Why the Senate Immigration Bill Is Nuts

Imagine that a one-inch water pipe bursts in your basement. What do you do first? Do you try to shut off the water? Or do you let it continue to run, and begin cleaning up the water with sponges, towels and a Shop Vac?

Your wife, while preparing a salad, seriously cuts herself with a knife. She bleeds all over your kitchen. What do you do first? Try to stop the bleeding? Or wipe up the blood from the floor and sink?

Immigrants from Mexico and Central America are pouring across our open Southern border. What should Congress do first? Shut off the flow of illegal immigrants? Or worry about giving them a "pathway to citizenship?"

Eight U.S. Senators, inanely referred to as "The Gang of Eight," have cobbled together a 1,200-page bill which purports to solve "the immigration problem." (America's first immigration bill ran a page and a half!) Does it close the border? Not exactly.

Instead, according to Fox News,"The measure voted on (June 24, 2013) ... would double the size of the U.S. Border Patrol at a cost of around $30 billion and complete 700 miles of fencing. At the same time it sets out a pathway to citizenship for some11 million immigrants living in the United States illegally, who would be permitted to get permanent resident green cards only once all the border changes had been put in place, about a decade after enactment of the legislation. The Department of Homeland Security already has fenced off 651miles of the 1,969-mile border between the U.S. and Mexico. If 700 more miles are fenced off, 1,351 miles would be fenced off, leaving 618 unfenced.

Do fences work? Ask the Israelis.

In early 2013, Israel completed a 144-mile section of fence along its southern border with Egypt to keep out "illegal infiltrators." It is 16 feet high and is augmented with barbed wire, surveillance cameras and radar. Israeli Prime Minister Benjamin Netanyahu, according to the Wall Street Journal, states that illegal crossings have declined 99.9 percent from 2,000 per month to only two. The 144-mile section cost $416 million. (So, what would 1,318 miles of fence cost?)

The new Israeli fence is separate from the fence that runs along the West Bank, which began in 2003. According to the Jewish Virtual Library, "During the 34 months from the beginning of the violence in September 2000 until the construction of the first continuous segment of the security fence at the end of July 2003, Samaria-based terrorists carried out 73 attacks in which 293 Israelis were killed and 1950 wounded. In the 11 months between the erection of the first segment at the beginning of August 2003 and the end of June 2004, only three attacks were successful, and all three occurred in the first half of 2003."

In 2002 alone, Israel suffered 55 suicide bomber attacks that resulted in 220 deaths. As the West Bank fence was completed, both attacks and deaths declined. By 2005, there were but seven attacks which took 22 lives. In 2006, there were four attacks that killed 15. In 2007, there only was one attack that took three lives. According to the Israeli Security Agency, there were no suicide attacks in 2009 and 2010.

The U.S. would not be building a fence to stop suicide bombers. But if a fence can stop Muslim fanatics determined to plant bombs in Israel, even at the cost of their own lives, it certainly should be able to stop Mexican men, women and children trying to escape Mexican poverty and drug violence from entering the U.S.

A U.S. fence also would have a second critical use. It would make it far more difficult for Mexican drug lords to send their drugs, violence and agents into our country. If you think this isn't a major problem, consider the words of Jack Riley, special agent in charge of the federal Drug Enforcement Administration's Chicago office:"While Chicago is 1,500 miles from Mexico, the Sinaloa drug cartel is so deeply embedded in the city that local and federal law enforcement are forced to operate as if they are on the border."

Our open southern border facilitates the transport of deadly illicit drugs into our country. It allows the cartels to send in their hitmen. And it allows them be become rich and powerful enough to control governments.

If drug operatives are easily crossing our open border, why can't Muslim terrorists? Does it make any sense that we leave our border unfenced, while our National Security Agency is reading the emails and monitoring the other Internet traffic of every American in a effort to keep the country safe from Muslim terrorists? This is nuts!

It's like barring the front door, while leaving the back door and windows open!

Sadly, it appears, that in the eyes of the Senate and the President, that illegal immigrants and narco-violence "specialists" less are worthy of less government scrutiny than are law-abiding Americans using the internet!

