Return to a Union of States

It occurs to me that we are a deeply divided nation, with clear lines of delineation. We've self-sorted to borrow from the book The Big Sort.

Obviously, this isn’t a brilliant observation on my part. It does seem to me that we should revisit some of the original concepts of a union of states, and stop treating issues with one-size-fits-all solutions that are intended to appeal primarily to the specific groups necessary to obtain election.

While we certainly have common needs (infrastructure, interstate commerce, etc.) and individual rights spelled out by the Constitution, which a Federal government should protect (especially from itself), each state should be responsible for the unique culture of its citizens and the laws that help create that culture.

You might live in NYC and believe Vermont’s no permit concealed carry gun laws are too liberal, or live in Vermont and think that someone taxing your Coca-Cola because it’s too big is idiotic. In either case the Federal government shouldn’t be dictating what’s appropriate to local cultural and geographic needs. Unfortunately, the Federal government has pretty much done away with the Tenth Amendment by collecting taxes from citizens, and then withholding funds from those states that do not do what the Federal government wants (see legal drinking ages required to receive highway funding as just one example).

Of course, I’m more of a practical libertarian, so if you’re a fan of authority – which this election seems to indicate most people are – this might seem rather scary. To me it makes a lot of sense.

Common Sense Regulation of the Constitution

The Internet was used by religious extremists half a world away to recruit and radicalize American citizens. Driven by religious ideology, they used the Internet as a tool to promote violence and mass killings driven by their religious agenda - by Americans, against protected groups.

Once radicalized, they used the Internet to equip terrorists with information on how to build bombs from everyday items like pressure cookers, which were then used to kill and maim hundreds.

The common issues are religion and information, which are being used to recruit, radicalize, and equip terrorists and the mentally ill.

We understand that most Americans aren't violent extremists - but some of us are. We need to keep Americans safe.

We live in an age in which anyone could see things on the Internet which anger them, and could radicalize them. The Web is being used as a recruiting tool. Churches and mosques are being used to incite anger toward others.

Freedom of religion and freedom of speech are being misused, killing and maiming Americans. We support the first amendment, but there needs to be some common sense regulation.

Americans have a long tradition of religious freedom – but we don’t need 250,000 churches of different types and ideologies, which can serve as a breeding ground for home grown terrorism. We should enact legislation to limit the number of denominations and churches available, which can then be monitored for approved content. 

Our founders could never have imagined the power and reach of information and speech in the information age. They never could have foreseen these technological changes that enable the recruiting, radicalization, and equipping of terrorists.

In order to protect Americans, only the government should have access to this much information. We should - like other modern countries including Germany, China, Russia, Italy, France and England – keep dangerous information from getting into the wrong hands. 

We should enact legislation to register those publishing and posting information for public consumption. Registration shouldn’t be limited to big companies, creating an information loophole – it should be universal, including microblogs like Facebook and social media sites where radical groups often operate. If you publish, you should be registered, documented, and your content strictly monitored to ensure Americans only receive the information they need.

We should maintain a list of questionable individuals that we suspect are providing information and content that is disruptive and dangerous, and might be used for the wrong reasons. If you're on this list, your access to publish and consume information should be removed to prevent you from placing others in danger. We, the government, will maintain this list for your protection.

In this day and age, the world is too dangerous to allow unfettered access to religious ideology and information.

The Right to Keep and Bear Arms - Our Second Amendment

Last week, as I commented on, Hillary Clinton twice refused to answer when asked by former Clinton aide George Stephanopoulos about her view of the Second Amendment. Her answer, beginning with the words “If it’s a Constitutional right…” clearly show her belief that the Second Amendment is reserved for the government, and is not an individual right. In this post I’d like to discuss the placement and meaning of the Second Amendment. 

Key points:

·       The Bill of Rights is intended to restrict government, not “grant rights.”

·       The second amendment is in place for citizens to protect their natural rights from violation by both government and other criminals.

