Monday, May 24, 2010

McDonald v. Chicago: Brief for Petitioners, by Ashley

I have tried to synthesize all of our research and notes into one brief so this might be a little rough.

Supreme Court of the United States
No. 08-1521

OTIS MCDONALD, et al., Petitioners,

CITY OF CHICAGO, Respondent.
On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit



The Constitutional question in this case is whether or not the Second Amendment can be incorporated by the Fourteenth Amendment using the due process clause and the privileges and immunities clause (however, we did not argue to incorporate under this clause so I won’t be mentioning it in this brief)

Our first and most prominent argument is one of substantive due process, which stems from a broader interpretation of the Fourteenth and Fifth Amendments. The Fourteenth Amendment’s due process clause states, “nor shall any State deprive any person of life, liberty, or property, without due process of the law”. Procedural due process would say that if someone is being prosecuted for a crime they must have a fair trial with jurors and they have the right to an attorney, etc. This is the more obvious meaning of the due process clause. However, substantive due process can be implied as well. This protects people’s basic substantive rights as well as their procedural ones. So using this clause you are not only making sure the government’s procedures or process of implementing the law is correct but you are also making sure that the government has justification for taking away your, “life, liberty, or property”. So, not only does the process have to be fair, but also the reasoning for having the process in the first place.

So, how does this relate to incorporation? Well, because of substantive due process there are certain rights that are seen as “fundamental” to “liberty” stated in the Fourteenth Amendment. Basically, these rights are seen as the “liberty” stated in the Fourteenth Amendment. Also “incorporation” doctrine can be used to apply the enumerated rights in the Bill of Rights to the states under Due Process.

We believe that guns are a “fundamental right” that is protected under substantive due process. It can be seen as part of the “liberty” mentioned in the Constitution. The right to a gun is already a protected right under the Constitution in the Second Amendment which 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” so it is already established as a “fundamental right” to have a gun (affirmed and expanded by District of Columbia v. Heller 128 S. Ct. 2783 (2008) which I will talk about later in this brief) which is clearly stated in the Constitution. Because it is a Constitutional right it can be applied to the states through the Fourteenth Amendment because of the “selective incorporation” doctrine. Also, under substantive due process, you can incorporate the Second Amendment because it is seen as a “fundamental right” that connects with the “liberty” stated in the Fourteenth amendment and cannot be taken away by the government.

There is also proof that the right to posses a gun was a “fundamental right” originally intended by the people writing the Fourteenth Amendment. It was stated by Senator Samuel Pomeroy when debating § 2 of the Fourteenth Amendment that these are the “indispensible safeguards of liberty”: 1) Every man should have a homestead, that is, the right to acquire and hold one, and the right to be safe and protected in that citadel of his love, 2) He should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete; and 3) He should have the ballot [46]”.

The before-mentioned statement proves that part of the original intent of the Fourteenth Amendment was to allow blacks to posses firearms. So, why would they argue it is a fundamental right for black people if it wasn’t a fundamental right for everyone? The Fourteenth Amendment wanted to expand the rights of the newly freed slaves so why wouldn’t they talk about expanding a right if it wasn’t a right? This shows us that the people writing the Fourteenth Amendment thought the right to posses a firearm was a “fundamental right” for all people. Therefore, the right to bear arms can be incorporated through the Fourteenth Amendment.

Incorporation not only is supported by the very being of the Second Amendment but can also be seen as a “fundamental right” of the people and can be incorporated under substantive due process, which is supported by the intent of the creators of the Fourteenth Amendment.

Our case can also be supported by District of Columbia v. Heller 128 S. Ct. 2783.

The Heller opinion written by Justice Scalia talks about how the right to bear arms doesn’t just apply to the militia, but to “the people” as well. He says that the, “holder of the right [is the] people” and that the, “substance of the right [is to] keep and bear arms” (Scalia’s opinion, 7). In laymen’s terms he is saying that the people hold the right to bear arms. This is expanding what was originally written in the Constitution to apply to the individual as well. So, one can’t argue against incorporation because it’s not seen as a “fundamental right” of “the people”. This decision by the Court states that the “right to keep and bear arms” is the right of “the people” and so we say it should be incorporated under the “selective incorporation” doctrine and “substantive due process”.

The Heller case also puts restrictions on gun ownership. Because of this, incorporating the Second Amendment would not take away all restrictions on gun ownership. The federal and state governments could still place restrictions on guns after the amendment is incorporated like the restrictions placed on free speech after incorporation. So, why can’t the same thing be done for the Second Amendment? Another question that may be asked is why incorporate just to restrict? Well, incorporating the Second Amendment guarantees a right that cannot be taken away. In McDonald v. Chicago the right to a gun was taken away not restricted. We are trying to give people rights and one can do that by incorporation and then by restricting certain areas of the right after incorporation. But incorporation ensures your State government can take no “fundamental rights” away.

To summarize we can use Heller as more constitutional justification for incorporation because it expands the “right to keep and bear arms” to the individual which can be seen as a “fundamental right”. Also, it allows for restrictions on guns. So, if one were to decide to incorporate the Second Amendment one wouldn’t have to worry about guns for all. However, incorporation of this right is the only way to ensure this “fundamental right” won’t be taken away.

