Congress Is Quietly Abandoning the 5th Amendment
theatlantic.com
theatlantic.com
The fifth amendment uses the word "PERSON" not citizen. So in some sense this is just a continuation of the same - what is applicable to a "military age male" in Afghanistan is now applicable to a American Joe Q Public.
This is an excellent wake-up call - do not gut American values to (notionally) protect the American People.
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;"
Our declaration of independence says that "We hold these truths to be self-evident, that all men are created equal" -- ALL men. Not just American men. I think those two, taken together, imply that the founders would have meant for the 5th amendment to cover American men, Englishmen, Frenchmen, and natives of foreign lands which they had not heard of yet.
What do you think the clause
except in cases arising in the land or naval forces
means?
"according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."
That specifically states that not all men are equal.
If you want to get an idea of what protections the founders thought should apply to non-Americans outside U.S. soil, you need look no further than see how they handled the American Indians. Hint: they didn't bring Indian chiefs to Philadelphia for trials in American courts.
A) The canonical remedy for unlawful imprisonment is the writ of habeas corpus [1]. When a court issues "the Great Writ," it orders the prisoner's jailer(s) to bring the prisoner to court and, by implication, to release the prisoner if the court so directs.
B) Article 1 of the Constitution expressly empowers Congress to suspend habeas corpus --- in other words, to strip from courts the authority to order the release of prisoners --- "when in Cases of Rebellion or Invasion the public Safety may require it." [2] Nothing in the Fifth Amendment alters this congressional power of suspension.
C) It might be argued that in enacting the Patriot Act, Congress partially suspended habeas corpus in response to the "Invasion" we call 9/11.
D) The courts try to interpret the various parts of the Constitution to be in harmony with one another if at all possible.
E) So, "properly" interpreted, the Fifth Amendment might not stand in the way of imprisonment without trial in a case covered by a congressional suspension of habeas corpus. (The breadth of this possibility troubles me, incidentally; also, I'm far from a constitutional scholar.)
------------
2. As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell, not least because if that principle had been followed, the U.S. would not long have survived as an independent state.
[1] http://en.wikipedia.org/wiki/Habeas_corpus
[2] U.S. Const., art. 1, sec. 9, http://www.usconstitution.net/xconst_A1Sec9.html
Even if someone did argue for that, which you didn't do, they would argue that 9/11 was an "invasion", not an invasion. See how that works?
Also, the perpetrators were from Saudi Arabia mostly, yet Iraq was attacked, talking about how he's an evil man which had fuck all to do with him attacking the US. That's kinda where your whole post falls down like a house of cards. Remember Powell before the UN, with a dry throat and sweating a lot, showing his slides about what might be mobile WMD labs? Heh. No, to anyone not accomplice to it, or suffering from Stockholm Syndrome, this is rather clear. And it's old. Americans have been warning Americans for a century now. The military industrial complex doesn't do this since lately.
As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell
If you simply define "military age males" who died in drone attacks as those, then they're not really enemy combatants, they're "enemy combatants", which raises the same issue as the "invasion" stuff does. Also, simply attacking people and calling it war doesn't make it "wartime". Just saying "it's war!" doesnt make it war.
Um, no, I don't.
> Also, the perpetrators were from Saudi Arabia mostly, yet Iraq was attacked ....
I must be missing something here, like what that has to do with the current constitutional discussion.
> Remember Powell before the UN, with a dry throat and sweating a lot ....
That's not the way I remember Powell's UN WMD presentation.
I don't know where people get the idea that these rights extend to everyone, or that there may be more rights than specifically listed in the bill of rights.
You also have to keep in mind that debates about Constitutionality arise over politically unpopular topics. It's a way for people with minority viewpoints to say: "well, whether you think this is good or bad, it is inconsistent with this larger scheme we all agreed to."
If you held a vote and asked people whether they thought people accused of terrorism, especially abroad, should have rights, you'd lose. I remember in college being the lone dissenting voice in a discussion of the merits of turning the entire Middle East into a glass parking lot. Ordinary Americans believe very deeply in the sovereign right of the American government to kill foreigners who do anything contrary to American interests.
Hence the resort to legalism. You can't convince Americans that it's good for suspected terrorists to be given trials, etc, so the best you can hope to do is convince them that they, collectively, bargained away the ability to hold suspected terrorists without trial.
The other problem is that even if it was a contract, we seem to ignore it, because we pass the laws described in the article. So it's not a very effective system.
