The ACLU wants to send people to prison. Anyone besides me see the irony in that?

Whether on the left or on the right, no one in the political mainstream is calling for anyone to go to prison over the CIA’s interrogation practices. Most of us just want to make sure we don’t do it any more in the future.

It seems ironic, therefore, that the ACLU, of all people, wants to get all punitive:

This is a shocking report, and it is impossible to read it without feeling immense outrage that our government engaged in these terrible crimes. This report definitively drags into the light the horrific details of illegal torture, details that both the Bush and Obama administrations have worked hard to sweep under the rug. The government officials who authorized illegal activity need to be held accountable. The administration’s current position – doing absolutely nothing – is tantamount to issuing tacit pardons. Tacit pardons are worse than formal ones because they undermine the rule of law. The CIA’s wrongful acts violated basic human rights, served as a huge recruiting tool for our enemies, and alienated allies world-wide. Our response to the damning evidence in this report will define us as a nation.

This should be the beginning of a process, not the end. The report should shock President Obama and Congress into action, to make sure that torture and cruelty are never used again. The Department of Justice needs to appoint a special prosecutor to hold the architects and perpetrators of the torture program accountable for its design, implementation, and cover-ups….

Anyone else see the irony here?

80 thoughts on “The ACLU wants to send people to prison. Anyone besides me see the irony in that?

  1. Brad Warthen Post author

    Of course, I could be reading too much into this. The ACLU isn’t actually using the word, “prison.” Maybe, when it says “The Department of Justice needs to appoint a special prosecutor to hold the architects and perpetrators of the torture program accountable,” it just wants them to get a stern talking-to. But I’m doubting that…

  2. Kathryn Fenner

    The ACLU is about protecting civil liberties, not anarchy! Sure, they protest the unfair incarceration of various people–black people disproportionately to whites committing the same crimes, powder cocaine offenders getting much lighter sentences than crack cocaine (see also, first clause)., etc.

    1. Brad Warthen Post author

      The irony is that within the mainstream, nobody wants to lock anybody up over this, regardless of party. So it’s ironic that the big defenders of liberty uber alles would be the lock-em-up contingent…

        1. Brad Warthen

          Anyway, Nuremberg was victor’s justice. So when ISIL wins, they can have a war crimes trial. But they won’t fool around with just imprisoning the “guilty.” The only good thing is that it will take them a while to get around to beheading ALL of us…

          1. M.Prince

            It’s disappointing to see otherwise intelligent people dismiss the Nuremberg trials as nothing more than “victors‘ justice.” That may have been the view of many Germans at the time – though not one many of them take now. In truth the trials were part of a serious and principled effort to develop a structured system of international laws and proceedings to deal with crimes committed by and on behalf of states (one element of which would be the anti-torture convention that the US ratified in 1994).

            You are correct in a sense, though: We do engage in victor’s justice when we believe ourselves exempt from the very rules we insist the rest of the world abide by. In general, we do play by the same rules. But when we don’t, it really stands out – and many around the world are disappointed by it and disdain us for our hypocrisy. If you’re looking for the loss of American credibility, you can look there as well.

            1. Kathryn Fenner

              Thank you. Yes.

              The United States of America should be better than to use torture. We are not (supposed to be) deranged sociopathic megalomaniacs or the followers of same.

              NPR (maybe the BBC World Service) played a clip of George W. Bush saying he wasn’t a lawyer, and his lawyers said it was okay. “I vas only following the lawyers.” If you cannot grasp that waterboarding is torture, you are not qualified to be President of the United States.

        2. Bart

          I thought it was no longer acceptable to use the Nazi or Hitler references on blogs but that is apparently meant for others, right? So, Godwin’s rule is out the window.

          Why not work with groups like ISIS or al-Quida to capture Bush, Cheney, and the heads of the CIA and the CIA agents in the middle of the night, whisk them away to the Hague and put them on trial for war crimes? Would that satisfy everyone on the left? Especially since neither one has ever tortured or beheaded anyone. Beheading simply does not measure up the same standards of torture as waterboarding or sleep deprivation or rectal feeding, does it?

          1. Kathryn Fenner

            We don’t need to work with these groups and “whisk them away in the middle of the night”–turnabout is not actually fair play, to call them to task for the decisions they made. Bush and Cheney, et al., can be made to stand to account in The Hague without such melodramatic “Homeland” hijinks. Do we really think they would turn fugitive rather than face the music?

            1. Barry

              Add Reagan to the list (dead but still get it on record0

              Bill Clinton
              President Obama
              Harry Truman
              Abraham Lincoln
              Andrew Jackson

  3. M.Prince

    Irony? Where’s the irony? The ACLU sees itself as a defender of justice and the rule of law. As signatory to the U.N. Convention against Torture, the US committed itself to prosecute those who engage in the practice. Therefore, purely as a matter of law, the ACLU is correct. As for the politics of the matter, well that’s something else entirely.

