Breaking News and Updates
- Abolition Of Work
- Alternative Medicine
- Artificial Intelligence
- Atlas Shrugged
- Ayn Rand
- Basic Income Guarantee
- Conscious Evolution
- Cosmic Heaven
- Designer Babies
- Ethical Egoism
- Fifth Amendment
- Fifth Amendment
- Financial Independence
- First Amendment
- Fiscal Freedom
- Food Supplements
- Fourth Amendment
- Fourth Amendment
- Free Speech
- Freedom of Speech
- Gene Medicine
- Genetic Engineering
- Germ Warfare
- Golden Rule
- Government Oppression
- High Seas
- Hubble Telescope
- Human Genetic Engineering
- Human Genetics
- Human Longevity
- Immortality Medicine
- Intentional Communities
- Life Extension
- Mars Colonization
- Mind Uploading
- Minerva Reefs
- Modern Satanism
- Moon Colonization
- New Utopia
- Personal Empowerment
- Political Correctness
- Politically Incorrect
- Post Human
- Post Humanism
- Private Islands
- Resource Based Economy
- Ron Paul
- Second Amendment
- Second Amendment
- Socio-economic Collapse
- Space Exploration
- Space Station
- Space Travel
- Teilhard De Charden
- The Singularity
- Tor Browser
- Transhuman News
- Victimless Crimes
- Virtual Reality
- Wage Slavery
- War On Drugs
- Zeitgeist Movement
The Evolutionary Perspective
Tag Archives: free
Posted: September 22, 2016 at 7:46 pm
Madison’s original proposal for a bill of rights provision concerning religion read: ”The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.” 1 The language was altered in the House to read: ”Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.” 2 In the Senate, the section adopted read: ”Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, . . .” 3 It was in the conference committee of the two bodies, chaired by Madison, that the present language was written with its some what more indefinite ”respecting” phraseology. 4 Debate in Congress lends little assistance in interpreting the religion clauses; Madison’s position, as well as that of Jefferson who influenced him, is fairly clear, 5 but the intent, insofar as there was one, of the others in Congress who voted for the language and those in the States who voted to ratify is subject to speculation.
Scholarly Commentary .–The explication of the religion clauses by the scholars has followed a restrained sense of their meaning. Story, who thought that ”the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice,” 6 looked upon the prohibition simply as an exclusion from the Federal Government of all power to act upon the subject. ”The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.” 7
”Probably,” Story also wrote, ”at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.” 8 The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment. 9
This interpretation has long since been abandoned by the Court, beginning, at least, with Everson v. Board of Education, 10 in which the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that ”aid one religion” or ”prefer one religion over another,” but as well those that ”aid all religions.” Recently, in reliance on published scholarly research and original sources, Court dissenters have recurred to the argument that what the religion clauses, principally the Establishment Clause, prevent is ”preferential” governmental promotion of some religions, allowing general governmental promotion of all religion in general. 11 The Court has not responded, though Justice Souter in a major concurring opinion did undertake to rebut the argument and to restate the Everson position. 12
Court Tests Applied to Legislation Affecting Religion .–Before considering the development of the two religion clauses by the Supreme Court, one should notice briefly the tests developed by which religion cases are adjudicated by the Court. While later cases rely on a series of rather well-defined, if difficult-to-apply, tests, the language of earlier cases ”may have [contained] too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles.” 13 It is well to recall that ”the purpose [of the religion clauses] was to state an objective, not to write a statute.” 14
In 1802, President Jefferson wrote a letter to a group of Baptists in Danbury, Connecticut, in which he declared that it was the purpose of the First Amendment to build ”a wall of separation between Church and State.” 15 In Reynolds v. United States, 16 Chief Justice Waite for the Court characterized the phrase as ”almost an authoritative declaration of the scope and effect of the amendment.” In its first encounters with religion-based challenges to state programs, the Court looked to Jefferson’s metaphor for substantial guidance. 17 But a metaphor may obscure as well as illuminate, and the Court soon began to emphasize neutrality and voluntarism as the standard of restraint on governmental action. 18 The concept of neutrality itself is ”a coat of many colors,” 19 and three standards that could be stated in objective fashion emerged as tests of Establishment Clause validity. The first two standards were part of the same formulation. ”The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” 20 The third test is whether the governmental program results in ”an excessive government entanglement with religion. The test is inescapably one of degree . . . [T]he questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement.” 21 In 1971 these three tests were combined and restated in Chief Justice Burger’s opinion for the Court in Lemon v. Kurtzman, 22 and are frequently referred to by reference to that case name.
Although at one time accepted in principle by all of the Justices, 23 the tests have sometimes been difficult to apply, 24 have recently come under direct attack by some Justices, 25 and with increasing frequency have not been applied at all by the Court. 26 While continued application is uncertain, the Lemon tests nonetheless have served for twenty years as the standard measure of Establishment Clause validity and explain most of the Court’s decisions in the area. 27 As of the end of the Court’s 1991-92 Term, there was not yet a consensus among Lemon critics as to what substitute test should be favored. 28 Reliance on ”coercion” for that purpose would eliminate a principal distinction between establishment cases and free exercise cases and render the Establishment Clause largely duplicative of the Free Exercise Clause. 29
Justice O’Connor has suggested that it is inappropriate to try to shoehorn all Establishment cases into one test, and has called instead for recognition that different contexts may call for different approaches. Supp.1 For example, the Justice proposes that cases involving government ”speech” on religious topics be judged by an endorsement test that would invalidate government actions only if a reasonable observer would perceive the action as an endorsement or disapproval of religious belief. Supp.2
Government Neutrality in Religious Disputes .–One value that both clauses of the religion section serve is to enforce governmental neutrality in deciding controversies arising out of religious disputes. Schism sometimes develops within churches or between a local church and the general church, resulting in secession or expulsion of one faction or of the local church. A dispute over which body is to have control of the property of the church will then often be taken into the courts. It is now established that both religion clauses prevent governmental inquiry into religious doctrine in settling such disputes, and instead require courts simply to look to the decision-making body or process in the church and to give effect to whatever decision is officially and properly made.
