Balkinization  

Friday, May 04, 2007

The NRA and the presumption of innocence

Sandy Levinson

The New York Times has just posted an AP article that begins as follows:

The National Rifle Association is urging the Bush administration to withdraw its support of a bill that would prohibit suspected terrorists from buying firearms.

Backed by the Justice Department, the measure would give the attorney general the discretion to block gun sales, licenses or permits to terror suspects.

In a letter this week to Attorney General Albert Gonzales, NRA executive director Chris Cox said the bill, offered last week by Sen. Frank Lautenberg D-N.J., ''would allow arbitrary denial of Second Amendment rights based on mere 'suspicions' of a terrorist threat.''

''As many of our friends in law enforcement have rightly pointed out, the word 'suspect' has no legal meaning, particularly when it comes to denying constitutional liberties," Cox wrote.

So assume the following, arguendo: The Second Amendment, correctly interpreted, does protect to some degree an individual right to "keep and bear arms." If, by stipulation, we do have that view of the Second Amendment--and let me emphasize that I'm not interested into getting into a full-fledged debate about the proper meaning of the Amendment--then what should one think of the NRA's position? Consider that many of us who regularly blog on this site believe that suspected terrorists detained by the US are entitled to a panoply of constitutional rights, including (some kind of a) presumption of innocence. Nor, I suspect, would many of us support surveillance by American secret police (whether human or the electronic variety) of everyone "suspected" of terrorist links. If I am correct in this surmise, then what should follow with regard to the NRA's claim, at least if one stipulates that the Second Amendment has at least some teeth (a view now shared by, among others, Laurence Tribe and Jack Balkin), even if not so many as the NRA would be likely to find.

The converse question would be directed at NRA buffs: If the NRA position is indeed correct, with regard to access to firearms, then would they join with the ACLU and other such organizations in supporting the rights of detainees against whom the Administration is willing to offer nothing beyond fiat accusations by way of evidence?

We are, I suspect, going to see some ideological shifts over the next several years, including those suggested by Tom Friedman's in his column in today's NYTimes about the embrace of "greenness" even by conservatives in Australia. One can increasingly divide the American political universe into a struggle between "statist authoritarians" and "state-suspicious libertarians," at least with regard to civil liberties. A central tension, though, involves the regulation of firearms. Thus the editorial page of the New York Times, which has often been quite inspiring in its critique of statist authoritarianism, immediately, and altogether predictably, called for ever-stronger prohibition of firearms following Blacksberg (and it was appalled by the recent decision of the DC Circuit Court striking down the DC firearms law that basically outlawed the private possession of handguns).




Comments:

[From the Times article]: The National Rifle Association is urging the Bush administration to withdraw its support of a bill that would prohibit suspected terrorists from buying firearms.

Backed by the Justice Department, the measure would give the attorney general the discretion to block gun sales, licenses or permits to terror suspects.


I'm convinced that NRA is a nest of nascent terra-ists. They also blocked the attempt, around the time of the OKC bombing, to require plastic coded microchip (non-electrical; a colour-coded layered microscopic flake of plactic) taggants in black powder.

They just don't want to make it easy to track down or impede those that might think it's time for a new Minutemen (a/k/a "militia"). I suspect they think they're going to come out with guns blazing to save the free world if lib'ruls manage to get into power again. See Greenwald's blog for more on the nature of RWAs....

Cheers,
 

At least the Administration is consistent. They want to treat "suspect" gun purchasers the same way they treat "suspect" airline passengers, namely by limiting their rights without any judicial process.

I have a brilliant idea though. Let's put this to a real test. Suppose we force "suspects" to quarter soldiers in their homes in time of peace. That way we can both keep an eye on 'em and discover the true impact of the 3d Amendment.
 

Following the World Trade Center attack, the Bush Administration altered the government's own interpretation of its responsiblity for the list of gun purchases maintained by the ATF...and refused to allow that list to be shared with the FBI.