    It may also interest you to know that several European countries issued warrants several years ago for the arrest of a number of CIA employees stemming from their involvement in this program — in particular for the torture of a detainee, Khaled el-Masri, who was mistakenly thought to have been a terrorist.

    1. Barry

      “The ACLU sees itself as a defender of justice and the rule of law”

      depends on where and who is doing it. Often it depends on who is involved before the ACLU gets upset.

      1. M.Prince

        How many courts take on and try cases all on their own, without lawyers, plaintiffs, defendants and other interested parties? The very word “case” implies other actors. And as for courts defending justice, I need look no further than Plessy v. Ferguson to find an instance where the courts clearly did not effect justice. It took many years and the efforts of many outside the court (i.e. “self-appointed private actors”) before that decision was overturned. So clearly, courts need other actors in order to operate.

        1. Kathryn Fenner

          Exactly. Courts adjudicate what is put before them. They very seldom rule sua sponte.

          Supposedly, the various prosecutorial agencies are supposed to be asserting justice, but when they fail to do so, some little guy who probably can’t afford a lawyer, and doesn’t know how to access those who might help for less than full freight, can turn to the ACLU. Also, often people don’t even realize they have rights. They are poorly educated and/or just trying to put food on the table.

        2. Bryan Caskey

          You’re being willfully obtuse by saying that courts need “lawyers, plaintiffs, defendants, and other interested parties” in order to function.

          Obviously, that’s true. Courts like polite children, answer only the questions they are asked.

          Courts are a forum in which to resolve disputes through the rule of law, and most judges are very careful to ensure that they stick to the work of reading text and discerning our society’s traditional understanding of that text, which is the core function of our judges within the judicial system. The “value judgments” are (and ought to be) left to the people, through elected officials.

          Justice, in our judicial system, is the result of a process – not necessarily an end result.

          My only quibble with the ACLU is that they are somewhat selective in which rights they choose to defend. I would prefer they champion all civil rights, as opposed to simply the ones they agree with.

            1. Brad Warthen Post author

              Depends upon how you define their “base.” I doubt they’ve ever angered the people who are as rigidly, unthinkingly pro-civil liberties as they are.

              It’s not always about rights; it just isn’t. There are sometimes considerations that are far more important.

              When we speak of “unpopular causes” that cost the ACLU support, the first that comes to mind, of course, is National Socialist Party of America v. Village of Skokie.

              It was wrong, just plain wrong, to lift a finger to help Nazi-wannabes march through a community where one in six residents was a Holocaust survivor — something that they didn’t have the guts to DO after they won their court case with the help of the ACLU.

              It was all about the principle, right? Well, no, it wasn’t. Not to anyone with a conscience.

              Part of my objection to the ACLU is that I think even without it, we Americans talk far too much about our personal rights to do whatever we damn’ well please, and too little about our responsibilities to other people. Then, I object to the utter lack of judgment of an organization that thinks that principle rises above all others….

            2. Kathryn Fenner

              No, it not only wasn’t wrong, the Supremes agreed with them.

              You can regulate time, manner and place, but not content. Pretty basic stuff.

            3. Brad Warthen Post author

              You seem to be confusing “wrong” with “illegal.”

              I didn’t say the Nazis didn’t have a legal right to march. I said it was wrong for them to march, and wrong to help them do so.

              The Nazis were in no way harmed by not marching in Skokie — as they themselves decided in the end, apparently. Therefore, I would never, ever lift a finger to help them obtain that legal right. And I’m not going to look very favorably upon anyone who DOES help them do that wrong thing…

              And don’t give me a “first they came for the Nazis” spiel. There’s no slippery slope here… Saying “people dressing up as Nazis shouldn’t get to march through Skokie” in no way prevents civil rights marchers…

            4. Brad Warthen Post author

              As M. Prince says below, “being alive and making decisions involves selectivity.” Humans have the capacity to employ judgment. One picks one’s battles. And choosing to take up the cudgels for neoNazis is not a good choice…

            5. M.Prince

              Sorry, but I couldn’t disagree with you more, Brad. Civil liberties are often and perhaps best defended and decided at the margins. I remember the Skokie case well. It was when I first really started to think about the issue of freedom of speech in a serious way. But why stop there? Throw in the ACLU defending the KKK’s right to “sponsor” a segment of a public roadway. Or their defense of the right of Westboro Baptist Church members to protest homosexuality at military funerals. All of these actions were as abhorrent to me as to most people. But I nevertheless defend their right to engage in them — because I hold the right to free expression as codified in the First Amendment very highly. I understand what you’re staying but it seems rather strange for a journalist to take any other position. So I can only applaud what the ACLU and groups like it have done to defend this right. As Justice O.W. Holmes said, the First Amendment is there to protect “the freedom of the thought we hate.”

