Bill of Rights Archives - Ramblin' with Roger

The Constitution is difficult to amend

Justice John Paul Stevens explains that gun control initiatives are not necessarily contrary to the Second Amendment.

Nothing is more fundamental in our democracy than our right to vote. “We are witnesses today to attacks on that hard-won right… Rev. Dr. William J. Barber II, president of the North Carolina NAACP… reminded us that our votes were paid for with blood.” So, of all the Supreme Court decisions in the last couple of years, the one gutting the Voting Rights Act of 1965 was among the most troubling. What Happened Next in These 8 States Will Not Shock You.

Therefore, I was slack-jawed when some guy wrote: “The Democrats have had a dream run in the Supreme Court over the past 6 years until now.” In response to all of the failings of the Court over decades, a writer suggested five ways to reform SCOTUS, which will NEVER happen.

Speaking of “will never happen”: From Six Amendments: How and Why We Should Change the Constitution, by former Associate Justice of the Supreme Court, Justice John Paul Stevens. “The politics of the Second Amendment became the focal point of the gun debate. Gun supporters argued against the federal government’s claim that background checks and limitations on certain firearms should be put in place through public policy. In this excerpt, Justice Stevens explains that gun control initiatives are not necessarily contrary to the Second Amendment and that it is Congress’ responsibility to pass sensible legislation to prevent future tragedies.”

Something I hope will happen: a Constitutional amendment to overturn Citizens United, challenge corporate power, and eliminate unlimited campaign spending. There are a number of state and local resolutions supporting it. But it’s very difficult to amend the Constitution. Even if the US Senate passes such legislation, I sincerely doubt the House will any time soon.
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xkcd explains the First Amendment (strong language). To that end, Arthur explains the difference between fascism and free speech. And, I’d say, it isn’t just progressive gays dumped on the “fascist” end of the spectrum, but the “feminazis” (pretty much anyone who owns up to being a feminist) and the “race baiters”/”race hustlers” (usually defined as Jesse Jackson, Al Sharpton, and Barack Hussein Obama.)

Also, when a hospital worker is fired over remarks on her Facebook page – “urging police to ‘purge’ protesters in Ferguson, MO by ‘mowing them down with machine guns,'” This is NOT a violation of the woman’s Constitutional rights. “Congress shall make no law… abridging the freedom of speech…” This applies to the states too, per the Fourteenth Amendment, but it does NOT apply to the hospital.

AND the woman doesn’t seem to be all that concerned about the Ferguson protesters’ First Amendment rights.
Or, for that matter, their Fifth Amendment right NOT to be “deprived of life, liberty, or property, without due process of law.” Or their Sixth Amendment rights to a “speedy and public trial.”

Jaquandor loves this quote from the court case section of the film Amistad; for more info re the actual 1839-1841 case, read here.

Can We Have Bipartisan Agreement To Stop Complaining About Presidential Vacations?. I’m less irritated than bored by this. Especially from Peggy Noonan of the Wall Street Journal kvetching about Obama, when she used to work for Ronald Reagan, no vacation slouch.

Yassin Aref: a matter of (in)justice

The evidence shows that as early as December 2002, the FBI thought Yassin Aref was really an Al Queda agent named Mohammed Yasin, using a pseudonym. The real Yassin, who was missing two finger, was killed in Gaza in 2010.

Yassin_Aref_and_daughter — picture from the projectsalam.org webpage

It was local front-page news, of course, back in 2006: two Muslims convicted of material support for TERRORISM, in Albany, New York! But even a casual reading of the news reports running up to the conviction of Yassin Aref, an Albany iman, and Mohammed Hossain, a pizzeria owner, didn’t add up. The clips of them with the FBI “informant” did NOT indicate the hate-filled speech I was told to expect.

Read about Yassin Aref’s arrest, conviction, and incarceration in this 2011 article for New York magazine. It discusses the government’s “controversial policy of preemptive prosecution—taking down those thought to possibly become terrorists in the future.”

Now Aref’s lawyers will file papers this month (July 2013) asking that the conviction be overturned or for a new trial, in something called a 2255 motion.

From the press release from Project Salam: “Aref discovered significant new evidence about his case as a result of an FOIA (Freedom of Information Act) request he made in 2011.” The prosecution had it, the trial judge and appeals judge saw it, but the defense team did not. Incidentally, the defense tried and failed, to get this information earlier.

