Tag Archives: government

The Administration And Free Speech

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The First Amendment, as Judge Andrew Napolitano points out,

prohibits the government from infringing upon the freedom of speech, the freedom of association and the freedom to petition the government for a redress of grievances.

But what’s the point if government declines to listen, and/or decides to specify where a citizen might be allowed (which includes a decision to not allow) to speak, even if not speaking to his government, decides to specify where groups of citizens will be permitted (which includes a decision to not permit) to congregate?

We have though, this brand new law, the Federal Restricted Buildings and Grounds Improvement Act of 2011.  This law, as Judge Napolitano says,

permits Secret Service agents to designate any place they wish as a place where free speech, association and petition of the government are prohibited.

Thus, federal agents whose work is to protect public officials and their friends may prohibit the speech and the gatherings of folks who disagree with those officials or permit the speech and the gatherings of those who would praise them, even though the First Amendment condemns content-based speech discrimination by the government.

Our government has forgotten a critical item, and Judge Napolitano has missed it, also.  This item is far more than a “mere” violation of our Constitution.  As out Declaration of Independence acknowledges,

…Governments are instituted among Men, deriving their just powers from the consent of the governed….

Government works for us.  It has no capacity for declining to listen to us (much less to not hear us), or to dictate to us, its employers, where the employee might choose to listen—the conference room is ours, not government’s.  We will gather in the conference room of our choice, gather whom we will in that room—including our subordinate government—and say what we will to that government.  And that government will heed us.

After all, our Declaration of Independence also acknowledges that

…whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government….

and

…when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Our present administration has chosen to ignore all of this.  We have an election coming up, an excellent opportunity to throw off this administration and to institute a new one.

2nd Amendment and the Fifth Circuit

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The Wall Street Journal‘s Law Blog has a description of an egregious gun rights case.  It seems that, when Errol Houston was arrested in New Orleans in 2009 on drug and firearm charges, the police seized a properly registered gun that he had.  So far, so good—when the police arrest someone, they’re allowed to disarm him, too.  However, when the charges were dropped, the city refused to return his weapon to him.  He sued for the return, and amazingly, the district court found for the city.  Even more amazingly, the Fifth Circuit upheld the ruling, with this…logic…written by Judge Rhesa Hawkins Barksdale:

Just as some regulation of speech–e.g., of obscenity and defamation–is “outside the reach” of the First Amendment, so, too, is some regulation of firearms outside the reach of the Second.  The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense.

Houston has not alleged defendants prevented his “retaining or acquiring other firearms.”  Therefore, he has not stated a violation of his Second Amendment right to keep and bear arms.

Judge Jennifer Walker Elrod dissented.  In addition to pointing out the degree of legality of the majority opinion, violating as it does the Supreme Court’s prior rulings in similar cases (vis., District of Columbia v. Heller and McDonald v. City of Chicago), she also correctly explains the nature and meaning of the 2nd Amendment:

In the context of other enumerated constitutional rights, an equivalent per se exception for particular exercises of the right at stake (so long as other exercises of that right are permitted) would be intolerable.  Consider, for example, a court holding that the Free Speech Clause affords no protection against the government preventing the publication of a particular editorial in the New York Times because there are plenty of other newspapers that might publish the piece.  Or consider a court holding that the Fourth Amendment is inapplicable to the unreasonable seizure of a specific automobile so long as the government does not prevent the owner from borrowing, renting, or purchasing a replacement vehicle.  These examples should suffice to show the absurdity of courts recognizing categorical exceptions for each particular exercise of those rights.  In carving out such an exception from the Second Amendment, today’s majority impermissibly treats the Amendment as a “second-class right.”

Judge Elrod is right that the accessibility of alternatives is irrelevant—those alternatives are not the item itself, and the item itself remains the legitimate property of the owner.

Both the majority and Judge Elrod miss a larger point, though: the “right of the people to keep and bear Arms” is, indeed, a property right, but it is a different and more fundamental kind that that alluded by Judge Barksdale and accepted by Judge Elrod.  This property is one flowing from the endowment imbued in us by our Creator, a property of our being.  As such, Judge Elrod is right, but she doesn’t go far enough.  It is the regulation of our endowed rights that is the exception, not the possession of this or that particular item in a realization of one or more of those rights.

Pause for Commercial

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My book, A Conservative’s Manifesto: A Brief Discussion of some Principles, has been published, and it can be found, among other places, at Amazon.com (paperback, Kindle, or hardcover) and at Barnes & Noble (paperback, Nook, or hardcover). Links also can be found nearby in the column to the right and on the newly added Books page.

The book lays out, in so many words, a set of (modern) Conservative principles that are tied back to the 18th Century Liberal principles that guided our Founding Fathers in developing our American social compact.  I begin with a description of those 18th Century Liberal principles and continue with a description of our drift away from them over the last 80 years, beginning with FDR’s administration.  I also describe a modern Conservatism that is those 18th Century Liberal principles brought forward to today, and I apply those principles to a number of critical aspects of American life: faith, citizenship, the nation, our economy, and our government.  I close by contrasting modern Liberal/Progressive concepts with these modern Conservative concepts and offering a path back to those modern Conservative tenets that made our country so exceptional and so great.

I hope you find it both enjoyable and useful.