As for the laws described in the article--they are not the product of Congress "ignoring the Constitution." The appearance of "ignoring the Constitution" is itself the product of certain civil libertarians believing the Constitution says more than it does, or focusing on what they wished the Constitution said rather than what it does say.
And what characteristics are those?
Yes, there is a place for a discussion of ethics outside of the current legal framework, and if the Constitution is found to be lacking in that area, then it should be amended. Until that happens, our government is legally bound to abide by the Constitution as it is written, and to judge whether or not that is happening, the document must be interpreted. One important aspect to interpretation of a document is to understand the circumstances under which it was written. To do that with a 200+ year old document requires a little knowledge of history.
The framers of the Constitution did not achieve perfection, but at least the idea of the "rule of law" does give us a relatively consistent and stable society in which to live. The disadvantage is that written law is static and cannot quickly adjust to changing circumstances. Ideally, we would have an enlightened leader who knew the right thing to do in every circumstance, and would govern with perfect justice. If we could be assured of that kind of government, we wouldn't need to worry about interpreting documents.
This is why discussions turn legalistic, because people dissagree about what's good and what's bad, so they instead fight over what is legal and what is illegal.
Terrorism is a statistical outlier. Abuse of power by the State is not.
"Security protocols" to prevent misuse, huh? Why would you think they'd be concerned with something like that?
What do you think is the idea behind NSA's massive spy center in Utah? "Hey guys, let's capture all traffic on the Internet, and then make damn sure we'll never do anything with it that might compromise someone's privacy, ever!"
> robust court supervision of the use of the resulting evidence
As robust as the supervision on mortgages in the past few years, perhaps?
Case in point: With all those hundreds of thousands of mortgages the bank bought, it simply stopped filing basic paperwork – even the stuff required by law, like keeping chains of title. A blizzard of subsequent lawsuits from pissed-off localities reveals that the bank used this systematic scam to avoid paying local fees. Last year, a single county – Dallas County in Texas – sued Bank of America for ducking fees since 1997. "Our research shows it could be more than $100 million," Craig Watkins, the county's district attorney, told reporters. Think of that next time your county leaves a road unpaved, or is forced to raise property taxes to keep the schools open.
But the lack of paperwork also presented a problem for the bank: When it needed to foreclose on someone, it had no evidence to take to court. So Bank of America unleashed a practice called robo-signing, which essentially involved drawing up fake documents for court procedures. Two years ago, a Bank of America robo-signer named Renee Hertzler gave a deposition in which she admitted not only to creating as many as 8,000 legal affidavits a month, but also to signing documents with a fake title.
http://www.rollingstone.com/politics/news/bank-of-america-to...
That's only natural. You have to determine what the amendment really means before you can decide whether or not it's a good idea.
Madison didn't want to include a bill of rights at all. He viewed the US Constitution as a document enumerating what the federal government can do, which is the most restrictive interpretation, and thus things like prohibitions on speech were obviously outside the powers of the federal government.
He felt that by including the Bill of Rights the meaning of the entire document was changed and people would argue it allows the government to do anything that isn't prohibited.
I think history has proved him correct in spades.
There: fixed that for you. (And for the lurkers who might get the idea you were serious).
Now we're engaged in hostilities not declared as a war and without clearly defined victory conditions. If enemies in that conflict are treated as POWs, their detention is indefinite. I'm pretty sure the Constitution's authors did not intend anything of the sort.
More generally, at the time of the founding it was taken for granted that the Constitution only applied to American soil. Most of the extra-territorial application of the Constitution has been the result of subsequent legal development.
I'm not clear on how "No person..." selects some subset of people with whom such government prohibitions apply.
>at the time of the founding it was taken for granted that the Constitution only applied to American soil.
The Constitution makes no mention of geography. Instead it is entirely a collection of MAYs, SHALLs, and SHALL NOTs directed at the government.
>Most of the extra-territorial application of the Constitution...
...is predicated on notions of geographical distinction wholly absent from the Constitution.
Luckily, the Constitution is not a disembodied bit of text. We have copious context to use to evaluate the significance of the lack of geographical distinctions in the Constitution. The English legal tradition, which the Constitution is a product of, is highly territorial. English law applied to Englishmen in England. Thus, it is reasonable to conclude that American law, including the Constitution, was intended to apply to Americans in America.
