I have to draw the line in the sand when it comes to the 2nd Amendment to our Bill of Rights.

I have to draw the line in the sand when it comes to the 2nd Amendment to our Bill of Rights.
This one amendment, more than any other signifies our freedom. This is the marker that separates us from other countries and societies. We have the freedom and the right to keep and bear arms. We have the right to defend ourselves…..even from our own government.
The repeated calls for repealing the 2nd Amendment, or efforts to diminish its intent, usually come after yet another disturbing incident that was allowed to go totally out of control, and then incessantly broadcast by what is supposed to be our news sources until we reach a point of saturation. This is quickly followed by calls for disarming American’s.
Let’s make one thing perfectly clear here; If someone is intent on killing you or several of you, not having a gun will not stop them. People are poisoned, stabbed, strangled, beaten to death, set on fire and die from multiple causes inflicted by another individual every day of the week. This is not because American’s have the right to own guns.
I find it odd that more people die each year from drunk drivers than from gun incidents. Yet no one calls for another prohibition. There are no passionate pleas to ban alcohol; no diatribes on how alcohol consumption is killing innocent people. Besides, this might infringe on YOUR rights.
The right to keep and bear arms is not the cause of rampage killings. It’s the individual who decided to kill other human beings who is the cause. A gun can kill no one until an individual picks it up and uses it. Just like knives can’t stab anyone unless someone picks them up and uses them as a weapon. In a fatal car crash resulting from drunk driving……who or what is at fault; the vehicle or the driver?
The flaw in all the arguments for banning private gun ownership is that somehow by taking away this right, everything will be just peachy. It won’t be. The same individuals who are intent on inflicting injury or death to others will simply find some other means of getting the job done. People are the real threat……not the weapons they choose. Taking away the right to own guns does not and will not reduce that threat.
When the Bill of Rights was assembled, the second most important issue to the founders was this right to keep and bear arms. Of all the other rights enumerated, this was paramount in establishing a free society. They also knew that it is only when government has worked secretly against its own people they become afraid of them and seek to disarm them.
The 2nd Amendment is the lynchpin of our freedom. As a nation we identify ourselves as free people by virtue of the fact that we can keep and bear arms if we choose to. And it is exactly this reason that so many want to see it repealed. The loss of this right would be psychologically devastating as so many would see it for what it is…..the true end of our freedom.
Jay Draiman, Northridge, CA

The Right Argument in Support of the Second Amendment – The Right to Keep & Bear Arms

The Right Argument in Support of the Second Amendment – The Right to Keep & Bear Arms

So much time is spent in gun circles pondering how to bring more people into supporting the passion that is the Right to Keep and Bear Arms. All manners of arguments are created, some using empirical data and statistics to show that crime is not caused by guns or that guns actually reduce crime; others citing historical significance showing that our history and the basis for the power and security of our citizenry is an armed populace.
Personally, my experience is that if you attack the issue from the basis of ALL rights; that all free people have them at birth and they cannot truly be taken away (not even by law) and that they are all important in order for a free people to flourish despite promises of safety or prosperity in the absence of said rights, it’s much easier to bring people around to the support of the Second Amendment.

However, in order to do this, the deliverer of said message has to believe it as well. So many pro-gun people aren’t really pro-rights; they’re merely on the wagon of the Second Amendment because they have a personal connection with firearms (i.e. hunting, self-defense, hobbies, and competition). The problem here arises when an issue of firearms rights crops up where such people have no personal connection. For instance, the issue of private citizens carrying guns for protection. Some people, gun owners included, don’t want to allow others to carry around a gun whenever it pleases them. This belief ignores the premise of an unalienable right; it cannot be given to someone by someone else, they already have it at birth, and thus, it cannot be taken away no matter how good the reason seems to be.
Consider the particularly contested issue of individuals released from prison having their Second Amendment rights honored. Many gun owners believe that any person with a criminal past should lose their Second Amendment rights forever (if you can’t do the time, don’t do the crime). This makes sense because such people are often only supporters insofar as it appears reasonable considering their connection to firearms (i.e. you might find a lot of hunters who feel that ex-convicts should be allowed limited access to hunt but should never be able to own a handgun for self-defense, even though the Second Amendment is, in fact, not about hunting or a right to do so). The real conflict here is that again, it ignores what a right truly is and what can be done to it, when, why and by whom.
When one is incarcerated, while their rights still technically exist, they may not exercise them because they are not presently free. An abuse of freedom is not exercising it, and when one abuses their freedom in this country, they relinquish many of their rights, but only to the degree necessary in order to facilitate punishment. People in jail have very limited rights against search and seizure without a warrant, to peaceably assemble, or to be secure in their persons and papers…they also have no right to keep and bear arms while incarcerated. Being unable to exercise one’s rights is not part of the penalty; it is simply a necessity in order to conduct the punishment for the crimes one is convicted of (which is obvious as far as the Second Amendment goes as an armed prison population cannot be incarcerated against their will).
While in jail, the right to practice one’s chosen faith is maintained, so is the right against being subjected to cruel and unusual punishment; this is simply because rights are not taken away as part of the punishment, they are only put into a sort of civil limbo, but again, only when is necessary in the course of the incarceration. If we take an honest look at which rights are conveyed to inmates and which are suspended, it is readily evident that prohibiting the exercise of certain rights is not, and was never meant to be part and parcel to the punishment and/or course of rehabilitation prescribed through the legal system for a given crime.
To suggest that once out of prison, after the reasonable debt required has been satisfied, one should permanently lose the freedom to exercise their rights goes far beyond the scope of power that the government or any authority should have in this country. Even if the majority of free citizens supported such an idea, I would argue that it certainly falls under cruel punishment (of “cruel and unusual punishment” fame). Being punished for one’s entire life for a crime that may have been so minor as to require a two year jail sentence is most certainly cruel, and particularly unusual in that if the crime justifies a lifetime punishment, it would certainly justify a lifetime commitment to incarceration. Now I’m certainly not saying that no person convicted of any crime should be prohibited the use or possession of firearms, I’m actually supportive of the idea if, and only if, it’s actually a part of due process. Mandatory Second Amendment disabilities for any felony in my opinion is where the problem lies. All felonies are not equal, and while I would be comfortable with a judge or jury stipulating that a convicted murderer not have access to firearms if they ever get out of jail, I’m not so sure allowing the government to utilize a blanket prohibition for all felonies when it automatically includes people convicted of say, grand theft or fraud is the right course of action. While I do agree that the latter charges are serious in nature, they in no way speak to how dangerous a person is, nor do they indicate a scenario where I personally feel that someone has forfeit their natural right to defend themselves. Sure those people that commit such crimes aren’t very responsible or trustworthy, but rights aren’t granted with a predication on trust, they’re granted at birth because each person has a right to protect their life and liberty. Should someone that stole an automobile at the age of 22 die on the street or in their home at the hands of a murderer at the age of 27 after they serve their time and get released from prison? Would you not feel more comfortable standing on a firing line with that person as another soldier against tyranny or invasion rather than being one rifle short?
If a person were convicted of a crime and sent to jail, no reasonable person would suggest that such an individual should automatically be prohibited from exercising their religion or going to church as often as they saw fit once they were released. No reasonable person would suggest that someone who was once incarcerated should be subjected to torture after their release, nor would any reasonable person suggest that said person should automatically be subjected to random body cavity searches or searches into their homes, persons, banking records or personal property without a warrant and/or probable cause. Furthermore, no reasonable person would support an ex-convict being summarily jailed without due process, without the opportunity to a defense against the charges or in the absence of the state being able to articulate the offense and the burden of proof required to show that a crime had actually been committed by said person.
So why then, do we have gun owners, individuals who live and breathe the very essence of a right when it comes to their guns, so ready and willing to strip someone else of their rights in a manner not explicitly authorized by the Constitution or the Bill of Rights? For the very same reasons that some people think that the religious freedom of the First Amendment doesn’t apply to Muslims, Jews or Wiccans, or if it does, only to the extent that their own religion is given an amount preferential treatment or acknowledgment above all others.
For the same reason why some people feel that the Freedom of Speech doesn’t protect political or social dissidence, pornographic materials or free expression in music, literature, film and art if their own views or tastes are offended.
For the very same reason that some people feel that freedom from Unreasonable Search and Seizure without a Warrant and Probable Cause, the right to a Speedy and Public Trial by Jury or protection from being Deprived of Life, Liberty or Property without Due Process doesn’t exist if the target is the same faith, nationality or skin color as someone that committed an act of war, terror or treason against this country or if the target is merely suspected of being in league with or of having similar convictions, goals or aims as those people.
That reason, which is the same in all of the examples above, and is virtually the same in all cases where an individual or group attempts to make a case for infringing on the rights of others, is that, most people are only into freedom as deep as it personally affects them, they could care less for anything above and beyond what level of liberty they deem useful to their own beliefs or purposes.
Rights are defined in the extreme; privileges are defined by boundaries and limits. If one can do as they please, so long as no harm is being done to another, that’s a right, that’s free, that’s liberty. If one can only do as they please so long as no one’s sense of decency, taste, sensibility, security, morals, reason or politics is being offended, that’s a privilege.
When we say, ‘you have the right to practice your faith, so long as I approve of it’, or ‘you have the right to keep and bear arms so long as I still feel safe and comfortable with the idea of you having a gun’, or ‘you have the right to speak your piece so long as I don’t get offended’, or ‘you have the right to due process and to be secure in your person, property or papers so long as I trust you’, we’re really not saying anything about rights; we’re talking about giving someone a benefit within the boundaries that we’re agreeable to.
Privilege is defined as, “A special advantage, immunity, permission, right, or benefit granted to or enjoyed by an individual, class, or caste”. Pay close attention to the part where it says it is “granted”; rights aren’t granted by anyone, we automatically have them at birth, they’re the default setting. Since no one granted those rights to us, no one can revoke them no matter how sound or compelling their reasoning is. So the issue is not whether or not we are or should be comfortable giving anyone anything (anything granted is a privilege), the issue is whether or not anyone can take certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, away from a free person. Since no one gave us those rights, not individuals, not society, not the majority and not the government, the answer is no, not in this republic. The moment people wake up and embrace this truth is the moment that we will begin our return to a free people, and support for all rights, including the Second Amendment, will be the default, just as it was intended. The Bill of Rights is a package deal, a package of rights which are defined in the extremes (as all rights inherently are); there is no such thing as half-way free. That’s the right argument in support of the Second Amendment, everything else is pleading for the granting of a privilege in lieu of rights we already have.