          1. M.Prince

            Just in general terms: being alive and making decisions involves selectivity. But as for the ACLU specifically, yes, they are indeed selective — by focusing on cases involving civil liberties or civil rights issues, as the “CL” in the name indicates. But, then, perhaps I’m merely being obtuse to point that out.

  4. Karen Pearson

    If it’s ok to break a treaty that we have signed then I guess we should stop fussing when Russia, or anyone else, violates its treaty agreements. As for the CIA’s use of torture, no it doesn’t make us as bad as the Nazi’s; it merely confirms the world’s view of us as hypocritical oath breakers who are no better than any one else. In my view, its a matter of doing an immoral, illegal action at all, rather than a matter of how much. To say that it’s ok because we only tortured some people is like saying it’s ok if someone only murders a person or 2. What quantity does it take? And by the way, I don’t think the release of this report is the cause of any anger or retaliation; it’s the fact that we did it that’s the problem.

  5. Barry

    “it merely confirms the world’s view of us as hypocritical oath breakers who are no better than any one else”

    Your mistake is a common one – sadly.

    The folks that are inclined to look at America as hypocritical oath breakers are going to look at America as hypocrites regardless. It matters little what America does or doesn’t do. They hate us beacause we believe in freedom for the common man.

    On a much smaller scale, this is the same way rival fan bases look at each other. Gamecock fans look down their noses at Clemson- regardless of what they do. Clemson fans look down their noses at Gamecocks, regardless of what they do. Neither can earn the other’s respect – regardless of their actions, thoughts, or accomplishments.

    If a Clemson football player called a penalty on himself that gave South Carolina a victory, an idealist would believe that the Clemson player just earned the respect of South Carolina fans. The realist would understand that the South Carolina fans just think of the Clemson player as a 100% sucker. Reverse the teams and fans- and the same is true. As a fan for 40 years, I’ve seen this play out many times between all sorts of teams- and people.

    Those inclined to do so dislike us (hate us) for simply caring about freedom. They don’t dislike us if we decide to torture – and they don’t respect us if we choose to disavow it. It doesn’t compute for them. They hate regardless.

  6. Barry

    “If it’s ok to break a treaty that we have signed then I guess we should stop fussing when Russia, or anyone else, violates its treaty agreements”

    Maybe we should. Or be particularly careful about the treaties we do sign.

  7. Phillip

    I’m always puzzled by people who go on about how much these Islamic radicals, etc., “hate our freedom,” but then are themselves skeptics (or outright opponents) of an organization like the ACLU which does more than any other non-governmental civilian entity to defend those very freedoms. What freedoms are there that we should be caring about beyond the ones the ACLU defends? Yeah, our country is pretty cool that we can order stuff this time of year on Amazon and get it so quickly. Is that all we’ve got left?

    As a proud and long-time ACLU member, I’m quite familiar a common issue with which ACLU is mischaracterized. Because it defends the separation of church and state (in terms of the state endorsing or promoting selected religious viewpoints) it is often wrongly viewed as being anti-religious. But it has vigorously defended the individual right of free religious expression in dozens of cases nationwide. You won’t hear about that from the religious right when they attack the ACLU, perhaps because their goals are less about actual religious freedom than about the advancement of a specific theological/political agenda.

    Like any organization of human beings, ACLU is not perfect. They do have to make decisions about where to allocate resources (which fights to pick). I think the organization has an ongoing struggle with Second Amendment issues, for example, though on occasion state chapters have taken the side of gun ownership rights. It’s not been something the national organization has really taken on, and their website position on it is kind of a cop-out, pass-the-buck kind of a position, in my view.

    But imperfect or not, I shudder to think where our country would be if there were not such an organization, or if it had never existed. And I still want to know, from those who believe that our “war on terror” is such an important defense of our “freedom,” well…what is this “freedom”? And how is it any different from the freedom that the ACLU seeks to defend? If what the ACLU does is not worth doing, then for what values exactly are we asking young men and women to give their lives defending?

    1. Brad Warthen Post author

      Well, Phillip, as I said earlier on this thread (I think), I long ago reached the conclusion that we frame too many issues in this country as being about rights. Not that I’m anti-rights. I’m glad the Framers took the time (actually, they had to for political reasons, if I recall correctly) to add those 10 amendments to the Constitution. I think those rights are fundamental to a liberal republic.

      But there are some people, and some groups, that talk about nothing else, and act as though there are no other factors worth considering. And they frame issues so that they are about competing rights, which leads to a kind of absolutism that prevents any sort of solution. Take abortion, for instance. Right-to-life versus right-to-choose prevents any sort of synthesis.

