Does Second Amendment Apply to States?

Answer: Yes.

See my article, "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=723501, just out in hardcopy with the Missouri Law Review.

When I started thinking about this article a few years back, I was prepared to argue that (1) the second amendment does not protect an "individual right," and (2) the second amendment does not apply to individual states, so they should therefore be allowed to outlaw guns.

This was my liberal wishful thinking, anyway, that government should be able to regulate anything as harmful as guns in our society (homicide rate of 4.3 per 100,000, more than 5 times the next highest rate among industrialized nations (Italy)).

But after looking into the history of the debates, etc., it soon became apparent that the overwhelming weight of evidence supports the contrary position, that (1) the second amendment WAS intended to protect an individual right; and (2) the entire bill of rights - including the second amendment - was affirmatively applied to the states in 1868 through the fourteenth amendment privileges or immunities clause (or, alternatively, through the Supreme Court's unnecessarily-tortured "selective incorporation" doctrine premised on the fourteenth amendment due process clause). And as much as I or anyone else might wish it to be otherwise, we can't simply pick and choose from among the constitutional provisions we like and do not like - if we are to maintain fidelity to the notion of constitutional government, we must give effect to the ENTIRE Constitution. (On this point, see also my letter to the New York Times on March, 19, 2007.)

But, as I say in the article (fn. 5), to say that a right like the second amendment is entitled to constitutional protection is NOT to say the right cannot be meaningfully regulated. As Harvard law professor Laurence Tribe notes, "[measures that] by and large do not seek to ban all firearms, but seek only to prohibit a narrow type of weaponry (such as assault rifles) or to regulate gun ownership by means of waiting periods, registration, mandatory safety devices, or the like ... are plainly constitutional.... Even in colonial time the weaponry of the militia was subject to regulation."

Here's the full abstract to the Missouri Law Review article:

"The second amendment, alternately maligned over the years as the black sheep of the constitutional family and praised as a palladium of the liberties of a republic, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause.
This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or immunities clause. Such judicial recognition of the clause is necessary to respect the Framers’ vision, as inspired by the Declaration of Independence and laid out in the amended Constitution, for a government that would serve, instead of rule, the people. Government would exercise its necessary, limited role, and otherwise leave the people alone, with the Constitution standing ever watchful as guardian to assure that government would not overstep its bounds, as governments are apt to do."

Post-Bush America

One of the lasting effects of the George W. Bush presidency is that U.S. credibility is so damaged around the world that it will be difficult for his successor to shape events ranging from addressing global warming, to economic integration, to middle-east politics, and so on and so on.

Perhaps most worrisome is that democracy itself, as a viable political system for the greater good, is damaged by U.S. behavior under Bush's leadership. Why democracy, one might ask, in view of the messes the U.S. is making in Iraq, global warming, Guantanamo Bay, etc., etc.? As Roger Cohen suggests in today's New York Times, "Liberal democracy has taken a battering. A countermodel now exists: the authoritarian-capitalist, or Leninist-capitalist, systems of China and Russia. They have benefited from Iraq's democracy-as-mayhem."

Democracy is the best system yet devised for protecting the Enlightenment-based values of Reason and Individual Liberty. With the bungling of Bush and the Gang that Couldn't Shoot Straight, the next president will have a tall task in restoring faith around the world in the American version of democracy epitomized in the values of pluralism, rule of law, independent media, market economies, tolerance, and basic human decency.

Bush Administration Extremism in War on Terror

You know there's truth to the charges leveled here and elsewhere that the George W. Bush administration has exceeded constitutional bounds in its no-holds-barred approach to the War on Terror when its former key constitutional adviser says so.