The government is willing to imprison,kidnap, torture, and render into oblivion those suspected of complicity in 'terrorism'; to wiretap the citizenry; harvest private banking and financial data; conduct warrantless searches; and deny access to the courts.

But it won't transgress the right to bear arms...
 

If we assume arguendo that the 2A guarantees individual rights, then it's clearly an infringement of rights to have a "no buy" list.

Again, if the government has enough evidence to prove the status, then they should charge someone with a crime and give those people a chance to defend themselves against the accusations.

Giving a single member of the cabinet, whether it be the Secretary of Defense or the Attorney-General, the authority to selectively strip basic and/or constitutional rights from someone doesn't seem to be appropriate.

Personally, I would find both an anti-terrorist gun restriction and the detentions more acceptable if the government were required to present evidence for the status and implement a regular means for having the status reviewed by an independent body of some variety. I don't have a problem with the executive having power, as long as it can be held accountable for its actions and the reasons behind them.

The converse question would be directed at NRA buffs: If the NRA position is indeed correct, with regard to access to firearms, then would they join with the ACLU and other such organizations in supporting the rights of detainees against whom the Administration is willing to offer nothing beyond fiat accusations by way of evidence?

It would be nice, wouldn't it? The thing is that people are not required to (and generally do not) act in ways that are consistent across the board. One can see a similar inconsistency in typical positions held by people towards abortion and the death penalty. I venture to guess that the majority of those that oppose the former support the latter, and vice versa.
 

So is the NRA for or against no-fly lists? Are we going to get some kind of empty rhetoric by Bart et. al, that somehow the ability to own a pistol is more essential than the right to travel, or that we're always free to take a slow-boat to China, so they're not "really" restricting our ability to travel?

Are right-wing heads going to explode after this? They've been put into a double-bind here; but that's happened before, and somehow they survive the madness.
 

The position of the NRA is nominally that of a "state-suspicious liberterian." But underlying it is the assumption that clubs are trumps, that everything ultimately comes down to brute force and who has the biggest arsenal. (And that someone had better be me).

Such a view is not inherently statist, but it is inherently authoritarian.
 

I'm a Democrat and an NRA member. I think trees and the environment should have rights and standing ala CELDF. I used to wonder when the african farmers would pick up Kalashnikovs because of what we do to them. That's happened. Now I start to wonder when our children will do that because of what our generation is doing to all future generations re climate change and resource depletion. My idea of gun control? Hitting the target.

Quartering soldiers? It's already done - albeit electronically. Liberals will never learn; liberalism itself rules out the concept of the state - our alleged democracy - as oppressor so they cannot accept that reality and remain liberal.

The NRA a nest of nascent terra-ists! Dream on. Problem is, a terra-ist of any colors is a "suspect terrorist". As is the media thanks to recent Pentagon directives. Anyone who thinks. Maybe anyone who reads a foreign publication. Or an odd book.

Not far from there to "Cut down the tall trees." What is the defense against a military and Blackwater under the control of a kleptocratic state except an unorganized citizen militia? Tune into the RWA thinking and reconsider what and who more cops and more soldiers trained to kill "protect". The RWAs won't be in the citizen militia.

Chips and RealID are the mechanism for implementing the "gated communities" as Petraeus calls them in Baghdad. For your safety, of course. Checkpoint society.

Gonzales, Bush, Ollie North, Elliot Abrahms - they get to declare me a terrorist. It's going to happen sooner or later - and not because of firearms - but because I won't eat food with melamine, breath air with PCBs, garden in lead polluted soil (from the new eco-incinerators), or buy my water from Nestles, etc.... Put me on the list.
 

Professor Levinson:

The converse question would be directed at NRA buffs: If the NRA position is indeed correct, with regard to access to firearms, then would they join with the ACLU and other such organizations in supporting the rights of detainees against whom the Administration is willing to offer nothing beyond fiat accusations by way of evidence?