·       The Supreme Court has repeatedly ruled that the second amendment is an individual right, and that the “people” mentioned in the second amendment has the same meaning as the “people” mentioned in the other amendments.

The Bill of Rights is Intended to Restrict Government, Not Citizens
Our founders created a brilliant document designed to place the power in the hands of the people, rather than government. In penning the Bill of Rights, they recognized the importance of the citizen’s ability to speak truth to power without retribution.

It’s vital to understand that the Bill of Rights were put in place, and must be read, to restrict the government - not to restrict or “grant rights to” the people. The founding philosophy of the nation is that citizens have rights granted by their creator or by virtue of their birth, not by a government that can change them at their discretion – and that government’s function is to guarantee these rights, not to restrict them. For if a government can bestow rights, a government can take them away. The Constitution was never intended to give government that power. It was framed in a way to keep government from exercising that kind of power.

As James Madison put it, a Bill of Rights was added “for greater caution” to ensure a limited government.

The founders wrote the first amendment, restricting government from establishing a national religion or restricting free expression - particularly political expression. Most of the other Amendments restrict government from harassing citizens in one way or other, providing for due process, and making citizens secure in their persons, houses, and papers. They likewise recognized the need for citizens to be able to protect the republic from tyranny, both foreign and domestic, and included the Second Amendment.

A citizen has no rights which they cannot themselves protect. In fact, the courts have repeatedly ruled that the police have no obligation to protect citizens, or to even respond to an emergency call.

The Second Amendment is in Place for Citizens to Protect their Natural Rights 
The Second Amendment is in place to guarantee citizens the right to self-protection from other citizens and from the government, to help protect the nation from foreign enemies, as well as for practical tasks like hunting.

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.

Anti-gun people like to focus attention on the first half of the sentence, declaring that only the militia – in modern times our military – have the right to keep and bear arms. However, it’s abundantly clear from the writer’s quotes and comments of the day that the militia of which they wrote included all citizens, and that they fully intended for citizens to be armed against the possibility of government tyranny or oppression. These were people that had just fought, and won, a revolution against the most powerful government in the world over taxes believed to be oppressive – though by today’s standards the taxes they were paying were quite low.

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them." - George Mason

“I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.” – Thomas Jefferson

There is no mistaking that “the people” mentioned in the Second Amendment are the same “people” mentioned in the first, and other amendments.

While no one disagrees that there may be certain minimal limits placed on even constitutionally guaranteed rights, the essential freedom stated in the constitution must be guaranteed. Freedom of speech, for example, does not provide the unlimited right to commit fraud, perjury, or threaten the life of another.

Likewise, the Second Amendment allows for certain restrictions that have been put in place. Among the restrictions already in place:

·       National Firearms Act ("NFA") (1934): Outlaws for general use of weapons such as machine guns, short-barreled rifles and shotguns, heavy weapons, explosive ordnance, silencers, and disguised or improvised firearms.

·       Federal Firearms Act of 1938 ("FFA"): Requires that gun manufacturers, importers, and persons in the business of selling firearms have a Federal Firearms License (FFL). Prohibits the transfer of firearms to certain classes of persons, such as convicted felons.

·       Omnibus Crime Control and Safe Streets Act of 1968 (1968): Prohibited interstate trade in handguns, increased the minimum age to 21 for buying handguns.

·       Brady Handgun Violence Prevention Act (1993): Requires background checks on most firearm purchasers.

So, contrary to some of the rhetoric, the average citizen cannot obtain automatic weapons, and purchases through licensed firearms dealers require a background check, even if purchased at a gun show. Guns may not be purchased across state lines or online without going through a licensed dealer, requiring a background check of the purchaser. Guns may not be purchased from dealers with the intent of being resold to someone else that cannot meet the requirements (straw buyers). Purchasing of guns by those with drug or spousal abuse is largely outlawed as well.

