McDonald v. Chicago - Oral arguments today

Update: Analysis: 2d Amendment extension likely (from SCOTUSBlog)

This is troubling, though:

The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge. [emphasis mine]

Why is that relevant? Or, to echo a point Mr. Gura made at one time, the SCOTUS should be concerning itself with what the Constitution means, not whether it’s a good idea to follow it.

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Just a reminder, oral arguments in McDonald v. Chicago are at 10:00 today. Apparently, SCOTUS has decided they will not release the audio, but the transcript should be available later today.

State Censorship

Update: VT administration rejects Commission on Student Affairs' stance

Any effort to end Tech's contract with the Collegiate Times or its parent company, or to ban student organizations from advertising in the newspaper, "is not in the offing," [university spokesman Larry Hincker] said. "That is not the position of this administration."

Good.

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Virginia Tech is threatening to pull funding from the campus paper (the Collegiate Times, or "CT").

The dispute centers upon a CT policy that allows online readers to post anonymous comments at collegiatetimes.com. The [Commission on Student Affairs] and others who support its proposal have objected to reader postings they characterized as racist or otherwise offensive.

[...]

Despite its independence, the newspaper receives free office space and $70,000 annually from the university, Vice President for Student Affairs Ed Spencer said.

The commission would further seek to ban student organizations from using university funds to buy ads in the CT, the letter stated.

Such a move could cripple or shut down the newspaper, which derives the majority of its revenues from ad sales. The newspaper's leadership pushed back publicly Thursday.

Essentially, the university wants to ban all anonymous comments on the paper's website because of some "racist or otherwise offensive" postings (ignoring, of course, the question of just who decides what is racist or offensive). The company that owns the CT is standing its ground, and doing so rather aggressively at this point.

The commission has requested another meeting with CT representatives.

But in a response to [commission chairwoman Michelle McLeese], [Kelly Wolff, general manager of the Educational Media Company at Virginia Tech, which owns the CT] wrote: "We have advised the Collegiate Times staff to discontinue discussions with CSA members, individually and collectively, on the topic of online comments. ... This is no longer a dialogue; it is coercion.

"We will wait to hear what the commission says. ... But if they are going to pursue this course of action, then we will take legal action," Wolff said in an interview Thursday.

In a purely private enterprise, this would not be a problem - a sponsor can provide or withdraw funding, facilities, or services at will and for any reason (within the limits of existing contracts). Virginia Tech, however, is an agency of the state (which is why they can't ban firearms on campus for anyone other than employees and students, or for specific events).

Note the sentence that I put in bold in the first quote. This actually goes farther than the university just pulling funding and support, they're also seeking to restrict where student organizations (the Fencing Club, the LGBTA, etc.), would be allowed to advertise.

Should an agency of the state be allowed to dictate terms about content to a newspaper? Should they be allowed to restrict where student organizations advertise? Or does this become a First Amendment violation? My first instinct is that this goes to far, and is an unallowable government coercion of media, but I'm not 100% settled yet - I really haven't had time to give it good, thorough, consideration. Opinions?

Random Discovery

It's been a while, hasn't it?

Tonight, while doing a little internet research for responding to a comment in the Roanoke Times editorial blog, I discovered something interesting. I can't quite decide if it's amusing or disturbing that this law is still on the books in Massachusetts.

PART IV. CRIMES, PUNISHMENTS AND PROCEEDINGSIN [sic] CRIMINAL CASES

TITLE I. CRIMES AND PUNISHMENTS

CHAPTER 272. CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER

Chapter 272: Section 36. Blasphemy

Section 36. Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.

You know, if anyone actually got charged with this, it would get thrown out on 1st Amendment grounds so fast you'd hear the sonic boom in Alaska.

An Profound Insight

From Robb at Sharp As A Marble.

Each time you allow your representatives to tack on more and more "regulations", you limit your freedom more and more. Each time you vote to increase the power of the government, even when you think that particular increase is beneficial, it will never go away and always be added on to, generally by people who you didn't want to have that power in the first place.

People who try to understand the U.S. Constitution tend to forget that the government under that constitution was not our first government. The founding fathers wanted the weakest government they could get away with, because they didn't trust government. The first U.S. government, under the Articles of Confederation, was so weak it couldn't do what was needed. There's a reason the Constitution is designed to limit the power of the government.

The founders knew even then that government, when not heavily restricted, will eventually grow beyond necessity and into tyranny. It is the nature of the beast, and that is why the Constitution and the Bill of Rights were written to limit the powers of the Federal government.

Jury Nullification

Wandering around the web, I stumbled on this thread on jury nullification at Patterico's Pontifications. The best comment on the subject I found there is this one. In part:

Jury nullification is the reason for juries in the first place. Absent that power, there is no reason whatever to involve nonspecialists in evaluating evidence and applying the law.
[...]
The reason juries exist, and are supposed to be made up of the “peers” — social equals — of the defendant, is that the jury has the power to say, “Yes, this was a violation of the law, but the law is an ass in this case. Turn ‘im loose!”
[...]
A jury that cannot nullify is not a jury. It is a panel of incompetent lawyers. Eliminate that power and you have eliminated the guarantee that the jury system offers the accused.

