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Attorney General Mukasey on the Second Amendment:

A tangent from a statement by Senator Durbin, in the Judiciary Committee meeting ($) on the Mukasey confirmation:

Judge Mukasey told me, quote, "Based on my own study, I believe the Second Amendment protects an individual's right to keep and bear arms," end of quote.

Thanks to David Codrea for the pointer.

therut:
Good God. Senator Durbin thinks that is a bad thing. Not surprised. Instead of praising the man for standing up for Constitutional rights he pulls out his liberal religious dogma. I just can not accept that these people REALLY believe what they say. I am amazed everytime I hear it.
11.9.2007 9:56pm
Flash Gordon (mail):
They do believe it. It doesn't matter if its false, or even a lie, or if they know its false or a lie, they still believe it. Why do the believe it? Because they want to.

I like Mukasey more the more I learn about him.
11.9.2007 11:17pm
serns:
Who says he'll stand up for Constitutional rights anyway? Like, when they ask him to enforce on some guy who's never been arrested but has a restraining order on him 'cause he said some unfriendly things to to his ex, on account of he hung onto his gun in violation of federal law, will he be saying "um no, I can't do that, it might violate the Constitution?" Yup. That'll happen. Sell ya a bridge?
11.9.2007 11:37pm
HankP (mail) (www):
I guess that makes up for the whole waterboarding thing.
11.10.2007 1:21am
Houston Lawyer:
Yes, I think we should just keep enforcing the parts of the constitution that the liberals like or made up.
11.10.2007 2:21am
serns:
Wiretapping citizens, ignoring habeus corpus, and new kinds of torture, those liberals just keep finding new ways to attack or ignore the Constitution. No wait, liberals didn't start that. My bad. (But hey, it's just a piece of paper anyway.)
11.10.2007 2:36am
PersonFromPorlock:
I dunno. Maybe it's just me but I hear an echo of "I'm personally against abortion but...."
11.10.2007 8:13am
Eli Rabett (www):
machetes or machine guns?
11.10.2007 8:52am
Adam K:
Score. I'm off to buy a Scud.
11.10.2007 9:23am
glangston (mail):
Vinnie Babarino has a Boeing 707. I'd say that trumps the machetes, machine guns and even the innacurate Scuds.

It is a bit odd that Schumer was behind this guy all the way.
11.10.2007 9:57am
Bob Sykes (mail):
Actually, it's the 14th amendment that makes the right to bear arms an individual right. The 2nd amendment merely guarantees the right of the states to resist the federal government with armed force.
11.10.2007 10:58am
Tim in PA:

Wiretapping citizens, ignoring habeus corpus, and new kinds of torture, those liberals just keep finding new ways to attack or ignore the Constitution. No wait, liberals didn't start that. My bad. (But hey, it's just a piece of paper anyway.)


You do realize that most of these same abuses occurred under the Clinton administration, right? When do you think rendition flights started? It's as if everyone froliced under rainbows under the eeevil neocons came into power.

As for habeas corpus, I suppose the military could always deal with enemies caught violating the laws of land warfare in the traditional manner - shoot them on the spot. Would that satisfy you?
11.10.2007 11:52am
ChrisIowa (mail):

Wiretapping citizens, ignoring habeus corpus, and new kinds of torture, those liberals just keep finding new ways to attack or ignore the Constitution. No wait, liberals didn't start that. My bad. (But hey, it's just a piece of paper anyway.)


I remember there being a wiretapping controversy during the Kennedy/Johnson term, when Bobby was the AG.

The other stuff was not heard of only because secrets were more secret.
11.10.2007 1:06pm
The Editors, American Federalist Journal (mail) (www):

Wiretapping citizens, ignoring habeus corpus, and new kinds of torture, those liberals just keep finding new ways to attack or ignore the Constitution. No wait, liberals didn't start that.


Yes, liberals did start that - start mindlessly chanting that boilerplate mantra, that is.
11.10.2007 2:40pm
The Editors, American Federalist Journal (mail) (www):

The 2nd amendment merely guarantees the right of the states...

But it says "...the right of the people...", not "...the right of the states..."
11.10.2007 2:42pm
Libertarian1 (mail):
For me personally the chances I will be arrested and subjected to cruel torture techniques are quite low. The chances my habeus corpus rights will be abridged are similarly low. But I do know for certain my ability to legally purchase a handgun here in NYC are almost non-existant. I know because of "campaign finance" my free speech rights have already been restricted. Because of Kelo my property can be seized. Because of liberal PC speech rules what and where i can speak have been severly restricted.

