Former U. S. Representative Bob Barr spoke to Madison Forum members and guests at the regular luncheon meeting, Monday March 12, 2007.
He began by praising the group for its outstanding leadership enjoyed over the years and an extremely active membership. He said this is one of the organizations that our elected leaders really need to turn to. The credibility that the group has developed over the years is because of the tremendous consistency of not only the positions we take, but the pro-active, positive way we present them really has developed a great deal of credibility.
Mr. Barr said that in this day and age when the Bill of Rights and the Constitution are under assault with such vehemence, it seems, in Washington and even in many of our states, its hard to avoid becoming pessimistic, and a little bit of good news is noticeable when it happens. He said he read a couple of things that happened lately that we ought to highlight, both for the American public and for our elected officials, that fall into that category of good news from a Constitutional liberty standpoint.
One is the fact that for the very first time in our nation’s history, last week a United States Court of Appeals ruled squarely that what the Founding Fathers said when they crafted the Second Amendment is as true today as it was back then; that it presents an individual right to keep and bear arms. There has not been in the course of our nation’s judicial history a U.S. level District Court of Appeals decision that squarely made that point, and the D.C. Circuit made that point in a two to one decision that was rendered last week.
There were six residents of the District of Columbia, including very strangely, a police officer who, although he was able to carry a firearm in the performance of his official duties, he could not keep a firearm at his home. He was one of six plaintiffs that filed this action against the District of Columbia gun ban which dates back 30 years. While the District of Columbia has always maintained, as have gun control advocates in several states, that they support the second amendment, but. Then they go on to support all sorts of restrictions. The Court of Appeals looked at what the District of Columbia had been doing for 30 years by virtue of its gun ban passed in 1976, and said it was tantamount to a denial of a person’s individual right to bear arms. Mr. Barr said the majority opinion is very long, but it is one of the best judicial opinions that he has seen in many years. The two judges walk the reader through the history of the Second Amendment, the Bill of Rights, the language that not only went into the crafting of the Second Amendment, but also the sources that the Founding Fathers drew on, such as the Tennessee Bill of Rights that, also explicitly, as many of the bills of rights that our colonies used, did expressly and explicitly talk about an individual right to keep and bear arms. They looked at the language of the Second Amendment. They correctly focused on the fact that the operative language of the Second Amendment is the right to keep and bear arms shall not be abridged. The language regarding the militia is descriptive, or informative, or illustrative of a purpose for which that individual right to keep and bear arms, as noted in the operative clause of the amendment, protects. They look at the whole concept of a militia, correctly recognizing that militia has nothing to do with the National Guard, or the military, or the police force. Quite the opposite, it has to do with the people. The opinion also looks at the word “the people”. It looks at the use of the word “arms”. And in every instance common sense and the history that these two judges at least understand normal common sense notions of grammatical construction. They understand the language. They understand the concept; and, from looking at the source documents that our Funding Fathers had in mind. And perhaps most importantly, they reminded us that the right to keep and bear arms has nothing to do with the Second Amendment, anyway. It is an inherent right of a free people, and it preceded the Second Amendment. The Second Amendment didn’t give us that right. It simply guarantees that right against government efforts to take it away. Mr. Barr said it is a magnificent opinion, and even though it is long, it is not convoluted. It is very lucid and one that should be source material for all students of the Bill of Rights as a whole, since these same sorts of questions crop up with regard to other components of the first ten amendments. It really ought to be used by all of us and our friends who fall into this category of constitutional defenders as a source document for many years to come.
It’s not the end of the argument. This was simply a three-judge panel that had the first crack at this decision to come up from the trial court level in the District of Columbia which had upheld the D.C. gun law. When that district court opinion came out the case then went to appeal by the six citizens. It went to this three-judge panel which ruled two to one to reverse the district court opinion. The District of Columbia has indicated that it will appeal to the full panel. This may very well be the case that many of us have been waiting for in which the U.S. Supreme Court will finally have before it a case that will squarely settle the question once and for all. Mr. Barr said it is strange that the question even needs to be settled, since it is so self evident if you just read the Second Amendment. The Supreme Court may use this case to finally decide once and for all that the Second Amendment, like the other provisions in the Bill of Rights reflect an effort by the Founding Fathers to guarantee individual rights that are inherent in the people, not granted by the congress or the Bill of Rights.
