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Eugenics – Conservapedia

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Sep 022015
 

Eugenics was a movement which tried to eliminate “dangerous human pests” and “the rising tide of imbeciles” through what has been euphemistically called “selective breeding”. What this meant, in actual practice, was forced sterilization of American immigrants and minorities (particularly in California).[1]

The theory of evolution suggests that humans are merely evolving animals. The claimed biological struggle for survival that brought humans here is continuing. Man’s long-term survival is, according to evolution, a biological survival of the fittest. Evolution theory teaches that there must be a biological struggle for survival among various human races and groups.

Charles Darwin declared in The Descent of Man:[2]

Darwin was not the first to claim racial superiority. But he was the first to teach that some races of man “will almost certainly exterminate, and replace” other races of man. His followers developed a new intellectual field called “eugenics” for this mythical biological struggle.

In fact, the term “eugenics” was coined by Darwin’s cousin, Francis Galton.[3]

Defenders of Darwin, and Darwinism, often try to argue that Darwin, and Darwinism, have no logical connection to eugenics at all. However, in a 1914 speech, Charles Darwin’s son, Francis Darwin, wrote: “In the first edition of The Descent of Man, 1874, [my father] distinctly gives his adherence to the eugenic idea by his assertion that many might by selection do something for the moral and physical qualities of the race.”[4] He based his ideas on his cousin’s work.

Francis Darwin’s clear statement that his father endorsed Galton’s conception of eugenics is important, because many people try to distance Darwin from the taint of eugenics by pointing out that Darwin himself never advocated for it by name. But Galton coined the word after Darwin’s death, so naturally he wouldn’t have used the word ‘eugenics.’ Darwin’s son can be expected to have understood his father’s theory well enough to know whether or not his father’s book, “The Descent of Man”, ‘gave adherence to the eugenic idea.’

The word “eugenics” is based on Greek roots meaning “well born.” The Merriam-Webster dictionary provides 1883 as the date of origin for the term. Later, Darwin’s son, Leonard, served as the president of the First Congress of Eugenics in 1912 in London.

The encyclopedia describes eugenics as now being “in disrepute,”[5] although Professor Peter Singer of Princeton University has sought to remove the stigma from it. Evolutionist and atheist Richard Dawkins has stated in one letter his wish that it no longer be banned from polite discussion.[6]

The Spartans in ancient Greece practiced a primitive form of eugenics, wherein babies which were judged to be too “weak” or “sickly” would be left to die.

In the early 1900s, many influential officials advocated Darwinism and eugenics. Supreme Court Justice Oliver Wendell Holmes became a strong proponent. So did many others in prominent government and academic positions. Members of the British Eugenics Society, including the International Planned Parenthood Federation, are listed.[7]

Between 1907 and 1937, 32 American states passed eugenics laws requiring sterilization of citizens deemed to be misfits, such as the mentally infirm. Oliver Wendell Holmes and all but one conservative Democratic Justice upheld such laws in a Supreme Court decision that included Holmes’ offensive statement that “three generations of imbeciles are enough.” Buck v. Bell, 274 U.S. 200, 207 (1927).[8] In fact, the third generation “imbecile” was very bright, but was declared by a eugenics “expert” as “supposed to be a mental defective,” apparently without an examination.

Eugenics was taught as part of the evolution curriculum of many science classes in America in the early 1900s. For example, it was featured in the textbook used in the famous Scopes trial in 1925.

“By 1928, the American Genetics Association boasted that there were 376 college courses devoted exclusively to eugenics. High-school biology textbooks followed suit by the mid-1930s, with most containing material favorable to the idea of eugenical control of reproduction. It would thus have been difficult to be an even moderately educated reader in the 1920s or 1930s and not have known, at least in general terms, about the claims of eugenics.”[9]

Important remnants of the evolution-eugenics approach exist today, in part because many of Justice Holmes’ opinions are still controlling law. The very first quote in the infamous Roe v. Wade abortion decision is an unprincipled statement of Justice Holmes in a 1905 opinion. Indeed, Holmes once wrote favorably in a letter to a future Supreme Court Justice about “restricting propagation by the undesirables and putting to death infants that didn’t pass the examination.[10]

Existing laws requiring students to receive controversial vaccines are based on a eugenics-era decision granting the State the power to forcibly vaccinate residents. [11] That decision, in fact, was the cited precedent for Justice Holmes’ offensive “imbeciles” holding quoted above.

For the same reason that evolution teaching led to eugenics, evolution teaching today encourages acceptance of abortion and euthanasia. Under evolution theory, after all, we are merely animals fighting for biological survival.

German Darwinist Ernst Haeckel promoted evolution by drawing fraudulent pictures of humans embryos, to pretend that their developmental stages imitate an historical evolution of humans from other species.[12]

In 1904, Haeckel reiterated the view of Darwin quoted above: “These lower races are psychologically nearer to the mammals (apes or dogs) than to civilized Europeans; we must, therefore, assign a totally different value to their lives.” [13]

It wasn’t long before intellectuals viewed war as an essential evolutionary process. Vom Heutigen Kriege, a popular book by Geberal Bernhardi, “expounded the thesis that war was a biological necessity and a convenient means of ridding the world of the unfit. These views were not confined to a lunatic fringe, but won wide acceptance especially among journalists, academics and politicians.”[14] In America, Justice Holmes similarly wrote that “I always say that society is founded on the death of men – if you don’t kill the weakest one way you kill them another.”[15]

World War I entailed a brutality unknown in the history of mankind. Gregg Easterbrook, a senior editor of the liberal New Republic magazine, observed that “prior to the Scopes trial [in 1925, William Jennings] Bryan had been on a revival tour of Germany and had been horrified by the signs of incipient Nazism. Before this point, Bryan had been a moderate in the evolution debate; for instance, he had lobbied the Florida legislature not to ban the teaching of Darwin, only to specify that evolution must be taught as a theory rather than a fact. But after hearing the National Socialists talk about the elimination of genetic inferiority, [historian Gary] Wills wrote, Bryan came to feel that evolutionary ideas had become dangerous; he began both to oppose and to lampoon them.”

The march of evolution/eugenics continued unabated in Germany. By the 1920s, German textbooks were teaching evolution concepts of heredity and racial hygiene. The Kaiser Wilhelm Institute of Anthropology, Human Heredity, and Eugenics was founded in 1927.

In 1933, Germany passed the Law for the Protection of Heredity Health. Next was the Nazi sterilization law entitled “Eugenics in the service of public welfare.” It required compulsory sterilization for the prevention of progeny with hereditary defects in cases including congenital mental defects, schizophrenia, manic-depressive psychosis and hereditary epilepsy.

The German schools indoctrinated their students. In 1935, a German high-school math textbook included the following problem:[9] ” how much does it cost the state if:

One German student was Josef Mengele, who studied anthropology and paleontology and received his Ph.D. for his thesis entitled “Racial Morphological Research on the Lower Jaw Section of Four Racial Groups.” In 1937, Mengele was recommended for and received a position as a research assistant with the Third Reich Institute for Hereditary, Biology and Racial Purity at the University of Frankfort. He became the “Angel of Death” for directing the operation of gas chambers of the Holocaust and for conducting horrific medical experiments on inmates in pursuit of eugenics.

The liberal American Medical Society provided this summary:[16]

Many genocides have been commited in the name of Eugenics, most notably the Holocaust. Adolf Hitler was a strong believer in eugenics and evolution and believed that Jewish people were closest to apes, followed by Africans, Asians, non-Aryan Europeans, and finally Aryans, who he believed were most evolved.

Pat Milmoe McCarrick and Mary Carrington Coutts, reference librarians for the National Reference Center for Bioethics Literature at Georgetown University, were more succinct: “The Nazi racial hygiene program began with involuntary sterilizations and ended with genocide.” [17]

From The Nazi Connection[18]:

In The Nazi Connection, Stefan Kuhl uncovers the ties between the American eugenics movement and the Nazi program of racial hygiene, showing that many American scientists actively supported Hitler’s policies. After introducing us to the recently resurgent problem of scientific racism, Kuhl carefully recounts the history of the eugenics movement, both in the United States and internationally, demonstrating how widely the idea of sterilization as a genetic control had become accepted by the early twentieth century. From the first, the American eugenicists led the way with radical ideas. Their influence led to sterilization laws in dozens of stateslaws which were studied, and praised, by the German racial hygienists. With the rise of Hitler, the Germans enacted compulsory sterilization laws partly based on the U.S. experience, and American eugenists took pride in their influence on Nazi policies. Kuhl recreates astonishing scenes of American eugenicists travelling to Germany to study the new laws, publishing scholarly articles lionizing the Nazi eugenics program, and proudly comparing personal notes from Hitler thanking them for their books. Even after the outbreak of war, he writes, the American eugenicists frowned upon Hitler’s totalitarian government, but not his sterilization laws. So deep was the failure to recognize the connection between eugenics and Hitler’s genocidal policies, that a prominent liberal Jewish eugenicist who had been forced to flee Germany found it fit to grumble that the Nazis “took over our entire plan of eugenic measures.”

