“RIP VAN” POSNER – SIX YEARS LATER THE JUDGE WAKES UP

Judge Posner has stunned the legal community with a rare judicial mea culpa: an admittance that he was asleep at the wheel six years ago when he wrote that he really thought voter fraud was an okay reason to have voter ID in Indiana even though little to no evidence was provided about actual fraud.  He was also provided with the argument that the voter ID could be the basis of voter suppression, which he also forthwith dismissed.

Indiana’s Republicans have long been working on various “disparate impact” voter registration and voter ID laws, which appear to be plausible but, in reality, are aimed at suppressing voting access by minorities and those who typically vote Democratic.  While they are shrewd enough not to flat out target a specific group – imagine the stink that would raise – they have fabricated laws that in their application have a disparate impact on certain groups.

In conjunction with Republican legislative efforts, then-Governor Daniels – under the guise of “efficiency” – made sure to slash the number of Bureau of Motor Vehicle locations where voter IDs could be procured.  Or the locations were moved from democratic strongholds to make access more difficult. Thus, the Republicans used a two-prong drive to suppress as many Democratically leaning voters as possible:  Impose an ID requirement, and then close or relocate those very offices where the IDs could be obtained.

Allen County has three BMV locations.  Two are in Fort Wayne – Pine Valley and Waynedale – with a third in New Haven.   The Waynedale location replaced the branch once located at Southgate Plaza, which served an area in the predominantly democratic 5th and 6th districts with a heavy minority concentration of African-American and Hispanic populations.

The following maps show the areas of minority concentration.  The numbers in the boxes are not related to the issue of minority population.

2010 African-American population concentrations

2010 African-American population concentrations

The darker the shade of blue the higher the African-American population.  The situation is similar for the Hispanic population.

2010 Hispanic population concentration

2010 Hispanic population concentration

Again, the darker the shade of green, the higher the concentration of the Hispanic population.

Finally, here is a map that shows the 5th and 6th districts showing the boundaries.  The relocated Southgate branch now resides in the 4th district – a Republican held city council seat.  Both the 5th and 6th districts are represented by Democrats.

City Council - 5th and 6th districts.

City Council – 5th and 6th districts.

So, while it is a stunning admittance from Judge Posner that he finally woke from his six-year sleep, it is not a case of “better late than never.”  His “ah-ha” moment is too little too late.

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STUTZMAN WANTS RESPECT FOR THE “TEAPUBLICANS” BUT REFUSES TO RESPECT THE CONSTITUTION

Stutzman, Indiana’s Third District House Representative, has forgotten his Constitutional underpinnings – or he has chosen to simply ignore them.  As he whines about the TeaPublicans needing some measure of “respect”, he thoroughly trounces the Constitution which he so passionately supports – or so he says.

The Congress – not the president – is responsible for establishing revenue sources and for appropriating and designating funds for the budget.  The president sends a tentative budget to the House.  The House sifts through it, makes changes, and then sends it to the Senate.  The Senate marks it up as well, and the disagreements go to a conference committee where differences are resolved.  When done, it is sent to the President for his approval or rejection.

John Dean, former Nixon cohort in crime, has over the years come to pretty much despise Republicans.  He writes as an analyst for Verdict, which is a component of Justia, and he writes some very good pieces.  Given my dislike of anything Nixon and pretty much all things Republican nowadays, I almost ignored reading an excellent piece he wrote for Justia about the use of extortion by the Republicans to get their way when they cannot do so legitimately.

According to Dean’s premises,  the Republicans’ strategy is

(1) patently unconstitutional and unconscionable;
(2) in violation of the Congressional Oath of Office; and
(3) unethical and unseemly.

The United States Constitution establishes a government which was intended to function 24/7, 365 days a year.  No where in the Constitution can be found a provision for shutting down the government because some individuals are unhappy.  Laws are passed, and they take effect.  Provisions are in place to change that through the legitimate process established in the Constitution – not by some irresponsible process found in the minds of TeaPublicans.

