The 2nd Amendment (new thread)

What everyone must understand is that American politics doesn't work the way you'd think it would. Most people presume that government officials would never willfully withhold penicillin from men with syphilis just to see what would happen if the disease went untreated. It seems unlikely that officers would coerce enlisted men into exposing themselves to debilitating nerve gas. Few expected that President Obama would preside over the persecution of an NSA whistle-blower, or presume the guilt of all military-aged males killed by U.S. drone strikes. But it all happened.

Really thinking about all that may make it easier to believe what I'm about to tell you.

It may seem like imprisoning an American citizen without charges or trial transgresses against the United States Constitution and basic norms of Western justice dating back to the Magna Carta.

It may seem like reiterating the right to due process contained in the 5th Amendment would be uncontroversial.

It may seem like a United States senator would be widely ridiculed for suggesting that American citizens can be imprisoned indefinitely without chargers or trial, and that if numerous U.S. senators took that position, the press would treat the issue with at least as much urgency as "the fiscal cliff" or the possibility of a new assault weapons bill or likely nominees for Cabinet posts.

It may seem like the American citizens who vocally fret about the importance of adhering to the text of the Constitution would object as loudly as anyone to the prospect of indefinite detention.

But it isn't so.

The casual news consumer cannot rely on those seemingly reasonable heuristics to signal that very old norms are giving way, that important protections are being undermined, perhaps decisively.

We've lost the courage of our convictions -- we're that scared of terrorism (or of seeming soft on it).

News junkies likely know that I'm alluding to a specific law that has passed both the Senate and the House, and is presently in a conference committee, where lawmakers reconcile the two versions. Observers once worried that the law would permit the indefinite detention of American citizens, or at least force them to rely on uncertain court challenges if unjustly imprisoned. In response, Senator Dianne Feinstein tried to allay these concerns with an amendment:

An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.

You'd think the part about American citizens being protected from indefinite detention would be uncontroversial. It wasn't. But the amendment did manage to pass in the United States Senate.

Afterward everyone forgot about it pretty quickly. But not Charlie Savage. He's a journalist at The New York Times. If every journalist were more like him the United States government would be far less able to radically expand the president's unchecked authority without many people noticing.

Here is his scoop:

Lawmakers charged with merging the House and Senate versions of the National Defense Authorization Act decided on Tuesday to drop a provision that would have explicitly barred the military from holding American citizens and permanent residents in indefinite detention without trial as terrorism suspects, according to Congressional staff members familiar with the negotiations.
Says Adam Serwer, another journalist who treats these issues with the urgency that they deserve:

Of the four main negotiators on the defense bill, only one of the Democrats, Rep. Adam Smith (D-Wash.), opposes domestic indefinite detention of Americans. The Chairman of the Senate Armed Services Committee, Senator Carl Levin (D-Mich.), believes detaining Americans without charge or trial is constitutional, and only voted for the Feinstein amendment because he and some of his Republican colleagues in the Senate convinced themselves through a convoluted legal rationale that Feinstein's proposal didn't actually ban the practice. Both of the main Republican negotiators, House Armed Services Committee Chairman Howard "Buck" McKeon (R-Calif) and Senator John McCain (R-Ariz) believe it's constitutional to lock up American citizens suspected of terrorism without ever proving they're guilty.
There is a complication, as he notes: Civil liberties groups "aren't shedding any tears over the demise of the Feinstein-Lee amendment," because they objected to the fact that it protected only U.S. citizens and permanent residents, rather than all persons present in the United States. While I respect that principled stand, the more important thing is that this outcome puts us all at greater risk of having a core liberty violated, and that Senators McCain, Levin, and many other legislators suffer no consequences for failing to protect and defend the United States Constitution.

As Serwer puts it, "The demise of the Feinstein-Lee proposal doesn't necessarily mean that Americans suspected of terrorism in the US can be locked up forever without a trial. But it ensures that the next time a president tries to lock up an American citizen without trial -- as President George W. Bush previously tried -- it will be left up to the courts to decide whether or not it's legal."

Don't let the dearth of attention fool you -- this is a scandal. Congress has turned its back on safeguarding a core Constitutional protection and a centuries old requirement of Western justice.

Rage, rage against the dying of the 5th.

