The Death of Parties?

And every good argument deserves an equally good counter-argument. Not that I could aptly debate Anya's very good points, but for the sake of argument, and a balanced opinion, I will try to do so.

To understand the importance of political parties, we first have to look at why they originally came about (at least in the United States). In Federalist No.10, Madison basically says that "factions" are a necessary evil. Madison states, "As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed...The latent causes of faction are thus sown into the nature of man; and we see them everywhere...a zeal for different opinions concerning religion, concerning government, and many other points, as well as speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than co-operate for their common good." He goes on to say the development of factions is inevitable though because, "The inference to which we are brought is that the causes of faction cannot be removed and that relief is only to be sought in the means of controlling its effects".

And Madison believed that the Constitution was the means to control the effects. Madison is essentially telling us that yes, these factions cause problems, but they are a necessary evil in that we, as humans, naturally develop these factions in a democratic form of government. He says that eliminating democracy to eliminate the factions is absurd, and to make everybody think the same way and hold the same beliefs is also equally absurd. So, he proposes we don't eliminate the factions at all, we just deal with the effects of them. He thought the Constitution would handle the effects, and for the most part I agree with him. I also agree that it is in our human nature to form the factions, or political parties, because we like to form groups, we like having a consistent platform and having unwavering ideals. Anya mentions Bernie Sanders, and although I don't like his politics, he does have unwavering ideals. I think parties strengthen these ideals, not weaken them. What better way to stick to your ideals if you have other people backing you up? We like having a sense of safety and consistency because everything else in the world is wacky. On a psychological level, I think abolishing parties would be harmful for people's well-being and we would somehow find a way to drift back to a party system; it's just in our nature like Madison suggests.

We also have a long history of political parties in this country. Our political parties were developed very early on, one could stay it's essence started with the Federalists and Anti-Federalists. The Federalists being supporters of the Constitution and the Anti-Federalists being the people who didn't want the Constitution. These, however, weren't official parties. Then came the Federalist party and the Jeffersonian Democrats, or Democratic-Republicans. And why is having this history important? We know it works pretty well. Our political system was copied by many other countries, people are dying to live here, and we do get things done. Now, I don't always advocate complacency, but there's something to be said for, "if it ain't broke, don't fix it". Anya seems to believe our government is "broke" and I happen to disagree with this. Also, the reliance on history to keep a decision is a common legal argument. The Supreme Court very often relies on stare decisis, or adhesion to past decisions, when deciding cases. It takes a lot for them to overturn their decisions. Just like it would take a lot for us to overturn our party system in exchange for something that would be perceived as chaotic as well as uncharted territory. But, if anything could make a no party system work, it would definitely be the fighting spirit and lion's heart of the people of the United States.

For the most part I think we, as humans, like a party system. That combined with the fact it has been with us since the early inception of our government, makes it very unlikely we will have a no party system. But, who knows what the future holds for us?

Oh, and also we are happy to say this is our 50th blog post! We are so glad to have made it to 50, now on to 100!

1st Year Anniversary

So, sadly, we missed our first anniversary for this blog. To be fair it is finals week for both Anya and I, so we've been EXTREMELY busy. I just wanted to say thanks to those who read this blog and who (hopefully) get to learn something new. We love writing and will continue to do so, so continue to tune in. Also, it seems fitting to thank the people instrumental in getting this blog started. Thank-you president Obama for providing the idea for a Healthcare Bill that Anya and I got so worked up over we had to debate about it for days, thanks Congress for adding fuel to the fire, and thanks Mr. E (not his real name) for encouraging us to take our love of politics and share it with other people, also thanks for being there to answer our questions and listen to us argue, we loved your class. Thanks everyone. Some new posts to come...

The City of Los Angeles

A few weeks ago many things have been afoot in the City Of Los Angeles. Many of the ballot measures were voted on a few weeks ago in city council, and before that written by the City Attorney's Office. There were some controversial things, like an excise tax on oil, and taxing medical marijuana that were discussed as well as some important reforms, like DWP reforms.

On Tuesday's council meeting a lot got accomplished. In the morning, council voted to put on the ballot a measure to create more funding for the City's libraries so they can stay open longer and more days of the week. The councilmembers were very happy and positive about this measure, however other departments in the city had to lay down the facts. The city is in debt and we will definitely not have a surplus of money next year. So, the City Administrative Officer, Miguel Santana (CAO)tried to explain to the councilmembers that in order for this to work they would have to move money allocated to one area to the libraries. Even after this warning, the measure was still voted on to be on the ballot this March.