Stutzman took an Oath to uphold the Constitution and its laws and to faithfully discharge his duties, yet he conspired with other Republicans to violate that Oath by refusing to fund the government and to ignore his obligation to discharge his duties.  Stutzman mouths the virtue of respect yet refuses to actually follow his own words.

Stutzman is a Cruz clone, and, in voting to shut down the government, he has decided that his own idea of Constitutional interpretation is superior to the actual words and intent of the Founders.  His foot-in-mouth moment that has now become a “shot heard ’round the world” demonstrates his idea of respect:  he wants respect for himself but won’t give it for the very government created by the Constitution, which he swore to uphold.

 

 

 

Our Constitution calls for an ongoing and perpetual government unless modified under the amendment process set forth in Article V of the Constitution or by revolution.  Refusal to fund the government, which under law shuts it down, because a small recalcitrant group of Republican Party office holders are unwilling to fulfill their basic responsibilities for maintaining a functioning government, is a form of unconstitutional insurrection. – See more at: http://verdict.justia.com/2013/10/04/the-legality-of-government-by-extortion-as-we-say-or-we-shut-it-down#sthash.YBZALjvc.dpuf
The Republicans’ strategy for imposing their Party’s minority will on the majority by refusing to fund a law, or to keep the entire government functioning is (1) patently unconstitutional and unconscionable; (2) in violation of the Congressional Oath of Office; (3) unethical and unseemly; and yet, (4) there is no legal action that anyone in the other branches can pursue to end this shameful conduct. – See more at: http://verdict.justia.com/2013/10/04/the-legality-of-government-by-extortion-as-we-say-or-we-shut-it-down#sthash.YBZALjvc.dpuf

SOTOMAYOR CRITICS – IT’S OKAY IF CONSERVATIVES ARE ACTIVISTS AND HAVE EMPATHY

With all the squawking going on about Justice Sotomayor‘s past statements, the din must have numbed the minds of the conservatives who have forgotten that some justices in their own party have held pretty much the same views as Justice Sotomayor.  So here are  just a couple of reminders – blasts from the past if you will – about what some Republican justices have said about the very same issues for which Sotomayor is now being crucified.

Recall, Sotomayor said the following:

The saw is that if you’re going into academia, you’re going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they’re looking for people with court of appeals experience, because it is — court of appeals is where policy is made. And I know — and I know this is on tape and I should never say that because we don’t make law, I know.

And, she was on tape, so, of course, the comment has now become fodder for the howling right-wing of the party led by its titular head, Limbaugh the Loser.

But here is the shocker, some justices on the Supreme Court have said the same thing and enshrined it into their judicial decisions. Like, say, noted leftist jurist Antonin Scalia, who, in the majority opinion of the 2002 case Republican Party of Minnesota v. White, 536 U.S. 765, wrote:

This complete separation of the judiciary from the enterprise of “representative government” might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to “make” common law, but they have the immense power to shape the States’ constitutions as well. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999). Which is precisely why the election of state judges became popular.

Photo Credit:  AP photo on Huffington Post

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Additionally, Sotomayor’s critics are up in arms over the fact that she has admitted that her ethnic background has an affect on her decision making process.  As it turns out, her statements are very similar to those made by Justice Sam Alito during his Senate confirmation hearing:

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. … And that’s why I went into that in my opening statement. Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position. […]

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.


But, of course, these hypocritical lapses by Scalia and Alito are perfectly acceptable to the harping right wing since they were made by Republican conservatives.  Apparently Scalia and Alito haven’t gotten the memo that justices don’t make policy or let their backgrounds affect their views.

Ah, but what can you expext from a party that just doesn’t get it.  The whining and gnashing of teeth won’t do any good – especially when members of their own feel the same way Sotomayor feels and have expressed those same views publicly.

JUDGE RULES AGAINST HUNTINGTON RELIGIOUS TRAILER

In a decision likely to draw fire from those who believe God and religion should be implanted into our children’s minds from the moment they leave the birth canal, a United States district judge, James T. Moody, has issued a preliminary injunction prohibiting the Huntington School System from keeping a trailer used for bible lessons on school property.

