SUPREME COURT SAYS JUDGES CAN USE DISCRETION - FEDERAL SENTENCING GUIDELINES ARE ADVISORY NOT MANDATORY

The United States Supreme Court on Monday decided that judges may use discretion in imposing sentences in federal drug cases.  In Kimbrough v. United States, ___ U.S. ___ (2007), the Supreme Court fell in step with the U.S. Sentencing Commission which earlier this year adopted guidelines that subtantially lessen the disparity between sentences for powedered cocaine and crack cocaine.  Federal sentencing guidelines imposed the same sentence for a crack dealer as for someone selling 100 times as much powder cocaine.

African-Americans were nearly 82 percent of defendants sentenced in federal court for dealing crack, but only 27 percent of those sentenced for dealing powder cocaine, according to 2006 federal statistics. 

The disparity had been challenged by civil rights groups because crack cocaine is most often used by blacks, while powder coacaine is most often used by whites.  The Court avoided the issue racial disparity by finding that the guidelines were not mandatory but rather “advisory” in nature.  The Court’s decision is seen as a major victory for defendants as well as federal district judges who can now use discretion in sentencing now that the guidelines have been found to be advisory rather than mandatory.

A pile of crack cocaine

Photo from U.S. Drug Enforcement Agency

The sentencing commission is scheduled to vote Tuesday on whether to make those guidelines retroactive for prisoners convicted in the past of crack dealing.  If the guidelines are retroactive, almost 20,000 inmates could be eligible for shorter sentences under the proposed changes.

THE EYES HAVE IT - BEWARE OF BIOMETRICS

Mark Souder has become a crusader for biometrics identification (ID) cards; however, he admits the political climate is not yet ripe. That statement alone indicates he must think sometime in the future it will be ripe.

Biometrics is, generally, the study of measurable biological characteristics. In computer security, biometrics refers to authentication techniques that rely on measurable physical characteristics that can be automatically checked. We are already seeing biometrics in everyday life. For example, the fingerprint requirement at banks for “non-customers” as well as at some larger stores for check cashing purposes.

There are several types of biometric identification schemes:

• face: the analysis of facial characteristics
• fingerprint: the analysis of an individual’s unique fingerprints
• hand geometry: the analysis of the shape of the hand and the length of the fingers
• retina: the analysis of the capillary vessels located at the back of the eye
• iris: the analysis of the colored ring that surrounds the eye’s pupil
• signature: the analysis of the way a person signs his name.
• vein: the analysis of pattern of veins in the back if the hand and the wrist
• voice: the analysis of the tone, pitch, cadence and frequency of a person’s voice

Souder has taken up the biometric cause from his spot as the top GOP member on the House Homeland Security Border, Maritime and Global Counterterrorism Subcommittee. Our Third district is also home to a facility owned by Beaverton, Oregon-based Digimarc Corporation, a producer of 32 states’ drivers licenses, including some with biometric information.

Opponents of biometrics feel that there are lots of ways that biometrics are not as reliable and infallible as people tend to think they are. Lee Tien, a senior staff attorney at the Electronic Frontier Foundation states, “I would argue that the burden of proof is on the proponents of biometrics to show that it is actually going to be workable as security.”

According to Tien, a major reason biometric technologies do well in labs but perform poorly when implemented is because lab tests haven’t sufficiently simulated people trying to defeat the system. All the while, Tien argues, citizens would pay a steep toll in terms of personal privacy if they had to submit biometric identifiers.

Supporters of increased use of biometrics argue that that is precisely the point — being able to identify, track and monitor bad actors so you know who they are and where they are is essential for national security. But who is bad? And how many non-bad “actors” will get swept into the system?

And, aside from the increased security, there would be practical effects that would improve people’s lives, supporters say.

For example, passengers who are commonly confused with someone listed on the no-fly list could clear the matter up in a few short minutes if they are carrying a biometrically enabled ID card and airport security personnel are equipped with a reader that can verify or disprove a match.

In addition to helping to create an adequate redress process and greater security for airline passengers, Souder said biometrically enabled ID cards would help other homeland security agencies to perform their functions better:

• Immigration and Customs Enforcement could go into American companies and accurately ensure that they are not employing illegal residents.

• Customs and Border Protection could accurately identify people attempting to enter the country via a land or sea port of entry.

• State and local police could identify potential threats when they are enforcing traffic and other domestic laws.

• Bank tellers could ensure that legitimate people are the ones removing or adding money to an account.

Souder is considering drafting a bill that would give financial incentives or direct funding to states that include biometrics when implementing the Real ID Act (PL 109-13). Remember, that is the 2005 law requiring states to comply with minimum security standards for issuing driver’s licenses or identification cards or risk having those IDs cease to be accepted for boarding flights or entering federal buildings.

Souder says he is taking a “patient approach”, assuming time and circumstance are on his side. Let’s prove him wrong.

