> I just ran across Professor Robert J. Spitzer's "Lost and Found: Researching The Second Amendment," which appeared in the issue of Chicago-Kent Law Review 76:349 [2000] that the Joyce Foundation paid for. As I read through Professor Spitzer's article, I am amazed at how many gross errors of fact it contains. Here's one especially amazing example: > > "Such interpretations are false, as the Verdugo-Urquidez case has nothing to do with interpreting the Second Amendment. In fact, the case deals with the Fourth Amendment issue of whether an illegal alien from Mexico was entitled to constitutional protection regarding searches." > > What does the decision say? > > "Respondent Rene Martin Verdugo-Urquidez is a citizen and resident of Mexico. He is believed by the United States Drug Enforcement Agency (DEA) to be one of the leaders of a large and violent organization in Mexico that smuggles narcotics into the United States. Based on a complaint charging respondent with various narcotics-related offenses, the Government obtained a warrant for his arrest on August 3, 1985. In January 1986, Mexican police officers, after discussions with United States marshals, apprehended Verdugo-Urquidez in Mexico and transported him to the United States Border Patrol station in Calexico, California. There, United States marshals arrested respondent and eventually moved him to a correctional center in San Diego, California, where he remains incarcerated pending trial." > > Illegal alien? No. > > Spitzer: > In the syllabus to the Verdugo case, it says this: "Held: The Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a NONRESIDENT ALIEN [emphasis added] and located in a foreign country." > > In his majority opinion, CJ Rehnquist writes this: > "Relying on our decision in INS v Lopez-Mendoza. . .where a majority of Justices assumed that ILLEGAL ALIENS [emphasis added] in the United States have Fourth Amendment rights. . . ." > > Illegal alien? Yes.
Lopez-Mendota had to do with whether illegal aliens in the United States have Fourth Amendment rights. Verdugo-Urquidez does not. Verdugo-Urquidez was arrested by Mexican police and turned over to the U.S. at a border station. Unless you think that Mexican police arrested Verdugo-Urquidez in the U.S.--and then took him to the Mexican border for arrest by U.S. agents--he was not an illegal alien. If you had said that Lopez-Mendota had to do with Fourth Amendment rights of illegal aliens, you would be correct. But you weren't talking about that case. You don't mention Lopez-Mendota anywhere in your article. > Spitzer goes on to write: > > "In the majority decision, Chief Justice Rehnquist discussed the meaning of the phrase "the people"-given that the phrase appears not only in several parts of the Bill of Rights, but also in the Constitution's Preamble in order to determine its applicability to a noncitizen. Rehnquist speculated that the phrase "seems to have been a term of art," Verdugo-Urquidez, 494 U.S. at 265, that probably pertains to people who have developed a connection with the national community. Rehnquist's speculations about whether the meaning of "the people" could be extended to a noncitizen, and his two passing mentions of the Second Amendment in that discussion, shed no light, much less legal meaning, on this Amendment." > > Is it a "speculation" when Rehnquist's opinion is joined by Justices White, O'Connor, Scalia, and Kennedy, and none of the other justices dispute that "the people" means the same thing everywhere it appears in the Constitution? > > Justice Stevens concurred in the result, and gave no disagreement about what "the people" means. Justices Marshall and Brennan disagreed with the result, arguing that "the people" included aliens illegally brought into the U.S. by government agents--but even they didn't argue that "the people" meant something different in the Second Amendment from the rest of the Constitution. > > Spitzer: > The fact that other justices concurred with Rehnquist does not contradict or refute my simple point that the Verdugo case is a Fourth Amendment case (see the previous quote), and the fact that, as a matter of law, Rehnquist's comment about the meaning of "the people" sheds no light on the meaning of the Second Amendment. Since it was not a Second Amendment case (recall that it was a Fourth Amendment case), there was no reason for the dissenters to comment on that subject. And in his discussion of the meaning of the phrase "the people," Rehnquist makes clear why he examines this matter when he concludes by saying that the phrase ". . .refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." But hardly a speculation, is it? One of the essential questions is what "the people" means. If Rehnquist's decision had been limited to the Fourth Amendment, and mentioned no other uses of "the people," you might have a case for your position here. But he went ahead and argued for a single meaning of "the people" and listed a number of other places. You would think, if Rehnquist's claim about the meaning of the "the people" were really bizarre--especially having mentioned a hot button like the Second Amendment--you would think that at least some of the dissenters would have expressed some opinion? Something like, "Justice Rehnquist has made a claim about the meaning of 'the people' in the Fourth Amendment, as well as elsewhere. I do not agree that there is any need to speculate or hypothesize about the meaning of the 'the people' in other contexts that are not relevant to the question at hand." > Spitzer also observes: > > "In short, Levinson offers a bona fide constitutional argument proposing that vigilantism and citizen violence, including armed insurrection, against the government are legal, proper, and even beneficial activities within the Second Amendment umbrella. The idea that vigilantism and armed insurrection are as constitutionally sanctioned as voting is a proposition of such absurdity that one is struck more by its boldness than by its pretensions to seriousness. Yet it appears repeatedly in the individualist literature." > > What a concept! Our government was born in revolution--not by voting. Is anyone surprised that they guaranteed a "right of the people" to be armed--but didn't even guarantee every free white man a right to vote? (Look carefully: the Constitution left qualifications for voting to the states.) > > Spitzer: > America was indeed born in revolution; but the modern Constitution was not written until four years after the formal conclusion of the war, and the Bill of Rights not added until four years after that; the Constitution institutionalized the revolution by calling for political change through peaceful and democratic means -- elections, juries, (peaceful) petitioning the government for redress of grievances, etc. As if this weren't obvious enough, Article I, sec. 8 of the Constitution notes that militias had/have three stated purposes: "execute the Laws of the Union, SUPPRESS INSURRECTIONS [emphasis added] and repel Invasions." Any so-called "right of revolution" occurs outside of the Constitution, not within it. Minor nit: The Bill of Rights was actually written TWO years after the Constitution; ratification didn't complete until 1791, but the text was finalized by 1789. Major point: the Framers repeatedly emphasized the right to armed revolution against a tyrannical government. Federalist 46, for example. This is also a widely held view of the time as evidenced by the New Hampshire Constitution. "Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind." Also, Jefferson's remarks about the tree of liberty being watered with blood of tyrant and patriot alike was in response to Shays' Rebellion are hardly an indication of a generalized hostility to revolution. Is there a "right" to revolution written into the Constitution? No. But there is clearly a right to the tools of revolution. Would it work today as it did in 1775? Probably not. But a little uncertainty as to the likelihood of success is always a good thing to lay in front of a tyrant. In practice, Washington's general pardon for the Whiskey Rebellion shows the extent to which the government was prepared to be lenient to those who were misguided but held genuine beliefs that they had been wronged. On the question of whether the federal government may suppress insurrections? Certainly. They have both right and duty to do so. But by your reasoning, there is no freedom of the press. Why? The government certainly has the authority to punish criminal libel. Therefore, there is no right to engage in libel. If there is no right to engage in libel, why is there a right to possess the tools with which one may commit criminal libel?
