jackbalkin at yahoo.com
bruce.ackerman at yale.edu
ian.ayres at yale.edu
corey_brettschneider at brown.edu
mary.l.dudziak at emory.edu
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
msl46 at law.georgetown.edu
slevinson at law.utexas.edu
david.luban at gmail.com
gmaglioc at iupui.edu
mazzonej at illinois.edu
lmcclain at bu.edu
mikhail at law.georgetown.edu
pasquale.frank at gmail.com
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
dpearlst at yu.edu
rick.pildes at nyu.edu
dpozen at law.columbia.edu
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
nelson.tebbe at brooklaw.edu
mtushnet at law.harvard.edu
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Will the US survive the 2016 election? (II)
Monday, June 13, 2016
Will the US survive the 2016 election? (II)
Having just returned from a trip abroad that included time in Portugal, the UK, and Israel, my thoughts have very much been directed to the decline of empires. June 23, of course, will see the vote on Brixet, which has the potential to doom both the United Kingdom (since Scotland would almost certainly exit from the UK should the UK exit from Europe) and the European project that took hold following the devastation of World War II (itself a product of the lunacy of World War I). My wife and I went back to the British Museum, where my favorite exhibit continues to be the monumental Assyrian sculpture of a thoroughly dead empire, even if more visitors are undoubtedly drawn to the Elgin Marbles and its memorialization of the defunct Athenian polity. The entire Middle East, of course, is a continuing saga of the rise and fall of empires (including the Sykes-Picot division of the World War I spoils that is becoming unravelled in every way). So, obviously, the question is whether the American empire is "exceptional," destined to remain in full vigor even as the general story is one of decline and fall. Mark Tushnet has offered a melancholy posting about the survival of constitutionalism in the US should Donald Trump--accurately described by Meg Whitman as a would-be Mussolini (though without Mussolini's rootedness in genuine ideological debate).
"Will the US survive the 2016 election?"
Yes. Most people haven't argued themselves into the corner you have gotten yourself into, where anybody but your favored candidate is an illegitimate monster. Hillary Clinton is undoubtedly a multiple felon, but if she wins the election without too many stolen votes, the Right will accept that she's legitimately President.
Until they can impeach her, but that's a part of the formal system, not revolutionary.
I will add that the US surviving intact for another 10-12 years, on the other hand, is nothing I'd care to bet on. But, 2016? We're not going to part ways that quickly.
Your analogy to the German Weimar era is not that strained.
Failed progressive government operating by decree cripples the economy. Check.
Communist gangs roaming the streets intimidating the citizenry. Occupy, illegal immigrant groups and Bern supporters are a pale version of their German predecessors.
A fascist scapegoating some unpopular group for economic suffering and offering himself as a strongman who will return the nation to former glory. Check without the brown shirts.
The Land of the Free is fast becoming a memory.
But, it's funny: The 'fascist' is the one the brownshirts are attacking, not the one sending them out. Which suggests to me that what we're looking at here isn't properly identified as "fascism", or if fascism is capable of being a peaceful, non-violent political philosophy, we're going to have to rethink some things.
The best bet for preventing the US from breaking up would be for the central government to start taking federalism seriously again, and devolve to the states all powers and subjects that don't absolutely have to be centralized. So that peaceful coexistence between regions with different cultures and desires could be feasible again.
But this doesn't seem very likely. Tushnet's columns here are particularly discouraging. He's proposing that, as soon as the left has even a narrow majority at the federal level, it go on a rampage, imposing it's views on everything, reversing any existing precedents favorable to the right, and, his analogy, not mine, treating any parts of the country that complain like the victorious Union treated the South after the Civil war.
A better recipe for driving secessionist movements into major league power I could not formulate if I tried.
Brett: if fascism is capable of being a peaceful, non-violent political philosophy, we're going to have to rethink some things.
Trump is not suggesting peacefully and non-violently dealing with the foreigners he is blaming for the nation's woes. I only noted that the Donald does not field a personal militia as did the Adolph.
Even worse than our current choice of major party candidates for president are the exceedingly dangerous calls by Democrats to suspend the Second Amendment for citizens whom the government merely suspects of supporting terrorism.
Given that the Obama IRS already denied tax exempt status to Tea Party, libertarian and conservative groups and the Obama law enforcement bureaucracy already equates these groups with terrorists, the road to adding all of us to a terrorist watch list in an attempt to disarm us is already well-paved.
Once that is accomplished, what other constitutionally guaranteed liberties do the Democrats propose to suspend for "terrorist suspects?"
“Just because you're paranoid doesn't mean they aren't after you.” - Joseph Heller.
"what other constitutionally guaranteed liberties do the Democrats propose to suspend for "terrorist suspects?""
Just the ones that allow someone access to the means to kill dozens of people in a few minutes.
Bart, are you against the rule preventing those on the terrorist list from flying? If it's justified for that I don't see the logic in it not being justified for gun purchases.
"Obama law enforcement bureaucracy already equates these groups with terrorists"
What a sloppily broad statement.
It's interesting that so many conservatives, who often complain about left wing intellectuals that 'run down' the US, think so little of the US. Trump's 'Make America Great Again' should be countered with 'This Country is Already Great, Quite Probably the Greatest.' We're the sole super power in the world, we're an economic powerhouse compared to other nations, our society is more free and open in more ways than anyplace I can think of. This nation was born with unique promise of all people created equal, it failed to live up to that promise for a tragically long time, but for the most part we've redressed that; blacks, women, homosexuals, and other groups that were denied basic civil and political rights now exercise them essentially equally now. This is a great time to be alive in a great country. Trump is buffoonish, he'd be an embarrassment and quite probably a bad President, but we've survived worse, and look at Italy, they made it through Berlusconni. We'll be alright either way.
"evolve to the states all powers and subjects that don't absolutely have to be centralized"
Like gun control and affirmative action policy?
"Bart, are you against the rule preventing those on the terrorist list from flying?"
Well, I certainly am. It's not a terrorist list. It's a watch list. The process for ending up on it is opaque, and so far as we know arbitrary, because we don't know what it is. And doesn't give you notice, you just show up at the airport one day, and they won't let you board.
The process for getting off the list is, if anything, worse. Nothing resembling due process, you can appeal, but it's pretty much up to their opaque process again for deciding the appeal.
If we accept this sort of thing as legitimate, it could be expanded to make people the government doesn't like for this reason or that, but can't be bothered to try for any actual crime, into second class citizens in their own country.
"Like gun control and affirmative action policy?"
Both violations of explicit constitutional rights, which means that if they're not going to be centralized, you either need an amendment, or the rule of law is out the window.
"Well, I certainly am."
I think that's consistent.
"Both violations of explicit constitutional rights, which means that if they're not going to be centralized, you either need an amendment, or the rule of law is out the window."
Apart from the constitutional issue, would you think those two issues should be devolved to the states?
BD: "what other constitutionally guaranteed liberties do the Democrats propose to suspend for "terrorist suspects?""
Mr. M: Just the ones that allow someone access to the means to kill dozens of people in a few minutes.