I also have some notes taken during moot court as the argument progressed:

  • They eliminated not “restricted” handguns.
  • There were restrictions on the First Amendment but they were after the First Amendment was already incorporated.
  • Why not incorporate this Amendment when almost all of the rest of the Bill of Rights was incorporated?
  • The other side argued that things aren’t the same as they were when the Fourteenth Amendment was written because people aren’t being as heavily discriminated against, however there are still people discriminated against that need to protect themselves like maybe Muslims or criminals from other criminals.
  • Isn’t “self defense” a legal defense, so why can guns be banned under the right of life?
  • It will always be this right vs. life . . . it’s more like your own life vs. someone who’s trying to kill you.

I very much hope everything in the brief made sense.
If any clarifications are needed you can comment and ask a question or e-mail me at

Sources used:

McDonald v. Chicago: Brief for the Respondents, by Alyssa & Veronica

Ashley and Anya are delighted to welcome their first-ever guest bloggers, Veronica and Alyssa! They're in Anya's AP Government period and argued for the respondents (Chicago) and have graciously allowed us to post their notes (a combination of notes and their testimony so it's a bit less organized than Ashley's brief).

Supreme Court of the United States
No. 08-1521
OTIS MCDONALD, et al., Petitioners,
CITY OF CHICAGO, Respondent.
On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit

Ms. Chief Justice, and may it please the Court:
The Second Amendment should not be incorporated and applied to the States because the right it protects is not necessary to the idea of ordered liberty. For the past two centuries or so, firearms regulation has been administered by state and local governments.
The Second Amendment is different from the rest of the Bill of Rights because it protects firearms. Firearms — unlike anything else protected in the Bill of Rights — have the power and are designed to injure and kill. The reason the framers created this Amendment was that they feared the Federal Government disarming the militia. The right to self defense — while, yes, very important — "had little to do with its codification" as stated in Heller.
The Second Amendment is unique in that it's a right that gets controlled in accordance with local conditions, with local cultures and with local views about the questions of how best to protect public safety. States should be allowed to regulate guns as they see fit, seeing that they know the problems of their own states best.
With a strict interpretation of the Constitution, one could argue that the right of a person to bear arms is clearly stated, however, we are asking the Court to interpret this law in light of society's current needs and the community's concern. In today's society, is it "fundamental" to a person's well-being to carry a gun? No. Also, the historical record shows that the ratifiers of the 14th Amendment had no reason to suspect that it would make the 2nd Amendment, never mind the whole Bill of Rights, applicable to the states.

McDonald v. Chicago: Opinion of the Court, by Chief Justice Anya Prynn

Our AP Government class did a mock court session on McDonald v. Chicago, a gun control case. Ashley wrote for the petitioners, I was Chief Justice, and we have guest bloggers Alyssa and Veronica writing for the respondents.

No. 08–1521


[May 20, 2010]

At issue in this case is whether or not the Second Amendment should be incorporated as against the states.  This Court rejects the petitioners’ argument that the Privileges or Immunities clause of the Fourteenth Amendment is a suitable vehicle for such incorporation, moreover, this Court believes that incorporation by any means should be avoided.  This stems from nearly 200 years of precedent, as well as concerns about how such incorporation would affect states’ police powers and the ability of police officers to effectively protect ordinary people.  A second argument, not fully explored in the oral arguments but often used in incorporation cases, for incorporation through the Due Process Clause, also fails upon a closer examination.


The clauses at issue are found in §1 of the 14th Amendment, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (United States Constitution Amend. XIV).  The petitioners argue that this language should be sufficient to force the States to adhere to any and all provisions set forth in the Bill of Rights.  In so arguing, however, they fail to take into account that the Court has struck down that reasoning ever since the Slaughter House Cases, 83 U.S. 36 (1873) where they found that the Fourteenth Amendment protects only those rights which “owe their existence to the Federal government, its National character, its Constitution, or its laws”.  The right to bear arms is not such a right; even the petitioners freely acknowledge that it is considered a fundamental right, one that dates from old English common law.  Other rights which are now considered even more “fundamental” than gun ownership, such as freedom of speech, were not always so considered and therefore merit the extra protection that incorporation provides.

Aside from the fact that the Court has never incorporated any provisions from the Bill of Rights against the states through the Privileges or Immunities Clause, incorporation in such a way has rather disturbing consequences.

The right to keep and bear arms is not a right granted by the Constitution.  What the Constitution does do is prevent the federal government from infringing on that right.  While the petitioners in this case may view the difference between “the government may not prevent people from bearing arms” and “citizens have the right to bear arms” as splitting hairs, such a distinction has been made ever since United States v. Cruikshank 92 U.S. 542 (1876), when Chief Justice Waite ruled that
“[The right to bear arms] 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; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”
The right to bear arms is therefore an unenumerated right in the Constitution.  Petitioners would wish to see it included in the Privileges or Immunities Clause even if the Second Amendment, the core issue in this case, was not included in the Constitution.  Suddenly, it becomes impossible to define the exact reach of the Fourteenth Amendment; any person who imagines that one of their rights, enumerated or unenumerated, is being challenged, can take their case to court.  For 140 years, the Due Process Clause has been used to incorporate the Bill of Rights, while acknowledging that the Privileges and Immunities Clause, although valuable, does not have a part in the incorporation debate.  This Court is loath to overturn such precedent, and the petitioners’ performance during oral arguments did nothing to change that view.


A better path to take would have been to argue for incorporation based on the Due Process Clause.  While briefly explored during oral arguments, this path was not covered in as much depth.  However, because it has been used in every other incorporation case, it would be a sad mistake to not address it here.  While still not enough to justify incorporation, it makes more sense to use it as a basis for argument because of its long history in incorporation cases.