The American Civil Liberties Union filed a lawsuit in November on behalf of a parent who asked that the school system be prohibited from allowing a  program called “By the Book Weekday Religious Instruction” to be taught in a trailer located at the Horace Mann Elementary School – on the school’s property and near the front entrance.

In a January hearing, Magistrate Roger B. Cosbey found that the program violated the First Amendment’s prohibition against an establishment of religion and recommended that the program be discontinued on school property.  Judge Moody then had the opportunity to either uphold the magistrate’s ruling or to rule against the magistrate and in favor of the school system.

Since the school system is considered an arm of the state, it falls within the purview of the 14th amendment, which made many of the original Bill of Rights guarantees applicable against the states.  One of those guarantees was the separation of church and state.  The issue of separation becomes more critical when it arises in the context  of elementary, junior high, and high school students since the state mandates attendance and these students are considered a “captive” audience – at least up to a certain age.

In determining whether or not a policy has violated the First Amendment, courts use what has come to be known as the Lemon test – from the United Supreme Court case of Lemon v. Kurtzman, 403 U.S. 602 (1971).  The Lemon test sets out the following three criteria when analyzing whether or not a governmental action is an establishment of religion:

  1. The government’s action must have a secular (non-religious) legislative purpose;
  2. The government’s action must not have the primary effect of either advancing or inhibiting religion;
  3. The government’s action must not result in an “excessive government entanglement” with religion.

If any one of these three prongs is violated, the governmental action is deemed an unconstitutional violation of the Establishment Clause of the First Amendment.

The parent did not seek damages of any type other than reimbursement of her attorney’s fees.   Those from the school system who supported the placement of the trailer and the instruction taught within its walls just couldn’t quite fathom the issue involved.  Arguments were made that the program had been in existence for 50 years, thus it couldn’t be wrong.

Yes, and slavery existed for 50 years – would anyone argue that it was acceptable?  The length of time a policy has been in force has nothing to do with whether it is right or wrong.  In the case of the religious trailer and instruction, it was probably a case of no one having the nerve to tackle the issue.  After all, when anyone speaks out against a possible violation of the Establshment Clause or any religious issue, for that matter, the person is crucified as being anti-god and anti-religion.  Then we get a lengthy diatribe about how our country has gone downhill because of taking God out of our daily lives.

To those who want to pray, to have God in their lives on a daily basis, to worship as they please, those rights have never been taken away.  If I want to sit here at my laptop and pray, I am perfectly free to do so.  What we are not free to do is to use state-funded property to advance the cause of religion – which the Huntington school system’s program did.  The decision by Judge Moody should be of no surprise to those who follow constitutional law and who understand the real issue underlying the decision.

I, BARACK HUSSEIN OBAMA

With those four words, Barack Obama set sail – our Captain of the American enterprise with us as the crew – on a new journey in American history:  a history that all but chafed against such an event that occurred today in Washington, D.C.   With Obama’s inauguration, the words contained in the Declaration of Independence proclaiming that “we hold these truths to be self-evident, that all men are created equal, and endowed by their creator with certain unalienable rights” were pulled from the yellow pages of history to take on new life, never ringing more true or holding more promise.

Our Nation’s history is replete with human tragedy – from our decimation of Native Americans to the slave trade and slavery with its horrendous treatment of an entire race of fellow human beings to our fear, loathing, and internment of Japanese-Americans during World War II.  But it is also brimming with triumphs from the birth of this great country upon the shoulders of our Founding Fathers to the building of the most powerful country in the world to the accomplishments of thousands of Americans too numerous to list.

Today – today – what seemed impossible in my generation – the 50s and 60s  – has come true.  In high school, I watched on TV almost daily the hatred spewed from the lips of southern politicians and public officials as they battled against desegregation and the entrance of blacks into southern schools and universities.  They stood arrogantly and defiantly in the doorways of their states’ public educational institutions, bracing themselves against what would be the inevitable mingling of blacks with whites.

