TV Interview - Second Amendment Case

Here's a link to a video clip from my interview with WOOD-TV (Grand Rapids) from Washington when I was there on March 18 for the DC v. Heller Second Amendment case): http://www.law.msu.edu/news/2008/WoodTV-Lawrence-gun-rights.html.

Progressive Liberty - Harnessing Private Initiative for the Public Good

By definition, "progressive liberty"seeks to harness creative thinking on how to govern in ways that productively advance the common good while protecting individual liberty.

A recent column by David Brooks in the New York Times entitled "Thoroughly Modern Do-Gooders" describes ideas to this end - in the context of combining public and private initiative in ways productive to the common good - of "big thinkers" like Bill Gates:

"Social entrepreneurs," who may have "worked for a software firm before deciding to use what they’d learned in business to help the less fortunate, [now] work 80 hours a week, fighting bureaucracies and funding restrictions in order to build, say, mentoring programs for single moms.

"Earlier generations of benefactors thought that social service should be like sainthood or socialism. But this one thinks it should be like venture capital.

"These thoroughly modern do-gooders dress like venture capitalists. They talk like them. They even think like them. That means that aside from the occasional passion for heirloom vegetables, they are not particularly crunchy. They don’t wear ponytails, tattoos or Birkenstocks. They don’t devote any energy to countercultural personal style, unless you consider excessive niceness a subversive fashion statement.

"Next to them, Barack Obama looks like Abbie Hoffman.

"It also means that they are not that interested in working for big, sluggish bureaucracies. They are not hostile to the alphabet-soup agencies that grew out of the New Deal and the Great Society; they just aren’t inspired by them.

"J.B. Schramm created a fantastic organization called College Summit that provides students with practical guidance through the college admissions process. Gerald Chertavian, a former software entrepreneur, created Year Up, which helps low-income students get apprenticeships in corporations and packages its fund-raising literature in the form of an I.P.O. prospectus.
The venture-capital ethos means instead that these social entrepreneurs are almost willfully blind to ideological issues. They will tell you, even before you have a chance to ask, that they are data-driven and accountability-oriented. They’re always showing you multivariate regressions or explaining why some promising idea “didn’t pencil out.” The highest status symbol in their circle is a Rand study showing that their program yields statistically significant results.

"Bill Gates, who fits neatly into this world, came to dinner with journalists in Washington last week. He looked utterly bored as the conversation drifted to presidential campaign gossip. But when asked about which programs produce higher reading scores, the guy lit up and became a fountain of facts and findings.

"The older do-gooders had a certain policy model: government identifies a problem. Really smart people design a program. A cabinet department in a big building administers it.
But the new do-gooders have absorbed the disappointments of the past decades. They have a much more decentralized worldview. They don’t believe government on its own can be innovative. A thousand different private groups have to try new things. Then we measure to see what works.

"Their problem now is scalability. How do the social entrepreneurs replicate successful programs so that they can be big enough to make a national difference?

"America Forward, a consortium of these entrepreneurs, wants government to do domestic policy in a new way. It wants Washington to expand national service (to produce more social entrepreneurs) and to create a network of semipublic social investment funds. These funds would be administered locally to invest in community-run programs that produce proven results. The government would not operate these social welfare programs, but it would, in essence, create a network of semipublic Gates Foundations that would pick winners based on stiff competition.

"There’s obviously a danger in getting government involved with these entrepreneurs. Government agencies are natural interferers, averse to remorseless competition and quick policy shifts. Nonetheless, these funds are worth a try.

"The funds would head us toward this new policy model, in which government sets certain accountability standards but gives networks of local organizations the freedom to choose how to meet them. President Bush’s faith-based initiative was a step in this direction, but this would be broader.

"Furthermore, we might as well take advantage of this explosion of social entrepreneurship. These are some of the smartest and most creative people in the country. Even if we don’t know how to reduce poverty, it’s probably worth investing in these people and letting them figure it out.

"They won’t stop bugging us until we do."

Obama's Race Speech

Yesterday in his speech "A More Perfect Union," addressing the inflammatory remarks of his former pastor Rev. Jeremiah A. Wright Jr., Barack Obama offered a vision for how we might move forward past the pain, anger and frustration of generations of blacks and whites on the matter of race in America.

Acknowledging that this anger and resentment has "helped shape the political landscape for at least a generation" (a vast understatement, given America's slavery-past), he urged Americans to embrace "the burdens of our past without becoming victims of our past."