There can be no question that handgun bans -- or indeed, any weapons bans, including the Chicago one -- have no issues under procedural due process as long as they are properly passed by the state or local legislatures.  Substantively, however, they merit closer examination.  Because the issue here is a fundamental right and also raises a Constitutional question, we apply the strict scrutiny test.  The test, designed in Footnote Four of United States v. Carolane Products 304 U.S. 144 (1938) as a more rigorous version of the rational basis test, is applied to cases involving fundamental rights.  States must show that there is a compelling government interest in infringing on individuals’ rights and liberties, as well as showing that the law or policy in question is narrowly tailored to achieve that interest.  In this case, the government interest is obvious: protecting the lives and safety of its citizens (this goes along with police powers, which will be discussed more in depth in a later section).  It is this court’s judgement that that interest is sufficiently compelling to allow gun regulations and bans, even though such legislation may facially appear to contradict the Constitution.  As to the legislation being narrowly tailored, this Court sees no reason why a ban on several specific types of weapons, which are known to play central roles in multiple types of violent crimes violates this stipulation.


Also worth discussion here is the text of the Second Amendment itself, which reads “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” (United States Constitution, Amendment II).  The version ratified by the states, however, reads “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”.  Regardless of which version is considered, it should be quite clear that the amendment is meant to provide for the people’s right to bear arms in national defense.  It sprung from the people’s distrust of both the federal government and the standing army.  Nothing in either the text of the amendment or the intent of the Founders was meant to provide for individual self-defense; the dual purpose was to protect the people from the threat posed by the army, and to provide a supplement to the army when the nation as a whole faced a threat.  Because the amendment was designed specifically to promote national security, it would be a mistake to apply it to the states.

An additional argument against incorporation here is the changed perception of the militia.  In the brief for Kay Bailey Hutchinson and multiple other Congresspeople it is argued that “The Constitution vests Congress with authority to raise a standing army and to call forth and regulate the militia.  U.S. CONST. art. I, § 8, cl. 12, 15-16”, and therefore incorporation would threaten Congress’s war powers.  However, militias have both widely fallen out of use (the last use was during World War II, and that was only small-scale local action) and negatively viewed.  State National Guard units have mostly taken over militia duties as originally envisioned, and police officers deal with individual altercations.  “Militia” has become to many people the nebulous, gun-toting groups in the Midwest who get arrested for killing police officers (the Hutaree militia are one, albeit extreme, example of this).  Even in the decades immediately following the ratification of the Constitution, during the Whiskey Rebellion and the War of 1812, the militia was viewed as ineffective.  Not incorporating the Second Amendment (ie, letting the status quo prevail) would not mean that people would not be allowed to bear arms, and therefore does not place an undue burden on Congress’s war powers.

One last argument in this section has to do with the original intent of the Fourteenth Amendment.  It has been argued in multiple articles and amicus briefs, and to a lesser extent in the oral arguments for this case, that the Second Amendment, above other amendments, is especially suited to incorporation because of the Fourteenth Amendment’s history.  One of the major reasons for the Fourteenth Amendment’s passage was to constitutionally validate both the Freedman’s Bureau Act and the Civil Rights Act of 1866.  Both those Acts had provisions to prevent the disarmament of black Union soldiers and to prevent states of the former Confederacy from denying their black citizens numerous rights, including their constitutional right to keep and bear arms.  Does that mean that protecting Second Amendment rights was the main cause, or even one of the causes of the Fourteenth Amendment?  No.  It means that the Fourteenth Amendment was being used to stop discrimination, to ensure that rights applied equally to blacks and whites.  The right to keep and bear arms was one of several rights that the Acts kept from being distributed only to select people based on their race.


With the Constitutional basis for our judgment explained, we move on to several other, more practical reasons for our ruling.  Because the Second Amendment deals with possession of an instrument that is designed to kill and injure other people, it is necessary to consider the effects of incorporation in a different light than incorporation of other Bill of Rights provisions.


This is also an issue of federalism, and of state’s police powers.  Forty-four state constitutions provide for the right to keep and bear arms (the exceptions are California, Iowa, Maryland, Minnesota, New Jersey, and New York).  In nearly every case in which the arms right is protected, an individual right or a self-defense right is also explicitly protected.  This leads to the question of why incorporation of an amendment written to apply specifically to the federal government is necessary.  State and local governments know best how to combat crime in their own jurisdictions.  A single, inflexible federal law has the power to do far more harm than good in this case.  Each city has its own local flavor, its own problems with gang violence, drug deals, and violent crimes, and their administrators know better than the federal government which weapons should be restricted and to what extent the restrictions should go.

It is important to note that the Second Amendment is not unique in this respect.  The Fifth Amendment right to indictment by a grand jury was held to be not incorporated against the state in Hurtado v. California, 110 U.S. 516 (1884).  Both then and now, multiple state constitutions protect the right to a grand jury indictment.  Justice Matthews, who wrote the majority opinion in Hurtado, was concerned that states be able to make their own laws without federal infringement, and that the Constitution not be considered static and bound specifically to any one time.

As per the police powers granted to states, states have the authority to make and enforce laws that provide for the public health and safety of its citizens.  It is hard to imagine any laws more conducive to health and safety than those which restrict gun possession to those who have passed strict background checks, or those which keep the favored weapons of gangs out of their hands.  Incorporation of the Second Amendment would unfairly restrict these police powers and prohibit state and local governments from protecting their citizens to the fullest extent.