The Right to Keep and Bear Arms

 

The Right to Keep and Bear Arms

The Right to Keep and Bear Arms

(c) 1993 - 2003

Gary A. Shade

Introduction

Much of today’s debate regarding the individual’s right to keep and bear arms, has been

shrouded by misapplying various interpretations of the militia clause of the second

amendment to the US Constitution. The second amendment states:

"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."

The proponents of gun control insist that the second amendment only apply to an

organized militia such as the National Guard. However they overlook the fact the

National Guard in times of national crises, comes under direct control of the Federal

Government. The Guard works in concert with the regular Army in carrying out the

Federal military mission. This was finally put to rest when in the 1980s, then Minnesota

Governor Rudy Perpich sued the Federal Government over control of the National Guard.

The State of Minnesota lost the case and the Federal Government won.

The act of federalizing the National Guard is due to the law passed by Congress on

January 21, 1903. It provides that the "..organized militia known as the National Guard of

the state, Territory or District of Columbia.. " is under the command of the Nation’s Chief

Executive. Furthermore, all arms are controlled by and owned by the Federal

Government.

If indeed the National Guard can be placed under Federal Control, then who is the

unorganized militia? This question is rooted in historical precedence with ample evidence

provided by the ancients, and contemporary thinkers that we are. That is to say, all ablebodied

men (and now perhaps women) between the ages of 17 and 45 who are capable of

acting in defense of the country. This definition also exits in the current United States

Code [10 U.S.C. 311 (a)] which states:

"The militia of the United States consists of all able-bodied males at least

17 years of age, and, except as provided in section 313 of title 32, under

45 years of age . . . "

The US Code further divides the militia into two classes: The organized, and the

unorganized militia. The organized militia is viewed in the USC as the National Guard

and Naval Militia, and the unorganized militia that consists of ".. all members of the

militia who are not members of the National Guard or the Naval Militia." [10 U.S.C. 311

(c)]

Advocates of gun control not only ignore the definition of militia as that of the citizen

soldier, they also ignore that the final clause that uses the verbiage of the "..right of the

people..", is the same application of the "the people as used in the First, Fourth, Ninth,

and Tenth Amendments.

The application of the First Amendment applies to an individual’s right to free speech.

The Fourth Amendment secures the individual against unreasonable searches and

seizures of property by the government. If the Second Amendment were to be construed

as a collective right, then it logically follows that only corporations or collective bodies

(such as political parties) would have a right to free speech, and would be free from

unreasonable search and seizures.

Yet these Amendments have been interpreted to be individual rights due to the clause that

refers to ’the people’. The people refer to the individuals that make up the general

populace.

It is precisely this definition that divides today’s debate on gun control. The idea of the

citizen soldier is older than ancient Rome. The unorganized militia provides for a citizen

soldier to be the guardian of liberty and freedom.

Where did this well established but often overlooked view of the militia originate? As

will be seen, its history can be found in the most early discussions on politics: From

Rome, to Greece, to Virginia.

The most contemporary work on this subject, is:

That Every Man Be Armed - The Evolution of a Constitutional Right

by Attorney Stephen P. Halbrook. Halbrook’s work is the most thorough and documented

work on the Second Amendment this century. This paper relies heavily upon the work of

Mr. Halbrook, and provides the necessary and proper credits in the bibliography.

The Ancient Greeks and Romans

In Plato’s Republic, Plato discusses how, through force, an unjust state could win favor.

Oligarchy forms of government occur when privilege is fixed by statute. (Republic 139-

140.) Plato envisions a move to a democracy, but retains much of the social inequality

associated with absolutism. The need for a strong leader is anticipated who would revert

to absolute authority and halt the march to democracy. Plato concludes:

"Then to be sure, the people will learn what sort of a creature it has bred

and nursed to greatness in its bosom, until now the child is too strong for

the parent to drive out. Do you mean that the despot will dare to lay hands

on this father of his and beat him if he resists? Yes, when once he has

disarmed him." (Republic 295)

The idea of a philosopher king that Plato contemplates, assumes the best in human nature

and does not speculate on the more contemporary historical fragility of such assumptions.

Even Catherine the Great of Russia, an enlightened despot, later reversed herself from

enlightenment to absolutism

promoter of Voltaire and others, Catherine later burned his books and banned them from

Russia.

(The Western Heritage, 653.) Whereas once a shrewd(The Western Heritage, 679.)

Aristotle argued that citizens must be protected from tyranny, and that tyranny was

achieved through the King’s use of a standing army.

Aristotle spoke of the King’s use of the standing army to wage war, and to heavily tax the

populace. These efforts would preoccupy the general populace to prevent an overthrow

the oligarchy.

(Politics, 82) Both Plato and(That Every Man be Armed, 12)

Rome’s Cicero also put forth the notion that an individual also has the right to bear arms

in self defense. When defending Titus Annius Milo in 53 B.C. for the murder of Publius

Claudius Pulcher, he stated:

There are, many occasions on which homicide is justifiable. In particular, when violence

is needed to repel violence, such an act is not merely justified but unavoidable"

Political Speeches, 78-81)

(Selected

Here the natural law of self defense is eloquently stated by Cicero. Cicero states:

".. there exists a law, not written down anywhere but inborn in our hearts;

a law which comes to us not by training or reading but by natural

intuition."

He further discusses the moral righteousness of using ".. every method to protect

ourselves." Not only is Cicero speaking of the individual’s right to bear arms in self

defense from another individual, but also to defend one’s person and property from

violence by the state.

Rome stood as a free republic until Gaius Marius abolished the citizen soldier in 49 B.C.

(That Every Man Be Armed, 18)

Caesar was ruthless in his conquests. He would not accept surrender from his enemies

until all the arms of the conquered town had been collected. He would mutilate those who

bore arms against him by cutting off their hands.

knew that an armed populace was more difficult to conquer.

Caesar’s reign marked the beginning of the Empire.(That Every Man Be Armed, 18) Caesar

Machiavelli

Machiavelli was also a believer in the citizen soldier or citizen militia. In his work

Discourses on the First Ten Books of Titus Livy, he praises Rome before the reign of

Caesar. Machiavelli was also against large standing armies as shown in the following

passage.

"..in attacking a foreign country, [the Romans] never sent out armies

greater than fifty thousand men; but for home defense against the Gauls

after the first Punic war eighteen hundred thousand....In conclusion,

therefore, I say again that a ruler who has his people well armed and

equipped for war, should always wait at home to wage war.."

107)

(Discourses,

Machiavelli also notes that:

"Rome remained free for four hundred years and Sparta for eight hundred"

with an armed populace, while other countries who disarmed their citizens

"lost their liberties in less than forty years."

(The Art of War, 18)

The comparison of Machiavelli’s writing to similar wording found in our Constitution

proves to be surprisingly similar.

Machiavelli wrote that private citizens made up the

(The Art of War, 39)

to the security of a free State.."

well regulated, meant the same thing: Citizens trained to arms.

"..regular and well ordered militia.."and our Constitution reads "A well regulated Militia being necessaryTo Machiavelli, well ordered, and to our founding fathers

Seventeenth Century Thought

In the 17th century, great thinkers attempted to justify the existence of absolute rulers,

while others such as Algernon Sidney and John Locke argued for a democratic republic.

In arguing for a monarchy, Jean Bodin sees the deprivation of arms essential to

maintaining a ruler’s authority. Bodin believed that such ruler’s were above the law.