Keep your eyes peeled on this issue - pardon the pun - because I can assure you, given the Bush administration’s rule by fiat and secrecy, we will see it pushed, and it sounds like Mark Souder is in the forefront of that push.

Let’s hope the American people never let themselves be cowed into accepting a national ID card in the form of biometrics. At some point, enough is enough.

WHERE THERE’S SMOKE - MAYBE THERE’S A GUN

Probably of little surprise to court watchers everywhere, the United States Supreme Court recently announced it would hear arguments on the always-heated issue of the Second Amendment, its meaning, and its application. The Supreme Court has granted a Writ of Certiorari to hear the District of Columbia’s request to uphold its power to regulate guns within the district.

The Second Amendment is part of the Bill of Rights passed by the first Congress in 1789 and ratified as a unit by 1791. The Bill of Rights, however, only applied against the new federal government and was not meant to affect the existing states’ powers vis-a-vis their own citizens.

Over the following years, and in particular after passage of the 14th Amendment, the Supreme Court slowly found that many of the clauses of the various amendments should apply to the states as well. The doctrine the Supreme Court used was known as “selective incorporation.”

But the Second Amendment has never been held to apply against the states, thus states and their derivatives, such as municipalities and cities, have been free to regulate the possession of guns. That application may very well change next year when the Supreme Court takes up the case of Parker v. District of Columbia, 375 U.S. App. D.C. 140 (2007). Only one individual, Richard Heller, was found to have standing in the case, thus the writ of certiorari to the Supreme Court will only address certain issues raised by the decision as to that one individual.

The Supreme Court has limited arguments to the following three statutory provisions:

D.C. Code 7-2502.02(a)(4):

7-2502.02. Registration of certain firearms prohibited [Formerly 6-2312]

(a) A registration certificate shall not be issued for a:

(1) Sawed-off shotgun;

(2) Machine gun;

(3) Short-barreled rifle; or

(4) Pistol not validly registered to the current registrant in the District prior to September 24, 1976, except that the provisions of this section shall not apply to any organization that employs at least 1 commissioned special police officer or other employee licensed to carry a firearm and that arms the employee with a firearm during the employee’s duty hours or to a police officer who has retired from the Metropolitan Police Department.

(b) Nothing in this section shall prevent a police officer who has retired from the Metropolitan Police Department from registering a pistol.

D.C. Code 7-2507.02

7-2507.02 Firearms required to be unloaded and disassembled or locked [Formerly 6-2372]

Except for law enforcement personnel described in 7-2502.01(b)(1), each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.

D.C. Code 22-4504. Carrying concealed weapons; possession of weapons during commission of crime of violence; penalty [Formerly 22-3204]

(a) No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed. Whoever violates this section shall be punished as provided in , except that:

(1) A person who violates this section by carrying a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon, in a place other than the person’s dwelling place, place of business, or on other land possessed by the person, shall be fined not more than $ 5,000 or imprisoned for not more than 5 years, or both; or

(2) If the violation of this section occurs after a person has been convicted in the District of Columbia of a violation of this section or of a felony, either in the District of Columbia or another jurisdiction, the person shall be fined not more than $ 10,000 or imprisoned for not more than 10 years, or both.

The petition for a writ of certiorari was granted limited to the issue of whether the above provisions violate the rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.

An issue that complicates the factual basis is that Washington, D.C. is a unique creation and is a city with boundaries coterminous with the federal district. The District of Columbia and the city of Washington are governed by a single municipal government and for most practical purposes, are considered to be the same entity.

Before the Court can undertake analysis of the statutory sections, I believe it will have to determine the status of the District of Columbia. Since it is a city within a district and not witin a state, the 14th amendment probably cannot be used to analyze the application in terms of forbidding states to infringe citizens’ rights. But since it is a federal entity, then the Second Amendment would apply since the Bill of Rights applies against the federal government. If that is the path that the Court takes, then the ruling will be limited only to Washington, D.C. and will still leave the states free to impose restrictions on guns.

If the Court simply wanted to let the appellate ruling stand, it could have denied cert, thereby leaving the lower court’s decision of the unconstitutionality of the statutes intact. Conventional thought is that the Court does not take cases just to reaffirm a lower court’s decision. I may be incorrect, but I believe the case, while touted as the case to again raise the issues of individual gun rights vs. collective rights through militia participation will not resolve the debate. The Court will limit its decision to those citizens of Washington, D.C. as a federal entity.

FDR, THE FEAR OF POLIO, AND THOUGHTS OF HISTORY

I visited the Franklin D. Roosevelt memorial when I was in Washington, DC a couple of weeks ago. The memorial is long and spread out with insets containing the statues and exhibits of the memorial.

The first “cubby-hole” of the memorial contained a statue of FDR sitting in his wheelchair - his physical disabilities attributed to what was believed to be polio. As I looked at the statue, I couldn’t help but think of how far we have come from the days when a diagnosis of polio was seen with fear and despair and often considered a death sentence. Polio was once one of the most dreaded childhood diseases of the 20th century, crippling thousands of people, mostly young children, each year.