We reject as naive and unfounded the petitioners’ assertion that gun ownership is a deterrent to crime.  Both hypothetical situations presented as justification for incorporation are flawed.  Flashing a gun (be it at police officers that one fears have nefarious intentions or at someone who is trying to attack one in the street) is often just an incitement to more violence, rather than a deterrence from violence.  The street violence in particular that could arise from incorporation is chilling: one could be shot and possibly killed for minor theft, and gang violence could easily spill over into crowds of innocent passers-by.  As to the idea of “someone is less likely to break into your house if they know you have a gun”, the burglar would have no way of knowing who does or does not own a gun.  In any case, selective bans and restrictions do not unduly limit people’s ability to defend themselves.

The petitioners also do nothing to further their case by suggesting that even if the Second Amendment is incorporated, only “responsible people” will be allowed to own guns, and that restrictions and background checks would still be allowed.  In essence, they seem to be arguing, nothing will change . . . except there will be more guns on the streets and available in black markets.  While Heller left in place many restrictions on gun ownership, such restrictions seem to be contrary to the spirit of incorporation.  Rights that have been incorporated (such as the right to a speedy trial and the right to notice of accusations) are generally incorporated in full, and with no restrictions.  One major exception is the right to free speech, which can be limited at both a federal and state level by the Bad Tendency Test.  For instance, one’s right to yell “Fire” in a crowded theatre is not protected by the First Amendment.  There have been multiple cases which deal, essentially, with the topic of speech v. life.  In such cases, the Court has ruled consistently on the side of life.  In this case, where the topic of issue is guns (which are far more dangerous than words) v. life, there is no compelling reason to rule against life.

When considering whether or not to incorporate provisions in the Bill of Rights against the states through the Fourteenth Amendment, two general principles are considered.

The first and most restrictive was established in Palko v. Connecticut, 302 U.S. 319, 325 (1937), and is that of “ordered liberty”: rights in the first 10 amendments will be incorporated if they are “of the very essence of a scheme of ordered liberty”.  The right to bear arms is not one such right.  In fact, the proliferate and generally unregulated purchase and use of guns that will result from incorporation is detrimental to ordered liberty.  To cite only two of the multitude of examples, guns used during the commission of violent crimes are used to deprive people of liberty (and on occasion their lives) and guns on the streets can be used to incite violence and prevent police officers from doing their jobs, which takes away from order.  The argument that guns are necessary to the militia is both outdated (as explained above) and less significant when compared to the other, less noble and more dangerous uses of guns in the hands of many citizens.

The second principle, which is both more widely used and less restrictive, has largely replaced the ordered liberty standard.  In Duncan v. Louisiana, 391 U.S. 145 (1968), the court held that all rights “fundamental to the American scheme of justice” should be applied to the states.  This has allowed the incorporation of almost all elements of the Bill of Rights (Duncan itself incorporated the right to a jury trial in non-petty criminal cases).  However, it does not apply to the Second Amendment.  Indeed, as with the ordered liberty standard, this is an argument against incorporation in this case.  Gun possession by civilian individuals traditionally has nothing to do with justice -- unless, of course, we are talking about vigilante justice.  Such “justice” is not condoned nor desired by any rational government, and the fact that such “justice” could arise from incorporation is disturbing.  Additionally, prosecutors at the federal and state levels would have a much harder time winning convictions in gun possession cases and in cases where guns are used during the commission of a violent crime.  They may be pressured into accepting less restrictive plea deals for criminals, or be forced to release them all together.  Incorporation is therefore not only not fundamental to justice, it would inhibit justice from being carried out.


It is in this Court’s best interest to consider the long-term effects of incorporation.  The consequences are overwhelmingly negative.


Blanket incorporation of the Second Amendment would lead to potentially countless lawsuits, as people attempt to define the reach and scope of the newly incorporated amendment.  Are background checks still allowed?  What about gun shows?  How tightly would purchases there be regulated, if at all?  Would the ban on felons owning guns still be in place?  The hours and money spent and wasted on such suits is incalculable.

This problem would not be solved by ruling for incorporation with restrictions.  Heller was such a case, and in the year and a half after that decision, courts in multiple states faced over 190 suits.  Even restrictions that Heller specifically cited as being left in place (such as 18 U. S. C. § 922(g)(9), barring people convicted of domestic violence from owning firearms) are being challenged and even overturned in federal courts (see United States v. Skoien, No. 08-3770, United States Court of Appeals for the 7th Circuit).


One group of people who will be greatly negatively impacted by Second Amendment incorporation are the police officers and law enforcement officials.  Police, especially those who work in high-risk areas such as gang turf (which is, unfortunately, in abundance in many urban areas such as Chicago) will be put at a much greater risk if guns are as widely available as they would be under an incorporated Second Amendment.  They will also have a harder time arresting suspects, and prosecutors will have a harder time gaining convictions, because of the Fourth Amendment’s exclusionary rule.

Incorporating the Second Amendment would also have an adverse effect on the Fourth Amendment, which protects against unlawful search and seizure.  As noted in the brief for the Association of Prosecuting Attorneys, police officers are able to arrest people if they suspect the person of possession of an illegal weapon.  In many cases, when investigating the people arrested, they are brought up on additional charges, such as drug possession.  All of these arrests would be imperiled with an incorporated Second Amendment, because all weapons would be presumed legal.  Any arrests in which the arrestee were armed could be challenged, and, in extreme cases, the very definition of “reasonable suspicion” in firearms cases could be imperiled.  Prosecutors, as explained in II.C. would also be adversely affected.

