about the Court’s unilateral effort to redefine the separation of powers in our national government. Beyond raising new questions about the constitutionality of substantive legislation, the Court has sought to minimize the significance of Congress’s views on those very constitutional questions.
. . .
Let me conclude tonight with a call to action on two fronts. First, what we see happening in the courts today underscores how important it is that we in the Senate diligently exercise our constitutional duty to scrutinize judicial nominees—including nominees to the lower federal courts. Let us not forget that cases like Lopez and Morrison affirmed the decisions of lower-court judges who laid the groundwork for the dramatic shifts in doctrine we see today. [FN72] I applaud the efforts of my colleagues on the Senate Judiciary Committee who have done the hard work of ensuring that our federal judges are fair, disciplined, and faithful to the law. The nominations process is an important form of national dialogue on the relationship between Congress and the courts. And for each nominee, it is crucial that the Senate discharge its duty to “advise” before it “consents.”
Footnote 72 includes the following:
The Supreme Court has seen fit to rein in some of the most activist lower-court decisions. . . . But additional cases continue to test the limits. See, e.g., United States v. Emerson, 270 F.3d 203, 227–29 (5th Cir. 2001) (agreeing with district court that Second Amendment confers an individual right to bear arms, notwithstanding contrary indications in United States v. Miller, 307 U.S. 174, 178 (1939)).
Categories: Uncategorized 73 Comments
The story of the armed community organizers
A few weeks ago, I linked to a picture of civil rights activist John Salter being attacked by a mob during a lunch counter sit-in during the 1960s. I also linked to a newspaper op-ed in which Salter explained how he and other civil rights workers used firearms for protection from Klansmen and other terrorists—when Klansmen knew that a homicide would not be witnessed by the news media. Since that blog post drew great interest from the readers, I thought that some persons might be interested in the longer version of Salter’s history of the role of armed self-defense in the Civil Rights Movement.
The longer version is John R. Salter, Jr., “Social Justice Community Organizing and the Necessity for Protective Firearms,” which is chapter 2 of The Gun Culture and Its Enemies , pp. 19–23 (William R. Tonso, editor, Merril Press, 1990.) (Merril Press is the press for the Second Amendment Foundation.) The chapter was first published as an article by Salter in Against the Current, July/August 1988. The magazine describes itself as an “analytical journal for the broad revolutionary left.” Since neither version is available on-line, I will provide a summary.
In the mid-1960s, Salter was a full-time community organizer for the Southern Conference Educational Fund, in the very poor and highly segregated North Carolina black belt. Klan activity was heavy, and “Local law enforcement was almost completely dominated by the United Klans of America.” Klan dues were collected at the police station in Enfield.
Having received many death threats, Salter carried a Smith & Wesson .38 special in his attaché case. One night, on a long stretch of isolated country road, a Klan vehicle tried to force Salter’s car into a high-speed chase, by tailing him nearly bumper-to-bumper. “But I continued to drive sedately, mile after mile…with my revolver in my hand.” Salter and the other community organizers had put out word on the grapevine that they were all armed, and he surmises that this was the reason that the Klansmen did not try to shoot him that night.
Soon after, “a local civil rights stalwart, Mrs. Alice Evans, of Enfield, opened fire with her double-barreled 12 gauge, sprinkling several KKKers with birdshot as they endeavored to burn a cross in her driveway one night and, simultaneously, approaching her home with buckets of gasoline.” The Klansmen fled and went to the hospital. Mrs. Evans donated the cross to the Smithsonian Museum.
Salter then recounts the story of the armed students and teachers who protected Tougaloo College, near Jackson, Mississippi, when Salter taught there in 1961–63. That story is recounted in the op-ed to which I linked in the previous post.
In late 1964, the Klan was scheduling a state-wide rally in Halifax County, N.C., near a black residential area. Rally posters were displayed at “most law enforcement offices in the county.” Salter and his fellow organizers asked the office of Governor Terry Sanford to provide state police protection for the black residents. Sanford’s office ignored the requests, until Salter went to Sanford’s office, got a meeting with the chief of staff, and told him that if the state police did not provide protection, “our people, armed to the hilt, would have no hesitation about utilizing armed self-defense in the event of Klan violence. Visibly shaken, the aide left me and conferred with Sanford. He returned quickly to promise the state police.”