The first such case was Watson v. Jones, 30 which was decided on common-law grounds in a diversity action without explicit reliance on the First Amendment. A constitutionalization of the rule was made in Kedroff v. St. Nicholas Cathedral, 31 in which the Court held unconstitutional a state statute that recognized the autonomy and authority of those North American branches of the Russian Orthodox Church which had declared their independence from the general church. Recognizing that Watson v. Jones had been decided on nonconstitutional grounds, the Court thought nonetheless that the opinion ”radiates . . . a spirit of freedom for religious organizations, and independence from secular control or manipulation–in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” 32 The power of civil courts to resolve church property disputes was severely circumscribed, the Court held, because to permit resolution of doctrinal disputes in court was to jeopardize First Amendment values. What a court must do, it was held, is to look at the church rules: if the church is a hierarchical one which reposes determination of ecclesiastical issues in a certain body, the resolution by that body is determinative, while if the church is a congregational one prescribing action by a majority vote, that determination will prevail. 33 On the other hand, a court confronted with a church property dispute could apply ”neutral principles of law, developed for use in all property disputes,” when to do so would not require resolution of doctrinal issues. 34 In a later case the Court elaborated on the limits of proper inquiry, holding that an argument over a matter of internal church government, the power to reorganize the dioceses of a hierarchical church in this country, was ”at the core of ecclesiastical affairs” and a court could not interpret the church constitution to make an inde pendent determination of the power but must defer to the interpretation of the body authorized to decide. 35
In Jones v. Wolf, 36 however, a divided Court, while formally adhering to these principles, appeared to depart in substance from their application. A schism had developed in a local church which was a member of a hierarchical church, and the majority voted to withdraw from the general church. The proper authority of the general church determined that the minority constituted the ”true congregation” of the local church and awarded them authority over it. The Court approved the approach of the state court in applying neutral principles by examining the deeds to the church property, state statutes, and provisions of the general church’s constitution concerning ownership and control of church property in order to determine that no language of trust in favor of the general church was contained in any of them and that the property thus belonged to the local congregation. 37 Further, the Court held, the First Amendment did not prevent the state court from applying a presumption of majority rule to award control to the majority of the local congregation, provided that it permitted defeasance of the presumption upon a showing that the identity of the local church is to be determined by some other means as expressed perhaps in the general church charter. 38 The dissent argued that to permit a court narrowly to view only the church documents relating to property ownership permitted the ignoring of the fact that the dispute was over ecclesiastical matters and that the general church had decided which faction of the congregation was the local church. 39
Thus, it is unclear where the Court is on this issue. Jones v. Wolf restated the rule that it is improper to review an ecclesiastical dispute and that deference is required in those cases, but by approving a neutral principles inquiry which in effect can filter out the doctrinal issues underlying a church dispute, the Court seems to have approved at least an indirect limitation of the authority of hierarchical churches. 40
[Footnote 1] 1 Annals of Congress 434 (June 8, 1789).
[Footnote 2] The committee appointed to consider Madison’s proposals, and on which Madison served, with Vining as chairman, had rewritten the religion section to read: ”No religion shall be established by law, nor shall the equal rights of conscience be infringed.” After some debate during which Madison suggested that the word ”national” might be inserted before the word ”religion” as ”point[ing] the amendment directly to the object it was intended to prevent,” the House adopted a substitute reading: ”Congress shall make no laws touching religion, or infringing the rights of conscience.” 1 Annals of Congress 729-31 (August 15, 1789). On August 20, on motion of Fisher Ames, the language of the clause as quoted in the text was adopted. Id. at 766. According to Madison’s biographer, ”[t]here can be little doubt that this was written by Madison.” I. Brant, James Madison–Father of the Constitution 1787-1800 at 271 (1950).
[Footnote 3] This text, taken from the Senate Journal of September 9, 1789, appears in 2 B. Schwartz (ed.), The Bill of Rights: A Documentary History 1153 (1971). It was at this point that the religion clauses were joined with the freedom of expression clauses.
[Footnote 4] 1 Annals of Congress 913 (September 24, 1789). The Senate concurred the same day. See I. Brant, James Madison–Father of the Constitution 1787-1800, 271-72 (1950).
[Footnote 5] During House debate, Madison told his fellow Members that ”he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any Manner contrary to their conscience.” 1 Annals of Congress 730 (August 15, 1789). That his conception of ”establishment” was quite broad is revealed in his veto as President in 1811 of a bill which in granting land reserved a parcel for a Baptist Church in Salem, Mississippi; the action, explained President Madison, ”comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that ‘Congress shall make no law respecting a religious establishment.”’ 8 The Writings of James Madison (G. Hunt. ed.) 132-33 (1904). Madison’s views were no doubt influenced by the fight in the Virginia legislature in 1784-1785 in which he successfully led the opposition to a tax to support teachers of religion in Virginia and in the course of which he drafted his ”Memorial and Remonstrance against Religious Assessments” setting forth his thoughts. Id. at 183-91; I. Brant, James Madison–The Nationalist 1780-1787, 343-55 (1948). Acting on the momentum of this effort, Madison secured passage of Jefferson’s ”Bill for Religious Liberty”. Id. at 354; D. Malone, Jefferson the Virginian 274-280 (1948). The theme of the writings of both was that it was wrong to offer public support of any religion in particular or of religion in general.
[Footnote 6] 3 J. Story, Commentaries on the Constitution of the United States 1865 (1833).
[Footnote 7] Id. at 1873.
[Footnote 8] Id. at 1868.
[Footnote 9] For a late expounding of this view, see T. Cooley, General Principles of Constitutional Law in the United States 224-25 (3d ed. 1898).
[Footnote 10] 330 U.S. 1, 15 (1947). Establishment Clause jurisprudence since, whatever its twists and turns, maintains this view.
