January 16, 2011

The beloved Constitution--and Sarah Palin's Blood Libel

The Tea Party conservatives like to say that they care about the Constitution more than you and I. Hell, I have had conservative friends say that to me too, that they are sorry to disagree with me, but they value the constitution. I always choke a bit on that, as I remember how they responded when I objected to wireless wiretapping, or torture, or the Patriot Act.

Anyway, just as Sarah Palin thinks that people like her are "real America," Tea Partiers tend to think they are the last to actually care about the Constitution. Which is why it was so interesting to see House Republicans read the document but omit certain parts. I just assumed they would read the entire thing, but they decided to omit the embarrassing parts--saying they had been superseded by amendment, but then included other things that had been changed by amendment. But, as this piece notes, I had always imagined the Constitution as an ongoing discussion, but for many conservatives, it is just what the want it to be.


Ok, on Sarah Palin's "blood libel," my friends and I talked about this last night and we can't quite figure out why she invoked something like this. Does she know the history of that word--blaming the Jews for killing Christ, or then accusing Jews of eating children to justify violence against them?

Or is this just a dog whistle to the evangelical circle? If so, what? Or is it possible that Palin, or whoever wrote that phrase, has no clue what that means?


Finally, this hilarious "New Rules" from Bill Maher on why the Founders would probably hate the Tea Party and vice versa.


steves said...

Yes, I kind of cringe when I hear anyone say that they have figured out the Constitution or that the Founding Fathers would do this or that. I think there are unfortunate number of people that pick and choose the parts of Constitution that they think applies.

The otherwise excellent ACLU ignores the second amendment and says that if you give it any weight, then you would have to allow people to own tanks and nuclear bombs. Some die-hard gun rights people are completely ok with wiretapping and torture.

That being said, I do think there are rulings that the Supreme Court gets wrong, but I will concede that (most of the time) the argument is well made and logical.

As for Palin, I will be honest. I was ingorant of the term blood libel and had to look it up. Unfortunately, there were some pundits and columnists that were linking her to the shooter. I can understand her dismay and disgust. I think she could have made her point in a better way and to use that term was not a good idea. Most of the rest of the media was in the process of backing off of the "hateful rhetoric" and focusing on how disturbed the shooter was.

I may be missing something, but I doubt this was some kind of message to evangelicals. Maybe I would like to believe they are just as ignorant as I am, but I doubt most of them are familiar with that term or are going to get worked up about it. I htink it is just another example of Palin showing how non-media savy she is.

Streak said...

Yeah, I am not sure that all gun control people "ignore" the second amendment. I think many simply believe that it was not intended to arm individuals with no limits. That phrase about a "well-regulated militia" gives at least some measure of rationality to that stance. Not saying that is the end of that discussion, just saying that people who hold that don't necessarily dismiss the second amendment as you suggest.

I had to look up the blood libel thing too. And I agree that a very small number of people were blaming Palin, though most were simply pointing to the tastelessness of that target image. If she was so comfortable with that, why take it down?

But clearly, this shooter was not her fault. But her lashing out the way she did demonstrated just how small she is. But I think she wanted it to be a dog whistle. Just not sure she understood the term and who it would alienate. As a friend of mine noted, if she really wants to be President, she shouldn't alienate people like Lieberman.

leighton said...

In the universe where Sarah Palin is competently advised, this comment would have been designed to appeal to her base while alienating moderates even more, thus guaranteeing (1) her continued popularity with social conservatives while (2) communicating to that same base that she can't be elected, because she and the Tea Party are being persecuted by everyone to the left of Louis XIV. She had no shot at the presidency anyway - someone who can't hack it as a governor has no business even feigning interest in national office. But she needs her base to accept that she can't plausibly run and not call her a coward or sellout for not at least trying.

This is a good strategy for someone who wants to be an attention whore and continue getting lucrative speaking gigs, without having to sink tens of millions into a gamble for office, followed by four years of actual work in the best (worst?) case scenario. I can't figure out if this is actually the plan, though. Canny or incompetent? I can't tell.

steves said...

The "ignore" comment was directed at the ACLU, which is not a gun control group. I just find it somewhat irksome that they take a fairly strong stance on other liberties, but ignore that one. I would agree the any absolutist argument on any provision of the BOR is not supported by logic, caselaw, or even original intent. Therefore, some level of regulation is proper. It is my understanding that "well regulated", in the conext of tht amendment means well-trained, as opposed to having lots of rules and restrictions.

As for Palin, even an ultra conservative like Jonah Goldberd chastised her for using that term. I have heard other speculate that she is either very clever or mistake prone. I haven't seen anything that would lead me to believe she is clver. I am no PR expert, but I would think that a heartfelt sympathy to the victims and their families, combined with ignoring the few people that were accusing her, would have gone over a lot better than what she did.