Mr. Barr continued, saying there’s a lot to be written about this, but in this day and age when we have the Attorney General of the United States going before the congress, as he did on January 17th, saying there is no right to habeas corpus in the Constitution, defying common sense, history, and the specific language of the Constitution; when you have the FBI being criticized even by a very supportive Attorney General, as also happened last week, for violating the terms and abusing the powers of the Patriot Act; where you have a government accountability office issuing a report criticizing the government for moving forward with another of these data mining programs, notwithstanding the fact that cove information awareness had been prohibited. Where you have all those sorts of things happening with unfortunate frequency, it is nice to see something like that opinion that came out of the D.C. Circuit Court of Appeals.
Mr. Barr mentioned another issue to keep on the radar screen is the Real ID Act which was passed a couple of years ago by the congress as part of a piece of immigration legislation. The Real ID establishes for the first time in this nation’s history a national identification card. Washington doesn’t call it that, but that is what it would do. It would establish a national identification card and some form of national data base. And therein lies another problem. We would be mandating that the State of Georgia, the wishes of its citizens to the contrary, and the governments of all the other states would be required to furnish information to the federal government with no idea of the extent of the information or how it could be used. And the states would have no control over the information or who would have access to it. All this was scheduled to happen in May of 2008. Several states have been very pro-active, even more than Georgia. Georgia has made some overtures toward removing itself from this real ID process, but not very aggressively. Some other states haves been doing a better job of both putting political pressure on Washington by taking specific legislative steps in their states to remove themselves from compliance or being a part of this real ID bandwagon, or alternatively toward taking specific steps publicly while not legally removing themselves draws attention to the inherent problems in the Real ID Act.
As a result of that and as a result of the Department of Homeland Security’s inability, despite of having worked on this matter for well over two years, to come up with a timely set of regulations to implement the Real ID Act, the government announced the week before last that the period before the Real ID Act goes into full effect has been extended a couple of years. This is good news, but it’s only good news if we the citizens who care about what the federal government is trying to do take the initiative to exert pressure on the congress to stop this Real ID Act, period, not just continue it, not just try to get some sort of piecemeal handle on it, but to stop it, and also to work here in Georgia to brace up our governor and state legislators to really take a very close and pro-active look at the Real ID Act and at least do the right thing for the people of the state of Georgia, even if we can’t get the federal government to do the right thing for the people of this country. So, that process is now moving forward – a little bit slower – but still moving. There were draft regulations, and the draft regulations have now been issued for the implementation of the Real ID Act, and there is a 60-day comment period. Mr. Barr said he would read the regulations and intended to submit written comments. He said the Madison Forum might want to do the same. He suggested we all take a look at them. He said they are not easy reading. They are federal government regulations, and they are designed to be obtuse, and unclear. They are designed to be disingenuously presented. So, he said, look at them very carefully, and if we see, individually, or as a group, areas that are of concern, at least go on record. It can be done by e-mail, or send the materials in. It is a relatively open process to submit the materials. Whether or not they pay any attention to them is another matter, Mr. Barr feels that it is important that as many individuals and organizations as possible who care about our privacy on record notion of having a national ID card with a virtual complete loss of whatever little privacy we might have left virtue of the development and maintenance of some form of national data base or data bases with all this information in them.
Mr. Barr said he knew we are following these things, but it’s really the first time in recent months that he thinks we can look and say there’s some good news along with a lot of the bad news that’s coming out, and it’s important to recognize that, and seize on it, and work those issues where we see a little bit of light at the end of the tunnel.