[Footnote 11] Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (then-Justice Rehnquist dissenting). More recently, dissenters, including now-Chief Justice Rehnquist, have appeared reconciled to a ”constitutional tradition” in which governmental endorsement of religion is out of bounds, even if it is not correct as a matter of history. See Lee v. Weisman, 112 S. Ct. 2649, 2678, 2683-84 (1992) (Justice Scalia, joined by the Chief Justice and Justices White and Thomas, dissenting).
[Footnote 12] Lee v. Weisman, 112 S. Ct. 2649, 2667 (1992) (Justice Souter, joined by Justices Stevens and O’Connor, concurring).
[Footnote 13] Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970).
[Footnote 14] Id.
[Footnote 15] 16 The Writings of Thomas Jefferson 281 (A. Libscomb ed., 1904).
[Footnote 16] 98 U.S. 145, 164 (1879).
[Footnote 17] Everson v. Board of Education, 330 U.S. 1, 16 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211 , 212 (1948); cf. Zorach v. Clauson, 343 U.S. 306, 317 (1952) (Justice Black dissenting). In Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), Chief Justice Burger remarked that ”the line of separation, far from being a ‘wall,’ is a blurred, indistinct and variable barrier depending on all the circumstances of a particular relationship.” Similar observations were repeated by the Chief Justice in his opinion for the Court in Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (the metaphor is not ”wholly accurate”; the Constitution does not ”require complete separation of church and state [but] affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any”).
[Footnote 18] Zorach v. Clauson, 343 U.S. 306, 314 (1952); Engel v. Vitale, 370 U.S. 421 (1962); Sherbert v. Verner, 374 U.S. 398 (1963); Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Justice Goldberg concurring); Walz v. Tax Comm’n, 397 U.S. 664, 694 -97 (1970) (Justice Harlan concurring). In the opinion of the Court in the latter case, Chief Justice Burger wrote: ”The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Id. at 669.
[Footnote 19] Board of Education v. Allen, 392 U.S. 236, 249 (1968) (Justice Harlan concurring).
[Footnote 20] Abington School District v. Schempp, 374 U.S. 203, 222 (1963).
[Footnote 21] Walz v. Tax Comm’n, 397 U.S. 664, 674 -75 (1970).
[Footnote 22] 403 U.S. 602, 612 -13 (1971).
[Footnote 23] E.g., Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 653 (1980), and id. at 665 (dissenting opinion); Stone v. Graham, 449 U.S. 39, 40 (1980), and id. at 43 (dissenting opinion).
[Footnote 24] The tests provide ”helpful signposts,” Hunt v. McNair, 413 U.S. 734, 741 (1973), and are at best ”guidelines” rather than a ”constitutional caliper;” they must be used to consider ”the cumulative criteria developed over many years and applying to a wide range of governmental action.” Inevitably, ”no ‘bright line’ guidance is afforded.” Tilton v. Richardson, 403 U.S. 672, 677 -78 (1971). See also Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 761 & n.5, 773 n.31 (1973); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 662 (1980), and id. at 663 (Justice Blackmun dissenting).
[Footnote 25] See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636 -40 (1987) (Justice Scalia, joined by Chief Justice Rehnquist, dissenting) (advocating abandonment of the ”purpose” test); Wallace v. Jaffree, 472 U.S. 38, 108 -12 (1985) (Justice Rehnquist dissenting); Aguilar v. Felton, 473 U.S. 402, 426 -30 (1985) (Justice O’Connor, dissenting) (addressing difficulties in applying the entanglement prong); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768 -69 (Justice White concurring in judgment) (objecting to entanglement test). Justice Kennedy has also acknowledged criticisms of the Lemon tests, while at the samed time finding no need to reexamine them. See, e.g., Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 -56 (1989). At least with respect to public aid to religious schools, Justice Stevens would abandon the tests and simply adopt a ”no-aid” position. Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980).
[Footnote 26] See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayers on the basis of historical practice); Lee v. Weisman, 112 S. Ct. 2649, 2655 (1992) (rejecting a request to reconsider Lemon because the practice of invocations at public high school graduations was invalid under established school prayer precedents); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993) (upholding provision of sign-language interpreter to deaf student attending parochial school); Board of Educ. of Kiryas Joel Village v. Grumet, 114 S. Ct. 2481 (1994) (invalidating law creating special school district for village composed exclusively of members of one religious sect). The Court has also held that the tripartite test is not applicable when law grants a denominational preference, distinguishing between religions; rather, the distinction is to be subjected to the strict scrutiny of a suspect classification. Larson v. Valente, 456 U.S. 228, 244 -46 (1982).
[Footnote 27] Justice Blackmun, concurring in Lee, contended that Marsh was the only one of 31 Establishment cases between 1971 and 1992 not to be decided on the basis on the Lemon tests. 112 S. Ct. at 2663, n.4.
[Footnote 28] In 1990 Justice Kennedy, joined by Justice Scalia, proposed that ”neutral” accommodations of religion should be permissible so long as they do not establish a state religion, and so long as there is no ”coercion” to participate in religious exercises. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226, 260 -61. The two Justices parted company, however, over the permissiblity of invocations at public high school graduation ceremonies, Justice Scalia in dissent strongly criticizing Justice Kennedy’s approach in the opinion of the Court for its reliance on psychological coercion. Justice Scalia would not ”expand[ ] the concept of coercion beyond acts backed by threat of penalty.” Lee v. Weisman, 112 S. Ct. 2649, 2684 (1992). Chief Justice Rehnquist has advocated limiting application to a prohibition on establishing a national (or state) church or favoring one religious group over another. Wallace v. Jaffree, 472 U.S. 38, 98 , 106 (1985) (dissenting).
[Footnote 29] Abington School District v. Schempp, 374 U.S. 203, 222 -23 (1963). See also Board of Education v. Allen, 392 U.S. 236, 248 -49 (1968); and Tilton v. Richardson, 403 U.S. 672, 689 (1971); Lee v. Weisman, 112 S. Ct. 2649, 2673 (Justice Souter concurring) (”a literal application of the coercion test would render the Establishment Clause a virtual nullity”).