A Risk to Federalism

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It always starts from the best of intentions.  The Senate is unhappy with the lack of uniformity of driving laws governing teenage drivers across the States, so it wants to impose national standards.  Specifically, the Senate wants to use a two-year, $109 billion highway bill currently under consideration as the, umm, vehicle for imposing national standards for teenager cell phone use while driving and for teenage driver licensing requirements, among others.  The thinking seems to be that the Feds got away with this concerning minimum drinking ages, so they can do it again in this area.

But the Feds didn’t, entirely, get away with it concerning drinking ages.  In South Dakota v. Dole, the case concerning the imposition of a national minimum drinking age, the Supreme Court ruled (not entirely correctly) that

[T]he relatively small financial inducement offered by Congress here – resulting from the State’s loss of only 5% of federal funds otherwise obtainable under certain highway grant programs – is not so coercive as to pass the point at which pressure turns into compulsion.

Thus, to comply with the Court’s ruling, the Senate’s use of the spending bill—or any other means—to obtain State acquiescence with the Feds’ national standard must be done carefully.

I claimed above that the Court got Dole only partially right.  Under the Federalism structure of our nation, the Federal government cannot (not just may not) force the States, individually or as a group, to do very much at all.  This is clear from Article I, Section 8; Article I, Section 10 [sic]; and the 9th and 10th Amendments.  Mandating national standards for matters that are internal to the States (vis., the rules by which a State’s citizens might drink, or drive, or etc. within that State) is prohibited by our Constitution.  The Court plainly understood this with its Dole ruling.

However.

The Court’s understanding falls short, as demonstrated by that phrase pass the point at which pressure turns into compulsion.  It waffled on where to draw that line.  It had to waffle, because that line cannot be drawn.  It is the nature and purpose of “pressure” to get the target of the pressure to comply.  The first iota of pressure has as much compulsory content as the last iota that pushes to total over that line to a compulsion that even a Supreme Court can recognize.

The President can use his bully pulpit quite legitimately—and Presidents often do, beginning with Teddy Roosevelt—to jawbone with his target audience to get this or that issue handled “his way.”  So can the Senate, or the House, or the Congress as a whole.  There is, though, a not very fine line between remonstrating, on the one hand, and forcing (or “pressuring” for) compliance—compulsion—on the other.  Putting such jawboning into legislation goes far beyond mere argument and becomes an attempt at compulsion, albeit with a cotton glove.

The greater risk is not to our teenagers, or fellow travellers, from their driving habits, but to the Federal nature of our nation from a central government imposing uniformity on things that properly are within the…province…of our States.  That greater risk includes the risk to our teenagers’ welfare.

On the other hand, this might be a fine opportunity for the States to set a powerful precedent.   This might be the place for the States to start saying, “Done and done.  Keep your Federal highway dollars.  We no longer wish to have your Federal hands in our State pockets.”

Voter Rights

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The Obama administration, through the Holder Justice Department, has blocked another voter photo ID law, this time in Texas.  Thomas Perez, DoJ’s Assistant Attorney General for the Civil Rights Division, insists

According to the state’s own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this identification.

Even using the data most favorable to the state…that disparity is statistically significant[.]

Perez also noted that the Texas law allowed voters to show military ID, a US citizenship certificate, a US passport, or a license to carry a concealed handgun, but the state did not provide any statistics noting how many people lack state ID but have the other allowable forms.

I cannot conclude that the state [of Texas] has sustained its burden [of showing law has neither a discriminatory purpose nor effect]

This is echoed by Luis Figueroa, a staff attorney with the Mexican American Legal Defense and Educational Fund:

The photo ID law would disproportionately affect poor and minority voters, who are least likely to have any of the required forms of identification or the documentation needed to obtain one[.]  It also would hurt students because college or university IDs would not be accepted[.]

Hmm….  So, on the basis of speculation that nefarious ends might occur at some time in the future—a speculation that Texas failed to disprove—and on the baldly asserted but wholly unsubstantiated claim of inconveniences, Texas’ voters’ ballot choices will continue to be exposed to invalidation through the voter fraud that a photo ID law would have greatly mitigated.

Moreover, what Perez apparently chose to ignore, is the ease with which a voter photo ID is, in fact, obtainable—and how many groups (vis., disabled, elderly) are exempted from the requirement.  And the consequences of showing up at the polling station without such an ID: voters who arrive without one of seven acceptable forms of photo IDs issued by the state or federal government would be given a provisional ballot.  That ballot would count if the voter then brings an approved ID to the registrar’s office within six days of the election—including an ID obtained after casting the ballot.

Congressman Lamar Smith (R, TX), House Judiciary Committee Chairman, has the right of it:

Voter ID laws help ensure the integrity of our elections and protect the rights of lawful voters.  If citizens are required to show ID in order to open a bank account, cash a check, drive a car or board a plane, how much more important is it to show ID in order to exercise one of our most valuable democratic rights?  This is an abuse of executive authority and an affront to the citizens of Texas.

Smith also noted that the Texas law to which Obama and Holder object was based on an Indiana law that has been upheld by the Supreme Court.

Finally, recall that this is the same Progressive administration that withdrew from two cases of voter intimidation—after confessions and guilty pleas had been obtained.  It’s clear that this is an administration that condones voter fraud, that wants votes diluted by illegal voters.