Polio is an acute viral infectious disease spread from person-to-person, primarily via the fecal-oral route. While roughly 90% of polio infections are without symptoms, affected individuals can exhibit a range of more severe symptoms if the virus enters the blood stream. In less than 1% of polio cases the virus enters the central nervous system (CNS), infecting and destroying motor neurons. The destruction of motor neurons causes muscle weakness and paralysis.

In the early 20th century much of the world experienced a dramatic increase in the number of polio cases, leading to a series of epidemics. At the height of the polio epidemic in 1952, nearly 60,000 cases with more than 3,000 deaths were reported in the United States alone. The epidemics provided the trigger to search for vaccines to eradicate the disease. Eventually those vaccines were developed by Jonas Salk and Albert Sabin. Today, polio is considered eradicated in the United States but not in other parts of the world.

As I continued through the memorial, I thought also how hard it must have been to maintain the pace of a presidency while suffering from what was surely unending pain each day. Several waterfalls were interspersed among the statues - almost as if placing something calming amongst the tumultuous periods of Roosevelt’s presidency.

In 1932, Roosevelt inherited a country struggling to recover from the Great Depression. During the Great Depression of the 1930s, Roosevelt created the New Deal to provide relief for the unemployed, recovery of the economy, and reform of the economic and banking systems.

Although recovery of the economy was incomplete until almost 1940, many programs initiated in the Roosevelt administration continue to have instrumental roles in our nation’s commerce, such as the FDIC, TVA, and the SEC. One of his most important legacies was and still is the Social Security system.

After 1938, Roosevelt championed re-armament and led the nation away from isolationism as the world headed into World War II. He provided extensive support to Winston Churchill and the British war effort before the attack on Pearl Harbor pulled the U.S. into the fighting.

During the war, Roosevelt made the United States the principal arms supplier and financier of the Allies who later, along side the United States, defeated Germany, Italy and Japan. Roosevelt led the United States as it became the Arsenal of Democracy and put 16 million American men into uniform.

FDR is, to me, one of the greatest of our presidents. But he made one overriding decision with which I do not agree. He issued Executive Order #9066, which authorized U.S. armed forces commanders to declare areas of the United States as military areas “from which any or all persons may be excluded.” It was eventually applied to one-third of the land area of the U.S. - mostly in the West- and was used against those with “Foreign Enemy Ancestry” - aimed at Japanese-Americans, in particular.

The order led to the Japanese American internment in which some 110,000 ethnic Japanese people were held in internment camps for the duration of the war. Of the Japanese interned, 62 percent were Nisei (American-born, second-generation Japanese American) or Sansei (third-generation Japanese American) and the rest were Issei (Japanese immigrants and resident aliens, first-generation Japanese American).

Although not discussed as thoroughly as the internment of Japanese-Americans, the Order led to the internment of those of the ancestry of the other two Axis powers - Germany and Italy. Approximately 11,000 persons of German ancestry - including many American-born children - as well as some 10,000 people of Italian-American ancestry were interned.

But Roosevelt wasn’t the only one complicit in the internment of Japanese-Americans. The Supreme Court heard two cases - one in 1943 and one in 1944 - either one of which could have been the vehicle to correct the travesty of both internment and the restrictions placed on movements of Japanese-Americans. Both cases involved American-born U.S. citizens - unfortunately for both, they were of Japanese descent.

In Hirabayashi v. United States, 320 U.S. 81 (1943), Gordon Kiyoshi Hirabayashi, an America-born citizen who was in his senior year of college, was convicted of violating a curfew order and a relocation order. The conviction was upheld by the Supreme Court relying on the exigencies of war.

In Korematsu v. United States, 323 U.S. 214 (1944) , Toyosaburo Koramatsu was also convicted of violating an exclusion order which required that all persons of Japanese ancestry should be excluded from the designated military area after May 9, 1942.

Again, relying on the exigencies of war, the Supreme Court upheld the convictions. But, unlike the Hirabayashi decision which was unanimous, this time three justices found the courage to dissent. Justice Murphy stated in his dissent:

“I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.”

The internments were a travesty generated by fear and racial discrimination. Internment served little purpose other than to highlight fears of those who happened to be of Italian, German, or Japanese descent.

Ironically, in 1933, as Roosevelt stood before his first inaugural crowd, trying to bolster the spirit and the courage of the American people held prisoner to economic uncertainty and despair, he said the following:

“So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself—nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.”

The very quote so eloquently stated in 1933 was later so blatantly disregarded as fear overtook Roosevelt, the government, and the American people. Roosevelt’s assurance that “the only thing we have to fear is fear itself” truly became lost in the early days of our entry into World War II.