Another important package of ballot measures were voted on for DWP reform. One of the measures was put off until Wednesday. They will be on the ballot seperately, but the council looked at them in a package. The DWP reform would essentially establish someone they would have to account to. It would also establish a rate payer advocate. Councilmember Tom LaBonge likened some of the reforms to the establishment of the Christopher commission under Mayor Bradley, which effectively got out most of the corruption in the LAPD. That's essentially what council wants to do with the DWP.

The last item on the agenda for that Tuesday meeting was the taxation of medical marijuana. Although, not much was discussed about it that week, before there were discussions about it's legality (http://ronkayela.com/2010/11/la-cant-legally-tax-pot----but.html ...as a disclaimer I do not necessarily agree with the opinion's about the council, I'm just illustrating the legal issues). What I could surmise from this discussion is that you can't tax medical marijuana because people aren't supposed to be selling it in the first place. If you wanted to tax their gross receipts and it would apply to utilities. etc, known as reimbursements. But, as another kicker, since the collectives are non-profits they can't be subjugated to a gross receipts tax under state law. And then we have the federal government who says medical marijuana is illegal. So, this law, if passed, is preempted by both the state and federal governments. All in all, this ballot measure doesn't seem to hold water legally, but we'll see if this is explained well enough to the voters. It took me around half an hour to have this explained to me and I still don't quite grasp it all.

Later in this same week, another item was proposed to put on the ballot a sort of excise tax on oil. Basically, the companies would pay money to take oil out of Los Angeles. The ironic aspect of this item is that it was proposed by Councilmember Hahn, but she was the only one who voted against it. So, that is another thing you will see on your ballot.

You can watch these council meetings here:

on a side note, you can see me in the meeting for Tuesday if you click on item no. 14 on the scroll bar. I'm in the audience during the public comment in a white shirt)

Tuesday's meeting

Wednesday's meeting

"Anna Nicole Smith Trial" Results and Convictions

Recently, the jury gave the verdict of this long-running case whose defendants were Howard K. Stern, Dr. Eroshevich, and Dr. Kapoor. Dr. Kapoor was acquitted on all the charges brought against him. However, Howard K. Stern and Dr. Eroshevich weren't as lucky, they were found guilty on the charges of conspiring to provide drugs using false names. The prosecution failed to prove beyond a reasonable doubt that any of the defendants provided drugs to a known addict, which was the major part of their case. The next step in this process in the sentencing hearing where Judge Perry could reduce their sentences down to misdemeanors or Dr. Eroshevich and Mr. Stern could receive the maximum sentence of three years each in prison. The sentencing hearing will be held on January 6, 2011.

CA Prop 19: For Real Tokers?

We have some very exciting propositions this year in California, like Prop 19, which would make marijuana use legal. Surprising enough, this issue is backed by people you wouldn't expect, like moms and businessmen (and probably our state government that's very broke and wants to tax the hell out of marijuana). This proposition has some unlikely opponents as well, including some regular users. But generally speaking, this Proposition has also generated a lot of ads and sensation.

But, this proposition will not be a free for all for pot users (and those who just want to try it, and those who are "holding it for someone"). There will be regulations on the pot. First of all, only people 21 or over could legally buy and posses the marijuana (theoretically). You are only allowed to posses one ounce of marijuana for personal use, you can only smoke it on a private residence or a place licensed for on site marijuana consumption, and you can only grow it at home in a 25 square foot area for personal use. Also, the government will regulate it by taxes, where and when and how it can be sold, and how it can be transported.

Basically, the proposition will make marijuana a business, which goes against the history marijuana has played as going against "the man", taking a stand against government, and generally leading a bohemian or artistic lifestyle, which is why some "real" tokers (as opposed to posers who aren't anti-establishment) are angry with this bill. They, first of all, don't want marijuana to be a business and don't want it part of mainstream society. They are also angry because it will be taxed and the price will go drastically down, so they won't be able to make a profit. They are also afraid of loosing some exotic types of marijuana, since the business will be regulated. Now, there are also some people who think this is a good proposition in the mainstream. People think that if it's legalized we'll have less illegal gang activity and the government can control it. The government as well is thinking they can tax this and make some much needed revenue.