      Of course, I’ll admit that right to LIFE is to me one of those fundamentals, like speech, religion and due process. As I’ve objected here before, it’s the lack of due process that is one of my big objections to abortion on demand. When the Supreme Court invented a “right to privacy,” and spun that into an absolute “right” to an abortion, they removed this life-and-death decision from any sort of orderly process, putting the decision entirely in the hands of a highly interested individual. Which I find appalling, and I continue to be amazed that otherwise thoughtful, ethical people are able to rationalize it.

      But some other countries have found it possible to find paths to legal abortion without creating that absolute right out of something so insubstantial as a “penumbra.”

      But I digress. My point is that I balk at the coinage of new rights (such as privacy), and worry about framing issues solely in terms of rights. As I’ve also said before, the communitarian phrase, “rights AND responsibilities,” appeals to me, as a way of establishing a better perspective….

      1. M.Prince

        You view on the right at issue (primarily freedom of speech) appears to me self-contradictory. You say you don’t question the right of, say, the Nazis to march in Skokie or the Westboro Church members to picket military funerals. But when a city council votes to block the former or when states pass laws (as Michigan, Illinois and Arizona did) to forbid the latter, what happens to those rights? it appears to be ok with you if no one/group is there to offer to defend that right in court. Tough cookies, you seem to say — forgetting that, for all intents and purposes, rights do not exist outside of law. Within a society, even “natural rights” are exercised only to the extent they are codified in law.

        1. Brad Warthen Post author

          Perhaps what I’m saying seems oblique, but it’s pretty clear to me.

          We’ve spoken about the choices one makes — the battles one chooses, where one decides to spend the time and energy and resources which one has.

          I don’t dispute the free speech rights, strictly considered, of the Nazi wannabes or Westboro. But I would never take the time and spend the energy to help those two groups exercise their right to cause others pain through their reprehensible behavior. I just wouldn’t. And I thereby don’t approve of the decisions made by a group that would, and see no reason to be supportive of such a group.

          As Phillip notes, the ACLU makes choices. They don’t defend everyone’s rights in every circumstance. Nor can they; no one could. As he notes, their libertarian portfolio (and note that I object to the ACLU for the same reasons that I object to the Libertarian Party and its fellow travelers) is kind of light on sticking up for Second Amendment rights. Which is fine by me. Good call on that one, because to the extent that anyone really needs to exert effort in defense of gun rights — something I doubt, given political realities in this country — that base is being covered and then some by the NRA.

          By the way — if you’re still having trouble understanding my objections to the ACLU, take a moment to consider the NRA. That’s ANOTHER example of a group that takes a RIGHT and goes so overboard in placing that right über alles, in asserting it way beyond anything the Framers could have imagined, that it becomes a form of oppression to society at large, causing untold pain and suffering.

          That excess in the name of rights is precisely what I’m objecting to with the ACLU.

          1. M.Prince

            Oh, I have no trouble understanding your position. I simply find it untenable. As I tried to point out previously, your view is, in effect, that those whose expression you don’t find objectionable should be free to exercise their right to express it. But no effort should be undertaken to protect the speech you find objectionable and it may therefore be sacrificed to community values, which can vary widely from place to place and from one time to another. You may object that it’s not your intention to restrict speech, to ban expression. But it is the effect of the principle you uphold.

            As far as the comparison with the NRA is concerned, as I point out elsewhere in this thread, I do not hold the Second Amendment in the same regard as I do the First, or practically any other Amendment, since it is in no way as essential to democracy as they are. We can agree that the pain and suffering that flows from the efforts of its extremist advocates constitutes a genuine social ill. The freedom of expression, however, though it may at times be hurtful to some, is a principle too dear to be sacrificed to communitarianism or any other philosophical or social value.

        1. Brad Warthen Post author

          Well, I’m just going to assume that you’re referring to someone other than me there, because as much of a non sequitur as that observation has been on previous occasions, I just don’t see ANY point at which such an assertion intersects with what I’ve said on this post.

          I just tried yet again to explain what I’m talking about here. Please read it and tell me whether I’m making more sense to you than I did in my previous comments. And if you imagine there to be more “privilege blindness” in what I just said, please point it out…

          1. Kathryn Fenner

            You said you oppose the coinage of a right to privacy–and (because) you are opposed to abortion…you are privileged to be a. a male,who cannot get pregnant, b. someone who wants a lot of children, c. someone who can afford a lot of children.
            I found the reasoning in Roe v. Wade very compelling. If I am entitled to HIPAA privacy for my medical records, why not privacy for my medical decisions?

            1. Brad Warthen Post author

              First, I don’t oppose the coinage of a right to privacy (and coinage is what it is, as opposed to a “discovery,” because it just wasn’t there) BECAUSE I’m opposed to abortion. The invention of an absolute right to privacy is problematic in its own right. Following up Griswold with Roe was simply a matter of finding a particularly egregious application for this newly minted right.

