| 4th July: Open Letter to US Law Enforcement!

Open Letter to US Law Enforcement ~ Joe Giambrone, Activist Post.

Who are you, really? And what exactly is your role in the bigger picture?

This is not an academic question, but goes to the heart of who is in charge and if they themselves are on the right side of the law. With numerous whistleblowers from the National Security Agency coming forth, as well as from the Central Intelligence Agency and the Federal Bureau of Investigation, all of them exposing crimes committed by those in charge, you should pay special attention to what these individuals are saying about current so-called “leaders.”


Former President Richard Nixon once said, “Well, when the president does it, that means that it is not illegal.”

How many law enforcement officers would accept this excuse today? How many have already accepted it as a fact of the current United States system of “justice?”

The 4th Amendment of the US Constitution, in the Bill of Rights, is explicitly clear that a “warrant” is necessary to invade the personal effects of civilians. We are all mandated by the highest law in the land to be “secure” in our “persons, houses, papers, and effects, against unreasonable searches and seizures.”

Government officials swear an oath of office to defend this Constitution, as you yourself have also probably done.

To knowingly, flagrantly and systematically violate this oath – in secret no less – is a grievous crime against the United States. To do it with impunity and protection from prosecution, however, is something else entirely. A government that does not respect the laws that it publicly swears to defend is a fraud and a tyranny.

To casually throw away the 4th Amendment, a bedrock freedom, the cornerstone of a free and open society, is not only unacceptable, it is Treason; the waging of a war against the People of the United States. By what right can Constitutionally guaranteed rights be deleted? These protections have served us for more than two centuries, and yet in the age of technology they are to be dismissed without debate, by secret decree? By memos that are classified “Top Secret” because they directly violate the Supreme Law of the Land?

Armies of police are to enforce these secret decrees as law and to assist the surveillance state without question?

Are we a nation of sovereign citizens or of human drones who execute instructions?

On April 19th of this year, the federal government “crossed the Rubicon” suspending the Constitution in Boston and ordering nearly 10,000 heavily armed troops to “lockdown” a major metropolitan city. Homes were searched without warrants and invaded at gunpoint by squads and platoons of officers, many of them from the local force who had been militarized and placed under the command of federal authorities. All this was done to apprehend a single injured suspect.

A Supreme Court decision already decided that the Constitution cannot be suspended no matter how inconvenient it may be perceived by those in power. In Ex parte Milligan (1866), the Court wrote:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.

By testing this new suspension of the Constitution in the wake of the latest terrorism event in Boston, a cynical calculated play was made to convince people that the government somehow possessed the right to do so, when clearly no such right exists. This outright subversion of Constitutional protections was tested that day to see if it could set a precedent and be sold to the public on the basis of allegedly protecting them. This ploy used public perception as a means to subvert the law and to overturn the established restrictions on the government’s exercise of force here domestically against its own citizens in their homes!

This July 4th, 2013, it’s time to wake up and smell the clear felonies coming out of Washington DC. Crimes of this scale and sweeping nature threaten to turn America into George Orwell’s Big Brother police state. And law enforcement officers are not immune to the surveillance. Their privacy is no more protected than mine. Nor is the privacy of a Congressman or a Supreme Court Judge or even the head of the CIA, David Petraeus.

A high-level NSA whistleblower, a satellite analyst named Russell Tice, revealed:

[NSA] went after lawyers and law firms… They went after judges. One of the judges is now sitting on the Supreme Court that I had his wiretap information in my hand… They went after State Department officials. They went after people in the executive service that were part of the White House — their own people.

We are now a society wide open to blackmail. We are without privacy, and can be hacked at the will of secret, often private contractors, such as Edward Snowden’s recent employer. Mr. Snowden, remember, wasn’t working for the US government in an official capacity, but at the time was employed by a private corporation: Booz Allen Hamilton. Right now thousands of privately-paid computer “analysts” can wiretap anyone at their own discretion.

Edward Snowden said:

Any analyst at any time can target anyone. …I sitting at my desk certainly had the authorities to wiretap anyone, from YOU or your accountant to a federal judge to even the president if I had a personal email.