Similar to today’s argument’s for gun control, Bodin saw arms control as a means of

people control, to control the masses and prevent seditions. Similar to today, the

arguments used in achieving an unarmed populace were to prevent murders, and

seditions. Bodin states in his Six Bookes of A Commonweale (1606),

"..the law may be good, just, and reasonable, and yet the prince to be no

way subject or bound thereto: as if he should forbid all his subjects, except

his guard and garrison soldiers, upon pain of death to carry weapons, so to

take away the fears of murders and seditions; he in this case ought not to

be subject to his own law, but to the contrary, to be well armed for the

defense of the good, and punishment of the evil."

Commonweale, 106)

(Six Bookes on A

To Bodin, the ruling monarchy was to be placed above the laws that governed their

subjects. Acts not unlike what Bodin had envisioned, occur today where citizens are

disarmed by law, yet the privileged class is exempted.

John Locke was also an advocate of the citizen soldier. Locke explained in great detail in

his Two Treatises on Civil Government (1689), that government of man must be based

on mutual consent, and that each individual remains free due to the natural laws of

nature. Because of this, each man has the right to overthrow a despotic government. As

each individual maintains their natural rights, they also have the right to defend those

rights against any individual or group who threatens them. Locke wrote:

".. it being reasonable and just I should have a right to destroy that which

threatens me with destruction."

(Second Treatise of Civil Government, 14)

Locke firmly believed that man had a moral right to use force to overthrow an unjust

government. That the right to resist an unjust government with arms was little different

than protecting one’s self from an individual’s aggression.

Framer’s Intent

Locke’s influence on our founding fathers was profound. His major contribution that all

men retain their natural rights to life, liberty, and property became a major influence on

how our Constitution was written. The Virginia Declaration of Rights, (which was largely

written by George Mason on June 12, 1776), nearly echoed verbatim Locke’s views on

natural rights. Article One states:

"That all men are by nature equally free and independent, and have certain

inherent rights, of which, when they enter into a state of society, they

cannot, by any compact, deprive or divest their posterity; namely, the

enjoyment of life, liberty, with the means of acquiring and possessing

property, and pursuing and obtaining happiness and safety."

Article 13 of the Virginia Bill of Rights further states:

"That a well regulated militia, composed of the body of the people, trained

to arms, is the proper, natural, and safe defense of a free state; that

standing armies, in time of peace, should be avoided as dangerous to

liberty; and that, in all cases, the military should be under strict

subordination to, and governed by, the civil power."

Here again we plainly see that the early framers of the Declaration of Rights believed that

the new nation’s security rested upon a citizen militia. The idea presupposes a natural

right for the citizens to keep and bear arms. Virginia’s Declaration of Rights would later

serve as the model for our own Constitution.

During the Philadelphia Convention of 1788, Patrick Henry argued passionately for the

individual’s rights against the Federalists James Madison and Edmund Randolf. Henry

was insistent that the new Constitution of the United States contain a Bill of Rights

similar to Virginia’s. Madison did not believe one was necessary as the people retained

the right to overthrow an unjust government. He also believed that all rights not given up

to the new government were retained by the people.

Henry and Mason both argued against ratifying the new Constitution unless specific

right’s were enumerated as had been done with their own State Constitution. Randolf,

himself an ally of Madison’s, refused to sign the new Constitution unless a Bill of Rights

were present.

(Madison and The Bill of Rights, 4)

The original language of the Second Amendment as proposed by Madison, read:

"The right of the people to keep and bear arms shall not be infringed; a

well armed, and well-regulated militia being the best security to a free

country: but no person religiously scrupulous of bearing arms, shall be

compelled to render military service in person." (Madison and the Bill of

Rights, 5)

Madison added the language of the right to keep and bear arms in first draft. A right of

the people. The wording the house committee chose read:

"A well regulated militia, composed of the body of the people, being the

best security of a free state, the right of the people to keep and bear arms

shall not be infringed, but no person religiously scrupulous shall be

compelled to bear arms."

This draft, reversed the people and militia clauses but retained Madison’s conscientious

objector clause. Additionally author Halbrook points out that it is clearly shown from

Madison’s notes that he would use to propose the Amendment:

"They [the proposed amendments] relate first to private rights .." (That

Every Man be Armed, 76)

The Senate version dropped the conscientious objector clause all together, and what was

to become our nation’s second amendment was finally adopted by the states:

"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."

During the House debates, of our Second Amendment, Representative Elbridge Gerry

begged the question:

"What, Sir is the use of a militia? It is to prevent the establishment of a

standing army, the bane of liberty."

The well-regulated clause of the second amendment suggests that the citizen soldier must

retain not only the right to keep and bear arms, but must be proficient in their use.

Every Man Be Armed, 78)

(That

The argument that the "well-regulated militia" clause implies a collective rather than an

individual right can be rebuked with the Federalist Papers number 29, where Alexander

Hamilton wrote:

"..the great body of yeomanry and of the other classes of citizens to be

under arms for the purpose of going through military exercises and

evolutions, as often as might be necessary to acquire the degree of

perfection which would entitle them to the character of a well-regulated

militia."

(Federalists #29, 184-185)

Here, as can be clearly seen, a well-regulated militia is composed of ordinary citizens

who are trained to arms. The contemporary argument used by gun control advocates that

the militia clause means only police or the government should be allowed to have arms,

has no historical, or factual precedence what so ever.

Conclusion

The militia is quite simply you and me. It is our moral duty to be proficient in the use of

arms for our own self preservation and that of our country. Standing armies have been

viewed as the bane of liberty, and not the protectors of it. Freemen have a right and moral

duty to oppose the unlawful taking of our natural rights by any means available to us. As

radical and revolutionary as this may sound today, it has been said many times before. It

is as true today as it was in Ancient Rome, Sparta, or in Eighteenth Century Virginia.

Works Cited

Plato, Republic 139-140 (E. Vornford translation. 1945), as cited by Halbrook, Stephen

P., That Every Man Be Armed, p. 9. The LibertyTree Press, San Francisco CA. 1984.

Plato, Republic, p. 295 (E. Vornford translation. 1945), as cited by Halbrook, Stephen P.,

That Every Man Be Armed, p. 10. The LibertyTree Press, San Francisco CA.

Kagan D., and Ozment S., and Turner F., The Western Heritage (Fourth Edition, Volume

II), p. 653. Macmillan Publishing Company, NY, 1987.

Id. at 679.

Aristotle, Politics, p. 82, as cited by Halbrook, Stephen P., That Every Man Be Armed, p.

9. The LibertyTree Press, San Francisco CA. 1984.

Halbrook, Stephen P., That Every Man Be Armed, p. 12. The LibertyTree Press, San

Francisco CA. 1984.

Cicero, Selected Political Speeches, pp. 79-81 (M. Grant transl.1969), as cited by

Halbrook, Stephen P., That Every Man Be Armed, p. 16. The LibertyTree Press, San

Francisco CA.

Halbrook, Stephen P., That Every Man Be Armed, p. 18. The LibertyTree Press, San

Francisco CA. 1984.

Machiavelli, Discourses, p. 107, as cited by Halbrook, Stephen P., That Every Man Be

Armed, p. 21. The LibertyTree Press, San Francisco CA. 1984.

Machiavelli, The Art of War, p. 18, as cited by Halbrook, Stephen P., That Every Man Be

Armed, p. 22. The LibertyTree Press, San Francisco CA. 1984.

Machiavelli, The Art of War, p.39, as cited by Halbrook, Stephen P., That Every Man Be

Armed, p. 22. The LibertyTree Press, San Francisco CA. 1984.

Bodin, Jean, Six Books on A Commonweale, p. 106, as cited by Halbrook, Stephen P.,

That Every Man Be Armed, p. 25. The LibertyTree Press, San Francisco CA. 1984.

Locke, John, Second Treatise of Civil Government, p.14, (Chicago 1955), as cited by

Halbrook, Stephen P., That Every Man Be Armed, p. 22. The LibertyTree Press, San

Francisco CA. 1984.

McCabe, Michael K., Madison & The Bill Of Rights, p. 4, American Rifleman, Feb.,

Mar., Apr., 1991. National Rifle Association, Washington DC.

Id. at 5.

Halbrook, Stephen P., That Every Man Be Armed, p. 76. The LibertyTree Press, San

Francisco CA. 1984.

Id. at 78.

The Legacy of Republicanism vs. Absolutism

YJ Draiman officially running for mayor of LA - 2013

Draiman officially running for mayor of LA - 2013

Press release – January 25, 2011

YJ Draiman officially running for mayor of Los Angeles - 2013

"I want to fight for a better future for all the people of Los Angeles, and that's why today I'm announcing my candidacy for mayor," Draiman said.

I decided to run for Mayor of Los Angeles. Before I could make that commitment, I needed to free up the time required to do the job right.  Therefore, I decided to devote full time to the job of Mayor.