Last but not least, it has been shown that these gun control laws are effective, both in stopping violent crimes and in bringing the perpetrators to justice.  In just one instance, when the District of Columbia enacted its handgun ban, homicide rates dropped by 25% (Philip J. Cook et al., Gun Control After Heller: Threats and Sideshows from a Social Welfare Perspective, 56 UCLA L. Rev. 1041, 1076 (2009).


In holding that the Second Amendment does not apply to the states, this Court re-affirms a long line of decisions that have held exactly the same thing: Slaughter House Cases, 83 U.S. 36 (1873), United States v. Cruikshank, 92 U.S. 542 (1876), Presser v. Illinois 116 U.S. 252 (1886), and Miller v. Texas, 153 U.S. 535 (1894).

Incorporating the Second Amendment is an unjustifiable idea both legally and socially.  The judgment of the United States Court of Appeals for the Seventh Circuit is affirmed.

It is so ordered.

If some of this doesn't quite track with what's in Ashley's brief for the petitioners, I'm sorry, we're in two different periods of AP Government and the arguments varied from class to class.

Sunday, May 16, 2010

What Really is the Tea Party Movement? "America's most vibrant political force"? Or a force that spreads lies and propaganda?

What really is the Tea Party movement? This is a tough question to answer because it seems like one can never get an objective response. Either Tea Partiers are super-religious, anti-abortion, and too conservative for their own good, spreading blatant lies about the people in power, and plain evil, or they are seen as gods bringing back real conservatism and willing to fight for what's right against power-hungry Obama and his lackeys in Congress. I find both of those descriptions to be inaccurate. I see them as fiscally conservative people who are outraged about how we're spending taxpayer's money and want to make a change. But, if you don't agree let's look at the facts.

The Tea party movement is a movement that coordinates protests and these have seemed to stem out of legislation that Congress has passed, specifically the 2008 bailouts, 2009 stimulus package, 2009-2010 health care reform bills. The name is a throwback to the times of the first Tea Party where their war chant was "no taxation without representation"(an phrase current Tea Partiers are now using to describe our government) and dumping the Tea into the Boston harbor. And let me ask you the common denominator between the pieces of legislation mentioned above? That's right, a lot of money was spent in creating them and a lot of money will, or has been spent on executing them. To some (like the Tea Partiers) this display of spending would seem like a gross amount and that makes them angry. So, basically they got fed up with the huge amounts of government spending and decided to have protests to show the world their discontent (and it seems like the world has been listening. The Economist, a British publication, has called the Tea Party "America's most vibrant political force"). This doesn't seem to unreasonable to me and I wouldn't qualify it as evil either, but let's go over some more things.

The Contract from America (inspired from Gingrich's Contract with America) is the agenda of the Tea Party that they would like Congressional candidates to follow. The agenda is listed as:
1). Identify constitutionality of every new law, which basically means they want to make sure Congress has the power from the Constitution to pass said law. This is written to regulate Congresses interference into our private lives and would also help limit the power and scope of the Federal government a little.

2). Reject emission trading, which would stop cap and trade, which would make companies who go over their "cap" (set amount of how much they are allowed to pollute) be punished by paying extra money. But, what's bad for the company is also bad for the consumer like in an energy company. Energy creation production is an inelastic good (which means that people need it so when the price goes up they usually end up paying for it rather than stop using it). So, the Tea Party would like to offer economic incentives to stop pollution. This is basically reward instead of punishment and would alleviate the consumers undue economic burden.

3). Demand a balanced federal budget. They would like an amendment to demand a balanced budget with two thirds majority needed for any tax modification. So, if you want to increase/decrease taxes you must have a two thirds majority under this amendment. I'm not so sure if an actual constitutional amendment is needed for the end goal of a balanced budget. I think since Paygo was re-instated it could get the job done. Paygo says that the government can't spend more money than it has which would help stop the deficit, however some modifications would be necessary. For it to do real good, it shouldn't be so easy to opt-out of. It should also have a lasting life, and shouldn't have keep on being reinstated. Maybe, this unfortunate part of Paygo is why the Tea Party wants a Constitutional amendment.

4). Simplify the tax system. They want to replace the internal revenue code with a shorter version no longer than 4,543 words (don't ask where they got that number) and it would establish a single-rate tax system. I agree that the tax codes NEED to be simplified. We should understand why we are paying money to our government for Pete's sake.

5). Audit federal government institutions for their constitutionality. There would be a special task force that would asses the constitutionality of federal agencies and would look at waste, ineffectiveness, duplication, and agencies that would be suited for local and state governments instead of the federal government. This would cut down a lot of our money waste. It would also help get back some more states rights if they found that many federal programs could actually be devolved onto the states (like Welfare). This would just make things more easier to regulate and it would save a lot of money because our money would be put to more effective uses.

6). Limit annual growth of federal spending. This would limit our annual spending growth to the sum of the inflation rate plus the percentage of population growth. I suppose this would stop us spending beyond our means. I think to limit our spending growth maybe a modified version of Paygo could be used.

7). Repeal the healthcare legislation passed on March 23, 2010. This is pretty self-explanatory I think. Members of the tea party don't like the healthcare legislation that was passed. I don't know all the reasons but one is that it basically had NO bipartisan support and that it was passed in an unusual, some would say tricky, fashion that did not appeal to a lot of people. Also, they probably don't like the individual mandate where everyone is required to buy health insurance because it interferes with a person's right to choose if he wants health insurance or not (even though this mandate is better for the insurance companies and is cheaper for us). Actually, the whole idea of anything close to government-run healthcare is pretty repulsive to tea partiers.