By 1945, when the murderous nature of the Nazi government was made perfectly clear, the American eugenicists sought to downplay the close connections between themselves and the German program. Some of them, in fact, had sought to distance themselves from Hitler even before the war. But Stefan Kuhl’s deeply documented book provides a devastating indictment of the influenceand aidprovided by American scientists for the most comprehensive attempt to enforce racial purity in world history.

Some argue that parents who abort infants with genetic mutation or other disabilities are practicing a form of eugenics.[19] Some doctors and scientists have defended this practice and named it “liberal eugenics” in order to differentiate it from traditional forms of eugenics such as Nazi eugenics.[20] Eugenicists in the United States and elsewhere have been known to employ or advocate abortion as a method of eugenics.

In the 2006 satirical comedy Idiocracy, the entire movie is premised on the idea that the out-breeding of the stupid over the intelligent will lead to a uniformly stupid world run by advertisers, marketers, and anti-intellectualism.

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Eugenics – Conservapedia

Eugenics – RationalWiki

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Sep 022015
 

We must, if we are to be consistent, and if we’re to have a real pedigree herd, mate the best of our men with the best of our women as often as possible, and the inferior men with the inferior women as seldom as possible, and bring up only the offspring of the best.

Eugenics is the purported study of applying the principles of natural selection and selective breeding through altering human reproduction with the goal of changing the relative frequency of traits in a human population. It was the most dangerous form of biological determinism in modern history.

Eugenics was first developed in the 19th century, a misguided outgrowth of an intellectual milieu influenced by the popularity of early evolutionary theory and which included a spate of works on genetic disorders (many of which are incurable horrors), “scientific racism” and the Social Darwinism of the likes of Herbert Spencer. The term “eugenics” was coined by Francis Galton, a cousin of Charles Darwin, in his 1883 book Inquiries into Human Faculty and Its Development. Galton was responsible for many of the early works of eugenics, including attempts to connect genetics with a most prized trait known as intelligence.[1]

In the United States, it was the biologist Charles Davenport who laid the groundwork for the establishment of eugenics programs.[2] Eugenics gained traction as it was championed in the nascent Progressive Era of the late 19th century into the early 20th century, finding prominent political proponents in presidents Theodore Roosevelt and Woodrow Wilson. However, Calvin Coolidge, Herbert Hoover, and Winston Churchill were also fans of eugenics.[3][4][5]

Some eugenics-based ideas were implemented both in the United States and in Europe. In the U.S., this strongly influenced immigration policy, as in the Johnson Immigration Act of 1924,[wp] which showed a preference for Northern Europeans, as they were believed to be somehow superior to Asians and South and Eastern Europeans.

The first U.S. state to implement eugenics was Indiana, in 1907, in which those housed in penal and mental institutions could be forcibly sterilized.[6] The first European country to implement forced sterilization was Denmark, in 1929.[7]California was the third U.S. state to implement eugenics, in 1909. California would go on to become responsible for a third of all of the forced sterilizations conducted in the United States (~20,000 out of ~60,000).

North Carolina had a eugenics policy from 1929 through 1977. In 2012 a gubernatorial committee proposed a settlement of USD$50,000 to each of the remaining living survivors victims of this policy.[8]

The Supreme Court gave legal backing to forced sterilization using eugenic ideas in the 1927 Buck v. Bell case. As Oliver Wendell Holmes, a eugenics proponent, wrote in the decision, “Three generations of imbeciles is enough.”[9] The Buck v. Bell decision encouraged more states to enact eugenics legislation. 23 states had such legislation prior to Buck v. Bell and 32 after. 18 states never had eugenics legislation.[10]

Israel, of all fucking places, is not immune from this either. Ethiopian Jews were injected with birth control initiatives intended to (at least temporarily) stop them from breeding. How widespread this was is still under investigation.[11]

One way eugenics was popularized was through “Better Baby” contests. These contests were sponsored by hospitals to determine the most “fit” baby, who all happened to be WASPs, naturally. This was spun off into “Fitter Family” contests, which would be held at state fairs, carnivals, and churches to allow entire families to compete.[12][13]

Hitler wrote in Mein Kampf that he approved of the eugenics policy going on in America at the time, to the point where one could say he was inspired by the idea. When he came to power, Nazi Germany saw the most sweeping application of a eugenics program, which is unsurprising, given the Nazis’ maniacal obsession with racial purity, or “racial hygiene” as they called it. The “Law for the Prevention of Hereditarily Diseased Offspring” was implemented within half a year of his rise to power, and resulted in the forced sterilization of up to 400,000 people that were diagnosed with hereditary mental or physical disabilities.[14]

After the outbreak of the war, this policy was carried to another extreme: people bearing hereditary defects were designated as “unfit to live,” and the eugenics program moved from sterilization to extermination. Within the scope of “Action T4,” an estimated 200,000 children and adults were systematically killed in order to avoid having to bear the costs of institutional care.[15] The groups targeted by action T4 were the incurably ill, physically or mentally disabled, emotionally distraught, and elderly people.[16] Achieving racial purity through eugenics on a grand scale can also be seen as an important motivation behind the Holocaust, which saw the murder of millions of “undesirables,” such as Jews, gypsies, Slavs, homosexuals, and the disabled.

Some Christian churches, particularly the Methodists, the Presbyterians, and the Episcopalians, embraced the eugenics movement. The Methodist Church would host Fitter Family contests and Methodist Bishops endorsed one of the first eugenics books circulated to the US churches. The professor of Christian ethics and founder of the Methodist Federation for Social Service, Rev. Harry F. War, writing in Eugenics, the magazine of the American Eugenic Society, said eugenics and Christianity were both compatible because both pursued the challenge of removing the causes that produce the weak.[13]

However, other Christian churches were strongly opposed to eugenics, particularly the Catholic Church and conservative Protestants. Catholics disliked eugenic laws that allowed for sterilization; Protestants viewed eugenics as a threat to a reliance on god to cure social ills.[17]

Because of eugenics’ association with Nazi Germany, a common bullshitting tactic is to declare some historical figure that endorsed eugenics a Nazi or Nazi sympathizer (see, e.g., Margaret Sanger). This is ahistorical as not every eugenics proponent supported the measures of Nazi Germany (or were even around to see it). Indeed, if this were the case, that would make Teddy and Silent Cal Nazis as well.

Galton divided eugenic practice into “positive” and “negative eugenics.” The positive variety consisted of political and economic incentives (such as tax breaks and sex education) for the “fit” to reproduce and the negative type consisted of disincentives such as birth control or forced sterilization. “Dysgenics” refers to the deterioration of the human stock — many eugenicists concentrated on “improvement” of the human race by reversing alleged dysgenic forces. There is also a split between “liberal eugenics” and “authoritarian eugenics.”[18] Liberal eugenics promotes consensual eugenic practice while authoritarian eugenics promotes state-mandated and enforced programs. Proponents personally emphasized different aspects of eugenics, positive, negative, dysgenic forces, etc. Thus, they often disagreed on matters of policy, much less were they all Nazis.

Whilst eugenics is based, in theory, in the perfectly valid science of genetics, its application is always far from scientific. For obvious reasons the room to experiment is limited in the extreme. Furthermore, whereas it is (relatively) easy, for example, to breed cattle for higher milk yield, defining what is meant by a “better” human being is a very difficult question. At this point eugenics stops being scientific and starts being normative and political, and a rather nasty type of politics at that. Eugenics drew heavily from various racist and racialist tracts of the period.

The most obvious flaw with application of eugenics is that its proponents have tended to conflate phenotypical (read: superficial) traits with genotypical traits. Any species that looks fit on the outside may carry recessive traits that don’t exhibit themselves but will be passed on and vice versa. The development of the field of epigenetics,[wp] i.e. heritable environmental factors in genetic expression that occur without change to underlying DNA structures, poses further problems for eugenics.

There is no reason to believe that a selective breeding plan to encourage certain physical traits in humans could not achieve the same results that plant and animal breeders have achieved for centuries (who were without specific knowledge of the genes they were selecting in and out). Odds are that the purebred humans with distinguishing features would be less healthy than the offspring of unconstrained mating would be, for the same reason that kennel-club purebred dogs are often less healthy than mutts. This concept of “purity” is flawed in that it creates many of the same problems as inbreeding a loss of biodiversity can in fact lead to increased susceptibility to a common concentrated weakness.[19] An example of this would be deer populations. A long time ago, natural selection selected for fitter males with antlers, but cue the rise of sport hunting and antlered populations plunged down fast. Another example of concentration is haemophilia, which became the plague of the royal families.