The most basic rights that we today take for granted and accept were long denied to African-Americans.  The simple act of sitting at a lunch counter waiting to be served was against the law.   The police battled peaceful demonstrators with brutal force, using fire hoses spraying torrents of water strong enough to knock those targeted off their feet.  Billyclubs were used indiscriminately and with no remorse.

Presidents Kennedy and Johnson were both called upon to send in National Guard troops to ensure that the law desegregating the schools would be obeyed.  Day after violent day, I watched as citizens fought to prevent other citizens from being treated with dignity and enjoying the basic, common rights already attendant to being white.

But integration in the southern schools was not the only racial barrier that finally fell in the 1960s.  From early colonial days, laws were set in place to criminalize the cohabitation and marriage of whites and blacks, fueled by reliance on Biblical admonitions and a fear of “mongrolizing” the white race.  Not until the case of Loving v. Virginia, 388 U.S.  1 (1967), did the last remnants of the anti-miscegenation statutes fall.  The Supreme Court made clear by a 9-0 vote that the right to choose with whom you wish to spend your life is a fundamental right not to be abridged by outdated theories and racist ideologies.

Today, we move forward to a new beginning – a new vision of our country where the words of our founders ring true.  Their words were set down in our Declaration and in our Constitution – a Constitution that is the shortest in the world and the longest-lived in the world.  And just as our Founders planned, despite the crises we have suffered throughout our history, today we witnessed a peaceful and seamless transition, not only from one Commander in Chief to another, but also from words set forth on parchment over 200 years ago across the centuries to a fulfillment of that promise – “we hold these truths to be self-evident, that all men are created equal.”

And I cried.  And I cried this weekend watching the concert at the Lincoln Memorial remembering how I stood on that very spot two years ago looking up at the cream-colored face of Abraham Lincoln.  I cried watching Barack Obama taking the Oath of Office.  I cried in remembrance of those struggles of the past two centuries and especially those that I remember from the 60s.  And I cried with happiness and a new-felt freedom for the promises that I unabashedly knew lived in our Constitution and the realization that those promises have finally come to pass.

Photo Credit:  New York Times (Peter Baker)

CAROLINE KENNEDY – MORE MEDIA GENDER BIAS?

Soon after Hillary Clinton’s selection as the next potential Secretary of State, Caroline Kennedy made known her desire to fill the seat to be vacated by Senator Clinton. As the talk grew about her assuming the seat, so did the rise in criticism concerning her qualifications.

Caroline Kennedy’s background:

Caroline Kennedy is an attorney, writer, editor, and serves on the boards of numerous non-profit organizations.

Education:

  • Radcliffe B.A. 1980
  • Columbia Law School J.D. 1988
  • Sotheby’s (art)

Very much in the public eye during her father’s presidency and at her father’s funeral in 1963, Caroline Kennedy graduated from Radcliffe with a B.A. in 1980, trained at Sotheby’s in art, and graduated from Columbia Law School with a J.D. in 1988. She married Edwin Schlossberg in 1986. They have three children.

Caroline Kennedy Schlossberg’s 1991 book, In Our Defense: The Bill of Rights in Action, and her 1996 book, The Right to Privacy, were written with Ellen Alderman. She published a collection of some of the favorite poems of her mother, Jacqueline Kennedy Onassis, in 2001. In 2002, she published a collection of essays which echoed her father’s 1957 Profiles in Courage, and in 2003 a collection of patriotic poems, speeches, and songs.

In 2008, she served as a member of the advisory committee suggesting vice presidential nominees for Barack Obama’s presidential campaign.

She is a member of the New York and Washington, D.C. bar associations. She is also a member of the boards of directors of the Commission on Presidential Debates and the NAACP Legal Defense and Educational Fund, and is an honorary chair of the American Ballet Theatre.

Organizations: John F. Kennedy Library Board, Kennedy Foundation, American Ballet Theater, John F. Kennedy Profile in Courage Award.