Scalia's dissent in Boumediene has a good discussion of the application of Constitutional rights to non-citizens: http://www.law.cornell.edu/supct/html/06-1195.ZD1.html. I'd skip to Section II to get past the political rant.
If the government feels it can prosecute you for crimes committed outside then it is limited by the same laws.
You're kidding, right? The Constitution says, right at the start, that it is for the United States of America.
You're looking at it wrong. It's that the text does not allow for a certain class to be excluded, which is what the Obama Administration is doing with respect to "military-age males."
No, it wasn't. The Constitution explicitly says that it's a Constitution for the United States of America.
The same thing with natural rights. You might think it's important not to kill people, no matter if they're American or not. That's a value judgment. But to assert they have a "natural right" not to be killed--that's a factual assertion. If you do kill them and do an autopsy, you won't find any "natural right" in there.
The 5th amendment says: "...except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger..."
You might be able to fly a drone through the "or public danger" loophole.
Also, the 5th amendment calls for "due process" but that doesn't mean a trial. Due process is a fluid concept that depends on the circumstances. Al Awalki might have been entitled to due process, but what process is "due" in a situation where someone leaves the county to take up arms against it? It's not obvious he didn't get all the process he was due.
Now the House passed NDAA 2013 with the same provision as in 2012, and the Senate adopted an amendment that banned that "indefinite detention without trial" provision. But the negotiators for the two bills eliminated that at the last moment. So indefinite detention without trial is back. So now it's up to Obama to reject it, but I hope there are no illusions, like last year, that he will actually reject it. He won't.
In short, I can believe that.
Congress should have a legal duty to uphold the constitution.
There are two main issues:
1. Those laws set expectations to what is acceptable. Constitutional but extreme laws later pass as "moderate" in the opinion of the public. 2. Respect for the constitution gradually erodes. 2. Lots of energy is wasted, because EFF type of organizations need to go to court, collect evidence, testify, etc.
So the desired chilling effect occurs regardless. In fact, the goverment can (and does, sigh) play the game like this:
1. Pass an unconstitutional law and enforce it.
2. Wait years for the inevitable legal challenge to make its way to the Supreme Court, at which time it is invalidated.
3. Change the law slightly (minor variations in wording are sufficient), pass it, and enforce the law.
4. Go back to step 2.
The government can do this as long as it wants, without any problems (i.e. there's no fine for passing unconstitutional laws, and those who vote for them don't lose office, etc.).
Yes, it does. Every Congresscritter takes an oath to uphold the Constitution, just like the President does.
No they didn't. Not putting out a press release doesn't mean you're trying to do stuff in secret. The reality is that most people just don't care much about the intended targets of this legislation.
Also, what is happening with the NDAA is not Congress passing an unconstitutional law. It's Congress passing a law with a potentially unconstitutional interpretation, and both Congressional and Presidential guidance that such interpretation is not intended. Such guidance carries great weight in the court. It's a non-issue really.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Just because it is now ignored by our government doesn't make it a tautology. It's still the law of the land; it's just being willfully misinterpreted.
Conceptually, how the Constitution works is as follows. The states inherited the sovereignty and unlimited power of the British parliament. In aggreeing to the Constitution, the states delegated some of that power to the federal government, and agreed to refrain from the exercise of certain other powers. The clauses of the Constitution outline the powers delegated and prohibited. All the 10th amendment says is that anything that hasn't been delegated or prohibited hasn't been delegated or prohibited. Which is tautological.
The mere face of the text cannot support an interpretation that the 10th amendment does anything other than state the obvious. If a federal action is otherwise Constitutional, by virtue of falling into one of the delegations, then it is by definition something that has not been reserved to the state.
As far as I can tell, you only see the Tenth Amendment as a tautology because you take for granted the makeup and principles of the American government. It was not at all a given at the time that the Federal government would leave sovereignity to the states and only exercise certain defined powers. For example, it has largely ceased to do so today, in violation of the Tenth Amendment.
The States battled over the wording of each amendment. Many of the debate texts and the notes from the Founders are still available. How an attorney with the Internet at his fingertips could maintain a contrary delusion is really disturbing to me.
There were no throwaway/meaningless amendments in the Bill of Rights.
The Tenth Amendment means exactly what it says it means. The States barely allowed the Federal Government to have any power under the Articles of Confederation. The Constitution was an effort to allow more power to the Federal Government, but certainly not limitless arbitrary powers... thus the Ninth and Tenth Amendments.