              You do not have a constitutional right to privacy under HIPAA; you have a specific, limited STATUTORY right, granted by that specific act.

              And the objection to abortion is not an objection to privacy for a medical decision; it’s an objection to your ability to decide unilaterally to take another life — or rather, to engage someone to take it for you — without any sort of due process whatsoever.

              No right is, or should be, absolute. Even the right to life and liberty can be revoked through due process. Even the right to free speech can be curtailed via the “yelling ‘fire’ in a crowded theater” consideration. I see no justification for liberals (I’ll bow to popular usage and employ that shorthand term, even though there is nothing liberal about this position) believing that this one “right,” based in something so insubstantial and indirect as the “discovery” of a PENUMBRA of a “right to privacy,” should be absolute. It boggles the mind…

            2. Brad Warthen Post author

              Now that you get me thinking about it, it’s interesting that Congress saw the need to create a specific statutory privacy protection with HIPAA, if we already had a “right to privacy” so absolute that it allows for something like abortion on demand…

    2. Bryan Caskey

      “I think the organization has an ongoing struggle with Second Amendment issues, for example, though on occasion state chapters have taken the side of gun ownership rights. It’s not been something the national organization has really taken on, and their website position on it is kind of a cop-out, pass-the-buck kind of a position, in my view.”

      Exactly. I’m not anti-ACLU. I think the ACLU does fine work, with the exception of neglecting the 2A. For instance, I was disappointed that the ACLU did not file an amicus brief in Heller on behalf of the Respondent. That was a huge missed opportunity. If the ACLU would defend the 2A as vigorously as it does all of our other civil liberties, they would likely gain many more members. For instance – me.

      By the way, I generally agree with everything else in Phillip’s comment, as well.

      1. Kathryn Fenner

        Well, the NRA is over-the-top in its defense of Second Amendment Rights, so I am glad the ACLU conserves its resources for less well-funded rights.

        1. Bryan Caskey

          I will concede that the 2A is otherwise sufficiently advocated for. Point taken.

          However, for purposes of consistency, the ACLU should bring its official position on the 2A into alignment with the mainstream of public sentiment (and SCOTUS jurisprudence) by embracing the right to bear arms as an individual right.

            1. Bryan Caskey

              I’m simply pointing out that the idea of the 2A being a collective right (as opposed to an individual right), is not really a common position.

              Accordingly, the ACLU marginalizes itself with lots of people (yours truly, for instance) who would otherwise support it.

            2. Brad Warthen Post author

              Well, the Framers wrote it as a collective right. The right is guaranteed within the context of, “A well regulated militia being necessary to the security of a free state…”

              Note that I took that from the version ratified by the states and authenticated by Secretary of State Thomas Jefferson — as opposed to the better-known version with the random commas dropped into it, which convert the amendment into gibberish…

          1. Brad Warthen Post author

            Yes, the ACLU would be more consistent in its libertarianism if it were get out there with the NRA on the Second Amendment.

            But if it did, I would like it less, not more. If there’s anything I don’t like to see in a libertarian, it’s consistency…

            1. Bryan Caskey

              I’m not asking the ACLU to adopt the NRA’s platform. I would simply be happy to have them acknowledge that the 2A grants an individual right, as opposed the tortured idea that it’s conditioned upon participating in something.

              But seeing as even you don’t think it’s an individual right, I guess I shouldn’t hold my breath for the ACLU to come ’round.

      2. M.Prince

        The proposition that so-called Second Amendment rights are as valuable as or equivalent to the right to free speech or the freedom to assemble is ludicrous to me. Unlike other rights, particularly those of speech, assembly and religion, but also the prohibition against double jeopardy or the right to trial by jury or, really, any other right enumerated in the Bill of Rights, the Second Amendment expresses no right that is as essential to the exercise of democracy.

        1. Phillip

          Ah, M, but there’s the rub. You and I would agree that picking and choosing where and when basic freedom of political speech should be protected is capricious and arbitrary and contrary to the essence of the First Amendment—but I would suggest that picking and choosing which Amendments among the Bill of Rights are “essential to democracy” is maybe just as arbitrary, and kind of undermines the “selectivity” argument that you and I would make with regard to speech.

          Bryan, you say “if the ACLU would defend the 2A as vigorously as it does all of our other civil liberties, they would likely gain many more members” including yourself. I think that hits the nail on the head—but what if more Americans of a naturally conservative/libertarian bent, perhaps believing in many or most of the ACLU’s positions on individual freedom, joined anyway? Maybe the organization could truly fulfill its stated non-partisan nature even better.