Streak said...

Leighton, she does seem like a media whore's media whore, so I think it is plausible that she is just interested in keeping that base happy for what it makes her. But the other part of me thinks that she lives in a bubble where she is more popular than Obama or anyone else and could actually win--and should win. I can't think back to anyone who seems as deluded as she does--and as sheltered from reality.

Steve, I understand the point, and can see where you argue about the second amendment. I would simply suggest that reasonable people can read the part about the militia and reach a conclusion that it was not intended to keep people like this shooter with access to guns. As Mark Shields noted the other day, to be a massage therapist in Arizona, you have to have some licensing, but to own a gun, you only appear to be able to fog a mirror.

Back to Palin, I think she is genuinely unintelligent and lacking in curiosity. And worse, I think she is a very shallow and soul-less person. She could have easily said that it was ridiculous to suggest causation with her map, yet then suggest that everyone show more wisdom and discernment in their speech. That could have made her seem like a leader. Instead, she appears to think that she is the victim of this shooting.

steves said...

As Mark Shields noted the other day, to be a massage therapist in Arizona, you have to have some licensing, but to own a gun, you only appear to be able to fog a mirror.

The problem is that one deals with a fundamental liberty and the other deals with an occupation.

I see that Palin has continued her defense. I will say that this time she did a better job, but she still has a long way to go if she ever wants to gain a broader base of supporters. I just don't see her as anything more than a fringe candidate.

Streak said...

I understand Steve, but I am then confused why you even mention the idea that the "well regulated" militia at least means "well trained." Do we require that gun owners be trained at all?

Fundamental rights don't actually mean that they are unchallengeable. Free speech comes with restrictions, and we even allow corporations to further restrict that speech. But if someone dares to suggest that gun ownership comes with at least as much responsibility as driving a car or becoming a massage therapist, we are "ignoring" the second amendment?

I am fine with gun ownership. I am not fine with unlimited weaponry, and I am absolutely not fine with the fact that this nutball was able to legally purchase a gun and huge clip.

steves said...

Some supporters of gun control take the phrase well regulated to mean that it allows for a high degree of "regulations", as opposed to what the phrase really means.

I am not opposed to all restrictions, nor have I ever taken that position here or anywhere else. I take the position that it should be given the same level of scrutiny as other fundamental liberties, such as speech, search and seizure, and religion. In other words, the state bears the burden to show a law is needed to protect a legitimate state interest and is narrowly construed to promote that interest.

Things like driving a car and practicing massage therapy are not fundamental liberties by any stretch of the imagination, so the state is free to regulate them with a high degree of deference.

Streak said...

But I think that is my point. You make an argument, and a good one, that the phrase doesn't mean more regulations. But I don't see that that is clear from the text.

What is more, I am still curious about the idea that these are fundamental rights that the government has to prove a state interest. Free speech comes to mind. Why is it that this "fundamental" right is easily and routinely taken away by corporations? Could a corporation restrict concealed or open carry in a state that made it the law? If so, then why can they, but a public institution like a church or school could not?

And back to guns, and a state interest, do we really have to argue about whether the state has a compelling interest to protect the public from these kinds of public shootings? We do, by the way, assume that the state has a vested interest in making sure that people have a degree of competence with a car--primarily because it can be a deadly weapon in the wrong hands.

And I take your point about being open to restrictions. But the people advocating for gun rights have suggested that any restriction is a violation of this fundamental right. John Ashcroft and the NRA even blocked attempts to keep suspected terrorists from having guns. At what point do we ask if that has gone way too far?

steves said...

But I don't see that that is clear from the text.

I think there are many good examples from the Constitution, such as the use of the word reasonable, where words are open for debate, but this is not one of them. The evidence is pretty clear as to what was meant in the context of the second.

I am still curious about the idea that these are fundamental rights that the government has to prove a state interest.

I am combining two principles. The 14th Amendment, at first, didn't apply the provisions of the BOR to the states. Over the years, most of them were given power to overrule state laws, mostly under the Due Process clause. Instead of saying all of the BOR applies, they have said that they will apply the provisions that deal with fundamental liberties, of which the 2nd (and the right to self-defense) is one.

The second idea deals with the level of scrutiny that courts will give any law that deals with those liberties. At the highest level, strict scrutiny, a law must satisfy 3 tests to survive judicial review. The law must must be:

1. justified by a compelling governmental interest,

2. must be narrowly tailored,

3. and must be done in the least restrictive way.

These provisions must be balanced against the freedom that is being sought to be restricted.

A key factor in this is that it only restricts state action. In other words, private individuals are mostly free to restrict the fundamental rights of other people. I could prohibit members of certain religious groups from speaking on my property. Non-governmental employers can search an employee without any kind of warrant or probable cause and fire you if you don't consent.