It's ineffectual as a limit on Federal power because other clauses of the Constitution allow for any expansion or contraction of Federal power you could want, and what swings the argument is the legacy of precedent.
And although you are correct that prevailing interpretations of the Constitution allow for arbitrary Federal power, I don't believe that those interpretations are supported by the plain text nor by historical understanding of the Constitution.
Most of the rest of the change in the balance of power has come from the changing nature of the economy. Both the plain text and the early interpretations of the Commerce Power (Gibbons v. Ogden in 1824, a mere 35 years after the ratification of the Constitution) support the modern exercise of federal power. What is different is that in 1789, most people lived on farms, grew their own food, made their own clothes, etc. Very little human activity came within the scope of the commerce power, as broad as that power was defined. Today, just this post involves an interstate electronic transaction. It's nearly impossible to buy clothes that weren't made in a foreign country. Etc. Nearly all activity comes within the scope of federal power because nearly all activity is commercial and either interstate or international in nature.
Take the individual mandate, for example. It was fund to be outside the Commerce Power, but within the Taxing Power. What does the 10th amendment have to say about it? If you read the 10th amendment as saying "Congress shall not infringe on the traditional functions of the states to safeguard health, welfare, and morality" then you might say that the individual mandate violates the 10th amendment because healthcare is a traditionally state function. But that's not what the 10th amendment says. All it says is that action which falls outside the Constitutional delegates is unconstitutional. Well if the individual mandate is within the Taxing power, then it is within one of the Constitutional delegations, and is by definition outside the scope of the 10th amendment.
Basically, federal action can never violate the 10th amendment. Either an exercise of federal power is Constitutional under one of the delegations, or it is not supported by any delegation of federal power and is thus unconstitional for that reason.
Re: the expansion of federal power, it's popular but not necessarily accurate to say it has come at the expense of the Constitution. If you had asked the Framers whether a sale of a product in New York, manufactured and shipped from New Jersey, using a bank transaction with a bank and a payment processor located in San Francisco should fall under the purview of the Commerce Power, they probably would have said "yes, that's interstate commerce." Yet, that's what happens when I go downstairs and buy a Snickers bar at the vending machine with my credit card. There is disagreement on this subject, but in my opinion the expansion of federal power hasn't come at the expense of the Constitution, but has come because much more human activity has come within the scope of federal power as it was already defined.
If the king / Parliament passes a law banning anyone else from warring blue clothing then end of story that's the law.
I'm not making the argument that expansion of power comes at the expense of the Constitution, and I actually think most of the Framers were fine with such expansion. If you read the initial debates and correspondence you get the impression that the major writers saw an expansion of federal government power as desirable for the health of the Republic as a whole but impossible to achieve at the time.
Where the problem comes is where the federal government increases power as regards individuals. I can effectively argue that the shift in power from States to Federal govt. is reasonable and in line with at least some Framer's intent. I cannot make the same argument about individual rights.
So asking "what would the framers have thought about warrentless wiretapping" is a bit misguided, because the framers wrote a document against the assumption that the states were the ones responsible for internal security, and could use their very broad police powers in the process.
Really the question is: are we less free than we used to be? And contrary to popular myth, we reallly aren't. If you're not a white male, you are unarguably freeer than you have ever been in the history of the U.S. Even if you are a white male, you are free from many of the overreaches of state police power that you would have been subject to before the Supreme Court applied the Bill of Rights to the state. And it's at least debatable that internal security measures like warantless wiretapping aren't as extreme as say the Alien and Sedition Acts which were passed less than 10 years after the ratification of the Constitution.
I'm sympathetic to the civil libertarian cause, but when people complain about the erosion of liberties, I have to ask: which ones? First Amendment? First Amendment protections are today the strongest they have ever been. The First Amendment now protects commercial works like video games that in the past might have been seen as outside the scope of First Amendment protection. State-level obscenity laws, libel laws, etc, have been struck down by federal courts. Second Amendment? Until 2010, nothing would have prevented a state like Illinois from banning guns completely--states simply weren't subject to the 2nd amendment at all. Fourth, fifth, sixth amendments? In the 1970's the Supreme Court went on a rampage striking down state practices that they felt violated those amendments. Heck, just in the 2000's, the Supreme Court extended habeas protection to non-citizens in Guantanamo Bay. A hundred years ago, that would have been inconceivable.
PATRIOT is a big one.