[Footnote 1 (1996 Supplement)] Board of Educ. of Kiryas Joel Village v. Grumet,114 S. Ct. 2481, 2498-99 (1994).
[Footnote 2 (1996 Supplement)] Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (concurring); Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 625 (1989) (concurring); Board of Educ. of Kiryas Joel Village v. Grumet, 114 S. Ct. 2481, 2500 (1994) (concurring).
[Footnote 30] 80 U.S. (13 Wall.) 679 (1872).
[Footnote 31] 344 U.S. 94 (1952). Kedroff was grounded on the Free Exercise Clause. Id. at 116. But the subsequent cases used a collective ”First Amendment” designation.
[Footnote 32] Id. at 116. On remand, the state court adopted the same ruling on the merits but relied on a common-law rule rather than the statute. This too was struck down. Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960).
[Footnote 33] Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 447 , 450-51 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, 396 U.S. 367 (1970). For a similar rule of neutrality in another context, see United States v. Ballard, 322 U.S. 78 (1944) (denying defendant charged with mail fraud through dissemination of purported religious literature the right to present to the jury evidence of the truthfulness of the religious views he urged).
[Footnote 34] Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God of Sharpsburg, 396 U.S. 367, 368 (1970). See also id. at 368-70 (Justice Brennan concurring).
[Footnote 35] The Serbian Eastern Orthodox Diocese v. Dionisije Milivojevich, 426 U.S. 697, 720 -25 (1976). In Gonzalez v. Archbishop, 280 U.S. 1 (1929), the Court had permitted limited inquiry into the legality of the actions taken under church rules. The Serbian Eastern Court disapproved of this inquiry with respect to concepts of ”arbitrariness,” although it reserved decision on the ”fraud” and ”collusion” exceptions. 426 U.S. at 708 -20.
[Footnote 36] 443 U.S. 595 (1979). In the majority were Justices Blackmun, Brennan, Marshall, Rehnquist, and Stevens. Dissenting were Justices Powell, Stewart, White, and Chief Justice Burger.
[Footnote 37] Id. at 602-06.
[Footnote 38] Id. at 606-10. Because it was unclear whether the state court had applied such a rule and applied it properly, the Court remanded.
[Footnote 39] Id. at 610.
[Footnote 40] The Court indicated that the general church could always expressly provide in its charter or in deeds to property the proper disposition of disputed property. But here the general church had decided which faction was the ”true congregation,” and this would appear to constitute as definitive a ruling as the Court’s suggested alternatives. Id. at 606.
Follow this link:
Annotation 1 – First Amendment – FindLaw
Posted: at 7:42 pm
Do you really own something if the governmentforces youto make never-ending payments on it?
I think the answer is no.
Youpossesssuch an item, but you dontownit outright. Its an important distinction.
A ridiculous threat to property rights has infected most of the world like a virus. Most people unquestioningly accept it as a normal part of lifelike gravity or the sun setting in the west.
Read the rest
Read the rest
Read the rest
Government seeks to help the poor, but only succeeds in hurting them even more. The same can be said for when government seeks to provide “paid maternity leave”. Once again, in its attempt to supposedly help women, it can only end up hurting them.
Read the rest
Are you tired of the exhausting displays of political correctness in America? Can’t you just feel the liberty and ability to think freely being squeezed out of society? Did you ever wonder where it all came from? After all, there is nothing more powerful than ideas. How did we get here, and who has been behind it? Well, below you’ll find an extremely easy to understand presentation that will open your eyes. Make the time to watch it. You won’t regret it:
Today’s Liberty Report is joined by US Rep. Thomas Massie (R-KY) to discuss the state of the liberty movement both inside and outside of government. What can we do to make a difference? Streamed LIVE Sept 21, 2016
Just over a week after a ceasefire deal was announced by the US and Russia, the deal is a smoldering ruin. A US strike on Syrian forces, US-backed rebel groups that refuse to break with al-Qaeda, and an attack yesterday on a humanitarian aid convoy in Aleppo have obliterated any hopes for an end to the violence. What should the US do next? Streamed LIVE Sept 20, 2016
Has the surveillance state claimed the last bit of our privacy? Our lives are being stored at enormous “data centers” in the US and abroad. Everything we do, every transaction, every website we visit. This has nothing to do with terrorism and everything to do with control. Today’s Liberty Report is joined by former State Department official Peter Van Buren to discuss the surveillance state as so masterfully depicted in the recent Oliver Stone film, Snowden.Published Sept 19, 2016
As Hillary Clinton calls millions of Americans “irredeemable” and “deplorable,” Ron Paul explains why those terms apply to American politics itself. Gang warfare and a sprawling government enforcer wasn’t supposed to be the fate of the “land of the free.” There is a better way to live. Don’t miss today’s Myth-Busters! Publishes Sept 16, 2016
Yesterday US National Security Advisor Susan Rice signed a “memorandum of understanding” committing the US to providing $38 billion in military aid over the next ten years. Philip Giraldi joins today’s Liberty Report to break down the agreement and discuss whether it really does, as Rice claims, benefit US security. Streamed LIVE Sept 15, 2016
Here is the original post:
Ron Paul Liberty Report – Home
Posted: September 20, 2016 at 7:11 pm
Bob Black (born Robert Charles Black, Jr. in 1951) is an American anarchist, and author of books such as Anarchy After Leftism, Friendly Fire (New Autonomy Series), and Beneath the Underground.
This book contains various essays, mostly written from 1977-1985. They have previously appeared in a very large variety of periodicals (e.g., Beatniks from Space; Church of the Latter Day Punk; Loompanics Unlimited Book Catalog; Semiotext(e); Twisted Imbalance, etc.).
