Thursday, July 29, 2010

Fixing What's Wrong

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
I'm back to the Second Amendment because of this comment, because I find my own views on the Second Amendment so at odds with how I see the world, and because, frankly, I haven't figured out just what I want to say about Judge Bolton's order in United States v. Arizona or about the recently flaring contretemps (I called it a pissing match when I started writing about it a couple of days ago) among abolitionists over Mumia Abu Jamal, or about the vote in the House to reduce the crack/cocaine disparity from 100:1 to 18:1.
* * * * * * * * *
OK, a moment on the short versions of what I want to say about those things.
1. Arizona.
Good for Judge Bolton.  In case you've been in a cave for the past 48 hours, the Honorable Susan Bolton, Judge of the United States District Court for the District of Arizona, granted a preliminary injunction preventing parts of Arizona's anti-immigrant law.  Here's the New York Times explanation.
“Preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely pre-empted by federal law to be enforced,” she said.
“There is a substantial likelihood that officers will wrongfully arrest legal resident aliens,” she wrote. “By enforcing this statute, Arizona would impose,” she said, citing a previous Supreme Court case, a “ ‘distinct, unusual and extraordinary’ burden on legal resident aliens that only the federal government has the authority to impose.”
The judge’s decision was not her final word on the case. In granting the injunction, she simply indicated that the Justice Department was likely, but not certain, to prevail on those points at a later trial in federal court. She made no ruling on the six other suits that also challenged the law.
Essentially, this isn't the last word, or even Judge Bolton's last word, on the merits of the law.  Her ruling grants a preliminary injunction, which means not that the law is unconstitutional but that on review it looks like the government is "likely" to prove at a trial that portions of the law are unconstitutional.  Therefore, those portions of the law don't take effect for now (because you don't want a probably unconstitutional law being enforced while you wait around for the courts to decide whether it is in fact unconstitutional).  Moreover, Arizona can, and says it will, appeal her decision.  In any event, here's Judge Bolton's summary (I'm never going to capture her formatting, so I'm reworking the format and a bit of punctuation.)
Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:
Portion of Section 2 of S.B. 1070, A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person.
Section 3 of S.B. 1070, A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers.
Portion of Section 5 of S.B. 1070, A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work.
Section 6 of S.B. 1070, A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.
S.B. 1070 was not just anti-immigrant. (And as a practical matter, anti-Mexican and people-of-color immigrant; Sheriff Joe and the boys weren't going to be searching for undocumented French Canadians.)  It violated the Constitution in a number of ways.  Consider, for instance, Section 6, which simply says the Fourth Amendment doesn't apply to suspected immigrants without documentation.  Arizona just cannot selectively abrogate the Bill of  Rights - even if it thinks the feds are insufficiently vigilant about enforcing immigration law.
Frankly, I wish Bolton would just wipe out the whole law.  But then I remember what Voltaire taught.