That means you, the reader, are also vulnerable. Your life is an open book, and should you in the future need to be coerced and blackmailed into silence or into acting in a particular manner, that can easily be arranged. Information from your digital presence and history across telephone, web, credit card and any other channel is now stored indefinitely by this emerging, unconstitutional surveillance state.

That is not freedom. That is not Constitutional governance. That is not the America I was taught about in school, as were you.

That is why the flag flies upside down here today.

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| Police State: Another Truth-Teller Steps Forward!

Another Truth-Teller Steps Forward ~  Ray McGovernCommon Dreams.

Edward Snowden, the person who disclosed top-secret documents on the U.S. government’s massive surveillance programs, is reportedly in Hong Kong and seeking asylum from countries that value openness and freedom, conditions seen as slipping away at home.

Before the U.S. government and the mainstream media engage in the customary character assassination of truth-teller Edward Snowden – a fate endured by Pfc. Bradley Manning and others – let’s get on the record the motives he gave for releasing the trove of information on intrusive eavesdropping by the National Security Agency.

Edward Snowden, who revealed himself as the leaker of top-secret documents related to the National Security Agency’s electronic surveillance. (Photo/UK Guardian)

Why would someone like Snowden, a 29-year-old employee of national-security contractor Booz Allen Hamilton, jeopardize what he calls “a very comfortable life” in order to blow the whistle on the U.S. government’s abuse of power?

If what he did sounds weird, this is only because there are so precious few like him who will stand on principle and risk everything. Snowden explained that if the public does not know about these intrusive programs, there is no room for citizen input regarding how they square with our constitutional rights.

Snowden, who was living in Hawaii with a promising career and a salary said to be about $200,000 a year, told the London Guardian: “I’m willing to sacrifice all of that because I can’t in good conscience allow the U.S. government to destroy privacy, Internet freedom, and basic liberties for people around the world with this massive surveillance machine they’re now building.”

He added that he wanted to reveal the “federation of secret law, unequal pardon, and irresistible executive powers that rule the world I love. … What they’re doing poses an existential threat to democracy.”

Snowden enlisted in the Army in 2003 and began training to join the Special Forces. He told the Guardian: “I wanted to fight in the Iraq war because I felt like I had an obligation as a human being to help free people from oppression.” He quickly found, though, that, in his words, “Most of the people training us seemed pumped up about killing Arabs, not helping anyone.” Snowden broke both legs in a training accident and was discharged.

In several key respects, the experiences of Snowden resemble those of Bradley Manning. Both took the enlisted person’s oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” As a condition of employment, both signed a promise not to disclose classified information; and both witnessed at close hand flagrant abuses that their consciences told them they needed to expose.

All this required them to go back on their secrecy promise, in order to achieve a greater good. What they were able to understand, and act on, is what ethicists call a “supervening value.” [See Daniel C. Maguire’s The Manning Trial’s Real Defendant” regarding the moral balancing act between democracy’s need for information and government insistence on secrecy.]

It didn’t require a law degree for Bradley Manning and Edward Snowden to understand how the Bush and Obama administrations were playing fast and loose with key provisions of the Constitution of the United States.

‘Safety’ Before Constitution

As for the current President, he seems to have been editing the oath he took to “preserve, protect, and defend the Constitution of the United States.” Few caught it when he preached on national security on May 23, but Greg Sargent noted in the Washington Post that Obama defined his commander-in-chief role as requiring him to tilt toward national security and away from civil liberties – clearly prioritizing the latter out of a warped zero-sum mindset.

Obama said “constitutional issues” must be “weighed” against “my responsibility to protect the American people.” Got that? He was even more explicit last Friday about how he sees these choices. “You can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience,” Obama said. “We’re going to have to make some choices as a society. … There are trade-offs involved.”

Regarding his priorities, he said: “When I came into this office I made two commitments … Number one, to keep the American people safe; and Number two, to uphold the Constitution. And that includes what I consider to be a constitutional right to privacy and an observance of civil liberties.”