Another argument of the anti-gun crowd is that our founders couldn’t have imagined any of the technology of today - but that’s a side issue. The first amendment was written in an age of parchment, pamphlets, and hand-set printing machines. They couldn’t have imagined that an enemy of the nation half way around the world could provide instructions to an American citizen on how to build bombs that would kill and maim hundreds, yet this has happened.

This doesn’t mean that the first amendment is outdated and the government should license citizens who may or may not discuss certain topics. This doesn’t mean that the government should limit your Internet data under the premise that “no one needs” to use their rights that much – yet they have no such qualms about the Second Amendment when they outlaw guns based solely on appearance (semi-automatic rifles), limit the number of bullets you may use for self-defense to five (while imposing no such limits on the police for their self-protection against the same criminals), or attempting to force citizens to buy only computerized guns of questionable reliability that provide the government the ability to turn them off remotely.

The Second Amendment is an Individual Right

In 2008, the Supreme Court ruled in Washington DC v Heller that the Second Amendment protects an individual’s right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. The Heller decision did expressly address the question of whether the Second Amendment extends beyond federal enclaves to the states – a process known as incorporation. In 2010, the Supreme Court made such a ruling in McDonald v. Chicago. It was the first Supreme Court case to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defense.

Battles are still being fought in the courts to determine how much the government may restrict our rights, but recent rulings tend to show that the right to self-protection extends beyond the home, and that states cannot force citizens to prove to the police a “justifiable need” to self-protection, and must provide reasonable means for law-abiding citizens to protect themselves.

In one recent ruling, the historically left-leaning 9^th Circuit Court ruled that a zoning ordinance that essentially made the sale of guns impossible anywhere in Alameda County was illegal, since the right to bear arms certainly implies the ability to obtain them in the first place, and that the zoning restrictions – clearly intended to restrict such rights – is an undue burden.

Writing for the majority, Judge Diarmuid O’Scannlain stated that the “right of law-abiding citizens to keep and bear arms is not a second class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”

While it’s clear that Hillary Clinton, like most politicians, only respect certain rights while disregarding others, will seek to restrict gun rights to the fullest extent if and when she’s elected President, there is no doubt that the Judicial Branch, charged with interpreting the Constitution, has ruled repeatedly that individual citizens do indeed have the right to keep and bear arms throughout the United States.

Also see: Hillary Clinton: “If it is a constitutional right" to keep and bear arms

Hillary Clinton: “If it is a constitutional right" to keep and bear arms

Not that we weren’t already aware of her anti-gun position, but Hillary Clinton twice refused to answer this week when asked by former Clinton aide George Stephanopoulos about her view of the second amendment.

When asked outright if she agreed with the Supreme Court’s Heller decision - “Do you believe that an individual's right to bear arms is a constitutional right — that it's not linked to service in a militia?” her response was to question “If it is a constitutional right…” obviously indicating that although the courts have repeatedly ruled on the topic, she holds no such view.  

STEPHANOPOULOS: Let's talk about the Second Amendment. As you know, Donald Trump has also been out on the stump talking about the Second Amendment and saying you want to abolish the Second Amendment. I know you reject that. But I want to ask you a specific question: Do you believe that an individual's right to bear arms is a constitutional right — that it's not linked to service in a militia?

CLINTON: I think that for most of our history there was a nuanced reading of the Second Amendment until the decision by the late Justice [Antonin] Scalia. And there was no argument until then that localities and states and the federal government had a right — as we do with every amendment — to impose reasonable regulations. So I believe we can have common-sense gun-safety measures consistent with the Second Amendment. And, in fact, what I have proposed is supported by 90 percent of the American people and more than 75 percent of responsible gun owners. So that is exactly what I think is constitutionally permissible and, once again, you have Donald Trump just making outright fabrications, accusing me of something that is absolutely untrue. But I'm going to continue to speak out for comprehensive background checks; closing the gun-show loophole; closing the online loophole; closing the so-called Charleston loophole; reversing the bill that Senator [Bernie] Sanders voted for and I voted against, giving immunity from liability to gun makers and sellers. I think all of that can and should be done, and it is, in my view, consistent with the Constitution.