Le mieux est l'ennemi du bien.
(The best is the enemy of the good.)
2. Mumia.
Sigh.  It turns out that back in December, leading up to February's 4th World Conference Against the Death Penalty, US best members of the organizing group (the World Coalition Against the Death penalty) signed a memorandum to the Conference organizers objecting to the major role planned for and around Mumia Abu Jamal.
ECPM has unilaterally, and over objection, determined to give the Mumia Abu-Jamal case a prominent role in the upcoming 4th World Congress Against the Death Penalty, including the participation of Mr. Abu-Jamal's lawyers and his direct participation by telephone. The US members of the Steering Committee of the World Coalition Against the Death Penalty do not agree to this, because it will be counter-productive to our effort to achieve abolition in our country.
The Abu-Jamal case, regardless of its merits, acts as a lightning rod that galvanizes opponents of abolition and neutralizes key constituencies in the cause of abolition. Continuing to give Abu-Jamal focused attention unnecessarily attracts our strongest opponents and alienates coalition partners at a time when we need to build alliances, not foster hatred and enmity.
I can't vouch for the bona fides of the memo.  It seems to have come to light only this week.   But it's also clearly an accurate statement.  There are groups including (and this is relevant here) the Fraternal Order of Police which have been helpful in achieving statutory abolition in New Jersey and New Mexico but which avidly seek the Abu Jamal's execution.  However, to many abolitonists, he is a hero: The quintessential innocent victim of a police and prosecutor and judge frame-up; a powerful, articulate voice against racism, capitalism, and the death penalty.  There is outrage, pretty well captured by this on-line petition and accompanying statement on the horribly formatted home page of the Campaign To End the Death Penalty.
Calling All Abolitionists - Stand Up for Mumia Abu-Jamal!
We, the undersigned, strongly condemn the letter, signed by some US abolitionists, opposing Pennsylvania death row prisoner Mumia Abu-Jamal's participation in the World Congress Against the Death Penalty and claiming that highlighting his case hurts the cause for abolition in the U.S.
(see See also Dave Lindorff's article about this at ).
We stand in solidarity with Mumia, who has spent the past twenty-eight years on death row, the victim of a trial and court procedures fraught with racism, and police, prosecutorial and judicial misconduct.
Mumia currently faces a grave threat: the US Supreme Court has accepted an appeal to re-instate Mumia's death sentence, and Philadelphia's District Attorney has pledged his intention to pursue his execution. Mumia urgently needs our support, and we call for a new trial for him now.
We reject any call by abolitionists to put "coalition-building" with law enforcement over and above the struggle for justice of any death row prisoner, be they innocent or guilty.
We also reject the logic of having police organizations that fight tooth and nail for the execution of those with unpopular views as a partner or ally.
Many police organizations – as well as prosecutors and judges-- have organized against our efforts to win justice for Mumia, and have served as guardians of an unjust "justice" system.
We deplore divisive strategies that seek to exclude death row prisoners from our movement. We call on all participating organizations in the World Congress to re-affirm their support for Mumia Abu-Jamal and all death row prisoners in our struggle to end the death penalty worldwide.

I've written about Mumia before as the nation's leading death row celebrity.  His fans (and there are many) think I'm insufficiently deferential to his importance to the abolition movement (and the movements against racism and classism and capitalism and what-all ism).  I'm not interested in throwing him under the bus (which is what supporters say the memo attempted to do).
He should not be executed.  That's not negotiable.
He IS a powerful voice that should be heard.  There is much to commend him.  And like so many others on death row, he is clearly the victim of shoddy police work, prosecutorial misconduct, and biased judging.  (None of which makes him factually innocent; I'm agnostic on that question, as I generally am about claims of factual innocence.)
But he is divisive.  More to the point, he's a distraction.  It may be that he is a particularly powerful voice overseas, but we are not overseas.  While I welcome international pressure and efforts on behalf of abolition, they are necessary and vital to the cause, we in the United States must win the struggle for abolition here, in the United States.
There are too many cases, too many injustices, too many wrongs in too many places, to hang up one poster.   Here's the question to ask before putting Mumia (or anyone else) front and center: will he gain us more support from those we need - judges, legislators, governors, voters - than he will cost?
And if the focus is abolition rather than fixing all that's wrong in the US including abolition, will he gain more support on that issue?
The anti-abortion but also anti-death penalty Catholics?  The I-don't-give-a-damn-about-social-justice libertarians (no, that's not all libertarians) who think the government is too incompetent to be deciding who to kill?  The liberals who fear anyone who looks even a little non-mainstream?  The conservative bankers who think there's a better use for the money we pump into killing people?  The folks who think we should give all people charged with crimes, innocent or guilty, LWOP because it's worse then death?  The people who think the system is broken but that executions are fine in principle?
Mumia gets attention because he's such a powerful voice and because his lobby has lots of powerful voices.  That's no small thing.
I'm not so sure that giving him yet more platform space helps the abolition cause more than it hurts.  I'm certain it's a discussion that shouldn't be had in hyperbolic terms and open letters.
If the goal is abolition rather than rabble rousing, the question is how best to achieve it.
And so there's Voltaire's lesson.
Le mieux est l'ennemi du bien.
I'd like to change many things in this country.  But if I can achieve a major victory today, I'm not going to refuse because there are other things that need to be done also.  Don't need one global correction.  I'll take the wins one at a time.
But they have to be wins.   I won't trade Mumia's life for another.  But that's not really the choice, I don't think.
3. Crack.
How many years havewe been after this?  And yet again, Voltaire.
Le mieux est l'ennemi du bien.
According to Grits Ron Paul had the line of the day.
Texas Congressman Ron Paul quipped that instead of the "Fair Sentencing Act" the bill should be called the "Slightly Fairer Sentencing Act" because they didn't reduce it to 1:1, calling to repeal the entire war on drugs.
Yeah.  But damn, it's a hell of an improvement.   We've been locking up people at an absurd rate, for preposterous lengths of time, on the faulty assumption that we can stop the use of illegal drugs by locking up enough of them.
The war on drugs is a failure.  Complete and abyssmal.  Locking up druggies accomplishes nothing but making criminals.
That's not quite true.  It also destroys families, increases crime, wastes billions of dollars a year, and makes us all less safe.
Treating crack as the worst drug in the history of drugs does the same thing - but puts a special focus on hurting the poor and members of minority communities.  And it's a fraud in another way.  Crack is cocaine.  Any disparity in sentencing approach is simply dishonest.  Still, 18:1 is a hell of a lot better than 100:1.  Raising the threshold for mandatory minimums won't solve the problems.  It's not the best.
But it's damn well a step in the right direction.
* * * * * * * * *