OK, that would include suspending their First Amendment rights to communicate with others to prevent them from coordinating a terror attack or recruiting other terrorists and suspending the Fourth Amendment to allow warrantless monitoring of such communications and warrantless searches of their homes and places of business to ensure they do not possess weapons, supplies or any other property which could conceivably be used in a terrorist attack.
Bart, are you against the rule preventing those on the terrorist list from flying?
If they are US citizens enjoying a right to travel under the Constitution, I most certainly do. If you have evidence that the person is a terrorist, arrest and try him or her in a court of law for an actual crime. That suspension of the right to travel freely was the foot in the door to the current proposals to suspend the Second Amendment.
BD: "Obama law enforcement bureaucracy already equates these groups with terrorists"
Mr. W: What a sloppily broad statement.
The "terrorist watch list" is a sloppily broad and error filled list of names.
In any case, here are some of the products of the law enforcement bureaucracy targeting those of us who are veterans, believe in constitutionally limited government, protecting the unborn and others who advocate actually enforcing the immigration laws as potential terrorists, along with some subsequent spin denying what they published. Now DHS lumps us all in the catch-all phrase "sovereign citizen movement" to avoid the political blowback they experienced in 2009 when they were more honestly detailed.
Ironically, the two great sculptures at the museum that were mentioned are relics of the pillaging done by the defunct British empire. The Parthenon Marbles (misnamed the "Elgin" Marbles) were stolen, not obtained legally. I'd be surprised if the same isn't true for the Assyrian sculpture.
"Apart from the constitutional issue, would you think those two issues should be devolved to the states?"
I have my own opinion about how they should be resolved, but it the resolution weren't already dictated by the Constitution, yes. The US was intended to provide a free trade zone with mutual defense, and that's about it.
"The US was intended to provide a free trade zone with mutual defense, and that's about it."
If that was actually true, then that's how it would be today. There'd have been no mechaniwm for amendments. No ability for the US Constitution to evolve. But, that's not the constitution the framers wrote, sadly for the originalists.
Will the country survive this election? I believe it will. Republicans love to claim Hillary Clinton is a multiple felon - with no proof that has stood up in court - but hey it's sounds good. Democrats claim Trump is a fascist. He probably would be one if he were ever elected. I have faith that a majority of citizens will decide not to test that theory.
Not a big fan of these blog posts but anyways something somewhat comparable:
Adam Winkler had a good op-ed on the terrorist watch list matter.
The exact contours of the RKBA as a matter of current law is an open question when it comes to buying guns and other public matters though as I noted in a past comment, I think there is clearly some right beyond the home here. The main dissent in Heller critiqued the majority opinion in part by noting that other constitutional rights were not treated the same way, including specific limits on "the people's" rights.
But, rights are not fungible here. Different rights have different contours as seen by the right to vote, the right that protects all rights to reference a 19th Century opinion. This includes firearms. Minors have a broad right to self-expression though somewhat limited such as for purchase of pornography. But, they have a more restrained right in respect to guns. Various categories of people who have the right to speak, associate, travel etc. have special limits on the right to guns. And, Heller upholds this principle.
And, we aren't even talking about this. We are talking about a right to buy guns. Travel is a fundamental right, which as the 9A tells us do not only include those expressly enumerated. I don't think the right to a gun for self-defense (or to hunt, collect, etc.) is expressly listed either myself; the 2A has a specific purpose. But, regardless, there might be a limited process, if due process is followed, to regulate here.
If a watch list policy is in place, it should follow due process of law. An independent magistrate should authorize it and a streamlined process should be in place for the person to challenge it when necessary. Likewise, any policy would be specifically convincing if it only applied to certain types of weapons. A single shot handgun possessed for self-defense in the home, e.g., would to me be different. Also, again, from what I can tell, the barrier here is to buy a gun. It isn't even clear the contours of this right now.
I respect those who are concerned evenhandedly about due process rights here though each right is not the same here. Wrongful detention, e.g., is not quite the same thing to buying guns, which already are allowed to be kept from certain categories of people who are not allowed (except if they are dangerous to others or themselves) detained.
One more thing. Concern about ISIS or "terrorists" here is somewhat short-sighted. Haters will hate and find an avenue for their hate. Properly handling this issue needs to be looked at in a big picture sort of way even if the proposal here works as a small part of the solution. I'm wary about focusing on terrorists in a fashion even enabling Trumpism.
TW: Republicans love to claim Hillary Clinton is a multiple felon - with no proof that has stood up in court - but hey it's sounds good.
I always love it when partisans supporting a corrupt government which refuses to prosecute its own makes these arguments.
"If a watch list policy is in place, it should follow due process of law. An independent magistrate should authorize it and a streamlined process should be in place for the person to challenge it when necessary."
Funny how the right to a trial by a jury of your peers just went away.
Traditionally, you lose your rights on a felony conviction. Any process which can result in deprivation of rights should require comparable process.
After a hearing and upon a finding of probable cause or a comparable standard, a judge can enter a temporary restraining order or injuction suspending a defendant's rights pending trial.
That is light years of due process ahead of the current bureaucractic star chamber govening the terrorist watch list.
"Traditionally, you lose your rights on a felony conviction."
Tradition is something that people selectively care about, including regarding campaign finance regulation and handling Supreme Court nominations.
Anyway, I'm concerned ultimately about the basic correctness of the situation. Either way, rights could be limited in various respects without trial by jury. And, misdemeanor convictions also result in limits of rights too, including travel, association and so forth. Finally, merely look at the 4A which sets up a process -- not involving juries -- to limit "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
I'm restrained here by the reach of the 2A being less clear under current law, but "a trial by jury" is not required now to be deemed mentally unfit (state and federal law here varies) across the board to my knowledge. The basic right not to be detained, therefore, can be limited without "trial by jury" which is specifically given as a matter criminal law and certain civil matters. Travel, e.g., is a fundamental right. It is limited in certain respects without trial by jury being required.
Anyway, open to consistent concern here, but the proper contours of the right here is just unclear especially if narrowly drawn in the way I said in the rest of the quoted paragraph.
treating any parts of the country that complain like the victorious Union treated the South after the Civil war.
# posted by Blogger Brett : 6:32 AM
The Union was actually quite merciful at the end of the Civil War. Most likely that won't be the case the next time. Well, assuming it doesn't just say good riddance, which is a distinct possibility.
BB: The Union was actually quite merciful at the end of the Civil War.
Learn some damned history.
The Union laid waste to the areas of the South their armies crossed
Most likely that won't be the case the next time.
Who from the Northeast and Left Coast is going to fight to maintain the union?
The vast majority of our active military is manned by Republicans.
In the event of a second civil war, you disarmed Democrats better pray the military does not treat you like Sherman treated Georgia.
The Republicans are in control of the House and the Senate. After endless committee investigations into Hillary Clinton on all fronts, they haven't brought forth a single charge of any kind. Why is that? Are they part of our corrupt government?
And, regarding "what the US was intended to be", you didn't respond. I'll assume you agree with me.
