Sunday, December 16, 2007

NY Times And Civil Liberties

The NYT is a vocal proponent of the protection of civil liberties, the ones they like. The fact that I also like the ones they like only means just so much. You see, the NYT has what you might call selective approval, they pick and choose and mangle whatever is convenient for mangling at the moment. The NYT is currently pretty hot on the 4th Amendment, they believe the government has now overstepped the bounds, a good question might be, "where were you on RICO?" Since they are the press, one shouldn't be too surprised that they wish to protect their corporate welfare and since that's rolled into one Amendment they don't want any messing about, though the strength of their support for "freedom of assembly" got pretty weak during the '04 RNC Convention in their fair city. They were pretty muted on the issue of the government paying religious organizations for "social work," (the quotes are intended).

When the Appeals Court overturned the DC gun ban, the NYT finished their Editorial with this paragraph:
A lot has changed since the nation’s founding, when people kept muskets to be ready for militia service. What has not changed is the actual language of the Constitution. To get past the first limiting clauses of the Second Amendment to find an unalienable individual right to bear arms seems to require creative editing.

Beyond grappling with fairly esoteric arguments about the Second Amendment, the justices need to responsibly confront modern-day reality. A decision that upends needed gun controls currently in place around the country would imperil the lives of Americans.
One is tempted to ask questions about the NYT's editing process and whether words mean what the dictionary says or if it is a matter of personal preference, their latest OpEd piece by Adam Freedman has more in common with the fiction he writes than law.

The decision invalidating the district’s gun ban, written by Judge Laurence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit, cites the second comma (the one after “state”) as proof that the Second Amendment does not merely protect the “collective” right of states to maintain their militias, but endows each citizen with an “individual” right to carry a gun, regardless of membership in the local militia.

How does a mere comma do that? According to the court, the second comma divides the amendment into two clauses: one “prefatory” and the other “operative.” On this reading, the bit about a well-regulated militia is just preliminary throat clearing; the framers don’t really get down to business until they start talking about “the right of the people ... shall not be infringed.”
This gets to the guts of his argument, he's unhappy about the comma, and commas were pretty much optional tag ons at the time. He has a solution for this awkward piece of punctuation.

The best way to make sense of the Second Amendment is to take away all the commas (which, I know, means that only outlaws will have commas). Without the distracting commas, one can focus on the grammar of the sentence.
Now that we've dispensed with that comma we can get down to the business of dismantling the Second Amendment:
Likewise, when the justices finish diagramming the Second Amendment, they should end up with something that expresses a causal link, like: “Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.” In other words, the amendment is really about protecting militias, notwithstanding the originalist arguments to the contrary.

Advocates of both gun rights and gun control are making a tactical mistake by focusing on the commas of the Second Amendment. After all, couldn’t one just as easily obsess about the founders’ odd use of capitalization? Perhaps the next amicus brief will find the true intent of the amendment by pointing out that “militia” and “state” are capitalized in the original, whereas “people” is not.
That seems pretty clear, we take out that nasty comma and things are all fixed up. We've got it all covered, um, except for a couple points, there's the little matter of the definition of militia and even worse is that adjective in front of state - free - which tilts things a tad. So far maybe this seems like legalese hair splitting, but then there is the absolute kicker, people, the word does not appear in the Second alone and it turns the BOR into a diagram for repression if people means State, which it does not.

The Bill of Rights is not about the government giving people rights, that is a commonly played card of immense falsehood, it is about rights that pre-exist the formation of the government and the government's guarantee that it will stay out of them. A state has no rights other than those conferred on it by its citizens. It has a presumed "right to self-defense" just as the citizenry has the right to smash it as King George III found (not to be confused with the American wannabe kinglet George II). The people are the people, always, to attempt to confuse the word with an organization is only argumentation back from a preconceived point - they are something different because my argument only works if I change a word. Had the Founders meant the word to mean militia they would have used the word militia rather than people, there is absolutely no grammatical reason to use people in place of militia, there is no sense of his meaning that requires people in that part of a sentence. In point of fact, there were people excluded from the militia by law at that time, the words are not interchangeable. They are not equal with or without the comma, the comma only makes that abundantly clear.

The NYT's editors seem to believe that because some things belong within a group, all similar things belong, Because robbers are human and people are human works in this sense - all robbers are people - but it does not work at all in this sense - all people are robbers. Nobody in their right mind tries the latter - well, the NYT certainly does.

This sort of intellectual dishonesty, the re-framing of definitions and class inclusions makes one wonder just how accurate the NYT's reporting really is...


Kevin said...

Nice dissection of the article, Chuck. I would have to agree with your point about what the word "people" means in the Bill of Rights. And of course upon that hinges the rest.

Of course you and I have discussed the 2nd several times. Other than disagreeing on the proper meaning of the word "abridged" in that amendment, we pretty much agree on the rest.

Not sure how well this new sign in thing will work. I've used an old AOL screen name and since Carla is the only person ever likely to read this comment who would recognize it... this is Kevin from PK.

Here goes nothin'...

Steve Culley said...

It could be that if the Supreme Court doesn't uphold the 200 year old tradition of individual Americans to own firearms this nation just might come to understand the term "militia".

Larry McD said...

Irrelevant post of the day: Wish you'd quit referring to Chimpy as George II. He's our third George so he's actually George III - and he has exactly the same high regard for the American people and their laws and rights.

Zak J. said...

The NYT intellectual dishonesty doesn't stop at the Constitution, it suffuses their entire logic. To quote the article:

"Beyond grappling with fairly esoteric arguments about the Second Amendment, the justices need to responsibly confront modern-day reality. A decision that upends needed gun controls currently in place around the country would imperil the lives of Americans."

Now they're just making stuff up. There's not a scrap of evidence that gun control saves lives, but there is a lot of good scholarship to back up the assertion that gun control INCREASES both crime and murder rates in cities that practice it.

The NYT is the perfect example of why pro-2nd Amendment people get so red-faced--it gets tedious talking the same points over and over again to people who will not listen or engage in an honest discussion. Eventually, you stop bothering. I haven't paid any attention to the NYT on gun issues since a reporter of theirs went to a gun show and wrote about all the (his words) "semi-automatic revolvers" for sale there. That little error made it all the way through every editor on the paper and into print. When you can't be bothered to even do basic research for a story, your views don't deserve to be taken seriously.

Also, their core assertion (quoted above) basically says the Constituion is nice & all, but really needs to be interpreted freely as changing times require (or permit.) That is a damn scary argument coming from the editorial board of one of the nation's most influential papers. Shame on them all.

Steve Culley said...

We have several people who would like to be president of the United States from 2 parties. They have had some debates. In none of those debates did I hear them asked how they think the Supreme Court should rule on the D.C. case. It would be darn interesting to hear their answers in the various states. The flip flop would become an art form.

KISS said...

Not expecting much from our government, I am seldom disappointed. With this supreme court I think gun-owners are in no danger.

Chuck Butcher said...

Hi Kevin
larry mcd,
you really don't think I'd lump GW with GHWB and GWB and besides GW ain't related to them.
you're right, I should have included that, but it is such a given in their arguments I just slid by it.
Steve and KISS,
I never make guesses when their are hge political consequences.

Chuck Butcher said...

the word you're looking for is infringed not abridged. Thanks for stopping by and signing in.