He begins the title essay by stating, “No one should ever work. Work is the source of nearly all the misery in the world.” (Pg. 17) He later elaborates, “Work is a much better explanation for the creeping cretinization all around us then even such significant moronizing mechanisms as television and education.” (Pg. 22) He concludes with the exhortation, “Workers of the world… relax!” (Pg. 33)
His observations are often pointed and humorous: e.g., “Remember, pain is just God’s way of hurting you” (Pg. 37); “A libertarian is just a Republican who takes drugs” (pg. 141); “The typical Loompanics reader is, I conjecture, a surrealist trapped in the body of an engineer.” (Pg. 154)
Black’s writing is quite interesting, and of interest to libertarians, individualists, anarchists, and other free spirits.
Read this article:
Posted: September 14, 2016 at 1:09 am
Inside a metal shed in the Tibetan highlands of western China, thousands of microprocessors flank narrow corridors, generating a constant hum and stifling waves of heat.
Outside, the sky is clear and blue, with a mountain peak looming at the top of a narrow wooded valley. A flock of goats ambles idly past a pile of discarded foam packaging. Inside, though, tranquility is transformed into clamor. Red, blue and green lights constantly flash; cooling water trickles down the walls, and large ventilation fans thrum as they struggle to shift the hot air produced by all this concentrated computing power.
This is a bitcoin mine, the engine room of the worlds leading digital currency. The microprocessors here approve and record all the transactions that keep the bitcoin system running. They also compete to solve complex mathematical problems and are rewarded with bitcoins: Thats a way of putting fresh digital currency into circulation and incentivizing more people to set up mining operations.
Bitcoin began as a utopian, libertarian dream, a decentralized currency outside the control of governments, a system that gives its users the anonymity of cash and the instant, global power of email. This was a system built not just for convenience, but also for those who cant bring themselves to trust the global financial system, created by a programmer whose identity remains a mystery.
Across Tibet, China is busy pulling mineral resources out of the ground; there is even a gold mine close by. But here in Kongyu, most of the mining is virtual. It is here because of extremely cheap hydropower, cheap wages and perhaps because Chinese entrepreneurs have a knack for the business.
[Chinas scary lesson to the world: Censoring the Internet works]
For a while, bitcoin was effectively kidnapped by drug dealers, becoming the anonymous payment backbone of the Silk Road, a black market in illegal drugs that flourished on the dark Net until the FBI closed that market down in 2013.
Today it is an industry that is starting to come of age, but whose center of gravity has shifted to China, and away from utopian dreamers toward venture capitalists.
When bitcoin was invented, the people dedicated to it were mostly crypto-punks and libertarians, said Eric Mu, the chief marketing officer with HaoBTC, which operates the bitcoin mine in this township in Chinas western Sichuan province. Now they are more like bankers and lawyers who see opportunities in the industry. And as they join, the industry is changing.
In this case, changing also means moving to China.
Today, mines run by Chinese companies account for about 70percent of the worlds bitcoin processing power, its factories produce the cheapest microprocessors to run these mines, and its exchanges account for about 70percent of the worlds bitcoin trade.
It is increasingly big business. Altogether there around more than 15 million bitcoin in existence: Each is worth $615 at current prices, with a market capitalization of $9.2 billion.
For some, Chinese domination of an industry once controlled by libertarian crypto-punks is a rich irony. For others, it is a more practical threat: Chinese miners, some argued, have been standing in the way of reforms needed to speed up transaction speeds on bitcoins fast-expanding network of users.
But those concerns might be overblown.
Some people in the Western world were painting Chinese miners with too broad a brush, said Emin Gn Sirer, a computer science professor at Cornell University. Its not the case that all Chinese miners are part of the same enterprise or are colluding.
But Sirer identifies one risk with the concentration of mining power here: If the Chinese government wanted, it could in theory crack down on miners and force them to block certain bitcoin accounts.
They would not be able to usurp funds, but they could stop the motion of funds, he said, describing exactly the sort of government control bitcoin was supposed to guard against.
These are concerns that have parallels with the way China is using its digital market power to reshape the Internet and influence the global debate about censorship and surveillance.
But here, in the mountains of Sichuan, it is hard to see much evidence of a Chinese plot to bring bitcoin to heel.
The Chinese government has employed a fairly light touch. Although it banned banks from taking part in bitcoin trading in 2013, it left ordinary people free to buy and trade the crypto-currency, and miners free to operate.
[Internet activists are finding ways around Chinas Great Firewall]
The industry is run by a disparate mix of investors and dreamers and is manned by electricians and IT experts. There are people like Ryan Xu, an infectiously enthusiastic Chinese-born Australian who first became interested in libertarian economics while working as a reactor operator in a nuclear power plant. He now describes himself as both a utopian and a venture capitalist.
We need to foresee the next five or 10 years, he said in a wide-ranging conversation over dinner in the western city of Kangding. All the governments are printing money and diluting peoples wealth. Is that justice or robbery? The financial system also keeps crashing every five or 10 years. I think thats an illness in the monetary system and it needs a cure.
He says he is not sure bitcoin is the answer, but it is at least an experiment that might work.
So why China?
Running microprocessors sucks electricity. Competition is intense, and profit margins are narrow: Xu has moved his mines around the world in search of the cheapest power, from Iceland to Georgia, and then to Washington state, from the coal fields of Chinas northern Inner Mongolia province and now to the mountains of Sichuan.
His latest mine is still under construction, between a hydroelectric power plant and the concrete shell of a disused power transmission station, between Kongyu and the city of Kangding.
As Chinas economy boomed, private companies set up hydroelectric plants in western Sichuan; then, as the economy slowed, they found themselves unable to sell to the national grid, elbowed out of the market by more politically powerful state-owned firms.
It took a lot of money to build the plants, but it doesnt cost that much to maintain them, said HaoBTCs Mu. So it makes sense for them to sell the power to anyone willing to buy, even at a low rate.