The intelligence wiretapping authorization (especially as expanded in 2001 and 2008)
CDA and COPA (which were later overturned, but are great examples of Congress passing inherently unconstitutional laws "for the children")
I guess right now I'm concerned about the potential for more 2A restrictions -- I'm doubtful that the 1994 AWB was constitutional, and wonder if it would hold up under the current court post Heller and McDonald.
CALEA seems to be at odds with the 4th, but apparently not.
DOMA (which I guess was fixed)
Aside from the recent gun rulings, I'd prefer the laws of 1975 I think.
The framers put in the Supremacy Clause in order to effectively limit the sovereignty of the States. Madison and others wanted to go a step farther and add in the negative, but they lost that argument by the vote of one state, the deciding argument being that the Supremacy Clause would allow the Federal government sufficient power to control any State law so egregious as to need federal attention.
They were actually worried about things like that because the Massachusetts State Constitution had failed so completely. As Madison wrote in a 1787 letter to Jefferson, "The mutability of the laws of the States is found to be a serious evil. The injustice of them has been so frequent and so flagrant as to alarm the most stedfast friends of Republicanism"
Re: freedom, I don't think we're particularly less free than we once were, save on the frontiers and most of that is perception, not fact. However, setting precedent for the accepted encroachment of rights, or even the perception thereof, is very dangerous to do on a Federal scale.
It helps to think of the Constitution as a set of operating instructions for the machine that is the federal government. If something isn't explicitly enumerated, the machine needs a way of knowing how to render a decision. The 10th Amendment intentionally limits the decisionmaking capabilities of the machine to the expressly listed operating instructions, and no more.
Text:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
In plain English: "Anything we didn't mention in the Constitution is the domain of the states."
It's important to point this out explicitly, so that the federal government does not make assumptions of power if/when it encounters an issue not specifically enumerated in the Constitution.
It was only a decade or two into the twentieth century that judges began to call the Tenth Amendment a meaningless "truism". It's no surprise that these were the same judges who first lent their imprimatur to vast new federal powers, mostly through boundlessly expansive interpretations of the commerce clause and especially of the general welfare clause relating to taxation.
0. http://press-pubs.uchicago.edu/founders/documents/amendXs4.h...
More importantly, Judicial Review was created and filled the gap Madison saw between the powers enumerated in the Constitution and their implementation.
If you're interested in how well the Papers do (or don't) reflect the intent of the framers and contemporary understanding of the Constitution, I can suggest a 40-ish page law review article [0] by Gregory Maggs. It also covers the history of the Papers' citation in legal scholarship on constitutional interpretation and in decisions of the Supreme Court.
0. http://www.bu.edu/law/central/jd/organizations/journals/bulr... [PDF]
If you want, the Library of Congress has copies of his correspondence and notes, they're a really interesting read. You can also find them at http://oll.libertyfund.org/index.php
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The difference is that we are alleging crimes against the Guantannamo detainees, but not against drone targets. The drone targets are regarded as military targets, so the international conventions on warfare and the treatment of POWs applies.
The drone strikes are not on U.S. soil, and only in one case do they involve a U.S. citizen (Al Awlaki). The Constitution is therefore inapplicable. Now, the strikes may be a violation of international conventions on war, but they're not a violation of the Constitution.
The Geneva convention is often discussed in connection with US extraterritorial military operations.
Now you're just playing semantic games. Who owns the 'right' in this case--non-US citizens to not be bombed or congress to prevent their bombing--is completely subjective. The fact is that prolonged military operations without congressional approval are constitutionally forbidden. So whether the right is explicit or de facto, it does it exist. You seem to want to interpret every aspect of the constitution with rabid ethnocentrism, but most of the actual authors of the document had a much broader perspective on humanity.
This seems more likely to me, considering that most Americans (of which I am one) I know* prefer getting lost in the latest iGadget to dealing with real life.
(* I am __not__ asserting that this is necessarily true of all Americans, but for those with whom I interact, at least, it is.)
What happened in the early 2000s would not have been possible with the decades of build-up. Without a standing army, without so much executive power, without such a vast and powerful law enforcement system, and without the already-established systems of domestic and global surveillance, it would have been much harder to see the provisions of the PATRIOT act or NDAA actually go through.
One of the few limits on government power that has any meaning in this day and age is the prohibition on granting titles of nobility. I suppose that is a good thing.