Tell me again exactly how is the position of the NRA and the ACLU are the same concerning alien unlawful enemy combatants detained at Gitmo?

The NRA is talking about the Second Amendment rights of citizens. I dare say that they are not claiming that alien unlawful enemy combatants enjoy Second Amendment or any other constitutional rights. Feel free to ask them.

Nice try, though.
 

I dare say that they are not claiming that alien unlawful enemy combatants enjoy Second Amendment or any other constitutional rights.

Correct me if I'm wrong, but I thought that AUEC was nearly synonymous with "suspected terrorist." That is the point of the bill after all, right?

Put another way, if an enemy combatant is not an alien, should he have second amendment rights? Would the NRA fight to make sure Padilla can buy a gun?
 

Perhaps we won't need habeus at gitmo if we give all the prisoners guns. Guns with armor piercing bullets. Hollow tip shells. And body armor. The kind we deny to our brave, brave troops.
 

if terrorists cant own guns, why then, the terrorists have won!
 

"If the NRA position is indeed correct, with regard to access to firearms, then would they join with the ACLU and other such organizations in supporting the rights of detainees against whom the Administration is willing to offer nothing beyond fiat accusations by way of evidence? "

Remember, it's the ACLU which claims, falsely, to be defending all civil liberties. The NRA quite frankly and up front will tell you they're only defending one, and are not interested in getting into other issues which might divide the membership. So the only right of detainees the NRA is obligated to defend is the right to keep and bear arms, if they happen to be citizens.

However, my experience at firearms boards suggests that the idea that you can detain somebody indefinately without trial is not terribly popular among politically active gun owners. We are, after all, used to thinking of the government as, at least potentially, our enemy, and have little trust for it, nor want it to have tools it would turn against us.
 

Trackback from Oblio's Cap: "...The presumption of innocence is deemed alienable from the right to bear arms."
 

PMS_Chicago said...

Bart: I dare say that they are not claiming that alien unlawful enemy combatants enjoy Second Amendment or any other constitutional rights.

Put another way, if an enemy combatant is not an alien, should he have second amendment rights?


Citizens enjoy Second Amendment rights until there is probable cause to detain them as an enemy combatant. Suspicion should not be enough.

Would the NRA fight to make sure Padilla can buy a gun?

Under the circumstances above, yes.

Folks, I make a fundamental distinction between citizens and alien enemy combatants on these issues. Citizens have constitutional rights, alien enemy combatants never had constitutional rights should not in the future. As the Constitution sets forth, Congress sets rules for Captures and in the absence of congressional action, the President.
 

Brett,

The "about the ACLU" page says that the ACLU is dedicated to preserving the following rights: 1st amendment, equal protection, due process, and privacy.

Apparently, you erred when you stated that they claim, "falsely", to protect all your rights.

As for the NRA, the sad fact is that gun ownership is increasingly of no use in protecting us, either as a society or individually, from the real threats we face. At some point, perhaps soon, perhaps not, but eventually, gun ownership will become a moot point, and the freedom of the people to have internet connection will be more to the point.

Meanwhile, we can only stand and watch with amusement and/or sorrow, as the NRA continues to beat the dead carcase of their only horse.

It is as insane and, ultimately, self-defeating, to attempt to defend one right at the expense of all others as it is to attempt to defend all rights. Just for one example, the right to practice one's religion often entails the right not to receive a real education.

It seems to me that the ACLU is more sensible than the NRA in this regard, in keeping with the observed principle that the less rational a political organization is, the more political power it wields.
 