Maintenance staffers are cheaper here than in the West. Mu says his company employs 10 people at three mines in the mountains, paying them around 6,000 yuan ($900) a month, a decent salary for this part of the world. HaoBTC runs one other mine in Sichuan and one farther west in Xinjiang, with more than 11,000 machines, earning more than 80 bitcoin a day a daily income stream worth more than $745,000.
[These viral selfie apps with 1 billion downloads are shaping Chinas start-up culture]
But it is not only Chinese entrepreneurs who have taken to bitcoin. Deprived of good investment opportunities at home, and burned by a volatile stock market, a growing number of Chinese people have begun speculating and investing in bitcoin.
Bobby Lee, a former Silicon Valley engineer who founded Chinas first bitcoin exchange, BTCC, attributes it partly to a natural instinct to buy and sell.
If you look at Las Vegas or Macau or casinos worldwide, how come most of the clientele are of Asian descent, or Chinese specifically? he asked. It has to do with some cultural instinct. Chinese people like to gamble.
Yet as bitcoin matures, it is also experiencing some significant growing pains.
Bitcoin is virtual money that cuts out banks and credit card companies, and has gotten more popular recently. Here’s what you need to know about the original cryptocurrency. (Davin Coburn/The Washington Post)
On Aug. 2, the Bitfinex exchange in Hong Kong was forced to admit that hackers had stolen nearly 120,000 bitcoin worth $72million from customers accounts. That news caused the bitcoin price to fall by more than 20 percent and underlined the safety concerns that many ordinary people feel about owning digital money.
At the same time, the system is showing signs of overloading. Bitcoins current technology can process only around three digital transactions a second minuscule compared with the roughly 24,000 transactions per second that Visa can manage.
Delays in processing transactions have grown, as have transaction fees, and the industry has become deeply divided about how to reform the system to solve the problem.
Jeff Garzik, a leading bitcoin developer based in Atlanta, argues that a technological fix is in the pipeline that soon will allow bitcoin to process tens of thousands of transactions a second.
I think that with new technologies coming down the pipeline, it can scale up to everyone buying their coffee with bitcoin in the entire world, he said. It really can be the first really good substitute for physical in-your-hand cash.
Like Sirer, he isnt too worried about the current concentration of mining power in China, partly because the market is so dynamic and the dominant players change every year.
Its much easier to challenge the dominant players in this space because market entry is so easy, he said. If the Chinese miners suddenly power off their rigs, within 24 hours well see the emergence of another competitor.
Here in the mountains, miners while away their free time playing mah-jongg or poker, smoking cigarettes or surfing on their smartphones. Site manager Guo Hua used to run a small camera-repair shop and still likes fiddling around with machines. Marketing manager Mu, who spends only a few weeks of the year here, likes to translate books in his free time or run to the nearest town to buy cigarettes for his colleagues. Sometimes he hikes into the mountains, toward a remote Tibetan village or a looming peak, a welcome change of change of pace from Beijing and its polluted air.
And all the time, the microprocessors keep on running.
Australian entrepreneur Craig Wright has come forward as the mysterious creator behind the virtual currency Bitcoin. Here’s a look at what we know about the creator’s pseudonym Satoshi Nakamoto, Bitcoin’s history and Wright’s claims. (Jenny Starrs/The Washington Post)
Xu Yangjingjing contributed to this report.
America wants to believe China cant innovate. Tech tells a different story.
The Internet was supposed to foster democracy. China has different ideas.
Todays coverage from Post correspondents around the world
Read the original here:
The bizarre world of bitcoin mining finds a new home in …
Posted: September 10, 2016 at 5:35 am
Libertarian presidential nominee Gary Johnson drew a blank during a live interview on MSNBC this morning when asked what he would do to address the situation in Aleppo, perhaps the most devastated city in the five-year civil war in Syria.
“What is Aleppo?” Johnson replied when asked how he would address the crisis there.
“You’re kidding,” journalist Mike Barnicle said.
“No,” Johnson said.
Barnicle then explained that he was talking about the Syrian conflict, and Johnson quickly found his footing and explained what he believes should be done about Syria, which he called “a mess.”
“I think the only way that we deal with Syria is to join hands with Russia,” Johnson said, “to diplomatically bring that to an end. But when we align ourselves with when we’ve supported the opposition of the Free Syrian Army the Free Syrian Army is also coupled with the Islamists and then the fact that we’re also supporting the Kurds, and this is, it’s just a mess. And that this is the result of regime change that we end up supporting and, inevitably, these regime changes have led to a less safe world.”
“I’m incredibly frustrated with myself,” Johnson later said, adding that he “feels horrible” and has to “get smarter.”
Johnson, a former Republican governor of New Mexico, released an official statement explaining why he was initially confused by the Aleppo question.
“This morning, I began my day by setting aside any doubt that I’m human. Yes, I understand the dynamics of the Syrian conflict I talk about them every day,” he said in the statement. “But hit with ‘What about Aleppo?’ I immediately was thinking about an acronym, not the Syrian conflict. I blanked. It happens, and it will happen again during the course of this campaign.”
He continued, “Can I name every city in Syria? No. Should I have identified Aleppo? Yes. Do I understand its significance? Yes. As governor, there were many things I didn’t know off the top of my head. But I succeeded by surrounding myself with the right people, getting to the bottom of important issues and making principled decisions. It worked. That is what a president must do.”
Speaking on ABC’s “The View” hours after his MSNBC interview, Johnson said there’s “no excuse” for his lapse on Aleppo while reiterating that he thought the question was referring to an acronym.
Co-host Joy Behar told him she thinks the gaffe is disqualifying, to which he replied simply, “Fair enough, fair enough.”
“I guess people will have to make that judgment,” he continued. “For those that believe this is a disqualifier, so be it. Absolutely, it’s fair game. I’m running for president of the United States, and hey, it’s how you deal with adversity that ultimately determines success.”
Read more from the original source:
Posted: at 5:25 am
What is Freedom?
Freedom. We sing about it in our patriotic songs. We teach it to our children in school. Hollywood and Madison Avenue glorify it. Here in the United States, freedom is the civic religion.