Thanks for tacking on that last sentence, Mr. President, but your defense of the incredibly wide and intrusive programs – alien to Fourth Amendment protections – strain credulity well beyond the breaking point. You lost me when you described the recently revealed eavesdropping programs that suck up data on billions of our communications daily as “very narrowly circumscribed” and “very focused.”

In July 2008, when Congress passed and President Bush signed a law making government eavesdropping easier and granting immunity to telecommunications companies, which had already violated, together with the Bush administration, our Fourth Amendment rights, this seemed to me a watershed. What possible incentive would the telecoms now have for abiding by the Constitution, I asked myself.

When I heard that then-Sen. Barack Obama had flip-flopped on this vote – as he was burnishing his national security “cred” for his White House run – I wrote him an open letter. He had said he would vote against the bill, before he decided to vote for this major revision of the Foreign Intelligence and Surveillance Act (FISA) of 1978.

I gave my open letter the title It’s a Deal Breaker for This Intelligence Officer.” Here’s the main part:

“July 3, 2008

“Dear Senator Obama,

“I speak from 30 years of experience in intelligence work. I don’t know who actually briefed you on the eavesdropping legislation, but the bill is unnecessary for intelligence collection and POISON for our civil liberties — not even to mention the unconscionable retroactive immunity provision.

“You have made a big mistake, Senator, in indicating you intend to vote for it. There is still time to change your mind. That’s what big people do. Your ‘explanation’ was unworthy of one who has sworn to protect and defend the Constitution of the United States (including the Fourth Amendment).”

 ‘Turnkey Tyranny’

The consequences of this law are what Snowden ended up warning us against in the video arranged by the Guardian, after he reviewed some of what he had seen from his vantage point. His window into the National Security Agency and its management no doubt provided unflattering insight into the behavior of its leaders and their nodding, dismissive acquaintance with any limitations in existing law.

Air Force Gen. Michael Hayden who saluted smartly when ordered by President Bush and Vice President Dick Cheney to discard what had been known as NSA’s “First Commandment – Thou shalt not eavesdrop on Americans without a warrant.” The rubric-justification was: “After 9/11, everything changed” – including any need to pay much attention to the law. Like the telecom corporations, Hayden was not only held harmless and forgiven but lauded for his patriotism

And if you think his successor, Army General Keith Alexander, feels constrained by his own oath of office, think again. It is a felony to lie to Congress. He did. In olden days it would have been an embarrassing, career-ending story. Not for Alexander. The “mainstream media” has lionized him rather than holding him accountable. And he now sports four stars and not only directs NSA but also is Commander of the U.S. Cyber Command.

It’s a long but instructive story: In December 2005, top New York Times executives belatedly decided to let the rest of us in on the fact that the George W. Bush administration had been eavesdropping on American citizens without the court warrants required by the Foreign Intelligence Surveillance Act (FISA) of 1978.

The Times had learned of this several months before the presidential election of 2004 but acquiesced to White House entreaties to suppress the damaging information. However, in late fall 2005, Times correspondent James Risen prepared to publish a book, State of War: The Secret History of the CIA and the Bush Administration,” revealing the warrantless eavesdropping anyway. Times publisher, Arthur Sulzberger, Jr., recognized that he could procrastinate no longer.

It would simply be too embarrassing to have Risen’s book on the street with Sulzberger and his associates pretending that this explosive eavesdropping story did not fit Adolph Ochs’s trademark criterion: All The News That’s Fit To Print. (The Times’ own ombudsman, Public Editor Byron Calame, later branded the newspaper’s explanation for the long delay in publishing this story “woefully inadequate.”)

When Sulzberger told his friends in the White House that he could no longer hold off on publishing in the newspaper, he was summoned to the Oval Office for a counseling session with President Bush on Dec. 5, 2005. Bush tried in vain to talk him out of putting the story in the Times. The truth would out; part of it, at least – in 11 days.