I see it as a little more mixed. Some things have gotten stronger, other weaker. The first amendment has mostly gotten stronger: 100 years ago, it was interpreted extremely weakly, to the extent that wide ranges of novels were illegal for containing sex scenes, pacifists were jailed under the Sedition Act for merely speaking out against WW1, you could still be prosecuted for blasphemy in some states, etc. And of course, the bill of rights was interpreted even more weakly if you happened to be black. So I'd have trouble saying things were particularly good for freedom in earlier eras of the United States.
This trope is Older Than Television, and may be Older Than Dirt.
There was a paper a while back that explained how with the current algorithms, upvoting neighboring stories has largely the same effect as downvoting.
http://ycombinator.com/newswelcome.html
It reads like Americans get special protection that non Americans cant get in the hands of US law? Seems some what odd to me that all this is about Americans being held indefinitely with out trial, but for foreigners, do what you like. Aren't humans equal to Americans or US law? Seems to me that this stealthy legislation simply makes all human beings equal in US law, or at least closes the gap. How is that wrong? It just means Americans will also suffer at the hands of the US government, like non Americans do. Fair enough, no? I note there is no concern to afford non-Americans the same protections Americans get.
Besides, from abroad, it very much looks like Americans are more concerned about keeping hold of hard core military weapons in their homes to be used against the odd burglar, than freedom, health, etc.
Like I say, Im not an American and I really don't know the subtleties, but it all seems a bit skewed to me.
Civil liberties groups "aren't shedding any tears over the demise of
the Feinstein-Lee amendment," because they objected to the fact
that it protected only U.S. citizens and permanent residents, rather
than all persons present in the United States.I know this for a fact not only because we were subjected to it but because at the time I read up on the pertaining law. (Sorry, too lazy to dig it up now.)
Perhaps you're thinking of the semi-automatic versions available to civilians, but once you turn an 'assault rifle' into a semi-automatic it's no more lethal than a semi-automatic hunting rifle, and the label is largely cosmetic.
The AR-15 that lunatic recently used certainly looks scary, but since the rounds it takes are significantly less powerful than those used by your typical boring old hunting rifle, what's the point of the distinction?
http://en.wikipedia.org/wiki/Charles_Whitman
The lunatic who attacked the school was not trained, but was also attacking cornered, defenseless children at short range. Practically any firearm would have been used in this attack to equivalent effect.
As far as I'm concerned, the only thing that might have stopped this (once it started) would have been a police officer at the school or an armed teacher (http://en.wikipedia.org/wiki/Pearl_High_School_shooting). We might have better been able to prevent the shooting from taking place at all with better mental health care. They weren't even his guns, so gun control that inspects the purchaser would not have worked.
Then again, something like a lever-action .22 or even a Mauser would do in a pinch for something like this.
The primary functional difference between guns labeled "military-style" or "assault" and "sporting" or "hunting" is a detachable magazine with larger capacity. One might think that regulating those would be an effective means of mitigating the impact of criminal acts with guns, but that was tried and did not appear to have the desired effect[3].
[0] http://ruger.com/products/gunsiteScoutRifle/models.html
[1] http://www.browning.com/products/catalog/firearms/itemdetail...
[2] http://www.fnhusa.com/l/products/commercial/autoloading-rifl...
[3] http://www.sas.upenn.edu/jerrylee/research/aw_final2004.pdf
The ease of reloading a hunting rifle depends on the type of magazine it takes. Internal box or rotary magazines will be slow to reload, since you've got to feed the bullets into the magazine. (Yeah, a stripper clip speeds this up, but only so much.) But there's plenty of hunting rifles with external box magazines, which can be reloaded as fast as any gun with detachable box magazines.
A semi-automatic's a semi-automatic. There's no real difference in rate of fire once the bullets are loaded. (I suppose a heavier trigger pull might slow you down a little.)
Aftermarket magazine capacity isn't that different if you're using a box magazine, but the bigger the magazine, the more likely it jams, making the big magazine sort of moot.
It's true that there aren't many (any? I've never seen one) high-capacity drum magazines for hunting rifles, but personally I'd rather leave those on the market as a honeypot for idiots. The damn things jam all the bloody time and clearing the jam takes at least as long as reloading a detachable box magazine (and possibly forever, if you're just some random sociopath with no firearms knowledge who just bought whatever looked scary).
This is widely debated in America; take a look at the debates over illegal immigrants some time, especially among people from states that border with Mexico.
"Americans are more concerned about keeping hold of hard core military weapons in their homes"
It is illegal to keep most military weapons in one's home in America; anything beyond a sidearm is too heavily regulated in this country. When you see pictures of Americans with military-style rifles, what you are actually looking at are civilian variants like the AR-15, which do not have a "full-auto" or "burst" mode.