TW: The Republicans are in control of the House and the Senate. After endless committee investigations into Hillary Clinton on all fronts, they haven't brought forth a single charge of any kind.
What kind of "charge" did you have in mind?
FBI and Justice have not made their evidence available to Congress.
Even if they were provided with the evidence, Congress has no power to criminally prosecute Clinton.
Clinton is no longer in office so the House cannot impeach her.
Learn some damned history.
The Union laid waste to the areas of the South their armies crossed
# posted by Blogger Bart DePalma : 7:16 PM
Dumbfuck, that was DURING the war. At the END of the war the Union was relatively merciful.
In the event of a second civil war, you disarmed Democrats better pray the military does not treat you like Sherman treated Georgia.
# posted by Blogger Bart DePalma : 7:16 PM
Yeah, I noticed how the military jumped in to help your fellow morons in Oregon. Oh, wait, the military did nothing while the FBI arrested them and shot the only idiot that resisted. Good luck with your "revolution". I'm looking forward to it.
You can call it "merciful" all you like, they treated the South the way you can only treat defeated enemies who've exhausted the will and means to fight. And this is how Tushnet proposes treating conservatives in the event of even a narrow, fleeting federal majority.
You don't get to treat your political foes like the defeated side in a civil war, unless you WANT a civil war.
You can call it "merciful" all you like, they treated the South the way you can only treat defeated enemies who've exhausted the will and means to fight.
# posted by Blogger Brett : 5:32 AM
They did nothing of the sort. They let everyone go home. They had every justification to execute all the senior officers and let the enlisted men rot in jail for a few years. That is how traitors are usually treated. The union displayed remarkable mercy.
In any case, I suspect a lot of people would just say good riddance if the South decided to secede now. We'll throw in Texas for free.
Civil Wars generally do not involve secession. More often, they resolve domestic political issues through military means when the government no longer implements the will of the rebelling part of the population.
Civil Wars generally do not involve secession. More often, they resolve domestic political issues through military means when the government no longer implements the will of the rebelling part of the population.
# posted by Blogger Bart DePalma : 9:00 AM
So the rebelling part of the population will basically be you and Brett. I hope they televise your executions.
Yes, that's what I'm saying: It was merciful only by the standards of how you treat utterly defeated enemy combatants. Not how you treat momentary minorities in a political contest.
Because it was the sort of treatment you can only get away with in dealing with people who've already been in a war with you, and been utterly defeated. As a standard for treating your political opponents, Reconstruction would be a good way to provoke a real, shooting, civil war.
Either Tushnet has no conception of what went on during Reconstruction, or he's got no sense of what it would be possible to get away with in a democracy that hoped to not dissolve into open warfare.
Either Tushnet has no conception of what went on during Reconstruction
# posted by Blogger Brett : 9:08 AM
Black people were treated like they were still slaves? Is that the part you're worried about?
Congress needs to consider calling for volunteers from the unorganized militia to serve as deputies of the US Marshals to stop terrorist and other active shooter situations. US Marshals would be expanded to conduct background checks of, arm and train these new deputies, who would then be allowed to concealed carry anywhere. Their authority would be limited to the power to use deadly force to protect themselves and others in active shooter situations. They would be provided with a badge for identification and local law enforcement would be provided a list of deputies. To maintain their status, they would be provided refresher training every so often. The goal should be to train several million such deputies over the next decade.
In addition, Congress needs to enact a national concealed carry law for those bearing their own firearms with a lesser level of required training. These citizens would have no law enforcement authority apart from that granted by state law to the citizenry at large. Government buildings and private property owners could bar concealed carry on their property. However, concealed carry would be allowed in open common areas.
Finally, and this has already started, Congress should be training local law enforcement how to deal faster and proactively with active shooter situations. Instead of standing back to allow the situation to develop, the police need to be trained in quick reaction and entry.
It is long past time we started treating terrorism as a war and put ourselves on a wartime footing.
Since even BP flagged it, I'll just assume you grant your remarks on guns were exaggerated & aided by only responding to a kernel of my remarks.
The best bet for preventing the US from breaking up would be for the central government to start taking federalism seriously again, and devolve to the states all powers and subjects that don't absolutely have to be centralized.
The Constitution is a thing. Federalism in this country at least since 1787 did not involve "absolutely" (in the view of a High Jeffersonian) devolving powers to the states. The people of this country, including chunks of the former Confederacy, rejected that rule. This included the New Deal coalition, which later broke up over racial matters. Some strict rule in fact was seen since 1787 as in fact counterproductive to that end.
So that peaceful coexistence between regions with different cultures and desires could be feasible again.
It's feasible now. We aren't at war or something even if there is some minority -- as there usual is -- unhappy about things. The fact the Republican Party is such a mess that Trump is the best choice in the opinion of a plurality of primary/caucus voters doesn't change this. Finally, Trump's policies doesn't follow the principle proposed. It is a view of a small minority, suggesting why you are going along with the conservatives partially at sufferance -- they are at best the lesser evil to you, the central governmental powers they support in various cases things you accept or don't show much concern about.
He's proposing that, as soon as the left has even a narrow majority at the federal level, it go on a rampage, imposing it's views on everything, reversing any existing precedents favorable to the right, and, his analogy, not mine, treating any parts of the country that complain like the victorious Union treated the South after the Civil war.
I think his tone is tad overblown myself but again Brett isn't exactly a great prophet. It would not entail "everything" but anyways if a person wants a more moderate approach, Merrick Garland would be an ideal compromise choice given what we know about him & would be more short term than various other options.
If Garland and Breyer (who, e.g., supported blocking mandatory Medicaid expansion & might have been behind the contraceptives compromise) are the swing justices along with Kennedy, won't be much "imposing" of "everything." Republicans are blocking him though which might lead some to respond viscerally.
As to the Reconstruction, which might touch home for someone in South Carolina, yes, it was rather benign as wars go. It got more strict after a few years when the South showed evidence of not treating freemen very well. Even then, within a few years things went back to normal. So, maybe that isn't a great policy in the long run either.
Bart, I clicked on your CNN and edu link, where I saw no evidence supporting your generalization that the Obama law enforcement bureaucracy equates 'Tea Party, libertarian and conservative groups' with terrorists. There was a discussion of two reports, one the results of a survey of law enforcement officials around the country naming right wing domestic terrorists as a threat and noting actual crimes committed by such groups and another discussing right wing militia type groups recruiting veterans. These do not support your general statement, if anything they contradict it.
"OK, that would include suspending their First Amendment rights to communicate with others to prevent them from coordinating a terror attack or recruiting other terrorists and suspending the Fourth Amendment to allow warrantless monitoring of such communications and warrantless searches of their homes and places of business to ensure they do not possess weapons, supplies or any other property which could conceivably be used in a terrorist attack."
No, that would not include them, as they are indirectly related, at best, to the actual harm. The speech that influences someone to take up a gun and shoot others is twice removed from the act itself, unlike the possession on the gun which is once removed.
"US Marshals would be expanded to conduct background checks of, arm and train these new deputies, who would then be allowed to concealed carry anywhere...The goal should be to train several million such deputies over the next decade."
