B After The Fact

Wednesday, May 20, 2009

Dred Scott and Guns

I am writing this as a draft, since I don't have the time, or the heart really, to go back and check my facts, but I am pretty certain they are right.

This is also a follow-up to my previous post, although not the one I intended to write, which would have been about torture.

Last year, the Supreme Court ruled that the Second Amendment right to keep and bear arms was an individual right. (The opposing point of view was that any individual right under the 2nd Amendment derived from the state's right to organize a militia, and therefore could be completely controlled by the state). As a result, the Court struck down D.C.'s blanket prohibition against individuals owning handguns. However, the Court was careful to point out that the state had the right to make restrictions on the right to hold guns, although it is not clear what those restrictions would look like.

Now, as a rider to a credit card bill, the Congress has approved a bill allowing people to carry concealed weapons in National Parks. Bush enacted a regulation to this effect in the last days of its administration, and Obama rescinded it when he came to office.

The Congress overwhelmingly passed this bill, and the passage was bipartisan. There is no indication that the President is inclined to veto his own credit card bill over this gun rider.

Proponents of the gun bill say that they merely want to assure that citizens who are passing through national parks on their travels from point A -- where guns are legal under local law --to point B -- where guns are legal under local law --- do not get jammed in the park.

This is the same argument that the slave owners made in the Dred Scott decision. Just because a slaveowner found himself in Federal territory on the way from one slave state to the other does not mean that he should be forced to give up his slave. Even if the slaveowner found himself in Federal territory for years on end.

The Dred Scott Supreme Court ruled that Congress had no right to restrict slaves in Federal territories.

The current Congress is passing a law on the same basis -- that Congress should not be restricting the 2nd Amendment to keep and bear arms --- in Federal territories.

Abraham Lincoln, in his "House Divided" speech, made the point that once Congress is banned from from acting in Federal territories, the jump banning the states from acting for themselves, is very small.

Lincoln was worried that the Taney Supreme Court would eventually make a ruling barring the states from banning slaves. The Supreme Court would say that the states had no right to force the citizens of one state to surrender their rights when they travel to another state.

I am worried that the Roberts Supreme Court would bar the states from banning guns on a similar rationale.

Mostly, I am just very very angry that I may not be able to spend any more time in Acadia National Park or on the Jacob Riis National Seashore.

Tuesday, May 19, 2009

How To Make The Unthinkable More Palatable -- One View

“Lincoln’s ever-repeated theme throughout the [Lincoln-Douglas] debates was that in a popular government, statutes and decisions are rendered possible or impossible of execution by public sentiment. It is in reference to such sentiment that legislatures and courts determine awhat they may and may not attempt. Lincoln did not believe that Taney’s court would have had either the incentive or the temerity to pronounce the [Dred Scott] decision of 1857 in 1854.

“First the Missouri Compromise had to be repealed;

“Second the doctrine of popular sovereignty, so called, erected into a campaign plank and an election carried under that obscure banner.

“Next, the people had to be taught, that in reelecting Democrats to office, they had had endorsed the constitutional opinion which had repealed the congressional power to restrict slavery in the territories as somehow improper, if not positively unlawful.

“Only when the idea of moral objectionableness of slavery, an idea enshrined in the Missouri Compromise, as it had been earlier enshrined in the Northwest Ordinance, had been replaced by the idea of moral indifference of slavery could the Court have attempted what it did attempt. Only as the Kansas-Nebraska Act, and the party strategy which utilized it to change public sentiment, had in a measure succeeded was the Dred Scott decision deemed possible of execution and worth attempting.

“It was Lincoln’s contention, therefore, that if the Dred Scott decision could receive the endorsement at the polls which the Kansas-Nebraska Act had received – or, it should be said, of such an appearance of endorsement as Douglas and Buchanan claimed for it from the results of the 1856 elections – then still further revolutions might well be in store ….

“Once the idea of the sacrosanct character of property in slaves was firmly established, then indeed there might be another decision, which declared that no state had the power to prohibit slavery. Such a decision might appear intolerable and unenforceable now, Lincoln conceded. But did it appear more intolerable and unenforceable than the decision denying Congress the right to prohibit slavery in the territories would have appeared to Jefferson, Washington, Madison, either of the Adamses, or Monroe?”

Harry V. Jaffa –Crisis of the House Divided -- The University of Chicago Press (1959, 1982). Pages 286-287

Monday, May 18, 2009

Rick Perry backs down -- sort of

Rick Perry gives aid and comfort to insurrection and rebellion in violation of the 14th Amendment (see footnotes below.

"We've got a great union. There's absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that."

Perry backs away.