          The common perception out there of the ACLU (justified or not) comes not so much IMO from liberals or progressives “taking it over” as it does from the conservative (and specifically GOP) retreat from a full-fledged and consistent embrace of civil liberties issues, and in fact the “demonization” of ACLU etc. (I blame much of this on the GOP’s marriage with the religious right in the 80s and 90s). The rise of the truly libertarian wing of the GOP in recent years could change this. I for one would love to see more of the Paulist wing of the GOP joining the ACLU.

          1. Brad Warthen Post author

            To quote part of what Phillip said completely out of context, “I for one would love to see more of the Paulist wing of the GOP…”

            Well, I would not. 🙂

          2. M.Prince

            As I say below, the repeal of the Second Amendment, unlike the repeal of other amendments, would in no wise diminish American democracy. Moreover, given our more recent experience with the violence that flows from the excessive emphasis placed on so-called “gun rights,” it might even strengthen it. I do not consider any Amendment holy writ or all of them of a piece, though I do think the First Amendment is essential, at least for lovers of democracy.

            As for Paul, I find myself more in agreement with Brad here. While Paul may occasionally make a civil libertarian gesture that I find interesting, his economic libertarianism is anathema to me.

            1. Bryan Caskey

              “Moreover, given our more recent experience with the violence that flows from the excessive emphasis placed on so-called “gun rights,” it might even strengthen it.”

              What recent violence has flowed from an emphasis (excessive or otherwise) on gun rights? I’m not aware of any gun rights advocates who have started shooting anti-gun people who disagreed with them. Maybe if you were more specific, I would be able to address your concerns.

              But if I understand your argument it’s: Take away everyone’s firearm = better democracy?

              Is that right? I am, of course, assuming that after repealing the Second Amendment, we’ll be collecting all the privately held guns? Is that your end goal, or have I overstated your ambition?

            2. M.Prince

              “But if I understand your argument it’s: Take away everyone’s firearm = better democracy?”

              Y’see, this is where you, like a lot of Second Amendment fundamentalists, go overboard with wild-haired assumptions. No, I am not and would not be keen to confiscate all privately held firearms. And the elimination of the Second Amendment would not automatically lead to that. But its existence clearly has made the control of firearms more difficult – certainly of late. Rather than entirely repeal it, however, we could instead take former Justice John Paul Stevens’s suggestion and amend it so as to clarify its meaning. Accordingly, it would read:

              “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

              As Stevens points out, this could have the same effect as elimination would. Writing in a recent commentary, he says “Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.”

              In any event, the elimination or redrafting of the Second Amendment would do no harm to the republic. American democracy could continue to function quite well without it, which is not the case with respect to most if not all of the other Constitutional provisions. That is what Jefferson would call a “self-evident truth”.

            3. Bryan Caskey

              “But its [the Second Amendment’s] existence clearly has made the control of firearms more difficult – certainly of late.”</i.

              What controls have been proposed that are barred by the 2A? You want to decrease magazine capacity? Up to a certain point, that is likely constitutional? You want background checks for every single transaction on a firearm? That also is likely constitutional. The Second Amendment likely doesn’t prohibit either of these two proposals.

              However, if you want to prohibit ownership of certain types of firearms that are in general and common use, then you may have a problem with the 2A.

              So, I guess my question is: Why would you repeal or modify the 2A if you don’t have any intention of confiscating firearms? WHat would be the point? There must be a policy that you want to enact that you currently believe is prohibited by the current version of the 2A. What is it?

            4. M.Prince

              Oh well, personally I would have no problem with a ban on all semi-automatic firearms, or at least restrict their use to certain licensed venues — along with imposing requirements for gun ownership roughly equivalent to those to obtain a driving license (such things as registration/licensing, proof of insurance, training, testing and periodic renewals). But the main issue is the one addressed by Stevens in his comment above: the use of the Second Amendment to block reasoned gun control measures (even if short of what I might like to see personally), in particular those proposed by the group, Mayors Against Illegal Guns.

              After Newtown, someone said to me, now something will definitely move forward on gun control. I said, nope, other than increase gun sales, nothing will change. But I was wrong: in many localities, controls became even more lax. If you can’t see the rabble-rousing that’s occurred under the mantle of the Second Amendment, you’re living in a different dimension.

              But turning the question around, what makes you think the Second Amendment is so essential to American democracy?

            5. Brad Warthen Post author

              Bryan may disagree with me on this, but I think the NRA’s excesses in the name of the amendment (Goldwater would say there’s no such thing as excess in such a cause, but he was wrong) have delegitimized the amendment in a lot of people’s minds.

              And that’s what’s wrong with making a point of defending the Nazi’s and Westboro’s legal right to do wrong things. I believe such pedantic exercises weaken broad public support for civil liberties. And I believe that’s a bad thing. If you care about civil liberties, you should want the ACLU to pick its battles more carefully.

