Monday, July 28, 2008

Guns, Foreign Courts, and the Moral Consensus of the International Community

In a landmark decision that will impact the future of gun regulation in the United States, late last month the Supreme Court struck down a handgun ban in Washington, D.C. In District of Columbia etal. v. Heller (No. 07-290) a slim 5-4 majority found the D.C. ban to violate the Second Amendment to the U.S. Constitution, which reads, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Over the last few years observers of the Supreme Court have noticed a trend among some of the justices to cite the decisions of foreign courts as part of the relevant precedent in deciding the cases before them. In 2005, justices Scalia and Breyer engaged in a rare public conversation on this very topic, "Constitutional Relevance of Foreign Court Decisions." In the recently-decided D.C. v. Heller neither of the two dissenting opinions, written by justices Stevens and Breyer respectively, make substantial reference to foreign court decisions. But the growing phenomena of reference to foreign judgments as precedents raises the question of what the justices might have found if they had consulted such materials.

This tendency to invoke foreign jurisprudence is becoming more troubling as it becomes clearer that the moral consensus that once united Western nations has almost entirely broken down. A few years ago a pastor I know, as part of his duties as a representative of the Christian Reformed Church in North America (CRC), took part in an inter-church dialogue with a member of the Gereformeerde Kerken in Nederland (GKN), a grouping of Reformed congregations in the Netherlands. The GKN sent what they considered to be a moderate pastor to participate in this conversation about moral issues. In the course of the discussion, the GKN moderate asserted that it was more evil to own a gun than to have an abortion. At this, the CRC representative was only able to respond that their discussion was effectively over. The CRC's official position on abortion is that the church "condemns the wanton or arbitrary destruction of any human being at any stage of its development from the point of conception to the point of death." As any rhetorician knows, argument can only proceed where there is some basic level of agreement, and the ethical opinion expressed by the GKN pastor was so far removed from the sensibilities of the CRC that there was effectively no point of contact for continuing dialogue. The GKN has since joined a number of other Protestant denominations in the Netherlands, including other Lutheran and Reformed denominations, to form the Protestantse Kerk in Nederland (PKN).

While this is a relatively minor anecdote, it serves well to illustrate the conflicting moral values placed on issues of life by the mainstream culture in Europe and the United States. No doubt there are those on either side of the Atlantic who would take issue with the dominant cultural judgment, but the national and international legal documents underscore the real differences. Where the U.S. Constitution's Bill of Rights singles out the right of the people to keep and bear arms, proposed European Union constitutional documents make no such mention. And as a recent Washington Times article relates, "many in Western Europe and Japan see U.S. gun ownership rates and gun violence as a clear mark of difference with other industrial countries."

But the difference has not always been so stark. Indeed, the preamble to the UN Universal Declaration of Human Rights, written in 1948, recognized the possibility of "rebellion against tyranny and oppression" as "a last resort," an option that ideally could be avoided by protections according to the rule of law.

On the question of abortion, part of what derailed adoption of the EU Constitution in 2004 was concern by nations like Poland and Ireland that the vague constitutional provisions about "dignity" and "integrity" of the human person would require the repeal of national anti-abortion laws. The Treaty of Lisbon, successor to the failed EU Constitution, was rejected by Ireland last month, in part over similar concerns by pro-life advocates that adoption of the treaty "would threaten the Irish constitutional protection for the unborn, given the almost universal acceptance and promotion of abortion at the EU level."

Upon reflection, then, the ethical judgment expressed by the GKN pastor seems to represent fairly well the mainstream EU attitude toward moral issues like guns and abortion. If part of what characterizes a civilization is a consensus on moral issues, then the idea of a unified Western civilization encompassing Europe and the United States is an illusion. A consensus that diverges on such fundamental questions of the right to life and responsibilities of self-defense is simply no consensus at all.


The Far Left's War on Direct Democracy

A total of 24 states allow voters to change laws on their own by collecting signatures and putting initiatives on the ballot. It's healthy that the entrenched political class should face some real legislative competition from initiative-toting citizens. Unfortunately, some special interests have declared war on the initiative process, using tactics ranging from restrictive laws to outright thuggery.

The initiative is a reform born out of the Progressive Era, when there was general agreement that powerful interests had too much influence over legislators. It was adopted by most states in the Midwest and West, including Ohio and California. It was largely rejected by Eastern states, which were dominated by political machines, and in the South, where Jim Crow legislators feared giving more power to ordinary people.

