Tough Legal Question: The President’s Statements VS Acts

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A debate is taking place in legal circles, matching the contentious findings of the various judges that have been dealing with figuring out how Trump’s executive orders are related to his earlier statements.

During the campaign trail, Trump said he would institute a Muslim ban. Most legal experts would consider such a ban to be a violation of the Constitutionally protected right to freedom of religion. Now that Trump is trying to enact a travel ban from several countries where Muslims are the majority, the claim that travel from the countries poses a risk to the U.S. is not enough.

His first attempt at the travel ban was struck down in court because of his earlier statements. Those arguing against the ban said that because Trump had earlier said he wanted a Muslim ban, no matter what he says now about a travel ban, the ban is actually a ban against Muslims, even if it has no language in it mentioning religious affiliation. Trump’s second attempt at travel restrictions is facing similar challenges.

Another aspect of the debate is the question of what would be enough to satisfy those arguing against Trump that he no longer wanted a Muslim ban, and just wanted to increase security. In the Fourth Circuit Court of Appeals this week, Judge Robert King asked, “What if the President repudiated his statements in the campaign and post-election about the Muslim ban? What if he repudiated them all?”

The lawyer for the International Refugee Assistance Project, Omar Jadwat, responded that it would be “a significant fact” but that it “would not change the result.”

Judge Dennis Shedd then followed up, “What if he says he’s sorry every day for a year? Would that do it for you?”

Jadwat responded, “… Here’s the issue, your honor. What the establishment clause prohibits is targeting and denigrating religion. At a minimum, that’s what it prohibits. And the question is, would reasonable people see what he was doing in total as achieving that effect?”

“You say reasonable people would say he doesn’t really mean it when he says he’s sorry?”

“Your honor, I think it’s possible that saying sorry is not enough.”

Other hypotheticals were posed by the court, such as whether another candidate had won the election and they tried to instute the travel ban, or if Trump had said he hated Muslims earlier in life (in college), or if there was a clear threat from a religious group. The questions circle the main issue: Are executive orders to be judged based just on national security, or does the religious liberty clause jurisprudence come into play as well?

The Right to Keep and Bear Arms in the U.S.A.

The Right to Bear Arms in the U.S.A.
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James Madison wrote 19 proposed Amendments to the Constitution.  Ten were ratified in 1791, becoming the Bill of Rights.  The right to bear arms is the second Amendment:

“A well guarded 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 U.S. Constitution drew upon the Virginia Constitution, written by Geoge Mason, for its language.  The Virginia Constitution, adopted in 1776, had 16 sections.  The right to bear arms was the 13th:

“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.”

It is clearer in the Mason guarantees what was being provided for: that the proper defense of a state is an organized militia composed of state citizens; that national armies are dangerous to liberty and should be avoided in times of peace; that civil authorities should control strictly any national military.  In Madison’s Amendment, the language is confused, but looking to the Mason document for clarity, the Amendment’s meaning is available: A state militia is necessary to a state, and therefore state citizens shall always have the right to keep and bear arms.  The unwritten reason why a state needs a militia is the defense of state, including its defense against a national military that could endanger the liberty of state citizens, if ever such a defense were necessary.

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The vagueness of Madison’s Second Amendment has caused confusion and disagreement in the matter of Americans’ right to keep and bear arms, and so shows a lack of clarity in the U.S. Constitution. In District of Columbia v. Heller (2008), the vague meaning of the Second Amendment was finally ruled on, but not conclusively.  The decision was 5-4 that the Second Amendment meant the right to keep and bear firearms unconnected with military service in a militia and to use those firearms for self-defense within the home.  The large minority argued that the Second Amendment protected only the right to keep and bear arms in connection with militia service. In order to decide the meaning of the Second Amendment, Justice Scalia, writing for the majority, went into a long, complex investigation of the language of the Second Amendment, examining grammatical elements, comparing the language with the language of other Amendments, comparing definitions of the words used in the Amendment, and decided upon possible and less possible meanings of the Amendment.  Scalia’s conclusion in large resulted from his conclusion that “the operative clause is consistent with the announced purpose” while the “prefatory clause does not limit or expand the scope of the operative clause.” Scalia’s study of the language was not persuasive for at least four of the nine justices.  The large dissenting opinion believed that the meaning of “bear arms” was not, as Scalia defined it, “any thing that a man wears for his defense,” but rather an idiom meaning “to serve as a soldier, do military service.”

By Day Blakely Donaldson

Source: Cornell University