Freedom Updates: August 14, 2003

The Colorado Freedom Report:  A libertarian journal of politics and culture.

The Colorado Freedom

Freedom Updates:
August 14, 2003

All Freedom Updates by Ari Armstrong unless otherwise noted.

Revival of the Ninth and Tenth?
The Ninth Amendment states, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The Tenth Amendment states, "The powers not delegated to the Untied States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Could it be that these "lost amendments" are being unearthed?

In a recent essay titled "Kennedy's Libertarian Revolution," legal scholar Randy Barnett analyzes Justice Kennedy's writing on Lawrence v. Texas, the sodomy case. Barnett writes:

[T]he case is revolutionary because Justice Kennedy (and at least four justices who signed on to his opinion without separate concurrences) have finally broken free of the post-New Deal constitutional tension between a "presumption of constitutionality" on the one hand and "fundamental rights" on the other. Contrary to what has been reported repeatedly in the press, the Court in Lawrence did not protect a "right of privacy." Rather, it protected "liberty" -- and without showing that the particular liberty in question is somehow "fundamental."

Even though Justice Thomas wrote a dissenting view in this case, he too has expressed some concern for the enumeration of powers. As Barnett notes, how one views the 14th Amendment is pivotal. If the debate is between limiting federal powers and protecting individual rights, ultimately libertarians will come out ahead.

By the way, Justice Kennedy also told the American Bar Association recently, "Our resources are misspent, our punishments too severe, our sentences too long. I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In all too many cases, mandatory minimum sentences are unjust." For more information about this subject, see Families Against Mandatory Minimums.

The War on the Sick
The federal Constitution does not authorize the federal government to interfere with medical marijuana, and the Tenth Amendment reserves this matter "to the States... or to the people."

In a July 29 column for the Rocky Mountain News, Paul Campos writes, "In the past few years, California, Colorado, Washington, Oregon, Maine, Hawaii and Nevada have all given doctors the legal right to prescribe marijuana for patients who would benefit from this comparatively harmless pain reliever. In an outburst of disgusting hypocrisy that ought to make even the most cynical drug warrior blush, the Bush administration has followed in the Clinton administration's footsteps by continuing to use federal government power and money to override state sovereignty on this issue. The DEA and the Justice Department are persecuting doctors who prescribe medical marijuana, even though these doctors have every right to do so under the laws of the states in which they practice. In an effort to stop this abuse of federal power, a bipartisan congressional coalition, led by Reps. Maurice Hinchey, D-N.Y., Dana Rohrabacher, R-Calif., Ron Paul, R-Texas, and Sam Farr, D-Calif., managed to get the House of Representatives to vote on an amendment that would have prevented the DEA and the Justice Department from spending federal tax dollars to raid and prosecute medical marijuana patients and providers. Although the amendment was defeated by a vote of 273-152, the mere fact that one house of Congress actually voted on this issue is an important step forward."

Four of Colorado's seven members of congress voted with Ron Paul in favor of cutting this abuse of federal power: Democrats DeGette and Udall and Republicans Tancredo and Beauprez.

Shamefully, three Republicans -- despite their lip service to limited government -- voted against the measure and for continued federal raids on the sick and their doctors: McInnis, Musgrave, and Hefley.

Homosexuality and Civilization
In her August 13 attack on homosexuality in the Rocky Mountain News, letter-writer Charlene G. Mills claims, "The Bible makes it very clear that homosexuality is a sin (Romans 1:26-27, Leviticus 18:22). Studies of previous civilizations reveal that when a society strays from the sexual ethic of marriage, it deteriorates and eventually disintegrates!"

I have heard this amusing claim several times, but not once have I seen a citation for such a study. I strongly suspect the "studies" -- if they exist at all -- either "cherry picked" the data (meaning they looked at only a few cultures and ignored others) or drew implausible conclusions from weak correlations.

A more realistic theory of the decline of civilizations holds the main problem is a bloated bureaucracy, brought on, in part, by busy-body pseudo-moralists who seem to have nothing better to do with their time than encourage the passage of yet more laws. In fact, "Ifeminist" Wendy McElroy argues legal meddling has created the current social conflicts surrounding marriage, and "marriage needs to be removed from power politics and privatized."

Bill Johnson and Trigger Locks
Dear Mr. Johnson, [Rocky Mountain News columnist],

You are to be commended for urging the responsible use of guns.

However, your advice to use a trigger guard is, I believe, imprudent. I think it would be completely irresponsible to trust such a device. Some trigger guards pop open just by dropping them. They are, to my mind, roughly the equivalent of "child safety caps," meaning they fail too easily. At the same time, some trigger locks are too difficult to remove by fearful users in a defensive situation. (And, of course, the number of unintentional gun deaths is much lower than the number of defensive gun uses.)

All that said, there may be an improved trigger lock on the market, so I don't want to categorically deny such things might be useful in some situations (though I'm very skeptical).

I do not yet have children, but I'll describe the plan I've made for when I become a parent. First, during the day, I plan to carry my handgun legally concealed. This is absolutely the best way to assure the gun never falls into the wrong hands, while at the same time permitting defensive use. Second, for the night, I plan to install a metal box, bolted to the floor or wall, with a touch-key combination lock. The idea is that such a touch-key system is easier to use during a high-stress, defensive situation. (Of course, I never expect to have to use a gun defensively, but then I never expect to have to need my fire insurance, either.)