But more power to ordinary people remains unpopular in some quarters, and nothing illustrates the war on the initiative more than the reaction to Ward Connerly's measures to ban racial quotas and preferences. The former University of California regent has convinced three liberal states -- California, Washington and Michigan -- to approve race-neutral government policies in public hiring, contracting and university admissions. He also prodded Florida lawmakers into passing such a law. This year his American Civil Rights Institute (ACRI) aimed to make the ballot in five more states. But thanks to strong-arm tactics, the initiative has only made the ballot in Arizona, Colorado and Nebraska.

"The key to defeating the initiative is to keep it off the ballot in the first place," says Donna Stern, Midwest director for the Detroit-based By Any Means Necessary (BAMN). "That's the only way we're going to win." Her group's name certainly describes the tactics that are being used to thwart Mr. Connerly.

Aggressive legal challenges have bordered on the absurd, going so far as to claim that a blank line on one petition was a "duplicate" of another blank line on another petition and thus evidence of fraud. In Missouri, Secretary of State Robin Carnahan completely rewrote the initiative's ballot summary to portray it in a negative light. By the time courts ruled she had overstepped her authority, there wasn't enough time to collect sufficient signatures.

Those who did circulate petitions faced bizarre obstacles. In Kansas City, a petitioner was arrested for collecting signatures outside of a public library. Officials finally allowed petitioners a table inside the library but forbade them to talk. In Nebraska, a group in favor of racial preferences ran a radio ad that warned that those who signed the "deceptive" petition "could be at risk for identity theft, robbery, and much worse."

Mr. Connerly says that it's ironic that those who claim to believe in "people power" want to keep people from voting on his proposal: "Their tactics challenge the legitimacy of our system." He's not alone. Liberal columnist Anne Denogean of the Tucson Citizen opposes the Connerly initiative, but last month she wrote that BAMN "is showing a disgusting lack of respect for the democratic process and the right of all Arizonans to participate in it." She detailed how members of this organization harass petitioners and film people who sign the petition, while telling them they are backing a racist measure. The police had to be called when BAMN blocked the entrance of a Phoenix office where circulators had to deliver their petitions. "BAMN's tactics," she concluded, "resemble those used by anti-abortion activists to prevent women from entering abortion clinics."

But BAMN proudly posts videos on its success in scaring away voters, or convincing circulators to hand over their petitions to its shock troops. "If you give me your signatures, we'll leave you alone," says a BAMN volunteer on one tape to someone who's earning money by circulating several different petitions.

What about voters' rights to sign ACRI's petitions? BAMN organizer Monica Smith equates race-neutral laws with Jim-Crow segregation laws and slavery. She told Tuscon columnist Denogean that voters are simply being educated that ACRI is "trying to end affirmative action . . . We let them know it's up on the KKK's Web site." Mr. Connerly has repudiated any support from racists.

Other opponents of Mr. Connerly deplore the blocking and name-calling. Arizona State Rep. Kyrsten Sinema told me that initiatives have been used to pass ideas such as campaign finance and redistricting reform often opposed by entrenched legislators. "People have a right to sign a petition, hear the arguments and then vote," she says. Ms. Sinema thinks Arizonans can be persuaded to vote down ACRI's measure, much as they voted down a ban on gay marriage in 2006.

The war against citizen initiatives has other fronts. This year in Michigan, taxpayer groups tried to recall House Speaker Andy Dillon after he pushed through a 22% increase in the state income tax. But petitioners collecting the necessary 8,724 signatures in his suburban Detroit district were set upon. In Redford, police union members held a rally backing Mr. Dillon and would alert blockers to the location of recall petitioners. Outsiders would then surround petitioners and potential signers, using threatening language.

Mr. Dillon denied organizing such activity. Then it was revealed two of the harassers were state employees working directly for him. Another "voter educator" hired by the state's Democratic Party had been convicted of armed robbery. After 2,000 signatures were thrown out on technical grounds, the recall effort fell 700 signatures short.

Ever since voters in virtually every state with direct democracy passed term limits in the 1990s, state legislators have been hostile to the process. Now Montana, South Dakota, Nebraska and Colorado have all passed legislation to prohibit people from out-of-state from circulating a petition, and also to ban payment to circulators on a per-signature basis.

To his credit, Colorado's Democratic Gov. Bill Ritter vetoed such curbs. In March, a Sixth Circuit federal appeals court panel unanimously ruled that an Ohio law barring per-signature payment violated the First Amendment. Similarly, a Ninth Circuit panel just voted unanimously to strike down Arizona's residency law for circulators.