Gen. Alexander Out of the Loop

Unfortunately for National Security Agency Director Lt. Gen. Keith Alexander, the White House neglected to tell him that the cat would soon be out of the bag. So on Dec. 6, Alexander spoke from the old dishonest talking points in assuring visiting House Intelligence Committee member Rush Holt, D-New Jersey, that the NSA did not eavesdrop on Americans without a court order.

Still possessed of the quaint notion that generals and other senior officials are not supposed to lie brazenly to congressional oversight committees, Holt wrote a blistering letter to Gen. Alexander after the Times, on Dec. 16, front-paged a feature by Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts.”

But House Intelligence Committee chair Pete Hoekstra, R-Michigan, apparently found Holt’s scruples benighted; Hoekstra did nothing to hold Alexander accountable for misleading Holt, his most experienced committee member, who had served as an intelligence analyst at the State Department.

What followed struck me as bizarre. The day after the Dec. 16 Times feature article, the President of the United States publicly admitted to a demonstrably impeachable offense. Authorizing illegal electronic surveillance was a key provision of the second article of impeachment against President Richard Nixon. On July 27, 1974, this and two other articles of impeachment were approved by bipartisan votes in the House Judiciary Committee and likely would have passed the House if Nixon had not chosen to resign on Aug. 9, 1974.

Yet, far from expressing remorse or regret about his warrantless wiretaps, President Bush bragged about having authorized the surveillance “more than 30 times since the September the 11th attacks,” and said he would continue to do so. The President also said: “Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it.”

On Dec. 19, 2005, then-Attorney General Alberto Gonzales and then-NSA Director Michael Hayden held a press conference to answer questions about the surveillance program. Gonzales was asked why the White House decided to flout FISA rather than attempt to amend it, choosing instead a “backdoor approach.” He answered:

“We have had discussions with Congress … as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.” Impossible? Regarding that time, James Risen quipped: “In October 2001, you could have set up guillotines on the public streets of America.”

It was not difficult to infer that the surveillance program, soon to be given the respectable label of the “Terrorist Surveillance Program,” was of such scope and intrusiveness that, even amid highly stoked fear, it would have elicited public outrage.

Almost All the News Fit to Print

Like the giant telecoms, the New York Times never had to issue a mea culpa for hiding the crass violations of our Fourth Amendment rights until after the 2004 election and another year for good measure.

The issue arose again in a curious way on Sept. 13, 2010, at a large event at the New York Times hosted by then-Managing Editor Jill Abramson in honor of Daniel Ellsberg for his release of the Pentagon Papers, which the Times and others published in June 1971. (Dan invited me to come along; better late than never, we thought.)

Abramson alluded in a matter-of-fact way to a particularly egregious episode in which theTimes did not cover itself in glory. But one would not have gleaned the latter from Abramson’s casual mention of how the Times had published “the story about the NSA’s eavesdropping program.”

Abramson: The issue [of government pressure] became salient once again after 9/11, when the Times and other publications were the recipients of requests from the Bush White House to occasionally withhold publication of stories that involved secrets and national security issues. Probably the most famous one involved our publication of the story about the NSA’s eavesdropping program.

Ellsberg: By the way, as the only non-Times person up here, I shouldn’t refrain from saying, I’ve been very publicly very critical of the Times’ decision to withhold the NSA wiretap story — not only, for a whole year, but very critically, past the election of 2004. I think it’s quite possible that the revelation that the president had, for three years, been blatantly violating the law …

Abramson (interrupting): Although in truth, it wasn’t known in real time at the election, the gravity of the legal issue was not.

Ellsberg: The legal issue, perhaps. …

Abramson: So —

Ellsberg: The — a whole year. I think that did make a difference.

Abramson: The thing is when the government says — you know, by publishing a story you’re harming the national security, you’re helping the terrorists. I mean there are still people today who argue that the NSA program was the crown jewel, the most valuable anti-terrorism program that the Bush administration had going, and that it was terribly wrong of the Times to —

Ellsberg: And the Times went ahead.

Abramson: — publish.

Ellsberg: In the end, that’s what I’m saying.

Abramson: In the end, we did go ahead. But I’m saying these are not cavalier decisions.