The above blurb does not do justice to her behind-the-scenes work over decades of public service.

But, let’s get one thing straight: the U.S. Constitution has very minimal qualifications to serve as a senator. Article I, Section 3 sets out the criteria as follows:

No person shall become a Senator who shall not have attained to the Age of thirty years, and been nine years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Perhaps the drafters of the Constitution felt that any “male” would be adequately trained to assume a senate seat.  After all, in 1787, when the Constitution was drafted, the idea of a woman as a senator would have been non-existent.  According to Federalist Paper #62:

The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils. II. It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.

No where does the Constitution talk about education, experience, or any other quality than the three set out in the Article.  But given Ms. Kennedy’s education, experience, and reaching a “period of life likely to supply these advantages”, it would seem by Constitutional standards, she is more than qualified.

So why has Caroline Kennedy now become the subject of so much scrutiny and vindictiveness? The incessant criticism reminds me of the difference in the way Hillary Clinton was treated compared to the male candidates in the previous presidential election.

Remember the break in Hillary’s voice and the tears in her eyes in New Hampshire? Many were thrilled to jump on her with contradictory accusations: she was shrewd and was using her tears to hijack the primary, but, on the other hand, maybe she was too weak to be president because – gasp – she showed emotion in the form of watery eyes and a cracking voice.

But now, after a few weeks of adjusting to a possible Kennedy appointment, the media has started picking Kennedy apart.  She isn’t qualified, she is only in the run because her name is Kennedy, she doesn’t come across well in interviews, she said “you know” 168 times in one sitting, blah, blah, blah.    Is there nothing better to do than count how many times a person uses a phrase – annoying as it may be?  She has been described as “unflashy.”  Come on, would the media describe a perceived boring male candidate as “unflashy?”

How about the last eight years of a president who couldn’t put two sentences together let alone string together a coherent paragraph – and who strode around like he was getting ready for the shootout at the O.K. Corral.  But, never fear, other candidates’ names have been bandied about – not the least of whom is Andrew Cuomo, another candidate with a recognizable political name – his daddy is Mario Cuomo, a well-known  Democratic politician.

So now it’s the Kennedys versus the Cuomos in a Senate seat battle, and it’s up to David Paterson to decide who will better serve the interests of New Yorkers.

I wonder if the media will find Andrew Cuomo “unflashy?”  Or, will the media find him “dashing?”

OOH – HAS BRITAIN’S TONY BLAIR BEEN A NAUGHTY BOY?

Apparently George W. doesn’t trust even his closest friends and allies. Tony Blair, the British Prime Minister who stood shoulder to shoulder with Bush on Iraq throughout Bush’s trials and tribulations with the rest of the world, has been the subject of spying activity by U.S. Intelligence officials.

It seems the object of the spying was Blair’s personal life – information of a private nature that was kept in a file seen by David Murfee Faulk in 2006. While not illegal to collect information on foreign leaders, the U.S. and the UK had pledged “not to collect on each other”, several former U.S. intelligence officials told ABC.

Last month, Faulk was one of two men who revealed that U.S. intelligence officials intercepted the private phone calls of hundreds of US citizens overseas as they called friends and family back home as well as American journalists, aid workers, and soldiers stationed in Iraq.

All I have to say is good riddance to a bad apple in George W. Bush. His presidency has been one of arrogance, incompetency, disrespect of the Constitution, and downright disregard for the people of the very nation he was supposed to lead. Let’s hope we never see another presidency as disastrous and destructive as the one that has held court for the last eight years.

Bush and Blair in happier times

Photo Credit: Google Images

VICE-PRESIDENTIAL ROLE – U.S. CONSTITUTION, ARTICLE I

While I was listening to the debate, I was surprised to hear Biden mention that Article I states the role of the vice-president. His statement was in response to Ifill’s question as to the role of the Vice-President. As anyone who reads the Constitution knows, Article I sets out the structure of the legislative branch and its duties and obligations.