Remember everyone, this is our supposed small government advocate talking here.
"when the government no longer implements the will of the rebelling part of the population"
As I've long noted, what Bart considers tyranny is that the rest of the people in the US refuse to implement his will. He's a tyrant at heart, note his ready embrace of extensive militarism, his disdain for the democratic will of the people and our Constitutional government (he's always calling for a convention to change it to his liking), his ready embrace of NSA surveillance, force, torture and war...An authoritarian, through and through one can conclude.
Thought I posted a comment on the terrorist watch list.
Oh well. Here's text of a previous proposal:
This doesn't have the limits I suggested & consistent concern here (though agree with Mr. W. that the limit is not the same as others) regarding "suspected terrorists" being denied the right to buy a gun & perhaps more (left to ultimate legislation) is valid.
Here's a good FAQ including reference to an estimate that "only about 2 percent of them are U.S. citizens or legal permanent residents allowed to buy guns. The rest are foreigners, many of whom are not permitted to purchase firearms here"
Looking up the NRA's position against the proposed legislation, their concern is that proper due process safeguards are not present, but they are not against keeping guns from "dangerous" people. I'm not sure exactly what they think is required here but "prosecution of a felony after trial by jury" doesn't seem to be it.
Finally, personally, my preference would be a stronger version of the background check proposal by two conservative NRA senators that was filibustered even in the face of broad public support. Bill O'Reilly et. al. also suggest -- as Heller in some way leaves open -- banning the sale of certain types of guns. That's a more uphill battle.
I think they're ok with less than trial by jury to get on the list, so long as there's a straightforward procedure for getting off it if a mistake is made.
What they don't want it to be is the sort of list the government can just put you on for any reason it likes, not let you know the reason, and basically ignore your demands to be taken off it if they don't feel like it. Which is the current reality of the list. At the moment it functions like a limited bill of attainder, only with more secrecy.
BD: "US Marshals would be expanded to conduct background checks of, arm and train these new deputies, who would then be allowed to concealed carry anywhere...The goal should be to train several million such deputies over the next decade."
Mr. W: Remember everyone, this is our supposed small government advocate talking here.
Armed citizens with the power to use deadly force to stop murderers is about as libertarian as it gets.
BD: "when the government no longer implements the will of the rebelling part of the population"
Mr. W: As I've long noted, what Bart considers tyranny is that the rest of the people in the US refuse to implement his will. He's a tyrant at heart...
Calling a political economy where people to live their lives as they please and government is limited to prohibiting acts which harm others is tyrannical?
I am not calling for anyone to follow my will. I am calling for others to stop abusing government power to direct our lives.
A person can not be put on the list "for any reason it likes" though [decoder ring used] that appears to mean "kinda can be given the lack of adequate safeguards."
And, people on the left have criticized just that. Regardless, due process safeguards, including "a straightforward procedure for getting off it if a mistake is made" would be my basic concern too. But, you then tossed the "funny" trial by jury comment.
So, basically you think the NRA is wrong there. To be clear.
Mr. W: Bart, I clicked on your CNN and edu link, where I saw no evidence supporting your generalization that the Obama law enforcement bureaucracy equates 'Tea Party, libertarian and conservative groups' with terrorists. There was a discussion of two reports, one the results of a survey of law enforcement officials around the country naming right wing domestic terrorists as a threat and noting actual crimes committed by such groups and another discussing right wing militia type groups recruiting veterans. These do not support your general statement, if anything they contradict it.
Here is the money quote from the 2009 report describing "Extreme Right Wing" terror groups:
Extreme Right-Wing: groups that believe that one’s personal and/or national “way of life” is under attack and is either already lost or that the threat is imminent (for some the threat is from a specific ethnic, racial, or religious group), and believe in the need to be prepared for an attack either by participating in paramilitary preparations and training or survivalism. Groups may also be fiercely nationalistic (as opposed to universal and international in orientation), anti-global, suspicious of centralized federal authority, reverent of individual liberty, and believe in conspiracy theories that involve grave threat to national sovereignty and/or personal liberty.
Once conservative media discovered and publicized this report, the authors of the report tried to spin their opinion to mean that they were referring only to members of terror groups rather than the over 100 million other Americans who who share those "Extreme Right Wing" values. They meant what they said and DHS stood by the 2009 report as written.
The latest report to which I linked replaces ""Extreme Right Wing" with the more innocuous sovereign citizen movement, but they are still referring to us Tea Party folks.
Then there is this passage from the minutes of a recent DHS meeting which are now making the rounds in conservative media:
Member Acevedo reminded the Council that the threat from right wing extremists domestically is just as real as the threat from Islamic extremism. Secretary Johnson agreed and noted that CVE, by definition, is not solely focused on one religion. Member Goldenberg seconded Member Acevedo’s remarks and noted the importance of online sites in right wing extremist communities, not only in America but worldwide.
Note the ongoing use of the term "right wing extremists."
Meanwhile, NY Times just published an op-ed calling on Congress to create a secret star chamber court with the power to strip citizens of their Second Amendment rights without providing the citizen with the right to be present or to challenge the evidence against her.
But none may call them totalitarians.
"Armed citizens with the power to use deadly force to stop murderers is about as libertarian as it gets."
No, you're talking about millions of citizens trained, deputized and working by/for the federal government.
"Calling a political economy where people to live their lives as they please and government is limited to prohibiting acts which harm others is tyrannical?"
No, calling for a political economy the people have rejected, combined with supporting needless wars and unchecked Executive power to engage in surveillance, indefinitely detain and torture people, all things you've supported, is what I'm talking about.
"Here is the money quote..."
First, your own link states that that report was compiled by the Bush administration then released by the Obama administration, so even if what conclude from it was sensible it wouldn't support your comment that 'the Obama law enforcement bureaucracy already equates these groups with terrorists.' But more to the point, 'money quote?' Do you deny that there are indeed individuals and groups that have engaged in violent criminal activity that that quote describes? That there are others who don't commit such crimes have overlapping views is no reason for law enforcement officials to ignore those that do.
"Note the ongoing use of the term "right wing extremists.""
What term would you use for the very real individuals and groups that engage in criminal activity who are motivated by right wing ideologies? That the federal government takes notice of such groups doesn't support your statement that they 'equate' Tea Party, libertarian and conservative groups with the very real groups that say their criminal acts are grounded in overlapping rhetoric and beliefs. Major fail.
"a secret star chamber court with the power to strip citizens of their Second Amendment rights"
Here we see a man who has supported the federal Executive unilaterally and in secret deciding who is and who is not an enemy combatant, including US citizens, and indefinitely detaining and torturing them now caterwauling about a 'star chamber' that would engage in the comparatively slight indefinite blocking of gun purchases. Incredible.
NRA statement today:
The NRA believes that terrorists should not be allowed to purchase or possess firearms, period. Anyone on a terror watchlist who tries to buy a gun should be thoroughly investigated by the FBI and the sale delayed while the investigation is ongoing. If an investigation uncovers evidence of terrorist activity or involvement, the government should be allowed to immediately go to court, block the sale, and arrest the terrorist. At the same time, due process protections should be put in place that allow law-abiding Americans who are wrongly put on a watchlist to be removed.