Some judges think the "blocking" of signature gatherers has gone too far. In 2006, Nevada Judge Sally Loehrers decreed a "civility zone" that barred opposing sides from coming within arms' length of each other at petition signing sites. "The blockers were off the streets within two days," says Paul Jacob, the head of Citizens in Charge, which promotes the initiative process.

Last year, Mr. Jacob was charged with conspiracy to defraud the state of Oklahoma in a bizarre prosecution that claimed he brought in out-of-state signature gatherers in violation of the state's residency requirement. Yet local public sector unions opposed to Mr. Jacob hired out-of-state outfits such as the Voter Education Project, an AFL-CIO offshoot that specializes in harassing signature drives.

Representative government will remain the enduring feature of American democracy, but the initiative process is a valuable safety valve. So long as elected officials gerrymander their districts and otherwise make it nearly impossible for voters to oust them, direct lawmaking will be popular. That's why attempts to arbitrarily curb the initiative, or to intimidate people from exercising their right to participate, must be resisted. It's a civil liberties issue that should unite people of good will on both the right and left.


Did Colorado ban the Bible?

Social conservatives are in a fine lather over a Colorado law (PDF) signed by Governor Bill Ritter on May 29 that extends anti-discrimination protections to sexual minorities in matters of business and public accommodations. On its face, the law is the latest effort by our socially conscious lawmakers to force us all to be nice to each other under penalties of fines and imprisonment -- specifically, $300 or one year in jail per violation.

It's all just a bit too much like that old joke about the Soviet Union, in which the commissars express concern about the dreary, bleak attitudes of their subjects: "Everybody must be happy! Anybody not happy by noon tomorrow will be shot!"

Religious conservatives have also fretted that businesses will be forced to cater to people they find repugnant -- for instance, that wedding photographers will be compelled to take shots of same-sex ceremonies. That does, in fact, seem to be the intent of the authors. Rep. Joel Judd responded to just such an objection with the comment that, "If you choose to do commerce in Colorado you have to abide by these rules."

Uh huh. Good luck to the happy gay couple who hires a true-believing Roman Catholic shutterbug. May the record of your most-important day not be made up of 300 shots of the photographer's shoes.

Perhaps most troubling, the law's Section 8 restricts the sort of written material that businesses and landlords may publish and distribute. Supposedly, this provision applies only to statements of an intent to discriminate, but if that's what the authors intended, it's not what they wrote.
SECTION 8. 24-34-701, Colorado Revised Statutes, is amended to read:

24-34-701. Publishing of discriminative matter forbidden. No person, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation, resort, or amusement, directly or indirectly, by himself or herself or through another person shall publish, issue, circulate, send, distribute, give away, or display in any way, manner, or shape or by any means or method, except as provided in this section, any communication, paper, poster, folder, manuscript, book, pamphlet, writing, print, letter, notice, or advertisement of any kind, nature, or description which THAT is intended or calculated to discriminate or actually discriminates against any disability, race, creed, color, sex, SEXUAL ORIENTATION, marital status, national origin, or ancestry or against any of the members thereof in the matter of furnishing or neglecting or refusing to furnish to them or any one of them any lodging, housing, schooling, or tuition or any accommodation, right, privilege, advantage, or convenience offered to or enjoyed by the general public or which states that any of the accommodations, rights, privileges, advantages, or conveniences of any such place of public accommodation, resort, or amusement shall or will be refused, withheld from, or denied to any person or class of persons on account of disability, race, creed, color, sex, SEXUAL ORIENTATION, marital status, national origin, or ancestry or that the patronage, custom, presence, frequenting, dwelling, staying, or lodging at such place by any person or class of persons belonging to or purporting to be of any particular disability, race, creed, color, sex, SEXUAL ORIENTATION, marital status, national origin, or ancestry is unwelcome or objectionable or not acceptable, desired, or solicited.
Note that the law doesn't just say that you can't publish material that states you'll deny services to protected classes of people, it also says you can't make them feel "unwelcome." Hurting people's feelings is now a criminal offense.

Social conservatives object that handing out the Bible or the Book of Mormon may be illegal under the new law. While I can't imagine the courts allowing that interpretation to stand, the text of the law is open to just such a reading. I have to think that legislators threw as much as they could against the legal wall, just to see what would stick.