As reported by Jeffrey Rosen in the September 9, 2007 New York Times Magazine, Jack Goldsmith, formerly head of the Justice Department's Office of Legal Counsel (the division that advises the president on the limits of executive power) and now a law professor at Harvard, says he is speaking publicly in a new book, "The Terror Presidency," to be published later this month, because he hopes that "future presidents and people inside the executive branch can learn from our mistakes." (In writing this book, Goldsmith is no George Tenet seeking to cash in with a tell-all memoir - he is donating his advance and all proceeds to charity.)

Starting in 2002, Goldsmith served in the Pentagon as a legal adviser to the general counsel of the Defense Department; then in October 2003 he was hired to head the Office of Legal Counsel, only to resign nine months later. As Rosen reports, "Although [Goldsmith] refused to discuss his resignation at the time, he had led a small group of administration lawyers in a behind-the-scenes revolt against what he considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror.... By the end of his tenure, he was worn out. 'I was disgusted with the whole process and fed up and exhausted,'" he said.

"In Goldsmith's view," Rosen continues, "the Bush administration went about answering questions [about the legal limits of executive power] in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, 'go-it-alone' view of executive power. As Goldsmith sees it, this strategy has backfired. 'They embraced this vision,' he says, 'because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.'"

Goldsmith's opinion is especially telling since he was a member of the innermost circle of the Bush administration's dealings in the War on Terror. He was in the room, in fact, in the now-famous visit by Alberto Gonzales and White House Chief of Staff Andrew Card to then-Attorney General John Ashcroft's hospital room to demand that Ashcroft approve, over Goldsmith's and others' objections, the secret terrorist surveillance program. Goldsmith describes the scene:

"Ashcroft, who looked like he was near death [with a bright light shining on him and tubes and wires coming out of his body], sort of puffed up his chest. All of a sudden, energy and color came into his face, and he said that he didn't appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn't the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I've ever witnessed."

Goldsmith concludes that the Bush administration "badly overplayed a winning hand," telling Rosen that in retrospect "Bush 'could have achieved all that he wanted to achieve, and put it on firmer foundation, if he had been willing to reach out to other institutions of government.' Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen."

If there's any silver lining to the sad saga of the Bush presidency, it's in Goldsmith's concluding words: "I don't think any president in the near future can have the same attitude toward executive power, because the other institutions of government won't allow it. The Bush administration has borrowed its power against future presidents."

That, indeed, is the system of checks and balances that the Constitution's structural separation of powers was designed to create.

Iraq Mistakes - Paul Bremer

Did you happen to see Roger Cohen's column in today's New York Times?

In it he discusses one of the many mistakes made in Iraq: the naming by George W. Bush of Paul Bremer to operate as grand poobah of all operations and governance in Iraq, despite the fact that there had been a thoroughly-discussed plan to leave the ruling during the post-Saddam reconstruction to the Iraqis with the US operating behind the scenes.

The plan that never emerged involved sending Zalmay Khalilzad, the Beirut-educated, Farsi-speaking Sunni Muslim who actually has a clue about the Islamic world currently serving as American ambassador to the United Nations, and who had previously worked in Afghanistan to shepherd of Hamid Karzai to power in Kabul, to Iraq to convene a meeting of Iraqis to plan for governing themselves.

As Cohen tells it:

"Khalilzad’s anguish centers on May 6, 2003. That’s the day he expected Bush to announce his return to Iraq to convene a grand assembly — something like an Afghan loya jirga — that would fast-forward a provisional Iraqi government.

Instead, the appointment of L. Paul Bremer III to head a Coalition Provisional Authority was announced. Khalilzad, incredulous, went elsewhere. In the place of an Afghan-American Muslim on a mission to empower Iraqis, we got the former ambassador to the Netherlands for a one-year proconsul gig.

'We had cleared both announcements, with Bremer to run things and me to convene the loya jirga, both as presidential envoys,' Khalilzad told me. 'We were just playing with a few final words. Then the game plan suddenly changed: we would run the country ourselves.'