Obviously, some very bad things happen with guns, and we all need to seek ways to prevent those things. At the same time, some very good things also happen with guns -- people are walking around today who would otherwise be dead -- because they had a means of self-defense. The overwhelming majority of gun owners are responsible. I encourage you to explore both sides of the story.

Schwarzenegger and Liberalism
In her August 13 column in the Denver Post, Diane Carman writes, "[T]he thing that worries the [Republican] party faithful is Schwarzenegger's shameless liberal streak. He's on the record as pro-choice, pro-gay rights and pro-gun control."

I replied, "Nice column today. I too like Arnold for most of the reasons conservatives hate him. (Guess that's why I'm a Libertarian.) However, your column contains one strange comment [about Arnold's] 'liberal streak.' Arnold's opposition to the fundamental human right of self-defense is an exception to his liberality, not a manifestation of it. That said, I've not seen the details of his beliefs on this matter."

Arnold has expressed support for free markets generally, and he also seems to be a little skeptical of the drug war.

Adultery and the Law
Jeff Kass wrote a surprising article for the August 14 Rocky about Colorado's adultery law. What law, you ask? I never heard of it, either. So I looked it up, and, sure enough, the Colorado Revised Statutes read, "18-6-501. Adultery. Any sexual intercourse by a married person other than with that person's spouse is adultery, which is prohibited... Purpose of section. This section is designed to prohibit and punish the disgraceful and scandalous conduct of those who would, by their evil and immoral example, debase and demoralize society."

Kass adds, "[Lynn Kimbrough, spokeswoman for Denver District Attorney Bill Ritter] said the penalty used to be a $200 fine and six months jail. That was doubled and tripled for the second and third offenses. The penalty was dropped in 1972..."

However, "the disgraceful and scandalous conduct of those who would, by their evil and immoral example, debase and demoralize society" seems a more apt description of the politicians responsible for the proliferation of dumb laws.

Supreme Court Gun Cases
Yes, the Supreme Court has often supported the individual's right to keep and bear arms, argues a new book, Supreme Court Gun Cases. Its authors are Dave Kopel, Stephen Halbrook, and Alan Korwin.

The web page for the book states, "[T]he High Court has recognized an individual right to arms in America for more than two centuries. Here's he bottom line: the Supreme Court has upheld the legal tradition and historical record of private gun ownership, self defense, and armed self defense, since the country began. They have not been quiet on the subject, and they have not disparaged individual rights -- the days of saying that are now over. The High Court could change it's mind of course, but only by rejecting a record built up for hundreds of years. Don't take anyone's word for it any longer -- see for yourself what the Supreme Court has said."

Media Notes

CCW for a Violence-Free Workplace -- Now the Rocky has joined the Post in trying to pass off disarmament politics as "business." Michael Severns writes for the July 26 "Wall Street West" section of the Rocky, "There are a number of steps employers can take to promote a violence-free workplace to combat workplace violence and potential liability. Colorado employers may want to consider implementing a no-weapons policy..." Does Severns really believe "implementing" a "policy" is going to stop violence? "Oops! Sorry I murdered my co-worker -- I didn't read the no-weapons policy first!" No, the only possible impact of taking Severns' advice would be to leave good people defenseless against violence.

Seebeck and the Republicans -- In a July 17 letter to Westword, Mike Seebeck, Media Director for the Libertarian Party of El Paso County, writes, "John Andrews is no more a libertarian than he is a Democrat. He is a disgrace to Colorado in the same manner as Tom Tancredo and Mike Rosen. None of them understands the law; they only understand political hacktivism and shilling. There is no libertarian wing of the Republican Party; there never was." I've disagreed with Andrews, Tancredo, and Rosen on a number of occasions (I've also disagreed with Seebeck at times), but surely Seebeck's language is unduly harsh. Especially Andrews and Rosen have also done a lot of good. There are some very libertarian Republicans (Ron Paul, Steve Gresh), and anyway I don't see the point of ticking off the Republicans (or the Democrats) without specific cause.

Paperless Voting and Fraud -- A recent article in the New York Times highlights the problems with paperless, computerized voting: "The software that runs many high-tech voting machines contains serious flaws that would allow voters to cast extra votes and permit poll workers to alter ballots without being detected, computer security researchers said yesterday... The systems, in which voters are given computer-chip-bearing smart cards to operate the machines, could be tricked by anyone with $100 worth of computer equipment, said Adam Stubblefield [of Johns Hopkins]."

Madman On the Loose! -- A demented madman is prowling the streets killing our cats, and he will soon turn to our children! Or not. "None of the nearly four dozen cats mutilated in the Denver area in the past year show any evidence they were killed by humans, officials said Wednesday. A metrowide task force, established in June, has determined that animals are the likely culprits in the killings," writes Sean Kelly for the July 31 Denver Post.

Rocky Talk -- The Rocky Mountain News editorializes August 6, "Centennial Spirit, a Colorado Republican group, has been fined $10,000 by the Federal Election Commission for daring to send out a mailing a few years ago that urged people to 'please make sure to vote.' Believe it or not, that is illegal in the U.S. when the mailing is an 'independent expenditure' and includes photos of one party's candidates. And never mind that trifling guarantee known as the First Amendment." Sad times indeed.

Homeschoolers -- The Stamford Advocate relates, "William Lloyd, a researcher for the home education institute... estimates that last year about 2.1 million children were homeschooled -- up from 500,000 in 1990." That's real progress. Helping people move into homeschooling doesn't require political changes -- though the effort might be harmed even by well-intentioned politics.

The Colorado Freedom