The extreme reductionism of eugenics often crossed into what is now comical territory. Nearly every social behavior, including things such as “pauperism” and the vaguely defined “feeble-mindedness,” could be traced back to a single genetic disorder according to eugenicists. Many works of eugenics recall the similar trend evident in phrenology (indeed, there was some overlap between eugenics and phrenology).[20]

While eugenics gained widespread support in the early 20th century (even within the scientific community) of a number of nations, there was also strong opposition during this period.[21] The biologist Raymond Pearl, for example, once a supporter of the movement, turned against it in the late 1920s.[22] The geneticist Lancelot Hogben argued that eugenics relied on a false dichotomy of “nature vs. nurture” and that it infected science with political value judgments;[23] Hogben was asked by William Beveridge (the then-director of the London School of Economics) to create a “Chair of Social Biology” department on campus, gave him the finger and prevented any of his eugenic ideas from being taken seriously in the formation of the British welfare state.[24]Clarence Darrow famously denounced it as a “cult.”[25] The Carnegie Institute, which initially funded the Eugenics Record Office, withdrew its funding after a review of its research, leading to its closing in 1939 (before the Holocaust even became public record).[26]

Stephen J. Gould was strongly opposed to eugenics. He wrote extensively on the topic, including his treatment on intelligence in The Mismeasure of Man.

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Eugenics – RationalWiki

Second Amendment | United States Constitution | Britannica.com

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Sep 022015
 

Second Amendment,Second AmendmentNARAamendment to the Constitution of the United States, adopted in 1791 as part of the Bill of Rights, that provided a constitutional check on congressional power under Article I Section 8 to organize, arm, and discipline the federal militia. 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. Referred to in modern times as an individuals right to carry and use arms for self-defense, the Second Amendment was envisioned by the framers of the Constitution, according to College of William and Mary law professor and future U.S. District Court judge St. George Tucker in 1803 in his great work Blackstones Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, as the true palladium of liberty. In addition to checking federal power, the Second Amendment also provided state governments with what Luther Martin (1744/481826) described as the last coup de grace that would enable the states to thwart and oppose the general government. Last, it enshrined the ancient Florentine and Roman constitutional principle of civil and military virtue by making every citizen a soldier and every soldier a citizen. (See also gun control.)

Until 2008 the Supreme Court of the United States had never seriously considered the constitutional scope of the Second Amendment. In its first hearing on the subject, in Presser v. Illinois (1886), the Supreme Court held that the Second Amendment prevented the states from prohibit[ing] the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security. More than four decades later, in United States v. Schwimmer (1929), the Supreme Court cited the Second Amendment as enshrining that the duty of individuals to defend our government against all enemies whenever necessity arises is a fundamental principle of the Constitution and holding that the common defense was one of the purposes for which the people ordained and established the Constitution. Meanwhile, in United States v. Miller (1939), in a prosecution under the National Firearms Act (1934), the Supreme Court avoided addressing the constitutional scope of the Second Amendment by merely holding that the possession or use of a shotgun having a barrel of less than eighteen inches in length was not any part of the ordinary military equipment protected by the Second Amendment.

For more than seven decades after the United States v. Miller decision, what right to bear arms that the Second Amendment protected remained uncertain. This uncertainty was ended, however, in District of Columbia v. Heller (2008), in which the Supreme Court examined the Second Amendment in exacting detail. In a narrow 54 majority, delivered by Antonin Scalia, the Supreme Court held that self-defense was the central component of the amendment and that the District of Columbias prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense to be unconstitutional. The Supreme Court also affirmed previous rulings that the Second Amendment ensured the right of individuals to take part in the defending of their liberties by taking up arms in an organized militia. However, the court was clear to emphasize that an individuals right to an organized militia is not the sole institutional beneficiary of the Second Amendments guarantee.

Because the Heller ruling constrained only federal regulations against the right of armed self-defense in the home, it was unclear whether the court would hold that the Second Amendment guarantees established in Heller were equally applicable to the states. The Supreme Court answered this question in 2010, with its ruling on McDonald v. Chicago. In a plurality opinion, a 54 majority held that the Heller right to possess a handgun in the home for the purpose of self-defense is applicable to the states through the Fourteenth Amendments due process clause.

However, despite the use of person in the Fourteenth Amendments due process clause, the McDonald plurality opinion did not extend to noncitizens. Clarence Thomass fifth and decisive vote only extended the Second Amendment right recognized in Heller to citizens. Thomas wrote, Because this case does not involve a claim brought by a noncitizen, I express no view on the difference, if any, between my conclusion and the plurality with respect to the extent to which States may regulate firearm possession by noncitizens. Thomas further came to this conclusion because he thought the Second Amendment should be incorporated through the Fourteenth Amendments privileges or immunities clause, which only recognizes the rights of citizens.

The relatively narrow holdings in the McDonald and Heller decisions left many Second Amendment legal issues unsettled, including the constitutionality of many federal gun-control regulations, whether the right to carry or conceal a weapon in public was protected, and whether noncitizens are protected through the equal protection clause.

The origins of the Second Amendment can be traced to ancient Roman and Florentine times, but its English origins developed in the late 16th century when Queen Elizabeth I instituted a national militia where individuals of all classes were required by law to take part in defending the realm. Although Elizabeths attempt to establish a national militia failed miserably, the ideology of the militia would be used as a political tool up to the mid-18th century. The political debate over the establishment and control of the militia was a contributing factor in both the English Civil Wars (164251) and the Glorious Revolution (168889).

Despite recognition in the early 21st century by the Supreme Court that the Second Amendment protected armed individual self-defense in the home, many constitutional historians disagreed with the court that the Second Amendment protected anything but the right to participate in a militia force as the means of defending their liberties. For over two centuries there was a consensus that the Second Amendment protected only the right of individuals to keep and bear Arms in order to take part in defending their liberties as a militia force. However, by the late 20th century the popular consensus had shifted, many believing that the Second Amendment was framed to protect armed self-defense in the home.

In England, following the Glorious Revolution, the Second Amendments predecessor was codified in the British Bill of Rights in 1689, under its Article VII, which proclaimed that the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law. Often misinterpreted as a right to defend ones person, home, or property, the allowance to have arms ensured that Parliament could exercise its sovereign right of self-preservation against a tyrannical crown by arming qualified Protestants as a militia.

The framers of the U.S. Constitution undoubtedly had in mind the English allowance to have arms when drafting the Second Amendment. The constitutional significance of a well regulated Militia is well documented in English and American history from the late 17th century through the American Revolution; it was included in the Articles of Confederation (1781), the countrys first constitution, and was even noted at the Constitutional Convention that drafted the new U.S. Constitution in Philadelphia in 1787. The right to keep and bear Arms was thus included as a means to accomplish the objective of a well regulated Militiato provide for the defense of the nation, to provide a well-trained and disciplined force to check federal tyranny, and to bring constitutional balance by distributing the power of the sword equally among the people, the states, and the federal government.

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Fifth Amendment | Wex Legal Dictionary / Encyclopedia | LII …

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Aug 312015
 

The Fifth Amendment of the U.S. Constitution provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure. The Framers derived the Grand Juries Clause and the Due Process Clause from the Magna Carta, dating back to 1215. Scholars consider the Fifth Amendment as capable of breaking down into the following five distinct constitutional rights: grand juries for capital crimes, a prohibition on double jeopardy, a prohibition against required self-incrimination, a guarantee that all criminal defendants will have a fair trial, and a promise that the government will not seize private property without paying market value. While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has interpreted the Fifth Amendment’s provisions as now applying to the states through the Due Process Clause of the Fourteenth Amendment.

Grand juries are a holdover from hundreds of years ago, originating during Britain’s early history. Deeply-rooted in the Anglo-American tradition, the grand jury originally served to protect the accused from overly-zealous prosecutions by the English monarchy.

Congressional statutes outline the means by which a grand jury shall be impaneled. Ordinarily, the grand jurors are selected from the pool of prospective jurors who potentially could serve on a given day in any juror capacity. At common-law, a grand jury consists of between 12 and 23 members. Because the Grand jury was derived from the common-law, courts use the common-law as a means of interpreting the Grand Jury Clause. While state legislatures may set the statutory number of grand jurors anywhere within the common-law requirement of 12 to 23, statutes setting the number outside of this range violate the Fifth Amendment. Federal law has set the federal grand jury number as falling between 16 and 23.