THE CONSTITUTION OF THE UNITED STATES ” ITS ONLY KEEPERS, THE PEOPLE.” - GEORGE WASHINGTON

Monday, September 17th, is Constitution Day. This year is the 220th anniversary of the signing of our Constitution - at 4,440 words, it is the oldest and the shortest written constitution of any major government in the world.

The Constitutional Convention convened on May 25, 1787, in the Assembly Room of Independence Hall in Philadelphia, Pennsylvania. Freshly spread dirt covered the cobblestone street in front of the building, protecting the men inside from the sound of passing carriages and carts. Guards stood at the entrances to ensure that the curious were kept at a distance. The proceedings were held in secret.

James Madison, “the Father of the Constitution,” arrived first in Philadelphia for the Convention. Arriving in February, three months before the Convention began, he brought with him the blueprint for the new Constitution.

Seventy individuals had been chosen to attend the meetings with the initial purpose of amending the Articles of Confederation, the document which up to that point had loosely held the colonies together. Rhode Island was the only colony which chose not to send a delegate to the meeting. Fifty-five men attended most of the meetings, but only thirty-nine delegates actually signed the Constitution.

After four months of debates, on September 17, 1787, the Constitutional Convention drew to a close. Benjamin Franklin, at 81 the oldest delegate to sign the Constitution, mused:

“I confess that there are several parts of this Constitution which I do not approve, but I am not sure I shall never approve of them. For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise.”

Frail, in poor health, and barely able to walk, he needed help to sign his name to the document, and, as he did so, tears streamed down his face. Great debates would rage for the next few months as those who supported the new government argued for its acceptance and ratification while those opposed would argue just as fervently against its implementation.

By late June of 1788, the debate was over; the required number of states had ratified the Constitution, and the “Great Experiment” had begun.

OUR CONSTITUTION

Our Constitution is composed of three parts: The Preamble, the Body consisting of seven Articles, and the 27 Amendments.

The first part is the Preamble. The Preamble is much like a vision statement of a business: It contains the goals of the Founding Fathers for the new Nation. The Preamble reads as follows:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The second part is the body. The body contains the seven articles passed to help govern the new Nation. Those Articles are:

Article I - Sets out the powers of the legislature and the requirements to be a representative or a senator. Each state has two senators and a number of representatives based on population. The number of a state’s representatives is adjusted every 10 years based on the census. Population shifts can either add to the number or subtract from the number. The number of senators remains the same - only two.

Section 8 of Article I contains the powers given to Congress to govern the country. It sets out such powers as laying and collecting taxes, regulating commerce among the several states, coining money, declaring war, etc.

Article II - Sets out the powers of the executive and the requirements to be the president. Originally, no term limits were imposed, but, until Franklin D. Roosevelt was elected for a third term and then a fourth, no person had been elected more than twice. To ensure that no person held office for too long, the 22nd Amendment was proposed by Congress and sent to the states for ratification. It was ratified by the required 3/4 of the states on February 27, 1951.

Article III - Sets out the powers of the judiciary, its jurisdiction, and the requirements to be a federal judge. The Supreme Court was the only court actually established by the Constitution. The Founding Fathers gave Congress the power to establish inferior Courts as it saw fit from time to time.

Article IV - Establishes the principle of “Full Faith and Credit.” This principle was meant to create a level playing field among the states by requiring that each state recognize its sister state’s inherent ability to govern by giving “full faith and credit” to the public Acts, Records, and judicial proceedings of every other State.”

Article V - Establishes the process for amending the Constitution when necessary. The bar to amend was set fairly high - 2/3 of both houses of Congress and 3/4 of the state legislatures - to prevent the amending process from becoming too easy to navigate.

Article VI - Establishes the Constitution and the Laws of the United States as the Supreme Law of the Land. When conflicts occur between a state and the federal government, the federal government controls.

Article VI also provides that all debts would be assumed by the federal government. This Article insured that any debts incurred by the national government under the Articles of Confederation would be honored under the Constitution. These Revolutionary War debts were considerable. In addition, many individual states still owed substantial sums for war expenses.

Article VII - Provides the process by which the Constitution would become binding on the states. The ratification of 3/4 of the colonies’ legislatures was required to ratify the new Constitution.

The third part is the amendments. The Constitution has been ramended 27 times. Ten of those amendments were added during the meeting of the first Congress in 1789 with ratification in 1791. The first ten amendments are known collectively as the “Bill of Rights” and were added to allay fears that the new government would take away rights cherished by the colonists - freedom of religion, freedom of speech, etc.

The topics of the additional 17 amendments range from providing the vote to women, 18-year olds, and minorities; abolishing slavery; changing the method of electing senators, etc.

As George Washington stated, “its only keepers, the people.” As a Nation, we must know how our Constitution was born and what our Constitution says in order to be “keepers”. Many would like to think it is a document set in stone and the words have no life - their philosophy is that what the Constitution said in 1787 on the day of its signing is what it should mean today.