The effects of this prop could potentially be tremendous. First of all, if it becomes legal here it opens the door for other states to legalize it as well. And we cannot forget the tiny issue of the Supreme Court making it illegal to sell medical marijuana (let alone marijuana). One question we need to ask is, will, if this prop passes, the President enforce the Supreme Court's decision. Then we have the whole problem of more people will be smoking it if it's legal because the prices will drop (because it's readily available) and therefore it's cheaper to buy. Why do we want more people addicted to drugs? I don't get it. It seems like the government is profiting off people's pain and addictions. Sure cigarettes are legal, but the effects of cigarettes aren't as harmful as marijuana. Marijuana kills your brian cells and addiction to it can ruin your life. Another qualm I have with it is that there is no way the government can control every aspect of this. Marijuana use will be running rampant and people will be smoking while driving as well as in public (giving people contact highs). Sure, the police will try to control it, but they can't be everywhere at once. Do we really need more dead teens, mothers, children, and husbands because of high drivers? No. Also, this will bring even more drug dealers into our cities, and with it crime and fights. My last point, I think legalizing something that does so much harm to people's lives (as well as their bodies) should not be endorsed by the government.

`All in all, I very much disagree with Prop 19 and will definitely be voting NO on November 2. I believe Anya was pro prop 19, so she might have a rebuttal to this post

To check out a funny story of two journalists getting high because the city attorney (of LA) asked them to read here for part one and here for part two

Oh, and please vote, if you're able, on November 2. It's very important!

What's Going On In Arizona?

So, this topic has been introduced to us a couple months ago and that's the new Arizona immigration law that would take effect July 29.

This new law, "directs officers to question people about their immigration status during the enforcement of any other laws such as traffic stops and if there's a reasonable suspicion they're in the U.S illegally." But it's the "suspicion" part of the equation people have the most problem with. How can you tell what an illegal immigrant is before you look at their papers? Well, because it's Arizona, the police will be looking for Hispanics...but not all Hispanics are illegal and not all Hispanics carry their Immigration Visas around with them or their birth certificates.

That's where the racial profiling comes in, because they're saying this race is illegal and therefore we have the right to pull them over, etc. But what really is racial profiling? This term has been popping up in the news fairly regularly, but I have an inkling many people don't really know what it is or why it's "wrong". Reason magazine states, "Although there is no single, universally accepted definition of 'racial profiling,' we're using the term to designate the practice of stopping and inspecting people who are passing through public places -- such as drivers on public highways or pedestrians in airports or urban areas -- where the reason for the stop is a statistical profile of the detainee's race or ethnicity." That is the definition of racial profiling and that's what the Arizona law wants the police to do.

As you can see, there isn't much doubt that the law is racial profiling but also that isn't unconstitutional or illegal (so far). However, there is a lawsuit going on to stop this law from taking effect.

So, if the fact that it utilizes "racial profiling" isn't enough to stop this new law, what can? Interestingly enough, the government's basis for a lawsuit against this law (and Arizona) is states' rights: basically, federalism. The Obama administration argued that immigration is something that the federal government legislates, not individual states. The Supremacy clause in Article VI of the Constitution states that the "Constitution and the laws of the United States...shall be the supreme law of the land...anything in the constitutions or laws of any State to the contrary notwithstanding." That is interpreted to mean that any law the Federal government makes is the "supreme law of the land" and it trumps any state laws. In connection with the Arizona case, the U.S. government wrote that the "provisions of S.B. 1070 [the Arizona law] are therefore preempted by federal law". They go on to write that, "While holding that the '[p]ower to regulate immigration is unquestionably exclusively a federal power,' the Supreme Court concluded that not every state enactment 'which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised.' De Canas v. Bica, 424 U.S. 351, 354-355 (1976)."

To put this all in layman's terms, the Supreme Court has ruled before that immigration falls under the category of something the federal government dictates. They go on to connect this with the supremacy clause to make the point that their laws go above what the state government does. After hearing the case and looking at the current laws Judge Bolton ruled on the case recently and issued an injunction to stop the law from taking effect. One of her reasons for issuing the injunction was because , "Preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be enforced."

In my personal opinion, I think she made the right decision.

Although this issue seems to be over now, there is a very good chance this case will end up in the U.S. Supreme Court because of the federalism issue and also the civil liberties issue. This issue is still important to us because it shows how much we want immigration control (well, at lest Arizonans). Immigration is a big issue right now because of the downturn of the economy. People are angry and think their jobs are being "stolen" from them. But I don't think this law is the way to handle immigration at all. We cannot strip liberties away from an essentially defenseless group. Instead, if the country decides we want to increase immigration control, we should strengthen our borders. Another thing to consider would be amnesty; let the people here have a chance at the real American dream. Whatever the government decides to do, racial profilin" cannot be a part of the equation.