Anyone want to guess why Ed Snowden chose the Guardian of London (and also theWashington Post) over the “paper of record” for his disclosures?

The Need for Truth-Tellers

In September 2004 Daniel Ellsberg and I drafted an appeal to those who might have been thinking of what Bradley Manning and now Ed Snowden have had the courage to do. It is included below as a reminder that blowing the whistle on war crimes and on gross violations of the U.S. Constitution is a laudable form of patriotism. The last time I checked the professional help promised in 2004 was reaffirmed.

September 9, 2004

APPEAL TO: Current Government Officials

FROM: The Truth-Telling Coalition

It is time for unauthorized truth telling.

Citizens cannot make informed choices if they do not have the facts—for example, the facts that have been wrongly concealed about the ongoing war in Iraq: the real reasons behind it, the prospective costs in blood and treasure, and the setback it has dealt to efforts to stem terrorism. Administration deception and cover-up on these vital matters has so far been all too successful in misleading the public.

Many Americans are too young to remember Vietnam. Then, as now, senior government officials did not tell the American people the truth. Now, as then, insiders who know better have kept their silence, as the country was misled into the most serious foreign policy disaster since Vietnam.

Some of you have documentation of wrongly concealed facts and analyses that—if brought to light—would impact heavily on public debate regarding crucial matters of national security, both foreign and domestic. We urge you to provide that information now, both to Congress and, through the media, to the public. …

There is a growing network of support for whistleblowers. In particular, for anyone who wishes to know the legal implications of disclosures they may be contemplating, the ACLU stands ready to provide pro bono legal counsel, with lawyer-client privilege. The Project on Government Oversight (POGO) will offer advice on whistle blowing, dissemination and relations with the media.

Needless to say, any unauthorized disclosure that exposes your superiors to embarrassment entails personal risk. Should you be identified as the source, the price could be considerable, including loss of career and possibly even prosecution. Some of us know from experience how difficult it is to countenance such costs. But continued silence brings an even more terrible cost, as our leaders persist in a disastrous course and young Americans come home in coffins or with missing limbs. …

We know how misplaced loyalty to bosses, agencies, and careers can obscure the higher allegiance all government officials owe the Constitution, the sovereign public, and the young men and women put in harm’s way. We urge you to act on those higher loyalties. … Truth telling is a patriotic and effective way to serve the nation. The time for speaking out is now.

SIGNATORIES

Appeal from the Truth-Telling Coalition

Edward Costello, Former Special Agent (Counterintelligence), Federal Bureau of Investigation

Sibel Edmonds, Former Language Specialist, Federal Bureau of Investigation

Daniel Ellsberg, Former official, U.S. Departments of Defense and State

John D. Heinberg, Former Economist, Employment and Training Administration, U.S. Department of Labor

Larry C. Johnson, Former Deputy Director for Anti-Terrorism Assistance, Transportation Security, and Special Operations, Department of State, Office of the Coordinator for Counter Terrorism

Lt. Col Karen Kwiatowski, USAF (ret.), who served in the Pentagon’s Office of Near East Planning

John Brady Kiesling, Former Political Counselor, U.S. Embassy, Athens, Department of State

David MacMichael, Former Senior Estimates Officer, National Intelligence Council, Central Intelligence Agency

Ray McGovern, Former Analyst, Central Intelligence Agency

Philip G. Vargas, Ph.D., J.D., Dir. Privacy & Confidentiality Study, Commission on Federal Paperwork (Author/Director: “The Vargas Report on Government Secrecy” — CENSORED)

Ann Wright, Retired U.S. Army Reserve Colonel and U.S. Foreign Service Officer

An earlier version of this article first appeared at Consortiumnews.com

 Ray McGovern

Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. During his career as a CIA analyst, he prepared and briefed the President’s Daily Brief and chaired National Intelligence Estimates. He is a member of the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS)

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| Brennan refuses Bible + takes oath on draft Constitution—without Bill of Rights!

Brennan takes oath on draft Constitution—without Bill of Rights ~   | The Ticket.