But the Founding Fathers probably realized they could not possibly provide for every contingency and that future generations would see the world in a different way, tailoring the Constitution through interpretations and amendments to meet the needs of the very posterity that they spoke of in the Preamble.

While all of us have busy lives, take a moment on Monday to think, just think, about the feat that was accomplished at Independence Hall in Philadelphia, that September 17th, 220 years ago. Think of the 39 who dared to sign the document, setting the country on an uncharted course. Think of the heated political debates that took place as those who signed returned home to convince their fellow citizens that this was the right thing to do. Think of the courage those at the Constitutional Convention displayed. And, finally, think about this - our Founding Fathers were not perfect; they had their flaws, and they were the wealthy and propertied of the colonies. They did not represent the majority of the colonists. The Founding Fathers were the elite of the times worried about retaining their status and power.

But, regardless of their status and wealth, they gave us a document that is ours now.

Margaret Mead once said, “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it is the only thing that ever has.” Her statement could read, “Never doubt that a small group of thoughtful, committed keepers can change the world; indeed, it is the only thing that ever has.” The Constitution is not set in stone; it is a living, breathing document.

We are the Keepers, and Constitution Day is the day we should remember that and commit to our power to change not only our society but also our world for the better.

TAKING AIM - THE SUPREME COURT AND THE RIGHT TO BEAR ARMS

THE SECOND AMENDMENT

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.

The United States Supreme Court is about to be put on the hot seat. In the debate over the meaning of the Second Amendment, there are two opposing camps. On one side, the collective rights theorists argue that the Amendment protects only a right of the various state governments to preserve and arm their militias. This position posits that the federal government is prohibited from taking away the ability of the states to arm their fighting forces.

On the other side are those who argue that the Second Amendment protects the right of individuals to possess arms for private use. To these individual rights theorists, the Amendment guarantees personal liberty analogous to the First Amendment’s right to free speech or the Fourth Amendment’s right to be free from unreasonable searches and seizures. However, some forward-thinking scholars suggest a middle ground between the individual and collective right models.

The most prominent in-between theory developed by academics has been named the “sophisticated collective right” model. In this model, traits from the two opposing models are blended. The theory acknowledges that individuals could, theoretically, raise Second Amendment challenges against the federal government, but the scholars define the Second Amendment as a purely civic provision that offers no protection for the private use and ownership of arms.

While the various state and federal courts have argued over the meaning and application of the Second Amendment, the Supreme Court has shied away from tackling the issue of whether the Second Amendment applies against the states as well as the federal government. The highest court has not ruled on the Second Amendment issue since 1939 - 68 years ago.

The Second Amendment is part of the Bill of Rights, also known as the first ten amendments. The Bill of Rights was originally passed to protect individual rights against a strong central federal government; the Bill of Rights had no application against the existing state governments. States were seen as protectors of their citizens; it was fear of a strong federal government that triggered passage of the Bill of Rights.

Until the passage in 1868 of the Fourteenth amendment in the wake of the Civil War, the states went unfettered in their discriminatory and often harsh treatment of certain segments of their citizenry. This often meant depriving citizens of critical individual rights - the very prohibitions against the federal government contained in the Bill of Rights were not enforced against the states. But with the passage of Fourteenth Amendment, the courts were given a tool to bring state governments into line. The Fourteenth Amendment states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The phrase in the Fourteenth Amendment “No State shall” enabled the Supreme Court to use its powers to selectively incorporate individual provisions of the Bill of Rights against the states. As cases were appealed to the Supreme Court, the Court looked to the Bill of Rights for guidance. Slowly, over time, the Supreme Court applied clauses of the individual rights found in the Bill of Rights to the states. Today, very few provisions remain of the Bill of Rights that have not been applied to the states. One of those is the Second Amendment. While the Second Amendment prohibits actions by the federal government, it does not prohibit states from banning, controlling, or managing guns.

That 68-year-old status quo may be about to change. In 1976, the District of Columbia enacted three statutes which dealt with various areas of gun control such as prohibiting registration of sawed-off shotguns, machine guns, short-barreled rifles, and pistols not registered prior to that date. The D.C. statutes had been in effect for almost 30 years when, in 2004, a group of six plaintiffs residing in Washington, D. C., filed suit in the D.C. District Court to challenge the statutes.

Of the six residents, only one had actually applied for a permit to possess a handgun in his home, and his request was rejected. The other five had not applied for a permit but simply wanted the option of possessing or carrying a gun if desired. In analyzing a 65-year long line of federal cases including a 1939 U.S. Supreme Court case, United States v. Miller, 307 U.S. 174, the D.C. District Court rejected the notion that:

“there is an individual right to bear arms separate and apart from service in the Militia and because none of the plaintiffs have asserted membership in the Militia, plaintiffs have no viable claim under the Second Amendment of the United States Constitution. Thus, plaintiffs’ complaint must be dismissed and their Motion for Summary Judgment denied as moot.”