I am motivated by the wish to serve the Los Angeles community and protect our quality of life.  I have the skill, experience, long time community involvement and personal commitment to lead the city.  I will work hard to preserve residents’ priorities and the city’s coffers, during the difficult financial times ahead.  Some of my more specific goals are encouraging economic vitality, preserving and improving the City infrastructure, protecting the quality of our neighborhoods, supporting our open space and bicycle trails programs, working with the Neighborhood Councils and the Chamber to encourage local, innovative green businesses, and proper Urban Planning for Los Angeles, among others.

I previously ran for City Council in District 12.

I decided that to do the job right I must run for Mayor.

I am an Energy/Utility Auditor/Consultant for over 20 years.

I am married to a darling wife, we have two grown children – my oldest son is David Draiman a famous Rock Star with a Band by the name Disturbed, my younger son is a Psychologist doing research.

I am looking forward to being elected and serving the people of the City of Los Angeles.

We must work together as a cohesive force to improve our city.

“Transparency and accountability is my motto”

YJ Draiman for Mayor – 2013

WEB:  http://www.draimanformayor.org/

Gun Control Research Paper - Ethics Essay

Gun Control Research Paper - Ethics Essay

Try to imagine a stone cold killer who just got out of jail running loose in the streets. He sees a house with a family in it. He breaks into it with the intention of killing someone. As he enters, the owner of the house sees him with a gun in his jacket. The owner then goes to the drawer and pulls a gun on the person. That person just saved her life.

because she owned a gun. This could happen to anyone. Gun control is the regulation of the sale and use of rifles and handguns. An injustice is violation of another's rights or of what is right. This could be unjust because guns can save lives. Gun control is unjust and adjusting it accordingly can solve our nations most persistent and pressing problems.
Gun control has been a rising conflict in the 2000’s. Some people say we should have it some say we shouldn’t. And there are those others who just want to change gun control a little bit. Gun control is an injustice because if people can have guns they can save lives. But not just any person should be able to get a gun. Lee Harvey Oswald assassinated President John F. Kennedy. Due to this assassination it increased public awareness which lead to the creation of increased and stricter gun control laws. People are entitled to own a gun. “The right to bear arms is stated in the 2nd amendment to the U.S. constitution. A well regulated militia being necessary to the security of a free state, the right to keep and bear arms shall not be infringed” (Right to Bear Arms). In other words the constitution allows U.S. citizens to own firearms. So, if people are allowed to have guns then why are there gun control laws? “ The debate started shortly after November 22, 1963 when evidence in the assassination of President Kennedy, which created some questions of why there was a relative lack of control over the sale and possession of firearms in America”(Gun Control Timeline). This all originated in Dallas, Texas. This is some history on gun control.
The people that are trying to convince people that there is no problems with gun control have some pretty interesting things to say. These gun control advocates claim that guns promote violent behavior. Every day people are killed by guns. “Every day in the United States, 14 children are killed with guns” (Children Are Not at Risk from Handgun Violence). From this data a conclusion can be made that a lot of people are dying from guns. Gun control advocates also claim that there are ways to reduce gun violence. “A push for restrictions on bullet purchase, programs to rehabilitate criminals, devices to block out television violence, and growing citizen action groups are some ways of that gun violence can be reduced”(Bender 165-166). They claim that doing all this will help reduce gun violence. Trying to rehabilitate criminals might not be that effective. They also claim that death isn’t the only problem guns create. “During 1987 and 1988, Highland Hospital in Oakland, California, treated about 700 gunshot victims at a total cost of $10.5 million. Most of these victims- 2 percent of the hospitals patients- used 40 percent of its blood supply” (Newton 103). This data shows that gun shot victims are using almost half of the hospital’s donated blood.
This justification is wrong for many reasons. For one, just because someone assassinated the president 40 years ago doesn’t mean that we have to limit what guns we can buy today. Lives can be saved if more people are able to buy guns. “In 1990 30% of the guns in the U.S. were used for self-defense” (Newton 24). This number should be much higher. Guns have more than just one use, for instance to go hunting or just to have a collection for a hobby. “Nearly 60% of the guns in the U.S. were used for hunting (Newton 24). That leaves about 10% left of guns in the U.S. “Law enforcement owns 3% of guns and 5% of guns was for collection purposes” (Newton 24). So that leaves only a small percentage of people who own guns with no purpose for them. Now, legalizing some illegal types of guns wouldn’t really affect people if most of them are using them for hunting and self protection. Just try to imaging a woman in an alley coming home from work with a gang following her. The gang finally catches up to her and corners her in the back of the alley. In most cases she would die, unless she had a gun. If she had a gun she could have just pulled it out and scared the gang away. Possibly saving her life or any others around her. We can save lives with guns! It’s not the guns that kill people it’s the people that kill other people. Guns are just one way of killing them.
This problem still affects us today for many reasons. For one, we just went through a war and the U.S. will never know what Iraq is going to do next. Also, people feel insecure if they don’t have a gun especially after what has happened in the past couple of years. Gun control still affects us today because there have been incidents where there have been suicides. “Homicide is not a disease, but it is a public health condition whose primary cause is the possession of guns” (Newton 103). There are still murders today committed with guns and that is why this problem still affects us today. Also, the 2nd amendment says that people have the right to bear arms and protect themselves.
There are many actions that can be taken to remedy this problem. For, one we can engage today’s youth by engaging them in gun safety programs. This way the kids will know about guns and what will happen to them if they abuse them. Also, by legalizing some guns that are illegal the demand for them will go down and illegal gun sale will drop. But if those illegal guns become legal then there should be longer waiting periods and more thorough background checks. We can start by having petitions and have people sign them so that they will be sent to the NRA. This will tell them that we are serious about this and want immediate action. Also, there should be more gun awareness programs to educate people. “One NRA member expressed his support for longer background checks and mandatory training for gun buyers” (Newton 101). Gun safety should be a required class in the junior high to high school level. Doing all this will help get rid of gun control.
One thing is for sure our future looks pretty good if gun control is gone. Just try to imagine a place where the criminals and murderers are afraid rather than the innocent people of America. Just try to think of the kids. This is so desirable because in our world people never know what’s going to happen next. All that people can do is prepare themselves for what could happen. Such as a mugger or a cold-hearted killer. Many lives can be saved with the ownership of a gun. If a family is at home sleeping and they hear a person break into their house. Wouldn’t it be nice to have a gun in case that person is about to kill the kids. Also, the sport of hunting would be enhanced. It would make it a lot easier for younger kids to go hunting.
Gun control is unjust and adjusting it accordingly can solve our nations most persistent and pressing problems. Now as stated in the arguments above gun control is unjust and there is now reason why we should have it. When heard of on the news of a kid getting shot just think that it is the parents fault for leaving the gun in a place where they could reach it. The public of the United States should stop at no cost to effectively adjust gun control laws of today and to resolve this nation wide problem.

English as the Official Language of the United States:

 
English as the Official Language of the United States
th Congress

Congressional proposals to install English as the official language of the United

States reflect yet another aspect of the complicated ongoing national debate over

immigration policy. The modern “Official English” movement may be traced to the

mid-1980s, when various proposals to achieve linguistic uniformity by constitutional

amendment were considered. While these earlier federal efforts failed, some

legislation promoting official English laws at the state level was more successful. At

least 28 states have laws declaring English to be the official state language. These

state laws have usually been enacted by direct popular votes on referenda by

substantial margins.

In response, renewed congressional efforts to codify English as the “official” or

“national” language by statute largely replaced the constitutional amendment

approach of earlier years. This trend culminated in 1996 when the House passed H.R.

123, to declare English the official language of the United States government and

restricting other linguistic usage in the conduct of “official” governmental business.

The measure died in the Senate. Contemporary versions of the earlier measure,

however, have appeared in subsequent legislative sessions, and similar legislation has

been introduced in the 110

amend the Constitution to establish English as the official language of the United

States, while H.Con.Res. 11 would resolve that the federal government should pursue

policies that not only encourage all residents to become fully proficient in English but

also encourage all residents to learn or maintain skills in languages other than

English.

th Congress. Both H.J.Res. 17 and H.J.Res. 19 would

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Federal Legislation to Make English the Official Language of Government . . . . 2

Federal Policy on Foreign Language Assistance . . . . . . . . . . . . . . . . . . . . . 7

Constitutional Law Implications of Official English . . . . . . . . . . . . . . . . . . . . . . . 8

Miscellaneous Federal Policies Providing for Non-English Translation

and Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1

This report was originally written by Charles V. Dale, Legislative Attorney.

2

h.org/inc/official/states.asp].

See U.S. English, Inc., States with Official English Laws, at [http://www.us-englis

3

42 U.S.C. § 1973aa-1a.

4

Id. at §§ 2000d et seq; 20 U.S.C. § 1703(f).

5

Services” and the “State Laws” sections below for additional information.