            6. M.Prince

              Well, at the risk of running this into the ground, I can only point out, again, that your embrace of free speech appears to extend only to uncontroversial speech – the kind of speech that’s not likely to raise anyone’s ire and therefore unlikely to have anyone trying to prohibit it. While you prefer no one step up to defend neo-Nazis or fundamentalist homophobes in their right to demonstrate, others will prefer no one step up to defend speech you do approve of. In short, if your principle were made the general rule (“categorical imperative”), then there might be very little unpopular free speech left.

            7. Bryan Caskey

              “What makes you think the Second Amendment is so essential to American democracy?”

              Reason 1: Self-Defense
              An early American edition of Blackstone’s Commentaries made clear in description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repel force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”

              Essentially, self-defense is the first reason. When seconds count, the police are only minutes away. If I could carry a police officer around in my pocket all the time, I wouldn’t need to carry a sidearm. However, carrying police officers around in your pocket is quite inconvenient to both you and the police officer.

              Reason 2: An armed citizenry cannot be oppressed by the government.

              History shows us that the way tyrants eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, thereby enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights of 1689.

              Essentially, a citizenry with arms is a check against government. I know, I know. You think that’s an antiquated way of looking at things.

              Also, on a personal note, I like having the right to firearms specifically because there are people like you who want to take them away from me.

              For instance, your position that you would support a ban on “all semi-automatic firearms, or at least restrict their use to certain licensed venues” is quite an ambitious goal. That would leave us with revolvers, bolt-action rifles, lever-action rifles (like the Henry) single-shot shotguns (like my over and under), pump-action shotguns (like a Remington 870) and anything muzzle loading.

              Your proposal would, inter alia, ban:

              1. The 1911-style handgun that was developed in 1911, and is one of the most popular handguns in the world.
              2. All other semi-automatic handguns.
              3. All semi-automatic shotguns.
              4. The M-1 Garand, and all semi-automatic rifles.

              Some people like to make the argument, in the context of illegal immigration, that All these people are already here. You can’t possibly deport all of them!. Leaving aside whether your proposal would actually have an impact on violent crime (which I wold dispute) you can’t possibly imagine rounding up these millions and millions of semi-automatic firearms, can you?

              Don’t worry though. All of my semi-automatic firearms were tragically lost in a canoeing accident. Alas, none here, officer.

            8. Brad Warthen Post author

              M. says, “your embrace of free speech appears to extend only to uncontroversial speech.”

              No, not at all. A lot of speech is controversial speech, and I would stand up for most of it. But there are lines I will draw, and they define the boundaries between speech (or really, in these cases, we’re talking about provocative actions) that is merely controversial or unpopular, and that which has no purpose except to cause other people pain.

              I believe thinking human beings should employ judgment in the defense of ideals. Choose one’s battles, as it were. Don’t be rigid, unthinking and pedantic; stand up for things that are truly worth standing up for — there are plenty of such causes in the world, and many of them have too few champions.

            9. M.Prince

              Not to fear, Mr. Casky, I wouldn’t have jack-booted thugs out confiscating your weaponry, I’d borrow a page from, say, Australia, and offer to buy the banned items from you – while of course prohibiting their sale from the point the ban went into effect so no one could profit from them that way. But as for your list, yes, I wouldn’t have a problem seeing those items gradually disappear. This is my ideal world, though, I have no illusions about its actual practicality.

              As for your point no. 1: There are plenty of countries in the developed world without the “protections” offered by a Second Amendment, but most if not all of those are actually safer, as measured by gun deaths. But, as I say, you’d still have your guns for personal protection – while taking the arms race down several notches.

              Your point no. 2 is not only antiquated, it is farcical. For that proposition to have real meaning, you would need to demand public ownership of machine guns, hand grenades, rocket launchers, missiles, tanks as well as armed helicopters and fixed-wing fighter aircraft and bombers, among other things. Also, I hope you’re not saying, as many Second Amendment fundamentalists do, that the Framers’ intention in creating the Second Amendment was what you propose in your point no.2. Because it goes against reason and all understanding we have of the Framers to suggest that the very same people who were struggling to build a new government would incorporate a self-destruct mechanism into that government’s core architecture.

        2. Brad Warthen Post author

          If you see me fidgeting uneasily during this discussion, it’s because of the tendency of discussions of the ACLU to drift into yet another bout of the eternal battle between left and right. And I don’t have a dog in that fight.

          That’s not where I’m coming from at all. I see it in libertarian vs. communitarian terms, and for me the ACLU is, like the NRA, on the wrong side of the equation…

        3. Bryan Caskey

          “The Second Amendment expresses no right that is as essential to the exercise of democracy.”

          Sounds like you should call your Congressman and get that superfluous amendment repealed. Until then….¯\_(ツ)_/¯

          1. M.Prince

            I would if thought “my” congressman listened to anything I say. Because American democracy would not be diminished in the least by its repeal — which one could not say of the First Amendment freedoms.