8). Pass an 'All-of-the-Above' energy policy. This would allow us to search for new ways to get our energy and help us get away from our dependence on foreign oil. Nobody wants to be under the thumb of a depleting resource.

9). Reduce earmarks. No earmarks until there is a balanced budget and would require a 2/3rds majority to pass an earmark. During the healthcare bill debate there were many complaints about these earmarks that were making the bill more expensive. Basically, they can be added onto bills to make it more expensive because it's money for individual projects and Congress can also specifically mandate where all of the money goes.

10). Permanently repeal all recent tax increases that are scheduled to being in 2011. This would help our economy because instead of giving more money to the government we would be using it to put into banks, the stock market, consumer goods, etc. which directly helps the economy. It seems to me whenever the government gets money almost all of it disappears before it reaches "the economy" and us.

Basically, the Tea Party is a movement that encourages government to stay out of our "private lives" and therefore wants lower taxes, more responsibility with the taxpayers money, etc. It is not something evil and cannot be defined by just the people who represent them. In my opinion, many things stated by the Tea Party are valid points and it seems to be the liking of fiscally conservative Republicans and Libertarians.

So, I urge to to give it a chance. You don't have to agree or like what they find important but it's just as valid as any other political movement/party in America.

When Animals, Federal Statutes, and the First Amendment Collide: An Analysis of United States v. Stevens

I have to start this post off with a confession. I am a Supreme Court junkie who spends far too much time on reading SCOTUS decisions, listening to oral arguments, and generally happily wasting my time on the internet's biggest time sink. So I can say (pretty safely) that I am the first person Justice Samuel A. Alito Jr. has ever gotten kicked out of a library, and I was not at all surprised that I was.

No, I'm not kidding. I was, as usual, reading Oyez after school, and suddenly I was reading that Justice Alito was the sole dissenter in a decision that overturned a ban on videos depicting animal cruelty. Now, as a rule, I don't like Alito that much. I disagree with his interpretations of laws and the constitution, and am not a fan of his conservative ideology. But for this one case, I find myself in total agreement with him. And when I found that out, I might have been a bit . . . loud in my surprise/agreement. And, uhhhh did I mention we have a really strict librarian at our school? So yes, Justice Alito, it is partially your fault that I got kicked out of the library.

Anyway, that aside, this case is a very important one in terms of both free speech and animal cruelty laws. According to NPR, "the law was meant to prohibit a particularly gruesome genre of video called "crush videos" in which small animals are crushed by women wearing high heels, a sexual fetish practice many people find offensive on a number of levels. The particular case that made its way to the Supreme Court was about videos that showed pit bulls fighting other dogs or attacking animals like pigs." The 8-justice majority ruled that the law was too broad, and therefore unconstitutional under the first amendment. Alito takes a different view, stating in his dissent that he would instruct the lower courts to "decide whether the videos that respondent sold are constitutionally protected" (NPR).

With that background, let's move on to the facts/specifics of the case. Robert Stevens was convicted under Title 18, Section 48 of the U.S. Criminal Code, which bans the knowing creation, sale, or possession of depictions of cruelty to animals "with the intention of placing that depiction in interstate or foreign commerce for commercial gain" (18 U.S.C. §48). There are exceptions to this: if the work has "serious religious, political, scientific, educational, journalistic, historical, or artistic value", it is permissible to create/sell/possess the work (18 U.S.C. §48). Stevens' conviction "stems from an investigation into the selling of videos related to illegal dog fighting" (Oyez). The district court convicted him, and he appealed to the Third Circuit, arguing that his conviction was not valid because the federal statute was itself unconstitutional. Third Circuit reversed the district court, the government appealed to the Supreme Court, and Stevens won a 5-4 victory with a decision that upheld the Circuit based on the fact that the statute was broad enough to be unconstitutional.

The law is rather broadly worded; there are slight grey ares. Nevertheless, I am disappointed that this law was struck down, for several reasons. First, I agree with Alito when he blasts the Court for applying the overbreadth doctrine to §48. Second, I do not see any undue restrictions on first amendment rights.

In general, for a federal statute to be considered "overbroad", it must prohibit a substantial amount of protected speech. Since those acts have already been deemed illegal, and there have been no constitutional challenges to those laws, I don't see how overbreadth can be applied. As Stevens challenged the law on its face, he would typically have to prove "that no set of circumstances exists under which [§48] would be valid" (United States v. Salerno) or that the law has no "plainly legitimate sweep" (Washington v. Glucksberg). Because Stevens is a First Amendment case (neither Salerno or Glucksberg were), the Court uses a different standard, codified in Washington State Grange v. Washington State Republican Party which states that a law is overbroad if "a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep." (Opinion of the Court, page 10).

In reading the opinion of the court, I see that they are chiefly concerned with hunting videos, and with videos of animals being killed for food. First, I see no reason why hunting videos would be covered under §48. Almost every single state has exceptions to their animal cruelty laws for wildlife/hunting (a comprehensive and specific list can be found in the appendix to Alito's opinion). Thus, they are clearly exempt under part (c) part (1) of the law, which states that the law only applies to videos depicting illegal acts. Even though the Court rather tortuously applies overbreadth because hunting is illegal in the District of Columbia, hunting would still be exempt under §48(b) because hunting can be (and usually has been) viewed as having "“scientific” value in that it promotes conservation, “historical” value in that it provides a link to past times when hunting played a critical role in daily life, and “educational” value in that it furthers the understanding and appreciation of nature and our country’s past and instills valuable character traits" (Opinion of Justice Alito, page 7). In regards to the second worry of the Court, animals being humanely slaughtered for food: such acts are not illegal under the criminal codes of most states, and therefore §48 cannot be applied. So it cannot reasonably be argued that §48 "bans a substantial amount of protected speech in absolute terms" (Opinion of Justice Alito, page 19).