But if freedom is our civic religion, why is the libertarian movement in the U.S. so small? Why is government so big and our jails so full? Is all our talk of freedom mere lip service? Are we a nation of sheeple duped by the powers that be?
To some degree, yes. But these are not the major reasons why the libertarian movement is so small. Pure libertarians lack credibility with the masses because they dont necessarily offer liberty. Abolish the government willy nilly and reduced liberty is the likely result. The power vacuum left by vanished government is likely to be filled by feudal warlords, a military junta and/or invading armies. Anarchy with liberty may be possible but it is not automatic. The People are prudent to refuse the risk.
What about moderate libertarians? What about those who would like to shrink the federal government to its Constitutional bounds? Why havent freedom lovers joined their banners en masse? Well, some did, for Ron Pauls recent run for President, but not nearly enough to win the Republican nomination, much less elect a President. This is supposed to be the Land of the Free. What gives?
It took me years to figure it out, but I believe I have the answer. It is an answer most active libertarians will not like to hear. Pragmatic libertarians do indeed offer liberty, but liberty is not the same thing as freedom!
By liberty I mean what my libertarians friends mean by liberty: liberty is the absence of coercion. It is a state of being where transactions are voluntary, where all constraints are the result of honest contracts. I like liberty. I wish we had more of it, here and in other parts of the world. I even have a series on libertarian strategy in the the hope that libertarians become more successful in increasing liberty. But liberty is not the same thing as freedom. Freedom is something bigger.
So what is freedom?
You can pull out a dictionary for a stilted definition. I will define it simply: freedom is being able to do what you want to do. Free speech and free beer both speak of freedom. Free speech is a freedom that comes directly from liberty. Free beer, however, requires more than mere permission to drink fermented barley. It requires that someone has gone through the trouble to brew the beer and is willing to give it out. If no one is so inclined brew beer and give it away, the ideal of Freedom as in Free Beer contains a conflict. Free beer for you means beer servitude for someone else.
This is why freedom-loving Vulcans stick to promoting liberty. They see the potential conflict inherent in free beer freedoms as a contradiction. Liberty can be granted to all who respect the liberty of others or at least thats the ideal. (In practice we run up against a few conflicts or even contradictions.) So many libertarians would define freedom down to mere liberty, and thus wall off from their minds the messy business of balancing trade-offs.
I say mere liberty because for many people more liberty need not translate into more freedom. A marginal increase in liberty can result is subtantially less freedom, especially in the short run. This, I submit, is why libertarianism has limited popularity here in the Land of the Free. For millions of people liberal and conservative ideas offer more increments freedom than many libertarian ideas.
Consider a single mom who has to put in 50 hour weeks at Dennys to support her children. A cuddly fascist offering government childcare and socialized medicine along with his program of censorship of naughty TV and conquering Bolivia for no good reason offers more freedom to this mother than a smaller government libertarian. This is but one illustration. I give others elsewhere.
Libertarianism has limited popularity for good reason.
This is not a libertarian site. It is a pro-freedom site. Here, we attempt to balance several freedoms, including:
Back when I was a libertarian and active in the Libertarian Party, I spent thousands of dollars and hours promoting the party and the cause. Converts and recruits were few and far between. Today, I am mostly out of the game, playing Candy Land with my young daughter instead of placing signs, dropping leaflets, working booths and attending meetings. Yet I have well over a hundred people lining up to join my nonexistent new political party proposed elsewhere on this site.
Freedom is popular here in the Land of the Free.
What is not popular is knowledge of how to be more free. Many liberals call for mass bureaucracy because they know no other way to achieve freedom from the boss. If that is you, or you wish to persuade such liberals otherwise, see the red titles on the sidebar. Likewise, many environmentalists believe we have to abride economic freedom and/or our prosperous way of life in order to preserve nature. For you I have the green article series. For those of you who desire a safe and moral place to raise your children, there are the blue articles.
If you are ready to dive in and look at specific proposals, feel free to jump to the relevant article series. On the other hand, if you are a top down thinker, or a libertarian/small government conservative who has a hard time grokking the distinction between liberty and freedom, please continue with this series.
Originally posted here:
Posted: August 25, 2016 at 4:32 pm
A few hundred years ago, traveling over the Earths surface was a risky adventure. Early explorers who set out to explore the New World went by boat, enduring fierce storms, disease and hunger, to reach their destinations. Today, astronauts exploring space face similar challenges.
All About Space Travel: One space shuttle launch costs $450 million
Space travel has become much safer as scientists have overcome potential problems, but its still dangerous. Its also very expensive. In order for a space shuttle to break free of Earths gravity, it has to travel at a speed of 15,000 miles per hour. Space shuttles need 1.9 million liters of fuel just to launch into space. Thats enough fuel to fill up 42,000 cars! Combine the high speed, heat and fuel needed for launching and youve got a very potentially dangerous situation.
In 1949, Albert II, a Rhesus monkey went to space. Keep reading to find out more all about space travel.
Re-entering the atmosphere is dangerous too. When a space craft re-enters the atmosphere, it is moving very fast. As it moves through the air, friction causes it to heat up to a temperature of 2,691 degrees. The first spacecrafts were destroyed during re-entry. Todays space shuttles have special ceramic tiles that help absorb some of the heat, keeping the astronauts safe during re-entry.
In 1957, the Russian space dog, Laika, orbited the Earth.
In 1959, the Russian space craft, Luna 2, landed on the moon. It crashed at high speed.
Russian astronaut, Yuri Gagarin, was the first human in space. He orbited the Earth in 1961.
On July 20, 1969, Neil Armstrong and Buzz Aldrin became the first men to walk on the moon and return home safely a journey of 250,000 miles.
Check out this cool video all about space travel:
A video about the N.E.X.T. mission for space travel by NASA.
Enjoyed the Easy Science for Kids Website all about Space Travel info? Take the FREE & fun all about Space Travel quiz and download FREE Space Travel worksheet for kids. For lengthy info click here.