See the “Miscellaneous Federal Policies Providing for Non-English Translation and

6

on the Constitution of the Senate Comm. on the Judiciary, 98

Hearings on H.J.Res. 13, H.J.Res. 33, and H.J.Res. 60 before the Subcomm. on Civil and

(continued...)

See The English Language Amendment: Hearings on S.J.Res. 167 Before the Subcomm.th Cong., 2nd sess. (1984);

English as the Official Language of the

United States: Legal Background and

Analysis of Legislation in the 110th

Congress

1

Introduction

The steady growth within U.S. borders of new immigrant populations, whose

primary language is other than English, has created a public policy divide on issues

of language diversity. On one side, opposition to expanded foreign language

assistance has led at least twenty-eight states to enact statutes or amend state

constitutions to declare English the official state language.

U.S. Constitution, however, have traditionally afforded some legal protection to

minority language rights. For example, the Voting Rights Act of 1965, as amended,

mandate use of bilingual voting materials in states and political subdivisions when

certain conditions are met.

1964 Civil Rights Act and the Equal Educational Opportunities Act.

state and federal policies mandate the use of languages other than English when

necessary for effective delivery of public and private services to non-English

speakers in judicial and law enforcement proceedings, health and managed care

services, conduct of state and local administrative agencies, business and professions,

elections, and other critical areas.

2 Federal statutes and the3 Other federal statutory safeguards include Title VI of the4 In addition,5

Congressional proposals to install English as the official language of the United

States reflect yet another aspect of the complicated ongoing national debate over

federal immigration policy. The modern “Official English” movement in Congress

is traceable to the mid-1980's, when various proposals to achieve linguistic

uniformity by constitutional amendment were considered.

CRS-2

6 When that approach

6

Constitutional Rights of the Comm. on the Judiciary, 100

(...continued)th Cong., 2nd sess. (1988).

7

government has an “affirmative obligation to preserve and enhance the role of English as

the official language of the United States,” and would have repealed the bilingual voting

requirements.

142 Cong. Rec. 21206-07 (1996). H.R. 123, among other things, proposed that the federal

8

152 Cong. Rec. S4770 (daily ed. May 18, 2006).

9

Id.

failed, Congress renewed its efforts to codify English as the official language,

proceeding on a statutory track. This effort culminated in 1996 with House passage

of H.R. 123, declaring English the official language of the United States Government

and restricting other linguistic usage in the conduct of “official” governmental

business. The “Language in Government Act” passed the House in the 104

but died in the Senate.

however, have appeared in subsequent legislative sessions.

For example, during the 109

Amendment as part of its comprehensive immigration reform package, declaring

English to be our “national language” and calling for a governmental role in

“preserving and enhancing” the role of English.

Salazar also passed the Senate; it would have recognized English as the “common

and unifying language of the United States,” while protecting existing rights of non-

English speakers “to services and materials provided by the government” in

languages other than English.

which would have amended the U.S. Constitution to establish English as the official

language of the United States.

Likewise, similar legislation has been introduced during the 110

Both H.J.Res. 17 and H.J.Res. 19 would amend the Constitution to establish English

as the official language of the United States, while H.Con.Res. 11 would resolve that

the federal government should pursue policies that not only encourage all residents

to become fully proficient in English, but also encourage all residents to learn or

maintain skills in languages other than English. In addition, should the 110

th Congress7 Substantially amended versions of this earlier measure,th Congress, the Senate adopted the Inhofe8 An alternative offered by Senator9 Also proposed in the 109th Congress was H.J.Res. 43th Congress.th

Congress decide to take up immigration reform legislation, other English-as-theofficial-

language measures may be introduced in conjunction with such legislation.

Federal Legislation to Make English the Official

Language of Government

Standing alone, a legislative declaration of English as the “official” or

“national” language of the United States would be a largely symbolic act of

negligible legal effect. Although an affirmation by the Congress of the central place

of English in our national life and culture, such a pronouncement would not, of its

own force, require or prohibit any particular action or policy by the government or

private persons. Nor would it, without more, imply the repeal or modification of

CRS-3

10

diversity in governmental communications concerned with teaching of foreign languages;

international relations, trade, or commerce; compilation of census information; public health

and safety matters; and the conduct of criminal proceedings. In addition, H.R. 997 would

have allowed use of other languages under the Individuals with Disabilities Act, for national

security purposes, and in the compilation of census information.

Exceptions written into both House bills, however, would have permitted linguistic

existing federal or state laws and regulations sanctioning the use of non-English for

various purposes. As in the past, however, any official English proposals introduced

during the 110

the degree to which they would propose adherence to English in various

governmental activities at the federal and state level. Several examples of legislation

introduced during the 109

During the 109

immigration reform effort both included elements from earlier legislative proposals.

Declaring English to be our “national language,” the former measure called on “the

Government of the United States . . .[to] preserve and enhance” the role of English,

and except as otherwise legally recognized, would have denied any private “right,

entitlement, or claim” to non-English governmental services or materials. The

Salazar amendment would have recognized English as the “common and unifying

language of the United States,” while protecting existing rights of non-English

speakers “to services and materials provided by the government” in languages other

than English.

Meanwhile, H.R. 4408 (the “National Language Act of 2005) and H.R. 997 (the

“English Language Unity Act of 2005”), also proposed in the 109th Congress,

differed considerably in scope as to governmental entities and types of activities that

would have been covered by the “official English” mandate. The immigration reform

approach to the subject, however, seemed to draw at least marginally from elements

of each. H.R. 4408 would have applied to all “official business” of the “Government

of the United States” — including any “publications, income tax forms, and

informational materials” — and would have denied any legal right, claim, or

“entitlement” to “communicate with” and “receive information from” the

Government in languages other than English. H.R. 4408, however, stated that it

“shall not preempt any law of any state,” suggesting that it would have largely been

confined to federal language policies. In contrast, H.R. 997, by its terms, would have

required that “official functions” — including “all laws, public proceedings,

regulations, publications, orders, actions, programs, and policies” — of the Federal

Government, the States, and the District of Columbia be conducted in English. It thus

seemed intended to bind State officers and agents much like their Federal

governmental counterparts.

implications the proposal might have had on non-federal governmental activities at

the state or local levels.

The Senate immigration reform proposals seemed to raise fewer questions of

jurisdictional sweep along these lines. The Inhofe Amendment appeared largely

limited in any direct manner to actions of the federal government rather than the

states and localities. Nor did it appear that the Salazar Amendment would carry direct

CRS-4

th Congress would give varying force to this declaration depending onth Congress illustrate this concept.th Congress, the Inhofe and Salazar amendments to the proposed10 Absent further elaboration, it is uncertain what, if any,

11

152 Cong. Rec. S4752 (daily ed. 5-18-2006).

12

Id.

13

Id at S4753 (Remarks of Senator Inhofe).

14

authorized or provided by law’ is there. That means, simply put, if there is a law on the

books – a case decision, a regulation, an Executive order, you name the source of law – or

a constitutional provision that would allow the Federal Government to interact with its

people in an language other than English, it is not affected by this amendment, nor does it

prevent in the future the Government expanding those services in a language other than

English. It says, also, there is no entitlement to a service in a language other than English,

unless authorized by law. That is just a simple, commonsense concept.”).

Remarks of Senator Graham, Id. at S4764. (“That is why the term ‘unless otherwise

15

See discussion pp. 8-12 infra.

legal implications — beyond, perhaps, those that Congress might impose by means

of the“carrot and stick”of federal funding conditions — on the linguistic policies of

state or local governmental entities. Indeed, the major sticking point between Inhofe

Amendment supporters and its opponents centered on the measure’s potential effect

on existing laws mandating private claims for non-English services or materials

provided by the federal government.

amendment language that would have allowed governmental non-English policies

“authorized or provided by law,” wording criticized for “going further than what you

have indicated; that you are trying to diminish existing rights of the law.”

Inhofe expounded his understanding of the “unless otherwise authorized or provided

by law” exceptions to his “national language” mandate as follows:

11 Questions arose in particular with respect to12 Senator

My amendment makes clear that nobody has a right or entitlement to sue the

Federal workers or the Federal Government for services or materials in languages

in other than English. . . . [T]he Federal Government has no duty to provide

services or materials in languages other than English, but the Federal

Government is free to do so. In other words, they are not compelled to do it, but

they may do it, they have the authority to do that.

The question has been asked: How does the amendment affect the X program?

Will the Federal Government be free to offer X service or material in Y

language? The answer is, yes, the Federal Government is at liberty to offer, can

offer, X services or whatever the program is, in whatever language seems

appropriate, but the Federal Government only has the duty to offer X services

and Y language if a statute creates that right

.13

Likewise, another proponent denied that the Inhofe Amendment would have had any

“unintended consequence” of curtailing federal governmental interactions with

persons in languages other than English, whether based on current law or future law.

“There is nothing in this amendment, in my opinion, that does away with any laws

that already exist or might exist in the future for a language other than English.”