Bart--
I understand that you make the distinction you mention. What I am curious about is how, exactly, you defend it. Not the distinction, per se, but rather what you seem to think the distinction entails. I would be interested in your answer to these questions:
1. What, exactly, is the basis for your belief that the US is legally justified in snatching foreign nationals outside the territorial US AND at the same time providing them with essentially none of the rights of aliens in the US? (Please do not include references to Afghani or Iraqi nationals in your answer.)
2. Does this argument apply to, say China or Russia? In other words, would it be wrong for Russian agents to come to the US and snatch US citizens they deemed enemy combatants?
I will make it easier: please don't use the US constitution as the justification for distinguishing between countries in question 2.
3. Is it your position that probable cause (as that term is defined in the US) is sufficient to declare a US citizen an enemy combatant?
 

sparky said...

I would be interested in your answer to these questions:

1. What, exactly, is the basis for your belief that the US is legally justified in snatching foreign nationals outside the territorial US AND at the same time providing them with essentially none of the rights of aliens in the US? (Please do not include references to Afghani or Iraqi nationals in your answer.)


If the target is a member of an organization warring against the United States or its allies, then he or she is fair game to be captured as an enemy combatant.

I also do not make the geographical distinction you imply in this question. Alien enemy combatants do not gain additional rights by managing to invade the United States. This is why I disagree with the DC Circuit's geographical distinction for habeas corpus and would have held that there is a bright line rule under which alien enemy combatants do not enjoy constitutional rights including habeas corpus unless we bring them within our civilian criminal justice system for trial.

2. Does this argument apply to, say China or Russia? In other words, would it be wrong for Russian agents to come to the US and snatch US citizens they deemed enemy combatants?

If Russia was at war with the United States or a terrorist organization being sheltered by the United States, then they most certainly are entitled to come into the United States to capture enemy combatants. I sure as hell would insist that the US has this right in reverse if Russia was sheltering bin Laden.

3. Is it your position that probable cause (as that term is defined in the US) is sufficient to declare a US citizen an enemy combatant?

This presents an interesting question of whether a US citizen who is acting as an enemy combatant against the United States should be treated as a combatant or a criminal.

I do not see a problem with this distinction at the time of detention. Probable cause, which is defined as a reasonable belief, is necessary to arrest a criminal suspect and would be a reasonable standard for detaining an enemy combatant.

The distinction gets tested for the first time when the government attempts to detain the enemy combatant for the duration of the conflict. As a criminal defendant, the capture has the right to a speedy trial. However, as an enemy combatant, the capture could be held for the duration of the conflict. We have treated citizen enemy combatants both ways in our history.
 

Charles, so they've finally stopped claiming to defend all civil liberties? That's a new development; If true, perhaps they can now stop denying the existance of the liberties they're not willing to defend.
 

Brett,

I have no information as to the history of the rights they've chosen to defend, so I cannot answer your question. Wikipedia has some historical information, but, oddly, Conservapedia is silent on the ACLU.

They also say "We work also to extend rights to segments of our population that have traditionally been denied their rights, including Native Americans and other people of color; lesbians, gay men, bisexuals and transgendered people; women; mental-health patients; prisoners; people with disabilities; and the poor."

So if you are a Native American bisexual mental-health patient, or if you are a transgender nazi quadrapligic, perhaps they'd be willing to help you with whatever rights you feel you are being deprived of.

I do not speak for them, although, now that I've done this research for you, I'm going to send them some money.
 

I apologize for following up my own comment, but I happened to glance again at the Conservapedia page before closing it, and I found, down at the bottom, an entry on the ACLU. Oddly, the ACLU entry wasn't the first hit on a search for "ACLU", but no doubt the conservatives could give a reason why.
 

Bart:
If Russia was at war with the United States or a terrorist organization being sheltered by the United States, then they most certainly are entitled to come into the United States to capture enemy combatants

Bart, are you seriously suggesting that you wouldn't consider that an act of war? That if Castro sent a team into the US to assassinate Posada, you'd be cool with that? Or, are you simply suggesting that if Cuba can get away with that, they're "justified" by the very fact that they can get away with it? The latter isn't "entitlement" -- it is a simple fact of power.