And so there's the anonymous commenter.  Here's what he (I assume "he") wrote.
In 1755 Samuel John­son pub­lished the the “Webster’s dic­tio­nary” of the day.
It was the defini­tive dic­tio­nary of the Eng­lish lan­guage at the time the US Constitution was written.
Under the word “arms” the 1755 def­i­n­i­tion was ” weapons of defense or armour of defense“
The definition of arms did not restrict the term to portable hand held weapons like mus­kets and swords, (as some revi­sion­ists who try to rein­ter­pret the sec­ond amend­ment claim)…but even included the most ter­ri­ble weapons of the day…the can­non.
Which means that Amer­i­cans are not lim­ited in what type of weapon they can own: a stinger mis­sile, a tank, a bazooka, a flame thrower. Any “weapon of defense” is fair game. Machine guns, hand grenades, RPG’s all are included in the sec­ond amend­ment. I would even go so far as to say that Americans even have the right to possess biological weapons.
Amer­i­cans have the right under the con­sti­tu­tion to unre­stricted access to any weapon that can be use in any pos­si­ble way in defense of the coun­try or the individual.
There are those, even some in the NRA, who would like to draw a distinction between a handgun and , say a bazooka, a missile or a suitcase nuke. But based to the second amendment and the definition of "arms" , Americans citizens have the right to own any weapon they wish.
No exceptions. 
It's not that simple. 
Dr. Johnson's Dictionary is a quirky thing.  It's revered for its wisdom, wit, and erudition.  Rather less so for its definitions.  If you want to know what a word meant in England in the mid-1700s, you'd do better to study the OED than to read Johnson's Dictionary.
I'm not bothering to walk across the room to check what the OED says about "arms" because I don't think it much matters.
First, it doesn't matter because words don't stand by themselves.  They occur in contexts which limit their meaning.  A basic rule of interpreting all language for legal purposes (and enough of the drafters were lawyers that they clearly understood this) is that no part of a written document is to be ignored.  That means that the part about the "Militia being necessary to the security of a free State" is not just excess.  What exactly it means, and why it's there, is key.  Another part of how you interpret is in light of what the document's author's intended.
Put all that together and you come to my conclusion (or at least I do):  The Second Amendment secures your right to possess weapons suitable to overthrow the government.  And it secures that right for that purpose and only for that purpose.
Second, it doesn't matter because whatever the words of the Second Amendment or the intent of the framers, the courts (and regardless of how you may feel about it, they are the final arbiters of what the Constitution does and doesn't mean) will never say that individuals "have the right under the con­sti­tu­tion to unre­stricted access to any weapon that can be use in any pos­si­ble way in defense of the coun­try or the individual."  Nor will they say that individuals have the right to whatever weaponry they might need which would enable them to rise up in successful revolution.  Ain't gonna happen.
And it probably shouldn't.  For one thing, the consequence is insane when we have the technology we do today.  I'm sorry.  I know there are folks who think we'd all be safer and crime reduced if everyone were armed.  But nukes are simply different from conventional weapons.  The potential for an accident, and the consequence of that accident, changes the reasonable terms of the discussion.  So does the potential for what happens when someone with an h-bomb in the basement suddenly goes bat-shit crazy.  (And yes, people do that sometimes.)
For another, none of the provisions of the Bill of Rights has ever (that's ever) been treated as absolute.  Freedom of speech can be abridged.  The right to free exercise of religion has limits.  You can be searched and seized without a warrant or probable cause or even good reason.  The right to a fair trial is limited.  So is the right to - actually, so is the right to everything.  Why imagine that the Second Amendment, whatever it might mean by pure parsing of words, is the only provision that is to be applied by purely parsing words?
Besides, as  Eugene Volokh pointed out in the post that got me started on this last week, even if you try to take the Second Amendment literally, you have to decide what's an infringement and what isn't. 
So where are we?
I hate the Second Amendment.  I've said that before.  I hate guns.  I think that as a matter of public policy we should disarm everyone.  But the Amendment is there, and I believe in the Constitution.  I'm happy to have philosophical discussions, but if you want to talk about giving teeth to the Second Amendment, you won't get there by advocating the right to revolution or the right to a tank in your back yard.
Le mieux est l'ennemi du bien.

