Category Archives: History

The Right to Bear Arms

THE SECOND AMENDMENT

By Nelson Lund and Adam Winkler

Modern debates about the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms, or a right that can be exercised only through militia organizations like the National Guard. This question, however, was not even raised until long after the Bill of Rights was adopted.

Many in the Founding generation believed that governments are prone to use soldiers to oppress the people. English history suggested that this risk could be controlled by permitting the government to raise armies (consisting of full-time paid troops) only when needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or other emergencies, the government could rely on a militia that consisted of ordinary civilians who supplied their own weapons and received some part-time, unpaid military training.

The onset of war does not always allow time to raise and train an army, and the Revolutionary War showed that militia forces could not be relied on for national defense. The Constitutional Convention therefore decided that the federal government should have almost unfettered authority to establish peacetime standing armies and to regulate the militia.

This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that the proposed Constitution would take from the states their principal means of defense against federal usurpation. The Federalists responded that fears of federal oppression were overblown, in part because the American people were armed and would be almost impossible to subdue through military force.

Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions. First, that the proposed new Constitution gave the federal government almost total legal authority over the army and militia. Second, that the federal government should not have any authority at all to disarm the citizenry. They disagreed only about whether an armed populace could adequately deter federal oppression.

The Second Amendment conceded nothing to the Anti-Federalists’ desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Yet the Amendment was easily accepted because of widespread agreement that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

Much has changed since 1791. The traditional militia fell into desuetude, and state-based militia organizations were eventually incorporated into the federal military structure. The nation’s military establishment has become enormously more powerful than eighteenth century armies. We still hear political rhetoric about federal tyranny, but most Americans do not fear the nation’s armed forces and virtually no one thinks that an armed populace could defeat those forces in battle. Furthermore, eighteenth century civilians routinely kept at home the very same weapons they would need if called to serve in the militia, while modern soldiers are equipped with weapons that differ significantly from those generally thought appropriate for civilian uses. Civilians no longer expect to use their household weapons for militia duty, although they still keep and bear arms to defend against common criminals (as well as for hunting and other forms of recreation).

The law has also changed. While states in the Founding era regulated guns—blacks were often prohibited from possessing firearms and militia weapons were frequently registered on government rolls—gun laws today are more extensive and controversial. Another important legal development was the adoption of the Fourteenth Amendment. The Second Amendment originally applied only to the federal government, leaving the states to regulate weapons as they saw fit. Although there is substantial evidence that the Privileges or Immunities Clause of the Fourteenth Amendment was meant to protect the right of individuals to keep and bear arms from infringement by the states, the Supreme Court rejected this interpretation in United States v. Cruikshank (1876).

Until recently, the judiciary treated the Second Amendment almost as a dead letter. In District of Columbia v. Heller (2008), however, the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in the nation’s capital. A 5–4 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, not a right of the states to maintain a militia.

The dissenters disagreed. They concluded that the Second Amendment protects a nominally individual right, though one that protects only “the right of the people of each of the several States to maintain a well-regulated militia.” They also argued that even if the Second Amendment did protect an individual right to have arms for self-defense, it should be interpreted to allow the government to ban handguns in high-crime urban areas.

Two years later, in McDonald v. City of Chicago (2010), the Court struck down a similar handgun ban at the state level, again by a 5–4 vote. Four Justices relied on judicial precedents under the Fourteenth Amendment’s Due Process Clause. Justice Thomas rejected those precedents in favor of reliance on the Privileges or Immunities Clause, but all five members of the majority concluded that the Fourteenth Amendment protects against state infringement the same individual right that is protected from federal infringement by the Second Amendment.

Notwithstanding the lengthy opinions in Heller and McDonald, they technically ruled only that government may not ban the possession of handguns by civilians in their homes. Heller tentatively suggested a list of “presumptively lawful” regulations, including bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in “sensitive places” such as schools and government buildings, laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.” Many issues remain open, and the lower courts have disagreed with one another about some of them, including important questions involving restrictions on carrying weapons in public.

The Great Sit Down

The 1976 BBC documentary, The Great Sit Down, focuses on the United Auto Workers’ struggle for recognition and the sit-down strikes against General Motors which took place in February 1937.

At 8 p.m. on December 30, 1936, in one of the first sit-down strikes in the United States, autoworkers occupy the General Motors Fisher Body Plant Number One in Flint, Michigan. The autoworkers were striking to win recognition of the United Auto Workers (UAW) as the only bargaining agent for GM’s workers; they also wanted to make the company stop sending work to non-union plants and to establish a fair minimum wage scale, a grievance system and a set of procedures that would help protect assembly-line workers from injury. In all, the strike lasted 44 days.

The Flint sit-down strike was not spontaneous; UAW leaders, inspired by similar strikes across Europe, had been planning it for months. The strike actually began at smaller plants: Fisher Body in Atlanta on November 16, GM in Kansas City on December 16 and a Fisher stamping plant in Cleveland on December 28. The Flint plant was the biggest coup, however: it contained one of just two sets of body dies that GM used to stamp out almost every one of its 1937 cars. By seizing control of the Flint plant, autoworkers could shut down the company almost entirely.

So, on the evening of December 30, the Flint Plant’s night shift simply stopped working. They locked themselves in and sat down. “She’s ours!” one worker shouted.