Our immigration policy should not exist to create little "Democrats" or little"Republicans" or to provide a power base to keep politicians in office who put party over country.

We are a nation of immigrants. Our doors are not closed. Every year, America admits over a million immigrants legally. A spreadsheet prepared by Organization for Economic Cooperation and Development shows that no other nation even comes close.

Our immigration policy should have two goals: First, close the border to illegal immigration, Mexican drug violence and potential terrorists; then, once that is done, create a fair bipartisan path to citizenship for those who are here illegally but who haven't created felonies and/or do not pose a danger to this country.

Posted Online:  July 06, 2013, 11:00 pm  - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

With NSA, Odious General Warrant Makes a Comeback

In 21st century America, every American wants to be safe from terrorists. To that end, this paper reports that the National Security Agency has embarked upon two programs: The first collects sending and receiving phone numbers and the duration of the calls. The second, if the "leakers" are correct, gathers audio,video, email, photographic and Internet search usage from anyone using Microsoft, Google, Apple and Yahoo.

The goal of security is sound. But can a government that lies and stonewalls about Benghazi and the IRS scandal, and targets AP and Fox News reporters be trusted?

The Fourth Amendment to the U.S. Constitution was passed because our Founding Fathers feared encroachment by the new federal government upon their rights.

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issued, but upon probable cause,supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The amendment was meant to outlaw general warrants and writs of assistance by the British government in the days just before our Revolutionary War. A general warrant was a search/arrest warrant which did not particularly describe the place to be searched, and the persons or things tobe seized. A writ of assistance was a general warrant used in customs cases to find smuggled goods.

Charles Paxton was a Boston customs officer. In 1755, the Superior Court in Boston gave Paxton a writ of assistance that gave Paxton power "to board any boat or other vessel ... within said port... and there to search ...and ... go into any vaults, cellars, warehouses, shops or other places to search (for any undeclared) goods ... (that) are suspected ... to be concealed...."

Six years later, Paxton (and other customs officials)sought to renew their writs which had expired upon the death of George II.In January 1761, Massachusetts merchants challenged them. James Otis, Jr., a Boston attorney, argued on behalf of the merchants, that such writs violated common law principles. "The freedom of one's house was among the most essential branches of English liberty. ... Customs officials, acting under 'Writs of Assistance' may enter our houses when they please, break our locks, bars and everything in their way," he argued.

John Adams, who sat through the attorneys' arguments, wrote "Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there, the child Independence was born." For Adams, the writs of assistance were the first causes of the Revolutionary War.

The five judges in Paxton's case upheld the use of the writs of assistance. Our Fourth Amendment was written to overrule that holding. Now in 12 years since 9/11, in the name of security, Americans seem willing to surrender those rights, perhaps forever. Suddenly, the NSA appears to be operating under what can fairly be called general warrants issued by the FISA court.

In 1967's Katz v. U. S., the U. S. Supreme Court held that the Fourth Amendment protects people, not places, and that when "One who occupies (a phone booth), shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world."

In his concurring opinion,Justice Harlan said "an enclosed telephone booth is an area where ... a person has a constitutionally protected reasonable expectation of privacy."

But if phone calls, which then passed through phone lines were protected, why shouldn't our emails sent via the Internet be entitled to similar protection? It is one thing to record the numbers from which calls are made and received, or to look at an address on an envelope. It is hard to find an expectation of privacy in those things. But until these latest revelations, most of us have believed that we have a reasonable expectation of privacy for the contents of our letters, phone calls and emails unless a judge issues a warrant consistent with the Fourth Amendment requirements.

In his concurring opinion in Katz, Justice Douglas spells out the reasons:"Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved, they are not detached, disinterested and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate and prevent breaches of national security and prosecute those who violate the pertinent federal laws.

"The president and attorney general are properly interested parties, cast in the role of
adversary, in national security cases. ... I cannot agree that, where spies and saboteurs are involved, adequate protection of Fourth Amendment rights is assured when the president and attorney general assume both the position of adversary and prosecutor and disinterested, neutral magistrate."