Unlike other politicians, Obama speaks to Americans as adults instead of children. Human nature is complex - we are all possessed of both good and bad qualities. In refusing to throw his longtime pastor and friend under the bus when the latter's inflammatory comments created difficulties for him, he demonstrated admirable compassion. Just as he and we should be compassionate with the United States and not throw it under the bus when its leaders act in abhorrent fashion by invading sovereign nations on false pretenses and advocating torture techniques.

Obama demonstrates the sort of compassion and progressive thinking America desperately needs. There is good in all human beings, and there is good in the United States - now how are we going to work together to bring out our greater good?

Second Amendment Oral Arguments in Supreme Court

I had the privilege today of hearing personally the oral arguments in the U.S. Supreme Court of the major Second Amendment case, DC v. Heller.

From the questioning, it sounds like the U.S. Supreme Court will find the Second Amendment protects an individual right - a welcome development, as I discuss in an OpEd published in today's Detroit Free Press.

Interestingly, the sides were really not that far apart - both correctly note that reasonable regulation of guns is acceptable. Where they differ is whether a "reasonable" regulation includes an outright ban on guns, as DC argues; or whether an outright ban is "unreasonable," as Heller argues (and agreed with by the lower court in this case).

Here's the text of the Free Press OpEd:

The U.S. Supreme Court will hear arguments today about whether individuals have the right to own a gun -- one of the most important constitutional law cases of the past 100 years.

The reason this case, D.C. v. Heller, is so important is that it involves an individual right guaranteed in the Bill of Rights that most lower courts throughout American history have held simply does not exist. The U.S. Supreme Court, by contrast, has never addressed the question of whether the Second Amendment protects an individual right, and in fact has heard only one Second Amendment case in well over a hundred years (1939).

The Supreme Court in D.C. v. Heller has a chance finally to do the right thing and settle the question that the Second Amendment protects an individual right. This would be a positive step, because a faithful reading of the Constitution does not allow us to pick and choose from among rights we like or dislike, and we bolster all of our rights, both enumerated and unenumerated (e.g., right to privacy), when we adopt an expansive view of individual liberty.

As for what this case means to the average person, let's say average-Joanne wants to keep a gun under her pillow at night for security; while average-Joe, for the common good of society, wants Congress to prohibit her and everyone else from doing so. Who wins?

Joanne wins, and can keep her gun, if the Supreme Court upholds the lower court decision that the Second Amendment protects an individual right. Joe wins, and the government can ban guns (as the District of Columbia did in this case), if the court holds that the amendment instead protects a "states' right" to arm the people collectively.

But the fact is both Joanne and Joe also win under the individual right position. To say the Second Amendment protects an individual right simply means that the government cannot prohibit firearms, but nothing prevents their reasonable regulation. Other individual rights, such as First Amendment freedom of speech, are properly subject to government regulation, though never prohibition.

An increasing number of courts now conclude that the Second Amendment was intended to protect an individual right.

The reason the amendment has been misinterpreted for so long is that its language is unclear. By stating, "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," the amendment opens itself up to argument on whether it is intended to protect only a collective states' right as opposed to an individual right. Virtually every federal or state court considering the question over the past century has adopted the former perspective -- until now.

By recognizing that the Second Amendment protects an individual right subject to reasonable regulation, the court will protect both average-Joanne's individual right to own a gun and average-Joe's common-good interest in regulating them.


MICHAEL ANTHONY LAWRENCE, a professor at Michigan State University College of Law, is the author of "Second Amendment Incorporation through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" in the Missouri Law Review (Winter 2007). He blogs at http://www.progressiveliberty.blogspot.com/.

Just another note beyond the OpEd - the sorts of acceptable regulations, even when the Second Amendment is interpreted to protect an individual right, would include those offered recently by the New York Times editorial page :

“Requiring background checks for every gun purchase. That means closing the egregious loophole that permits unlicensed dealers to sell firearms at gun shows without conducting any background check.

“Limiting purchases to one gun a month in order to defeat traffickers who use straw purchasers to buy weapons in bulk and then resell them on the street.

“Once again banning the sale of military-style assault weapons and high-capacity ammunition magazines like those used by the Virginia Tech and Northern Illinois University killers.”

Second Amendment Case - The Technical Arguments

What specific technical arguments will the Supreme Court hear in DC v. Heller, the historic Second Amendment case to be argued before the Court on March 18, 2008, in which the Court will decide whether the Second Amendment protects a States’-right, as opposed to an individual-right, to keep and bear arms? (Basically, if the amendment is found to protect an individual right, Congress may not ban an ordinary person from having a gun.)

The Second Amendment states, “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.” This language is far from clear, so it is understandable how, based on the text alone, one could argue either that the amendment protects a States’-right or an individual-right.