GM argued that the strikers were trespassing and got a court order demanding their evacuation; still, the union men stayed put. GM turned off the heat in the buildings, but the strikers wrapped themselves in coats and blankets and hunkered down. On January 11, police tried to cut off the strikers’ food supply; in the resulting riot, known as the “Battle of the Running Bulls,” 16 workers and 11 policemen were injured and the UAW took over the adjacent Fisher Two plant. On February 1, the UAW won control of the enormous Chevrolet No. 4 engine factory. GM’s output went from a robust 50,000 cars in December to just 125 in February.

Despite GM’s enormous political clout, Michigan Governor Frank Murphy refused to use force to break the strike. Though the sit-ins were illegal, he believed, he also believed that authorizing the National Guard to break the strike would be an enormous mistake. “If I send those soldiers right in on the men,” he said, “there’d be no telling how many would be killed.” As a result, he declared, “The state authorities will not take sides. They are here only to protect the public peace.”

Meanwhile, President Roosevelt urged GM to recognize the union so that the plants could reopen. In mid-February, the automaker signed an agreement with the UAW. Among other things, the workers were given a 5 percent raise and permission to speak in the lunchroom.

Copyright Disclaimer:

Under Section 107 of the Copyright Act 1976, allowance is made for “fair use” for  criticism, comment, news reporting, teaching, scholarship, and research.  Non-profit, educational or personal use tips the balance in favor of fair use.

Revealed: The Activists Who Uncovered the FBI’s Covert CoIntelPro Counter-Surveillance Program

On March 8, 1971, a group of eight anti-war activists calling themselves the Citizens’ Commission to Investigate the FBI broke into an FBI office in Media, Pennsylvania and removed every document they found. The group later leaked the removed documents to the press, revealing the FBI’s covert counter-intelligence program, CoIntelPro, designed to infiltrate, monitor and disrupt social and political movements. Documents also revealed a mass surveillance campaign being conducted against politicians, celebrities and prominent social leaders. These discoveries led the U.S. Senate’s Church Committee investigation which put an end to the program and led to reforms in the FBI’s domestic security investigations.

Despite FBI director  J. Edgar Hoover assigning 200 agents to investigate the burglary, the FBI was never able to determine the identities of the activists responsible for the break-in. In January 2014, the former activists identities were finally revealed by Betty Medsger, the former Washington Post reporter responsible for breaking the story in 1971, in her book, “The Burglary: The Discovery of J. Edgar Hoover’s Secret FBI.”

Amy Goodman of Democracy Now! interviews three of the original activists; John Raines, Bonnie Raines and Keith Forsyth, along with their their attorney, David Kairys. The former activists discuss how they planned and executed the break-in, and how they managed to keep their identities hidden all these years. Also discussed is the FBI smear campaign against the outspoken Hollywood actress Jane Seberg; the suicide letter sent to Martin Luther King Jr. by the FBI; and the assassination of Black Panthers leader Fred Hampton. Their story is relevant now more than ever amidst revelations about the current domestic surveillance abuses and the FBI’s entrapment tactics and informant culture which many critics believe has led to a manufactured war on terror.

Howard Zinn: Hidden History of The American Working Class (1992)

Synopsis: Social activist, political scientist and labor historian, Howard Zinn, delivers a presentation on  “The History Of The American Working Class.” The presentation took place in San Francisco at an educational forum sponsored by the Labor Video Project. Zinn was political science professor at Boston University and was considered the preeminent scholar on civil disobedience during the Vietnam War Era. He has authored more than twenty books, including his highly influential work, A People’s History of the United States.

Noam Chomsky: Corporate Assault on Public Education (2012)

Synopsis: Noam Chomsky delivered his lecture on the goals of Public Education on March 16, 2012, at St. Phillip’s Episcopal Church in Harlem, NY. Chomsky discusses the longstanding tradition of utilizing public education as a means of breeding civic passivity and conformity, while discouraging free and independent thought. Chomsky sets forth the premise that the ruling class utilizes public education to naturalize individuals into the established corporate ethos and to dissuade them from challenging the dominant ideology and economic structure. Chomsky cuts through the political rhetoric with a detailed historical analysis of the Western practice of using social institutions to indoctrinate the young.

Gary Webb: The Suppression of Uncomfortable Inquiries

Gary Webb was an award winning investigative journalist who is best known for his 1996 series of articles in the San Jose Mercury News, entitled “Dark Alliance.” The series exposed a crack-cocaine drug trafficking ring operated by associates of the Nicaraguan Contra Rebels, acting with the knowledge and protection of the CIA, which extended from Los Angeles, CA, to the Midwestern United States. Continue reading Gary Webb: The Suppression of Uncomfortable Inquiries

The Presumption of Innocence

The presumption of innocence, an ancient tenet of Criminal Law, is actuallymisnomer. According to the U.S. Supreme Court, the presumption of the innocence of a criminal defendant is best described as an assumption of innocence that is indulged in the absence of contrary evidence (Taylor v. Kentucky, 436 U.S. 478, 98S. Ct. 1930, 56 L. Ed. 2d 468 [1978]). It is not considered evidence of the defendant’s innocence, and it does not require that a mandatory inference favorable to the defendant be drawn from any facts in evidence.  Continue reading The Presumption of Innocence