Senator Inhofe’s remarks indicated his intention to ratify the Supreme Court’s

14 But

Sandoval

origin- based private claim for entitlement to foreign language assistance under

CRS-5

ruling, and its predecessors,15 which have refused to recognize a national

16

Id at S4754, 4756 (Remarks of Senator Inhofe).

17

42 U.S.C. § 1973aa-1a.

federal civil rights laws, and the proponents’ rejection of E.O. 13166, which directs

foreign language services and materials in federally-conducted or assisted programs.

16

In general, proposals before the Senate in the 109

the related House measures by obliging covered governmental entities “to preserve

and enhance the role of English” and to “encourag[e] greater opportunities to learn

the English language.” To this end, H.R. 997 sought to secure the “presumptive”

legal validity of English language workplace policies, public and private, and would

have established establish a basic English reading and comprehension rule for

naturalization. Similarly, the Inhofe Amendment’s main sponsor explicitly embraced

judicial rejection of any equation between governmental language policies and

national origin discrimination. The Amendment itself would have added to existing

literacy requirements for naturalization a “Goals for Citizen Test Redesign,” to be

administered by the Department of Homeland Security, which would have required

that all prospective new citizens to demonstrate an “understanding of American

common values and traditions” and “of the history of the United States, including the

key events, key persons, key ideas, and key documents that shaped the institutions

and democratic heritage of the United States.” The Salazar Amendment would not

have altered existing policies in this regard.

However, other formal legal aspects of the proposed House measures found no

direct parallel to the proposed Senate amendments. A “rule of construction” in H.R.

997 would have permitted “unofficial” non-English communications by Members of

Congress and other federal and state officers and agents — even “while performing

official functions” — provided that “the official functions” themselves “[we]re

performed in English.” The bill was silent, however, as to where the line between

official and unofficial would have been drawn, a question that would probably have

had to be answered administratively or by judicial rule. H.R. 4408 would have

repealed requirements in the Voting Rights Act that mandate use of bilingual voting

materials in states or political subdivisions when certain conditions are met.

th Congress appeared to track17

However, neither bill would have expressly overridden any other federal statute

explicitly authorizing the use of language translations, interpreters, or other

supplemental services. Any conflicting state policies mandating non-English usage

in similar state or local proceedings could have been challenged under H.R. 997

unless saved by one of the specific exceptions in that bill, and both H.R. 997 and

H.R. 4408 specifically called for renewed enforcement of English proficiency

standards for citizenship and the “conduct [of] all naturalization ceremonies” in

English.

Furthermore, a provision found in H.R. 997, but not H.R. 4408, would have

allowed persons “injured by a violation of this chapter” to file a civil action in federal

court for “appropriate relief.” The ramifications of this private right of action are

difficult to predict. Traditional rules governing standing to sue in federal court

generally call for proof of “injury in fact” or actual harm suffered by the claimant as

the result of a legal violation. Under the bills, most “official” governmental activities

would be required to be conducted in English, and any legal “entitlement” to

CRS-6

language translation or interpreters would be denied. However, it is arguable, neither

proposal specifically would have banned the government from also providing

services or materials, as needed, in other languages for non-English speaking

constituents. That is, they did not provide that the government conduct its official

business “exclusively” or “only” in English. For this reason, it might have been

difficult for plaintiffs to argue that they were actually injured by the provision of

supplemental services to foreign language speakers if the core official English

requirements of the bill were otherwise met. On the other hand, it could be argued

that any foreign language usage would have conflicted with Congress’ purpose and

the “affirmative obligation” imposed upon the Federal Government “to preserve and

enhance the role of English as the official language... “ In effect, private civil actions

that would have been permitted by the bill to enforce this “affirmative” governmental

obligation could have made the linguistic policy implications of virtually any

“official” action or inaction by the federal government susceptible to judicial inquiry.

Whether the official English mandate in the House proposals would have

pertained only to the form of speech or linguistic medium used by the government,

or its employees, to communicate with the public or was also intended to reach the

content or subject matter of governmental speech may be another issue. If narrowly

interpreted by the courts, as reaching only the formal aspect of federal governmental

documents, rather than their substance, H.R. 997 and H.R. 4408 could have had

marginal impact on federally mandated standards in regard to the education of

language minorities, bilingual election requirements, or private employer Englishonly

workplace rules. H.R. 997, in particular, specifically provided that it not be read

“to disparage any language or to discourage any person from learning or using a

language” nor in a manner “inconsistent with the Constitution of the United States.”

These disclaimers might have had the effect of preserving the

federally enforced bilingualism pursuant to the Constitution or federal civil rights

statutes. An argument could be made, however, that the governmental duty to

“preserve and enhance” the role of official English demands, at a minimum, that a

substantive commitment to English be reflected in the content of federal agency

rulemaking. Accordingly, the bills could have conceivably be read to apply both to

the form and substance of federal laws, regulations, or orders, so as to preclude

imposition upon state or local authorities, or private parties, of foreign language

assistance or bilingual requirements of various sorts. Of course, H.R 4408 would

have eliminated some uncertainty by its express repeal of language minority voting

requirements.

Thus far, the 110

comparable to the measures that emerged during the 109

several more limited proposals have been introduced, including H.J.Res. 17 and

H.J.Res. 19, both of which would amend the Constitution to establish English as the

official language of the United States, and H.Con.Res. 11, which would resolve that

the federal government should pursue policies that not only encourage all residents

to become fully proficient in English, but also encourage all residents to learn or

maintain skills in languages other than English.

CRS-7

status quo in regard toth Congress has not yet witnessed the introduction of legislationth Congress. However,

18

or national origin, be excluded from participation in, denied the benefits of, or be subjected

to discrimination under any program or activity receiving federal financial assistance.” Id.

§ 2000d.

Title VI provides that “[n]o person in the United States shall, on the ground of race, color,

19

at [http://www.usdoj.gov/crt/cor/13166.htm].

65 FR 50121. Additional information on the order and implementing guidance is available

20

414 U.S. 563 (1974).

Federal Policy on Foreign Language Assistance

The interplay of previously proposed legislation with current federal foreign

language policy is perhaps best illustrated by E.O. 13166 and departmental

regulations by the federal government issued thereunder. That order, issued by

President Clinton in 2000, directed each federal department and agency to

“implement a system” for insuring that persons with limited English proficiency

(LEP) are provided “meaningful access” to programs and activities conducted by the

federal government and by recipients of federal financial assistance covered by Title

VI of the 1964 Civil Rights Act.

Department of Justice (DOJ) on the same day, and referenced in the order, set forth

“compliance standards that recipients must follow to ensure that the programs and

activities that they normally provide in English are accessible to LEP persons and

thus do not discriminate on the basis of national origin in violation of Title VI ... and

its implementing regulations.” Each federal grant-making agency was to tailor the

general standards of the DOJ guidance into an approach “ensuring meaningful access

by LEP persons that is practical and effective, fiscally responsible, responsive to the

particular circumstances of each agency, and can be readily implemented.”

18 A policy guidance document, released by the19

The DOJ guidance notes that Title VI and its regulations require recipients of

federal funds to take reasonable steps to insure “meaningful” access to information

and services they provide. What constitutes reasonable steps, the document advises,

will be contingent on a number of factors, such as the number and proportion of LEP

persons in the eligible service population, the frequency with which LEP individuals

come into contact with the program, the importance of the service provided by the

program, and the resources available to the recipient. In balancing factors for

determining what steps are reasonable, agencies are to particularly address the

appropriate mix of oral and written language assistance. Acknowledging that written

translations are a “highly effective way” of communicating with LEP persons, the

document states that oral communication may also be a necessary part of the

exchange of information. LEP persons include those born in other countries, some

children of immigrants born in the United States, and other non-English or limited

English proficient persons born in the United States, including some Native

Americans.

In its guidance, DOJ cited

interpreted Title VI as requiring that a federal financial aid recipient take steps to

insure that language barriers do not exclude LEP children from effective participation

in public educational benefits and services.

in the San Francisco public school system who received classroom instruction solely

CRS-8

Lau v. Nichols,20 in which the U.S. Supreme CourtLau involved a group of Chinese students

21

532 U.S. 275 (2001).

22

Department of Justice, for Heads of Departments and Agencies, General Counsels and Civil

R i g h t s D i r e c t o r s ( O c t . 2 6 , 2 0 0 1 ) , a v a i l a b l e a t

[http://www.usdoj.gov/crt/cor/lep/Oct26memorandum.pdf].

Memorandum from Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights Division,

23

717 F.2d 36 (2d Cir. 1983), cert. denied, 466 U.S. 929 (1984).

in English. The Court ruled that the failure to provide such students with

supplemental instruction in their primary language violated the Title VI ban on

national origin discrimination. The DOJ document extrapolates an extension of the

Lau

doctrine beyond education to other contexts. Note, however, that while the Lau

precedent remains intact, its value as precedent may be diminished somewhat by

subsequent judicial developments.