There is general agreement among all that the first, prefatory clause (“A well regulated Militia, being necessary to the security of a free State,”) declares the amendment’s civic purpose - insuring the continuance of the militia system; but there is major disagreement on whether that purpose was exclusive of the second, operative clause (“the right of the people to keep and bear Arms, shall not be infringed”). Supporters of the individual-right interpretation argue the prefatory clause is not exclusive – i.e., that it merely announces the desirability of a well-regulated militia and informs the meaning of the ambiguous term “Arms” within the more broadly-stated operative clause that follows. They argue the more natural reading of the operative clause is to guarantee to the people an individual right to keep and bear arms free of government infringement.

In contrast, supporters of the States’-right approach argue, in the words of the lower court, “that the prefatory clause declares the amendment’s only purpose – to shield the state militias from federal encroachment – and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right.”

There is further disagreement on the meaning of the amendment’s individual words and phrases, such as “the people.” Individual-right supporters note that the phrase is also found in the First, Second, Fourth, Ninth, and Tenth Amendments, all of which protect an individual right against government infringement. It follows, they argue, that the most natural reading of “people” in the Second Amendment would be to apply the word in terms consistent with its usage elsewhere in the Bill of Rights. In contrast, proponents of the States’ right theory read “’the people’ to mean some subset of individuals such as ‘the organized militia’ or ‘the people who are engaged in militia service,’ or perhaps not any individuals at all - e.g., ‘the States.’”

The Court will also consider the meaning of “to keep and bear arms.” While supporters of the collective-right theory will point to convincing evidence that the phrase was commonly used in the founding era to mean “soldiering,” individual-rights theorists will cite equally convincing evidence from contemporaneous state constitutional provisions suggesting the phrase was also understood to include the carrying of arms for self-defense and other private purposes.

Likewise, “a well regulated Militia” is subject to dramatically varying meanings under the different viewpoints, and the Court will hear detailed and convincing arguments both ways. While the individual rights position argues that the word “Militia” is synonymous with “the people,” States’-right advocates offer a much more limited definition in which the Militia was a group of adult men well-regulated and organized by the State as a civilian fighting force. As the lower court observes, “The crucial distinction between the parties' views then goes to the nature of the militia: [Individual-right proponents] claim no organization was required, whereas the [States’-right adherents] claim a militia did not exist unless it was subject to state [regulation,] discipline and leadership.”

Finally, the Court will consider the impact of U.S. v. Miller in 1939, the only case in the past century-plus in which the High Court has addressed a Second Amendment issue. While each side will lay claim to Miller as precedent for its respective position, in the end Miller is, in a word, inconclusive. If anything, Miller’s reasoning in holding that the word “Arms” in the Second Amendment does not include sawed-off shotguns would seem to favor the individual-right position.

In conclusion, regardless of how the Court decides in DC v. Heller, the case should be entertaining theater.

Supreme Court Second Amendment Case Commentary

The Second Amendment case scheduled for argument in the U.S. Supreme Court next Tuesday, March 18, DC v. Heller, is one of the most highly-anticipated Supreme Court cases in a good long while.

Simply, the U.S. Supreme Court has never addressed the question of whether the Second Amendment protects an individual right to keep and bear arms (it has not addressed a Second Amendment issue at all since 1939, and that case did not answer the individual right question).

In the coming weeks, from around the oral argument until the Court releases its decision a couple months later, I'll provide commentary on various aspects of the Second Amendment issue, such as more explanation why this case is such a big deal in constitutional terms; what the case will mean to people in their day-to-day lives - i.e., whether the government can prevent normal people from owning guns, or whether people will have a right that can't be taken away by the government; and what are the specific constitutional arguments being made in the case.

George W. Bush Protects Torture Technique

Last week an advisor to Barack Obama resigned because she referred to Hillary Clinton as a "monster" during an interview with a Scottish publication.

One should pause, and hesitate again, before damning another human being with such an incendiary term, defined by Webster's Unabridged as "a person who excites horror by wickedness, cruelty, etc." Obama's advisor was correct to resign - Hillary Clinton has done nothing to deserve such a label.

George W. Bush, on the other hand, comes close to deserving the label after his veto yesterday of a bill that would have banned the torture technique of "waterboarding" and other techniques not allowed in the Army field manual on interrogation (which prohibits physical force against prisoners). To use the massive power of the office of the President of the United States to advocate (over the objection of the democratically-elected legislature, no less) what is widely regarded as cruel, inhumane and beyond the bounds of decency is, by definition, nothing short of monstrous.