Many socially conservative groups based in Colorado say they flat-out won't obey the law. As much as I despise their attitudes toward gays and lesbians, I can't blame them. Private individuals, businesses and organizations have the right to decide who they'll associate with and who they won't, and what ideas they'll express along the way, no matter how abhorrent or unpopular their criteria. If the law doesn't recognize that right, the law should be defied.

Lawmakers who set out to make society kinder and gentler through the use of force do violence to the whole idea of tolerance -- and to our liberty.


Third of Britain's Muslim students back killings

Radicalism and support for sharia is strong in British universities

ALMOST a third of British Muslim students believe killing in the name of Islam can be justified, according to a poll. The study also found that two in five Muslims at university support the incorporation of Islamic sharia codes into British law.

The YouGov poll for the Centre for Social Cohesion (CSC) will raise concerns about the extent of campus radicalism. "Significant numbers appear to hold beliefs which contravene democratic values," said Han-nah Stuart, one of the report's authors. "These results are deeply embarrassing for those who have said there is no extremism in British universities."

The report was criticised by the country's largest Muslim student body, Fosis, but Anthony Glees, professor of security and intelligence studies at Buckingham University, said: "The finding that a large number of students think it is okay to kill in the name of religion is alarming. "There is a wide cultural divide between Muslim and nonMuslim students. The solution is to stop talking about celebrating diversity and focus on integration and assimilation."

The researchers found that 55% of nonMuslim students thought Islam was incompatible with democracy. Nearly one in 10 had "little respect" for Muslims.

In addition to its poll of 1,400 Muslim and nonMuslim students, the centre visited more than 20 universities to interview students and listen to guest speakers. It found that extremist preachers regularly gave speeches that were inflammatory, homophobic or bordering on antisemitic. The researchers highlighted Queen Mary college, part of London University, as a campus where radical views were widely held. Last December, a speaker named Abu Mujahid encouraged Muslim students to condemn gays because "Allah hates" homosexuality. In November, Azzam Tamimi, a British-based supporter of Hamas, described Israel as the most "inhumane project in the modern history of humanity". James Brandon, deputy director at CSC , said: "Our researchers found a ghettoised mentality among Muslim students at Queen Mary. Also, we found the segregation between Muslim men and women at events more visible at Queen Mary."

A spokesman for Queen Mary said the university was aware the preachers had visited but did not know the contents of their speeches. "Clearly, we in no way associate ourselves with these views. However, also integral to the spirit of university life is free speech and debate and on occasion speakers will make statements that are deemed offensive."

In the report, 40% of Muslim students said it was unacceptable for Muslim men and women to associate freely. Homophobia was rife, with 25% saying they had little or no respect for gays. The figure was higher (32%) for male Muslim students. Among nonMuslims, the figure was only 4%.

The research found that a third of Muslim students supported the creation of a world-wide caliphate or Islamic state.

A number of terrorists have been radicalised at British universities. Kafeel Ahmed, who drove a flaming jeep into a building at Glasgow airport last year and died of his burns, is believed to have been radicalised while studying at Anglia Ruskin university, Cambridge.

Wes Streeting, president of the National Union of Students, condemned the study. "This disgusting report is a reflection of the biases and prejudices of a right-wing think tank - not the views of Muslim students across Britain," he said. "Only 632 Muslim students were asked vague and misleading questions, and their answers were wilfully misinterpreted."

Some of the findings amplify previous research. A report by Policy Exchange last year found that 37% of all Muslims aged 16-24 would prefer to live under a sharia system. Baroness Warwick, chief executive of Universities UK, said: "Violence, or the incitement to violence, has no place on a university campus."



Political correctness is most pervasive in universities and colleges but I rarely report the incidents concerned here as I have a separate blog for educational matters.

American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of other countries. The only real difference, however, is how much power they have. In America, their power is limited by democracy. To see what they WOULD be like with more power, look at where they ARE already very powerful: in America's educational system -- particularly in the universities and colleges. They show there the same respect for free-speech and political diversity that Stalin did: None. So look to the colleges to see what the whole country would be like if "liberals" had their way. It would be a dictatorship.

For more postings from me, see TONGUE-TIED, GREENIE WATCH, EDUCATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, GUN WATCH, SOCIALIZED MEDICINE, AUSTRALIAN POLITICS, DISSECTING LEFTISM, IMMIGRATION WATCH INTERNATIONAL and EYE ON BRITAIN. My Home Pages are here or here or here. Email me (John Ray) here. For times when is playing up, there are mirrors of this site here and here.


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