The Republican favored "abridgements" are theoretical, the Democratic favored abridgements are practical and ongoing.
11.10.2007 2:54pm
noname (mail):
I think you're confusing "theoretical" and "affect me personally."

They're not exactly the same thing, you know.
11.10.2007 5:51pm
Logicman (mail):
I found this, tangentially related to Mukasey, to be hilarious.
11.10.2007 7:07pm
gattsuru (mail) (www):
Actually, it's the 14th amendment that makes the right to bear arms an individual right. The 2nd amendment merely guarantees the right of the states to resist the federal government with armed force.


The 14th amendment only affects "Privileges or Immunities". It can not recognize nor grant a right itself. It likewise can not transfer possession of a right, instead being limited to only the privileges and immunities recognized by the federal government of the citizens of the United States and adding that these protections must also be recognized by state law.

The text of the 2nd amendment states, and I quote :

"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."

It assures that, at least as long as a well regulated militia is necessary for the security of a free state, that the right of the people to keep and bear arms shall not be infringed.

Even the Founding Fathers recognized no inherent right to resist the Federal Government : Washington himself put down a few insurrections, although as characteristic of his time he did not punish the rebels more than strictly necessary. It was a capability, but not one recognized as a right. If it were a right, there could be no law banning it and no Constitutional notice against it.
11.10.2007 7:11pm
Oren (mail):

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.


If we could impart just one piece of wisdom on future constitution-writers it would be thus: do not use subordinate clauses when their meaning with respect to the main clause is unclear. Those commas are quite a bit more of a headache than they are worth anyway.
11.10.2007 7:28pm
gattsuru (mail) (www):
I think you're confusing "theoretical" and "affect me personally."


I think he or she is using "theoretical" as to describe his or her personal situation. While it's quite possible (and even simple) to go get in trouble with violations of the right to bear arms or the right to speak freely in liberal meccas (I've done the latter and gotten quite close on the former), even if you were to go to Iraq, dress like a Sikh, and fulfill a lot of nasty stereotypes, the chances of being tortured or having your right to a speedy trial or an appeal are horrendously low. From a personal perspective, it is theoretical, described in hundredths of a percentage at worst.

Hell, they're not even supposed to be doing the "take away speedy trial or right to an appeal" thing -- the most recent statute on the matter reduced the limitation on appeals related to terrorism in Iraq to those who had been determined to be an 'unlawful combatant' by a tribunal, and still had to allow that charge to be appealed to the DC District Court.
11.10.2007 7:30pm
JB:
It's "Habeas Corpus," not "Habeus Corpus." It means "Let the body be had."

Bravo to the people who try and make the endings agree, but it's a subjunctive verb, not an adjective-noun clause.
11.10.2007 9:01pm
Latinist:
JB:
It's also a second-person person active verb, not a third-person passive one, so a literal translation would be something like: "let you have the body," or "you should have the body," or even just "have the body." Hard to get into English.

And that's the sort of question I would have been asking Mukasey.
11.10.2007 11:23pm
Clayton E. Cramer (mail) (www):

Actually, it's the 14th amendment that makes the right to bear arms an individual right. The 2nd amendment merely guarantees the right of the states to resist the federal government with armed force.
Uh, no. There is not a single constitutional commentary, court decision, or written statement from before 1900 that claims that the 2nd amendment guarantees a right of the states. There are dozens of state supreme court decisions, constitutional commentaries by prominent authorities such as St. George Tucker and William Rawle, and statements by people involved in the drafting and ratification of the Bill of Rights, that clarify that the 2nd amendment protected an individual right.

There are several decisions of the Supreme Court that address questions of state vs. federal authority over the militia, such as Houston v. Moore (1820) and Martin v. Mott (1827) where neither party, nor the Court, argued that the 2nd amendment changed the relationships concerning the militia established in Art. I, sec. 8 and sec. 10.

The "states rights" understanding of the 2nd amendment is a 20th century invention, created to justify restrictive gun control laws aimed at disarming black people.
11.11.2007 1:10pm
serns:

When do you think rendition flights started? ...
As for habeas corpus, I suppose the military could always deal with enemies caught violating the laws of land warfare in the traditional manner - shoot them on the spot. Would that satisfy you?