There are some exceptions. Discrimination laws prevent an employer from some actions. Businesses aren't allowed to exclude people based on race, and racially exclusive housing covenants are not enforceable. As of now, businesses and any other non-governmental body, can violate a person's 2nd amendment rights. There are a few states that are looking at laws that would prevent an employer from firing you if you have lawfully stored a gun in your car.

The state certainly has an interest in maintaining order and protecting citizens from criminals. Up until relatively recently, all guns laws were presumed to be Constitutional, no matter how restrictive, broad, and limiting. If we apply the highest level of scrutiny, then some of those laws would disappear.

A law that completely bans all handguns would fail the test. The compelling state interest would be satisfied, but a complete ban is too broad and too restrictive. In addition, these types of bans, according to numerous studies, have not been shown to lower violent crime rates. On the other hand, a law that banned violent parolees from owning guns would likely survive scrutiny.

As for laws that mandate some level of training, I am not sure. Some states have them and some do not. I believe that crime rates among the people that lawfully carry are the same no matter what the level of training required. In my experience, most people that carry do seek out some training and those that do not want training will do the bare minimum and ignore what they do learn. That being said, these types of requirements would probably survive any kind of Constitutional challenge.

As for cars, this does not touch on any kind of fundamental freedom and the state is free to pass whatever law they want. I would presume that they mostly do what they do in the name of safety, but politics probably plays a major role.

steves said...
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steves said...
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steves said...

There are some that argue against any gun restriction, but the NRA does not take this position. They argue against some laws, like assault weapons ban (which didn't lower crime and targeted guns only used in less than 1 percent of all crimes), and the so-called gun show loophole (which targeted places where the vast majority of purchases were lawful and not used in crimes). On the other hand, they have supported gun laws, but only the ways that were actually designed to lower crime.

As for the NRA working with Ashcroft to block attempts to keep suspected terrorists from getting guns, I am not exactly sure the circumstances. At one point, there was an attempt to give the BATFE the power to prevent people placed on the no-fly list from getting guns. This would be a major violation of due process, as there is no way to challenge your name being on that list, nor is the process of being placed on that list fair.

steves said...

Oops...had some multiple posts that were the same.

Streak said...

I am not sure why a well-regulated militia is not open for debate. And I am still unsure why when you say that it actually means well-trained, but we have no such requirements for anything regarding gun ownership. Which, btw, was Shields' point. You jump immediately to the "but that isn't a fundamental right" and seem to glide over the training part. If, as is included in the text, as a part of gun freedom is the meaning (as you say is even incontrovertible) that training is a part of that second amendment, why do we have no such requirements? Why do we not talk about that?

Second, I would love to know when the NRA has supported restrictions. I have missed those. As far as I know the maniac in Arizona didn't break a single law getting his guns, nor his huge clip, nor his ammunition. Shield's broader point was really that. That this mentally unbalanced person could have been stopped from a lot of things, but not actually buying a deadly weapon. If that is the meaning of the second amendment, then I have to say I think our Founders fucked up.

I understand the 14th amendment part, btw, as I teach on that. Perhaps my question was poorly worded. It is my experience that we restrict free speech incredibly easily in this country. Not only do we allow any corporation to punish people for their speech, but we have quite casually restricted access to information and even placed people in ironically named "free speech zones." So as a "fundamental" right, it seems to be quite flexible. Yet any attempts to restrict access to guns, which cause all sorts of deaths and injuries each year are treated as a step toward tyranny. And as you note, many of the gun rights people are fine with the restrictions on free speech, but dare ask if they should really have an automatic weapon, and they freak out.

I guess I would like a little more consistency on fundamental rights, and also a recognition that if a mentally deranged person can (and repeatedly as we saw in Virginia) buy incredibly dangerous weapons and go shoot up public places, that something is wrong with how we do this.

I appreciate the conversation, btw.

steves said...

I composed a post, but it somehow got lost. I may try and do it again later.

steves said...

I suppose well regulated is open to debate, but one of the definitions of the word regulate is "to bring into order." If we look at what was being said during the ratification and in other writings, the purpose was to have people that were well trained and could fight if need be, as opposed to a standing army. This is fairly well accepted.

As for the NRA, they supported the passage of the McClure Volkmer Act of 1986 (which renewed the gun control act of 1968), and HR 2640 (sponsored by 2 Democrats), which would broaden the class of people that could be denied in a background check.

How could we have stopped the shooter a head of time? While it does appear that the Sheriff may have pulled some strings to see that this guy was let off, he hadn't done enough to get into any major trouble. He wasn't really restricted from anything. He could buy and sell property, enter into contracts, get married, father a child, and otherwise do most everything the rest of us could.