So, membership on some sort of "watchlist" can delay while "investigation is ongoing" (how long?) sale. Being a subject of criminal investigation doesn't usually lead to your constitutional rights being held in abeyance except maybe the stereotypical "don't leave town" you hear on old crime shows. Sounds likes a special rule.
I note too the "law-abiding Americans" qualifier. Note:"only about 2 percent of them are U.S. citizens or legal permanent residents allowed to buy guns." Are they saying lawful resident aliens are different? Also, due process rights very well are important.
There should be a way to phrase a bill that follows that statement though quite honestly not sure focus on "terrorists" is the best approach if there is some will to pass legislation. But, a small move can show some good faith on the regulatory front.
BD: "Armed citizens with the power to use deadly force to stop murderers is about as libertarian as it gets."
Mr. W: No, you're talking about millions of citizens trained, deputized and working by/for the federal government.
You got two of three right. Here is what I suggested:
Congress needs to consider calling for volunteers from the unorganized militia to serve as deputies of the US Marshals to stop terrorist and other active shooter situations. US Marshals would be expanded to conduct background checks of, arm and train these new deputies, who would then be allowed to concealed carry anywhere. Their authority would be limited to the power to use deadly force to protect themselves and others in active shooter situations.
The US Marshals would be arming and training individuals who would be empowered to carry wherever they go and use deadly force to stop active shooters they may encounter. They do not work for the government.
BD: "Calling a political economy where people to live their lives as they please and government is limited to prohibiting acts which harm others is tyrannical?"
Mr. W: No, calling for a political economy the people have rejected, combined with supporting needless wars and unchecked Executive power to engage in surveillance, indefinitely detain and torture people, all things you've supported, is what I'm talking about.
Calling for a free political economy when the people have elected tyrants somehow constitutes tyranny?
In any case, free nations regularly fight, surveil and interrogate foreign wartime enemies who wage war against them. Believing in freedom does not require surrendering to enemies.
BD: "Here is the money quote..."
First, your own link states that that report was compiled by the Bush administration then released by the Obama administration, so even if what conclude from it was sensible it wouldn't support your comment that 'the Obama law enforcement bureaucracy already equates these groups with terrorists.'
If your contention is that the bureaucracy under under Bush was as totalitarian as under Obama, we agree. Presidents come and go, but the bureaucracy is forever.
But more to the point, 'money quote?' Do you deny that there are indeed individuals and groups that have engaged in violent criminal activity that that quote describes?
Not at all. My two-fold point is: (1) the Credentialed Caste who populate the Democrat establishment and the bureaucracy consider being "suspicious of centralized federal authority" and "reverent of individual liberty" to be "Extreme Right Wing" beliefs and the over 100 million Americans who share those beliefs to be potential terrorists who are more dangerous than ISIS (a totalitarian point of view if I ever heard one), and (2) allowing the bureaucracy to suspend the Second Amendment rights of those it considered to be potential terrorists means that they will be targeting myself and the other over 100 million of my fellow Americans.
BD: "a secret star chamber court with the power to strip citizens of their Second Amendment rights"
Mr. W: Here we see a man who has supported the federal Executive unilaterally and in secret deciding who is and who is not an enemy combatant, including US citizens, and indefinitely detaining and torturing them now caterwauling about a 'star chamber' that would engage in the comparatively slight indefinite blocking of gun purchases. Incredible.
Here we go again with your misrepresentations of my positions.
Foreign wartime enemies ARE NOT Americans and DO NOT enjoy any liberty rights from US government power during a war. The law of war's default position is that a wartime enemy can be shot on sight. Any rights beyond that are provided by the law of war
Americans who join a wartime enemy can be detained for the duration of the war and/or tried for treason. From the outset of their wartime detention, Americans (not foreign enemy combatants) enjoy a right to a habeas corpus hearing before a court of law to challenge the military's finding that they are enemy members.
The NRA needs to think through that ill considered position statement. Here is a superior alternative:
All American citizens should be immediately removed from the "terror watch list." If the government can produce evidence to a judge providing probable cause to believe that an American citizen is a a terrorist in violation of federal law and obtain an arrest warrant, then such persons should be prohibited by a background check from purchasing a firearm or flying on a commercial airliner. Mere suspicion that an American could be a terrorist should never be sufficient cause to strip them of their constitutional liberties.
Just another example, Bart, of how the NRA is frequently wishy-washy in its defense of our rights. As I keep trying to explain to liberals, in vain, the NRA is about as 'moderate' a pro gun group as you can find, short of the DNC's false flag operations like AGS.
They do appreciate the Left's insistence on portraying them as extreme, though. Helps their reputation with the members.
"only about 2 percent of them are U.S. citizens or legal permanent residents allowed to buy guns" ... the suggested edit says "American citizens" should be removed from the terrorist watch list. So, "persons" -- who have constitutional rights -- should be left on?
Since I'm concerned about the due process rights, as the Fifth and Fourteenth Amendment protects, of "persons," I'm not quite satisfied with that edit. I'll keep on saying it. A consistent concern for rights here appeals to me.
Anyway, from what I can tell, the NRA is somehow at least an honorary member of "the Left," if only as a fellow traveler. Brett's usage of language is silly though. The problem with the NRA often is the overheated rhetoric of its leadership and lobbyist wings. The average member -- see the support of the background check measure -- is a lot less extreme.
The US Marshals would be arming and training individuals who would be empowered to carry wherever they go and use deadly force to stop active shooters they may encounter. They do not work for the government.
# posted by Blogger Bart DePalma : 6:16 PM
Lots of armed people who think they're part of law enforcement, but really are not, with license to shoot people that they believe are "active shooters". LOL What could possibly go wrong with that insanity?
"the Credentialed Caste who populate the Democrat establishment and the bureaucracy consider being "suspicious of centralized federal authority" and "reverent of individual liberty" to be "Extreme Right Wing" beliefs and the over 100 million Americans who share those beliefs to be potential terrorists who are more dangerous than ISIS"
That's not what's to be taken from a fair reading of those sources at all, they're talking about the groups and individuals who share many of your beliefs but who use that as a motivation to break the law, that's clear from the rest of the document. For example, if one were profiling groups initiating violence against abortionists and abortion centers one would have to point out that they are motivated by what they see as abortion as mass murder. That's a belief shared by millions who commit no crime, but it's also a belief shared by a much smaller but significant amount of people who are potential or actual law enforcement problems too. Are they not to mention that fact because it might upset the former group? That just speaks to how oversensitive those groups are.
"Here we go again with your misrepresentations of my positions."
Oh, so you were here decrying the Bush administration's detainment without charge for years of US citizens Jose Padilla, Yaser Hamdi, etc.,? Somehow I missed that...
Mr. W: That's not what's to be taken from a fair reading of those sources at all, they're talking about the groups and individuals who share many of your beliefs but who use that as a motivation to break the law
The government develops terrorist profiles to identify potential future terrorists.