So, I thought maybe he made a misstatement – after all he did make an incorrect statement recently about FDR. But, the role of the vice-president is set out in Article I, Section 3 states:

The Vice-President of the United States shall be President of the Senate, but shall have no Vote, unless they are equally divided.

While Ifill may have been asking what the candidates felt the role of vice-president included, I was surprised to learn that, indeed, the role of the vice-president is established in Article I.

CONSTITUTION DAY – SEPTEMBER 17, 2008

Constitution Day is quickly approaching once again. Several years ago, Congress passed legislation which required certain entities receiving federal funds to celebrate Constitution Day each year. I am usually in charge of coming up with some way to honor the Constitution at my work.

I have to admit that Constitution Day is one of my favorite days of the year – probably second only to Christmas. Although a federal holiday, no businesses are required to close. Constitution Day has been established as a way to educate citizens about our Constitution.

Our Constitution is the shortest Constitution in the world. At only 4,400 words encompassed in seven articles, it is also the longest-lived Constitution in the world. When I think about the events that surrounded the creation of our Constitution, I try to put myself back into the framework and the mindset of that day and age.

The Constitutional Convention – also known as the Philadelphia Convention – began 11 days late on May 25, 1787, in Philadelphia. Travel to Philadelphia was difficult and the original starting date of May 14th came and went without a quorum of colonies represented.

The roads were dust-covered with carriages kicking up particles in the air. As the delegates dismounted from their horses or descended the narrow steps of their carriages to enter the Hall, passersby watched and wondered what was occurring within the old brick walls of Independence Hall. The proceedings were to be held in secret – the representatives could not afford to have word spread before they had completed their important work. All were sworn to secrecy, and guards were stationed at the doorways to prevent curious colonists from peering into the hall where the historical debates were taking place.

Many of the delegates arrived with the understanding that they were to work on “fixing” the Articles of Confederation, the loosely drawn agreement that had held the colonies together since their independence from England. But James Madison, Alexander Hamilton, and a number of others had different ideas. Fixing the Articles of Confederation was an option, but not what they really sought to do.

Theirs was a dream of creating a new country: a banding together of the 13 colonies in unity to protect the colonists against their enemies – both from without and from within. But only 12 colonies participated in the convention. Rhode Island refused to send anyone to represent her interests, and, after the Constitution was signed and sent out for ratification, it was the last state to do so.

But agreements come with a price, and our Constitution was no different. Slavery threatened to tear apart the negotiations unless some sort of compromise was reached. The slavery issue involved two separate issues: one was how to count slaves for the purpose of representation in Congress, and the other was how to end the slave trade.

The first issue – that of representation – was resolved with the Three-Fifths Compromise. The Compromise allowed slaves to be counted as three-fifths of a white person for purposes of taxation and representation in Congress.

The second issue – that of the slave trade – was resolved by inserting a provision that prevented Congress from banning the slave trade for 20 years – until 1808. With the contentious issue of slavery quelled for the time being, the remainder of the compromises were converted into a draft in July 1787.

On September 17, 1787, the draft was submitted to the members of the Convention for signing. Of the 55 representatives attending, 39 signed the document. The oldest representative to sign, Benjamin Franklin, was 81 years old. So frail was he at the conclusion of the Convention that he had to be helped – tears streaming down his face – to the platform to sign his name.

Photo Credit: Wikipedia

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His words are worth reading:

Mr. President

I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve 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. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said “I don’t know how it happens, Sister but I meet with no body but myself, that’s always in the right — Il n’y a que moi qui a toujours raison.”

In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity. Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administred.

On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.

The Constitution was ratified in 1788, and the Bill of Rights – important guarantees urged in exchange for support – was added in 1791.

Our Constitution is a document which has endured for over 200 years ago. But we cannot lock that document – the blueprint for our Nation – in the cement of 1787. It must be a “living” document – one capable of adjusting to changing times and one which provides us with a tool to become a Nation of which our Founding Fathers could only dream.