As an American, I can tell you what my view on this is: AR-15s and AK-47s are not the problem here. It is relatively rare for such guns to be used by criminals. Tens of thousands of people are murdered with guns each year in this country, and the majority of those murders involve handguns. While we do get the occasion lunatic who goes on a rampage with a rifle (like the recent tragedy in Connecticut, although even he carried handguns), what is more common is gang violence, and gangs prefer guns they can conceal easily: handguns. A common pattern in home burglaries is for the thief to check nightstands, dresser drawers, and other places people commonly hide handguns, because handguns are in high demand on the black market.
If the U.S. government does decide to finally completely abandon the 5th Amendment (not an unrealistic possibility), we might need those 'hard core military weapons'. In reality, that means semi-automatic variants of standard infantry rifles, which is what many police in America keep in the trunk of their patrol car.
Also, it's possible to be concerned about all of those things you mentioned. Many of us are. I think if these odd lunatics had access to better mental health care, we wouldn't be having the 'assault weapon' debate every 6 months.
What IS needed is stricter background checks, a background check on private sales (this is called 'transferring through an FFL'), and we need the experts to come up with a strategy to help keep ALL weapons (not just guns) out of the hands of the mentally ill.
What's being proposed is a general reduction in weapons that 'look like' military assault weapons, which is pointless and will ultimately accomplish nothing (as it has in the past).
Stricter background checks and checks for private sales is a great start, but I'm skeptical of trying to control gun access for the mentally ill. Most people with mental disability or who are not neurotypical are not violent or have violent tendencies, so where is the line drawn? It should also be noted that mass shooting events have been perpetrated by people who didn't have outwardly violent personalities, so would something like this really even help? We may be better off tackling health care access and social problems rather than increasing stigma about mental disability and illness.
The problem is that very few organizations are willing to take this hard line the NRA has adopted for 75 years now. Look at the smoking industry as an example: first you couldn't smoke on planes. (Alright, that seems reasonable, we don't want fires on airplanes.) Then it was hospitals. (Ok, also reasonable, there's sick people there.) Then it was workplaces. (Well, you should have a right to work without someone blowing smoke in your face.) Then it was restaurants. (Ehh..) Then it was bars. (Wait...) Then it was the outside areas of restaurants and bars. (Huh?) Then it was beaches and other outdoor gathering areas. (Well, hold on....) Now entire cities have banned outdoor smoking. Literally the only place you can smoke is in your home (assuming you don't employ anybody). This is exactly how rights are systematically chipped away.
Even the organizations that are willing to take stands and be despised often get sidetracked. Look at the ACLU. In the last 20 years, they’ve more often represented high-profile criminals in low-value cases (constitutionally speaking) than taken on serious civil liberty issues like the PATRIOT act, drone strikes, state-ordered killings of US Citizens, etc., etc.. This problem only gets worse when “their guy” is in office.
People often deride “insane” organizations like the NRA, but unfortunately, most of the time “insane” is what’s necessary to combat the usurpation of rights that appears “prudent” at any given moment in time.
It's funny how much perspective changes things. Many gun owners have left the NRA over the past few years, in favor of Gun Owners of America or other organizations, exactly because the NRA is seen as overly willing to compromise on gun rights. I personally am a card carrying member of the GOA, Jews for the Preservation of Firearms Ownership and the Second Amendment Foundation, but not the NRA for this very reason.
That said, they probably are more "hard line" than lobbying orgs for other groups, and I won't argue against the essence of your point.
Erm, that's been law since the 1930's.
"An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention."
I think this is the business model devaluing the product. "the Atlantic" both in name and typography wants to evoke a newspaper, but the internet broke the model that allowed newspapers to do real journalism.
BTW broadly speaking, I agree. I see smart people saying really frightening things, then think about all the not-smart people.
Some basic problems in this thread: 1. The U.S. Constitution does not exist in a vacuum. You can't just read it and make a pronouncement on what it means. It has been applied and interpreted by the courts for over two hundred years, and case law, especially Supreme Court cases, are necessary parts of understanding the Constitution. I'd have to look again, but I don't think there's a single comment in this thread where case law is used to provide authority/support for someone's assertions. In other words, people are just spouting off with irrelevant crap. (All of this is true regardless of what Scalia or anyone else says about "plain meaning"; their plain meaning is often not plain to others (need to look at cases), and/or they pick and choose what they think is plain and what's not).