The District Court reasoned that the right to bear arms was a collective right rather than an individual right. The collective right was necessary in order to provide a “well-regulated” militia provided by the state. After the loss at the District Court level, the plaintiffs appealed to the Court of Appeals for the District of Columbia Circuit. On March 9, 2007, the Court of Appeals handed down its decision. The Circuit Court of Appeals, in a lengthy opinion, analyzed the issue in light of the collective rights theory and the individual rights theory, landing squarely on the side of individual rights, ruling that the right to bear arms was, indeed, an individual right to be protected. The Circuit Court of Appeals reversed the District Court ordering the lower court to rule in favor of the one appellant who survived the issue of standing to bring his challenge.

The District of Columbia intends to appeal the Circuit Court of Appeals decision. This means the Supreme Court will have to decide whether or not to accept the appeal, thus ending its 68-year silence on the application of the Second Amendment to the states. The Supreme Court, may, however, have an out.

The District of Columbia, founded on July 16, 1790, is not a state; it is a federal district as specified in the United States Constitution. The Fourteenth Amendment applies against the states; it does not apply against a district. The District of Columbia and the City of Washington are governed by a single municipal government, and for most practical purposes, are considered to be the same entity. Although there is a municipal government and a mayor, Congress has the supreme authority over the city and district, which results in citizens having less self-governance than residents of the states.

The Supreme Court could hear the case and decide that the Fourteenth Amendment does not apply because of the unique nature of the District of Columbia’s status. However, if the Supreme Court decides the District’s federal status places it in the realm of the original Bill of Rights prohibitions against federal government deprivation of individual rights, the Court could still avoid a decision by finding that the District is a hybrid, subject neither to the Fourteenth Amendment nor to the Second Amendment. Thus, the Supreme Court could very well maintain its long and silent history on the Second Amendment and its application.

LOVING V. VIRGINIA - THE SUPREME COURT AND INTERRACIAL MARRIAGE

A couple of days ago, June 12, 2007, marked the 40th anniversary of Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court decision that ended the practice of making interracial marriages a crime. The Warren Court, famous for its seminal decisions in the area of defendants’ rights, stepped into the area of personal relationships, and marital ones at that.

In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, left the State of Virginia and crossed over into the District of Columbia to marry. While Virginia prohibited interracial marriage, the District of Columbia did not forbid such marriages. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County.

 

However, Virginia was one of a number of states with anti-miscegenation statutes on the books. The purpose of the statutes was to prevent mixing - miscegenation - of the races in order to maintain the “purity” of the white race.

The two statutes under which the Lovings were convicted and sentenced were part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating the following two sections of the Virginia Code:

§ 20-58 of the Virginia Code:

“Leaving State to evade law. — If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.”

Section 20-59, which defines the penalty for miscegenation, provides:

“Punishment for marriage. — If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.”

At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. The trial judge opined that:

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

After their convictions, the Lovings left the State of Virginia and established residence in the District of Columbia. They ultimately filed to have their convictions vacated but were unsuccessful in their efforts before the Caroline County trial court and the Supreme Court of Appeals of Virginia. Failing at both attempts to vindicate their relationship, the Lovings appealed to the United States Supreme Court in 1966.

The Lovings’ appeal rested on the 14th amendment’s equal protection and due process clauses. The 14th amendment was passed in 1868 at the end of the Civil War along with two other amendments known collectively as the “Civil War Amendments” or the “Reconstruction Amendments.” Those three amendments were the 13th Amendment passed in 1865, which outlawed slavery and involuntary servitude - except as punishment for crime; the 14th Amendment, which mandated that states not deprive its citizens of life, liberty, or property without due process of law, nor deny equal protection of the laws, nor abridge the privileges and immunities of citizenship; and the 15th amendment passed in 1870, which prohibited the abridgment of voting rights based on race, color, or previous condition of servitude.

 

 

When the Supreme Court reviews a case alleging a violation of the 14th amendment, it must use a standard of review. Each clause in the 14th amendment means something different. The “privileges and immunities” clause was interpreted narrowly in the 1873 Slaughterhouse Cases as protecting only those rights of national citizenship, thus that clause is rarely used to argue violations of constitutional rights. However, the equal protection clause of the 14th Amendment and the due process clause of the 14th Amendment have been used extensively to selectively impose many of the guarantees of the Bill of Rights against the states. Recall, the Bill of Rights was established to prevent abuse of rights by the federal government, not the state governments. Yet, state governments were also capable of denying rights and trampling on fundamental freedoms. Thus, the Supreme Court began using the 14th Amendment as a way to stop states from abusing the rights of their own citizens.