Even under your generous interpretation of the profiles, our government still labels being "suspicious of centralized federal authority" and "reverent of individual liberty" to be "Extreme Right Wing" beliefs, no matter who holds them.
BD: Here we go again with your misrepresentations of my positions....Americans who join a wartime enemy can be detained for the duration of the war and/or tried for treason. From the outset of their wartime detention, Americans (not foreign enemy combatants) enjoy a right to a habeas corpus hearing before a court of law to challenge the military's finding that they are enemy members.
Mr. W: Oh, so you were here decrying the Bush administration's detainment without charge for years of US citizens Jose Padilla, Yaser Hamdi, etc.,? Somehow I missed that...
What part of "Americans who join a wartime enemy can be detained for the duration of the war" did you not understand?
This is basic law of war which has been in effect for the entire history of our formerly classically liberal Republic.
Our closet totalitarians are coming out now.
Sen. Joe Minchin tells MSNBC: "Due process is what's killing us right now"
"I don't think that innocent until proven guilty is the standard that applies here," Rep. Alan Grayson, D-Fla., told the Washington Examiner. "We're talking about owning a gun, not being convicted of a crime." ...
"Here's what it boils down to: The presumption, I believe, should be in favor of keeping guns out of a person's hand if they're on the list," Senate Minority Whip Dick Durbin told the Examiner. "I think Republicans feel the opposite."
We are living in exceedingly dangerous times.
So let me get this straight: executive officials meeting secretly and unilaterally to designate an American citizen an 'enemy combatant' and detain them for years=OK with you, executive officials meeting secretly and unilaterally to designate American citizens as terrorist suspects and blocking them from purchasing a gun=great liberty violation. OK.
Perhaps it's the fundamental stupidity of declaring somebody too dangerous to be permitted to buy a gun legally, but leaving them walking around free, in a world where guns are available easily on the black market pretty much everywhere?
I don't see why we should pretend, contrary to all reason, that making it illegal for somebody to have a gun actually denies them a gun. Like black markets don't exist.
If anyone found a current version of what is on the table regarding the watch list bill, let me know -- found an old version but watching a bit of the filibuster, sounds like it was altered somewhat.
There are various people who are declared "too dangerous to buy a gun legally" but are "walking around free" including minors, people with certain physical and mental conditions, those not detained but under control of the criminal justice system etc.
Is it "fundamentally stupid" for this to be true? Since tragically thirteen year olds can via the black market get a gun, should we therefore not deny sale to them? Maybe, this suggests what is allegedly "pretended" isn't.
Yes, it is fundamentally stupid.
And we're not talking about minors, who are temporarily barred from doing all sorts of things adults are free to do, by reason of immaturity. Nor are we talking about people who have compromised mental capacities for one reason or another, and so are similarly situated.
We're talking about people who've been judged to have bad motives. Often people who've already demonstrated a proclivity to act illegally.
It's madness to pretend that telling somebody that they're not allowed to have a gun will keep them from getting a gun. It's a denial of reality. Letting these people walk the streets is equivalent to letting them get a gun, and that's just a brute fact. Let's not engage in magical thinking here: If somebody is walking free, and they mean to commit murder, the fact that it's illegal to buy a gun isn't going to stop them. It's illegal to murder, too!
It's just feel good, magical thinking, and imposes a burden on huge numbers of law abiding people in order to pretend that something is being done about criminals.
I see no reason to humor the pretense.
If the government had actual evidence that any American on the terrorist watch list and living in the US was a terrorist, they would detain or arrest that person.
"we're not talking about minors"
You made a general statement about people -- not some subset of them -- deemed too dangerous to use guns and a general statement -- not some subset -- regarding the black market. Sorry. At some point, I am tired of using a decoder ring. I'm just reading what you said. Since you repeatedly don't focus on a single narrow thing, no, I'm not going to interpret GENERAL language actually not to be general.
The basic point is that we ban things even when it's possible to obtain them. Sometimes, such as for minors getting drugs and guns, it can be fairly ("pretty much everywhere" is usual Brett hyperbole -- I cannot simply go to my local store to buy pot, e.g., even if its fairly easily to get -- the prohibition matters) easy to get these things. Doesn't mean the law is necessarily stupid.
It is b.s. to say the general idea is that people are asking us to "pretend that telling somebody that they're not allowed to have a gun will keep them from getting a gun." It is that banning certain people from getting guns -- minors, certain people physically and mentally unable, certain people in the criminal justice system (millions including those walking around) etc. -- will REDUCE the likelihood of them getting them. And, it does. This is one reason why certain people are against them though they talk out of both sides of their mouth -- either it doesn't work, or works too well.
There are other regulations and possible regulations to deal with guns as well. But, it is not 'fundamentally stupid' to keep guns from certain people even if they might get them some other way. For instance, a major cause of gun deaths is suicides. Good policy or no, a waiting period here would likely stop some deaths. The average potential suicide isn't going to get the gun on the black market. Same thing with unhinged mass shooters. Many of them are not simply criminals with easy access to the black market. And to the extent loopholes in gun show laws etc. are a problem here, sure, as I said, a strong background check law would be to me good policy.
If the terror watch list is too broad as a matter of policy and/or rights, which it is in certain respects, fine. But, talking about pretense. So many holes in that glasshouse.
Follow the bouncing ball...
If the government would detain or arrest any stateside American on the list against which they had any evidence, and they have not arrested any, then they have no substantive svidence against any stateside American on that list. This is why totalitarian Democrats wish to suspend due process requirements like actual evidence.
"If the government would detain or arrest"
Notice the 'or.' So, again, you are fine with the executive bureaucracy unilaterally and secretly determining a citizen an enemy combatant and detaining them without charge for years but caterwaul about the prospect of the same bureaucracy designating individuals terrorist suspects and blocking their gun purchases. Telling.
Once again into the breach...
The law of war allows the government to detain American members of a wartime enemy for the duration of the war. The detainee need not have committed any crime. This is a prophylactic measure to keep the detainee from assisting the enemy for the remainder of the war.
If the American enemy has also committed a crime, the government may arrest and prosecute the enemy as a criminal.
Do you get the distinction yet?
Before it can detain or arrest an American as a wartime enemy, the government must possess evidence providing probable cause that the person is in fact a wartime enemy, which must be offered to a court of law to obtain an arrest warrant or after the fact in a hearing on a motion to dismiss charges or a petition for habeas corpus where the person can challenge the government's evidence and present his own evidence.
What the totalitarian Democrats are proposing is a star chamber bureaucracy placing people on a "terrorist watch list" and stripping them of multiple constitutional rights with no evidence and no recourse.
No frigging way.
You don't know what you're talking about Bart, Hamdi and Padilla were held, after being declared unilaterally, with no court hearing whatsover, by the executive to be enemy combatants, for years without charges or even *access to counsel.* So try again. That's way worse than the executive unilaterally declaring a person unable to buy a gun.
I'm trying to look at the terror watch list proposal from all angles including with some perspective of just what is involved.