If we can't trust the president or attorney general to be "detached," why should we trust the FBI or NSA? Yes, I want America secure. But I also want a Fourth Amendment that is not in tatters.

Our Fourth Amendment rights against unreasonable search and seizure are not something to be given up lightly without open public discussion and amendment of our Constitution. It took 700 years for our English forbears and the founding Americans to win and be guaranteed the rights specified in the Fourth Amendment. If Americans eschew their hard-won liberties, then what? Once relinquished, can our liberties ever be regained?

Posted Online:  June 23, 2013, 11:00 pm  - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

Sebelius' Fundraising Is Unconstitutional

When Congress refuses to appropriate funds, does the President have the power to fund Obamacare asking for gifts and loans?

Most Americans probably never have heard of the Petition of Right of June 7, 1628. In England, the Petition of Right is considered one of England's seminal constitutional documents, on a par with Magna Carta and English Bill of Rights of 1689. It held a similar status in Colonial America.

Indeed, the rights granted by King Charles I in that 385 year-old document are all embodied in sundry provisions of our U.S. Constitution. And now, at its 385 anniversary, the Obama Administration -- in the person of Health and Human Services Secretary Kathleen Sebelius -- has chosen to proceed along the path blazed by the King Charles I -- the king who literally lost his head.

Senator Lamar Alexander (R-Tenn.) has charged that, "Secretary Sebelius's fundraising from and coordinating with private entities helping to implement the new health care law may be illegal, should cease immediately and should be fully investigated by Congress."

The abuse of which Alexander now complains was know in the days of Charles I as a "forced loan." According to a report in the Washington Post, for the last three months, HHS Secretary Sebelius has "made multiple phone calls to health industry executives, community organizations and church groups" asking them to support ObamaCare "in any way they can."

According to Sen. Alexander, this fundraising scheme is similar to the Reagan-era Iran-Contra scandal in that money has been funneled from private entities after Congress had intentionally withheld appropriations, [thereby] circumventing the constitutional requirement that only Congress has the power to appropriate funds.

When Charles I came to the English throne, he needed money to prosecute an inherited war. When Charles asked for money, Parliament refused to use its taxing power. The King then, acting in his "Divine Right" as king, decided to by-pass Parliament and called upon his loyal subjects to make him "voluntary loans." The fact the loans were less than voluntary, was demonstrated by the fact anyone who refused to make the King a loan, was imprisoned.

At first, the judges refused to approve of these "forced loans." They fell in line, however, when the king removed his recalcitrant chief justice of his criminal court.

For refusing to "loan" Charles their money, 70 "gentlemen" were jailed without charge, bond or trial. Five of them, in what is known as the "Five Knights Case," sought their release on bond by habeas corpus. They lost. Bail was denied. His unnerved judges reasoned that if no charges had been brought, "the [prisoners] could not be freed as the offense was probably too dangerous for public discussion!"

But while the judges had been cowed, the House of Commons wasn't and after a lengthy battle with both the lords and the king, the commons [led by Edward Coke, a former chief justice "fired" for his "independence" by Charles' predecessor) ultimately responded with the Petition of Rights.

To get money to fight his wars, Charles grudgingly gave approval to the petition and even more grudgingly -- at Parliament's insistence -- used the traditional language that kings used to make an act of Parliament the law of the land.

The Petition of Right guaranteed the king no longer would seek to raise money without the consent of Parliament. The king promised "no man [would be] compelled to make [the king] any gift, loan, benevolence or tax, or such like charge, without the common consent of parliament."

In so doing, Charles acknowledged that Parliament controlled the purse and that there would be no more end runs around the taxing power of Parliament.

To guarantee Englishmen no longer would be imprisoned for failing to make "voluntary" loans, the king further promised as a matter of law that no Englishman would be imprisoned or detained for failing to make a loan and that no subject of the king should be "destroyed or put to death contrary to the laws and franchise of the land" to end the king's uses of courts martial to exact his loans.

Under our Constitution only Congress has power (a) to lay and collect taxes, and (b) to borrow money on the credit of the United States. And (c) no money can be drawn from the treasury, but in consequence of an appropriation made by Congress.

