The Washington Supreme Court heard arguments in City of Bothell v. Barnhart a few weeks ago, and I just saw it on TV. I happened to catch a few minutes of Barnhart's argument at bar this morning on my lunch break. Here's the background as summarized on the Supreme Court's blog:City of Bothell v. Barnhart, No. 84907-2. James Barnhart was convicted by jury in the Bothell Municipal Court of stalking. The Superior Court affirmed the conviction. Bothell is one of a few cities in the state that is located in two counties—both King and Snohomish Counties. Barnhart was charged in Snohomish but two jurors from King County sat on the panel. The Court of Appeals held that the Washington Constitution (Art. I, Sec. 22) requires that a defendant be tried by a jury of the county where alleged offense was committed. The court held that Barnhart’s jury trial right was violated, reversed the conviction, and remanded for a new trial.
The State Supreme Court granted review. The City of Bothell argues that the true community in which Banhart committed his crime was the City of Bothell, regardless of county lines that divide the city. The trial court is run by the City as a whole, and often hears cases originating from crimes in both Sno and King counties. Conceptually, there is some support for the city's argument that local means municipal in 6th Amendment jurisprudence.
Barnhart's argument is that the jury was not constitutionally impaneled because two members resided in King County, relying on the plain reading of § 21 & 22 of the Washington state's constitution. § 21 explicitly defines community as having to do with a county. The principle that juries must represent the local population is well-agreed upon. The question lies in choosing the correct set arbitrary political lines that define community.
It doesn't come as a shock that Sarah Palin badly bungled the story of Paul Revere's Midnight Ride at a campaign stop at Bunker Hill this weekend:He who warned, uh, the … the British that they weren’t gonna be takin’ away our arms, uh, by ringin’ those bells and, um, by makin’ sure that as he’s ridin’ his horse through town to send those warnin’ shots and bells that, uh, we were gonna be secure and we were gonna be free … and we were gonna be armed.
Quick review on the substance:- Paul Revere's warning somebody - check.
- There's a horse involved - check.
- Paul Revere's firing wildly as he rides through towns - negative.
- Warned the British - backwards.
- "gonna be secure" - not really clear what this means. As far as personal security was concerned, continuation as a colony of the British crown probably entailed less risk for Americans.
- "We were gonna be armed" - half check.
The half check there is a bit tricky. It's also the most important part of the story in regards to the history of the 2nd Amendment, which is what Sarah Palin was (most likely) trying to get at.
The British left their bunkers on April 19th, 1776 to confiscate arms from the colonial militia. Advance warning of the British movement allowed Massachusetts farm boys to ambush and rout the British, who had not anticipated resistance. This event highlights why Sarah Palin's 'gun-in-every-home' interpretation of the 2nd Amendment is without historical basis.
Up until the invention of the breech loading rifle, whole militias would have to be raised in order to "bear arms" against a tyrannical government. The "well-regulated militia" may not have been a condition upon which gun ownership rested in the original meaning of the 2nd Amendment, but it certainly explained that the right to political violence, and the access to muskets that was a necessary precursor to that right, was one of the populace in general. The individual right to gun ownership was not protected by the 2nd Amendment; it had never been threatened by the British in America. The arms that are protected by the 2nd Amendment, in reaction to British confiscation efforts in the 1770's are guns maintained by militias.
The question that, I believe, DC v. Heller skirted, was whether the evolution of technology created an expanded right to arms. The efficacy of a single "patriot" with a gun was established by post-1789 advances in weapons technology. By inventing that efficacy, Scalia projects a deely creative interpretation onto the single-clause Amendment without any discussion of the underlying principle.
British forces were emphatically not engaged in a house-to-house confiscation of arms; if it had been, Sarah Palin would have a point that an individual right to gun ownership exists. Her rhetoric and deep misunderstanding of American history call attention to the vast absurdities of 'conservative' and 'originalist' schools of constitutional thought.