A person being charged with a crime that warrants a grand jury has the right to challenge members of the grand juror for partiality or bias, but these challenges differ from peremptory challenges, which a defendant has when choosing a trial jury. When a defendant makes a peremptory challenge, the judge must remove the juror without making any proof, but in the case of a grand juror challenge, the challenger must establish the cause of the challenge by meeting the same burden of proof as the establishment of any other fact would require. Grand juries possess broad authority to investigate suspected crimes. They may not, however, conduct “fishing expeditions” or hire individuals not already employed by the government to locate testimony or documents. Ultimately, grand juries may make a presentment. During a presentment the grand jury informs the court that they have a reasonable suspicion that the suspect committed a crime.

The Double Jeopardy Clause aims to protect against the harassment of an individual through successive prosecutions of the same alleged act, to ensure the significance of an acquittal, and to prevent the state from putting the defendant through the emotional, psychological, physical, and financial troubles that would accompany multiple trials for the same alleged offense. Courts have interpreted the Double Jeopardy Clause as accomplishing these goals by providing the following three distinct rights: a guarantee that a defendant will not face a second prosecution after an acquittal, a guarantee that a defendant will not face a second prosecution after a conviction, and a guarantee that a defendant will not receive multiple punishments for the same offense. Courts, however, have not interpreted the Double Jeopardy Clause as either prohibiting the state from seeking review of a sentence or restricting a sentence’s length on rehearing after a defendant’s successful appeal.

Jeopardy refers to the danger of conviction. Thus, jeopardy does not attach unless a risk of the determination of guilt exists. If some event or circumstance prompts the trial court to declare a mistrial, jeopardy has not attached if the mistrial only results in minimal delay and the government does not receive added opportunity to strengthen its case.

The Fifth Amendment protects criminal defendants from having to testify if they may incriminate themselves through the testimony. A witness may “plead the Fifth” and not answer if the witness believes answering the question may be self-incriminatory.

In the landmark Miranda v. Arizona ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. 384 U.S. 436 (1966). Therefore, any time that law enforcement takes a suspect into custody, law enforcement must make the suspect aware of all rights. Known as Miranda rights, these rights include the right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one.

If law enforcement fails to honor these safeguards, courts will often suppress any statements by the suspect as violative of the Fifth Amendment’s protection against self-incrimination, provided that the suspect has not actually waived the rights. An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events. If a suspect makes a spontaneous statement while in custody prior to being made aware of the Miranda rights, law enforcement can use the statement against the suspect, provided that police interrogation did not prompt the statement.

After Congress passed the Crime Control and Safe Streets Act, some felt that the statute by implication overruled the requirements of Miranda. Some scholars also felt that Congress constitutionally exercised its power in passing this law because they felt that Miranda represented a matter of judicial policy rather than an actual manifestation of Fifth Amendment protections. In Dickerson v. United States the U.S. Supreme Court rejected this arguments and held that the Warren Court had directly derived Miranda from the Fifth Amendment.

The guarantee of due process for all citizens requires the government to respect all rights, guarantees, and protections afforded by the U.S. Constitution and all applicable statutes before the government can deprive a person of life, liberty, or property. Due process essentially guarantees that a party will receive a fundamentally fair, orderly, and just judicial proceeding. While the Fifth Amendment only applies to the federal government, the identical text in the Fourteenth Amendment explicitly applies this due process requirement to the states as well.

Courts have come to recognize that two aspects of due process exist: procedural due process and substantive due process. Procedural due process aims to ensure fundamental fairness by guaranteeing a party the right to be heard, ensuring that the parties receive proper notification throughout the litigation, and ensures that the adjudicating court has the appropriate jurisdiction to render a judgment. Meanwhile, substantive due process has developed during the 20th century as protecting those right so fundamental as to be “implicit in the concept of ordered liberty.”

While the federal government has a constitutional right to “take” private property for public use, the Fifth Amendment’s Just Compensation Clause requires the government to pay just compensation, interpreted as market value, to the owner of the property. The U.S. Supreme Court has defined fair market value as the most probable price that a willing but unpressured buyer, fully knowledgeable of both the property’s good and bad attributes, would pay. The government does not have to pay a property owner’s attorney’s fees, however, unless a statute so provides.

In Kelo v. City of New London, the U.S. Supreme Court rendered a controversial opinion in which they held that a city could constitutionally seize private property for private commercial development. 545 U.S. 469 (2005).

See constitutional amendment.

See constitutional clauses.

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Fifth Amendment | Wex Legal Dictionary / Encyclopedia | LII …

Fourth Amendment Body Search Home Search You rights …

 Fourth Amendment  Comments Off on Fourth Amendment Body Search Home Search You rights …
Aug 302015
 

“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.”

The Fourth Amendment protection against “unreasonable searches and seizures” was adopted as a protection against the widespread invasions of privacy experienced by American colonists at the hands of the British Government. So-called “writs of assistance” gave royal officers broad discretion to conduct searches of the homes of private citizens, primarily as a way of discovering violations of strict British customs laws. This practice led to a unique awareness among our Founding Fathers of the threat to individual liberty and privacy that is created by unchecked government search powers.

Today, the Fourth Amendment has lost its preferred status among our cherished Bill of Rights Protections. In recent decades, growing concerns regarding crime and public safety in America have forced our Courts to balance the privacy rights contained in the Constitution with the ever-expanding needs of law-enforcement officers whose duty it is to investigate and arrest dangerous criminals. The Supreme Court’s rulings in Fourth Amendment cases demonstrate the challenge involved in reconciling these competing ideals.

Ultimately, the Constitution’s prohibition against unreasonable searches and seizures has been trimmed-down in recent years and tailored to suit the needs of modern law enforcement as we wage war against drugs and terrorism. For this reason, it is important for conscientious citizens to be familiar with the lawful parameters of police authority to conduct searches, as well as the legal doctrines by which that authority is limited.

The Fifth Amendment: Self-incrimination Clause

“…No person… shall be compelled in any criminal case to be a witness against himself or be deprived of life liberty or property without due process of law…”

* The Supreme Court has made a new ruling that you must tell the police officer that you will NOT talk to him, you request a lawyer and then keep your mouth shut.

The right against self-incrimination has ancient roots in common law dating back to biblical times. While most provisions of the Fifth Amendment, such as the right to a jury trial and the right against double jeopardy, impose restrictions upon our courthouses, the right against self-incrimination has a profound effect upon the behavior of law-enforcement officers as they investigate crimes. For this reason, the meaning of the self-incrimination clause has remained one of the most controversial issues in criminal procedure since the Supreme Court’s ruling in Miranda v. Arizona.

At this time, it is required by the Supreme Court that police inform all criminal suspects of their right to remain silent prior to interrogation. This right extends from the point of arrest throughout the suspect’s involvement in the criminal justice system. While many in the law-enforcement community feel that this restriction unfairly limits the ability of police and prosecutors to obtain convictions, studies have shown that conviction rates have not changed significantly since the Court first required police to inform those arrested of their right against self-incrimination.

The Sixth Amendment: Right to Counsel Clause

“In all criminal proceedings, the accused shall enjoy the right to have the assistance of counsel for his defense.”

The Sixth Amendment right to counsel is a critical component of the Bill of Rights in that it provides the accused with an advocate who is trained in the legal process and can provide a safeguard against violations of the suspect’s other Bill of Rights protections. Interestingly, it was not until 1963 that the Supreme Court held that states must provide a lawyer for all felony suspects, ending disparities in legal representation based on economic class.

Today, all person charged with a serious crime in the United States enjoy the assistance of a defense attorney regardless of economic status. State-employed public defenders represent clients who cannot afford their own attorneys, and contrary to popular belief, achieve roughly equal outcomes for their clients as do the more expensive privately-hired lawyers.

The Relationship Between Self-incrimination and the Right to Counsel

Many Americans, particularly young people, have become cynical about police practices and our legal system. It is not uncommon to lose hope when arrested or even become angry at the officer or the law he is enforcing. It is an important reality however, that our legal system does provide services for the accused. It cannot be overstated how important it is to wait for legal advice before attempting to discuss a criminal charge with police. The subtleties of the legal process require careful decisions about what to say and how to say it. A lawyer will help you prepare for tough questions and can emphasize your positive qualities to the judge, including qualities you didn’t know you had.

The constitution includes protections for criminal suspects because the legal system is incredibly complex, involving rules and regulations that everyday people would not understand. If you are charged with a crime, take advantage of the protections the constitution gives you. Don’t talk to police about what happened until you have spoken with a lawyer and discussed how to present your side of the story.