STEPHANOPOULOS: And, and the Heller decision also says there can be some restrictions. But that's not what I asked. I said, "Do you believe their conclusion that the right to bear arms is a constitutional right?"

CLINTON: If it is a constitutional right, then it — like every other constitutional right — is subject to reasonable regulations. And what people have done with that decision is to take it as far as they possibly can and reject what has been our history from the very beginning of the republic, where some of the earliest laws that were passed were about firearms. So I think it's important to recognize that reasonable people can say, as I do, responsible gun owners have a right. I have no objection to that. But the rest of the American public has a right to require certain kinds of regulatory, responsible actions to protect everyone else.

I personally adopted the blog title “Common Sense” in reference to both Thomas Paine’s 1776 publication questioning the authority of the British government, and the thought that too much of today’s politics lacks the common sense and compromise required of our republic.

Today however, it’s become popular to throw around the term “common sense” to imply that anyone that disagrees with you has none. The term is used to proclaim that your position – no matter how extreme – is both common and sensible, and anyone opposing is an extremist. Specifically, it seems that for many politicians, “common sense gun control” means citizen disarmament.

Those on the left inevitably begin their discussions with “I support the 2^nd Amendment but…”  As we all know, the word “but” in a sentence means we should disregard everything that came before it. They then proceed to tell us how they could keep us safe if only they could pass myriad gun control laws.

Hillary Clinton and President Barak Obama have both pointed to England and Australia as examples of good gun control plans, where guns were generally outlawed and confiscated. As a result, violent crime has increased and is substantially higher in Great Britain than in the United States.

In reality, the left generally does not want to believe that the second amendment establishes a right for individual citizens to bear arms for self-protection, and the protection of the country from enemies both foreign and domestic. Most would prefer, in the words of Senator Dianne Feinstein (D-CA) “If I could have gotten 51 votes in the Senate of the United States for an outright ban, picking up every one of them, Mr. and Mrs. America turn ‘em all in, I would have done it.”

Has the Republican Party Jumped the Shark?

An excellent article published in Politico this morning discussing how the Whig party selection of General Zachary Taylor – an inexperienced, unqualified, wealthy outsider with no adherence to party principles – led to the death of the Whig party (and the eventual birth of the Republican Party).

In the days leading up to the 1848 election, General Zachary Taylor was a popular man. An outsider who had proudly refused to enroll in a political party, Taylor explained that “a sense of duty to the country” forced him to overcome his “repugnance” and permit people to advance his name. He openly declined to pledge fidelity to any platform planks, and accepted the nomination to be “president of the nation and not of a party.” Taylor recognized how much Americans disliked political insiders, and placed himself above the “trading politicians … on both sides.”

Founded in the 1830s as a coalition of states’ rights conservatives and businessmen, united mostly by disgust at Andrew Jackson’s expansion of presidential power, the popular backlash they stirred against Democratic President James K. Polk was so great that the Whigs seized control of Congress during the 1846 midterm election.

Still, party loyalists mistrusted Taylor. He was crude, nonpartisan, unpresidential. And did not adhere to any party principles.

Biographer Holman Hamilton would pronounce Taylor “one of the strangest presidential candidates in all our annals … the first serious White House contender in history without the slightest experience in any sort of civil government.” Henry Clay said “The Whig party has been overthrown by a mere personal party.” Many lamented that Taylor’s popularity had trumped party loyalty and principles. His vanity and recklessness further dampened Whig enthusiasm.

Almost immediately after the nomination, anti-slavery Whigs bolted, refusing to support a slaveholding candidate. Joining various other anti-slavery factions, including those that defected from the Democratic Party, the rebels formed The Free Soil Party and nominated former President Martin Van Buren.