I wasn't thinking rendition when I said torture, I was thinking the homegrown variety, recent discussion example: waterboarding. For rendition, we create the fiction that we believe the prisoner will not be tortured, but for waterboarding we admit to doing it but claim it isn't torture (with a straight face, even). And what I'd prefer (in general, NOT shooting people on the spot, but not torturing them either) is irrelevant because we're party to treaties banning torture and the Constitution says we're supposed to not violate treaties to which we're a party. But yeah, people might be right, none of it's new. Anyway, every or nearly every President we've had has probably pushed the limits of the Constitution, party notwithstanding. I'm just tired of Liberals being slammed like we have some kind of monopoly on "iffy" readings of the Constitution.
11.11.2007 8:45pm
Moneyrunner43 (www):
It is my understanding, correct me if I am wrong, that the after effects of water boarding are … zero. Oh, yes, I guess that one of the after affects is that you now have fewer secrets.

On the other hand, the after affects of riding in Ted Kennedy's car going over Dike Bridge are death if you are a young female.

Is one torture and the other not? Let me consider that.
11.11.2007 10:14pm
serns:

It is my understanding, correct me if I am wrong, that the after effects of water boarding are … zero. Oh, yes, I guess that one of the after affects is that you now have fewer secrets.

On the other hand, the after affects of riding in Ted Kennedy's car going over Dike Bridge are death if you are a young female.

Is one torture and the other not? Let me consider that.



The new Attorney General will probably not be asked to sanction drunk driving, just waterboarding. Therefore its after-effects are the relevant ones. If there aren't any, and it's not torture, is it OK to do it to a kid, say as punishment for stealing a bike? *I* don't think so, but I'm registered in the same party as Ted Kennedy so I have no credibility.
11.11.2007 10:56pm
American Psikhushka (mail) (www):
Moneyrunner43-

It is my understanding, correct me if I am wrong, that the after effects of water boarding are … zero.

Since its basically a mock execution that is also physically traumatizing there are certainly psychological after effects. And note that other kinds of mock executions are banned by our laws and treaties as well. Drugging and sodomizing you while you're unconscious wouldn't leave much in the way of physical after effects, but I don't think you'll be signing yourself or your family members up for it any time soon.
11.12.2007 5:57am
Clayton E. Cramer (mail) (www):

I'm just tired of Liberals being slammed like we have some kind of monopoly on "iffy" readings of the Constitution.
What I'm tired of is the self-righteousness of liberals about this. The Bush Administration has taken your living, breathing, constantly mutating Constitution doctrine and applied it. It is no different from concluding that a guy growing wheat on his own farm, to bake into bread, is engaged in interstate commerce, or the liberal rationalizations in Raich and Kelo.

Well, there is one difference: the War on Terror represents a very real threat to the continued lives of large numbers of Americans. While I don't condone waterboarding (which I consider over the line into torture), at least the rationalization for its use is based on a non-trivial problem. Liberal justifications for Raich and Kelo were basically, "What? And lose the power of the government to do good things in the future?"
11.12.2007 11:02am
Clayton E. Cramer (mail) (www):
That a particular act doesn't cause any permanent injury doesn't make it any the less torture. For example, the Inquisition often did not need to actually apply the instruments of torture; just showing them to some people was enough to make them confess their Religious Incorrectness.

I do not doubt that it is within our capability of inserting electrodes into the pain centers of a person's brain, and stimulating them to the point of shock and unconsciousness. You could probably build a device that detected that a person was going into shock (by blood pressure changes), turned off the stimulation--and then resumed it when the person recovered. Why, with IV drip for glucose, you could have a machine operating like that, inflicting pain equivalent to anything the Inquisition or the Soviet Union delivered for months, continuously--without doing any permanent damage.

Using liberal doctrines of how the Second Amendment has been rendered obsolete by changing technology, you could make a case that:

1. The death penalty isn't a deterrent to Islamist suicide bomber terrorists--they are expecting to die, anyway.

2. An effective deterrent would require that terrorists we catch be subject to something far more unpleasant than execution--for example, the torture machine aforementioned, perhaps alternated with trained pigs having their way with the terrorists--said procedures to be applied to such a person for the remainder of their natural life. (Say, 50 or 60 years of experiencing the pain equivalent of being beheaded with a dull knife every few minutes.)

Clearly, that "cruel and unusual punishments" clause, like the Second Amendment, has been rendered obsolete by changing technology.