Alluding to former Secretary of State Colin Powell and his successor, Condoleezza Rice, who was then national security adviser, Khalilzad continued: 'Powell and Condi were incredulous. Powell called me and asked: ‘What happened?’ And I said, ‘You’re secretary of state and you’re asking me what happened!’'

Powell confirmed his astonishment. 'The plan was for Zal to go back,' he said. 'He was the one guy who knew this place better than anyone. I thought this was part of the deal with Bremer. But with no discussion, no debate, things changed. I was stunned.'

The volte-face came at a Bush- Bremer lunch that day where Bremer made a unity of command argument to the Decider. 'I put it very directly to the president: you can’t have two presidential envoys running around Iraq,' Bremer told me.

A MacArthur-Karzai debate had raged within the administration for months: should the United States run Iraq like Gen. Douglas MacArthur in postwar Japan or seek a local Karzai-like leader and operate behind the scenes? ...

'The way we did it gave Iraqis the best chance of a sustainable political process,' [Bremer] argued.

Nonsense, Khalilzad believes. 'I feel strongly that the U.S. ruling was wrong. We could have had an interim Iraqi government. I argued, based on Afghanistan, that with forces, diplomacy and money, nothing can happen anyway without your support.'

Powell agrees. 'Everything was Bremer, the suit, the boots, the whole nine yards.' It was a mistake not to move 'more rapidly to putting an Iraqi face on it.'

Khalilzad and Powell are right. The insurgency that took hold after Bremer’s arrival had a clear target: the guy in Timberlands. Given the extent of its post-cold-war power, the United States must wield it with subtlety. This was the sledgehammer approach.

And chosen over lunch. 'Unfortunately, yes, the way that decision was taken was typical,' Powell said. 'Done! No full deliberations. And you suddenly discover, gee, maybe that wasn’t so great, we should have thought about it a little longer.'”

Lessons from this sad tale? We've long known the Decider makes bad decisions, period. He has made bad decisions his entire life, but has managed to thrive nonetheless when Poppy Bush and his gang bail him out. The saddest point is that the American people, with plenty of evidence of George W. Bush's bad decisionmaking and otherwise poor skills, nonetheless re-elected him in 2004.

Congress Goes Baaaaaa

ACLU Executive Director Anthony Romero gets it just about right in a recent solicitation when he says, regarding Congress's recent expansion of President Bush's power to conduct warrantless wiretaps:

"Ever since a new Congress got elected last November, we've been waiting for it to end the violations of the Constitution and the lawless behavior of the Bush administration.

Well, Members of Congress acted. And instead of restoring our freedoms, they actually handed the Bush administration vast new powers to invade our privacy with no meaningful oversight from the courts or Congress.

Why did Congress cower to George Bush? Fear -- not of terrorists -- but of being labeled "soft on terrorism." It's time to show House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid that Americans want them to protect our Constitution.

When our leaders behave like sheep, their constituents need to know it....

It's bad enough that our Congressional leaders have failed to act to restore habeas corpus, end torture and rendition, and close the Guantanamo Bay prison. But now Congress, led by Harry Reid and Nancy Pelosi, have caved in to Bush fear-mongering and expanded a warrantless spying program they should be investigating and ending.

It's gone from bad to intolerable....

We must make it clear we won't let Congress fail freedom any longer, and that we hold Congress, especially Democrats, accountable for this egregious violation of our constitutional rights."

At What Cost Security?

With the Democratic Congress's authorization a couple weeks ago to allow the executive to conduct warrantless wiretapping, thereby acquiescing to George W. Bush's familiar scare tactics (I think The Onion headline gets it about right: "What the f- did you think we elected you people to do?"), we again face the perennial question of "what are we willing to give up in the name of security?"

First, we should recognize the scope of the problem. Granted, 9/11 was horrific. And the 3000 deaths that day are tragic. But as I blogged earlier this year, so are the 43,000 traffic deaths every year in the U.S. (about 250,000 since 2001); the 550,000 cancer deaths (3.3 million since 2001); and the 655,000 Iraqi (CNN.com Oct. 06) and about 3,500 American war deaths in Iraq since the 2003 invasion.