Vice President Joe Biden swears in CIA Director John Brennan at the White House, March 8, 2013. (David Lienemann/Official …

Oh, dear. This is probably not the symbolism the White House wanted.

Hours after CIA Director John Brennan took the oath of office—behind closed doors, far away from the press, perhaps befitting his status as America‘s top spy—the White House took pains to emphasize the symbolism of the ceremony.

“There’s one piece of this that I wanted to note for you,” spokesman Josh Earnest told reporters at their daily briefing. “Director Brennan was sworn in with his hand on an original draft of the Constitution that had George Washington’s personal handwriting and annotations on it, dating from 1787.”

Earnest said Brennan had asked for a document from the National Archives that would demonstrate the U.S. is a nation of laws.

“Director Brennan told the president that he made the request to the archives because he wanted to reaffirm his commitment to the rule of law as he took the oath of office as director of the CIA,” Earnest said.

The Constitution itself went into effect in 1789. But troublemaking blogger Marcy Wheeler points outthat what was missing from the Constitution in 1787 is also quite symbolic: The Bill of Rights, which did not officially go into effect until December 1791 after ratification by states. (Caution: Marcy’s post has some strong language.)

That means: No freedom of speech and of the press, no right to bear arms, no Fourth Amendment ban on “unreasonable searches and seizures,” and no right to a jury trial.

How … symbolic?

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“That means, when Brennan vowed to protect and defend the Constitution, he was swearing on one that did not include the First, Fourth, Fifth, or Sixth Amendments — or any of the other Amendments now included in our Constitution. The Bill of Rights did not become part of our Constitution until 1791, 4 years after the Constitution that Brennan took his oath on.

I really don’t mean to be an asshole about this. But these vows always carry a great deal of symbolism. And whether he meant to invoke this symbolism or not, the moment at which Brennan took over the CIA happened to exclude (in symbolic form, though presumably not legally) the key limits on governmental power that protect American citizens.” ~ emptywheel.

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| The 2nd Amendment and the madness of killing kids!

The 2nd Amendment and Killing Kids ~ Robert Parry, Consortium News.

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Exclusive: As Americans reel in shock over the slaughter of 20 schoolchildren in Newtown, Connecticut, defenders of “gun rights” insist, in effect, that such deaths are part of the price of “liberty” enshrined by the Framers in the Second Amendment. But this was not what James Madison had in mind, argues Robert Parry.

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The American Right is fond of putting itself inside the minds of America’s Founders and intuiting what was their “original intent” in writing the U.S. Constitution and its early additions, like the Second Amendment’s “right to bear arms.” But, surely, James Madison and the others weren’t envisioning people with modern weapons mowing down children in a movie theater or a shopping mall or now a kindergarten.

Indeed, when the Second Amendment was passed in the First Congress as part of the Bill of Rights, firearms were single-shot mechanisms that took time to load and reload. It was also clear that Madison and the others viewed the “right to bear arms” in the context of “a well-regulated militia” to defend communities from massacres, not as a means to enable such massacres.

James Madison, architect of the U.S. Constitution and author of the Bill of Rights.

The Second Amendment reads: “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.” Thus, the point of the Second Amendment is to ensure “security,” not undermine it.

The massacre of 20 children in Newtown, Connecticut, on Friday, which followed other gun massacres in towns and cities across the country, represents the opposite of “security.” And it is time that Americans of all political persuasions recognize that protecting this kind of mass killing was not what the Founders had in mind.

However, over the past several decades, self-interested right-wing “scholarship” has sought to reinvent the Framers as free-market, government-hating ideologues, though the key authors of the U.S. Constitution – people like James Madison and George Washington – could best be described as pragmatic nationalists who favored effective governance.

In 1787, led by Madison and Washington, the Constitutional Convention scrapped the Articles of Confederation, which had enshrined the states as “sovereign” and had made the federal government a “league of friendship” with few powers.

What happened behind closed doors in Philadelphia was a reversal of the system that governed the United States from 1777 to 1787. The laws of the federal government were made supreme and its powers were dramatically strengthened, so much so that a movement of Anti-Federalists fought bitterly to block ratification.

