"It’s just completely befuddling that our Supreme Court would be in alliance with the [criminals]," a government official said about the Court's Confrontation Clause case, in which the Justices held that the Confrontation Clause required the reversal of a murder conviction.
A pretty poor argument, it seems to me: The point of the Confrontation Clause is to protect everyone, and while it unfortunately sometimes (in fact, disproportionately) protects criminals and even murderers, it hardly means that the Court is in "alliance" with the murderers. Even if you agree with the minority and think the majority got it wrong, that just means the majority Justices are unnecessarily doing something that will unfortunately help some criminals; it hardly makes them the criminals' "alli[es]." Many politicians and others (mostly conservatives as to the criminal procedure amendments, I should note) make this mistake. But it's still a serious mistake.
But whoops, actually that isn't exactly what the government official -- Oak Park, Illinois Village Manager Tom Barwin -- said. Rather, he said (in a National Public Radio interview Sunday), "It’s just completely befuddling that our Supreme Court would be in alliance with the gangbangers," and of course he was talking about the Court's Second Amendment.
If anything, that's an even weaker argument: Gangbangers are even less the beneficiaries of the Court's Second Amendment decision than criminals are of the Court's Confrontation Clause case. While the Confrontation Clause protects the innocent as well as the guilty, realistically the majority of the people who'd be prosecuted even without it would likely be guilty. (That's not a reason to reject it, of course.) But the overwhelming majority of all handgun owners are law-abiding citizens, not gangbangers; and because gangbangers are willing to violate all sorts of criminal laws, it's not even the case that a handgun ban affects them much.
Still, that seems to be the mayor's view: Enforce what you see (quite plausibly) as an expressly secured constitutional right -- a right that millions of law-abiding citizens take advantage of -- and you're "in alliance with the gangbangers." Not just someone who mistakenly does something that will help criminals (a plausible criticism, though one I disagree with), but the gangbangers' ally. A pretty poor argument, it seems to me.
Of course, by the time I hit "Post Comment," there may be five "Barwin is America's greatest hero!" posts.
Incidentally, I know that "please comment on topic X" posts are frowned upon, but I would appreciate reading your thoughts on the recent Texas exorcism case. The various parts of the opinion are on the Court's website, but I haven't found one that bundles the majority and dissents.
ACLUNRA isn't a lobbying organization for American criminals?As for the Confrontation Clause: it is a very scary thing to have the full resources of a government going after you, with the result that you could lose your life or your freedom. A check on that power is a good thing.
As for the Second Amendment: I've yet to see good evidence that people who are determined to commit horrible, vicious crimes against other human beings are deterred by the possibility of a fine. To state the obvious: we have plenty of laws that criminalise the possession of a gun during a felony (armed robbery v. robbery, aggravated assault, etc); while repeal of those laws may put someone in league with the gangbangers, the same cannot be said of the repeal of a law that allows people to shoot gangbangers before they are killed.
That's not a "less palatable" argument, that's not even an argument. It's merely a statement.
That's the fundamental equivalent of answering the question "what do you plan to do about the crime problem" with "maybe people should commit less crime." It doesn't answer the question and it doesn't help.
Answers to the question would typically involve things like deterring them from committing more crimes, or removing base motivation for committing the crimes in the first place, or attempting to mitigate the harm of the crimes.
I'm not saying taking guns away is an effective solution, on the contrary, it's a highly ineffective solution. But the fact remains that some of these areas have violent crime problems and politicians are under severe pressure to do something. Merely self righteously suggesting that "well maybe those people should just stop shooting each other" just isn't helpful.
I recognize there may be some bias on the part of community leaders in these areas to "do something" even when it may be worse than doing nothing, but if you can insist with a straight face that preventing crime isn't part of even a very small government's duties, I suppose the whole debate is irrelevant.
Anonymo the Anonymous
and i agree with your point too. i dont even disagree with the method of delivery. i just agree that its overused.
The arguments coming from the anti-gun crowd after the Heller decision was handed down have been notable for their weakness and lack of logic. Some history professor claimed in the Washington Post that a small study he conducted 20 years ago in King County, WA, proved that guns aren't used often for self-defense -- nevermind that subsequent studies by Dr. Kleck and DOJ on a nationwide basis showed that guns are used in self-defense roughly 1.5 to 2 million times each year. You have E.J. Dionne in today's Washington Post arguing that the decision in Heller was a sign of conservative activism similar to that of the Court in FDR's day -- with no mention of the actual text, history, and interpretation of the 2d Amendment. If it was so obviously "activist," then how come even the dissenting justices wouldn't bother arguing in favor of the "collective rights" theory that was bandied about as gospel in the years following Miller? Where did the majority pluck "self-defense" out of thin air?
It will also be interesting to see whether the dissenters are going to adhere by stare decisis for future cases regarding gun regulations. Or will they fight to overturn this decision at every opportunity? I'm guessing the latter, in which case people should give up on stare decisis as some noble sentiment in law. It is, only up to the point that a justice chooses to take it, and no further. It does not appear to be an objective good in itself any longer.