The important part here is "in this case." Jury nullification in one case does not affect any other case - past, present, or (for the most part) future. It applies only to the specific case the jury is deciding. Unlike a circuit court (or higher) decision, it is not binding on any other case, anywhere - even in the same court the next day. The law remains as it was.

It can also be a great tool if the legislature is not paying attention to the people. If enough prosecutions under a bad law are victims of jury nullification, there's a good chance the prosecutors will stop bringing charges under that particular law, because it looks bad if they lose (and that is where it can affect future cases).

Having said all that, there is another important point that needs to be made. Jury nullification is a tool that should be used both sparingly and carefully. It has been used for good (when juries would refuse to convict conductors on the underground railroad) and evil (when juries would refuse to convict klansmen for murders). It still has that potential today, and likely always will.

Note: I know this was an old thread, but I got inspired, and just couldn't leave the subject alone.

Thoughts On the Second Amendment and the Bill of Rights

Note: This is only my reasoned opinion, as an average citizen. I am not an attorney. Do not take this as legal advice. If you do, you will probably be arrested, since the courts and the government do not seem to agree with me. You have been warned.

Something recently struck me about the Second Amendment. It actually contains the boldest and most powerful statement of protection of any of the ten amendments that are the Bill of Rights. The phrase "shall not be infringed" is clear, concise, and says that not even the slightest restriction or regulation is to be tolerated. Think of this: an infraction is "the act or an instance of infringing" and an infraction is the smallest violation of law possible. Driving 20 in a 15mph zone is defined as an infraction. Nobody counts an infraction as a crime. But the Second Amendment is the only part of the Bill of Rights that says a right "shall not be infringed."

Read all ten. You can find them here.

The First Amendment? It says "Congress shall make no law [...] abridging [...]" the rights listed. The founders did not say that the states could not do so. The First Amendment specifies congress, which, the way the Constitution was written and interpreted at the time, meant that it did not apply to the states.

The Third Amendment does not specify a right, but while it does limit a government action, it also limits that restriction. "[...] in time of war, [...] in a manner prescribed by law."

The Fourth Amendment limits it's right, using the words "unreasonable" and "probable cause." If the government has reason, or probable cause, they can search and seize and arrest with impunity.

The Fifth Amendment enumerates several restrictions on the government, but, except for the restrictions against double-jeopardy and self-incrimination, each of them has exceptions. Even self-incrimination is questionable - a comma instead of a semicolon places it grammatically within the effect of the "due process" exception. And nowhere does it specify these as "rights," though they are understood as such.

The Sixth Amendment says "the accused shall enjoy" the rights listed. Nowhere does it say that these rights shall not be regulated.

The Seventh Amendment simply extends the right of trial by jury to civil cases. The amendment itself restricts this right to matters over twenty dollars (a ridiculously small amount, by today's standards, but significant at the time).

The Eighth Amendment, while restricting the government, again never uses the word "right," and is written in subjective terms ("excessive," and "cruel and unusual") which are argued regularly in front of the Supreme Court.

The Ninth Amendment simply protects rights that are not specifically stated in the Constitution, and the Tenth Amendment says that anything not addressed in the Constitution is reserved to the states or the people.

Nowhere in the Bill of Rights is a right protected as fiercely, and as specifically, as in the operative clause of the Second Amendment. "The right of the people to keep and bear arms shall not be infringed." It specifies that this is a right, that it belongs to the people, and that it shall not be infringed. It allows no restriction, no regulation, and no debate. It does not limit this prohibition to the Federal government - it is a blanket statement. What does this mean?

It means that no gun control law passed by the federal government is constitutional.
Because it is a blanket statement, it means that the power to regulate or restrict guns is prohibited to the states, as well as to the federal government.
It means that no gun control law passed by a state government is constitutional.
It means that no government can tell you that you can't carry your gun concealed, or into a business that serves alcohol, or onto school property. Your rights apply everywhere.
It means that the government cannot restrict the type or number of guns that you can purchase.

It means that, while the government cannot restrict or regulate who can have guns, what kind of guns you can have, or where you can carry your guns, it can bring charges against you based on your actions.
If I fire my gun into the air, I can and should be charged with reckless endangerment. I have recklessly done something which could injure or kill someone. If I throw a knife in the air in a crowd, it could also injure or kill someone, and I can and should be charged with reckless endangerment. A bullet travels farther than I can see, so no crowd is needed to make it reckless and dangerous.
If I shoot and kill someone, and it was not done in defense of myself, my property, or someone else, that is murder. It is still murder if I kill them with a knife, or a bat, or my bare hands.
If I point my gun at someone to frighten them into giving me money, I have committed robbery, and should be punished accordingly. It is still robbery if I used a knife, or a bat.

No gun control law is constitutional. The wording of the Second Amendment is absolute and unyielding. Unfortunately, no court in this nation recognizes that fact today.

"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." U.S. Constitution, Amendment 2