Moving on to the first amendment issue, we run into a more complex can of worms. Free speech is generally considered one of the most fundamental rights: by the preferred position doctrine, it occupies a higher consideration when deciding cases than do most other rights. However, that doesn't mean free speech is absolute. Both the Bad Tendency Doctrine and the Clear and Present Danger Doctrine restrict what speech is protected under the first amendment. Speech can be limited if it might lead to harm or to illegal action, or if there is an imminent threat to society. So if you want to yell "Fire!" in a crowded theater (a bad idea in any case) that is not protected under your right to free speech.

With that explanation of free speech and its exceptions, let's consider how those guidelines apply to animal cruelty videos, be they crush videos, dogfights, or something else. Does this "speech" lead to harm or illegal action? Obviously, yes. All states have laws (of varying strengths) against animal cruelty, and videos promoting it not only show that people can get away with breaking the law, but that it's fun, and, guess what, you can do it too! As for harm, well, the harm done to the animals is blatant, and in many cases, irreparable. Is there an imminent threat to society? That's more difficult to explain, but again, I would argue "yes". Numerous studies have shown that it is a short step from killing/torturing animals to killing/torturing humans. Representative Gallegley, the original sponsor of the 1999 bill, points out that "The FBI, U.S. Department of Education and the U.S. Department of Justice consider animal cruelty to be one of the early warning signs of potential violence by youths" ( And, once again, encouraging people to break laws is in no way beneficial. In this case, I would disagree with the Third Circuit and the Supreme Court when they say that there is not enough compelling government interest for §48 to survive strict scrutiny.

I would even go so far as to question the free speech aspect of this case. The law specifically states that the animal torture videos are illegal "if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place" (18 U.S.C. §48 (c)(1)). I referenced that section above, but in essence, what this section is providing for is the arrest and (possible) conviction of people who possess videos of themselves or others committing an illegal act. Justice Alito addresses this in his opinion, while connecting the crush videos the law was intended to ban with the dogfighting videos at the core of this case: "as with crush videos, moreover, the statutory ban on commerce in dogfighting videos is also supported by compelling governmental interests in effectively enforcing the Nation’s criminal laws and preventing criminals from profiting from their illegal activities." (Opinion of Justice Alito, page 19).

Okay, taking off my Judge hat, I will move on to the effect of this decision. First off, this decision severely limits the prosecutorial discretion of the government. As the majority of the Court says (repeatedly), §48 was originally intended to allow for the possession/sale/creation of crush videos. However, the government has used it to prosecute people for the possession/sale/creation of other videos depicting people torturing animals in ways that are also illegal -- dogfighting being just one example. In relying overmuch on original intent, the Court is making it more difficult for the government to prosecute people who wish to sell videos of themselves committing illegal acts.

Secondly, it brings into question multiple other Court decisions, most specifically those dealing with obscenity and child pornography. As noted previously, the courts have decided that some speech is unprotected; the Government asked in this case that a new category be added, saying in their brief "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs." The Court reacted badly to this view, claiming that, even though they have in the past decided that in cases of unprotected speech "the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required" (New York v. Ferber, child pornography case). What I find interesting, and slightly hypocritical here, is this sentence: "We made clear that Ferber presented a special case: The market for child pornography was intrinsically related to the underlying abuse, and was therefore an integral part of the production of such materials, an activity illegal throughout the Nation." (Majority opinion, internal quotations omitted). Apart from the fact that the subjects are animals rather than human children, the market's relationship to the illegal act is the same in Stevens as it was in Ferber, if not more pronounced. The Humane Society found more than 3000 animal crush videos online before the 1999 law went into effect; once the law was passed, the market vanished virtually overnight -- only to reappear with a vengeance once the Third Circuit decision came out. With such a clear correlation, how can the court continue to justify Ferber, arguable one of the most important decisions in terms of protecting those who have no voice from harm and exploitation?

The Representatives behind the §48 are working to produce a more narrow version of the law, which will hopefully satisfy these critics while still doing an effective job of both preventing criminals from profiting from their illegal acts and protecting helpless animals.

Further Reading:

Monday, May 10, 2010

Republicans Running Against Boxer: Brief Synopsis

I would like to briefly talk about the Republican candidates running against Barbra Boxer for the Senatorial election in California. I have decided to talk about their views on the economy as well as their history and will post the links to their campaign pages so you can learn more about these qualified candidates.

Tom Campbell: He was a Congressman, state budget director, law school professor, economist and the nominee in 2000. He believes in reducing our spending so we don’t cause inflation, which may hit after there are more jobs and people start spending more money. He was one of six Republicans to vote against the bill that reversed the Glass-Stengel act because he feared the merger of investment and commercial banks would create too-big-to-fail institutions that the government would have to bail out if there was failure (guess he was right).

Chuck DeVore: He is a state assemblyman and was an Irvine city commissioner and aerospace executive. He follows the basic platform of the Republican Party and believes the government should let businesses create jobs and not heavily tax them. He is a member of the Tea Party (who believes in small government and lower taxes) and seems the most “Republican” out of all the Republican candidates, which doesn’t seem to be helping him in the polls.