Further reading:

• NY Times-Judge Bolton's decision
U.S. Government's Brief
Reason Magazine
CNN-U.S. Government's lawsuit

Anna Nicole Smith Trial: Day One Recap

Last Wednesday we were able to watch the opening arguments for the defense in the case of The People vs. Khristine Eroshevich, Sandeep Kapoor, and Howard K. Stern, more colloquially known as the "Anna Nicole Smith case". The defendants are charged with, " unlawfully prescribing a controlled substance to an addict, obtaining a prescription by deceit, fraud, and conspiracy." Dr. Eroshevich was a psychiatrist and Ms. Smith's former neighbor, Dr, Kapoor prescribed medicine for Ms. Smith and was her doctor, and Howard K. Stern was Anna's lawyer as well as friend/partner. The lawyers for the defense are Ms. Garofalo representing Dr. Kapoor, Mr. Sadow representing Mr. Stern, and Mr. Braun representing Dr. Eroshevich.

I unfortunately didn't catch Mr. Sadow's argument on paper. But he basically attested to the fact that Mr. Stern loved Anna and wouldn't do anything to hurt her. He said she needed the drugs to be out of pain and that Howard K. Stern would do anything to soothe her pain.

Dr. Kapoor's attorney said that Anna and Dr. Kapoor had no "social relationship". Dr. Kapoor was not her primary doctor by any means, Dr. Kovner was the one in charge of managing her pain. She went on to chronicle how Ms. Smith had a history of "chronic" pain and for this pain she took opiates, benzo's, and other similar drugs. Dr. Kapoor never doubted that she was actually in pain. And when Ms. Smith followed Dr. Kapoor's pain management plan she felt okay. The lawyer reiterated many times that Anna had, "long term, chronic, unrelenting pain that must be treated". The lawyer stated that there was a legitimate medical purpose to prescribe her medication (and feed her addiction) because of this chronic pain. She also mentioned that the doctor's medical judgement wasn't criminal and that the doctor should be immune from prosecution because the doctor acted in good faith. During Smith's treatment Dr. Kapoor was super vigilant in managing her medication, but Ms. Smith neglected to tell him about her pregnancy. After he found out about her pregnancy he arranged for her to go to Cedars. Cedars used the same regimen of drugs that Dr. Kapoor put her on, lowering the dosages during the last few months of pregnancy to try to get her off her medications. Basically, the layer was arguing to the jury that Dr. Kapoor acted correctly in prescribing her medications while she was addicted to them (feeding her habit) because of her chronic pain and that was corroborated by other doctors and Cedars.

Mr. Braun came at the jury from a different angle, first talking about how the facts of the case changed. He mentioned many times that the people saying Dr. Eroshevich acted badly were "corrupted" by fame and fortune and therefore were changing the facts of the case. He then went a bit into Dr. E's background to make the point she was a "real" doctor, not a doctor seeking fame. In fact, she stumbled into this by accident. She was Anna's neighbor and met her at a party. So, when Ms. Smith hurt her back she called Dr. E to prescribe her some medication. Dr. E was criticized for not performing tests, but many doctors medicate first before they do tests because they see the symptoms and know what to prescribe. If the medication doesn't work, then they do tests. Then the attorney recounts how Ms. Smith called Dr. E in a "panic" after her son died. She needed medication so Dr. E brought her anti-depressant and anti-anxiety medication in Bermuda. They bought different types of medications (her and doctor K) to see which one would work and help her. They were criticized for buying to many and that all of those drugs together was "pharma suicide", but it wasn't since all of the medications weren't taken together. The issue of pseudonyms was mentioned by her attorney and he said that they used different names for Smith to protect her privacy not to conceal improper activities. Also, some "proof" offered by her attorney was that if Dr. E was trying to hide something why would she willfully turn over Smith's various medications to the coroner? She wouldn't.

Then the court recessed for the afternoon.

All in all, the opening arguments were really interesting and a lot of good questions were posed to the jury.

Elevator Quotes

So, we have decided to chronicle some of the funniest things we've heard on the elevator going to court. Please enjoy:

Sheriff's Deputy 1: Man, I hope they didn't tow our car!
Deputy 2: Yeah, then we'd have to take the subway back to Long Beach for the rest of our work day.
Deputy 1 (to Anya and Ashley): Did you guys drive here? Do you have a car? Are you going to Long Beach?
Ashley: No, we took the subway.
Deputy 2 (The 6’5’’, 220 lb. man with a gun and awesome tattoos): Was it scary?