There's nothing wrong with admitting that times change, technologies change, and perhaps the Constitution needs to change as well. But when liberals, who have spent most of the last 40 years using judicial activism to revise the Constitution, without bothering to go through the amendment process, start to complain that the Bush Administration is using liberal tricks--that's just too funny!
11.12.2007 12:36pm
American Psikhushka (mail) (www):
Clayton-

I'm not liberal, but one can make the case that the current trampling of the Constitution is worse than that done by liberals. The current trampling works at subverting some of the most basic rights - habeas corpus, prohibition on torture, etc. And don't get me started about some bureaucrat saying that we're going to have a "new definition" of privacy. (No, the president and his employees work for the people, and the people are going to tell you what the definition of privacy is going to be - not the other way around.)

The Creeping Commerce clause and associated crap is bad, but it isn't as bad as the neocons thinking they can claim anyone is an "enemy combatant" and hold them without having to follow the Constitution, or the treaties the US has signed.
11.12.2007 1:13pm
The Editors, American Federalist Journal (www):

"The current trampling works at subverting some of the most basic rights - habeas corpus, prohibition on torture, etc."

But enemy combatants don't have, and have never had, and should not have, the same rights under the U.S. Constitution that U.S. citizens have.
11.12.2007 1:52pm
TSW:
Clayton E. Kramer wrote:


There is not a single constitutional commentary, court decision, or written statement from before 1900 that claims that the 2nd amendment guarantees a right of the states.


I agree pretty much entirely with your post, but just to play devil's advocate, what about:

1. Buzzard v. State, 4 Ark. 18 (1842) (Dickinson, J., concurring).

2. In the General Principles of Constitutional Law in the United States (1880), Thomas Cooley mentions a militia-based reading of the amendment before refuting it.

These seem more like a sophisticated-collective interpretation though. If you mean a purely collective right interpretation you may be right.
11.12.2007 2:30pm
American Psikhushka (mail) (www):
The Editors...-

But enemy combatants don't have, and have never had, and should not have, the same rights under the U.S. Constitution that U.S. citizens have.

From what I can tell they can classify anyone, including US citizens, as an "enemy combatant" at the president's whim, without any kind of Constitutional due process or judicial oversight. That's new.
11.12.2007 4:09pm
Clayton E. Cramer (mail) (www):

The Creeping Commerce clause and associated crap is bad, but it isn't as bad as the neocons thinking they can claim anyone is an "enemy combatant" and hold them without having to follow the Constitution, or the treaties the US has signed.
I agree that Padilla should not have been classified as an enemy combatant, because of where he was arrested. Those captured on foreign battlefields (although not all those at Gitmo were) are enemy combatants. That's not new.

As the joke about the woman who agrees to go to bed with someone for a million dollars--but then gets offended when the bid drops to $50: "What do you think I am?" "We've already established what you are. We're just haggling over price."

When liberals decided to reinterpret the Constitution as they saw fit to accomplish what they saw as good ends, they had agreed to the act; now we're just haggling over for what purpose.
11.12.2007 10:57pm
Clayton E. Cramer (mail) (www):

I agree pretty much entirely with your post, but just to play devil's advocate, what about:

1. Buzzard v. State, 4 Ark. 18 (1842) (Dickinson, J., concurring).
Even Justice Dickinson's concurring opinion admits that the right is individual in nature:
The militia being necessarily composed of the people, as our government is opposed in principle to standing armies, the provision that they should have a right to keep their arms and use them, was a wise one, and necessary to carry out the object of the grant, in providing at all times for the security of the States.
In short, while the purpose was collective, the right was individual in nature. The Aymette decision (based on the Tenn. Const.'s "common defence" clause) was similar: a collective purpose, but an individual right.

2. In the General Principles of Constitutional Law in the United States (1880), Thomas Cooley mentions a militia-based reading of the amendment before refuting it.
Probably refuting Joel Bishop's erroneous statement which even Bishop admits was written without reference to any specific authority.
11.12.2007 11:07pm
Tony Tutins (mail):
Bob Sykes -- excellent troll. Most would say in a list of eight enumerated rights of individuals, the framers would not be so sloppy as to shove in a provision empowering the states. To consider it such would mean creating an Incoherent Drafter or Non Sequitur school of Constitutional interpretation.

Oren -- grammatically speaking, the "militia... state" wordage is not a clause (no verb) but an absolute adjective. The amendment lacks any language indicating that the right is conditioned on the existence of or necessity for the militia, merely that that is one reason to have the right.
11.13.2007 12:56pm