The Court’s ruling in

the DOJ guidance,

did not strike down the Title VI regulations that form the basis for Executive Order

13166.

requiring all aspects of its driver’s license examination process, including the written

portion, to be exclusively in English. In rejecting a Mexican immigrant’s claim that

the state policy violated Title VI because of its “disparate impact” on ethnic

minorities, a five Justice majority ruled that Congress did not intend a private right

of action to enforce Title VI except as a remedy for intentional discrimination.

Federal regulations prohibiting state practices that have a discriminatory impact,

regardless of intent, could not provide a basis for private lawsuits.

however, did not directly confront federal agency authority, previously acknowledged

by the Court, to enforce Title VI compliance administratively with rules condemning

practices discriminatory in their effect on protected minority groups. Thus, at least

for now, “disparate impact” rules — mandating language assistance for non-English

proficient clients of federally financed programs — may still be enforced by the

government, just not by private litigants. However, some previous congressional

proposals would arguably have negated any private Title VI remedy for linguisticallybased

ethnic discrimination. And any requirement regarding the government’s

“affirmative obligation” to promote English could portend similar perils for agency

rules condemning the disparate impact of English-only policies under Title VI.

Alexander v. Sandoval was decided after publication of21 although DOJ has taken the position that the Sandoval decision22 At issue in Sandoval was the State of Alabama’s “English-only policy”Sandoval,

Constitutional Law Implications of Official English

Judicial decisions involving the constitutional implications of government

language policies have arisen in a variety of legal contexts. One series of cases has

involved non-English speaking plaintiffs who have unsuccessfully sought to require

the government to provide them with services in their own language. In

Perez v. Heckler

Hispanic individuals of limited English proficiency who claimed that the equal

protection and due process clauses of the Constitution required the Secretary of

Health and Human Services to provide them with Social Security forms and

instructions in Spanish. The appeals court could find no basis for the constitutional

CRS-9

Soberal-,23 for example, the Second Circuit rejected an action on behalf of

24

Id. at 43-44.

25

administrative seizure in French); Garcia v. Spun Steak Co., 998 F.2d 1480 (9

cert. denied 512 U.S. 1228 (1994)(employer’s English-only workplace rules do not violate

Title VII of the 1964 Civil Rights Act); Vialez v. New York City Hous. Auth., 783 F.2d 109

(S.D. N.Y. 1991) (Housing Authority’s failure to provide documents in Spanish does not

violate Title VI or the Fair Housing Act since “it reflects, at most, a preference for English

over all other languages” rather than racial or ethnic discrimination); Guadalupe Org., Inc.

v. Tempe Elementary Sch. Dist. No. 3, 587 F.2d 1022, 1027 (9

bilingual education); Frontera v. Sindell, 522 F.2d 1215, 1219-20 (6

civil service exams do not violate Hispanic individuals’ equal protection rights since

“[l]anguage, by itself, does not identify members of a suspect class”); and Carmona v.

Sheffield, 475 F.2d 738 (9

See, e.g., Toure v. United States, 24 F.3d 444 (2d Cir. 1994)(no right to notice ofth Cir. 1993),th Cir. 1978)(no right toth Cir. 1975)(Englishonlyth Cir. 1973)(no right to employment notices in Spanish).

26

262 U.S. 390 (1923).

27

Id. at 401.

and related statutory claims since the Secretary’s action bore a rational relationship

to a legitimate governmental purpose:

We need only glance at the role of English in our national affairs to conclude that

the Secretary’s actions are not irrational. Congress conducts it affairs in English,

the executive and judicial branches of government do likewise. In addition, those

who wish to become naturalized citizens must learn to read English.... Given

these factors, it is not irrational for the Secretary to choose English as the one

language in which to conduct her official affairs.

24

The federal courts have similarly found no constitutional duty on the part of

government to provide certain other forms of official notice or services to individuals

in their native tongue.

involved, non-English speakers have no affirmative right to compel government to

provide information in a language that they can comprehend. They do not address the

converse issue of legislative power to restrict official speech in languages other than

English as a matter of state or national policy.

Another body of judicial authority has found that certain state law restrictions

on linguistic diversity may act as a “proxy” for national origin discrimination or

infringe upon First Amendment free speech rights. In

example, the Supreme Court found that a state law prohibiting modern foreign

language instruction in any school, public or private, before the ninth grade violated

Fourteenth Amendment due process because it infringed upon the liberty of parents

to make educational choices for their children. According to the

25 These cases, however, hold only that in the circumstancesMeyer v. Nebraska,26 forMeyer Court:

[t]he protection of the Constitution extends to all, to those who speak other

languages as well as to those born with English on the tongue. Perhaps it would

be advantageous if all had ready understanding of our ordinary speech, but this

cannot be coerced by methods which conflict with the Constitution — a desirable

end cannot be promoted by prohibited means.

27

Meyer

Hawaii statute that singled out “foreign language schools,” such as those in which

CRS-10

was applied by the Court in Farrington v. Tokushiga to invalidate a

28

273 U.S. 284 (1927).

29

273 U.S. at 293.

30

Id. at 393.

31

Id. at 390.

32

Id. at 398.

33

271 U.S. 500 (1926).

34

Id. at 514.

35

500 U.S. 352 (1991).

36

prospective jurors] that is ‘race-neutral’ on its face is nonetheless unacceptable if it is

merely a proxy for a discriminatory practice.”

Id. at 371. Similarly, Justice Stevens, in dissent, asserted that “an explanation [for strikingId. at 379.

37

520 U.S. 43 (1997).

Japanese was taught, for stringent government control.

regulating language instruction in

the students may be promoted.”

defense of the

sympathy with the principles and ideals of this country,”

development,”

foreign to the best interests of the country.”

the validity of such goals, the Court found them insufficient to warrant state

interference with foreign language usage in the schools.

28 The state’s purpose forTokushiga was “in order that the Americanism of29 Similarly, the governmental interests asserted inMeyer statute were “to create an enlightened American citizenship in30 “to promote civic31 and to prevent inculcation in children of “ideas and sentiments32 Despite a judicial acknowledgment of

Yu Cong Eng v. Trinidad

forbidding Chinese merchants from keeping their business account books in Chinese,

the only language they knew.

embarrass all of [the Chinese merchants] and would drive out of business a great

number,”

protection under the Constitution. Although based on the substantive due process

doctrine of an earlier period, reverberations of

in rulings of more recent vintage. In

determined that peremptory challenges directed at Latino jurors because of their

bilingualism and demeanor were not unconstitutional because the factors motivating

the prosecutor’s action in that case did not function as a proxy for race. Writing for

the plurality, however, Justice Kennedy stated that:

considered the constitutionality of a Philippine law33 Finding that enforcement of the law “would seriously34 the Court held that the law denied the merchants due process and equalYu Cong Eng and Meyer may be foundHernandez v. New York,35 for example, the Court

[w]e would face a quite different case if the prosecutor had justified his

peremptory challenges with the explanation that he did not want Spanishspeaking

jurors. It may well be, for certain ethnic groups and in some

communities, that proficiency in a particular language, like skin color, should be

treated as a surrogate for race under an equal protection analysis.

36

The U.S. Supreme Court in

constitutional controversy when it vacated for procedural irregularities a

ruling by the Ninth Circuit voiding Arizona’s official English law.

voters had approved by referendum a state constitutional amendment providing that

CRS-11

Arizonans for Official English v. Arizona sidestepped37 In 1988, Arizona

38

Yniquez v. Arizonans for Official English, 69 F.3d 920 (1995).

39

facto bar on communications by or with government employees are numerous and varied.

For example, monolingual Spanish-speaking residents of Arizona cannot, consistent with

the article, communicate effectively with employees of a state or local housing office about

a landlord’s wrongful retention of a rental deposit, nor can they learn from clerks of the state

court about how and where to file small claims court complaints. They cannot obtain

information regarding a variety of state and local social services, or adequately inform the

service-givers that the governmental employees involved are not performing their duties

properly or that the government itself is not operating effectively or honestly. Those with

a limited command of English will face commensurate difficulties in obtaining or providing

such information.”

In this regard, the court’s opinion observed: “The practical effects of Article XXVIII’s deId., at 941.

English is the official language of the State of Arizona and that the state and its

political subdivisions — including “all governmental officials and employees during

the performance of government business” — must “act” only in English. A former

insurance claims manager for the state who spoke both English and Spanish in her

daily service to the public argued that the law had a silencing and chilling effect on

constitutionally protected speech of bilingual, monolingual, and Spanish-speaking

public employees and their clients. Despite assertions by Arizona’s Attorney General

that communications “to facilitate delivery of governmental services” were not

“official acts” covered by the law, the Ninth Circuit held that the “plain wording” of

the law defied such limitation and was an overly broad restriction on free speech

rights of state employees and the public they served.