Posted: August 12, 2016 at 2:34 pm
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.
And yet, for years, those 27 brief words have been the source of contentious debate — seen by some as an inalienable protection against tyranny; by others as a dangerous anachronism.
Here’s a look at the Second Amendment, its phrases parsed and placed in legal and historical context.
Our guides will be Constitutional experts Jeffrey Rosen and Jack Rakove.
What is a militia?
At the time of the American Revolutionary War, militias were groups of able-bodied men who protected their towns, colonies, and eventually states. “[When the Constitution was drafted], the militia was a state-based institution,” says Rakove. “States were responsible for organizing this.”
What did it mean to be well regulated?
One of the biggest challenges in interpreting a centuries-old document is that the meanings of words change or diverge.
“Well-regulated in the 18th century tended to be something like well-organized, well-armed, well-disciplined,” says Rakove. “It didn’t mean ‘regulation’ in the sense that we use it now, in that it’s not about the regulatory state. There’s been nuance there. It means the militia was in an effective shape to fight.”
In other words, it didn’t mean the state was controlling the militia in a certain way, but rather that the militia was prepared to do its duty.
What type of security was referred to here?
To get to that, consider the climate of the United States at the time. The country had just fought a war, won its independence and was expanding west. There were plenty of reasons to feel unsafe, and so “security” had a very palpable meaning.
“You have an expanding country, and the principle defense use of the militia would be to protect local residents from attack and invasion,” Rakove says.
It also meant physical protection from government overreach.
“The idea of a state militia would also be attractive because it serves as a deterrent against national tyranny,” says Rakove. “At the time, if government forces tried to take over land or overstep their boundaries, you’d have an institution in place — the militia — that would outnumber any army.”
Of course, with the size and scope of the modern United States military, and the fact that militias as we know it no longer exist, that notion is hard to imagine today.
In the debate over the Second Amendment, this phrase, “a well regulated militia,” remains one of the most cited and argued parts of the sentence.
What did a free state mean?
It may seem obvious, but Rosen and Rakove agree the Constitution bore a lot of contemporary moralism and not every word is well-defined.
In this case, the meaning of “state” is what it appears to be.
“This is referring immediately to ‘state’ as in one of the states of the original colonies,” Rosen says. “James Madison had the 1777 Virginia Declaration of Rights by his side when he wrote the Bill of Rights and he essentially copied and pasted language from it.”
But it could also speak to a larger understanding of liberty.
“So here,” Rosen continues, “George Mason (the author of the Virginia Declaration of Rights) is talking about not only the free state of Virginia.” He is also talking about a broader state of freedom.
What kind of rights?
This is another highly-contested area where it helps to know more about how the framers of the Constitution thought about complex ideas like “rights.”
“When we think about ‘rights,’ we think of them as regulations and exemptions,” Rakove says. “Back at the birth of our nation, they had a different quality. They were more moralistic.”
Rosen says this viewpoint is reflected in the Declaration of Independence:
“The framers definitely believed in natural rights — that they are endowed by a creator,” Rosen says. “They believed we are born into a state of nature before we form governments, and that we are endowed with certain fundamental rights.”
These natural rights included the right to religious expression, free speech, property and more. But they did not, Rosen says, specifically include the tenets of the Second Amendment.
“The framers did not talk about the right to bear arms as one of the set of natural rights,” he says. “But it is fair to say that the right to alter and abolish government — to the degree that modern people claim they have that right — the framers certainly believe it.”
“In that sense, it is historically accurate to say that the framers did recognize a natural right of self-defense.”
Who are the people?
Even the term “people” — the most basic catch-all — has limitations.
“You say people, you mean individual persons,” says Rakove. “But, if you go to Article I, Section 2 of the Constitution, it says the House of Representatives will be chosen by the people — who are the persons? Who are entitled to exercise that suffrage? You see, you can use the term ‘people’ to imply a collective mass, but there are some categories of people that can be excluded.”
After all, when the Constitution was written, slaves were considered property and women were not allowed to vote.
In addition, there is a more basic question of semantics: By “the people,” is the Second Amendment referring to people as private entities, or as participants in the militia?
The legal consensus is that the Second Amendment applies to individual rights, within reasonable regulations. More on that below.
What are Arms in this context, and what is the scope of bearing Arms?
The decision struck down the Firearms Control Regulations Act of 1975, which heavily regulated owning and keeping firearms in the District of Columbia.
In the above excerpt, we can see the Court considered the awkward phrasing of the Amendment. The Justices divided the Amendment into an operative clause: “right of the people to keep and bear arms,” and a prefatory clause: “A well regulated Militia, being necessary to the security of a free State.” The court determined the relationship between these phrases, as well as the historical context of the Constutition’s creation, clearly provided an individual right.
The term “arms” is also an ever-changing one, and there are ongoing debates about assault weapons and emerging firearm technologies.
“One thing people disagree about is whether assault weapons bans are constitutional,” says Rosen. “They also disagree about how we should interpret the constitution in terms of history or in light of new technologies.”
What does it all mean?
“It’s really striking that since these Supreme Court decisions… lower courts have upheld almost all of the gun regulations they have asked to review,” he says.
Rakove thinks the framers of the Constitution would be surprised at the conversations we are having today.
“While there is a common law right to self-defense, most historians think that it would be remarkable news to the framers of the Second Amendment that they were actually constitutionalizing a personal right to self-defense as opposed to trying to say something significant about the militia,” he says.
Words like “militia” and “rights” are loaded with historical context and nuance that can act as a Rorschach test, leading even the best-intentioned interpreters to different conclusions. If there were any clear answers, these 27 words wouldn’t be so incendiary.
Jack Rakove is the William Robertson Coe Professor of History at Stanford University. His book “Original Meanings: Politics and Ideas in the Making of the Constitution” won a Pulitzer Prize in History.
See more here:
Deconstructing the Second Amendment – cnn.com