In the political maneuvering to assure approval of the new system, Madison and other Federalists agreed to add a Bill of Rights to ease some of the fears about what Anti-Federalists regarded as the unbridled powers of the central government. [For details, see Robert Parry’s America’s Stolen Narrative.]

Madison had considered a Bill of Rights unnecessary because the Constitution, like all constitutions, set limits on the government’s power and it contained no provisions allowing the government to infringe on basic liberties of the people. But he assented to spell out those rights in the first 10 amendments, which were passed by the First Congress and ratified in 1791.

The intent of the Second Amendment was clarified during the Second Congress when the U.S. government enacted the Militia Acts, which mandated that all white males of military age obtain a musket, shot and other equipment for service in militias.

The idea was to enable the young country to resist aggression from European powers, to confront Native American tribes on the frontier and to put down internal rebellions, including slave revolts. There was nothing particularly idealistic in this provision; the goal was the “security” of the young nation.

However, the modern American Right and today’s arms industry have devoted enormous resources to twisting the Framers into extremist ideologues who put “liberties” like individual gun ownership ahead of all practical concerns about “security.”

This propaganda has proved so successful that many politicians who favor common-sense gun control are deemed violators of the Framers’ original intent, as essentially un-American, and face defeat in elections. The current right-wing majority on the U.S. Supreme Court has even overturned longstanding precedents and reinterpreted the Second Amendment as granting rights of individual gun ownership.

But does anyone really believe that Madison and like-minded Framers would have stood by and let deranged killers mow down civilians, including children, by using guns vastly more lethal than any that existed in the Revolutionary era? If someone had wielded a single-shot musket or pistol in 1791, the person might get off one volley but would then have to reload. No one had repeat-firing revolvers, let alone assault rifles with large magazines of bullets.

Any serious scholarship on the Framers would conclude that they were, first and foremost, pragmatists determined to protect the hard-won independence of the United States. When the states’-rights Articles of Confederation wasn’t doing the job, they scrapped it. When compromises were needed – even on the vile practice of slavery – the Framers cut the deals.

While the Framers cared about liberty (at least for white men), they focused in the Constitution on practicality, creating a flexible system that would advance the “general Welfare” of “We the People.”

It is madness to think that the Framers would have mutely accepted the slaughter of kindergarteners and grade-school kids (or the thousands of other American victims of gun violence). Such bloody insecurity was definitely not their “original intent.”

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).

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SECOND AMENDMENT ~ Legal Information Institute, Cornell University Law School.

The Second Amendment of the United States Constitution reads: “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.” Such language has created considerable debate regarding the Amendment’s intended scope. On the one hand, some believe that the Amendment’s phrase “the right of the people to keep and bear Arms” creates an individual constitutional right for citizens of the United States. Under this “individual right theory,” the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language “a well regulated Militia” to argue that the Framers intended only to restrict Congress from legislating away a state’s right to self-defense. Scholars have come to call this theory “the collective rights theory.” A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun “has some reasonable relationship to the preservation or efficiency of a well regulated milita . . . .” The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.

This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller (07-290). The plaintiff in Hellerchallenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation. In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purchase. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purchases as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.

 

Thus, the Supreme Court has revitalized the Second Amendment.  The Court continued to strengthen the Second Amendment through the 2010 decision in McDonald v. City of Chicago (08-1521).  The plaintiff inMcDonald challenged the constitutionally of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens.  In a 5-4 decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine.  However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense.  While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.

 

 

However, several questions still remain unanswered, such as whether regulations less stringent than the D.C. statute implicate the Second Amendment, whether lower courts will apply their dicta regarding permissible restrictions, and what level of scrutiny the courts should apply when analyzing a statute that infringes on the Second Amendment.

See constitutional amendment.

 

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Erwin Chemerinsky, Constitutional Law: Principles and Policies 26-28 (2006).

Federal Decisions:

 

Putting all of these textual elements together, we find that [the Second Amendment] guarantee[s] the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.”

District of Columbia v. Heller, 478 F.3d 370 (2008)

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