Topic: Law and Civil Liberties

No People in Washington, D.C.?

The majority opinion in last week’s federal Appeals Court ruling striking down D.C.’s stringent gun ban has garnered considerable attention from both the media and the public. Much less attention has been given to the court’s dissenting opinion (which begins on p. 59 of this .pdf), authored by Judge Karen LeCraft Henderson. I suppose that’s not surprising, given that her opinion “lost.” 

But part of the dissenting opinion should be very troubling to D.C. residents: according to Judge Henderson, they’re not “people” in the eyes of the Bill of Rights.

Judge Henderson states in her 5th footnote (p. 5 of her opinion, p. 63 of the .pdf):

[J]ust as the Tenth Amendment ties the rights reserved thereunder to “the people” of the individual “States,” thereby excluding “the people” of the District, … the Second Amendment similarly limits “the people” to those of the States….

Do you get it? According to Judge Henderson, Second and Tenth Amendments’ protections extend only to “people” living in the “States.” As D.C. is not a state, reasons Judge Henderson, District residents are not covered by those protections. 

I wonder: does this reasoning extend to the other protections granted by the Bill of Rights to “the people”? In the opinion of Judge Henderson, do District residents also not have the right ”to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”? Do District residents not have the right to due process? Do they not have constitutional protection from double-jeopardy and self-incrimination? Can District residents “be held to answer for a capital, or otherwise infamous crime” without indictment from a grand jury and without representation? Can District residents “be deprived of life, liberty, or property, without due process of law”? Can District residents’ “private property be taken for public use without just compensation”? After all, the Bill of Rights explicitly guarantees those rights to “the people” or to a “person,” just as it guarantees “the right of the people to keep and bear Arms.”

To remember what rights you have (or, if you’re a District resident, what rights you may not have), be sure to order a copy of the U.S. Constitution (also available in Spanish and Arabic).

“Gun Violence”

As a new round of debate about gun control gets underway, watch out for the term “gun violence.” Stop anyone that uses the term and ask them what they mean by it. “Gun violence” lumps criminal acts and acts of self-defense together.  It obfuscates serious discussion. If the crux of the debate is pacifism, let’s get to it and not talk around it.

I should note that President Bush and his prosecutors talk about “gun violence” too. They say their vigorously enforced firearm regulations “reduce gun violence.”  They want the listener to think they’re locking up violent thugs, but the phrase once again lumps stuff together that ought to be kept apart. For example, undercover officers might buy drugs from an apartment. A few hours later, they get a search warrant and raid the place.  During the search, they find an unloaded handgun in the bottom of a closet. Prosecutors subsequently charge the drug offender with “using a gun during a narcotics offense.”  (No kidding. Go to footnote 54).

For other distortions of language, go here.  For Cato work on gun control, go here.

Al Qaeda in Perspective

Multiplicitous federal policies and programs threaten privacy - data mining, the REAL ID Act, National Security Letters, etc. - and they threaten trade and commerce too.  The link among them, of course, is the threat of terrorist attacks. 

An essential part of any security discussion is to get a handle on the threat.  Cato Unbound devoted some energy to that problem last September with exquisitely rational analysis from the Ohio State University’s John Mueller, while former Inspector General of the United States Department of Homeland Security Clark Kent Ervin argued, “I’d Rather Err on the Side of the Believers.” 

Now the RAND Corporation has released a report called “Exploring Terrorist Targeting Preferences.”  According to the press release announcing the report, it finds “little evidence of a coherent al Qaeda strategy for U.S. attack.”  The report explores four different theories of al Qaeda’s motivation, toward the end of determining its likely future actions.

I don’t have the capacity to critique the report and I don’t think it ends the inquiry, of course.  Al Qaeda’s motivation should be a matter of continuous study, along with all other threatening entities.  The capacity of threats to follow through on their intentions should be the subject of equally searching, continuous study.

But I think it is essential to have reports like this issued and discussed.  They are part of getting the threat of terrorism in perspective and solving the security dilemmas created by terrorism. These problems are not easy, but they are fully susceptible to solution consistent with our Constitution and our tradition of liberty.