And the spending - Bush/Cheney is bankrupting the nation with its military adventurism in the name of fighting terror.

Britain and others have begun taking the sensible step of considering audacious attacks like 9/11 as criminal acts subject to harsh penalty, but not to reconstruct the very fabric of society itself around some vague amorphous future terrorist threat. That's what's happening in the United States today - we're throwing the liberty baby out with the threat-to-security bathwater. As a result, the United States is now regarded in the same breath as Stalinist Russia by some of Stalin's modern-day apologists, who justify his pograms and killings of millions of Russians with the statement that "sometimes security requires the limiting of individual liberty, just as we've seen in the United States since September 11, 2001." Some company.

War of Ideology - Who Writes History?

The new Atlantic Monthly's cover story entitled "Lessons From a Failed Presidency" got me thinking.

By now it is clear to reasonable people that the George W. Bush presidency has been nothing short of disastrous. Yet we still see Fox News reporting a different all-is-well story, and we still read reports from some, like neo-con William Kristol and other apologists, encouraging us to stay the course - if not escalate - in Iraq, and to continue to engage in other misadventures around the world (CIA camps, etc. etc.). And this is not to mention the administration's systematic denial of rational scientific evidence in its approach to domestic policy (stem cell, energy policy, etc.).

So the Atlantic's cover story got me thinking about how history will view this era. One hopes there will be a balanced approach, but there's a worry that the Fox News version will prevail.

There is precedent. After the Civil War and the Union victory, the South ultimately won the subsequent "history-writing war." For a brief time following the war, when Reconstruction was underway, there was true equality opportunity for people of all races (women aside, but that's another, major, story). Thereafter things changed, as historian Eric Foner explains:

"By the turn of the century, Reconstruction was widely viewed as little more than a regrettable detour on the road to reunion. To the bulk of the white South, it had become axiomatic that Reconstruction had been a time of ‘savage tyranny’ that ‘accomplished not one useful result, and left behind it, not one pleasant recollection.... This rewriting of Reconstruction’s history was accorded scholarly legitimacy – to its everlasting shame – by the nation’s fraternity of professional historians, … [and] shaped historical writing for generations.... Few interpretations of history have had such far-reaching consequences as this image of Reconstruction, … [which] ‘did much to freeze the mind of the white South in unalterable opposition to outside pressures for social change and to any thought of … eliminating segregation, or restoring suffrage to disenfranchised blacks."

The historians of whom Foner speaks were an early twentieth-century group of young scholars from the South studying the Reconstruction at Columbia University under Professor Dunning, who “were taught … [that Blacks] were ‘children’ utterly incapable of appreciating the freedom that had been thrust upon them. The North did ‘a monstrous thing’ in granting them suffrage, for ‘a black skin means membership in a race of men which has never of itself succeeded in subjecting passion to reason, has never, therefore, created any civilization of any kind.’… These “Dunning School” views … achieved wide popularity through D.W. Griffith’s film, Birth of a Nation (which glorified the Ku Klux Klan and had its premiere at the White House during Woodrow Wilson’s Presidency). … Southern whites, … [it was said,] ‘literally were put to the torture’ by ‘emissaries of hate’ who inflamed ‘the negroes’ egotism’ and even inspired ‘lustful assaults’ by blacks upon white womanhood.’”

In 100 years, will the George W. Bush presidency be remembered in the history books as, perhaps, the era when religion and government were finally properly melded in policymaking? Or, perhaps, the era when the executive finally emerged as the dominant branch, after dispensing with the quaint notion of separation of powers, thus allowing the President to undertake the important task of guiding America in its sacred role as the world's policeman unencumbered by outdated niceties like congressional and judicial oversight?

The War of Ideology in the writing of the history is just beginning.