When Congress intentionally withholds appropriations and decides not to fund a program the President wants funded, the President has no power to seek alternative funding by way of loans, donations, gifts, benevolences or any other device.

31 USC § 1341 provides that no "officer or employee of the United States" may "make or authorize an expenditure ... exceeding an amount available in an appropriation or fund for the expenditure or obligation." When the President or any of his subordinates seek to fund any program, by seeking loans or gifts for that purpose, they are engaging in one of the very abuses of power that ultimately cost King Charles his head.

The business of a President ignoring the will of Congress, as Oliver North and President Reagan did in the Iran-Contra Affair" and as Secretary Sebelius now is doing, smacks of "divine right of kings" -- one-man rule and dictatorship.

I do not mean to imply that the President or Ms. Sebelius would try to imprison any health industry executives, community organizations and church groups who refuse to donate to or support ObamaCare "in any way they can." But at a time when the power of the IRS is running amuck and being used to crush conservative groups, imprisonment is unnecessary. A phone call to a friendly IRS employee, followed by an audit, will work just as well.

Posted Online:   June 12, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

Impeach Federal Office Holders who Take the Fifth Amendment

The new Acting-IRS Commissioner has suspended Lois Lerner, the head of the unit that considers and passes upon applications from nonprofits groups seeking to get tax-exempt status, for improperly targeting conservative groups. The suspension came one day after she invoked the Fifth Amendment and refused to answer questions before a congressional committee.

Ms. Lerner told the House Oversight committee in an unsworn opening statement that "I have not done anything wrong. I have not broken any laws, and I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee." She then invoked her Fifth Amendment right against self-incrimination.

What must be understood is this. The right against self-incrimination only can be invoked by
one who has a "good faith" belief that by testifying he may disclose something he may have done that might violate the criminal laws. If a person truly is innocent and has no fear his testimony would furnish evidence of his violation of a criminal law, he cannot invoke the 5th Amendment simply to avoid embarrassing himself, or to protect his fellow workers, or his superiors, or for any other purpose.

But what is an IRS employee? What is an IRS supervisor? What is the Commissioner of the
IRS?

They are government employees. But what that means is they really are employees of the people of the United States. They are public servants. They are not our bosses; we are their bosses.

But because they are our servants, or employees, under agency principles, they owe a duty to the American people, and to their Congressional representatives, to give full and fair accountings of their actions as public employees.

Refusing to testify because that testimony may incriminate the employee/witness runs directly contrary to the employees duty to fully and fairly account. Any public employees - including member of the IRS - who takes the 5th to avoid accounting, further abuses his power and commits a high crime or misdemeanor worthy of impeachment.

Commentators agree abuse of power is the quint-essential high crime or misdemeanor, and is the common denominator for all other impeachable offense. Indeed, it is that abuse of power which renders the official unfit to retain his office and unfit to serve.

Five Articles in the U. S. Constitution deal with Impeachment:

Art. I, Sec. 2[5]. The House of Representatives shall ... have the sole power of impeachment.

Art. I, Sec. 3[6]. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation ... no person shall be convicted without the concurrence of two-thirds of the members present.

Art. I, Sec. 3[7]. Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law.

Art. II. Sec. 2 [1]. The President ... shall have power to grant reprieves and pardons ... except in cases of impeachment.

Art.II. Section 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors.

In that regard, two things must be understood: (1) Legal scholars have suggested Congress alone decides for itself what constitutes a "high crime or misdemeanor." In 1970, the then-House Minority Leader, Gerald Ford said "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." (2) In [Walter] Nixon v. U. S., the U. S. Supreme Court held it did not have power to review whether the Senate properly "tried" Judge Nixon. The court found the Constitution confides the sole power to try impeachments to the Senate, and therefore that review of the Senate conviction was a non-justiciable matter, and it therefore lacked judicial power to review the judgment of the Senate.

There are a number of sound reasons why arrogant public officials of Lois Lerner's ilk should be impeached. An impeachment conviction by the Senate swiftly can remove an official from office who abuses his power, or who refuses to account for his conduct in office. It also can render him forever disqualified to hold and enjoy any (present or future) office of honor, trust or profit under the United States.