The Equal Protection Clause does not prohibit all discrimination, just unreasonable discrimination. If a law treats people differently, the state must demonstrate a good reason for the difference in treatment. Under the Equal Protection Clause, when a state passes a law, generally the Court defers to the state legislature and only looks to see if the state has a rational basis for imposing a law. This is a fairly easy standard of review. But if the legislation touches on either a suspect classification such as race or a fundamental right such as free speech, the state must show that its law reflects a “compelling state interest” in order to survive a constitutional challenge. The Supreme Court uses the standard of strict scrutiny which is the highest and toughest standard used by the Court to review these cases.

Since the Virginia statutes were based on a racial (suspect) classification, the Supreme Court used the strict scrutiny standard of review to ascertain whether the State of Virginia had a compelling state interest in prohibiting interracial marriages. In deciding the state did not have a compelling interest, the Supreme Court held that:

“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race.

There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

The Supreme Court also addressed the issue that the statutes deprived the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The Court held that the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

The landmark opinion was written by Chief Justice Earl Warren who was joined by Justices Black, Douglas, Clark, Harlan, Brennan, Stewart, White, and Fortas. The decision was what is known as a unanimous decision, 9-0, the strongest statement of belief that the Supreme Court imposes. Loving v. Virginia ended, finally, the prohibition against interracial marriage. Just two generations ago a fundamental right that we take for granted today, did not fully exist.

NOTE: The Lovings were the parents of three children. Tragically, Richard was killed in a car accident in 1975; Mildred, who is till living today, lost an eye in the accident. The story of the Lovings was turned into a movie in 1996 titled Mr. & Mrs. Loving, starring Lela Rochon, Timothy Hutton, and Ruby Dee.

DRIVING MY LIFE AWAY–THE REAL ID ACT OF 2005

THE ACTUAL BILL-H.R. 418

H.R.418
Title: To establish and rapidly implement regulations for State driver’s license and identification document security standards, to prevent terrorists from abusing the asylum laws of the United States, to unify terrorism-related grounds for inadmissibility and removal, and to ensure expeditious construction of the San Diego border fence.
Sponsor: Rep Sensenbrenner, F. James, Jr. [WI-5] (introduced 1/26/2005) Cosponsors (140)
Related Bills: H.RES.71, H.RES.75, H.RES.151, H.R.1268
Latest Major Action: 2/17/2005 Referred to Senate committee. Status: Read twice and referred to the Committee on the Judiciary.
Note: Pursuant to H. Res. 151, the text of H.R. 418, as passed House, was appended as Division B to the end of H.R. 1268. Division B was further modified in conference. H.R. 1268 became P.L. 109-13 on 5/11/2005.

THE PIGGYBACK RIDE-H.R.1268 GIVES H.R. 418 A RIDE
H.R.1268
Title: An act making Emergency Supplemental Appropriations for Defense, the Global War on Terror, and Tsunami Relief, for the fiscal year ending September 30, 2005, and for other purposes.

So H.R. 418 - the REAL ID Act - was appended to the end of H.R. 1268. Of course, since H.R. 1268 was a bill including supplemental emergency appropriations for Defense, the Global War on Terror, and Tsunami Relief, who could vote against it? The Bill passed with little debate and no hearings. Thus, the public got the REAL ID Act whether they wanted it or not, whether they knew anything about it or not, or whether they understood it or not.

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If you live or work in the United States, you will need a federally approved ID card to travel on an airplane, open a bank account, collect Social Security payments, or take advantage of nearly all governmental services. Practically speaking, your driver’s license will be reissued to meet federal standards.

The REAL ID Act of 2005 creates a system of national identification cards. It is a law imposing federal technological standards and verification procedures on state driver’s licenses and identification cards, many of which are beyond the current capacity of the federal government. After more than two years, the Department of Homeland Security issued draft regulations for state compliance on March 1, 2007; the Act mandates state compliance with these regulations by May 2008.

In reality, the REAL ID Act turns state DMV workers into quasi-immigration officials, as they must verify the citizenship status of all those who want a REAL ID approved state driver’s license or identification card. The license branch will be responsible for verifying these documents, and, if verification cannot be obtained quickly, a temporary license may be issued until verification is obtained.

Indiana has unveiled its new driver license and identification card using justifications such as it “will help battle identity theft and card tampering and assist in the detection of underage drinking through use of innovative technology.” Those 21 and over will have a license which can be read horizontally and those under 21 will have one that reads vertically. The back of the card describes the endorsements and restrictions as applicable. A two-dimensional barcode on the back contains demographic data from the front of the card making duplication of the document more difficult. The bar code will also enable police to scan the code into their databases, which will ultimately be shared on a nationwide basis. The Indiana Bureau of Motor Vehicles Documents List provides groups of documentation that will be acceptable pending verification.

As usual, there will be those out there who parrot the old phrase, “Well if you don’t have anything to hide, then what’s the problem.” Benjamin Franklin, the oldest participant at the Constitutional Convention, said in 1759 that “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

And therein lies the difficulty. Exactly what is an “essential” or indispensable liberty. Is it possible to overlook the incremental chinking away of not-so-essential liberties to one day wake up to find that all those not-so-essential liberties have culminated in the loss of our very foundations of freedom? The whole is the sum of its parts - the deprivation of liberty is the sum of what citizens will accept as necessary and temporary safety measures. But those individual and temporary safety measures, one by one, may well ultimately add up to a deprivation of essential liberty.