Blessed by an even more unpopular Democratic opponent in a three party race, Taylor won. He attracted only 47 percent of the popular vote, Democrat candidate Cass won 43 percent of the vote, and Free Soil candidate Van Buren won 10 percent.

Whigs then felt betrayed when Taylor took a nationalist approach brokering what became the Compromise of 1850. Within four years, they would be routed by” the Democrats. “Within eight, the Whig party would totally disappear as a functioning political organization.”

Just a few years after Taylor was elected under the Whig banner, the party dissolved—undermined by the divisions that caused Taylor’s nomination in the first place, and also by the loss of faith that followed it.

Will the Republican Party see a similar fate? Providing an unqualified, unprincipled candidate based on his reality show personality, facing a likewise unpopular Democrat candidate (Clinton) and two former Republican governors (Johnson / Weld) running on the Libertarian ticket – it’s possible (though I believe unlikely) that Trump can win. More importantly, the party has nominated a man that is not for Republican principles of smaller government and fiscal responsibility. He has mocked the military, believes that the US should back out of NATO and the Japanese should have nuclear weapons as a bulwark against China and North Korea. Can the party survive? Or will it dissolve in favor of a new, more principled party as the Whigs did, leading to the election of Republican Abraham Lincoln?

It promises to be an ugly and interesting election.

Candidates Attack Courts as Best Argument for Election

Judicial appointments are among a president’s most lasting legacies, and in this election cycle candidates on both sides have made troubling remarks regarding litmus tests for their future appointments. With candidates as widely disliked as Clinton and Trump, each seemingly unable to provide valid cases for themselves as leaders, the courts have become political fodder. Both sides are proclaiming that voters should consider them not for their own views, temperament, judgement, and leadership qualities - but because of how they would attempt to stack the courts based on specific expected decisions to obtain the results they want rather than jurisprudence and qualifications.

Conservatives were outraged when President Obama criticized the Supreme Court Citizens United ruling in his 2010 State of the Union address. He was criticized for both the substance of his remarks, and for criticizing a SCOTUS decision in a national address with members of the court seated just feet away.

In Citizens United v FEC the Supreme Court ruled 5-4 that the First Amendment prohibits the government from restricting political expenditures by organizations. The Supreme Court has long held – since the 1976 Buckey v Valeo decision - that political spending is the exercise of free speech. In that decision the court wrote:

“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.  This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”

Conservatives were also outraged at the SCOTUS ruling that ObamaCare funding is essentially a tax, and that Congress forcing Americans to purchase health care upholding the Affordable Care Act is permissible.

Liberals have been outraged at District of Columbia v Heller and McDonald v Chicago, which declared that the Second Amendment is an individual right (not restricted to government militias, as the left would like) and for the first time incorporated the right into the states – declaring that it is fundamental to all Americans.

In the current presidential campaign, candidates from both parties have attacked the judiciary for these kind of decisions and issued litmus tests for their future appointments. On the Democratic side, Clinton has made gun rights and overturning Citizens United priorities, and Trump has now gone well beyond the norm by attacking a sitting judge, using racial overtones, in a case in which he is directly involved.

His recent attacks on U.S. District Judge Gonzalo Curiel, who is handling two class-action lawsuits against Trump University in San Diego, is particularly troubling, since Trump has made racial remarks about the Indiana-born judge, and signaled interest in a vendetta against him should he be elected President.

“They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace. Okay? But we will come back in November.” Says Trump.

What would be the impact on judicial independence should this happen?

Conflicts between the courts and the politicians are common and expected, which is why the Constitution mandates lifetime tenure for federal judges and seeks to protect them against recrimination. But Trump is also not powerless, particularly if elected President. If he thinks that Curiel has engaged in misconduct, he could file a complaint with the federal court of appeals, stating that Curiel was biased in his behavior and proceed with a disqualification motion.

