The ACLU & Heller

The ACLU & Heller
For many years, the ACLU (Anti-Christian Litigation Unit) claimed that the Second Amendment didn't protect an individual right--only a collective right. They held that position based on U.S. v. Miller (1939). Okay, wrong, but at least they had a fig leaf that they could wear to hide their intellectual nakedness.

Now, of course, the Supreme Court with D.C. v. Heller (2008) has recognized that the right is individual. So what is the ACLU's position now?

The ACLU interprets the Second Amendment as a collective right. Therefore, we disagree with the Supreme Court’s decision in D.C. v. Heller. While the decision is a significant and historic reinterpretation of the right to keep and bear arms, the decision leaves many important questions unanswered that will have to be resolved in future litigation, including what regulations are permissible, and which weapons are embraced by the Second Amendment right that the Court has now recognized.

And in response, there are 130 comments on their blog about it. Not a single one defends the ACLU's position--and large numbers indicate that money that used to go to the ACLU will be going to the Cato Institute or the NRA-ILA in the future. Many of the comments are very well thought out:

Face it, ACLU: The days of plausible deniablity are gone. Miller’s confusing language gave you some cover, Heller stripped it away.
You either accept that the 2nd amendment guarantees an individual right, or stand revealed as, not a neutral in this fight, but an *enemy* of this particular civil liberty. Because only an enemy of this civil liberty would persist in denying it’s existence at this point.
I’d be content with you admitting the right exists, and leaving it to the NRA to defend. You don’t have to be the one stop for defending all civil liberties.
But if you’re going to be a *civil liberties* union, you’ve got to at least refrain from ATTACKING any of them. And that’s what you’re doing at this point.

And this one:

As a working journalist on five continents I have defended the ACLU against all comers for the past 48 years. Even when I didn’t agree with you I defended you for I _knew!_ that your only client was the Constitution.
I’ve been betrayed.

And this one:

I’m a libertarian who has long believed that the right-wing critique of the ACLU was overstated but not without merit. I have long believed that the ACLU does worthy work, but adheres to a definition of “civil liberties” that comports with elite liberalism first and an honest and robust reading of the Constitution second.
I had hoped that the ACLU would demonstrate some moral courage and dispel those criticisms by embracing the Heller decision. I find it very sad, and very telling, that you’ve decided that you’ll have to be dragged kicking and screaming to accord the Second Amendment the same respect as the First, Fourth, Fifth, Sixth, and Fourteenth.

Time to Sue?

A couple of days back, I mentioned the Alaska Airlines special discount for gay people. WorldNetDaily reports on one straight person who expressed his disapproval about being discriminated against--and the email response from Alaska Airlines was a vulgar expression that I won't repeat here.

A reader asks: "Isn't this discrimination based on sexual orientation a basis for suit?" Well, to my knowledge, there is no federal law banning discrimination by private companies in the provision of services based on sexual orientation. But there are some state and local bans on it, such as the Seattle measure that the ACLU used to sue a print job owner because she refused to print same-sex wedding invitations. I don't know all the details on how a city ordinance applies to a national firm offering discriminatory pricing on a web site, but it would be amusing to see some straight people who live in Seattle file suit against Alaska Airlines demanding that they stop.

You understand, I have very little sympathy for laws that tell private firms with whom they have to transact business--but full application of stupid laws sometimes gets the message across to the stupid people that advocate them. Such public accommodations laws are certainly constitutional, and part of a long English common law tradition. I just consider these a very questionably necessary governmental action that imposes unnecessarily on private property rights. I really don't think that the government should be telling consenting adults what they should be doing on private property, and it shouldn't matter if that's employment or sodomy.

I make one exception on this: blacks were the victims of widespread state imposed private business discrimination for many decades. If you find this surprising--that the government actually ordered private businesses to discriminate, read Plessy v. Ferguson (1896) for details. Similar discrimination was imposed on interstate bus companies as well into the 20th century. In 1964, you could make a good case that the Civil Rights Act was necessary to break a pattern that had been imposed by state laws, and aggravated what was a widespread, popular, and natural discriminatory practice. (Yes, "natural," in the same sense that Granola, cholera, and death in childbirth are "natural." Natural doesn't make it good.) I'm not sure that the argument for this is all that strong today--and I've never found the argument for all the other groups that are now protected by these public accommodation laws all that persuasive.

Where's the ACLU?

A bunch of antiwar protesters get sued for being obnoxious, and lose. What about their free speech rights? And yes, I want the ACLU to be consistent, and defend these creeps, just to remind everyone that the ACLU's ahistorical notion of "freedom of speech" leads to repulsive behavior like this. From the November 1, 2007 Washington Post:

A federal jury in Baltimore awarded nearly $11 million in damages yesterday to the family of a Marine from Maryland whose funeral was disrupted by members of a Kansas-based fundamentalist church.

One of the defendants said the civil award was the first against the church, whose members have stirred anger across the nation by picketing at funerals for service members killed in Iraq and Afghanistan, often carrying placards bearing virulent anti-gay slogans. The church maintains that God is punishing the United States, killing and maiming troops, because the country tolerates homosexuality.