Klan rallies continued for several more months in the area, and so did state police protection.
In 1965 in North Carolina, the FBI and Justice Department told Salter than an informant inside a United Klans klavern had reported on a plan to bomb Salter’s home in Raleigh.The FBI agent told Salter and his wife that the federal government could not do anything about it. Of course, “Local law enforcement was not reliable. Fortunately, we lived in the middle of a heavily armed Black community,” and Salter’s neighbors were “very protective.” They and Salter put out the word that the community was armed for defense. Thus, “We were not surprised when the bombing effort never materialized.”
In the summer of 1970, Salter was Southside Director for the Chicago Commons Association. As such, he was a community organizer for mostly “Black, Puerto Rican, and Chicano” people. On the South/Southwest side of Chicago, the racism was “often more violent and sanguinary than the Deep South of the previous decade. The Richard Daley machine was openly antagonistic to us . . .” In some but not all districts, the police were in league with the racists.
Death threats were frequent. When they were phoned in, Salter told the callers, “that I had a ticket for them, a pass to permanent eternity via my Marlin .444.” One day while Salter was at work and his wife was at home, some men with knives came to the home, but a vigilant neighbor with a revolver frightened them away.
In Chicago in 1973, Salter’s community network of nearly 300 block clubs “set up public citizen ‘watch-dog’ patrols.” These were generally unarmed, with “primary backup from a network of armed citizenry in the neighborhoods,” with whom the patrols stayed in contact via Citizens Band radio and telephone. “The effects of this well known campaign in deterring while racial violence were consistently substantial.” Soon, and as a result, politicians instituted “increasingly responsible and egalitarian law enforcement practices. But the patrols and vigilance of armed neighborhoods continued.”
Salter write that firearms are not an absolute guarantee of safety for community organizers; Medger W. Evers (NAACP Field Secretary for Mississippi) was murdered in June 1963, but being armed did help him to live for nine years longer than most people expected he would when he took the job in 1954.
In sum, “I am stating categorically that the number of fatalities” was “much smaller” because “organizers and their grassroots groups” were “sensibly armed for self-defense.”
Categories: Civil Rights, Guns, McDonald v. City of Chicago 48 Comments
Our Article also addresses Adam Winkler’s influential and well-written 2007 Michigan Law Review article, which surveyed post-WW II state cases. Our article studies a broader range of cases, and gets into more depth on those csases, so it’s 93 pages long. It was even longer until the editors changed the typeface from Century Schoolbook to Times New Roman. Here’s the abstract:
Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of “reasonableness,” this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying “reasonableness,” many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of “police power,” are inappropriate in Second Amendment interpretation. This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.
The article is founded on the tremendous research on state cases which Clayton conducted for his 1994 book For the Defense of Themselves and the State. That book was cited by the Washington Supreme Court in its new decision State v. Sieyes.
Categories: Guns, Militia 14 Comments
1. The University of Montana’s Rob Natelson on the Executive Vesting Clause. Natelson argues that the first clause of Article II grants the President no additional powers–contrary to the theory that the clause gives the President almost all the powers formerly possessed by English Kings. 36 minutes.
2. The Privileges or Immunities Clause and what it means for the Second Amendment. The Cato Institute’s Ilya Shapiro discusses his new law review article. 29 minutes. (The final version of the Shapiro-Blackman article, “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States,” was just uploaded to SSRN today.)
3. What Miller Meant. Oklahoma City University’s Michael O’Shea explains the history and multiple meanings of United States v. Miller. 65 minutes.
4. The International Hunter Education Association. IHEA’s Wayne East describes the IHEA’s good works in teaching safety and responsibility. And how you can take most of a hunter safety course on-line. 26 minutes.
5. Weld County, Colorado, Sheriff John Cooke provides law enforcement perspective on three bills in the Colorado legislature: removing the Governor’s power to prohibit gun sales, transfers, or transportation during an emergency; a declaration that the federal government cannot apply federal gun control laws to guns manufactured in Colorado and which do not leave the state of Colorado (background checks on sales would still be required pursuant to Colorado law); and a bill to state that business owners on their own property have the same self-defense rights as do persons in their own homes. All three bills were supported by the County Sheriffs of Colorado. The first two bills were killed on party-line votes in a state Senate committee; the last bill is awaiting a committee vote in the House.
