Tuesday, September 25, 2007

Rudy's Major Contradiction

Rudy Giuliani raised a few eyebrows by telling the NRA convention that he had switched his position on gun control because of 9/11.

His explanation of that flip flop only causes further confusion as far as I'm concerned. Giuliani was very staunch in favor of gun control in 2002, and 2004 so he must nuance the relationship between his change on the issue, and 9/11. He does so by noting an appeals court ruling which overturned a ban on private ownership of handguns in Washington D.C. To Giuliani this ruling evidently caused an epiphany: The rights enshrined by the Constitution are especially dear, particularly in light of 9/11. Here is the exact quote from the A.P.
"It is a very , very strong description of how important personal liberties are in this country and how we have to respect them," he said of the ruling, adding it "sort of maybe even did more to crystalize my thinking on the whole gun issue in light of Sept. 11." the ruling "sort of maybe even did more to crystalize my thinking on the whole gun issue in light of Sept. 11."

"I think, after Sept. 11 — I mean I probably would have had the same impression before, I'm not sure — but after Sept. 11, all that seemed much more powerful to me," Giuliani said.
That logic is a stretch to be sure, but consider the measures which Giuliani supports as a direct result of 9/11, such as wiretapping without a warrant which is a direct violation of the fourth amendment, or the suspension of habeas corpus on suspects determined by the President to be enemy combatants with no judicial oversight whatsoever. How can Giuliani so cavalierly determine that some constitutional rights are more important after 9/11, while others can simply be disregarded at the whim of the President because of 9/11.

Just to reiterate, Giuliani thinks 9/11 is a powerful reminder of how dear the rights given us by the constitution are... at least as far as gun control is concerned anyway. Yet he explicitly calls for unconstitutional measures removing the very rights which he supposedly found so important in response to 9/11. I just don't think his explanation on the relationship of his flip flop on gun control with 9/11 makes much sense actually. What we have here is Giuliani falling back on the one thing which makes him what he is as a national figure. 9/119/119/119/119/119/119/11 ad infinitum... He HAS to make everything 9/11 or become just another overwrought face in a crowd of hysterical Republican candidates. Even when the truth of the issue which he is talking about obviously has no relevance on 9/11, the rhetoric must warp the issue to make it fit.

I think this constant harping by Giuliani on 9/11 is tiresome. Furthermore, it should be instructive that if Giuliani does get the Republican nomination, his Democratic opponent will positively trounce Giuliani in both the city and the state of New York.

"wiretapping without a warrant which is a direct violation of the fourth amendment"

This is just wrong. Not that wiretapping is right, but it does not violate the 4th amendment, in spite of what the ACLU might say. The 4th amendment deals with "persons, houses, papers, and effects" only. It does not apply to electromagnetic emanations or sound waves or anything else not specified. The whole concept of "right to privacy" came from an extremely liberal, indirect interpretation of the 4th amendment, without regard to the actual text.
That is the most stilted reading of the fourth amendment you can possibly have. The equivalent of "papers" in the 18th century are today's communications. Simply because they were not invented during those times does not mean they have no constitutional protections. Besides, I think the founding fathers may have tried to cover unforseen future events by tossing in the very amorphous terminology "effects". Their intent was clear however. And just because they could not have imagined our newfangled inventions does not mean those inventions fall outside the perview of the constitution.
Stilted? I quote the constitution and you call it a stilted reading? So you prefer to deal with INTENT instead of the actual words.

Let's examine clues as to intent. Note that the 4th amendment says "search and seizure", not "search or seizure". The INTENT seems to be to keep the police from barging into houses and taking people's possessions. In wiretapping nothing is seized.

Am I ignoring the right to privacy that all good liberals know must have been the intent of the founding fathers? Am I being stilted? Call it what you will. I don't see the terms "papers" and "effects" as being amorphous or ambiguous. Each means what is says.

And things that are not in the constitution DO fall outside the purview of the constitution.
All I can say about your reading of the 4th amendment Jeff is thank goodness this issue has been settled, by statute and the supreme court. You may feel free to google Berger V. New York or Katz V. United States.

I'm not basing this argument on the right to privacy either. No where in this post or any of my responses can you find me citing that right. Quite simply the Government does not have the right to take away our right to security in our persons, houses and effects (property of a personal nature such as computers, and telephones etc...)

Finally, the notion that a circumstance that could not have been anticipated by the founding fathers must needs be beyond the reach of constitutional remedy is just absurd. Do I really have to describe how?
I took your suggestion and googled Berger V. New York. While you are correct that the court took a liberal view and ruled the way you would, there was written dissent from 3 justices.

I think Justice Black expressed my opinion quite nicely in a lengthy dissent. For example he said:
"While the electronic eavesdropping ere bears some analogy to the problems with which the Fourth Amendment is concerned, I am by no means satisfied that the Amendment controls the constitutionality of such eavesdropping. As pointed out, the Amendment only bans searches and seizures of "persons, houses, papers, and effects." This literal language imports tangible things, and it would require an expansion of the language used by the framers, in the interest of "privacy" or some equally vague judge-made goal, to hold that it applies to the spoken word. It simply requires an imaginative transformation of the English language to say that conversations can be searched and words seized."

Justice Black uses logic, analysis, precedent, and cites many other court cases to support his (and my) position.
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