Americans are cowards. We own guns out of fear and not because we intend to do anything about government tyranny. If we cared, this affront to the constitution would not be pass:

one of the curious things about the second amendment and "gun rights," is how very little historiography there is on the subject. the first genuinely good scholarly work, by joyce malcolm, didn't appear until the 1990s. joyce argued that the language associated with "right to bear arms" reflected an american revision of certain strains of british common law tradition and appeared to support, at least in part, a more subdued version of a broad reading of the 2nd.

http://www.amazon.com/Keep-Bear-Arms-Origins-Anglo-American/dp/0674893077/ref=sr_1_1?s=books&ie=UTF8&qid=1355886627&sr=1-1&keywords=joyce+malcolm

but then saul cornell started doing his research. as it turns out, we have pretty good evidence about the views of "founders" or other late colonials and leaders in the early republic, because it seems like a flock of states and localities began imposing gun control ordinances of all kinds almost as soon as there was a united states. and no one made much of a fuss-- these were state level battles, and no court seems to have found any specifically individual right to arms possession of the sort we now think was common. and these cases were happening while the so-called founders were alive and often in leading political positions. none of these cases ever made it to the supreme court. none was overturned at a federal level. and none of them seems to have been viewed as unusual or provocative or in any way counter to the spirit let alone the letter of the 2nd amendment. certainly none of them inspired any of the early congresses to believe that rights were in danger and in need of more legislative protection or clarification.

http://www.amazon.com/Whose-Second-Amendment-Protect-Historians/dp/0312240600/ref=sr_1_7?s=books&ie=UTF8&qid=1355886883&sr=1-7&keywords=saul+cornell
http://www.amazon.com/Well-Regulated-Militia-Founding-Fathers-Origins/dp/0195341031/ref=sr_1_3?s=books&ie=UTF8&qid=1355886912&sr=1-3

i was initially skeptical of saul's claims, but he gave a presentation when his research was in progress, and we roughed him up pretty good, but the general claim seems tough to challenge. it's just that no one had bothered to do the research before. and his work suggests why-- the early state cases seem to have pretty well-settled the issue. there doesn't appear to be any serious, scholarly attempt to claim an individual right under cover of the 2nd until the 1960s. which also explains why there was so little historical research on the topic-- there wasn't much need.

joyce has responded by partly abandoning her earlier ground. the new book goes back into early modern british history to work the pre-history of the american conception of weapons. another smart, well-researched book. but it also opens up the ironic possibility that the best defense of an nra-style individual rights interpretation of the 2nd would avoid original intent appeals.
http://www.amazon.com/Guns-Violence-Joyce-Lee-Malcolm/dp/0674016084/ref=la_B001H6N6NO_1_2?ie=UTF8&qid=1355887088&sr=1-2

this is still an evolving historiographic debate, obviously. but these four books are the best of the book-length studies on the topic. most of the stuff you'll pull up on amazon or that gets pimped in the popular media is pretty shoddy.

Uhhhh...Kark, they put it back in.......

Please check it out before you overthrow the gov't or shoot my President....

It's time to limit our freedoms to depict , or mention anything in public that might be construed as violence-promoting.

"Right of Revolution?

By Joseph Shattan on 12.20.12 @ 6:07AM

Reflections on a senator and the Second Amendment.

About 15 years ago, I served on the staff of a Senator who was an ardent opponent of gun control. Once I asked him why he was so adamantly opposed to any restrictions on gun sales, when even the police favored banning sales of certain kinds of assault weapons.

The Senator dismissed these concerns with a wave of his hand. “The real purpose of the Second Amendment,” he explained, “is to guarantee the right of revolution. If the government ever becomes too oppressive, the American people will be able to rise up and overthrow it.”

“But Mr. Senator,” I objected, somewhat taken aback, “we are the government.”

“That’s right, Joe,” he replied, “but we might not always be.”

I have repeated this story many times over the years, and I never failed to include an ironic postscript: The only time in my life when I seriously discussed the possible overthrow of the U.S. government was in the course of a conversation with a U.S. Senator that took place in the Russell Senate Office Building on Capitol Hill.

In the wake of the awful events in Newtown, however, I find myself recalling this conversation — but without any trace of irony or amusement.

In his great book, Democracy in America, the incomparable Alexis de Tocqueville warned Americans against succumbing to an “immense tutelary power” that reduces us to “a herd of timid and industrious animals of which government is the shepherd.” Like many conservatives, I believe that the ultimate goal of American “progressivism” (although not, of course, its avowed intent) is to turn Tocqueville’s warning into a fact. And as we all know, it is the sad fate of sheep to end up in the slaughter-house.

Is the Second Amendment a way of protecting the American people against a sheepish fate, or is this entire way of thinking a prime example of what the historian Richard Hofstadter called “the paranoid style” in American politics?

And even if my former boss was correct, and the right to purchase the most dangerous weapons is a genuine insurance policy against “progressive” efforts fundamentally to transform American society, could it be that the premium we are paying — the periodic slaughter of innocents — is simply too high?

I don’t know the answers to these questions, but I think about them a lot now."