38

The First Amendment analysis applied by the 6-5

Circuit required balancing the right of public employees to speak on matters of

“public import” against the government’s legitimate interest as an employer “in

achieving its goals as effectively and efficiently as possible.” Although the

government may generally regulate public employee speech concerned simply with

“matters of personal or internal interest,” the Arizona law “significantly interfere[d]”

with “communications by or with government employees” related to “the provision

of government services and information,” a form of public discourse entitled to

greater constitutional protection.

considerations constituting fundamental governmental interests in the usual “public

concern” case — and that provide the justification against which the employee’s First

Amendment interests must be weighed — were found totally lacking by the Ninth

Circuit. Indeed, the appeals court determined that government efficiency would

actually be promoted rather than hindered by permitting public employee speech in

languages other than English. Nor was the state’s asserted interest in forging “unity

and political stability” by “encouraging a common language” sufficient to warrant

restrictions on foreign language usage.

The Supreme Court vacated and remanded the case, in effect leaving the

Arizona law intact for the time being. Speaking for a unanimous Court, Justice

Ginsburg declared the case moot since the plaintiff had resigned from state

employment prior to appeal and had never sought to have the case certified a class

action. In addition, the Justices had “grave doubts” whether Arizonans for Official

English, original sponsors of the ballot initiative, had standing to appeal the case as

a party after the Arizona Governor declined to do so. Finally, the federal district and

CRS-12

en banc majority of the Ninth39 Moreover, the efficiency and effectiveness

40

191 Ariz. 441, 957 P.2d 984, cert. denied, 525 U.S. 1093 (U.S. 1999).

appeals courts had erred by failing to certify unsettled state-law questions regarding

the scope of the English-only amendment to the Arizona Supreme Court for

“authoritative construction” before proceeding with the case. The Supreme Court

thus left a constitutional ruling on the Arizona Official English law for another day.

In 1998, the Arizona Supreme Court decided

state’s English-only amendment violated the First Amendment and the Equal

Protection Clause. Like the Ninth Circuit, the Arizona Court found a core First

Amendment right in a citizen’s ability to receive essential information from

government officials and to petition the government for redress of grievances.

According to the opinion, the state law “effectively cuts off governmental

communication with thousands of limited-English-proficient and non-Englishspeaking

persons in Arizona, even when the officials and employees have the ability

and desire to communicate in a language understandable to them.” Applying strict

scrutiny analysis,

Amendment because it was overbroad and could not satisfy the compelling state

interest test. The Arizona Court also found an Equal Protection violation based on

earlier precedents establishing a “fundamental individual right of choice of

language.” Pending a definitive federal court ruling, however, the constitutionality

of restrictive official English policies remains a somewhat unsettled matter.

Ruiz v. Hull,40 holding that theRuiz held the English-only amendment violated the First

Miscellaneous Federal Policies Providing for Non-

English Translation and Services

Besides voting rights, federal statutory requirements regarding foreign language

interpretation and use are included in various other federal programs and activities.

For example:

!

Code to “preserve, protect, and promote the rights and freedom of

Native Americans to use, practice, and develop Native American

languages.” (25 U.S.C. § 2903(1)) The chapter is supported by

congressional findings relative to the “unique” and “special” status

of Native-American language and culture, and to the need for the

“United States, individual States, and territories to encourage the full

academic and human potential achievements of all students and

citizens and to realize these ends...” (Id. at § 2901) Specifically, in

regard to education, the declaration of policy “encourage[s] and

support[s]” the use of Native American languages “as a medium of

instruction” in Indian schools, and also “encourages” all other

“elementary, secondary, and higher education” institutions to “afford

full academic credit” and “include Native American languages in the

curriculum in the same manner as foreign languages.” (Id. at § 2903)

In aid of this policy, the statute further provides that “[t]he right of

Native Americans to express themselves through the use of Native

CRS-13

American languages shall not be restricted in any public proceeding,

including publicly supported education programs.” (Id. at § 2904)

Federal departments and agencies are to evaluate their policies and

procedures, and laws within their administrative jurisdiction, for

compliance with the stated policy, but no procedure for

governmental enforcement of the linguistic “right” created by the

law is provided.

American Indians: Congress enacted Chapter 31, Title 25 of the U.S.

!

mental examinations of alien immigrants seeking entry into the

United States (8 U.S.C. § 1222 (b)).

Immigration: Interpreters must be provided during physical and

!

the U.S. Courts is to establish a program for the use of foreign

language interpreters in federal civil and criminal proceedings

instituted by the United States (28 U.S.C. § 1827); courts may

appoint interpreter to be paid by the government in federal criminal

proceedings (Rule 28, Fed. R. Crim. Proc.); service of judicial

process by the United States and state courts on a foreign state, its

political subdivisions, agencies, or instrumentalities must be

accompanied by a translation “into the official language of the

foreign state” (28 U.S.C. § 1608); employment of interpreters in

court-martial, military commission, or court of inquiry proceedings

is required, if needed. (10 U.S.C. § 828).

Judicial proceedings: The Director of the Administrative Office of

!

language that is easily understandable to reader” under various

Social Security Act programs (42 U.S.C. §§ 405, 1383). Foreign

language interpreters or translations are required in connection with

federally funded migrant and community health centers (42 U.S.C.

§§ 254b(b)(1)(a)(iv) and 254b(j)) in a grant program for certain

health care services for the homeless (42 U.S.C. § 256); in alcohol

abuse and treatment programs, which serve a substantial number of

non-English speaking persons (42 U.S.C. § 4577(b); and in the grant

program for supportive services under the Older Americans Act (42

U.S.C. § 3030d(a)(3)).

Social and health care services: Notices must be provided “in

!

translation of publications into foreign languages (7 U.S.C.

§ 2242b).

Agriculture: Department of Agriculture funds may be used for

State Laws

As noted, 28 states have adopted Official English laws in various forms. Some

enactments make a simple declaration of English as the official state language,

CRS-14

41

is the official language of the State of Colorado.”

See, e.g., Colo. Const. Art. II, § 30, which states, in its entirety, “[t]he English language

42

to non-English speaking defendants or witnesses in criminal or civil proceedings); ALM GL

ch. 221C, § 2 (Non-English speakers have the right to the assistance of a qualified

interpreter in legal proceedings).

See, e.g., Code of Ala. §§ 12-21-130, 15-1-3 (Foreign language interpreters are provided

43

apply to an agency for an interpreter if they cannot understand English); Minn. Stat. §

15.441 (“Every state agency that is directly involved in furnishing information or rendering

services to the public and that serves a substantial number of non-English-speaking people

shall employ enough qualified bilingual persons in public contact positions, or enough

interpreters to assist those in these positions, to ensure provision of information and services

in the language spoken by a substantial number of non-English-speaking people.”); Conn.

Gen. Stat. § 19a-490i. (Each “acute care hospital” shall ensure that interpreters are available

for patients that speak a language other than English that is spoken by more than 5% of the

population and must review and translate standardized forms for non-English speaking

patients); Fla. Stat. § 381.026 (Patients who do not speak English have the right to be

provided with an interpreter when receiving medical services if the facility has a person

readily available who can interpret on behalf of the patient).

See, e.g., Md. State Government Code Ann. § 10-212.1 (In contested cases, parties may

44

business licenses are permitted to use interpreters, provided the Department of Licensing

determines that such use would not “compromise the integrity” of the testing process).

See, e.g., Md. Business Regulation Code Ann. § 2-110 (Applicants for professional or

45

English and they speak the same language, then the employer must provide an interpreter);

NY CLS Exec Appx § 466.11 (The provision of an interpreter is specifically included in the

definition of “reasonable accommodation” in the workplace).

See, e.g., Iowa Code § 91E.2 (If 10% or more of an employer’s workforce does not speak

46

should be provided if the supervisor of an election requests such a translation 60 days prior

to an election); N. M. Stat. Ann. § 1-2-19 (An election translator shall be appointed to assist

language minority voters).

See, e.g., Fla.Stat.§ 101.2515 (A translated ballot in the language of any minority group

47

(continued...)

See, e.g., A.R.S. § 26-1028 (Interpreters may be provided for proceedings before “a court-

without more.

uniformity, or otherwise to preserve and enhance the official role of the English

language. More specific measures expressly prohibit or restrict, in one fashion or

another, foreign language usage by state agencies or employees in the conduct of

official business. Specific exceptions to English-only requirements are frequently

included, however, particularly where necessary to comply with federal law.

Meanwhile, a plethora of other laws have also been enacted by various state

legislatures to facilitate communication with persons of limited English proficiency

in the provision of needed public and private services. For example, most states

require the use of interpreters in courtroom and other law enforcement settings,

41 Others arm state legislatures with power to enforce linguistic42

while many states require similar services for LEP individuals appearing before

administrative agencies or seeking health care.

interpretation and translation also appear in state laws pertaining to professional

licensing,

justice.

43 Similar requirements regarding44 business and employment,45 state and local elections,46 and military47

CRS-15

47

47

martial, military commission or court of inquiry”); S.C. Code Ann. § 25-1-2640 (The

convening authority of a military court may detail or employ interpreters who shall interpret

for the court).(...continued)

English as the Official Language of the United States:

Legal Background and Analysis of Legislation in the

110

Summary