Understand that most experts - including the military and law enforcement agencies like the FBI - believe the technique is unnecessary and even counterproductive. Bush's own commander in Iraq, Gen. David H. Patraeus, has argued that the use of such techniques creates risks for any future American prisoners of war.

So why does he persist? In a word - Power. Power of the presidency vis-a-vis Congress and anybody else who crosses his sanctimonious good vs. evil worldview.

And the all-too-shameful fact is the veto will not be overridden. (The bill passed 221-199 in the House and 51-45 in the Senate, short of the two-thirds needed to override the veto.) It is most unfortunate that there are enough in Congress - mostly Republicans, it happens - who lack the spine and courage to stand up against Bush's fearmongering. Who are these people? Have they no shame?

This is why people around the world justifiably hate George W. Bush's America.

Fiscal Irresponsibility and the Crippling Cost of Iraq

If the moral and international law problems with George W. Bush's ill-fated adventure in Iraq were not enough, the holdout war-supporter need only look to the crippling economic cost of the war to understand the damage it has done to America.

As described in Bob Herbert's New York Times column yesterday, "The $2 Trillion Nightmare,"

"On Thursday, the Joint Economic Committee, chaired by Senator Chuck Schumer, conducted a public examination of the costs of the war. The witnesses included the Nobel Prize-winning economist, Joseph Stiglitz (who believes the overall costs of the war — not just the cost to taxpayers — will reach $3 trillion), and Robert Hormats, vice chairman of Goldman Sachs International.

"Both men talked about large opportunities lost because of the money poured into the war. “For a fraction of the cost of this war,” said Mr. Stiglitz, “we could have put Social Security on a sound footing for the next half-century or more.”

"Mr. Hormats mentioned Social Security and Medicare, saying that both could have been put “on a more sustainable basis.” And he cited the committee’s own calculations from last fall that showed that the money spent on the war each day is enough to enroll an additional 58,000 children in Head Start for a year, or make a year of college affordable for 160,000 low-income students through Pell Grants, or pay the annual salaries of nearly 11,000 additional border patrol agents or 14,000 more police officers.

"What we’re getting instead is the stuff of nightmares. Mr. Stiglitz, a professor at Columbia, has been working with a colleague at Harvard, Linda Bilmes, to document, among other things, some of the less obvious costs of the war. These include the obligation to provide health care and disability benefits for returning veterans. Those costs will be with us for decades.
...

"Mr. Hormats told the committee:

"“Normally, when America goes to war, nonessential spending programs are reduced to make room in the budget for the higher costs of the war. Individual programs that benefit specific constituencies are sacrificed for the common good ... And taxes have never been cut during a major American war. For example, President Eisenhower adamantly resisted pressure from Senate Republicans for a tax cut during the Korean War.”"

"Said Mr. Stiglitz: “Because the administration actually cut taxes as we went to war, when we were already running huge deficits, this war has, effectively, been entirely financed by deficits. The national debt has increased by some $2.5 trillion since the beginning of the war, and of this, almost $1 trillion is due directly to the war itself ... By 2017, we estimate that the national debt will have increased, just because of the war, by some $2 trillion.”"

Thanks, George.

American Government's Betrayal

The George W. Bush Administration's dismal record on human rights, often as enabled by Congress, has caused inestimable damage to America's prestige around the world these last seven-plus years. And given the needless squandering of America's previously-held hard-won reputation for fairness, due process, and human rights, one can't help but feel infuriated by the massive betrayal of those principles by the American government. What would have seemed impossible just seven years ago - waterboarding, rendition, secret CIA torture camps, indefinite imprisonment without adequate process, warrantless spying on citizens, etc. etc. - is now reality.

As The Sun Editor and Publisher Sy Safransky comments in a 2008 reflection on the nature of the American government’s betrayal, “I wonder: Do I feel betrayed? Not like a groom whose bride backs out of the wedding at the last minute. Not that kind of betrayed. Maybe more like a groom whose bride shows up an hour late because she was entertaining the CEO of Halliburton in her motel room. The room with the waterbed. That kind of betrayed.”

Note the distinction. The first leads to feelings of betrayal, sure - but as the groom, one can rationalize that the bride is acting on principle in making the excruciatingly difficult decision in electing not to go through with the marriage if she is not ready, and if so maybe it's for the best after all. The second, on the other hand, with its callous, cynical disregard and outright mocking of a solemn trust - on a day of high hope and promise, no less – is of a different, more insidious sort altogether. It's just slimy - and that's about how things have gone these last seven years both abroad and at home.