The first four are interviews I conducted last week. The last interview is conducted by Independence Institute’s Amy Oliver.
Categories: Constitutional History, Guns, Legal Scholarship 2 Comments
Categories: Uncategorized 45 Comments
At the very least, however, the fiasco of the Bush National Guard story shows that Ms. Starr did not provide her Internet readers, or CBS, with a story which could withstand factual scrutiny. Accordingly, if Avalon’s reporting is correct, he has provided yet another reason for people to disbelieve the (already-implausible) assertion that President Obama was not born in the United States. In contrast to the way the mainstream media initially handled the 2004 Bush National Guard story, the mainstream media did a better job in 2008 by not embracing a story about a presidential candidate which could not be supported by solid, verifiable facts.
Categories: Bush, Media, Obama, Politics 177 Comments
The non-violent Civil Rights protesters allowed themselves to be beaten in public while the media watched; the images helped win sympathy for the Civil Rights Movement in the North, and proved to be crucial in developing the political will for the passage of the Civil Rights Act of 1964.
In a limited sense, the media’s presence provided some protection for the protesters; there was never a case in which a civil rights protester was murdered in front of media cameras. At night, when everyone had gone home, things were very different. As Salter later explained:
I was beaten and arrested many times and hospitalized twice. This happened to many, many people in the movement. No one knows what kind of massive racist retaliation would have been directed against grassroots black people had the black community not had a healthy measure of firearms within it.
When the campus of Tougaloo College was fired on by KKK-type racial night-riders, my home was shot up and a bullet missed my infant daughter by inches. We received no help from the Justice Department and we guarded our campus — faculty and students together — on that and subsequent occasions. We let this be known. The racist attacks slackened considerably. Night-riders are cowardly people — in any time and place — and they take advantage of fear and weakness.
Later, I worked for years in the Deep South as a full-time civil rights organizer. Like a martyred friend of mine, NAACP staffer Medgar W. Evers, I, too, was on many Klan death lists and I, too, traveled armed: a .38 special Smith and Wesson revolver and a 44/40 Winchester carbine.
The knowledge that I had these weapons and was willing to use them kept enemies at bay. Years later, in a changed Mississippi, this was confirmed by a former prominent leader of the White Knights of the KKK when we had an interesting dinner together at Jackson.
In the 1970s, I was Southside director of the large, privately-funded Chicago Commons Association. Our primary focus involved assisting minority people in developing sensible community organizations — vis-a-vis schools, city services, anti-crime.
We were opposed by white racist organizations (e.g., Nazi Party) and various youth gangs of many sorts. My staff and I received countless death threats, there were arson attacks on our offices, and, on one occasion, men with weapons came to my home and told my wife and children that they intended to kill me. (I happened to be at work.)
Again, I was glad I had many firearms and, again, we guarded our home and let this be known. We responded to hate calls on the telephone by telling the callers we were quite prepared for them.
For Salter, the right to own a handgun was apparently a crucial part of his ability to exercise his right to defend himself and his family, which was a sine qua non of his ability to stay alive in order to exercise his First Amendment rights to advocate for enforcement of the Fourteenth Amendment.
Yet in modern Chicago, decent law-abiding citizens are forbidden to own handguns. As I detailed in my amicus brief in McDonald v. Chicago (pages 39–45), many people find that a handgun is best choice for family defense, especially in urban areas such as Chicago. As the history of the Civil Rights Movement demonstrates, the denial of the constitutional right to own a handgun could endanger other constitutional rights, particularly the rights of community organizers.
Categories: Civil Rights, Guns 226 Comments
Question 2 asked the Left if Democrats would benefit politically from another televised Q&A session by President Obama with House Republicans. Seventy-eight percent of the Left expected Democrats to benefit. Right-leaning bloggers were asked if Republicans would benefit, and 57 percent said yes. I was in the majority: “All Americans would benefit. All Republicans are Americans. Ergo, Republicans would benefit. The metric of success should not be partisan benefit, but rather national benefit.”