WE’VE ONLY JUST BE “GUN” – THE SECOND AMENDMENT AND SELECTIVE INCORPORATION

This past week, the United States Supreme Court handed down its much-awaited decision in the District of Columbia, et al v. Heller, 2008 U.S. Lexis 5268. The full decision with official pagination has yet to be published.

While many gun rights advocates are hailing this as a victory for the Constitution and gun ownership and possession, it is simply another step in the Court’s progression of using selective incorporation to make guarantees found in the Bill of Rights applicable against the states through the 14th amendment.

The Heller decision involved laws passed by the District of Columbia, a federally-created entity. Since the Bill of Rights was passed to limit the federal government, the Court addressed the gun legislation in the context of federal action.

The Second Amendment is somewhat unique in its structure in that its wording created an ambiguity that has been the subject of much debate. The Amendment used a prefatory clause – A well-regulated Militia, being necessary to the security of a free State – to introduce the operative clause – the right of the people to keep and bear Arms, shall not be infringed.

The debate that has raged since the passage of the Second Amendment is whether the authors intended the right to bear arms to be a collective right limited to participation in a militia or whether of necessity, the right was an individual right which belonged to the individual to use as needed.

The Court, ultimately, found that the operative clause was not limited by the prefatory clause, and, thus, an individual right to bear arms existed rather than a collective right. The Court also made clear that the right secured by the Second Amendment was not unlimited. Enumerating several situations in which restrictions are acceptable, the Court left no doubt that the possession of guns could be regulated.

The journey has now begun to determine what regulations and restrictions will be upheld and which will be rejected. The states and their derivatives have typically been the entities which have sought to control gun ownership, thus the 14th amendment with its mandatory wording will apply to future analysis by the courts. The following is the 14th amendment.

“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 following is a list of the states and the wording contained in the individual constitutions addressing the issue of the right to bear arms:

Alabama – That every citizen has a right to bear arms in defense of himself and the state.

Alaska – 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 individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State.

Arizona – The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.

Arkansas – The citizens of this State shall have the right to keep and bear arms, for their common defense.

California – no state constitutional provision

Colorado – The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

Connecticut – Every citizen has a right to bear arms in defense of himself and the state.

Delaware – A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.

Florida – The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.

Georgia – The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.

Hawaii – 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.

Idaho – The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.

Illinois – Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

Indiana – The people shall have a right to bear arms, for the defense of themselves and the State.

Iowa – no constitutional provision

Kansas – The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.

Kentucky – The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

Louisiana – The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.

Maine – Every citizen has a right to keep and bear arms and this right shall never be questioned.

Maryland – no constitutional provision

Massachusetts – The people have a right to keep and to bear arms for the common defence.

Michigan – Every person has a right to keep and bear arms for the defense of himself and the state.

Minnesota – no constitutional provision

Mississippi – The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the Legislature may regulate or forbid carrying concealed weapons.

Missouri – That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.

Montana – The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.

Nebraska – no constitutional provision

Nevada – Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.

New Hampshire – All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

New Jersey – no constitutional provision

New Mexico – No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.

New York – no constitutional provision

North Carolina – 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. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.

North Dakota – no constitutional provision

Ohio – The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

Oklahoma – The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.

Oregon – The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be keptin strict subordination to the civil power[.]

Pennsylvania – The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.

Rhode Island – The right of the people to keep and bear arms shall not be infringed.

South Carolina – 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.

South Dakota – The right of the citizens to bear arms in defense of themselves and the state shall not be denied.

Tennessee – That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.

Texas – Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

Utah – The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms.

Vermont – That the people have a right to bear arms for the defence of themselves and the State.

Virginia – That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed.

Washington – The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

West Virginia – A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.

Wisconsin – The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.

Wyoming – The right of citizens to bear arms in defense of themselves and of the state shall not be denied.

With 42 of 50 states providing a provision regarding the right to bear arms, the primary task of the courts will be to determine whether or not the regulations passed by the states will be constitutional or not. The constitutional provision that will be used to accomplish that task will, I believe, be the 14th amendment and its due process clause.

Ah yes, we’ve only just be “gun.”