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Court Rules Illegal Aliens Have Second Amendment Rights …

 Second Amendment  Comments Off on Court Rules Illegal Aliens Have Second Amendment Rights …
Aug 272015
 

A recent decision by theU.S. Seventh Circuit Court of Appeals that says illegalalienswhat the left likes to call undocumented immigrantsenjoy a Second Amendment right to bear arms, even if their presence in this nation is criminal.

In the case of a Milwaukee man deported over a single .22 caliber cartridge, a federal appeals court ruled last week that even unlawful immigrants can be part of the public that enjoys a Second Amendment right to keep a gun for self defense.

The U.S. 7th Circuit Court of Appeas said even undocumented immigrants can be part of the people protected by the Bill of Rights, though it upheld the mans conviction on a specific law that prohibits most such persons from having guns.

It is now clear that the Second Amendment right to bear arms is no second-class entitlement, (and) we see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all noncitizens) are excluded, Judge Diane Wood wrote for a panel that included judges Richard Easterbrook and Joel Flaum.

No language in the Amendment supports such a conclusion, nor, as we have said, does a broader consideration of the Bill of Rights.

Because four other federal circuit courts have come to the opposite conclusion, legal commentators were quick to suggest the issue of whether undocumented immigrants have Second Amendment rights could now be headed for the U.S. Supreme Court.

While rejecting the idea that undocumented immigrants could never have any rights under the Second Amendment, Wood noted that even for citizens, those rights are not unlimited. She found that a federal law tailored to keep guns out of the hands of undocumented immigrants like gun restrictions imposed on felons and those convicted of domestic violence was constitutional, and upheld the conviction on those grounds.

My basic, over-riding belief on the Second Amendment is that any case involving the right to keep and bear arms should be held to the legal standard of strict scrutiny, and that all law-abiding citizens and legal resident aliens should have the right to keep and bear arms.

This case, however, is stating that criminals who arent citizens nor legal resident aliens have Second Amendment rights and Im having a hard problem with that. Im apparently not alone, as the Fourth, Fifth, and Eighth Circuit court arent buying the argument, either. The split among the courts suggests that the basic issue will head to the U.S. Supreme court at some point.

Something that makes me even more leery about this case is that the progressives at Think Progress gleefully predict that if the Seventh Circuits views hold, they could use it to win even more rights for illegal aliens. In specific, theyre hoping these illegals will get expanded First, Fourth, and Fourteenth Amendment protections if United States vs. Meza-Rodriguez holds. Put another way, theyre hoping this Second Amendment case will turn into an anchor baby that makes it more difficult to send criminal aliens back home.

Call me a butter if you want, but I dont think for a second that the Founding Fathers would support the concept of granting criminal invaders the same legal status as legal immigrants, legal resident aliens, and citizens. Lets hope that when this case makes it to the Supreme Court that the justices with the Fourth, Fifth, and Eighth circuit courts.

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Suffer The Little Children, Pennhurst State Home: Eugenics …

 Eugenics  Comments Off on Suffer The Little Children, Pennhurst State Home: Eugenics …
Aug 152015
 

Suffer The Little Children: A Peek into the History of Eugenics and Child Abuse by the State – Pennsylvania Pennhurst. (Full Documentary) The ground-breaking 1968 NBC10 Expose on Pennhurst State School by Bill Baldini. Haunting Similarities to current horrors of CPS Shelters + Group Homes (abuse, money benefits contractors, children worse off). Once called the shame of the nation, Pennhurst was the epicenter of a civil and human rights movement that changed the way the world saw people with intellectual and developmental disabilities. The atrocities of neglect at Pennhurst resulted in Supreme Court litigation that sounded the death knell for institutionalization worldwide. Pennhurst was the battleground in a monumental struggle to secure basic human rights for the last group of Americans to attain privileges assumed to be the natural freedoms of all persons. Pennhurst’s historic and beautiful campus is, like Valley Forge and Independence Mall to the east, hallowed ground in the struggle for dignity and self-determination, a western anchor to a freedom corridor, that, though stretching but a few miles, reaches all the way around the world. Pennhurst Memorial and Preservation Alliance seeks to ensure that those achievements won at Pennhurst are neither lost nor forgotten. http://www.preservepennhurst.com/defa…

PA & EUGENICS – In 1913, the legislature appointed a Commission for the Care of the Feeble-Minded which stated that the disabled were unfit for citizenship and posed a menace to the peace, and thus recommended a program of custodial care. The Commission desired to prevent the intermixing of the genes of those imprisoned w the general population. In the Biennial Report to the Legislature submitted by the Board of Trustees, Pennhurst’s Chief Physician quoted Henry H. Goddard, a leading eugenicist:- “Every feeble-minded person is a potential criminal. The general public, although more convinced today than ever before that it is a good thing to segregate the idiot or the distinct imbecile, they have not as yet been convinced as to the proper treatment of the defective delinquent, which is the brighter and more dangerous individual.”

More on Eugenics in Pennsylvania – — In 1857 the Supreme Court handed down the Dred Scott decision while it held session at Bedford Springs in Bedford, Pennsylvania. Dred Scott and his family walked into the Supreme Court as free people and walked out as slaves. Transferring authority from the parent to the state produced profound subservience and slavery into the entire culture. Millions of American families are now experiencing the very same fate as the Dred Scott family, as “family courts” and bureaucratic slave-makers are committing the very same atrocities in eugenics “kangaroo courts.” http://bedfordsprings.blogspot.com/ — Eugenics in America, Began in Bedford, Pennsylvania and Continues to Destroy through CPS Fraud, Abuse, False Accusations. http://robertscourt.blogspot.com/2009…

— Cases — PENNHURST STATE SCHOOL V. HALDERMAN, 465 U. S. 89 (1984). The Court of Appeals affirmed, holding that the MH/MR Act required the State to adopt the “least restrictive environment” approach for the care of the mentally retarded, and rejecting petitioners’ argument that the Eleventh Amendment barred a federal court from considering this pendent state law claim. The court reasoned that, since that Amendment did not bar a federal court from granting prospective injunctive relief against state officials on the basis of federal claims, citing Ex parte Young, 209 U. S. 123, the same result obtained with respect to a pendent state law claim. HELD: Eleventh Amendment prohibited the District Court from ordering state officials to conform their conduct to state law. Pp. 465 U. S. 97-124. (a) The principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III of the Constitution. The Eleventh Amendment bars a suit against state officials when the State is the real, substantial party in interest, regardless of whether the suit seeks damages or injunctive relief. The Court in Ex parte Young, supra, recognized an important exception to this general rule: a suit challenging the federal constitutionality of a state official’s action is not one against the State. Pp. 465 U. S. 97-103. http://supreme.justia.com/us/465/89/

EX PARTE YOUNG, 209 U.S. 123 (1908), Whether a state statute is unconstitutional because the penalties for its violation are so enormous that persons affected thereby are prevented from resorting to the courts for the purpose of determining the validity of the statute, and are thereby denied the equal protection of the law, and their property rendered liable to be taken without due process of law, is a Federal question and gives the Circuit Court jurisdiction. http://supreme.justia.com/us/209/123/…

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Suffer The Little Children, Pennhurst State Home: Eugenics …

Eugenics in Virginia: Buck v. Bell and Forced …

 Eugenics  Comments Off on Eugenics in Virginia: Buck v. Bell and Forced …
Aug 042015
 

Photograph of Supreme Court Justice Oliver Wendell Holmes. Courtesy of the Library of Congress. [1.1] Supreme Court Justice Oliver Wendell Holmes, Jr. in Buck v. Bell

It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind Three generations of imbeciles are enough. ~Oliver Wendell Holmes

Writing for the majority in the Supreme Courts affirmative decision of the Buck v. Bell landmark case, Oliver Wendell Holmes Jr. described Charlottesville native Carrie Buck as the probable potential parent of socially inadequate offspring, likewise afflicted stating that her welfare and that of society will be promoted by her sterilization.

Current scholarship shows that Carrie Bucks sterilization relied on a false diagnosis premised on the now discredited science of eugenics. It is likely that Carries mother, Emma Buck, was committed to a state institution because she was considered sexually promiscuous, that the same diagnosis was made about Carrie when she became an unwed mother at the age of 17 due to being raped, and that her daughter Vivian was diagnosed as not quite normal at the age of six months largely in support of the legal effort to sterilize Carrie.

2004 Claude Moore Health Sciences Library

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Eugenics in Virginia: Buck v. Bell and Forced …

The First Amendment, as others see it

 Misc  Comments Off on The First Amendment, as others see it
Aug 042015
 

5:48 p.m. CDT July 30, 2015

Gene Policinski Gene Policinski writes the First Amendment column distributed by Gannett News Service. (Gannett News Service, Sam Kittner/First Amendment Center/File)(Photo: SAM KITTNER / GNS)

Theres no doubt that a huge number of Americans are unable to name the five freedoms protected by the First Amendment national survey results each year since 1997 sadly leave little doubt about that circumstance.