Fred Phelps, pastor of the Topeka-based Westboro Baptist Church, scoffed at the jury and the award.

"It was a bunch of silly heads passing judgment on God," he said. "I don't believe anyone in the courtroom knows what the First Amendment is. Religious views are expressly protected by the First Amendment. You can't prosecute a preacher in civil law or in criminal law for what he preaches."

Phelps said the church would appeal, and he predicted that a higher court would overturn the award "in five minutes."

As I have pointed out in the past, Phelps is a dyed in the wool liberal (except for this homosexuality issue).

The Death Penalty: Honest Arguments Needed

The Death Penalty: Honest Arguments Needed

I oppose the death penalty for a variety of reasons: the lack of an Undo button being perhaps the most serious, but at the core of my opposition to it is that it makes the hair on the back of my neck stand up to think of the government intentionally taking people out and killing them when it has other choices. The 1984 movie version of 1984 has one of those profoundly disturbing scenes where during the Two Minute Hate, prisoners of war are being publicly executed in front of the cheering mob. That we do it more dispassionately and without the blood lust doesn't help me much. (I must confess that there are some monsters that make me waver a bit--there's a guy in California who is probably still on Death Row for a rape/torture/murder of a 2 year old little girl committed back in the 1980s for whom I might be prepared to make an exception.)

However, just because I don't approve of the death penalty, doesn't mean that I particularly approve of death penalty opponents. I find the arguments advanced by death penalty opponents astonishingly dishonest. The argument that the death penalty is intrinsically cruel and unusual punishment? Nonsense. The death penalty was common in America when the states ratified the Bill of Rights.

The argument that electrocution or gas chamber inflict unnecessary suffering, thus violating the cruel and unusual punishment clause? Nonsense. Hanging was the common method of execution in 1791, and while many of those so executed died quick and relatively painless deaths when their necks broke, there are gobs of botched executions in that time with people who weren't heavy enough just struggling for long periods of time while they were strangled. That's part of why Michigan has never had a death penalty. One of those botched executions in Michigan just before statehood had a powerful impact on all those who had the misfortune to be there.

The argument advanced some years ago that the drugs used in lethal injection had not been approved for use on humans, and their safety wasn't known? That would almost be funny, if it was a Saturday Night Live. Not in a courtroom.

I've never been particularly sure of whether the death penalty deterred murder or not. John Lott's new book Freedomnomics points to a number of studies that show that it does. This column by him in the November 2, 2007 New York Post makes the point that many of the arguments against the death penalty are absurd:

A common claim is that executions - now down to about 60 per year - are too rare to deter criminals. To see the spuriousness of this complaint, consider that "only" about 55 police officers are killed each year - yet we (academics and the public alike) still see it as a dangerous job, one whose stresses help account for higher divorce and suicide rates.

Yet those killings are spread across about 700,000 U.S. police officers. By contrast, 2005 saw 60 executions and 16,700 murders - that is, we executed murderers at 45 times the rate at which criminals killed police officers. Given the impact on police, how can we believe that murderers would be unaffected by the much larger risk they face? Critics also point to mistaken convictions - yet they still can't point to a single case in which an innocent person was executed. This is ultimate proof that our justice system works well - making due account, for example, for the fact that witnesses sometimes make misidentifications.

Others, like the American Bar Association, claim racial biases in how the death penalty is applied. In fact, while African-Americans have committed 53 percent of all murders since 1980 in which the killer's race is known, they have accounted for only 38 percent of the executions.

Let's hear it for honest arguments against the death penalty--not dishonest ones.

UPDATE: A reader points out that it is cheaper to put a murderer in prison for life than to execute them. This is true. But why? It is so expensive to execute a murderer because the ACLU has made it so expensive. Even a careful painstaking review of the evidence, trial record, and the law shouldn't cost many millions of dollars each and every time. Imagine if conservatives controlled the federal courts, and required every individual release from prison to be this thoroughly checked. You could make the argument that, "It's cheaper to keep convicted burglars in prison for life, than to let them out."

When You Can't Tell News From An Onion Article

The Onion does great satire. It is bad news when you can't tell it from real news. October 26, 2007 Associated Press is reporting that Senator Happy Feet is going to argue that his actions in the bathroom stall are constitutionally protected free speech:

ST. PAUL, Minn. (AP) — Idaho Sen. Larry Craig will argue before an appeals court that Minnesota's disorderly conduct law is unconstitutional as it applies to his conviction in a bathroom sex sting, according to a new court filing.
This is the first time Craig's attorneys have raised that issue. However, an earlier friend-of-the-court filing by the American Civil Liberties Union argued that Craig's foot-tapping and hand gesture under a stall divider at the Minneapolis airport are protected by the First Amendment.

