Wednesday, September 30, 2009

The Seventh Amendment

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"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

Common law was thousands of years worth of laws established in Britain by judges who set precedence from their decisions in trials throughout the years. Today, these type of suits are more commonly known as civil suits. I'm sure, in the time of the Seventh Amendment's author, that twenty dollar suits weren't as frequent as they are today. Quite honestly, I doubt there is one lawyer in America today that would take a case less than twenty dollars.

So, in civil suits where either sides sues for more than twenty dollars, this amendment requires said suits to be tried before a jury. It also protects from double jeopardy in civil suits in saying that nothing decided by a jury can be re-tried and decided upon again in any court, except according to the precedence of common law, which, as far as I know, allows for an appeal to an appeals court and then another one to the supreme court, be it on either the state or the federal level. It's a very comprehensive amendment for being so short.
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Brian Wojtalewicz: Would you disregard victims of real medical malpractice?

Last update: September 24, 2009 - 7:41 PM
The so-called medical malpractice "reformers" are intent on slamming the door of justice in the face of families like Matthew Kuttner's. He was only 3 when his parents entrusted him to their local hospital and an ear, nose and throat specialist for a routine tonsillectomy. He died on the operating table. The doctor failed to keep track of and remove pieces of excised tissue, which went into the toddler's lungs and slowly suffocated him. The hospital attendant Matthew was left with failed to appropriately react to the distress signs.
Jurors in Minnesota's conservative Goodhue County heard evidence from experts on both sides and found that the doctor and attendant failed to use the care recognized as standard. They set $1.8 million as justice for Matthew's family.
Would a politician have the guts to walk into that courtroom, look into the eyes of those jurors and the Kuttner family, and tell them that they were wrong -- that justice should be no more than $250,000? Would he or she dare to tell them that politicians in Washington know better, even without hearing and seeing the evidence, because of their talks with insurance lobbyists (who have donated millions in campaign contributions)?
Imagine yourself as Linda McDougal, lying in a hospital bed in St. Paul after both of your breasts were surgically removed. Imagine being told by a doctor that it was all a mistake -- you never really had breast cancer.
No, you really can't imagine it -- which is why the campaign of the tort reformers has found fertile ground in our society.
Insurance lobbyists and many politicians, mostly Republicans, are trying to establish law that tells citizens like Linda that the insurance corporation for the negligent doctor will pay her no more than $250,000 for her pain and emotional distress.
Try putting yourself into the body of the 20-year-old first-time expectant mother for whom I did a trial in St. Cloud a couple of years ago. At an early checkup with the doctor on her pregnancy, a colposcopy was recommended. In that procedure, the cervix is coated with a 4 percent acidic solution, and certain infections will appear when viewed with a colposcope by the doctor. The doctor, the hospital lab and the registered nurse screwed up, using a 100 percent acidic solution and continuing with the procedure despite the woman's pleas to stop. They thought she was just a hypersensitive type.
A jury in conservative Stearns County saw the photographs and rendered a verdict of $400,000. People like U.S. Rep. Michele Bachmann, whose district this young lady lived in, are essentially saying that they know better and that people like young mothers should be limited to $250,000.
Insurance and other large corporations, along with such politicians, have propagandized the claim that big verdicts are the cause of skyrocketing health care costs. This claim has been debunked by a number of studies. One is "Falling Claims and Rising Premiums in the Medical Malpractice Insurance Industry," commissioned by the Center for Justice & Democracy. It finds that "doctors have been unnecessarily price-gouged for several years as insurance industry surpluses have ballooned to unprecedented levels."
Not only would caps on damages be cruel to those most badly harmed by malpractice, they simply don't lower premiums for doctors. The October 2008 issue of the Medical Liability Monitor (a medical-insurance journal) showed that the average premium for Minnesota's internists, general surgeons and OB/GYN specialists is the second lowest among all the states. Similar doctors in California, which has had a $250,000 medical liability cap for years, pay more than three times the premium a Minnesota doctor pays. Texas also has a $250,000 cap, and its doctors pay more than four times what a Minnesota doctor pays in malpractice premiums. Minnesota has no cap on damages, preferring to let a jury of citizens decide. Get the picture?

I chose this article because it deals with the juries that are required by the Seventh Amendment in civil suits.




I chose this video, obviously, because it talks directly about the Seventh Amendment, and translates into contemporary English for easier understanding.

Monday, September 28, 2009

The Sixth Amendment

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"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

This amendment provides a person convicted of a crime with the "right to a speedy and public trial" by a jury of his/her peers selected only from the population residing within the district, which has already been officially recorded and passed as law, that the crime was committed. This also grants said person the right to know exactly what he/she is being accused of, and the reason prompting the accusation. This said person also has the right hear hear a true witness testify against him/her, and be allowed to obtain witnesses to testify in his/her defense. All citizens convicted of a crime and prosecuted in criminal court are guaranteed the Assistance of Counsel in his/her defense.