The Smart Card Alliance Thinks Privacy Is Bunk

A spokesman for the Smart Card Alliance says:

Privacy concerns are all perception and hype and no substance but carry considerable weight with state legislators because no one wants to be accused of being soft on privacy.

That’s Randy Vanderhoof, the Smart Card Alliance’s executive director, quoted in a Federal Computer Week article on the collapsing REAL ID Act/national ID plan.  He was speaking of Congressman Tom Allen’s (D-ME) bill to restore the 9/11 Commission-inspired ID provisions of the Intelligence Reform and Terrorism Prevention Act of 2004.

Mr. Vanderhoof and the Smart Card Alliance couldn’t appear more dismissive, ignorant, and unserious about issues that are a core problem preventing uptake of its products.

FBI and Patriot Act

With all the excitement over the Second Amendment ruling, I’ve hardly had a chance to welcome the scrutiny that is now being directed at the FBI for its illegal use of “national security letters” (euphemism for super-special FBI search warrants).

Throughout the debate concerning the reauthorization of the Patriot Act, government people would taunt civil liberties advocates with the line: “Where are the abuses?”  We would patiently explain that the new police “tools” (euphemism for powers) were executed in secret.  The pols would usually just repeat their mantra in a louder voice, as if secrecy was irrelevant: “But you have not identified any abuses at all!”

Well, more abuses have now come to light and it’s a pleasant surprise that the development is at the top of the news.  But we should not be surprised.  Look at the incentives.  FBI agents get awards and promotions by breaking cases.  Agents do not get jailed or fired for skirting the law or disregarding civil liberties.   There’s no teeth behind the rules that were broken, just talk (‘We are studying the report … agents may need retraining’).  Lawsuits are mostly an expensive experience about futility.

Roll back the Patriot Act.  Abolish national security letters.  Not because search warrants are perfect–far from it.  But the judicial “check” in the search warrant application process is better than relying upon the police to respect the law and our rights.

For related Cato work, go here.

Were You Surprised that DC’s Gun Ban Was Declared Unconstitutional?

Last week, a federal appeals court overturned the District of Columbia’s gun ban on the grounds that the Second Amendment protects an individual’s right to keep a functional firearm in her home.

Some were shocked by the court’s interpretation of the Second Amendment.  After all, we’ve heard for years that the prefatory clause of that amendment, “A well regulated Militia, being necessary to the security of a free State,” limits the operative clause, “the right of the people to keep and bear Arms, shall not be infringed,” to instances where arms are used in connection with service in the militia.

Those who follow Second Amendment scholarship, however, were not surprised by the court’s reasoning.  For years, scholars have examined the text, history, and context of the Second Amendment.  Those scholars built up a large body of evidence demonstrating that the “collective right” interpretation of the Second Amendment doesn’t stand up to scrutiny.

That effort arguably began with Prof. Sanford Levinson’s 1989 Yale Law Journal article, “The Embarrassing Second Amendment,” where he wrote:

For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy.

Elsewhere, my colleague Tim Lynch links to reviews of several works that followed.  One of the more interesting contributions to this line of scholarship is an article by Prof. Robert J. Cottrol titled, “A Liberal Democrat’s Lament: Gun Control Is Racist, Sexist, and Classist.”  That article begins with a forceful quotation from Democratic icon Hubert Humphrey in support of “the right of the citizen to keep and bear arms.”  Cottrol concludes:

[T]he ultimate civil right is the right to defend one’s own life, that without that right all other rights are meaningless, and that without the means of self-defense the right to self-defense is but an empty promise.

Our serious thinkers have been absent from this debate for too long. The Second Amendment is simply too important to leave to the gun nuts.

The majority opinion in Parker v. District of Columbia is evidence that serious scholars heeded that call, a good summary of the debate over the Second Amendment, and a lesson about how honest, careful scholarship can defeat a very appealing myth. 

Hats off to those scholars, the litigants, and their counsel.