Based on similar challenges that have been made against soliciting sex in restrooms I am guessing that the argument will be:

1. Since the Lawrence v. Texas (2003) decision, homosexual sex isn't unlawful.

2. Soliciting someone in a public restroom to go have sex is simply free speech. Only if they had sex in a public space would be it be unlawful to make that solicitation.

The logic is impeccable. So if a guy approaches strangers on the street asking them if they want to go back to his place for sex (and perhaps being very crude and lewd in how he solicits them), that's constitutionally protected free speech.

There has been, at least the 1970s, a certain level of this sort of thing that goes on in bars and discos. (I have to rely on what I read and was told; I had some disco shirts of the era, but I never went to those of places when I was single.)

I knew someone back when I worked at JPL who would, to save time, just approach every woman in a disco and make a single sentence query, and yes, it rhymed with the title of that famous song of the era, Disco Duck. He told me that he only occasionally got slapped, and usually within the first 50 women he approached, he would get a yes.

Still, this was part of the territory of discos and other "meat markets." You don't go into places like that if you are really more suited to the ice cream social at church. Public restrooms are a somewhat different situation. I really don't think I want to live in a society where this version of free speech trumps laws against rude and disorderly behavior.

UPDATE: I'm told that the ACLU brief argues that what happens inside a public restroom stall is private, and therefore protected by Lawrence. In some ways, that's just a different outrageous claim.

The American Elite

A while back, it was a former ACLU official pleading guilty to trying to buy child rape videos. Now it's a CBS producer trying to trade football tickets for sex with an 11 year old:

Daniel Barron, 56, was arrested and charged with solicitation to commit sexual battery on a child under the age of 12 Saturday.

Police said Barron, a CBS sports television producer, chatted on the Internet with an undercover detective who was posing as a father willing to let Barron have sex with his 11-year-old daughter as well as sleep nude with her in exchange for tickets to the Miami Dolphins football game Sunday.

According to a police report, Barron told the undercover officer that he was looking forward to meeting the daughter, allegedly telling the detective, "I will be very gentle with her."

St. Lucie County Sheriff Ken Mascara said that Barron was arrested when he went to meet the people he thought would be the father and daughter in the parking lot of a Ft. Lauderdale hotel on Saturday.

What's with the American elite? Are they really the lowest scum of the planet?

Former ACLU Official Pleads Guilty

From the June 2, 2007 Washington Post:

A former Arlington County youth sports coach who once headed the Virginia ACLU pleaded guilty yesterday to charges that he purchased child pornography so graphic that prosecutors called it "sadistic."

Charles Rust-Tierney, 51, admitted that he accessed more than 850 pornographic images of children as young as 4, including a six-minute video depicting the sexual torture of children set to a song by the band Nine Inch Nails. Authorities said Rust-Tierney used a computer in his 10-year-old son's bedroom to view the files, some of which were contained on CDs bearing an American flag logo.

...

"So these were actual children under the age of 12 engaged in sexual activity?" Judge T.S. Ellis asked.

"I'm agreeing to that, yes, your honor," Rust-Tierney said.

"Well, is it true or not?" Ellis asked.

"Yes, it is," Rust-Tierney replied.

Rust-Tierney, a public defender in the District and a past president of the American Civil Liberties Union of Virginia, faces up to 20 years in prison when he is sentenced Sept. 7. His attorneys and prosecutors agreed to recommend a sentence of 8 to 10 years.

The guilty plea brought a quiet end to a case that has triggered strong emotions locally and nationally. Rust-Tierney is a former president of Arlington Little League, and more than two dozen people, including numerous fellow lawyers, packed a federal courtroom in March to say that he should be released from jail. Parents of children he has coached wrote letters of support.

...

The case has attracted national attention, with some critics and bloggers accusing the media of initially downplaying the story because of Rust-Tierney's ACLU connection. He was president of the board of directors of the ACLU's Virginia affiliate from 1993 to 2005 and resigned from the ACLU's board the day he was arrested in February.

...

Prosecutors said yesterday that they had identified at least 30 child pornography victims shown in the images and videos Rust-Tierney downloaded and that the images were created in places ranging from England and Texas to Scranton, Pa. Rust-Tierney used his credit card to purchase the images from child pornography Web sites on at least five occasions, spending about $420.

At one point, court documents said, Rust-Tierney e-mailed the operators of a Web site requesting free access to a child pornography video normally sold separately for $100. The Web site operators e-mailed back with a link to the video.

Rust-Tierney's plea agreement with prosecutors said the images he downloaded showed "sadistic or masochistic conduct."

U.S. Magistrate Judge Theresa C. Buchanan, who declined to release Rust-Tierney at the hearing in March, had described the material on the computer as "the most perverted and nauseating and sickening type of child pornography" she has seen in 10 years on the bench.

As I mentioned when this fine upstanding member of the bar was arrested on these charges:

I've long been unsure whether the ACLU's ahistorical interpretation of the First Amendment was an irrational zealotry for a principle for something a bit darker.

This inclines me to wonder how much of the ACLU's self-destructive enthusiasm might reflect the secret wishes and desires of prominent ACLU members like Rust-Tierney.