On a more positive note, when reminded of the core freedoms of religion, speech, press, assembly and petition, our fellow citizens line up behind them in large numbers.

But when it comes to how those freedoms apply in everyday life? Well, its not that theres less support. Rather, less agreement.

About a month ago, the Newseum Institutes First Amendment Center published the results of its annual State of the First Amendment survey and the findings of a follow-up survey that focused on issues around display of the Confederate battle flag. The former was taken before a U.S. Supreme Court decision that allows Texas officials to ban display of the flag on state license plates, and before the killings in Charleston, South Carolina, by an apparent racist who had posed for a photo displaying the flag. The latter survey was taken after both had occurred.

In sum, the two survey results showed a shift in how the public viewed the Texas auto tag ban swinging from opposed to support. And the second survey found that while a majority of white and Hispanic respondents did not attach the same racist meaning to the flag as did black respondents, all three groups favored taking down the battle flag from public monuments and government buildings and approved of private companies removing flag-related items from store offerings.

Some interesting reactions to the reporting of those results have come via email.

In one , noted as a Letter to the Editor, in which the writer complained that the reporting, citing this column, seems to be saying that as long as a majority believes then the First Amendment does not apply. Well, thats hardly the case. Freedom of speech means that you and I and others get to say what we will regardless of majority opinion including, if we wish, public and vigorous display of the Confederate battle flag.

The First Amendment protects our right to speak, but doesnt silence others who are just as free to disagree, criticize and oppose.

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The First Amendment, as others see it

So You Think You Know the Second Amendment? – The New Yorker

 Second Amendment  Comments Off on So You Think You Know the Second Amendment? – The New Yorker
Jul 222015
 

Does the Second Amendment prevent Congress from passing gun-control laws? The question, which is suddenly pressing, in light of the reaction to the school massacre in Newtown, is rooted in politics as much as law.

For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: 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 courts had found that the first part, the militia clause, trumped the second part, the bear arms clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear armsbut did not give individuals a right to own or carry a weapon.

Enter the modern National Rifle Association. Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup dtat at the groups annual convention in 1977 brought a group of committed political conservatives to poweras part of the leading edge of the new, more rightward-leaning Republican Party. (Jill Lepore recounted this history in a recent piece for The New Yorker.) The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as a fraud.

But the N.R.A. kept pushingand theres a lesson here. Conservatives often embrace originalism, the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a living constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century. (Reva Siegel, of Yale Law School, elaborates on this point in a brilliant article.)

The re-interpretation of the Second Amendment was an elaborate and brilliantly executed political operation, inside and outside of government. Ronald Reagans election in 1980 brought a gun-rights enthusiast to the White House. At the same time, Orrin Hatch, the Utah Republican, became chairman of an important subcommittee of the Senate Judiciary Committee, and he commissioned a report that claimed to find clearand long lostproof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms. The N.R.A. began commissioning academic studies aimed at proving the same conclusion. An outr constitutional theory, rejected even by the establishment of the Republican Party, evolved, through brute political force, into the conservative conventional wisdom.

And so, eventually, this theory became the law of the land. In District of Columbia v. Heller, decided in 2008, the Supreme Court embraced the individual-rights view of the Second Amendment. It was a triumph above all for Justice Antonin Scalia, the author of the opinion, but it required him to craft a thoroughly political compromise. In the eighteenth century, militias were proto-military operations, and their members had to obtain the best military hardware of the day. But Scalia could not create, in the twenty-first century, an individual right to contemporary military weaponslike tanks and Stinger missiles. In light of this, Scalia conjured a rule that said D.C. could not ban handguns because handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

So the government cannot ban handguns, but it can ban other weaponslike, say, an assault rifleor so it appears. The full meaning of the courts Heller opinion is still up for grabs. But it is clear that the scope of the Second Amendment will be determined as much by politics as by the law. The courts will respond to public pressureas they did by moving to the right on gun control in the last thirty years. And if legislators, responding to their constituents, sense a mandate for new restrictions on guns, the courts will find a way to uphold them. The battle over gun control is not just one of individual votes in Congress, but of a continuing clash of ideas, backed by political power. In other words, the law of the Second Amendment is not settled; no law, not even the Constitution, ever is.

Photograph by Mario Tama/Getty.

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So You Think You Know the Second Amendment? – The New Yorker

First Amendment to the United States Constitution …

 First Amendment  Comments Off on First Amendment to the United States Constitution …
Jul 022015
 

Thomas Jefferson wrote with respect to the First Amendment and its restriction on the legislative branch of the federal government in an 1802 letter to the Danbury Baptists (a religious minority concerned about the dominant position of the Congregationalist church in Connecticut):

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.[9]

In Reynolds v. United States (1878) the Supreme Court used these words to declare that “it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach [only those religious] actions which were in violation of social duties or subversive of good order.” Quoting from Jefferson’s Virginia Statute for Religious Freedom the court stated further in Reynolds:

In the preamble of this act […] religious freedom is defined; and after a recital ‘that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,’ it is declared ‘that it is time enough for the rightful purposes of civil government for its officers to interfere [only] when [religious] principles break out into overt acts against peace and good order.’ In these two sentences is found the true distinction between what properly belongs to the church and what to the State.

Originally, the First Amendment applied only to the federal government, and some states continued official state religions after ratification. Massachusetts, for example, was officially Congregationalist until the 1830s.[10] In Everson v. Board of Education (1947), the U.S. Supreme Court incorporated the Establishment Clause (i.e., made it apply against the states). In the majority decision, Justice Hugo Black wrote:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another … in the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’ … That wall must be kept high and impregnable. We could not approve the slightest breach.[11]

In Torcaso v. Watkins (1961), the Supreme Court ruled that the Constitution prohibits states and the federal government from requiring any kind of religious test for public office. In the Board of Education of Kiryas Joel Village School District v. Grumet (1994),[12] Justice David Souter, writing for the majority, concluded that “government should not prefer one religion to another, or religion to irreligion.”[13] In a series of cases in the first decade of the 2000sVan Orden v. Perry (2005), McCreary County v. ACLU (2005), and Salazar v. Buono (2010)the Court considered the issue of religious monuments on federal lands without reaching a majority reasoning on the subject.[14]

Everson used the metaphor of a wall of separation between church and state, derived from the correspondence of President Thomas Jefferson. It had been long established in the decisions of the Supreme Court, beginning with Reynolds v. United States in 1879, when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite, who consulted the historian George Bancroft, also discussed at some length the Memorial and Remonstrance against Religious Assessments by James Madison, who drafted the First Amendment; Madison used the metaphor of a “great barrier.”[15]

Justice Hugo Black adopted Jefferson’s words in the voice of the Court.[16] The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in Does God Make a Difference?, characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be “less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities.”[17]

Beginning with Everson, which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. Everson laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important. In the school prayer cases of the early 1960s, (Engel v. Vitale and Abington School District v. Schempp), aid seemed irrelevant; the Court ruled on the basis that a legitimate action both served a secular purpose and did not primarily assist religion. In Walz v. Tax Commission (1970), the Court ruled that a legitimate action could not entangle government with religion; in Lemon v. Kurtzman (1971), these points were combined into the Lemon test, declaring that an action was an establishment if:[18]

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First Amendment to the United States Constitution …

Fifth Amendment | United States Constitution | Britannica.com

 Fifth Amendment  Comments Off on Fifth Amendment | United States Constitution | Britannica.com
Jun 222015
 

Fifth Amendment,amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces or in the Militia, when in actual service in time of War or public danger. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

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Government Explains Away Fourth Amendment Protection for …

 Fourth Amendment  Comments Off on Government Explains Away Fourth Amendment Protection for …
Jun 092015
 

People have a reasonable expectation of privacy in their private digital communications such as email, and therefore the Fourth Amendment protects those communications. It’s a simple extension of the Supreme Courts seminal 1967 ruling in Katz v. United States that the Fourth Amendment protected a telephone conversation held in a closed phone booth. But in a brief recently filed in a criminal terrorism case arising from surveillance of a United States citizen, the government needs only a few sentences to argue this basic protection doesnt apply, with potentially dramatic consequences for the rest of us.

United States v. Mohamud

Mohamed Mohamud is a Somalia-born naturalized U.S. citizen who was convicted in 2012 of plotting to detonate a car bomb at a Christmas tree lighting ceremony in Oregon. Shortly after he was arrested, he was given notice by the government that it had used evidence obtained under the Foreign Intelligence Surveillance Act (FISA) against him.