********

Random Press Guy 1: "These elevators are about the only thing slower than the criminal justice system."
Everyone Else In The Elevator: *General chuckles, snickers, and murmurs of agreement*
Random Press Guy 1: Speaking of, you know, the legal system is like a constipated elephant. Nothing happens for months, then suddenly there's a huge pile of crap that nobody wants to deal with.
Everyone Else In The Elevator: *Dies of laughter*
Random Press Guy 2: You . . . really have a way with words, man!

That's all for now, but we will be going into court this week too so hopefully we'll have some more quotes for ya'll.

"All arise for the Hon. Judge..."

We (as in Anya and I and our friend Julianne) have been quite busy this past week watching/following various and sundry cases at the Clara Shortridge Foltz Criminal Center (L.A.s criminal court) located on Temple street (in downtown). Look forward to some amusing elevator quotes, a summary of the Anna Nicole Smith trial's opening arguments made by the defense attorneys (yes, there were three people being tried and each one had two lawyers). Also, we will summarize another case involving a gang member in possession of a loaded firearm (however, we will not use real names...sorry). It has been a very amusing week which started off with seeing a pretty high profile case and getting asked if the subway was scary and ended with an interesting mistrial and brownies made by a judge.

Supreme Court's Decision on McDonald v. Chicago

The decision and opinion for McDonald v. Chicago recently came out before the Court closed for the summer session. The Court sided 5-4 with the petitioner's (McDonald et al). The fun thing about moot court is seeing how your justices decided vs. the actual Court so that's why I thought I'd follow through with bringing out the decision.

This means the Court has decided to incorporate (make binding on the states) the Second Amendment via the Fourteenth Amendment (which is used to incorporate). So now states can't make laws that ban guns (like handguns in the case of Chicago), but there probably will be some regulation power used by the states. All in all, this is a really important case and some things will be changing.

To read more about the case and to get the majority opinion written by Justice Alito go here.

And if there are any questions about the case please comment or e-mail me at agbatyko@yahoo.com

Elena Kagan: To Be or Not To Be?

Anya’s opinion:

Elena Kagan is perfectly boring. And that is why she is the perfect Supreme Court nominee for this time.  President Obama cannot afford another knock-down drag-out fight with Senate Republicans, not after the battle over healthcare, the will-they won't-they of financial reform, the vortex of doom that is Arizona's immigration law, the Times Square bomber, the non-handling of the BP oil spill . . . the list goes on. And a SCOTUS nominee fight is an especially unsavory concept in an election year, when many Republicans will be looking to seem as conservative as possible in order to pander to their base.

Ashley’s opinion:

I find that she doesn't really have any record very scary/very exciting. It is a bit horrifying in general to see anyone without much of a "paper trail" because we are so used to everyone being on the map and instantly knowing everything about them (hello...twitter) and thus comes the exciting part...it's unique. Now, maybe going with the trait "unique" isn't the best way to nominate someone for a seat on "the supremes"(sorry, I'm cheesy sometimes); but it's golden in my book. Personally, not having a "paper trail", yes means you are a wild card and that's bad for a president who wants to push his agenda and wants what he wants when he wants it, but you also get the rare chance to be excited about the decisions the Court makes. It's like Christmas...if you knew what the presents were already you wouldn't be that excited to open them...anticipation is the best feeling. And also I must admit, I wouldn't hate it too much if Obama were to pick someone who was a wild card and she ended up not always siding with the "liberal side". Generally, the President wants to put someone with their ideologies on the Court. However, agreeing with Anya, this may be the closest he can get to a "liberal" because the Senate won't confirm anyone more liberal. So, in that sense it's good that she doesn't have a paper trail because it will give her some leeway when the Senate Judiciary Committee takes a shot or two at her. I think she'd be an okay candidate, but not great, but I think for right now "okay" is all that Obama is going to get.

Also, there is a great West Wing episode that shows how they pick the candidates for the Court. It's called "The Supremes" (special thanks to my classmate who brought it in to Government class).