  8. Kathryn Fenner

    I am a communitarian, too, Brad. I believe we should have quality prenatal and postnatal medical care, the kind of parental policies and support European countries have, including quality child care. Nonetheless, some women still don’t want to carry a given fetus to term. There is no medical basis for denying them the right to terminate.
    I believe we should teach our children better how not to hate–the Germans have done a far better job since WW II than we have! Maybe we’d have fewer KKKs and Westboros, and Neo-Nazis. Of course, people still have the freedom of religion–believe whatever nut-case stuff you want, and the state has to have a compelling interest to limit your free exercise of it, and free association with others who believe the same, and right to petition, etc….That stuff is basic to our notion of what America is, right?

    1. M.Prince

      I share your sentiments. But I would raise a note of caution about looking to Germany as a model. Just this past week it’s suspected that right-wing extremists burned down a newly built complex that was to house asylum-seekers (primarily from Syria). And in recent weeks a new anti-Muslim protest movement has been born that calls itself “Patriotic Europeans Opposed to the Islamization of the West”. Weekly demonstrations have been held in numerous German cities, including an estimated 10,000 protestors in Dresden.

      1. Kathryn Fenner

        Sure, there are whack jobs everywhere, and “Germany” is not what it was even ten years ago. Punktlich wie die Bahn? Hahahahaha

  9. Bryan Caskey

    “Well, the Framers wrote it as a collective right. The right is guaranteed within the context of, “A well regulated militia being necessary to the security of a free state…” -Brad


    No. No, they didn’t. As I’ve said many times before:

    The first clause announces a purpose. It does not limit or expand the scope of the second clause. Other legal documents, including individual rights provisions of state constitutions also include prefatory clauses that state a purpose. The first clause is simply the founders telling us WHY they are about to write the next clause.

    This is clear when you read the second clause which grants the right to “the people”. The original Bill of Rights uses the phrase “right of the people” two other times. First, in the First Amendment’s assembly and petition clause, again in the Fourth Amendment’s search and seizure clause, and finally in the Ninth’s language reserving “others retained by the people”. All three of these instances are individual rights, not collective rights, or rights conditioned on some participation in anything.

    The phrase “the people” appears throughout the Constitution, and nowhere does it refer to anything other than an individual right.

    Accordingly, reading the Second Amendment to protect only the right to keep and bear arms in connection with membership in an organized militia does not logically fit with the description of the holder of the right as “the people”.

    1. M.Prince

      Hm, “the people” sounds pretty dang collective to me. Or hadn’t the word “individuals” been invented back then? Not poetic enough maybe?

        1. M.Prince

          That’s simply not historically accurate. I will assume that you are merely misinformed. Because I would sorely hate to believe that you are willfully spreading misinformation. To better your appreciation of the historical background to and meaning of terms like “the people” or “the people-at-large” and other like formulations from early America, I would recommend you read chapter nine, entitled “The Sovereignty of the People,” in The Creation of the American Republic, 1776 – 1787, by Gordon S. Wood, our foremost living scholar of the period. In it, he points out that terms like “the people” were bound up together with debate over “the problem of sovereignty,” which he calls “the single most important abstraction of politics in the entire Revolutionary era.” It’s a very complex concept and the debate at the time was intricate, extending over many years and involving a multitude of participants, and therefore cannot be replicated here. The concept of sovereignty was important because it dealt with the question of where power and authority resided; without it, there could be “no supremacy, or subordination … no government at all,” no conceptual means of creating order. There probably were at least as many opinions on the matter as there were Framers – which makes use of expressions like “the Framers believed” just plain foolishness; they weren’t all of one mind. In the course of time and in contrast to England, where the “the people” only participated in government through the House of Commons and exercised no power over the King or House of Lords, in America, “the people,” to quote Wood again, “embraced the whole government” but “no branch or part could speak with the complete authority of the people,” because they “remained outside the entire government, watching, controlling, pulling the strings.” So, clearly, in using the words “the people,” the Framers were not referring to individuals but rather to the people collectively. As their title, “Framers,” indicates, they were engaged in framing a government, a collective act; so when they speak of “the people-at-large” as the final arbiters, they are talking about the people collectively, not as an amalgam of separate individuals. On the contrary, they were, for example, gravely concerned with what was termed “private combinations” (i.e. collections of individuals joined together to seek narrow special interests) and how these could become the puppets of narrow-minded, self-seeking men. Moreover, just look at the opening words of the Constitution: “We the People” does not reference a collection of sovereign individuals. Sovereignty only resided in the people acting collectively. In this, Brad is more on the mark with his embrace of communitarianism. The American cult of individualism arose later.

  10. Brad Warthen Post author

    This whole ACLU thing… This is another reason why I can’t run for office. My views are too idiosyncratic, and too hard to explain, even to smart people…

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