In this best of all possible worlds.
Le mieux est l'ennemi du bien.


  1. Jeff,

    those abolitionists who know me also know that I'm not a "Mumianist" and that I'm skeptical regarding death row celebrities (I remind that I wrote a "positive" comment here:

    But what happened now is not also - in my opinion - wrong but dangerous, too. Why don't we (as the abolition movement) "sell" Troy Davis, too? He would be also good "deal" - a black man who's accused of killing a white police officer. Or what about the death row inmates who found guilty of killing children? Where do we draw the line?

    But it seems that aside from the CEDP and the Texas Moratorium Network (and of course the Mumia Support Groups) nobody is interested in discussing this affair.


  2. Joachim,
    I know and respect your views on Mumianism and the cult of death row celebrity. They are not, I think, appreciably different than my own.

    But I think we read the memo differently. I don't see it as suggesting any abandonment of Mumia, certainly I don't see where they're suggesting selling him (or anyone else) off. Rather, they say, don't make him the center of attention.

    That doesn't strike me as an outrageous position. I think it was probably presented poorly, with too much suggestion that supporting Mumia directly and publicly actually hurts abolition. I think that's an extreme suggestion. On the other hand, suggesting that making him the poster child for abolition does hurt the cause seems to me a plausible position, the one the memo was trying to stake out, and one that Mumia's fans find wholly unacceptable.

    But if we're going to discuss things (and I think we should), the discussion should be based on what folks are actually saying rather than on what outrage can be imputed to them. And, again, I just don't see the original memo as calling for selling anyone out.

    The danger here seems to me to be in the hostility abolitionists are showing each other. None of us are the enemy of the movement.

  3. On the subject of the Second Amendment. The British National Archives has just opened which has put all UK legislation online. I thought I'd have a look at the English Bill of Rights (which is much less central to our legislation than the US Bill of Rights is to yours). As I understand it the framers of the US Bill of Rights were influenced by the English Bill of Rights. To my surprise, I found the there is also an English right to bear arms.

    The English Bill of Rights is at . From the preamble:

    Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome.
    By causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law.

    And from the declaration:

    "And thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their auntient Rights and Liberties, Declare:

    Subjects’ Arms.

    That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

    I don't enough about the English history of the time to interpret "Arms for their Defence", but it seems to imply both personal defence and defence against those trying to overthrow the current government, and so, by implication, defence agains those trying to impose an illegitimate government.

  4. I think that as a matter of public policy we should disarm everyone.

    Likely because you've never needed one.

    When I was poor I had to live down on Floyd Street in Toledo. My girl and I had the audacity to complain to the neighbors about their loud music at 2:00 AM on a Tuesday night - we had to get up and go to work, you see. And so one night around 11:00 PM or so we overheard them talking about murdering us. The walls were really that thin, and we could hear them plain as day. I owned a 12 gauge semi-automatic shotgun. My early warning system was my nice brown dog, maybe 30 pounds or so, but alert.

    When we moved out later that week we heard them talking about 'no more whitey'.

    Race issues and hate crime aside, they were armed. I was armed. And in the middle of the night when shit comes to sweat, that's what really matters. That's what is going to save your life.

    The TPD, by the way, always responded promptly. But three minutes comes down to 180 eternities when you have to face someone bent on your death.

    You really think all the law, all the courts and all the police in the world are going to disarm people like those would be murderers? More to the point, do you think that disarming them would make them harmless to me and mine?