A FORK IN THE ROAD: LEFT OR RIGHT?

In political circles, the terms “left or left-wing” and “right or right-wing” have come to identify the political, economic, social, and cultural leanings of individuals as well as parties. The right is afraid of the left and the left is afraid of the right. The terms are used so frequently today and with such negative connotations that no one bothers to understand what exactly they represent or from where they originated.

The terms date back to pre-revolutionary France. In May of 1789, King Louis XVI called together the Estates General, a legislative body of the different classes of French subjects, for the first time since 1614 to attempt to control severe financial troubles arising in France. However, the Estates General quickly fell into disagreement over its own structure and the issue of representative voting. Its members had been elected to represent the estates of the realm: the First Estate (the clergy), the Second Estate (the nobility) and the Third Estate (which, in theory, represented all of the commoners and, in practice, represented the bourgeoisie). The king’s opposition to the combined meeting of the estates and his procrastination on the issue of representation led the third estate to proclaim itself a National Assembly.

King Louis XVI

Inside the chamber where the National Assembly met, members of the Third Estate, the commoners, sat on the left side and members of the First Estate, the clergy, and the Second Estate, the nobility, sat on the right. The Third Estate consisted of revolutionaries, while the First Estate and Second Estate consisted of the nobles and clergy. Thus, the left wing of the room was more liberal seeking change, and the right wing was more conservative seeking to maintain the status quo.

As these original references became more and more obsolete, the meaning of the terms changed. The left has traditionally been concerned with the lower classes and with combatting oppression. Thus the industrial revolution in the United States saw left-wing politics become associated with the conditions and rights of workers in the new industries. This led to movements around social democracy, socialism, and trade unionism. More recently, the left has criticized what it sees as the exploitative nature of current forms of globalization, e.g. the rise of sweatshops and the “race to the bottom“, and either has sought to promote more just forms of globalization, such as fair trade, or has sought to allow nation-states to break free of the global economy.

In general, left implies a commitment to egalitarianism, support for a ‘liberal’ social policy and multiculturalism. The left as we know it today usually defines itself as promoting government regulation of business, commerce, and industry; protection of fundamental rights - especially freedom of speech and separation of church and state; and government intervention on behalf of racial, ethnic, and sexual minorities and the poor.

As civil and human rights gained more attention during the twentieth century, the left has allied itself with advocates of racial and gender equality and cultural tolerance. Most of the left has been opposed to imperialism, colonialism, and war and has historically supported movements for national self-determination. The contemporary left in the United States usually includes New Deal liberals, Rawlsian liberals, social democrats, and civil libertarians. Because of the extensive derogatory use of the term liberal, some segments of the American left decided in the 1980s to begin using the term “progressive” instead.

Although specific means of achieving these ends are not agreed upon by the different left-wing groups, almost all those on the left agree that some form of government or social intervention in economics is necessary.

The contemporary right in the United States is usually defined as a category including Republicans, classical liberals, religious conservatives, and some libertarians. Although often in disagreement with religious conservatives, classical liberals and libertarians define themselves as part of the right, and separate themselves from modern-day liberalism.

The American right is broadly defined by upholding a traditionalist understanding of constitutional law, protection of fundamental rights (especially the right to own firearms), opposition to governmental regulation and income redistribution, immigration control, and opposition to reverse discrimination. These stances are motivated by traditional values (conservatism), protection of freedom and the rights of private individuals (libertarianism), or doubts about the benefits or efficacy of governmental regulation.

The definitions of left and right are subject to distortion by those who would use fear to move public opinion. It is much easier to instill fear than to use a rational thought process in persuading others to change their minds. Knowledge is power and understanding the origin and meaning of terms gives power to citizens to decide which direction of the road they will take. As for my views, they are firmly left of center, and I will continue to take the path to the left when I come to a political fork in the road.

NATIONAL DRIVERS LICENSE - MAYBE NOT!

Another Bush Administration idea to step on civil rights and liberties - the national drivers license. However, it appears that instead of marching in lockstep to follow the mandate, state legislators are stepping forward to challenge the concept and ask that the program be repealed.

The Real ID Act of 2005 requires the states to implement certain uniform information requirements to be contained on a driver’s license. The items listed in the summary are already on our licenses, so that leads to the question, what is the real point of the law?

The Act requires compliance by May of 2008, or Federal agencies “may not accept, for any official purpose, a driver’s license or identification card issued by a state to any person unless the state is meeting the requirements.” All states would be tied into a national database in order to “keep track” of those with licenses.

Interesting how tightening up the driver’s license requirements draws opposition yet tightening up voter IDs draws support.