2. It may seem counterintuitive, but there is no such thing as an "absolute" right. At least not in any human legal system. Rights sometimes conflict with other rights (in which case at least one needs to be limited), rights are (and always have been) limited when they conflict with what courts determine to be a "compelling" government interest (need to read case law and reason by legal analogy to understand if any particular situation may rise to level of "compelling" interest), and they can be limited in less restrictive ways when the government's interest does not rise to the level of being "compelling". In other cases we may speak of a right as being absolute, e.g., right against "cruel and unusual punishment", but it should be obvious to anyone in U.S. over last ten years that that right depends on how courts interpret "cruel and unusual", i.e, it's flexible.
Those, I think, are two main things. But, really, without my even saying those it should be clear to anyone reading this thread that it's conducted at the level of two (earnest but uninformed and perhaps inebriated) college freshman debating late at night in their dorm room.
3. Another smaller thing. In some cases people in this thread have tried to interpet the language of the Constitution. Many of these attempts at interpretation are laughably bad, don't involve careful reading. If people coded with such little attention to detail programs would be crashing right and left. (Of course, the text of the Constitution is not program code, like any laws laid out in human language they're subject to interpretation, often misinterpretation.)
How are they benefiting from this?
Really, we've abandoned the 9th and 10th almost completely. The 4th has been under assault for ages. The 2nd is being paired back even more with the New Town tragedy.
One day, when most of the amendments have no real weight in our society, then the Freedom of the Press will be extinguished as well.
Americans have let the Federal Government divide us and work themselves into the cracks between us. Lately, the divide has been between the "rich" and the "poor"... voters really lapped that one up.
When imprisoning people so easily is the new normal, it is no wonder the public is not so alert about new laws.
He's saying there's a thousand times as many lifetime inmates, but only 5 times the population. It's still a huge number.
Doing everything possible (and illegal) to stop terrorism is a logical result of two facts:
1. Politicians want to be reelected, so they want to keep the voters relatively happy.
2. The whole point of terrorism is to scare civilians in democracies -- that makes them distinctly unhappy.
(Disclaimer: I have no political science background, this is my own conclusion from everything I've read on the subject. If this cynical view is wrong, I'd love to see references.)
The term was time-limited, and for a specific purpose. During their term, they would have imperium (basically, the power to command any army and issue any law), but at the end of the term or when the cause was dealt with, the dictator would step down and the normal processes would resume.
Yes, dictators were appointed during times of war and sedition. But also for mundane reasons, such as to coordinate elections and run games.
You are not acting on behalf of the government? Guess what: terrorism.
I would also throw the "media" word on your country list. For having a successful terrorist threat, you need control over media and free speech, and laws that allow that control.
My theory re democracies is that you get these harsh reactions from politicians' overarching need to keep the voters happy. (That doesn't apply to those juntas which can to a large degree ignore the populations' opinions, of course.)
I didn't talk about governments need/interest to e.g. increase control of the population's lives. (I don't know if there really is a large interest for that in the countries of the western world; sounds like a conspiracy theory.)
(Sorry, for a late answer.)
>> I think I miss your point (or you misunderstood)?
>> My theory re democracies is that you get these harsh reactions from
>> politicians' overarching need to keep the voters happy. (That doesn't
>> apply to those juntas which can to a large degree ignore the populations'
>> opinions, of course.)
You listed US, Germany, Italy, Israel, GB, Spain as examples.
>> I didn't talk about governments need/interest to e.g. increase control of
>> the population's lives. (I don't know if there really is a large interest
>> for that in the countries of the western world; sounds like a conspiracy
>> theory.)
I know politics is not a popular topic on HN (and I like that), so I tried and will try to keep it technical.
Taking it from your premise, if you can (and in some countries you could) control the media to perceive change (which leads to not being elected) as a terrorist threat, you could exceed in great lengths what's written on your constitution and law books, as human rights often do not apply to terrorists. If that's so, the difference (and permit me an hyperbole here) between a democracy and a dictatorship stands on the fence, and secondly, you achieve the main objective of being reelected.
I can't talk for most of these countries. But as an spaniard I know a bit about Spain, and the last "developments" on our civil and penal code.
Anyway, it is probably a good thing if conspiracy theories abound when the local government overstep boundaries -- even if there are no conspiracies, it keeps the politicians' behaviour in control. :-)