“The evidence shows that as early as December 2002, the FBI thought Aref was really an Al Queda agent named Mohammed Yasin,” using a pseudonym. The real Yassin, who was missing two-finger, was killed in Gaza in 2010. Aref writes, “I am still alive and have all my fingers so I cannot be Mohammed Yassin.”

The FOIA documents were heavily redacted, but it’s reasonable to believe that the trial judge was given classified information that misidentified Aref as Al Queda member Yasin.

So my friend Lynne Jackson is on a walk from Albany to Binghamton, a distance of 133 miles (214 km), to bring attention to this case, as she brings petitions to Judge Thomas McAvoy, as I noted here; I attended the kickoff event on July 12. She can still get more names on the online petition until July 23. If, after reading the materials, you are so moved, please sign it.

Ultimately, though, the case is about more than Yassin Aref and Mohammed Hossain, who likely just got caught up in the FBI’s zeal. It’s about: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” In other words, it’s about the 6th Amendment to the Constitution. The withholding of these documents that hold secret, and evidently false, information, is unconstitutional. THAT is the crime here.

The One Good Thing Is That We Learn About the US Constitution

There was a truly horrific ruling by the US Ninth Circuit Court in August 2010 allowing warrantless GPS tracking by law enforcement.

Hey, kids, it’s Constitution Day again! And boy, have we learned about the application of the foundation of the United States in the past year or so, or what?

Article I, Section 8. The Congress shall have Power
[8] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The notion of “limited” gets longer every revisiting of the Copyright law, contrary, in my opinion, to the original intent of the Founders.

Article II [5] No person except a natural born Citizen…shall be eligible to the Office of President

Yes, don’t hear as much about them lately, but the birthers, who claim President Obama is not eligible to be President, are still out there.

Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

This, of course, is at the heart of the so-called “Ground Zero mosque” debate; the usual line about this is that they have a RIGHT to build the Islamic center but that they OUGHT NOT TO.

There are some other interesting sidelights, such as some politicians suggesting that they should investigate the financing of the facility. This is right and proper as long as they likewise check out the funding of every new church, synagogue, and temple, and existing ones, while they are at it.

Amendment I Congress shall make no law…abridging the freedom of speech

Interestingly, action has been defined as “speech”; e.g. flag burning. So the Koran-burning controversy falls here. Again, people used the RIGHT TO/OUGHT NOT to conversation.

Amendment II 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.

The Supreme Court’s ruling a couple of years ago protecting personal gun ownership, not just the militia part, has meant that jurisdiction after jurisdiction with gun control laws are having them challenged, forcing them to more narrowly define the restrictions on gun ownership, such as insanity of the would-be owner.

Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There was a truly horrific ruling by the US Ninth Circuit Court in August 2010 allowing warrantless GPS tracking by law enforcement. Other courts have ruled otherwise, as this TIME magazine article notes. What’s REALLY irritating about the Ninth’s decision is this:

The courts have long held that people have a reasonable expectation of privacy in their homes and in the “curtilage,” a fancy legal term for the area around the home. The government’s intrusion on property just a few feet away was clearly in this zone of privacy.

The judges veered into offensiveness when they explained why Pineda-Moreno’s driveway was not private. It was open to strangers, they said, such as delivery people and neighborhood children, who could wander across it uninvited.

Chief Judge Alex Kozinski, who dissented from this month’s decision refusing to reconsider the case, pointed out whose homes are not open to strangers: rich people’s. The court’s ruling, he said, means that people who protect their homes with electric gates, fences and security booths have a large protected zone of privacy around their homes. People who cannot afford such barriers have to put up with the government sneaking around at night.

Judge Kozinski is a leading conservative, appointed by President Ronald Reagan…

The conflicting rulings at the Circuit level make this almost a certain Supreme Court case in the future.

Amendment XIV – The Fourteenth Amendment was proposed on June 13, 1866, and ratified on July 9, 1868.
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

This WAS initially all about slavery. This IS, suddenly, about illegal immigrants coming to the United States and have their babies here, making the children U.S. citizens. How frequently this is happening is an open debate.

There have been other fun Constitutional issues, such as Arizona’s immigration law, in probable violation of Article I, Section 8, but this has gone on long enough. US citizens: go read your Constitution, while you still can.