But it wasnt until after Mohamud was convicted and just a few weeks before he was to be sentenced that the government belatedly gave him notice for the first time that it had also used evidence derived under Section 702 of the FISA Amendments Act (FAA). The government continues to withhold the details of the FAA surveillance, forcing Mohamud (and other defendants receiving delayed FAA notice) to raise generalized challenges to the constitutionality of the FAA based only on what is publicly known about Section 702 surveillance. Mohamud did exactly that in April, raising several legal challenges to the FAA and arguing he should receive a new trial.

The Governments Talking to a Foreigner Exception to the Fourth Amendment

While theres a lot unknown about Section 702 surveillance, we do know it authorizes the targeting of foreigners even when this targeting results in the incidental collection of constitutionally protected Americans communications. As a result, the government can acquire the contents of Americans e-mails, VOIP calls, chat sessions, and more when they communicate with people outside the US.

In its recently filed response to Mohamuds motion to suppress and for new trial, the government concedes for the sake of argument that an American whose communications are incidentally collected as part of Section 702 surveillance has constitutional interests at stake. So far so good; these constitutional interests are in fact at the core of what the Supreme Court describes as the Fourth Amendments protection of the privacy and security of individuals against arbitrary invasions by governmental officials. But then the government dismisses this fundamental protection with one staggeringly broad passage:

The Supreme Court has long held that when one person voluntarily discloses information to another, the first person loses any cognizable interest under the Fourth Amendment in what the second person does with the information. . . . For Fourth Amendment purposes, the same principle applies whether the recipient intentionally makes the information public or stores it in a place subject to a government search. Thus, once a non-U.S. person located outside the United States receives information, the sender loses any cognizable Fourth Amendment rights with respect to that information. That is true even if the sender is a U.S. person protected by the Fourth Amendment, because he assumes the risk that the foreign recipient will give the information to others, leave the information freely accessible to others, or that the U.S. government (or a foreign government) will obtain the information.

It is true that individuals assume the risk that the people they communicate with will turn over a recording to the government. So, for example, in the cases the government cites in the passage above, United States v. White and Hoffa v. United States, the Supreme Court found there is no Fourth Amendment violation if you have a private conversation with someone who happens to be a government informant and repeats what you said to the government or even surreptitiously records it. In those instances, individuals misplaced confidence that people they are communicating with wont divulge their secrets is not enough to create a Fourth Amendment interest.

But the government stretches these cases far beyond their limits, arguing that its own incidental collection of an Americans communications while targeting a foreigner is the same as having that person repeat what the American said to the government directly, even though it is the government that is eavesdropping on the conversation. In essence, when you communicate with someone whose communications are being targeted under the FAA, you have no Fourth Amendment rights. Under this reasoning, any time you send an email to someone in another country, you assume the risk that your intended recipient may be a foreigner and that the government can obtain the contents of the email without a warrant.

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Government Explains Away Fourth Amendment Protection for …

Decision to throw out suit affirmed

 Fourth Amendment  Comments Off on Decision to throw out suit affirmed
Apr 112015
 

A panel of appellate judges disagreed Thursday about whether an Arkansas prison inmate was entitled to a hearing on his complaint that a visual body-cavity inspection by prison guards violated his Fourth Amendment rights.

Two members of the three-judge panel agreed with U.S. District Judge D. Price Marshall Jr.’s decision to dismiss the handwritten, pro-se lawsuit on the grounds that the allegations “failed to rise to a constitutional violation.”

But Judge Kermit Bye of Fargo, N.D., disagreed with his fellow panelists at the 8th U.S. Circuit Court of Appeals in St. Louis, writing in a partial dissent that he thinks Marshall should have conducted a “balancing test” to weigh the need for the search against an invasion of inmate Kendrick C. Story’s personal rights.

“Despite broad rights of correctional officers to search prisoners, there are limits on when strip searches are appropriate,” Bye wrote, citing previous 8th Circuit rulings. In those rulings, the appellate court said district judges may consider less-invasive techniques in deciding whether a strip search was reasonable, found it relevant that a strip search was conducted in a private bathroom, and held that strip searches should be conducted as far from public view as possible without compromising security concerns, in a manner that isn’t degrading or humiliating.

In his lawsuit, Story said he was returning to the Williams Correctional Facility from a school at the Pine Bluff unit on April 16, 2013, when officers at the gate told him to remove his clothes, lift his genitals, and bend over and spread his buttocks for a visual body-cavity search. He complained that the search took place in front of other inmates and in view of two security cameras, and that female guards watched through a video feed from cameras in the master control room.

Marshall dismissed the case on July 30, 2013.

U.S. Circuit Judges Steven M. Colloton of Des Moines, Iowa, and Raymond W. Gruender of St. Louis said in their majority ruling affirming the dismissal that the prison guards were entitled to qualified immunity, making it “unnecessary and inefficient” to even consider whether there was a constitutional violation.

“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law,” the majority opinion said, citing a 2013 ruling.

The majority also said that the U.S. Supreme Court “never has resolved whether convicted inmates retain a Fourth Amendment right against unreasonable searches while in custody,” although it has said it didn’t apply to a search of a prison cell because of “the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order.”

The 7th U.S. Circuit Court of Appeals, based in Chicago, has said inmates retain no rights under the Fourth Amendment regarding visual inspections by guards, but the 8th Circuit has said inmates are entitled to Fourth Amendment protections against unreasonable searches of their bodies, the majority opinion noted.

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Supreme Court in India upholds free speech on internet, scraps Section 66A of IT Act – Video

 Free Speech  Comments Off on Supreme Court in India upholds free speech on internet, scraps Section 66A of IT Act – Video
Apr 112015
 



Supreme Court in India upholds free speech on internet, scraps Section 66A of IT Act
Supreme Court in India on March 24, 2015 upholds free speech on internet, scraps 'unconstitutional' Section 66A of IT Act. The controversial cyber law that gave police sweeping powers to arrest…

By: Ravi Pradhan

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Supreme Court in India upholds free speech on internet, scraps Section 66A of IT Act – Video

Religious Freedom Debates Make Evangelicals More Tolerant, Study Finds

 Free Speech  Comments Off on Religious Freedom Debates Make Evangelicals More Tolerant, Study Finds
Apr 112015
 

April 10, 2015|4:46 pm

Protesters against U.S. President Barack Obama’s health care overhaul gather outside the Supreme Court in Washington, June 28, 2012. The Supreme Court is set to deliver on Thursday its ruling on President Barack Obama’s 2010 healthcare overhaul, his signature domestic policy achievement, in a historic case that could hand him a huge triumph or a stinging rebuke just over four months before he seeks re-election.

When Evangelicals are exposed to arguments defending their own free speech and religious freedom, they become more accepting of extending similar rights to their political foes, a new study found.

“Rights, Reflection, and Reciprocity: How Rights Talk Affects the Political Process,” by political scientists Paul Djupe, Denison University; Andrew Lewis, University of Cincinnati; and Ted Jelen, University of Nevada-Las Vegas, will be presented this month at the Midwest Political Science Association’s annual meeting in Chicago.

The researchers sought to understand if the recent culture war battles between sexual freedom and religious freedom (see, for example, here, hereand here) would lead to greater or lesser division and intolerance among the combatants. (This paper focuses on the conservative side but they suggest they will also be studying the liberal side.)

In an article for the political science blog The Monkey Cage, the authors explain that their research “has identified a fascinating silver lining [to those culture war battles]. We find that evangelical Christians who are exposed to claims about religious rights actually become more willing to extend First Amendment rights to their ideological opponents. That is, the campaign to reinforce religious liberty might actually increase political tolerance in the long run.”

(Photo: The Christian Post/Sonny Hong)

Paul Djupe, associate professor of political science at Denison University, presenting “The Choice That Matters: Politics in the Role of Leaving Congregations,” at the American Political Science Association Annual Meeting, Washington, D.C., Aug. 30, 2014.

The study used a survey experiment. A sample of 2,141 respondents, including 274 Evangelicals and 1,867 non-Evangelicals, were divided into groups exposed to different messages from hypothetical political candidates and clergy. These messages were about pro-life protestors, the Obama administration’s birth control mandate, teaching creationism, and a photographer declining to work at a same-sex wedding. Each group had messages based upon either morality, free speech, religious liberty, and a less specific message that was used as the control group. The study also used a number of control measures that are common in studies of tolerance education, ideology, political interest, gender, age, and democratic norms.