We’ve moved a long way from President Eisenhower’s acceptance of school desegregation rulings, and sending Federal troops to protect black students when the state of Arkansas refused to do so.

Although the courts tend to be even-handed, with rulings that occasionally anger both sides of the aisle, they are increasingly used as foils in political campaigns. Ted Cruz, during his campaign, characterized judicial rulings on gay marriage and ObamaCare as political decisions, and called for a constitutional amendment requiring members of the Supreme Court to undergo judicial retention elections.

Americans should consider that both Clinton and Trump, in making such statements, are more focused on how they can obtain clearance to undermine the Constitution and more power for the Government, rather than how to provide more power to the citizenry.

Major Party Disdain for the Constitution

In watching this year’s debates and commentary, I continue to find it intriguing that members of both political parties like to point to the Constitution as their touchstone, and are willing to take an oath to protect and defend it – but apparently only the parts they like.

While there are rare exceptions to each Amendment (yelling fire in a theater, possession of nuclear weapons, etc.), both major parties candidates seem quite comfortable finding ways to violate the Amendments that are intended to restrict them (the Government, not the people).

The Democrats love free speech - except by conservatives, or companies, or the Koch brothers, or the use of “words that hurt.” But free speech (contributions) by unions, or George Soros, or Michael Bloomberg are wonderful. The Republicans aren’t all that thrilled about freedom of expression either when it comes to protests and other forms of expression, and Donald Trump states that he wants to partially repeal the 1^st Amendment to open up libel laws and make it easy to sue news outlets that write things he disagrees with.

The Democrats aren’t very supportive of freedom of religion - unless you are non-Christian, then you're OK. Neither are Republicans – unless you’re Christian, then you’re OK. Other religions not so much.

This year, Donald Trump tells us that the government should monitor and track people based on their faith, and allow no Muslims into the country, which can only be done by requiring citizens to register their religious faith. While Christians have also committed terrorist acts, people seem oddly accepting of the idea so long as it’s just Muslims, assuming that the government wouldn’t use the database to track Christians at some point – and that everyone will be honest when reporting their faith to the government.

Meanwhile, Hillary tells us that Christians must change to provide abortion on demand, and that small, private business people of faith should be required to provide services in support of issues they find morally offensive. While many people find this acceptable, I wonder how they would feel if an African-American photographer were hired to photograph a KKK themed wedding – would it be acceptable for him to decline – or should he be forced to provide his services to the KKK? Laws must be applied equally, not just for those with whom you agree.

The Democrats loathe the Second Amendment, believing that the term “the people” in the Second Amendment somehow means “only the Government” - different from all of the other Amendments.

Neither party is very supportive of the Fourth Amendment in this era of no-knock warrants, civil forfeiture (taking assets when no crime is proven), the use of eminent domain to take property for private use by more well-connected citizens, NSA and police spying, and now forcing companies to allow government access to citizens personal cell phones (if you believe that this capability will only be used against terrorists, you’re foolish). The IRS, ATF, FBI, Dept. of Labor, and other government agencies have been/are being used against political enemies of whichever administration is in power - from Nixon to Obama.

The Tenth Amendment, which supposedly reserves powers not delegated to the government for the people or states, is circumvented by the Federal government taxing people, then blackmailing states for the return of that money unless they comply with the Federal government’s desires – for example in 1984, the Federal government began withholding highway funds unless states raised the minimum drinking age to 21.

The two parties seem to equally detest the Fourteenth Amendment’s equal protection clause. The Democrats love the national recognition of gay marriage (which Republicans hate, and was previously relegated to the states to define) - but just wait until a case comes before SCOTUS to provide equal protection of the Second Amendment and national reciprocity of concealed carry laws – then see how they scamper to defend the states against this horrible infringement of states’ rights!

The list goes on and on, but it would be nice to hear political parties and Presidential candidates discussing how they would return freedom to citizens rather than how they will take from one group and give to another, more favored, group in order to get their votes.