Categories: Congress, Politics 57 Comments
He wrote an open letter to the United States Congress asking us to pay some attention to the lack of human rights that existed in China. For writing an open letter to members of the United States Congress in 2007, Gao Zhisheng, one of the most distinguished human rights — noted and distinguished human rights lawyers in China, was imprisoned for 58 days and brutally tortured.
. . . Mr. Gao Zhisheng has represented some of the most vulnerable people in China. They include persecuted Christians, coal miners and others. He always believed in the power of law; using the law to battle corruption, to overturn illegal property seizures, to expose police abuses, to defend religious freedom. He’s a devout Christian. He fought to protect those who engage in peaceful spiritual and religious practice in China.
And in 2005, they took away his license to practice law, closed his law practice. As I said, in 2007, they arrested him, threw him in prison and tortured him. Eventually he was released and brought back home and placed under police surveillance at home. The surveillance proved almost harsher than prison. In fact, a member of the communist police moved into their living room, prevented his daughter from going to school; his 16-year-old daughter barred from attending schools. 24-hour surveillance.
One year ago, on February 4, 2009, Gao Zisheng was again seized by the Chinese government. No one except his Chinese captors knew whether he was dead or alive. Finally, after continuing international pressure from citizens and free governments, the Chinese apparently leaked word in January to an Australian newspaper that he is still alive.
Those readers who know their English legal history know the stories of the great lawyers during the Tudor and Stuart reigns, who used the law to challenge the abuses of the monarchs. Those readers know the debt that every free American owes to those lawyers, who sacrificed so much–and sometimes their lives–to establish the rule of law. During the reigns of the Tudors and Stuarts, the friends of a courageous lawyer who had been unlawfully imprisoned could resort to the Great Writ, the writ of habeas corpus, to secure a judicial hearing on his detention under the law.
There is no writ of habeas corpus in China, nor are there most of the other civil rights guarantees which are characteristic of a civilized nation with a free government. And so Gao Zisheng’s writ of habeas corpus will not be issued by a Chinese court, but its moral equivalent can be issued by the free people of the world: commanding that the body of Gao Zisheng, in the Chinese government’s custody detained, as it is said, together with the day and cause of his caption and detention, be safely brought forth. If you would like to sign a petition to free Gao Zisheng, or contact your elected officials to urge them to press for his freedom, or take other steps, click here.
Categories: Habeas 19 Comments
The second question asked about the political effects of the Citizens United decision. Seventy percent of the Left thought it would help Republicans a lot. Only 6 percent on the Right thought the same, while another 33 percent thought it would help a little. The leading choice on the Right was “not much impact.” That was my view, based on empirical experience: “Based on the experience of about half of the states, which never restricted the free speech rights of people in corporations, it’s hard to see much of a partisan impact from respecting the First Amendment.”
Although Pound prided himself on being in touch with current realities, he was already being be proven wrong by the facts on the ground. The possession of efficient arms by civil rights workers (including Condoleezza Rice’s father, a Methodist minister) and of groups like the Deacons for Defense was essential to the success of the Second Reconstruction. A key reason why the Second Reconstruction succeeded and the First Reconstruction failed was that the second time, the defenders of the Constitution had sufficient arms to resist attacks by the Ku Klux Klan and other state-supported terrorist organizations.
Arms possession by the civil rights advocates in the late 1950s and 1960s did not lead to lawless gang rule. It led to the restoration of the rule of law in the South, to the long-delayed enforcement of the Fourteenth and Fifteenth Amendments.
Although Pound was sometimes cited by opponents of the Standard Model of the Second Amendment, Pound’s point was not really that the Standard Model is wrong as a matter of original intent/meaning, but simply that the Second Amendment is no longer a good idea as a matter of public policy. Pound’s view that the Second Amendment could be ignored if modern persons thought it was no longer a good idea is consistent with his general view that legislation which once would have been clearly unconstitutional could be considered constitutional in modern times, based on perceptions of changed social needs. See generally Roscoe Pound, “Mechanical Jurisprudence,” 8 Colum. L. Rev. 605 (1908).
As David Bernstein has explained, Pound argued on a broad front that judges should ignore the text and original meaning of the Constitution, so as not to impede (supposedly) beneficial expansions of government power to restrict personal freedom. Pound was no friend of the Constitution.
Categories: Civil Rights, Constitutional History, Guns 110 Comments