Of course, when Scalia says in Boumediene that the majority will undoubtedly cost Americans their lives, how can we really be critical of politicians for their comments?
Or not?
Yes. I think the argument described by EV is as bad, or worse, when it takes the form, "Our Supreme Court is in alliance with the terrorists."
it is a more palatable argument for democratic politicians to make than the obvious one, which is that blacks and hispanics need to quit shooting one another.
Yeah? Equally obvious: whitey needs to get his boot off the neck of the brothers. It's a classic self-preservation strategy for the powerful to turn less powerful people against each other. Prison guards stoke racial tensions all the time.
"OMFG the SUPREME COURT is in ALLIANCE with THE GANGBANGERS!!!!! WTF?!?!"
Looks a little different when you put it like that, eh? The argument's a little more compelling? Yes, yes, I think so.
Unfortunately many politicians do not care about the result. We have so many ineffective and/or silly laws on the books (see Missouri cyber-bullying) because they only care about the appearance of caring.
Because, unlike with criminals, if you agree with the minority and think the majority got it wrong, that just means the majority Justices are doing something that will unfortunately help some terrorists; it makes them the terrorists' "alli[es]."
There are conservatives who occasionally voice the "in alliance with criminals" claim (I've even seen this on your own blog comments). Taunt them back on the 2nd amendment.
I figure that's a better way of putting the point "they should quit committing crimes".
Ok, when they interviewed Heller's appellate attorney, that was pretty exceptional. That guy is good.
It's not just NPR, and it's not just interviews. This is about the depth at which most of the media -- particularly the broadcast media -- covers most issues. And my wife wonders why I can't sit still for TV news. I can't stomach it. It insults my intelligence. Typically they don't even do a good job of presenting the positions I disagree with.
So having the inadvertent result of helping criminals doesn't make a court or a politician an "ally" of the criminals, unless you can prove that was their intent.
And, of course, finding proof of intent is difficult.
Nevertheless, the result is the result and, intentional or not, those who see themselves as being at increased risk can be expected to speak intemperately. And, given the way the world works, once in a while they'll be right.
Really? I think it's pretty effective, actually, although I agree that Eugene overuses it.
If the statement here is outrageous, then it will be outrageous on its own two feet. You don't need to make some imperfect comparison to try and have the imperfection in the comparison give weight to your argument.
Here, for instance, the reason why the DOJ statement might seem offensive (and I think both statements are not particularly offensive, though neither is in good taste, and the government official's statement in reality is simply ill-informed as to what Heller actually says) would because of the necessity of the Government to preserve the procedural rights of those whose freedom it takes away, as a way to protect us from the tyranny of government abuse. While some might say the 2nd Amendment gives one the same freedom, I don't think that's a generally accepted argument (particularly with handguns).
Stare decisis is the inviolable and cherished bulwark separating the Rule of Law from the Rule of Bill, or Susan, or Dontell, or Hua . . .
Unless you're talking about one of those buffoonish, moronic, self-serving exercises in partisan judicial activism regularly foisted upon us by the [Other] Party, of course. Overturning those fetid piles of illogic simply protects the spirit of our Constitution. To claim entitlement to the shelter of stare decisis, decisions should be well-reasoned - not like that _____ case that was so obviously wrong.
I agree, especially in this case given how patently absurd the Mayor's comment is.
I prefer a law which doesn't radically change from day to day.
terroristsgangbangers.The Supreme Court is objectively pro-
terroristcriminal.The Constitution is not a suicide pact.
Our government needs to have the power to keep us safe.
If you've done nothing wrong, you have nothing to fear.
Need I go on?
Yes, I don't know how any dissenter in the Confrontation Clause case was unable to avoid slipping that in.
Scalia is just trash. Smart trash, but trash.
What's the evidence for "smart?"
We'll never know. And if Scalia is right, we'll never know. And even if wild circumstance actually does demonstrate that somebody who got off due to a Lynn Stewart clone and clever lawyering and slick use of habeas and comes at us again, or when classified material is sought and distributed by the defense and some Americans die as a direct result.... Too many people have too much invested to accept the conclusion.
It's different, in this respect, from the more judge-made doctrines.
"The publisher of the paper called for fair trials. He is supporting the bandits by slowing justice, and thus he and his family must pay the price of their treason."
Barwin's comment is the sort of rhetorical overreach we expect in politics, but as ejo reassures us, there's at least one place (i.e., blog comment threads) where the bar for rational, civil discourse is even lower.
So a better analogy would be for an anti-abortion or anti-death-penalty activist claiming that a judge was "in alliance with murderers" for making a pro-abortion-rights or pro-death-penalty ruling, or for an extreme "all sex is rape" feminist to claim that a judge was "in alliance with rapists" for upholding a law legalizing prostitution or striking down a ban on producing porn.
That said, I'm not bothered by the "Oh, whoops" device in general. I think it's a useful check on hypocrisy and double standards to see if ones opinion changes depending on which ox gets gored or on whether the sauce is applied to the goose or the gander.