Attorney General Mukasey on the Second Amendment:
A tangent from a statement by Senator Durbin, in the Judiciary Committee meeting ($) on the Mukasey confirmation:
Judge Mukasey told me, quote, "Based on my own study, I believe the Second Amendment protects an individual's right to keep and bear arms," end of quote.
Thanks to David Codrea for the pointer.
I like Mukasey more the more I learn about him.
It is a bit odd that Schumer was behind this guy all the way.
You do realize that most of these same abuses occurred under the Clinton administration, right? When do you think rendition flights started? It's as if everyone froliced under rainbows under the eeevil neocons came into power.
As for habeas corpus, I suppose the military could always deal with enemies caught violating the laws of land warfare in the traditional manner - shoot them on the spot. Would that satisfy you?
I remember there being a wiretapping controversy during the Kennedy/Johnson term, when Bobby was the AG.
The other stuff was not heard of only because secrets were more secret.
Yes, liberals did start that - start mindlessly chanting that boilerplate mantra, that is.
But it says "...the right of the people...", not "...the right of the states..."
The Republican favored "abridgements" are theoretical, the Democratic favored abridgements are practical and ongoing.
They're not exactly the same thing, you know.
The 14th amendment only affects "Privileges or Immunities". It can not recognize nor grant a right itself. It likewise can not transfer possession of a right, instead being limited to only the privileges and immunities recognized by the federal government of the citizens of the United States and adding that these protections must also be recognized by state law.
The text of the 2nd amendment states, and I quote :
"A well regulated militia, being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed."
It assures that, at least as long as a well regulated militia is necessary for the security of a free state, that the right of the people to keep and bear arms shall not be infringed.
Even the Founding Fathers recognized no inherent right to resist the Federal Government : Washington himself put down a few insurrections, although as characteristic of his time he did not punish the rebels more than strictly necessary. It was a capability, but not one recognized as a right. If it were a right, there could be no law banning it and no Constitutional notice against it.
If we could impart just one piece of wisdom on future constitution-writers it would be thus: do not use subordinate clauses when their meaning with respect to the main clause is unclear. Those commas are quite a bit more of a headache than they are worth anyway.
I think he or she is using "theoretical" as to describe his or her personal situation. While it's quite possible (and even simple) to go get in trouble with violations of the right to bear arms or the right to speak freely in liberal meccas (I've done the latter and gotten quite close on the former), even if you were to go to Iraq, dress like a Sikh, and fulfill a lot of nasty stereotypes, the chances of being tortured or having your right to a speedy trial or an appeal are horrendously low. From a personal perspective, it is theoretical, described in hundredths of a percentage at worst.
Hell, they're not even supposed to be doing the "take away speedy trial or right to an appeal" thing -- the most recent statute on the matter reduced the limitation on appeals related to terrorism in Iraq to those who had been determined to be an 'unlawful combatant' by a tribunal, and still had to allow that charge to be appealed to the DC District Court.
Bravo to the people who try and make the endings agree, but it's a subjunctive verb, not an adjective-noun clause.
It's also a second-person person active verb, not a third-person passive one, so a literal translation would be something like: "let you have the body," or "you should have the body," or even just "have the body." Hard to get into English.
And that's the sort of question I would have been asking Mukasey.
There are several decisions of the Supreme Court that address questions of state vs. federal authority over the militia, such as Houston v. Moore (1820) and Martin v. Mott (1827) where neither party, nor the Court, argued that the 2nd amendment changed the relationships concerning the militia established in Art. I, sec. 8 and sec. 10.
The "states rights" understanding of the 2nd amendment is a 20th century invention, created to justify restrictive gun control laws aimed at disarming black people.
I wasn't thinking rendition when I said torture, I was thinking the homegrown variety, recent discussion example: waterboarding. For rendition, we create the fiction that we believe the prisoner will not be tortured, but for waterboarding we admit to doing it but claim it isn't torture (with a straight face, even). And what I'd prefer (in general, NOT shooting people on the spot, but not torturing them either) is irrelevant because we're party to treaties banning torture and the Constitution says we're supposed to not violate treaties to which we're a party. But yeah, people might be right, none of it's new. Anyway, every or nearly every President we've had has probably pushed the limits of the Constitution, party notwithstanding. I'm just tired of Liberals being slammed like we have some kind of monopoly on "iffy" readings of the Constitution.
On the other hand, the after affects of riding in Ted Kennedy’s car going over Dike Bridge are death if you are a young female.