The respondents were also asked to identify which groups they either “like the least” or “disagree with the most” from among these options: immigrants, Tea Party members, Muslims, homosexuals, Christian fundamentalists, or atheists. For the full sample, the non-Evangelicals chose Christian fundamentalists as their least liked group, followed by the Tea Party. Evangelicals chose atheists as their least liked group, followed by Muslims and the Tea Party.

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Religious Freedom Debates Make Evangelicals More Tolerant, Study Finds

Free speech advocate addresses Bentonville students

 Free Speech  Comments Off on Free speech advocate addresses Bentonville students
Apr 112015
 

BENTONVILLE — Mary Beth Tinker told Bentonville High School students she was “really scared and nervous” when she wore a black armband to her school nearly 50 years ago, touching off a controversy leading to a landmark Supreme Court case.

More than 1,000 students filled the school’s Arend Arts Center on Wednesday to hear Tinker speak about her experience and her passion for free-speech rights. Haven Brown, a senior, interviewed Tinker on stage before the audience was allowed to ask her questions.

Tinker was 13 years old in December 1965 when her brother and their friend decided to wear black armbands to school to mourn those killed in the Vietnam War and to support Robert F. Kennedy’s call for a Christmas truce. They lived in Iowa at the time.

“I was kind of shy and I wasn’t sure I was going to do it because I didn’t want to get in trouble,” Tinker said.

A vice principal told her to remove her armband, and Tinker did. She was suspended anyway, as was a small group of other students who wore armbands.

The U.S. Supreme Court eventually heard the students’ case, and in 1969 ruled 7-2 in the students’ favor, saying their form of protest was protected by the U.S. Constitution’s First Amendment. That ruling is officially known as Tinker v. Independent Community School District No. 21.

Tinker told students she didn’t realize what a big case it was until she saw it cited years later in one of her nursing school textbooks.

Tinker said she and her family were the target of hate when news spread about the suspensions.

“People were calling us Communists,” Tinker said. “And my mother said, ‘We’re not Communists, we’re Methodists.'”

The School District’s argument for suspending the students was they were causing a disruption with their armbands, Tinker said.

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Free speech advocate addresses Bentonville students

Senate gives preliminary OK to call for constitutional convention

 Misc  Comments Off on Senate gives preliminary OK to call for constitutional convention
Apr 082015
 

After a vigorous debate over the scope of the First Amendment and whether corporations should have the same rights as people, the Maryland Senate gave preliminary approval Tuesday to ajoint resolution calling for a national constitutional convention to deal with the issueof money in politics.

Senators moved the joint resolution toward a final vote after rejecting several Republican amendmentson votes that showed the measure likely has more than enough votes to pass. It would still have to get through the House by next Monday to go into effect.

According to the liberal group Progressive Maryland, Maryland would join four other Democratic-leaning states that have issued a call for the a convention to deal with such Supreme Court rulings as the Citizens United decision in which justices extended the same political contribution rights to corporations as held by individuals.

While the U.S. Constitution provides a mechanism for convening a convention, it requires two-thirds of the state legislatures to issue such a call for the same purpose. With the bar set that high, there has been no constitutional convention since 1787.

Proponents said such a resolutionis needed to pressureCongress to deal with the growing influence of money in politics before it stifles democracy. But opponents warned against calling a convention that could narrow the First Amendment and rewrite the Constitutionin ways that couldn’t be predicted.

Fred Wertheimer, a veteran advocate of campaign finance reform, weighed in late Tuesday with a warning that Maryland lawmakers were heading in the wrong direction. Wertheimer, a former president of Common Cause who now heads the group Democracy 21, pointed to comments by Supreme Court justices that nothing could restrict what a convention might do once one was convened.

“The call of a convention would place all of the constitutional rights of individuals up for grabs: protections for civil rights, freedom of religion, freedom of speech, voting, privacy and many others,” he said. “Also up for grabs would be the role of the courts in protecting the rights of individuals and minority interests.”

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Senate gives preliminary OK to call for constitutional convention

Indiana, Arkansas, and other 'religious freedom' laws: Trouble for the GOP

 Freedom  Comments Off on Indiana, Arkansas, and other 'religious freedom' laws: Trouble for the GOP
Apr 052015
 

The governors of Indiana and Arkansas Republicans Mike Pence and Asa Hutchinson likely are spending Easter weekend wondering what they might have done to avert the adverse political wave that rolled them over this past week.

It was worse for Indianas Gov. Pence, who had to backtrack on the Religious Freedom Restoration Act hed just signed, calling on state legislators to clarify the law so that it no longer so obviously allowed for discrimination of gays and lesbians.

Arkansas Gov. Hutchinson, learning from Pences experience, quickly said hed veto that states RFRA bill unless lawmakers wrote in that same clarification. That his own son had signed a petition against the bill no doubt got his attention.

“The issue has become divisive because our nation remains split on how to balance the diversity of our culture with the traditions and firmly held religious convictions,” Hutchison said at a press conference. “It has divided families, and there is clearly a generational gap on this issue. My son Seth signed the petition asking me, Dad, the governor, to veto this bill.”

That generational gap was a clear point former California governor Arnold Schwarzenegger made Friday in a Washington Post op-ed column excoriating his own Republican Party on the issue.

“As an American, Im incredibly concerned aboutwhat happened in Indiana this weekand thethreat of similar lawsbeing passed in other states, Mr. Schwarzenegger wrote. As a Republican, Im furious.

I know plenty of Republicans who are sensible and driven to solve problems for America. They believe in Reagans vision of a big tent where everyone is welcome. This message isnt for them, he wrote. It is for Republicans who choose the politics of division over policies that improve the lives of all of us. It is for Republicans who have decided to neglect the next generation of voters. It is for Republicans who are fighting for laws that fly in the face of equality and freedom.

“There are so many real problems that need solving. But distracting, divisive laws like the one Indiana initially passed arent just bad for the country, theyre also bad for our party, Schwarzenegger continued.In California, the GOP has seen the danger of focusing on the wrong issues. In 2007, Republicans made up nearly 35 percent of our registered voters. By 2009, ourshare droppedto 31 percent, andtoday, it is a measly 28 percent. That sharp drop started just after the divisive battle over Proposition 8 [which banned same-sex marriage]. Maybe thats a coincidence, but there is no question that our party is losing touch with our voters, especially with the younger ones who are growing the registration rolls.

(In 2013, the United States Supreme Court effectively killed Prop. 8.)

The struggle to balance religious freedoms with civil and personal rights continues in other states, where local and national businesses have become major players.

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Backlash against religious freedom laws helps gay rights in Indiana, Arkansas

 Freedom  Comments Off on Backlash against religious freedom laws helps gay rights in Indiana, Arkansas
Apr 052015
 

What began 20 years ago as a bipartisan drive to protect the rights of people to follow their faith against an overbearing government erupted this week into a divisive dispute over gay rights and religious freedom.

And the fracture can be traced back to two recent moves by the Supreme Court that set up an unusual legal crosscurrent between liberals and conservatives.

By overturning a key provision of the federal Defense of Marriage Act in 2013, the court set in motion a string of rulings across the nation that voided state laws banning same-sex marriage. By this June, a majority of justices is widely expected to legalize gay marriage nationwide.

At the same time, the Supreme Court ruled in another case last year that the family owners of the Hobby Lobby craft-store chain had a religious-liberty right to refuse to offer contraception coverage for its employees.

So while the marriage ruling opened the door for expanded protections for gays and lesbians, the Hobby Lobby decision offered new tools for those opposed to such moves.

Conservatives applauded the 5-4 Hobby Lobby ruling, which was based on the Religious Freedom Restoration Act signed by President Clinton in 1993. The law originally aimed to protect the Amish, Native Americans and others whose religious practices ran afoul of local or state laws says the “government shall not substantially burden a person’s exercise of religion.”

But the court’s conservative majority defined “person” to include profit-making companies. Justice Ruth Bader Ginsburg, speaking for the liberal dissenters, called it a “decision of startling breadth” that gives “commercial enterprises, including corporations” a right to ignore laws that conflict with their owners’ religious views.

Armed with the Hobby Lobby ruling and concerned that their statewide bans against same-sex marriage were in danger, conservative lawmakers in Indiana, Arkansas and other states adopted their own versions of the federal religious-freedom law.

Some conservatives hoped the 1993 law would protect religious-minded individuals and businesses from legal mandates on gay marriage that they said would violate their faith. The most commonly cited example was a religious baker who did not want to be forced to make a cake for a gay wedding.

Using the Hobby Lobby precedent, some states broadened the scope of the federal religious-liberty law which dealt with conflicts between the government and individuals and defined a protected person to include a business, company or corporation. That small change created a large concern.

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Backlash against religious freedom laws helps gay rights in Indiana, Arkansas




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