This is what amazes me about the right - a kind of cynicism that verges on the sophomoric. A system like either case is a system of international anarchy, without the slightest softening by a nod to natural human rights.

Of course, everyone realizes that the international system has elements of anarchy. But then so does any system, since they all depend to some extent on might make right. But to turn that into a "principle" without some form of legitimation through law and ritual is to positively justify relentless war, rather than simply recognizing the reality of it.

Even Lenin gave more of a nod toward natural human rights than you do. I find it hard to believe you're serious - that you are incapable of differentiation between the subjunctive and the indicative, and unable of recognizing the importance of legal "fictions" to avoid the naked use of power (and it's recognition).
 

RandomSequence said...

Bart: If Russia was at war with the United States or a terrorist organization being sheltered by the United States, then they most certainly are entitled to come into the United States to capture enemy combatants

Bart, are you seriously suggesting that you wouldn't consider that an act of war?


If a nation supports and shelters a terrorist group warring on the United States, the sheltering nation is committing an act of war against the US. See Taliban ruled Afghanistan. Of course, a US retaliatory attack on the sheltering nation and/or the terrorist group would also be an act of war. However, this is a act of war in self defense.

This is what amazes me about the right - a kind of cynicism that verges on the sophomoric. A system like either case is a system of international anarchy, without the slightest softening by a nod to natural human rights.

Self defense is the most basic of natural human rights, not a call for anarchy.
 

So, Bart, the US is committing an act of war against Cuba by sheltering Posada? If so, then doesn't the international community have a responsibility to ally themselves against us as aggressors? Really, this path leads to madness - it only makes sense if things like "act of war" are purely operational terms in the process of comparing raw power. That's not a legal system - that's just political science.

Look Bart, no one is dismissing the right to self-defense. The question is one of how exigent the conditions must be to justify such self-defense. If there is no international standard for that, but simply a recognition that some threat exists, well, self-defense then is anarchy - simply the law of the jungle. If there is no symmetry between different societies, at least theoretically, once again, in practice you're not describing some "moral right to self-defense", but simply describing existing power differentials.
 

"So, Bart, the US is committing an act of war against Cuba by sheltering Posada? If so, then doesn't the international community have a responsibility to ally themselves against us as aggressors?"

Yes, it's an act of war, just as maintaining control over part of Cuba's territory by force of arms is. The international community doesn't ally themselves with Cuba for several reasons, the foremost of which is that the size of your military is 9/10ths of international 'law'.
 

random sequence:

Posada is one man alleged to have committed one crime. I do not see the analogy with al Qeada, which is an organization which has been warring against the United States for well over a decade.

The question is one of how exigent the conditions must be to justify such self-defense. If there is no international standard for that, but simply a recognition that some threat exists, well, self-defense then is anarchy - simply the law of the jungle.

We will have to agree to disagree.

The "law of the jungle" is usually another phrase for "might makes right." I am not arguing that the US can do anything it damn well pleases because it has the strongest military.

On the other hand, self defense is the most basic of natural rights. When a nation state or a non state military is warring on you on an ongoing basis, you have a right of self defense to engage them.

I agree that there is no neat rule for determining when a non state military has gone to war against your country, but that does not mean that your government cannot make a rational decision on the subject on a case by case basis.
 

Bart/Dirty Harry,

Say the US granted withholding of removal under the Torture Convention to a Chechen political leader whom the Russians claimed was a terrorist. Would you really support Russia's "right" to send military forces into US territory to capture this person?
 

Bart: Posada is one man alleged to have committed one crime. I do not see the analogy with al Qeada, which is an organization which has been warring against the United States for well over a decade.

You obviously haven't read up on Posada. I suggest you check out this site before asserting that Posada acted alone.