Additionally, it deprives him of all pension benefits. Finally, there are no endless judicial appeals from the Senate's conviction. Once convicted, the notion the officer is on administrative leave at full salary is dead. And once convicted, the President can't give him another government job.

If Ms. Lerner continues to take the 5th in the face of Impeachment, we can fairly conclude
that her taking the 5th was done in good faith, and that she would prefer to be removed from office, lose her pension and be disgraced and disqualified rather than to tell the whole truth which might lead to her criminal prosecution and imprisonment.

Posted Online:   June 01, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

What Comes of Denying Humanity?

"I have been assured by a very knowing American of my acquaintance in London, that a young healthy child well nursed is at a year old a most delicious, nourishing and wholesome food, whether stewed, roasted, baked or boiled ..." -- Jonathan Swift, A Modest Proposal for Preventing the Children of Poor People From Being a Burden to Their Parents or Country, and for Making Them Beneficial to the Publick (1729)

Dr. Kermit Gosnell now has been convicted of murdering three infants who survived his botched attempts to abort (kill) them. So, why was that wrong?

Since the 1973 Roe v. Wade decision, abortion has been legal in America. Since Roe, 55 million children have been aborted -- killed. The only conceivable moral justification for this, is that the fetus is not a human being. So, did it suddenly become one only after it was born so as to render Gosnell's killings murder?

There are three common methods of disposing of the bodies of first-trimester aborted babies:

-- Flushing them down a special garbage disposal

-- Disposing of them as biological waste in special plastic bags

-- Larger aborted babies frequently are sold for research purposes.

So, why not for food? I cannot but wonder what Johnathan Swift would have said about this. In 1729, Swift, after surveying the poverty in Ireland, penned his A Modest Proposal.

"It is a melancholy object to those who walk through this great town or travel in the country, when ... beggars of the female sex, followed by three, four or six children, all in rags and importuning every passenger for an alms. These mothers, instead of being able to work for their honest livelihood, are forced to employ all their time ... to beg sustenance for their helpless infants: who, as they grow up, either turn thieves for want of work, or leave their dear native country to fight for the Pretender in Spain."

Swift's bitterly satirical suggestion (which many benighted readers deemed to be a serious proposal!), was to fatten up the Irish babies until they were a year old, then sell the 100,000 who served no useful purpose to Irish landlords -- who already had stripped their Irish tenants of all other possession -- for dinner meat!

"The remaining hundred thousand may, at a year old, be offered in the sale to the persons of quality and fortune through the kingdom; always advising the mother to let them suck plentifully in the last month, so as to render them plump and fat for a good table. A child ... seasoned with a little pepper or salt will be very good boiled ... especially in winter."

A year ago, an op-ed appeared on this page that caused me to revisit Swift. "Roe v. Wade: This is what 40 years looks like to Planned Parenthood," was a panegyric extolling the Supreme Court's 1973 decision that highlighted the "benefits to women" in being allowed to "make their own personal medical decision."

It argued since Roe, rich women no longer have to travel to New York or Hawaii to have legal abortions. Poor women no longer have to seek abortions in back alleys. Women now are freer to pursue higher education, and obtain better jobs because they can prevent (end) unintended pregnancies. Indeed, each year publicly funded family-planning services prevent 1.94 million unintended pregnancies. (The piece did not specify whether those "unintended pregnancies" were prevented by contraception or abortion).

What I found reminiscent of Swift was its failure to mention how many unborn children are being aborted by Planned Parenthood either nationally or locally! I found this strange, because if abortion is indeed a positive good, why doesn't Planned Parenthood openly tell us the benefits accruing to the aborted fetus? Or at least, the salutary uses to which a fetus might be put?

The undeniable fact is that however much good abortion may do the mother, it is hardly a "blessing" for the aborted -- -murdered -- fetus (baby).

There is, of course, on the abortion issue, a divide between law and morality. Roe says a woman has a right to an abortion. At the same time half the country believes most abortion to be a moral wrong, a grave sin or even murder.