But, a principled opposition if perfectly fair. In fact, including the ACLU, people from the left ["the Left" apparently is the kewl way to label them] have repeatedly flagged the problem with it.
Since Mr. W. has cited the blog a few times, see this too:
As I noted, that's fine, though other proposals were tossed out there too.
The Hamdi case laid out the government detention powers and the American detainee's due process rights I discussed above.
Padilla filed a petition for habeas corpus and later received a trial, in which the government proved their case beyond a reasonable doubt.
Bart, Padilla's lawyer filed a habeas corpus in his behalf because he was detained unable to have any contact with family or counsel for over a year. His trial came almost four years into this detention. Hamdi's father had to file a habeas corpus for Hamdi because Hamdi was likewise kept from any counsel, no court reviewed his case. Finally SCOTUS slapped down the Bush Administration's illegal detention and denial of any independent review of Hamdi's case. You were cheerleading the administration the entire time. So, I repeat, try again.
Come on, Bart: The problem with the Padila case wasn't that they were holding an innocent man. It was that they were holding a man they hadn't been required to demonstrate was guilty, and way too long for that. The guy was in prison for 3-4 YEARS before he got a trial, not months!
Don't defend that. A trial isn't a meaningless formality that you can skip for guilty people, it's HOW you demonstrate they're guilty.
To enhance your education, the following from the 2nd Circuit's decision in the Padilla case:
"Padilla, an American citizen, flew on his American passport from Pakistan, via Switzerland, to Chicago's O'Hare International Airport. There he was arrested by FBI agents pursuant to a material witness warrant...On May 22, Newman [Padilla's lawyer] moved to vacate the material witness warrant. By June 7, the motion had been submitted for decision. A conference on the motion was scheduled for June 11. However, on June 9, the government notified the court ex parte that (1) it wished to withdraw its subpoena and (2) the President had issued an Order (the “June 9 Order”) designating Padilla as an enemy combatant and directing Secretary Rumsfeld to detain him...Padilla was taken into custody by Department of Defense (DOD) personnel and transported from New York to the high-security Consolidated Naval Brig in Charleston, South Carolina. At the scheduled June 11 conference, Newman, unable to secure Padilla's signature on a habeas corpus petition, nonetheless filed one on his behalf as “next friend.”
For the past eighteen months, Padilla has been held in the Brig in Charleston. He has not been permitted any contact with his counsel, his family or any other non-military personnel. During this period he has been the subject of ongoing questioning regarding the al Qaeda network and its terrorist activities in an effort to obtain intelligence."
From the Hamdi case:
"The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an “enemy combatant,” and that this status justifies holding him in the United States indefinitely–without formal charges or proceedings–unless and until it makes the determination that access to counsel or further process is warranted.
In June 2002, Hamdi’s father, Esam Fouad Hamdi, filed the present petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the Eastern District of Virginia, naming as petitioners his son and himself as next friend. The elder Hamdi alleges in the petition that he has had no contact with his son since the Government took custody of him in 2001, and that the Government has held his son “without access to legal counsel or notice of any charges pending against him.” App. 103, 104. The petition contends that Hamdi’s detention was not legally authorized. Id., at 105. It argues that, “[a]s an American citizen, … Hamdi enjoys the full protections of the Constitution,” and that Hamdi’s detention in the United States without charges, access to an impartial tribunal, or assistance of counsel “violated and continue[s] to violate the Fifth and Fourteenth Amendments to the United States Constitution.” Id., at 107. The habeas petition asks that the court, among other things, (1) appoint counsel for Hamdi; (2) order respondents to cease interrogating him; (3) declare that he is being held in violation of the Fifth and Fourteenth Amendments; (4) “[t]o the extent Respondents contest any material factual allegations in this Petition, schedule an evidentiary hearing, at which Petitioners may adduce proof in support of their allegations”; and (5) order that Hamdi be released from his “unlawful custody.” Id., at 108—109."
These two citizens were detained unilaterally by the executive with no judicial review for years, the two citizens didn't even have access to counsel or family while detained, the only hearings that came for them came from a lawyer and family member filing habeas in their names. This is exponentially worse than what you're complaining about re: the watch list, yet you cheerleaded the former and now caterwaul the latter.
W is making a false analogy between Americans detained as members of a wartime enemy and Anericans on the terrorist watch list. I am laying out the law governing the former to show the lawlessness of the latter. I am not defending the Bush legal positions in these cases. I don't even recall what those positions were.
Scalia was correctly praised for his separate opinion/dissent in Hamdi though I think Souter/RBG probably had the best opinion. But, push come to shove, the plurality put limits on the government in that case. In Padilla, a 5-4 majority found a technicality to kick the can down the road. "The Left" on the Court there consistently protected rights immediately.
I'm for consistent protection of rights. Stevens, Souter/RBG came out best with Breyer going most of the way with his support of the Hamdi plurality.
"W is making a false analogy between Americans detained as members of a wartime enemy and Anericans on the terrorist watch list."
Bart, to the extent the analogy is inapt it works *against you.* The executive bureaucracy unilaterally and without charge or judicial review prohibiting a citizen from buying a gun is, imo, bad, but executive bureaucracy unilaterally and without charge or judicial review, imprisoning a citizen for years is far worse. The latter is far worse, but you cheerleaded it and caterwaul about the former.
I must say, when Bart first stepped (stomped, wallowed?) in this particular pile of poo, I immediately thought 'Brett wouldn't get caught in this, he has some actual adherence to libertarian principles above base partisanship.' I'm glad to see Brett proved this true.
Restating the same false statements does not make them true by repetition.
The decision to detain or criminally prosecute a wartime enemy is always a unilateral executive decision. Legislators and judges do not perform this function.
This decision requires the executive to offer evidence to a court of law - either before the detention to obtain an arrest warrant or after the detention in a judicial hearing of a petition for habeas corpus or a motion to dismiss.
The Democrat proposal to strip Americans of their constitutional rights by executive decree without any requirement of evidence is not in any way, shape or form analogous to the law governing detentions.
The GOP has suggested legislation mandating a 72 hour waiting period for anyone on the terror watchlist to buy a firearm during which time the government has the opportunity to present actual evidence to a court of law that the buyer is a terrorist. The better approach would be to require the government to present actual evidence to a court of law proving that the person is a terrorist before being added to this watch list in the first instance, but the GOP is scared of being called soft on terror. Of course, the Democrat totalitarians oppose either course of action.
"The decision to detain or criminally prosecute a wartime enemy is always a unilateral executive decision. Legislators and judges do not perform this function."
"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (Found, please note, in Article 1: Suspending the great writ is a legislative power, not executive.)
And, how, may I ask, can the privilege of the write of Habeas be exercised, if the detained individual is not entitled to have counsel or contact a court?
Legislative suspension of the writ during a rebellion or invasion is not an executive decision to detain.
Furthermore, I am discussing the law as it exists now for the purposes of comparing the law governing detention and terrorist listing, not after a hypothetical action of Congress during a rebellion or invasion.