Is one torture and the other not? Let me consider that.
The new Attorney General will probably not be asked to sanction drunk driving, just waterboarding. Therefore its after-effects are the relevant ones. If there aren't any, and it's not torture, is it OK to do it to a kid, say as punishment for stealing a bike? *I* don't think so, but I'm registered in the same party as Ted Kennedy so I have no credibility.
It is my understanding, correct me if I am wrong, that the after effects of water boarding are … zero.
Since its basically a mock execution that is also physically traumatizing there are certainly psychological after effects. And note that other kinds of mock executions are banned by our laws and treaties as well. Drugging and sodomizing you while you're unconscious wouldn't leave much in the way of physical after effects, but I don't think you'll be signing yourself or your family members up for it any time soon.
Well, there is one difference: the War on Terror represents a very real threat to the continued lives of large numbers of Americans. While I don't condone waterboarding (which I consider over the line into torture), at least the rationalization for its use is based on a non-trivial problem. Liberal justifications for Raich and Kelo were basically, "What? And lose the power of the government to do good things in the future?"
I do not doubt that it is within our capability of inserting electrodes into the pain centers of a person's brain, and stimulating them to the point of shock and unconsciousness. You could probably build a device that detected that a person was going into shock (by blood pressure changes), turned off the stimulation--and then resumed it when the person recovered. Why, with IV drip for glucose, you could have a machine operating like that, inflicting pain equivalent to anything the Inquisition or the Soviet Union delivered for months, continuously--without doing any permanent damage.
Using liberal doctrines of how the Second Amendment has been rendered obsolete by changing technology, you could make a case that:
1. The death penalty isn't a deterrent to Islamist suicide bomber terrorists--they are expecting to die, anyway.
2. An effective deterrent would require that terrorists we catch be subject to something far more unpleasant than execution--for example, the torture machine aforementioned, perhaps alternated with trained pigs having their way with the terrorists--said procedures to be applied to such a person for the remainder of their natural life. (Say, 50 or 60 years of experiencing the pain equivalent of being beheaded with a dull knife every few minutes.)
Clearly, that "cruel and unusual punishments" clause, like the Second Amendment, has been rendered obsolete by changing technology.
There's nothing wrong with admitting that times change, technologies change, and perhaps the Constitution needs to change as well. But when liberals, who have spent most of the last 40 years using judicial activism to revise the Constitution, without bothering to go through the amendment process, start to complain that the Bush Administration is using liberal tricks--that's just too funny!
I'm not liberal, but one can make the case that the current trampling of the Constitution is worse than that done by liberals. The current trampling works at subverting some of the most basic rights - habeas corpus, prohibition on torture, etc. And don't get me started about some bureaucrat saying that we're going to have a "new definition" of privacy. (No, the president and his employees work for the people, and the people are going to tell you what the definition of privacy is going to be - not the other way around.)
The Creeping Commerce clause and associated crap is bad, but it isn't as bad as the neocons thinking they can claim anyone is an "enemy combatant" and hold them without having to follow the Constitution, or the treaties the US has signed.
But enemy combatants don't have, and have never had, and should not have, the same rights under the U.S. Constitution that U.S. citizens have.
I agree pretty much entirely with your post, but just to play devil's advocate, what about:
1. Buzzard v. State, 4 Ark. 18 (1842) (Dickinson, J., concurring).
2. In the General Principles of Constitutional Law in the United States (1880), Thomas Cooley mentions a militia-based reading of the amendment before refuting it.
These seem more like a sophisticated-collective interpretation though. If you mean a purely collective right interpretation you may be right.
But enemy combatants don't have, and have never had, and should not have, the same rights under the U.S. Constitution that U.S. citizens have.
From what I can tell they can classify anyone, including US citizens, as an "enemy combatant" at the president's whim, without any kind of Constitutional due process or judicial oversight. That's new.
As the joke about the woman who agrees to go to bed with someone for a million dollars--but then gets offended when the bid drops to $50: "What do you think I am?" "We've already established what you are. We're just haggling over price."
When liberals decided to reinterpret the Constitution as they saw fit to accomplish what they saw as good ends, they had agreed to the act; now we're just haggling over for what purpose.
Probably refuting Joel Bishop's erroneous statement which even Bishop admits was written without reference to any specific authority.
Oren -- grammatically speaking, the "militia... state" wordage is not a clause (no verb) but an absolute adjective. The amendment lacks any language indicating that the right is conditioned on the existence of or necessity for the militia, merely that that is one reason to have the right.