Carly Fiorina: She was CEO of Hewlett Packard and the 2008 McCain Campaign adviser. She proposes focusing on small businesses and on cutting their taxes to help create jobs and fix the economy. She also wants to address the debt. She is endorsed by Sarah Palin which might be a plus to the more grassroots Republicans but a big minus to the more liberal Republicans (which seems to be a lot of the Republicans in California) and she seems to me, politically, the least qualified out of the three.

I think I would endorse DeVore because even though he is too conservative for my taste his economic ideals match up with mine, he’s experienced, and he seems like the best out of the three. I feel like he could be the next Reagan of California (or at least that’s what people are calling him. . .)

On a side note: I am encouraging all of the people of voting age to please register and get involved in picking the people who hold power and who change our lives. I know this sounds cheesy, but your votes really DO count. To make it really easy for you: Please Vote!

AND . . . the other candidates for this election and others:

Kelo v. City of New London: Attack on Nostalgia and Our Fundamental Rights

I know this case isn’t considered recent news, however it is one of those court cases that are very controversial and it’s future ramifications are tremendous; I predict this case will come up again.

I have many feelings towards Kelo v. City of New London, a Supreme Court case decided in 2005 that states government can use eminent domain to take over private property for private use if there is “public use” that comes out of it. Eminent domain is when the government takes over private property for public use, however the government must offer the fair market value of the property. Also, a stipulation of this is that it must be for “public use”.

Now, after reading about this case the thing that struck me was how the Court defined “public use”. They defined it as something for the good of the public and that benefits the townspeople’s general needs. They were planning on building office buildings for Pfizer on the land parcel they wanted to take over. This isn’t exactly what “public use” means to me, because I see it as something we get to use (like an airport) and I think the decision that it is “public use” because it brings more taxes for the community, doesn’t correlate well with the original intent of the Founders. I believe eminent domain was mainly used during wartime for hospitals and such and now is more commonly used (and stretched a little) to include airports, roads, etc. And that’s what the Founders meant it to be. I don’t think they ever imagined it to be applied to taking over private property to give to another private agent (like a company). Where do we draw the line? If the government uses eminent domain to take over this land for this company because the company generates more tax revenue, then who’s to say they won’t do that to you. No homeowner is safe under this law and this is the pinnacle of government interference into your life. They are dictating whether the property YOU bought shall remain yours or not.

The majority opinion of this case could be considered a loose constructionist view of the Constitution. Meaning, that the interpretation of the text of the Constitution was done so to adapt with changes within America and doesn’t always adhere to what the Founders intended. Loose constructionists think of the Constitution as a living document to which interpretations of the text can be changed with what society is like today. This is just a general assertion, but most liberals tend to be loose constructionists and most conservatives tend to be strict constructionists. Many great landmark decisions on social and civil liberties issues have been decided in a loose constructionist manner and rights of the people (and many people who previously didn’t have very many rights) were expanded and protected. One prime example of this is Roe v. Wade. The “right to privacy” was used as the Constitutional basis for the argument which was, that it shouldn’t be illegal for women to get an abortion (and as we know, there has to be basis for their decisions in the text of the constitution). However, nowhere is privacy expressly and explicitly mentioned, but it is implied in some amendments (like the 3rd amendment) and so the judges expressed that a privacy right was “written in the penumbras” of the Constitution. I hope this example accurately illustrates what loose construction is; it could be seen as almost political advocating. They are deciding what is right and then molding the Constitution around their beliefs when really they are supposed to analyze what the Constitution says and then form their opinions.

I think many wonderful things (like women’s right to an abortion, and desegregation) have come out of loose construction but there is a potential of unspeakably horrible things to come out of it as well which could undermine the Supreme Court as an institution. One example of this is Plessy v. Ferguson where nowhere in the Constitution is separate-but-equal attached to the Fourteenth Amendment. It is obvious that the intent of the people writing the Fourteenth Amendment was to end discrimination, which segregation helps uphold but the Supreme Court of the time was able to shape the Constitution around their agenda. That is one of the dangers of loose construction; you get nine guys (and girls) in a room deciding the fate of all Americans and because of this potential horrible threat we have the Constitution. Whereas, a strict constructionist sticks to what the Constitution expressly says and may not be able to reach the heights a loose constructionist can, but also won’t reach the depths that can potentially happen with loose constructionist theory.

Another thing that irked me about Kelo is that it violates principles we hold so dear, like the right to “life, liberty, and property”. A right to property is something that is essentially American and has been in our lives since the very beginning (it’s found in the Constitution). We hold our property rights so dear and we fiercely protect them. Our property is an extension of ourselves and we have evolved to believe that WE have control over our property because it is OURS. Our homes are so important to us. They are not just four walls and a roof but they represent so much more. They represent nostalgia and are what help us remember our past and gives us hope for our future. Our homes are those hot summer afternoons where you sit on the porch, and can smell the grass, and are eating an ice cream cone and blowing bubbles. Or it’s camping in your backyard and playing baseball until it’s too dark you can barely see the ball, but you still keep on playing. Or it’s the warm family dinners laced with laughing and joy and rolls. It’s all of those things and that’s what the government is taking away to replace it with offices. Really? That just doesn’t seem right to me. Property is a basic tenant of our government and this has been raped by this decision. This property right has been severely diminished by Kelo because the government control over our property has just significantly expanded and the reasons why they can take our property away from us have expanded as well. I feel this basic principle of American life was very much overlooked by the Court during this decision and very much hope that this case will be overturned if this issue comes before the Court again.

To learn more about the case: (I recommend listening to the oral argument; it's fascinating!)
Aftermath of Kelo:
Knowledge on strict vs. loose construction: Supreme Court/Government classes