I'm not sure what the founding fathers meant by "speedy"... Perhaps their only intent was to prevent any intentional delay of a trial. Yes, many modern day trials are still quite speedy, such as the ones you might see on TV. In fact, the trials themselves are actually quite fast. However, the time between the opening of a case to the time trial begins could be months or even several years depending on the depth of the litigation (most litigation is done outside the court room. Trial is pretty much just a formal ceremony to present what has already been done to a jury) and schedule of the court.

I wasn't aware that at least one witness has to be present for a criminal trial. It just makes me question whether or not there has ever been a criminal case with no witness testimony in the history of American law.

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Supreme Court upholds conviction of South Bend molester

By ALICIA GALLEGOS, Tribune Staff Writer


SOUTH BEND — A majority of Indiana Supreme Court justices have ruled against a convicted child molester who claimed evidence presented in his case violated his Sixth Amendment rights.

The decision comes on the heels of a recent controversial Supreme Court case that ruled lab technicians must appear in court, rather than send affidavits only.

The local case centers on 40-year-old Richard Pendergrass, of South Bend, who was convicted of child molesting in 2007 for impregnating a female relative.

A doctor determined the 13-year-old victim was pregnant after she became ill at school, according to court documents. The girl revealed to her mother that Pendergrass was the father and that the abuse started when she was 11. Shortly afterward, the teen had an abortion.
 
An investigation led to the aborted fetus being sent for DNA testing, according to court documents, and examinations found that Pendergrass had a 99.9999 chance of being the aborted fetus’ father.
But during Pendergrass’ trial, he objected to the court admitting documents detailing the DNA analysis, insisting that without the actual lab technicians, the paperwork was hearsay.

The protest related to the recent ruling of Melendez-Diaz v. Massachusetts, a case in which drug affidavits deeming a substance to be cocaine were ruled as insufficient evidence. Instead, the historic case ordered lab technicians be in court to back up their claims and be present for cross-examination.

In the Pendergrass case, the prosecution did present live testimony from two lab experts, one who supervised the lab that conducted the report and another who had specific knowledge of DNA.
But Pendergrass argued the actual lab tech should have testified.

In their 11-page ruling, three of five justices found that Pendergrass had the chance to confront witnesses who were directly involved in the analysis, unlike the Melendez-Diaz case, who "confronted none at all."

The judges ruled the witnesses who testified had personal knowledge of the DNA results and were competent to address challenges to the tests.

Two other justices, however, dissented, finding that the Melendez-Diaz precedent points in a different direction.

"The record is clear that it was (the lab technician) who examined the aborted fetus specimen and buccai swabs taken from (the victim)," the dissenting opinion reads. "But (she) was never subjected to the rigors of cross-examination on either the examination she performed, the testing she conducted, or the results she researched."

Pendergrass was sentenced to 65 years in prison for child molestation.


I chose this article because it deals with a man who believed his Sixth Amendment rights had been violated because he believed he was denied the right to hear a witness testify against him.





I chose this video because it deals with jury selection in a criminal case.

The Fifth Amendment

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"No person shall be held to answer for a capital, or otherwise infamous crime, unless on 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."

Within the legal process, this amendment plays an enormous role. From the first clause, the Fifth Amendment establishes the fact that citizens are innocent until proven guilty. What determines that potential guilt is the presentation of the case facts before a Grand Jury. When the accused person is in actual service in the military, then the process of presenting a case before a Grand Jury would be skipped. Furthermore, the next clause protects citizens from double jeopardy. The same person cannot be sentenced more than once for the same offense. Also, no one can be forced to testify on the witness stand against himself/herself in any criminal case, and he/she cannot be sentenced to death of any way, or have his/her property nor rights guaranteed by the Constitution be taken away and/or disregarded unless he/she is so sentenced after proper legal process has been successfully executed, deemed by the Constitution. But concerning private property alone, the government cannot take any private property from any citizen without their permission; however, if it is intended for public use, the government need only to give the owner a fair and just compensation for the property, and then they have the power to take the land for public use.

As far as I know, most of this amendment is still followed to the letter of the law; having worked at a law firm for a year, I noticed no deviation from this amendment in any case. Everything was very proper and systematic. However, I do raise a concern about the final part of the fifth amendment, the "just" compensation for taking private property for public use. Eminent Domain is what first comes to mind when thinking of this clause. I have not personally been affected by eminent domain, so I can't say for sure, however I do remember seeing on the news a few years ago day after day with stories about the low compensation that the government was giving to people for taking their private property with eminent domain. I haven't heard much about it lately, but I still see signs on the road from some guy affected by eminent domain who clearly hates Kansas City. Granted, eminent domain is used by the state government and not the national government, but that's what came to mind. A just compensation should be worth the value of the property based on what it would sell for.

Drawing blood helps obtain evidence

September 28, 2009
In response to Glen Fassinger’s letter regarding blood draws for DUI offenders and Fifth Amendment protections, I ask: What is the difference between these draws and getting blood from rape and/or murder suspects? (“Drawing blood in DUI cases is going too far,” Sept. 21)
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Someone dies from an alcohol-related crash every 31 minutes in this country, making the death toll caused by DUI crashes far higher than any other crime. The blood of these drivers is evidence that should be obtainable with or without a warrant, in my opinion.
Last I checked, driving is a privilege, not a right. Part of that privilege (as indicated on your Tennessee license) is to submit to a chemical test upon demand of a law enforcement officer.
If a DUI offender kills someone you love, would you not expect police to gather as much evidence as possible for a successful conviction? According to NHTSA, around 12,000 people were killed in our country in 2008, thanks to DUI offenders.
If it takes officers to draw their blood on the side of the road to make a dent in this number, then so be it. It’s obvious the loss of their license (for violating implied consent) and/or higher fines are not keeping them off the road.
I certainly do not see forced blood draws as violating the Fourth or Fifth Amendment; I see it as obtaining evidence of a horrible crime and, more importantly, a possible deterrent for those thinking about drinking and driving.
Scott Harding
ANTIOCH 37013


I chose this article because some would say that giving blood in a case where you are the accused is testifying against oneself.




I chose this video because it shows an attorney "pleading the fifth" in court.

Tuesday, September 22, 2009

The Fourth Amendment

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"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."

This amendment protects the people from unreasonable search and seizure. That is, no government official can search you, your house, your documents, or any of your property and/or seize (or take) any of your property without a Warrant. Furthermore, the amendment states that the Warrant can only be issued with probable cause to search and/or seize private property, and that the probable cause must be supported by Oath or affirmation. To me, this requires an witness who heard of or saw something worth being searched or seized. The warrant must also describe, in detail, the property being searched and/or seized (this includes seizing people).

This amendment not only protects against unlawful search and seizure, but it acknowledges what Locke and Hobbes would call a natural birthright: private property. Not only is one entitled to his/her personal belongings, be it land or a chair, but he/she also has the right to privacy of himself/herself and of his/her property.

While not much can be done about it, it is common for police officers to verbally, and sometimes physically, attempt to coerce someone into giving consent to search and/or seize their property, even though technically the Constitution says this right "shall not be violated" except by a Warrant with probable cause and "Oath or affirmation." By the letter of the law, consent to search and/or seize private property that came from the owner of said private property does not permit government officials to search and/or seize said private property; only if they had a Warrant could they do that.

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Laptop searches at the US border implicate legitimate Fourth Amendment concerns
12:20 AM ET


John Wesley Hall, Jr. [Former President, National Association of Criminal Defense Lawyers]: "This fiscal year, through August 11, 2009, US Customs and Border Protection (CBP) tells us that there were about 1,000 laptop computer searches, only 46 of which were in-depth. This out of 221 million border crossings. It simply is not possible for CBP to widely search laptop computers at the border. Too many people are lined up coming in to search everybody intensively, let alone their computers and electronic media too.

CBP is searching laptop computers, a least in the litigated cases that I have seen, only for child pornography. And they at least appear to be limiting these searches to those whom they have reasonable suspicion to believe are potentially transporting child pornography into the country so as to target their resources. But what happens when these searches begin to occur based on political speech because one opposes a government position or happens to disagree with the opinion of the customs agent making the decision (“the discretion of the officer in the field”)?

All the case law to this point is clear that reasonable suspicion is not required for a laptop search. No case has held that it is, and I don’t think that any will. That should not be surprising considering the Supreme Court held in 2004 in United States v. Flores-Montano that the reasonable suspicion requirement is limited to searches of the person and not personal belongings, and in 1971 that pictures and motion pictures could be examined at customs in United States v. Thirty-Seven Photographs. Thirty-Seven Photographs predated the widespread use of truly portable laptop computers by more than a decade.

Can the reasonable suspicion standard of the border search law of searches of the person be readily imported into computer searches? Not likely. United States v. Montoya De Hernandez from 1985 left open the question as to whether reasonable suspicion was required for intensive border searches of the person, including strip and body cavity searches (n. 4: “It is also important to note what we do not hold. Because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches.”).

The technology did not exist until the last four years, but what about backscatter technology that permits a virtual strip search at the border? Virtually all persons subjected to it have no idea that it shows what one looks like under his or her clothes. It is not a mere x-ray. Should something that intrusive require reasonable suspicion? It doesn’t right now at the airports that use it for standard airport security - at least not yet because nobody has litigated it of which I am aware. That should prove to be an interesting case. But then again, it might not because the targets of the search are simply not going to be embarrassed by a virtual strip search that they don’t even know is happening.

But should Fourth Amendment protections be premised on what the target knows is happening? No, because you have a right to be free from an unwarranted search of your house, belongings, or conversations when you don’t know that it is happening. It is what the government is doing to your privacy that tips the balance in favor of the citizen, not what the target knows at the time."


I chose this article because it espouses fourth amendment concern with regards to laptop searches along the U.S. borders.






I chose this video because it deals with a potential law that would contradict the fourth amendment of the Constitution.

Wednesday, September 16, 2009

Amendment 3

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"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

It'll be quick to notice that the third amendment on the Bill of Rights was written a few hundred years ago. During this time, circumstances provided for a scenario like the one the amendment references. However, I think a larger influence behind this amendment was the fact that British soldiers were ordered to take refuge in any of the colonists' homes that the soldiers chose, and apparently the founding fathers took that one personally. Granted, if a British soldier came into my home and forced me to provide them hospitality, I probably would have done the same thing.


The meaning of this amendment is pretty straightforward:  no soldier (this is a vague term which therefore includes not only foreign soldiers but domestic as well) in time of peace be quartered in any house, without the consent of the owner (no soldier can sleep, eat, or rest in anyone's home without permission from the owner of said home) nor in time of war (they remembered to add this to balance out the "in time of peace") but in a manner to be prescribed by law (however, they did account for times changing, so they left it up to the people if they wanted to change this amendment...indirectly of course, through congress passing a law).

As far as the amendment being necessary today, we can't take our peaceful homeland for granted. I believe this amendment is as necessary today as it was when it was originally written on the Constitution, and as necessary as it always will be. While the third amendment may not be as relevant as it once was, war has found its way onto American soil before, and it may not be here now, but unfortunately, there is always time.
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The Third Amendment to the US Constitution
Quartering of Soldiers in Private Homes Forbidden
by: David J. Shestokas
July 21, 2009

The Third Amendment to the US Constitution has been the subject of few court opinions in the nearly 220 years since it was adopted. In 1776, the issues addressed by the amendment were among the grievances against England’s King George in the Declaration of Independence.

The Quartering of English Soldiers in Colonial Homes

England had made a practice of lodging soldiers in the private homes of colonists. This was among the many Intolerable Acts leading to the Revolution. On this subject the Declaration of Independence describes King George’s actions as follows:
“He has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his assent to their acts of pretended legislation:
For quartering large bodies of armed troops among us;
For protecting them, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states; …”
The colonial objection to having soldiers in their homes was significant and not forgotten when the Revolution ended and time to establish a new government arrived. During the ratification debates in 1788-89 there was much concern that the new Constitution did not contain specific protections for citizens from government abuse.

The Bill of Rights and the Third Amendment

As part of the ratification process, promises were made that the First Congress would offer amendments to incorporate such protections into the Constitution. As promised by James Madison and the Federalists, twelve amendments were proposed and ten were ratified. These ten became known as the Bill of Rights.
The Third Amendment to the Constitution is a member of the Bill of Rights and provides as follows:
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

The Forgotten Third Amendment

The issue addressed by the Third Amendment was important enough to be in the Declaration of Independence as a reason for rev0lution and become part of the Bill of Rights. Unlike the rest of the Bill of Rights, it has never been the subject of a Supreme Court interpretation. Among the few significant reviews of the Third Amendment is by Tom Bell in the 1993 William & Mary Bill of Rights Journal.
In some respects The Third Amendment is the forgotten amendment of the Bill of Rights, and violated significantly in at least two instances. American troops were widely mandated to stay in civilian homes during the War of 1812 and the Civil War. These were apparent widespread and significant violations of the Third Amendment. No lasting litigation grew out of these violations, so the meaning of the Third Amendment was not clarified.

A Supreme Court Mention and One Case Opinion

The Third Amendment is mentioned in passing in Griswold v. Connecticut as part of the constitutional underpinning of the right to privacy. There is but a single case in the federal courts to address the Third Amendment directly, Engblom v. Carey.
In Engblom, New York prison officials staged a strike, were evicted from their residences at the prison facility and the residences were occupied by members of the National Guard. The court of appeals found this to be a violation of the Third Amendment as interfering with privacy rights.
Though little litigated and largely forgotten and sometimes ignored, the Third Amendment deserves its place in the Bill of Rights as addressing one of the reasons for the Revolution.


I chose this article because it was a modern day essay talking directly about the "forgotten amendment."


No Quartering, Score History
The Declaration of Independence lists colonists' grievances against England's king. Protection from many of those grievances became part of the Bill of Rights.

The Third Amendment to the US Constitution has been the subject of few court opinions in the nearly 220 years since it was adopted. In 1776, the issues addressed by the amendment were among the grievances against England’s King George in the Declaration of Independence.

The Quartering of English Soldiers in Colonial Homes

England had made a practice of lodging soldiers in the private homes of colonists. This was among the many Intolerable Acts leading to the Revolution. On this subject the Declaration of Independence describes King George’s actions as follows:
“He has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his assent to their acts of pretended legislation:
For quartering large bodies of armed troops among us;
For protecting them, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states; …”

The colonial objection to having soldiers in their homes was significant and not forgotten when the Revolution ended and time to establish a new government arrived. During the ratification debates in 1788-89 there was much concern that the new Constitution did not contain specific protections for citizens from government abuse.

The Bill of Rights and the Third Amendment

As part of the ratification process, promises were made that the First Congress would offer amendments to incorporate such protections into the Constitution. As promised by James Madison and the Federalists, twelve amendments were proposed and ten were ratified. These ten became known as the Bill of Rights.
The Third Amendment to the Constitution is a member of the Bill of Rights and provides as follows:
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

The Forgotten Third Amendment

The issue addressed by the Third Amendment was important enough to be in the Declaration of Independence as a reason for rev0lution and become part of the Bill of Rights. Unlike the rest of the Bill of Rights, it has never been the subject of a Supreme Court interpretation. Among the few significant reviews of the Third Amendment is by Tom Bell in the 1993 William & Mary Bill of Rights Journal.
In some respects The Third Amendment is the forgotten amendment of the Bill of Rights, and violated significantly in at least two instances. American troops were widely mandated to stay in civilian homes during the War of 1812 and the Civil War. These were apparent widespread and significant violations of the Third Amendment. No lasting litigation grew out of these violations, so the meaning of the Third Amendment was not clarified.

A Supreme Court Mention and One Case Opinion

The Third Amendment is mentioned in passing in Griswold v. Connecticut as part of the constitutional underpinning of the right to privacy. There is but a single case in the federal courts to address the Third Amendment directly, Engblom v. Carey.
In Engblom, New York prison officials staged a strike, were evicted from their residences at the prison facility and the residences were occupied by members of the National Guard. The court of appeals found this to be a violation of the Third Amendment as interfering with privacy rights.
Though little litigated and largely forgotten and sometimes ignored, the Third Amendment deserves its place in the Bill of Rights as addressing one of the reasons for the Revolution.


I chose this article because it is a law professor lecturing about the third amendment.

Tuesday, September 15, 2009

Amendment Two

2 comments

"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."

Pastor Urges His Flock to Bring Guns to Church


Jim Winn for The New York Times
Ken Pagano, the pastor at New Bethel Church, prepared to try a Heckler & Koch MP5 submachine gun at a shooting range.



Published: June 25, 2009
LOUISVILLE, Ky. — Ken Pagano, the pastor of the New Bethel Church here, is passionate about gun rights. He shoots regularly at the local firing range, and his sermon two weeks ago was on “God, Guns, Gospel and Geometry.” And on Saturday night, he is inviting his congregation of 150 and others to wear or carry their firearms into the sanctuary to “celebrate our rights as Americans!” as a promotional flier for the “open carry celebration” puts it.



Jim Winn for The New York Times
Ken Pagano of New Bethel Church in Louisville, Ky. “God and guns were part of the foundation of this country,” he said.

“God and guns were part of the foundation of this country,” Mr. Pagano, 49, said Wednesday in the small brick Assembly of God church, where a large wooden cross hung over the altar and two American flags jutted from side walls. “I don’t see any contradiction in this. Not every Christian denomination is pacifist.”
The bring-your-gun-to-church day, which will include a $1 raffle of a handgun, firearms safety lessons and a picnic, is another sign that the gun culture in the United States is thriving despite, or perhaps because of, President Obama’s election in November.
Last year, the National Rifle Association ran a multimillion-dollar advertising campaign against Mr. Obama, stoking fears that he would be the most antigun president in history and that firearms would be confiscated. One worry was that a Democratic president and Congress would reinstitute the assault-weapons ban, which expired in 2004.
But there is little support for the ban. Mr. Obama and his party have largely ignored gun-control issues, and the president even signed a measure that will allow firearms in national parks.
Still, the fear remains that Mr. Obama, and his attorney general, Eric H. Holder Jr., will crack down on guns sooner or later. That — along with the faltering economy, which gun sellers say has spurred purchases for self-defense — has fueled a record surge in gun sales.
“Every president wants to be re-elected, and gun bans are pretty much a nonstarter for getting re-elected,” said Win Underwood, owner of the Bluegrass Indoor Range here. “What I suspect is going to happen is, Obama’s going to cool his jets until he can get re-elected, and then he’ll start building his legacy in these hot-button areas.”
When Mr. Obama was elected in November, federal instant background checks, the best indicator of gun sales, jumped 42 percent over the previous November. Every month since then, the number of checks has been higher than the year before, although the postelection surge may be tapering off, as all surges eventually do. While the number of checks in April increased 30 percent from the year before, the number of checks in May (1,023,102) was only 15 percent higher than in May 2008.
The National Rifle Association says its membership is up 30 percent since November. And several states have recently passed laws allowing gun owners to carry firearms in more places — bars, restaurants, cars and parks.
“We have a very active agenda in all 50 states,” said Chris W. Cox, legislative director of the N.R.A., widely considered the country’s most powerful lobby. “We have right-to-carry laws in over 40 states; 20 years ago, it was in just six.”
Of the 40 states with right-to-carry laws, 20 allow guns in churches.
Public attitudes also seem to be turning more sympathetic to gun owners. In April, the Pew Research Center found for the first time that almost as many people said it was more important to protect the rights of gun owners (45 percent) than to control gun ownership (49 percent). Just a year ago, Pew said, 58 percent said gun control was more important than the rights of gun owners (37 percent).
Gun-control advocates say they feel increasingly ineffective, especially after a recent spate of high-profile shootings, including last month’s murder, inside a church in Kansas, of a doctor who performed late-term abortions.
“We’ve definitely been marginalized,” said Pam Gersh, a public relations consultant here who helped organize a rally in Louisville in 2000, to coincide with the Million Mom March against guns in Washington.
“The Brady Campaign and other similar organizations who advocate sensible gun responsibility laws don’t have the money and the political power — not even close,” she said. “This pastor is obviously crossing a line here and saying ‘I can even take my guns to church, and there is nothing you can do about it.’ ”

Ms. Gersh said she was not aware that a group of local churches and peace activists were staging a counterpicnic — called “Bring your peaceful heart, leave your gun at home” — at the same time as Mr. Pagano’s event.


Jim Winn for The New York Times
Ken Pagano loads a handgun magazine.


But news media attention — some from overseas — has focused on Mr. Pagano, who has been planning the event for a year, in celebration of the Fourth of July. Cameras will not be allowed in the church, he said, to protect the congregation’s privacy.
The celebration will feature lessons in responsible gun ownership, Mr. Pagano said. Sheriff’s deputies will be at the doors to check that openly carried firearms are unloaded, but they will not check for concealed weapons.
“That’s the whole point of concealed,” Mr. Pagano said, adding that he was not worried because such owners require training.
Mr. Pagano said the church’s insurance company, which he would not identify, had canceled the church’s policy for the day on Saturday and told him that it would cancel the policy for good at the end of the year. If he cannot find insurance for Saturday, people will not be allowed in openly carrying their guns.
Arkansas and Georgia recently rejected efforts to allow people to carry concealed weapons in church. Watching the debate in Arkansas was John Phillips, pastor of the Central Church of Christ in Little Rock. In 1986, Mr. Phillips was preaching in a different church there when a gunman shot him and a parishioner. Both survived, but Mr. Phillips, 51, still has a bullet lodged in his spine.
In a telephone interview, he said he found the idea of “packing in the pew” abhorrent.
“There is a movement afoot across the nation, with the gun lobby pushing the envelope, trying to allow concealed weapons to be carried in places where they used to be prohibited — churches, schools, bars,” Mr. Phillips said.
“I don’t understand how any minister who is familiar with the teachings of the Bible can do this,” he added. “Jesus didn’t say, ‘Go ahead, make my day.’ ”
Mr. Pagano takes such comments as a challenge to his faith and says they make him more determined.
“When someone from within the church tells me that being a Christian and having firearms are contradictions, that they’re incompatible with the Gospel — baloney,” he said. “As soon as you start saying that it’s not something that Christians do, well, guns are just the foil. The issue now is the Gospel. So in a sense, it does become a crusade. Now the Gospel is at stake.”

I chose this article because it discusses a controversial act by a pastor celebrating freedom.
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During World War II, Hitler never officially invaded Switzerland. During this period, all Swiss households, I believe, were required to have a gun. That fact plus the terrain and geography of Switzerland contributed to Hitler's decision.

That being said, the right to bear arms is necessary, as stated in the amendment itself, to the security of a free state. Not only for outside threats, but domestic threats as well, including a tyrannical government. When the right to bear arms has been stripped from the people, the state is no longer free, and therefore, the security of the free state is threatened.

However, proponents of strict gun control would argue that the crime rate is directly influenced by the amount of guns in circulation. They say if we were to ban guns that crime would reduce. But let's see what happened during prohibition. With the ban of alcohol, which isn't even as relatively dangerous as guns, crime sky rocketed because people wanted to drink, and the only way they could do that was to now break the law. Amazingly, after the end of prohibition, the crime rate went back down.

The same pattern can be applied with guns. Criminals already use illegal weapons, be it a handgun without a permit, or an automatic rifle. If a ban on guns were implemented, then criminals are still going to get guns, but now the general public will be defenseless, and criminals will gain confidence in their acts of violence knowing that it will be highly unlikely that a victim has a gun.

-Zach Ross




I chose this video because I like John Stossel, and it is John Stossel talking about gun control, which is a topic directly influenced by the Second Amendment.

Wednesday, September 9, 2009

The First Amendment

1 comments

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

This is one of the most important amendments on the Bill of Rights (...they're all actually kind-of important and stuff...). It enables all citizens of the country to freely speak their mind without penalty or punishment from the government or any other citizen so as it does not infringe on anyone's rights (which is the great thing about the constitution: it sets its  own boundaries). Furthermore, this amendment provides the freedom for you to practice any religion that you so desire. The nation has no national religion, and even though the founding fathers drew on some of their religious background while drafting the Constitution, they obviously didn't want anyone, including themselves, to be forced to practice and abide by the laws of any religion, especially with the extreme flexibility of religious orders. The founding fathers wanted the laws to be black and white and they didn't want a national religion to get in the way of concrete law. This amendment also gives us the right to the press, to peaceably assemble, and to petition the Government. The right to the press is simple: we get to ask questions of people so long as it doesn't infringe on their rights, and with the freedom of speech, both the questioner and the questioned have the right to say, and not say, whatever they wish. We have the right to assemble for whatever cause as long as it is peaceful. And we also have the right to draft up a petition to our government in attempt to correct something worth being brought up and thought to need correcting.

This amendment, like I said before, is an extremely important amendment. The freedom of religion probably found its roots in the initial voyage of the Pilgrims to America to escape religious persecution in England. The freedom to say what you wanted to say when you wanted to say it, the freedom to peacefully assemble, the freedom to the press and to petition the government were all freedoms denied to citizens in England at this time. It was the King's way or die, pretty much. So the founding fathers sought to grant those freedoms, believing they were inalienable in the first place.

Bulldozing Freedom Of Speech


The Washington Post
Thursday, August 20, 2009
It began with the proliferation of campus "speech codes" ostensibly designed to promote civility but frequently used to enforce political conformity. The new censorship accelerated with the McCain-Feingold legislation that licenses government regulation of the quantity, timing and content of speech in political campaigns.


Now the attack on First Amendment speech protections has taken an audacious new turn, illustrated by a case being pondered by a Texas judge. He is being asked to collaborate in the suppression of a book, and even of expressions of approval of the book.
The book arises from an abuse of the power of eminent domain by the city of Freeport, Tex., but the story really begins in Connecticut. There, in 2000, New London's city government condemned the property of middle-class homeowners in an unblighted neighborhood for the purpose of getting the property into the hands of commercial interests that would pay more taxes.
In 2005, in Kelo v. City of New London, the U.S. Supreme Court upheld, 5 to 4, New London's rapaciousness as a constitutional taking of property for what the Fifth Amendment calls a "public use." Rapacious people around the country salivated. When Kelo was decided, H. Walker Royall, a Dallas developer, already had designs on some property that for more than a decade has belonged to the Gore family shrimping business in coastal Freeport. In 2003, Royall signed an agreement with that city's government to build a yacht marina, hotel and condominiums using property the city would seize by eminent domain.

The day after the Supreme Court made its Kelo mistake, Freeport intensified its pressure against the Gores, whose stout resistance caught the gimlet eye of Carla Main. An experienced journalist (former associate editor of the National Law Journal, she has written for the Wall Street Journal, National Review and numerous other publications), Main has recounted the case in her book "Bulldozed: 'Kelo,' Eminent Domain and the American Lust for Land." Her thesis is that many "takings" of property for economic development are taking a terrible toll on the rights of everyday Americans.

In October 2008, Royall sued Main and her publisher (Encounter Books), seeking monetary damages and a ban on further production and distribution of the book. He also sued the Galveston newspaper that reviewed the book and the reviewer. A judge dismissed, on jurisdictional grounds, Royall's suit against Richard Epstein, professor of law at the University of Chicago and New York University, whose offense was a dust-jacket endorsement of the book as a report on an "unholy alliance" between government and a private interest.

Royall's lawsuit charging Main with defamation is, her lawyers document, riddled with mischaracterizations of what Main writes and about whom she writes it, and ignores long-established criteria of defamation law, which holds that a statement is not actionable as defamatory if the speaker obviously is expressing a subjective view or an interpretation, theory, conjecture or surmise.
Indeed, so slapdash are Royall's accusations against Main that his suit seems to reflect nothing more substantial than his dislike of her opinions and those of people she accurately quotes. It seems intended to chill commentary on eminent domain abuse by exposing commentators to the steep costs of deflecting even frivolous litigation.

The Institute for Justice -- an Arlington-based public-interest group that represented the victims of eminent domain in New London; it also is assisting the Gores -- identifies a national trend of attempted intimidation by litigation. For example, in Clarksville, Tenn., the institute successfully defended a group of property owners sued for $500,000 by a city councilman and a business interest claiming injury by a newspaper advertisement objecting to their eminent domain plans. In Renton, Wash., two developers sued a woman for statements she made while resisting a blight designation of her property, including, for example, that one of the developers is "a haughty and proud Pharisee." The Supreme Court is blameworthy for two entangled abuses. It diluted property rights in the Kelo case and it weakened freedom of speech by not overturning McCain-Feingold. Fortunately, in an unusual Sept. 9 session, the court will hear, for a second time, oral arguments in a case arising from that law's speech restrictions.

The court should be cognizant of the attacks on property rights that its Kelo decision incited. And on Sept. 9 it should remember the increasing resort to restrictions of speech. McCain-Feingold is both a symptom and an encouragement of such restrictions.


The writer is a member of the board of the MacArthur Foundation, which provides some funding for the Institute for Justice. His e-mail address is georgewill@washpost.com.
 I chose this article because it discusses infringement of the Freedom of Speech, which is a clause of the First Amendment.



I chose this video because George Carlin is hilarious, and because it is George Carlin talking about the freedom of choice, which, in my opinion, is largely covered in the First Amendment.

Friday, September 4, 2009

The Preamble

2 comments

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution of the United States of America."

When it was written, "we the people" referred to white, land-owning males. Perhaps the framers intentionally left it vague, but either way this open-ended term has allowed for a change in its definition to include different groups of people through American History. I would like to believe the framers of the Constitution had a feeling that changes in civil liberties and social behavior were going to happen, so they left it vague to allow future, further inclusion, but unfortunately we'll never truly know the framers' true intents. Since it was written, the word "government" in America is synonymous and interchangeable with the phrase "the people/citizens." Throughout the years, the type of persons included in the group "the people" has increased to now allow all legal citizens of the country.
"In order to form a more perfect union," can most directly be related to the Articles of Confederation. The system of government failed under the Articles, so the framers created the Constitution to improve upon the lack of a central, unified government under the Articles. They wanted to create a more perfect union, but they obviously recognized that it still may not be completely perfect, if they even believed that perfection was achievable. Overall, they needed to unify the very independent thirteen states and establish a system that would preserve the union.
The "people" would need to "establish justice" throughout the country by creating just laws and enforcing those laws using just means. Something that is just is something that is within the boundaries of the Constitution and its laws. In order to "insure domestic tranquility," laws and those who enforced them would have to stop all immediate threats against peace and tranquility, using only just methods, within their jurisdiction of the United States of America. To "provide for the common defense," the government would, through taxation, fund, supply, and train a national army and militia's only for the purposes of upholding democracy, protecting the land from threats and invaders, and maintaining national security using as little force as possible and without imposing or forcing our views upon any other independent nations. In order to "promote the general welfare," the government must do everything in its power and resources to not only prevent social, economic, and military recession, but it must also enhance the standard and quality of life for the general public. One of the most important parts of the preamble is "secur[ing] the blessings of liberty to ourselves and our posterity." This means that the government needs to uphold common and general liberties, granted by the constitution and social contract, for all people within its jurisdiction while removing immediate and preventing potential threats to civil liberties not only for the people of the present, but also for future generations. To close, the founding fathers acknowledged that "We the people...do ordain and establish this Constitution of the United States of America."

The founding fathers had a great idea, one that was revolutionary for its time. Imagine observing the drafting of this document where the greatest and most intelligent minds of the time all gathered in one room at one time to discuss and debate the creation of a new nation. What a rare and wonderful interaction that would have been. What if the people in that room were to come to our time and observe the state of The Union as it now stands. Would they be pleased? Or disappointed?

In my opinion, I do not believe that the founding fathers of our nation would be pleased with the way the government currently operates. First and foremost, I believe they intended the Congress to be in session full time, especially with the amount of backed-up legislation. Even though they were given the right from the Constitution to only meet 4 days a week, I don't think the founding fathers took into account the exponentially increasing laziness of modern America. Congressman should have to work like any regular citizen should: a 40-hour average work week, but with the load they have now, it should be well over that until they have at least caught up a little bit. This laziness fails to establish justice and secure the blessings of liberty in the most efficient manner possible. This, being just an example of the many flaws of modern government-efficiency, is an overall failure on the government's part, and, essentially, the people's part as well, to form a more perfect union. Yes, perhaps perfection is impossible, but we are not currently doing our best to, at least, strive for it.
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Mailbag: Remember the Preamble

From: thedemocraticherald.com

The inalienable (God-given) rights recognized by our Founders are "life, liberty and the pursuit of happiness." All three are dependent on a person's health. Without health you have none of the above for very long.

Does that make health a public responsibility? That gets us to the purpose of government, as stated in the Preamble to our Constitution: "To form a more perfect union, establish justice, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."

Take justice, for instance. It's basic fairness. That's all it is. Is it fair for the Fed to loan banks all the money they want at 1 percent or less while those banks charge credit card holders from 12 to 32 percent on that money? One of the largest banks, bailed out by us taxpayers, is paying a $100 million bonus this year to a top producer! But we can't afford debt relief or health care for our poorest citizens? Is that fair?

If we can't trust the government to be fair, we can't trust the government, period. That's what's bothering a lot of people about health care reform. We don't trust the government to do what's right to "promote the general welfare." Unless the president does something quickly to restore trust, it won't just be health care reform that's in trouble: the country is in danger of serious breakdown.
The Bible says, "Where there is no vision, the people perish."

John Goodwin, Lebanon