From a declassified FBI document:
Carrera stated that as far as he was concerned this bombing and the resulting deaths, were fully justified because CORU was "at war" with the Fidel Castro Regime. Carrera cited the fact that a woman aboard the Cuban airliner was a relative of one of the CORU members and that this was regrettable but that such personal tragedies were not in any way going to stop CORU from continuing its activities against the Cuban government.

Yeah, that doesn't sound like al-Qaeda's logic at all.
 

PMS_Chicago:

Put another way, if an enemy combatant is not an alien, should he have second amendment rights? Would the NRA fight to make sure Padilla can buy a gun?

Jose Padilla is an honourary "alien unlawful enemy combatant". Like Hamdi, he's relenquished his U.S. citizenship by implication, and by his admissions while in the brig, he's established the "unlawfulness" and the "enemy combatant" status. There's a new game in town. Clear now?

Cheers,
 

"Bart" DePalma:

Alien enemy combatants do not gain additional rights by managing to invade the United States.

This is contrary to the current view that the issue of territoriality is dispositive in Guantanamo cases. I think everyone agrees (with the exception of the "Bartster" here) that Constitutional protections (including Contitutional habeas review) apply to all persons within the United States, and this is as it should be. People may waive their Constitutional rights, but they cannot be taken away.

I defy "Bart" to produce any court case that says that aliens (of any kind) are not due Constitutional protections while in the United States (and preemptorily, I'd note that Ex Parte Quirin said no such thing, and I've disposed of "Bart"'s claims to the contrary elsewhere).

Given this, if "Bart" chooses to argue that "enemy combatants do not gain additional rights by managing to invade the United States", he'd have to be arguing that their rights here are the same as those they enjoy in Guantanamo.

Cheers,
 

Ahhhh, "moral relativism":

["Bart" DePalma]: Posada is one man alleged to have committed one crime. I do not see the analogy with al Qeada, which is an organization which has been warring against the United States for well over a decade.

"[O]ne crime". The bombing of a civilian jetliner with over a hundred innocents on board. Mst people call that "terrorism", but not "Bart", to whom one man's Terra-ist is another man's "freedom fighter", in the grand Sir Raygun tradition. Good to see that "Bart" achnowledges that criminal courts are adequate to deal with terrorists, but the problem with Posada is not just that we don't just lock him up in Gitmo without charges, but that we don't even allow for criminal prosecution (under the curious and ironic notion that we won't send people to countries where they might be tortured....).

And then there is the small item that Posada didn't just blow up one airliner, but was part and parcel of an organisation that has been planning and committing incursiona, attacks on Cuba (and its overthrow) for nigh on half a century....

"Bart"'s hypocrisy is palpable. Nay, it's malignant.

Cheers,
 

adam said...

Bart/Dirty Harry: Say the US granted withholding of removal under the Torture Convention to a Chechen political leader whom the Russians claimed was a terrorist. Would you really support Russia's "right" to send military forces into US territory to capture this person?

Yes. This Chechen group has been warring against Russia for years. What is good for the goose is good for the gander. Indeed, apart from some State Department statement "deploring" the violation of our sovereignty, I doubt the US government would cry any tears if the Russians snatched him.
 

PMS_Chicago said...

Bart: Posada is one man alleged to have committed one crime. I do not see the analogy with al Qeada, which is an organization which has been warring against the United States for well over a decade.

Carrera stated that as far as he was concerned this bombing and the resulting deaths, were fully justified because CORU was "at war" with the Fidel Castro Regime.


I do not take CORU's delusions of grandeur very seriously nor do I see the comparison between one attack by CORU and dozens by al Qaeda.

I was asked where I would draw the line between a criminal act and a war. It is a judgment call based on quantity, quality and duration. Under these criteria, al Qaeda is engaging in a genuine war against the US (as are the Chechens against Russia), while CORU engaged in a single criminal act against Cuba.
 

Bart says: Yes. This Chechen group has been warring against Russia for years. What is good for the goose is good for the gander.

Well, at least you are (hypothetically) consistent...
 

Post a Comment

Home