Charles Krauthammer is a fascinating commentator. Usually he's at his best when he proclaims that nuclear war is just around the corner if American military hegemony isn't preserved. These paranoid parades of terribles are at least entertaining and at best offer high school debaters excellent human extinction impacts. His typical content is also why no one takes him seriously except for the neo-conservative class. His column today, "Rubicon is a river in Wisconsin" is a rare example of real insight on the politics of union-busting Republicans:Led by famously progressive Wisconsin - Scott Walker at the state level and Budget Committee Chairman Paul Ryan at the congressional level - a new generation of Republicans has looked at the debt and is crossing the Rubicon. Recklessly principled, they are putting the question to the nation: Are we a serious people?
The comparison to Julius Caesar is striking. When General Caesar decided to take his army into the fields outside of Rome, he was breaking a long tradition of democratic (if oligarchic) rule. The threat of force against his political opponents was clear and disturbing. No other general had ever passed south of the Rubicon with an army under his control. Julius Caesar's move effectively ended democracy in Rome, establishing the Roman empire.
I personally would not have made the argument that taking away bargaining rights for workers would be such a cathartic break from American democracy. Yet this is exactly the hope that Krauthammer espouses.
The AP is reporting on a black tie gala ""Secession Ball" last night in South Carolina.But organizers of the ball said it had nothing to do with celebrating slavery. Instead, they said the $100-a-person private event was a fundraiser to honor the Southern men who were willing to sacrifice their lives for their homes and their vision of states' rights.
"Their vision of states' rights" no doubt included extending the institution of slavery well into the future. It is true that most Southern propagandists defended secession and civil war via appeal to state sovereignty to protect "vital state interests," but it is impossible to believe that slavery was not paramount among those state interests. The very economic system which supported the old aristocracy of the South looked to be willed away by the faster-growing North which had successfully elected a strong anti-slavery President.
The notions of state sovereignty, nullification, and state superiority to the federal government (conveniently ignoring Article VI of the Constitution) are reflected in much of the political discourse of the 19th century. The Hartford Convention considered the possible secession of the Northeast 40 years before the South dreamed of leaving the Union. The Virginia and Kentucky Resolutions embodied the same constitutional theories that states have the right to review federal laws (beyond the power granted to states to act together in the U.S. Senate to shape the laws of the Union). These arguments became no more persuasive through the 1820s as new states which were founded under Article IV of the constitution came into being or in the 1840s when the Federal government launched an expansionist war against Mexico. The constitutional story of this period was of an increasingly important role of the federal government in creating the vital infrastructure which tied the Union together (post offices, roads, canals, and rail roads).
The direct reason for secession was none of these constitutional theories of states rights or vague federal power. The urgency to secede was provided solely by the North's growing power in Congress and will to end the national system of slavery to which the South had bound the Union. The facts of Ableman v. Booth 62 U.S. 506 (1859) amply demonstrate the growing unease which Northerners felt with being required to participate in a system which enslaved millions and dehumanized the few free blacks in society. Northern states galvanized against the federal law requiring them to return fugitive slaves to their Southern masters. The election of the adamantly abolitionist Lincoln scared the hell out of the South, and that is why on this night 150 years ago, South Carolina's legislature decided to secede from the Union.
The intellectual cover for secession was available for decades, yet the South had not felt an urge to dissolve their ties to the Northern states and their liberal values. Suddenly, slavery was threatened, and Southern political leaders decided to bolt in the night to protect it. NAACP leaders said it made no sense to hold a gala to honor men who committed treason against their own nation for the sake of a system that kept black men and women in bondage as slaves.
Slavery is not an accidental after thought to which the South subscribed. It is a central principle of the confederacy, which is why the Confederate States of America wrote slavery into their constitution. This ball honors the men who charted the course into civil war to protect the abomination and national embarrassment of slavery. There are better people to honor 150 years ago, and not just the eventual victors in the war. We should honor slavery's dead if the South still toasts its dishonorable defenders.