Information/Facts:

Kagan has spent much of her career in academia (professor at University of Chicago Law School, dean of Harvard Law school), with a brief foray into politics during her years working as associate White House Counsel during the Clinton years. She has little paper trail and has never served as a justice, even though she was nominated for the D.C. Circuit Court in 1999 (her nomination was never brought to a vote). She was also the first female solicitor general. But,since she has never been a judge one might venture to say she lacks experience in that area. Although being a lawyer and being a judge both involve knowing the laws, they are different jobs. A judge is stoic and calm and interprets and enforces the law by how the law is written. The judge, in a courtroom, holds all the power and is the mediator and voice of reason during disputes. Attorneys have to be strong and argumentative as well as convincing to make their point and shoot down the other sides point simultaneously. They have to be one-sided, and the right side is the on they are arguing. I would definitely be more comfortable with Kagan if she had held the position as a judge before becoming a justice of the "highest court in the land."

Overall, we are very excited to watch the Senate confirmation hearings (because the SCOTUS nominees are nominated by the President and then confirmed or not confirmed by the Senate Judiciary Committee) on C-SPAN. No matter who it is, they are always exciting to watch and the candidates are always sure to be "grilled". They start June 28, 2010 and you can watch on C-SPAN (if you don't have the channel no worries, they have a live feed on their website and that's where Anya and I spend too much time).

My Primary Tuesday: Ashley

I had a very eventful last Tuesday mainly because I was able to finally exercise my right to vote and wow did it feel good.

My voting experience was very simple on the actual day:

step 1: drive to polling place

step 2: check in and get ballot

step 3: mark ballot at correct table (CA has closed primaries so Republicans can only vote for Republicans and vice versa)

step 4: cast my vote and receive an "I Voted" sticker

step 5: walk out of the polling place proclaiming, "it was my first time" to the world with a giddy laugh and a smirk

A thing I found very funny about my particular voting experience was the amount of Republicans my district is lacking. Maybe it was just the time I went, but there weren't any Republicans voting when I was there. I walked in and there was a line for the Democratic tables and I just strolled over to the many open Republican tables and marked my ballot. I told this to Anya and she proudly pronounced (ohhhh...alliteration), "Sweetie, it's California, what did you expect?"

Although it seemed easy the day I went to cast my vote, there was some preparation for it. I had to register to vote which I did online. Once you do this, before an election it's smart to check to see if you really are registered. Sometimes they have problems with your registration and you just call them to clear it up. You should also receive a book in the mail with all the candidates running and on the back it has your polling place on it as well. It is wise to mark your book before you go to vote and then you can take some time and research the candidates, the measures, etc. so you make an informed decision (that's what I tried to do).

I know I may seem like the voting police or something, but if you are able to vote I really encourage you to. Voting ensures we have a government that follows America's ideals. It is a fundamental process to keep up democracy. We are so lucky and privileged we can vote for people and have influence over who's in power. So use your power and go register!

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.

IN THE
Supreme Court of the United States
_________________
No. 08-1521

_________________
OTIS MCDONALD, et al., Petitioners,
v.

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

_________________
PETITIONERS BRIEF

_________________

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)

I
AOur 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.

BSo, 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.

CWe 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.

DThere 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]”.

EThe 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.

FIncorporation 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.

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

BThe 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”.

CThe 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.

DTo 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 agbatyko@yahoo.com

Sources used:

• Substantive due process (this was EXTREMELY helpful): http://www.stanford.edu/group/psylawseminar/Substantive%20Due%20Process.htm
• McDonald v. Chicago:
  1. Review of case on Oyez: http://www.oyez.org/cases/2000-2009/2009/2009_08_1521
  2. Petitioner's brief: http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1521_Petitionernew.pdf
  3. Respondent's brief: http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1521_RespondentAmCuChicagoandOakPark.pdf
  4. The oral argument: http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1521.pdf
• D.C. v. Heller
  1. Scalia's Opinion: http://www.law.cornell.edu/supct/pdf/07-290P.ZO

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.

http://en.wikipedia.org/wiki/Tea_Party_movement

http://teapartypatriots.ning.com/

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).
Website: http://www.campbell.org/ideas.

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.
Website: http://chuckdevore.com/n/issues/.

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.
Website: http://www.carlyforcalifornia.com/

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: http://www.rockthevote.com/rtv_register.html?source=rtv.com-homegraphic. Please Vote!

AND . . . the other candidates for this election and others: http://www.politics1.com/ca.htm

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 3^rd 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: http://www.oyez.org/cases/2000-2009/2004/2004_04_108 (I recommend listening to the oral argument; it's fascinating!)
Aftermath of Kelo: http://online.wsj.com/article/SB10001424052748704402404574527513453636326.html
Knowledge on strict vs. loose construction: Supreme Court/Government classes