To me, the key issue is: What is the fetus/baby? Is it a human being? Or is it sub-human? Because it shares the DNA of both mother and father, I am forced to conclude it is a human being, separate and apart from its mother, and not just a part of its mother like a kidney or a boil, which only contain the mother's DNA. And because it has DNA of both parents, it cannot be said to be merely a part of its mother -- even while in the womb.

If I am wrong, I would rather face my God having erred on the side of the fetus.

The logical consequence of holding a fetus to be sub-human is that, if it could otherwise be useful to mankind, then treating it as medical waste might squander an otherwise useful resource. Swift might recommend the aborted fetus be canned and sent as food to the starving people of the Sudan. If it is less than human, what is the objection? Would that be any worse than grinding it up in a garbage disposal?

But, of course, if the fetus is indeed a person, such a Swift-ian proposal obviously would be utterly barbaric -- or perhaps "Gosnell-ian."


Posted Online:  May 17, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

Right to Keep, Bear Arms Pre-existed Constitution

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms shall not be infringed." -- Second Amendment

I recently found myself verbally mugged in a parking lot by a liberal friend, incensed by the U.S. Supreme Court's holding in D.C. v Heller. He insisted five of the conservative members ignored "the normal rules of statutory construction," and in effect overruled the court's own prior precedents construing the Second Amendment.

He specifically objected to the Heller court's holding that "the right of the people to keep and bear Arms shall not be infringed," was an individual right.

He argued the court utterly and erroneously ignored the first clause of the amendment which states "A well regulated Militia, [is] necessary for the security of a free State."

I tried to argue Heller was the most thorough and carefully written opinion the court had ever handed down construing the amendment, and that the case had its underpinnings not in "the normal rules of statutory construction" (a legal device of last resort), but rather the "historical experience" of the English people, including the American colonists, in 1789 and before.

Excerpts from Heller illustrate my points.

The court first noted the phrase "the right of the people" appears three times in the Bill of Rights. It is found in the First, Second and Fourth Amendments, with a similar phrase in the Ninth Amendment. In the court's words, "Nowhere else in the Constitution does a 'right' attributed to 'the people' refer to anything other than an individual right."

The court then looked at history: "the "militia" in colonial America consisted of a subset of 'the people' -- those who were male, able bodied and within a certain age range."

The court pointed out, "the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty."

The point being, if they were expected to bring the weapons "they possessed at home," they must have had a right to possess the weapons they were bringing.

It then said, "Reading the Second Amendment as protecting only the right to 'keep and bear Arms' in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as 'the people.' We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."

The court moved from parsing words about the individual's right to keep and bear arms and looked at early state constitutions.

"Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them -- Kentucky, Ohio, Indiana, and Missouri -- referred to the right of the people to 'bear arms in defence of themselves and the State.' Another three States -- Mississippi, Connecticut, and Alabama -- used the even more individualistic phrasing that each citizen has the 'right to bear arms in defence of himself and the State.

"It is clear from those formulations that 'bear arms' did not refer only to carrying a weapon in an organized military unit."

The court then looked to the historical background that preceded the Second Amendment, and one of its own early pronouncements.

"This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.' As we said in United States v. Cruikshank (1876), '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed.'"

The Court examined what the English people -- including American colonists -- believed their rights to be before our Constitution was adopted in 1789.

"By the time of the founding, the right to have arms had become fundamental for English subjects. ... Blackstone, whose works, we have said, 'constituted the preeminent authority on English law for the founding generation,'... cited the arms provision of the [English] Bill of Rights as one of the fundamental rights of Englishmen. ..." It was, he said, 'the natural right of resistance and self-preservation,' ... and 'the right of having and using arms for self-preservation and defence,' ... Thus, the right secured in 1689 [in the English Bill of Rights] as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right protecting against both public and private violence."

"And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760s and 1770s, the Crown began to disarm inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that '[i]t is a natural right which the people have reserved to themselves, confirmed by the [English] Bill of Rights, to keep arms for their own defence.' ... They understood the right to enable individuals to defend themselves. ... Americans understood the 'right of self-preservation' as permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury.'"