"I can't say I was surprised that critics recast my defense of federalism and fiscal discipline into advocacy for secession from the Union. I have never advocated for secession and never will."

Hendrick Hertzberg , Josh Marshall , and Ed Kilgore , remind us that Governor Perry is far from alone.


U.S. Constitution --- Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

U.S Constitution --- Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. …

…Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. …

Thursday, May 07, 2009

"We're Americans -- We Don't Need No Stinkin' Laws"

Jon Chait has a little think piece in the New Republic entitled Tortured Logic . He complains a little about why Republicans say that the rule of law applies to one President's sex life, but not to another President's torture policies.

I responded on-line, like a good Fox commentator, by raising an issue I know absolutely nothing about.

"I don't really watch 24, but my understanding is that Jack Bauer is someone who the President knows personally. I think that is an important point that is never brought up. If the President really had a handful of people (literally 10 or less) who engage in torture on behalf of truth, justice and the American way, then the President would be able to use the pardon power on the grounds of their extraordinary service to the nation. These 10 (do you even need 10) would work on the rare occasions where torture might be justified on some morally ambiguous basis. But that really was not or is not what the Republicans ever had in mind."

"Regarding the first part of your excellent essay, I believe the Republicans believe that if you are a certain sort of person worshipping a certain kind of God living in a certain part of the country, then you don't need the law to tell you what you need to do. But everyone else does."

Monday, May 04, 2009

Some More Random Comments and Footnotes on the times leading up to Secession

"I have no apologies to make for having one week been a member of the American Party; for I think native-born citizens of the United States should have as much protection, as many privileges in the their home native country, as those who voluntarily select it for a home. But all secret, oath-bound political parties are dangerous to any nation, no matter how pure or patriotic the motives or principles which first bring them together. No political party can or ought to exist when one of its corner-stones is opposition to freedom of thought and to the right to worship God "according to the dictate of one's own conscience," or according to the creed of any religious denomination whatever. Nevertheless, if a sect sets up its laws as binding above the State laws, wherever the two come in conflict this claim must be resisted and suppressed at whatever cost."

Personal Memoirs of Ulysses S. Grant, Chapter XVI (1885, reflecting on 1856). In this passage, Grant goes on to say that he voted for the Democrat, Buchanan, over the Republican, Fremont in the Election of 1856 (the first election where there was a Republican Party), because Grant, like so many others, feared the threat of secession from the South. The American Party candidate, former President Millard Fillmore, won only one state, Maryland, but was a major factor in the election.


The following quote is from Stephen A. Douglas and he made it in the first Lincoln-Douglas debate in 1858. Douglas made similar quotes in several of the debates. Thanks to quotes like these, Douglas was not considered conservative enough to run as the Democratic Presidential candidate, even though Douglas managed, and had an income interest in, a plantation in Mississippi. However, Douglas believed that people had the power to vote on whether or not slavery should be legal in their own neighborhoods. This liberal apostasy became too much for the South to bear.

[When revisionist historians try to paint Lincoln as a racist (as if there is only one flavor of racist), it is best to remember that Lincoln was a professional politician, running against people like Douglas. Douglas was a mainstream Northern politician. Lincoln, of course, lost the Senate election to Douglas.]

Anyway, the Douglas quote --

"I believe this Government was made on the white basis. I believe it was made by white men, for the benefit of white men and their posterity forever, and I am in favor of confining citizenship to white men, men of European birth and descent, instead of conferring it upon negroes, Indians, and other inferior races.

"Mr. Lincoln, following the example and lead of all the little Abolition orators, who go around and lecture in the basements of schools and churches, reads from the Declaration of Independence that all men were created equal, and then asks, How can you deprive a negro of the equality which God and the Declaration of Independence awards to him? He and they maintain that negro equality is guaranteed by the laws of God, and that it is asserted in the Declaration of Independence. If they think so, of course they have a right to say so, and so vote. I do not question Mr. Lincoln’s conscientious belief that the negro was made his equal, and hence is his brother; but for my own part, I do not regard the negro as my equal, and positively deny that he is my brother, or any kin to me whatever."


I have the slightly off-beat opinion that a main reason the South left the Union is that the South, not the North, created a strong Federal government, even back then, 150 years ago. They created it, in large measure, to protect slavery, and they created it on the belief that that they set things up so that the South would never lose a major election. Then, the South lost an election.

In this view, States Rights meant that the Declaration of Independence, and the provisions of the U.S. Constitution that refer to "We, The People" were not relevant. In this view, the United States in 1860 was a Confederacy of States, and States Rights meant that what the states wanted and needed was the most important thing that the Federal government was supposed to worry about.

And some states wanted and needed slavery.