Like Scalia and Thomas disagreeing, the two Killer Bs disagreeing is interesting. Takes a lot for the usual barnacles to clear away there. There was some of that with Trump too but partisan juices closed the gap some.
Progressives disagreeing with the "Killer B" libertarians is nothing remarkable.
None of them disagree with the Democrat party line or candidates, no matter how reprehensible or criminal.
"This decision requires the executive to offer evidence to a court of law - either before the detention to obtain an arrest warrant or after the detention in a judicial hearing of a petition for habeas corpus or a motion to dismiss."
The Bush administration, which you cheerleaded, did not obtain arrest warrants or allow for judicial hearings for American citizens Padilla and Hamdi (as Brett has astutely pointed out, they didn't even allow them access to counsel).
"The Democrat proposal to strip Americans of their constitutional rights by executive decree without any requirement of evidence is not in any way, shape or form analogous to the law governing detentions."
To the extent they are not analogous they are in a way that works against you. Both the Bush administration detentions and the Democratic proposal involve(d) a unilateral executive bureaucracy decision to move to infringe the rights of citizens with no independent review of the decision, but the former involved a *far greater violation of civil liberties* than the latter. Being imprisoned for years is worse than being free but prevented from buying a firearm.
"Because we are not partisan lemmings, we libertarians disagree all the time."
Heh, one of you increasingly looks like a partisan lemming indeed and the other more like a libertarian.
"None of them disagree with the Democrat party line or candidates, no matter how reprehensible or criminal."
Am I a Progressive? Because I said a while back in this discussion I was opposed to proposal of the Democrats re: the watch list: "The executive bureaucracy unilaterally and without charge or judicial review prohibiting a citizen from buying a gun is, imo, bad"
eh. In comparison. He himself has recently labeled himself as a "conservative" and talking about labels. He labels you as part of the Borg too. He likes "the Left" over "Progressive."
But, credit where credit is due and all that. Anyway, the proposal has judicial review.
"but the former involved a *far greater violation of civil liberties* than the latter. Being imprisoned for years is worse than being free but prevented from buying a firearm."
I could argue with that; Magnitude and frequency. The one abuse had high magnitude, and very low frequency. The proposed Democratic abuse has moderate magnitude*, but much higher frequency. In fact, we could confidently anticipate that, should "no guns for people on watch lists" be implemented, the watch lists would start swelling.
* You can't really call infringement of an explicit constitutional right, with potential for felony prosecution if you circumvent the infringement, "low" magnitude.
"only about 2 percent of them are U.S. citizens or legal permanent residents allowed to buy guns. The rest are foreigners, many of whom are not permitted to purchase firearms here"
The detention policy of the U.S. that led to Hamdi/Padilla also by "magnitude and frequency" mostly affected non-citizens. Even there as applied to citizens is wasn't "one" abuse. And, the inability -- especially if you have the right to go to court with a lawyer and everything to challenge it (more so if there is an additional level of judicial involvement in the front end as Toomey etc. suggest) -- to buy a gun is low magnitude in comparison to being in a brig for years.
And, travel is a constitutional right too. As the ACLU, who consistently is concerned with watch lists noted:
Being placed on a U.S. government watchlist can mean an inability to travel by air or sea; invasive screening at airports; denial of a U.S. visa or permission to enter to the United States; and detention and questioning by U.S. or foreign authorities—to say nothing of shame, fear, uncertainty, and denigration as a terrorism suspect. Watchlisting can prevent disabled military veterans from obtaining needed benefits, separate family members for months or years, ruin employment prospects, and isolate an individual from friends and associates.
The 9A reminds us that a right needs not to be "explicit" to count. And, just what the 2A actually means is unclear/a matter of debate especially buying arms, something D.C. v. Heller did not explicitly address (it did highlight the home).
Concern about "swelling" here is valid though if the concern was more consistent (e.g., voting rights), it would be more appealing. Perhaps, a consistent concern for rights here would put both parties in better position & each side will worry a bit more about due process rights in the long run.
Republicans are not in a good position here given their inconsistent concern for due process. I'll trade the Republican senator's from Texas limited proposal targeting those who can be shown by probable cause in front of a neutral magistrate within a few days of being guilty for support of a broad background check law. This law is allowed under Heller and has broad popular support. Win win -- democratic and honoring constitutional liberties.
The terrorist watch list proposal by the Democrats is not quite as bad as some make it out to be (judicial review etc.) but I'm quite appreciative to a consistent concern for civil liberties. And, after the filibuster TWO measures at least was promised a vote. The background check measure is on the table too.
ETA: It is clear that the RKBA includes buying arms, but the money question is what limits (Heller itself noted there can be) are allowed. Granting the current proposal is invalid, there is most likely some limits that can be placed that will affect law-aiding citizens. More so if limited to certain types of guns, some of which can already be banned under D.C. v. Heller and/or be more heavily regulated.
Offering the logical fallacies of guilt by association (I supported most Bush war policies) and a straw man (Bush had a different view of the Constitution than did the Supreme Court the rights of American wartime detainees) does not change the fact that law governing American detainees and Americans on the "terrorist watch list"are not analogous at all.
As to your straw man, if Bush actually detained Padilla and Hamdi without any substantial evidence of that they were members of al Qaeda as DHS adds people to the "terrorist watch list," then your weighing of the equities might have some merit. In fact, Padilla was found guilty of criminal acts and Hamdi surrendered his citizenship and went home to Saudi supervision to avoid a habeas corpus hearing.
Once again, to the extent they are not analogous it cuts against you.
Unilateral decision by executive made in secret not without review or challenge in court of law? Check for both.
From Souter's concurrence in the Hamdi decision:
"It is undisputed that the Government has not charged him with espionage, treason, or any other crime under domestic law. It is likewise undisputed that for one year and nine months, on the basis of an Executive designation of Hamdi as an “enemy combatant,” the Government denied him the right to send or receive any communication beyond the prison where he was held and, in particular, denied him access to counsel to represent him. The Government asserts a right to hold Hamdi under these conditions indefinitely"
Deprivation of fundamental rights of American citizens? Check for both, but far worse for the Bush administration policies which you cheerleaded, as it involved total incarceration depriving virtually all fundamental rights.
You started this with a characteristically foolish hyperbolic statement about 'star chamber' proceedings re: the watch list. If all the star chamber ever did was prevent its victims from purchasing a firearm it would not even be of historical note outside of a few historians of England. MUCH closer to the results the Star Chamber handed out are the secret, unchallenged, indefinite total incarceration of citizens, accompanied by torture that the Bush administration, which you cheerleaded. You don't get to caterwaul now about civil liberties now, you've shown that for you, they're just partisan rhetorical tools at best.
Your argument to the effect of 'yeah, they held them without judicial review but later they were shown to be guilty' demonstrates only that you don't understand what civil liberties are about at all.
"You can't really call infringement of an explicit constitutional right, with potential for felony prosecution if you circumvent the infringement, "low" magnitude."
I don't think I'd call such a thing low, but I'd note that we have dozens of important explicit rights, and that the Bush administration's detainee policy violated them all for its victims.
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Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
The Information Society Project
Syllabi and Exams