Heller's underpinnings are primarily found in the historical experience of the English people, including their American colonists -- not in "rules of statutory construction." These people believed they had a historical right to keep and bear arms for their own defense.The Second Amendment says "right of the people to keep and bear Arms shall not be infringed." You can't infringe a right unless it already exists.

The bottom line, in the words of the Heller majority, is this:

"If ... the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, [and] the organized militia is the sole institutional beneficiary of the Second Amendment's guarantee -- it does not assure the existence of a 'citizens' militia' as a safeguard against [governmental] tyranny. ...

"For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force. ... It guarantees a select militia of the sort the Stuart kings found useful, but not the people's militia that was the concern of the founding generation. "

Posted Online:  May 15, 2013, 11:00 - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

Forget the Spin - What Citizens United Ruling Really Says

Since Citizens United v. The FCC was decided by the U. S. Supreme Court in 2010, every "liberal" that I have heard speak of the decision has expressed a visceral hatred for the case.

They use words like "infamous" or "deplorable" to describe the holding. Indeed, President Obama led the charge during his 2010 State of the Union Address, "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign companies -- to spend without limit in our elections.:

In Citizen's United, the court considered the constitutionality of a section of the Bipartisan Campaign Reform Act of 2002 that prohibited "corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an 'electioneering communication' or for speech expressly advocating the election or defeat of a candidate."

The main issue in Citizens United was, can Congress, consistently with the First Amendment, bar corporations (and unions) from engaging in political speech ("electioneering communications" or "speech expressly advocating the election or defeat of a candidate"). Note: Citizens United did not involve "campaign contributions" made to a candidate.

What also must be understood is the decision was not the source of political action committees. They were creatures of the BCRA.

In the words of the court, under BCRAL:

"Corporations and unions are barred from using their general treasury funds for express advocacy or electioneering communications. They may establish, however, a '"separate segregated fund' (known as a political action committee) for these purposes. The moneys received by the segregated fund are limited to donations from stockholders and employees of the corporation or, in the case of unions, members of the union."

Citizens United was a nonprofit corporation. In January 2008, it released a film entitled "Hillary: The Movie." Hilary was a 90-minute documentary about then-Sen. Hillary Clinton, who was a candidate in the Democratic Party's 2008 presidential primarys. It was released in theaters and on DVD, but Citizens United wanted to increase distribution by making it available through video on-demand. Citizens United sued the FCC to void the ban on "independent expenditures" by a corporation under Section 441, as violative of the First Amendment. The Supreme Court's starting point in striking down Section 441, was the First Amendment: "Congress shall make no law ... abridging the freedom of speech."

Justice Anthony Kennedy on behalf of the majority wrote:

"The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations -- including nonprofit advocacy corporations -- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election.

"Thus, the following acts would all be felonies under (section) 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship."

And he might have added NARAL could not expend its funds to endorse pro-choice candidates.

Freedom of speech can be exercised by an individual acting alone. But it also can be exercised by two or more individuals acting together. Indeed the same First Amendment which says "Congress shall make no law... abridging the freedom of speech" recognizes that, when it goes on to say "or of the press, or the right of the people to peaceably to assemble, and petition the Government for a redress of grievances."

People peaceably assemble or associate in many ways. They form political parties. They form partnerships, voluntary associations, corporations, labor unions and churches (some of which are corporations). The First Amendment does not say, "Congress shall make NO law ... abridging the freedom of speech, except in the case of partnerships, voluntary associations, corporations, labor unions and churches."

If a group of people comprising a union has a right to lobby the government to force corporations to pay a higher minimum wage, another group of people who have formed a business corporation, and who will be forced to pay a higher minimum wage, surely has a co-relative right to lobby the government to leave the minimum wage alone.

This is what Justice Kennedy means when he says, "We find no basis (consistently with the First Amendment) for the proposition that, in the context of political speech, the Government may impose restrictionson certain disfavored speakers. Both history and logic lead us to this conclusion."

It is hard to summarize an opinion that runs 57 pages in 800 words. But Citizens United should be read by all Americans. I think you'll like it. (supremecourt.gov/opinions/09pdf/08-205.pdf).


Posted Online:  May 07, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea