Thursday, June 26, 2008

Supreme Court

I'm utterly delighted with today's ruling that reassures my right to own a gun as many guns as I want.

I love how the 2nd Amendment is walked through, step-by-step, in this ruling.

The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms... [p. 2]

Beginning on page 6, and moreso on page 8, they carefully dissect the wording of the 2nd Amendment, showing how indeed there is no ambiguity therein.

The only opinion rendered in support is from Justice Scalia, and he writes,

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.... what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct. [p. 67]

Now, one thing bothers me immensely about this... And that is the fact that this was a 5-4 ruling, not a 9-0 ruling. Do you realize how close America just came to overthrowing the most incredible founding document in the history of the world? How the opinion of one man could've overturned what is arguably the most freedom-ensuring Amendment of that document?

I'm beginning to wonder if Justice Kennedy doesn't just wake up and flip a coin to determine his opinions. He seemed so reasonable and right on this one; keeping with the Founders and their Intent today.

Yesterday, however, was another story. I'm sure you heard how it's somehow unconstituional to put a raper-of-children to death, per the 8th Amendment about cruel and unusual punishment. Cruel and unusual? I say keeping these dirtbags alive, paying for their meals and cable TV is cruel and unusual punishment for their victims and the families of their victims. I don't understand how the death penalty is cruel or unusual (though I think it has to be cruel and unusual to qualify here, in my mind). The way it's done today, it's probably the very best possible death to experience (of course, I'm not experienced in death). Better, certainly, than a car accident or cancer. It's also hardly unusual. It's probably among the oldest and most common forms of punishment in the history of the world.

But what do I know?

I also think giving foreign enemies from foreign ground Constitutional Rights (which, you know, I thought might be reserved for, I don't know, American Citizens...?) isn't supported by our Founders either.


home handymum said...

"I also think giving foreign enemies from foreign ground Constitutional Rights (which, you know, I thought might be reserved for, I don't know, American Citizens...?) isn't supported by our Founders either."

How about this statement..?
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

All men. Not just US Citizens.

Unalienable rights. Endowed by their Creator.

Now the constitution is not scripture, but the law of your land rests upon it (and only your land, I might add - your founding fathers were not Iraq's. Or mine). There is even provision, I believe, for the detention and trial of of 'enemy combatants' with different 'rights' to citizens.

But your president is not even treating the Guantanamo detainees as human beings.

Perhaps this is easier to see from the outside looking in.

EllaJac said...

Handymum; thank you so much for your prayers last week. I may yet get to your blog to thank you directly.

Your perspective here is very intriguing to me... The quote, about life, liberty, and the pursuit of happiness doesn't flow together in my mind with this issue. Yes, all men are created equal, and all have that right... until they abuse it. Even Americans who break the law (or are suspected of it) are jailed and detained. I don't suppose they're enjoying liberty or pursuing happiness behind bars. But I don't see being arrested or convicted in opposition to America's founding documents (which, by the way, that quote comes from the Declaration of Independence).

You are right, however, that OUR law (supposedly) rests upon the Constitution (actually, it rest upon case law and precedent, but that's another rant entirely). I don't presume that Iraq or New Zealand or anywhere else is bound to our Constitution. Which is kindof why I believe those Constitutional rights, those civil rights, are unique (or should be) to American citizens who are beholden to the laws of America. And yes, enemies are entitled to a trial of sorts, but the thought of the ACLU backing these guys up, giving them access to our courts is very scary to me. Then what happens, they go to prison? Here? Where they have captive audience of people who already show a) a disrespect for America's laws and maybe even b) bitterness against the laws (and the country?) that put them there? Fertile ground, methinks. Not good. Again, the Supreme Court of my America disagrees with me... They disagree with themselves, too, though, because an earlier ruling said no rights were to be conferred to foreigners on foreign soil... And even Guantanamo is foreign soil. Many of those they've released have been taken again, on the field of battle.

I must ask though, about the president not treating the detainees as human beings... What do you mean? I am unclear about this (and might be terribly uninformed).

home handymum said...

Sorry, I got lost when re-reading/editing my last post and can't remember whether I fully offered my condolences on the loss of your aunt.

(We've had a croup-y, vomiting wee munchkin here today and life has been a bit unexpected - stretches of quiet contentment punctuated by sudden cleaning up. A clean-up was required when I posted last and I think i just hit 'post', instead of leaving it until later...)

I am thinking of you and your family. Death is tough. {{hugs}}

home handymum said...

Did another post from me come through? Sorry if there was anything about it to get it stopped.

home handymum said...

drat. I'll try again, but it's never as good the second time around :)

First point. The state screws up and is high-handed and acts on incomplete/incorrect information all the time. (like FLDS, for instance). There are almost certainly people in Guantanamo who are murderers and mastermind terrorists. Deal with them as enemy combatants by all means. BUT My concern is for the people in Guantanamo who may be implicated "by assocation" having a cousin or brother who is actually the villain, but themselves not so. Or even maybe they just annoyed someone who is a 'reliable informant.' This stuff happens. We know it does. (FLDS again?)

Second point. As someone who does not live in the US, never has, and in all likelihood never will, I am very very concerned when I hear of the US government entering the territory of another government, kidnapping people, torturing them, and planning to never release them. All on the basis of 'confidential information received.' [I use the word 'kidnap,' because 'arrest' is part of a recognised judicial process, which the US govt seems to be trying not to do in this case - hence the need for a Supreme Court ruling at all.]

And it's somehow supposed to be okay to do that to them because they're not US citizens? Well of course they're not US citizens. They weren't in the US. They were in Afghanistan. Where they had every right to be. But the US government has taken them into custody, and should deal fairly with them according to some set of laws. (Like maybe the Geneva Convention?)

Third point. As for treating the people in Guantanamo as less than human, on reflection I had to concede that you're right. The animal welfare people and the law would be down on us like a ton of bricks if we waterboarded a dog or a goat. But humans do seem to reserve their very worst treatment for each other. So no, the people of Guantanamo have been treated the way that some humans seem to enjoy treating other humans, but would never do to an animal. This does not make it remotely acceptable behaviour, however. Torture is never okay.

The people in Guantanamo deserve the right to a fair trial. If such a thing is at all possible.

EllaJac said...

Sorry about having to have a 'round 2'! You're right; it doesn't usually flow as well the 2nd time.

As to your first point, you say there are certainly evil terrorists in Guantanamo, and we should "deal with them as enemy combatants, by all means." "All means" not including by means of waterboarding, I assume. :) As far as I understand it, no German POW or other foreign combatant has had the right to litigate in American courts. Seems like they were brought out west or put in a camp somewhere to 'wait it out' if they were of the 'lesser' villians. The generals and higher-ups were probably tried in a military tribunal of some sort (I'm not up on my exact history here). To me that is a far cry from giving Constitutional rights to non-citizen enemies of America. I disagree to a point with the FLDS comparison. FLDS weren't taking up arms against the military (or anyone) - even 'in defense' of their homeland. And even if the worst assumption proved true, it would be a much smaller risk to America as a whole than any one of the Guantanamo detainees. It's not cheap to feed, house, and religiously accommodate these guys, and I don't imagine they want every last suspect to sit there indefinitely (hence, the return of some and ultimate recapture). I suppose we could debate the initial invasion of Afghanistan, but no one denies that there was a hotbed of terrorism training whose target was the US. So it seems legitimate to take prisoners from there. You may call it "kidnap," but no one called the Nazi WWII soldier 'kidnapped' when he was taken on the field of battle (which also wasn't in the US). I do agree, they should be dealt with fairly. The US Justice System is not (in my mind) the right place to do so.

I'm personally undecided about waterboarding = torture. John McCain thinks so, and he should know. Marcus Letrell (Latrelle?) thinks not, and he should know. Interrogation often includes things to make someone believe something is happening (physically, like drowning or psychologically like their cohorts are telling all). I DO know (as much as I can) that such a technique was used only a few times and that very early on, when they thought there were likely more terrible plans already in the works.

I just can't believe that foreign-born people who took up arms against my country have been granted the rights my country bestows on it's citizens.

It's well-known that their jihad is by any means... by arms from abroad, by arms from within, and certainly by using our own system(s) against us. And we lie down and put out a red carpet to make it easier for them.

home handymum said...

My use of the phrase, "by all means" is perhaps a colloquialism. I meant it to mean "be my guest", or "go ahead".

My understanding is that WWII 'criminals' were tried by an international war crimes court. Since WWII, the US has consistently held itself 'above' participating in such courts. My understanding is that the US almost never recognises another nation as having any right to try a US citizen, especially its own military personnel.

The people in Guantanamo are, however, either prisoners of war, or kidnapped civilians. Your government has been trying very hard not to have them classified as prisoners of war, because there are laws about how to treat such people which your government found inconvenient.

Your comparison with a German soldier taken in battle during WWII does not strictly work. It is easy to point to a uniformed soldier and say "look, an enemy combatant." But in Afghanistan there is very little to distinguish a goat herder armed to the teeth to defend his tribe from a neighbouring tribe, from a conspiring evil terrorist armed to the teeth to bring down the Great Satan. I firmly believe that Guantanamo Bay contains people who were not conspiring to bring down the US, but were just going about their usual existence.

Sure, they may have been laden with weaponry (everyone is in Afghanistan, and they have been forever), sure they may have thought the US sucks and is high-handed in its treatment of most of the rest of the world (and let me tell you that there are plenty of people all over the world who believe that), but those things do not make them terrorists.

Every invading army in the world finds that the 'subject' people are deeply resentful of its presence. The Afghan equivalent of "go home yankee" might well be to lob a grenade or two in the direction of a cavalcade (I'm guessing). This does not make them Al Qaida.

EllaJac said...

This will probably veer off topic a little bit...

Can you tell me more about the international war crimes courts that tried WWII criminals? I don't know much, and I'm not sure I follow your next point... That we're "above" participating in such things. Has there been an opportunity? Has an international war crime court been convened lately? And about whether the US recognizes other nations having rights to try Americans... Again, I'm not sure how that supports the point... As individuals, Americans are imprisoned the world over for all kinds of reasons (mostly their own doings, I imagine). As to military, I suppose the US gov't would be held responsible. But again, regarding your point, the US hasn't waged a war that would result in such a trial.

I don't know the different classifications of the 'detainees'. I know there was never a 'formal' declaration of war, perhaps because there was no single (or group) of nations to declare against. It is groups, independent or organized, which have declared war on us. Perhaps this has to do with why they aren't POW classified? I'm not really sure. I must admit, as to these "international" laws that are recognized by some. *shudder* I cannot tell you how absolutely bad I think such things are. Have you looked at the UN Convention on the Rights of the Child? Scary!

Seriously, do you think there are a lot of goat-herders in Guantanamo? Don't you think they'd have figured out which were the goat-herders and which were likely serious threats before they shipped them to Guantanamo? I don't know, but that seems kind of silly to me. If there are, then the US military is a lot more stupid than even the world thinks.

Now for the real rabbit-trail... If the world really hates America so much... Why? From your perspective, what do you see? Is it our relative prosperity, and everyone just wants to see the rich guy taken down a notch or two? Does our sense of freedom offend their ideas of lawful morality? Is it because we've led the world in technology and invention the last hundred years or two, and they want that spot for themselves? Seems to me that if America were brought to it's knees, as so many want, there'd be a lot more hungry and dying people in Africa, and the victims around the world of earthquakes/typhoons/tsunamis/etc. would be a lot worse off. *sigh* I certainly don't defend everything America has ever done, and I don't suppose the motives of every decision-maker have been pure, but from my (obviously limited and very biased) perspective, the world shouldn't be so quick to hate us.

Tell me what you see.

home handymum said...

Just to let you know that I am thinking about this reply. It's hard to know where to start. Americans and non-americans see the world (and america) so very differently. Your "american-spectacles" are evident in almost every line of your last post. I'll have to think about how we can bridge the gap from where you are to where I am, so you can appreciate my view.

So, I am not copping out. I will try and answer your question, as best I can, and as it pertains to my own perspective. But it will take some thought, and also we are a bit busy here over the next few days.

So don't hold your breath. I will endeavour to be back. :)

home handymum said...

Whew, there's a lot to cover, so I'll break it into two posts. Here's the first.

I confess that every time I've thought about responding I've thrown up my hands and decided it was too hard, so I've enlisted my husband 'Merl's help. He writes technical documents at work, so forgive him if he's a little terse :)

1. Background of WWII trials

2. International criminal courts.
Opinion is divided over the praciticality of International Criminal Courts. However, the US does not recognise the jurisdiction of such over its own soldiers. I'm sure that there would be 'opponents of america' who would use a disproportiante amount of court time prosecuting US soldiers if the US was subject to these courts, so I do see why the US holds itself aloof. However, US soldiers do still commit war crimes and they are not seen to be accountable to anyone unless there is video evidence that escapes the US army's control (Abu Ghraib?).

3. Examples of War Crimes
Here's a general definition of what constitute War Crimes:

You say you know of no US involvement in War Crimes. This doesn't surprise me as I've seen the sort of coverage given to such topics by CNN and Fox (our Cable TV channels carry CNN and we can get Fox news via the internet). I've talked to Americans living in New Zealand who have commented on how hard it is "back home" to get information on the wider world. Every nation's media is very parochial, It's just that only the US, China and India are large enough to have an almost completely self contained worldview from the media. New Zealand might well be the same or worse if we were as big.

The Nogunri massacre from Korea (article in the left column)

In Vietnam there were numerous atrocities, the most well known of which is probably Mylai.

In Venezuala the CIA armed a rebel group to help them overthrow the democratically elected president Hugo Chavez. When the Coup took place the US Embassy immediately released a press statement saying that they were prepared to work with the new leadership. After a mass popular uprising brought about the release of Chavez and reinstatement, the US took several days before issuing a statement in suport of him.

In the Philippine-American war at the turn of the last century:

Information about US War Crimes is quite hard for US nationals to get from the mainstream media. International media outlets sometimes contain information that US outlets aren't interested in covering.

All nations commit atrocities in war. I'm not posting this to bash you or America as such. It's just that the american cultural myth of being the leading bastion of truth, justice and freedom is in direct conflict with the reality that the US has and does engage in torture and other war crimes, and denial is the easiest way to keep people happy.

You are a patriot because of what you believe America ought to stand for. The rest of the world judges America by what she does - both the good and the bad - some of which you guys never hear about.

home handymum said...

Part 2. Whew, that first one was kinda heavy going.

In order to make a start on how the rest of the world sees America, let's first have a look at some of the ways that America sees itself. We can do this by exploring two very common phrases: "Truth, Justice and the American way", and "Un-American". Now, we can't speak for 'the rest of the world', so we'll just be speaking for ourselves :)

Firstly, the concept of "the American way" was deliberately introduced in America's history in order to combat the individual nationalist sentiments of the multitude of different nationalities settling in the US. The idea was to replace Irish fervor and German fervor and Italian fervor with American fervor. This was the origin of the Pledge of Allegiance.

The 'American Way' serves as a unifying concept to make Americans feel nationalistic. During the Cold War the wealth and living standards of Americans was incorporated in the 'American Way' as a contrast to the USSR.

The phrase 'Truth, Justice and the American Way' is annoying to us, because it implies that the US has a monopoly on Truth and Justice. This is, quite simply, not the case. Almost every culture in the world (particularly those influenced by the Greek philosophers and/or with a Judeo-Christian heritage) strives for truthfulness and justice, and did so before America was born. From our perspective outside of America it also seems to be a bit of a Trojan horse at times, where things which are the complete opposite of 'the American Way' are called that. For example, MTV, free love and disobeying your parents is the culture that America exports to the world, often advertised in the same breath as "Truth, Justice and the American Way".

Now the concept of being 'Un-American'. I'm a little woolly on what this term actually means. I'd be interested to hear what you think being 'Un-American' is.

Whatever the actual definition, the term 'Un-American' is annoying to us in two ways. First, it implies that 'Americans' have exclusive claim to the virtues of being the good guys, and second, that not being an American is a bad thing.

So perhaps this is the thing that most people in the West react against. We don't actually hate America (of course, I'm not at all speaking for those people who do hate America :) ) There are plenty of worse countries in the world than the US. But those countries don't set themselves up as the 'good guys' and the 'leaders of the free world'. What America does on the world stage is not all bad - you do good stuff too. But it is not all the pristine "sheriff on a white horse coming to the rescue" image that it would like to believe. There is a huge gap between how America sells itself, both internationally and domestically, and what it actually does. It is this gap, this hypocrisy, that grates.

EllaJac said...

First, thank you for putting such time and effort into your response(s).
I've been reading through the sites you left, and have noted something interesting. There seems to be a great disdain for American soldiers not submitting to other countries' laws for possible war-crimes, but this is a quote from your nuremburg wikipedia link: In most cases those who are not prisoners of war are tried under their own judicial system if they are suspected of committing war crimes.... In restricting the international tribunal to trying suspected Axis war crimes, the Allies were acting within normal international law. So even after WWII, normal practice was that each soldier was subject to the laws of his own country/military. Only because the Axis powers lost and surrendered unconditionally was there such trials at all. Usually the conditions of surrender dictate the treatment of the 'big' bad guys. And as to soldiers that ARE taken as POWs/detainees (in the current conflict), broadcasting their beheadings doesn't jive with international law, either (I know we're not debating that, but it's an interesting difference).

As to our media. I'm not even sure where to start with that. :) I don't doubt that each nation has their own biased media. Here, few can argue that our media is fair at all. Most of it is severely biased to 'the left,' or even Marxist and anti-American, depending on their chosen topic. That said, most of us are not watching BBC or al-jazeera either. But if it's online, it's available. I guess most are more interested in Nicole Kidman's baby than world news.

As to part 2:

I'm intrigued about the "common" label attached to "Truth, Justice and the American Way"... I THINK the only place I've heard that was in Superman comics/movies (and that it was changed in the most recent movie - which I didn't see). The "American Way" idea is interesting... I have no reason to doubt your history of it. And I guess you could say I'm on board with the idea you present, too. I firmly believe that anyone wanting to enjoy the blessings of America as their homeland SHOULD in fact replace their Irish, German, and Italian fervor with American fervor. In fact, were I to decide that NZ was the place for me, it would only be right for me (if I moved there) to lay aside my American patriotism and embrace the patriotism of my adopted country. It would seem silly and arrogant to do otherwise. As to the "Truth, Justice" part; again, I'm not sure that's as common as you think, but I absolutely concur with many (if not most) countries of history striving for truth and justice. I would never wish to imply that America had cornered the market on truth OR justice. I'll get to the MTV exports shortly...

Your thoughts about the phrase "un-American" are very thought-provoking. I guess I'd never thought of the term. First, I'd have assumed it would only be used within the context of America itself. For me (and again, I hadn't really thought of it until now), the term would imply anything that goes against what America stands for and should be. Were I to use it, it would be for things like the FLDS raid, or things that go against freedom toward life, liberty, and pursuing happiness. Quashing opportunity for self-improvement or advancement. These things would be unamerican. Outside America, the word seems hard to define. EVERYTHING that is not in or of America would technically be unamerican, but not in a bad way. Auschwitz is very unamerican, but so too would be the tree growing on the outside of the fence. I don't see it as a phrase that, again, corners the market on virtue, but that America aligns herself (ideally) with those virtues. For me (and I may be botching this analogy), I would be heartened (not offended) to hear you or your neighbors say, "That is entirely un-Kiwi" about something negative. It wouldn't bother me at all for nations/races/religions to draw lines that put themselves on the side of 'good things,' and keep themselves from associating with 'bad things.' Does that make sense?

Back to the MTV stuff. This really got me thinking. I am VERY patriotic on the one hand, but truly, many of my musings are of the "what are we coming to?" and "how did we get here?" nature. There is SO MUCH of modern (American) culture that is so terribly wrong. I think my patriotism is for what America SHOULD be, what she is MEANT to be (as per the founders). The good feelings I have about my nation are those things that HAVE endured. I love that anyone can get off a boat (legally, please!) and start a business and make millions. It doesn't matter if they were the king of their former homeland or the lowest slave. Here, you are only limited by the shackles within (though different areas do their best to shackle without, too). I love that there are no government-imposed restrictions on marrying someone richer, or poorer, or blacker, or whiter (some families may impose their own, however). ANYONE can buy property (if they can afford it). Landowning isn't reserved for the gentry. Slavery, today, is for the most part a personal choice (debt, etc). These things, to me, are what make America great. What people do with those freedoms and opportunities (MTV, pornography, glorified rebellion) sadden me (and I think the Founders as well!) greatly.

And many of us do not want to be the "sheriff" on ANY kind of horse. Global markets lend to that, obviously, and it can be good and bad. And complicated, I'd guess. There is SO MUCH of American 'stuff' - policy at home, actions internationally - that I don't like, and more I don't understand. *sigh* If you didn't see any hypocrisy, if we only claimed to be somewhat decent, would it seem better? Try as I might, hypocrisy or no, I wouldn't want us to 'step down' and let China take that 'leader of the (not) free world' position (which they might take anyway, the way we're going). We may not be perfect, but considering the powerful nations of the globe, are we at least the lesser of evils? Millions of people a year strive to move here. And providing they're not working to take us down 'from within,' we must be somewhere on the list of 'good' places.

Does this line up with what you expected me to say? Are there any surprises here? Any totally-blind areas where you haven't gotten thru to me? Let me have it... :)