I worked in the mental health field and involuntarily admitted several people. It is very difficult, as it should be. Do you think we need to make it easier to detain people? How do we decide when mentally ill people should be restricted from doing certain things? Who gets to decide?

I agree that free speech is overly curtailed, though I am reminded by some of my European friends that we permit too much speech in this country, especially so-called hate speech. I also agree that many people are not all that consistent when it comes to fundamental freedoms.

Streak said...

thanks for the NRA examples. I seriously had not heard of them agreeing with any limits.

As for "well regulated" or "well trained," I still fail to see how we have either, in any of the definitions of the word. We have no real requirements for training, and no real effort to fulfill that initial understanding. Do we? I know some states may require training for a concealed weapon, though I am unsure how extensive those are. But I am not aware of any broad effort to make sure that people are actually trained with them, nor any emphasis from gun rights people that that part of the second amendment be adhered to. Am I wrong? I never hear that part from the gun rights people.

As for stopping this guy, I would suggest that, just as with other elements of the constitution, we may be applying an outdated assumption to this "fundamental right" and that may need to change. The constitution has never been set in stone, and has always had a cultural and social and political context into how it is read. Maybe we need to start asking questions about who can get guns. Maybe the answer is, at least, to limit the kinds of mass shooting autos and big clips that allow a nut job like this to do so much damage. Maybe his right to carry a weapon was never even thought of by the founders.

We are certainly in agreement on free speech. I am struck that in both speech and even with guns, it appears that a more fundamental right than that is the right to have a corporation where you define your own rules. Capitalism, it seems, has become the chief fundamental right--which Richard Hofstadter argued years ago in a book he wrote at age 27 (or so), the name of which escapes me. But he argued that economic opportunity was really the only thing Americans held in shared value. Free speech, religion, etc--those could go by the wayside as long as people could make money.

steves said...

The well regulated part of the 2nd has never really been held to be a requirement, so the discussion is probably moot. I don't see it becoming relevant anytime soon, as training requirements would probably be constitutional.

You are correct that most states require training for concealed carry. Besides that, many gun owners seek out their own training and the private training industry is a big enterprise. The non-lobbying part of the NRA spends more money on training than anything else. That has always been one main reasons for existing. It was founded after the civil war by several retired Union generals after they discussed the deplorable marksmanship of many of the recruits.

I don't see bans on high capacity magazines as being something that will do anything. A person with a minimal amount of training can reload very quickly. In addition, these things are so rarely used in crimes. There have always been people restricted from possessing guns. Children, felons (and some misdemeanor conviction), those adjudicated mentally defective, and several other categories.

Streak said...

We may have to agree to disagree on what we should ban, but I see your point.

But I am more confused than ever about the text of the second amendment. Why, if this amendment refers to a fundamental right, is part of the text essentially ignored? The fact that it has not been held to be a requirement doesn't mean that it could not. That absent sufficient training, people could not own firearms.

steves said...

I don't know why the text was the way it was. I suppose it could be interpreted to mean it is the responsibility of the state to make sure the populace is armed and prepared, though I doubt this would go over well. I think the "the right of the People to keep and bear arms shall not be infringed" stands well enough on it's own.

Streak said...

So when the gun rights people tell me that I am ignoring the constitution, the reality is that one can argue that both of us are. After all, the free speech text has no caveat, no justification for it, but the second amendment has a clear reason for being there. But that reason is ignored, and somehow I am criticized for not being someone who respects the constitution?

I know that is not what you are saying, steve. This is not aimed at you. But I am a little annoyed at the people who claim to defend the constitution, and claim that "original intent" is everything, and yet here we have this gigantic phrase that is simply ignored. Because it isn't convenient, perhaps. Or perhaps because the founders never imagined a day when we would idolize guns as much as we do in this society.

This frustrates me, and again, I appreciate your explanations here as a gun rights person and as an attorney.

steves said...

I don't think it is being ignored, I just don't think that an 'individual rights' approach is excluded when you consider the entire phrase. I suppose if someone were to challenge the constitutionality of a training requirement, we might see an analysis, but until then, I am not aware of any caselaw, writing, or any other work that interprets that phrase in that way.

Or perhaps because the founders never imagined a day when we would idolize guns as much as we do in this society.

I don't think there is any way to know. Considering that that weren't any laws at that time restricting what people could own (civilians could own cannons or anything that the military had), I wonder if they would think we had too many restrictions. I also think that most gun owners don't idolize their guns any more than civil libertarians idolize outrageous speech.

I think that saying a person is ignoring the Constitution is a weak argument. These issues are more complicated than that. I think a person advocating for a 'free speech zones' is basically wrong and is not supported by caselaw or the Constitution. I also think someone arguing for a handgun ban is ignoring the Constitution on some level because most of the people arguing this never make a logical argument, using the Constitution, caselaw, or any other valid source.