By Jim Allen, Editor, NuVote Reach
Outgoing Sen. Joe Lieberman (I-CT) talking to reporters Sunday outside the interfaith memorial service for the Sandy Hook victims in Newtown, CT said a “national commission on violence” should be convened to focus on “violence in the entertainment culture, mental health services and, of course, gun laws” in the United States, in the wake of the massacre. The “right to…bear arms” and a range of other “unalienable” guarantees delineated in the Bill of Rights would unavoidably drive the politics and complicate consensus building of such a convention.
Examining some of the likely applicable constitutional-amendment battlegrounds in numerical order, the First Amendment promises that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Attempts to curb depictions of “objectionable” material in the entertainment industry, including graphically violent video games, would prompt position stakeouts on the First Amendment guarantee of freedom of expression.
The Miracle, a 1948 movie directed by Roberto Rossellini, which concerned a poor girl who thought she was impregnated by a saint, was condemned by the Catholic Church and a vocal public as “sacrilegious and blasphemous.” The film was subsequently pulled from New York theaters by the New York State Board of Regents, acting through the Commissioner of Education, Lewis A. Wilson. The film’s New York distributor Joseph Burstyn sued for relief.
The US Supreme Court ruled in Burstyn v. Wilson (1952) that a state may not censor a film on the basis of a finding that it is “sacrilegious” and by extension struck down almost every governmental justification for censorship. The unanimous opinion essentially extended the same First Amendment protection to motion pictures that was previously afforded to newspapers, magazines and books.
Moreover, in Brown v EMA/ESA (2011) – originally filed as Schwarzenegger v EMA/ESA – the Supreme Court ruled 7-2 in favor of the Entertainment Software Association and declared “unconstitutional” a 2005 California law signed by violent-action-movie star and then-Governor Arnold Schwarzenegger preventing the sale to minors of games involving “killing, maiming, dismembering or sexually assaulting an image of a human being.”
Protecting children “does not include a free-floating power to restrict the ideas to which children may be exposed,” wrote Justice Antonin Scalia.
An active battlefront would undoubtedly be the Second Amendment enshrinement of “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.”
In 2008, in a 5-4 opinion, the US Supreme Court upheld a lower-court ruling in the landmark DC v David Heller case that struck down Washington, DC’s gun laws which barred the registration of handguns, required licenses for all pistols and mandated that all legal firearms must be kept unloaded and disassembled or trigger locked, saying the Second Amendment guarantees individuals the right to defend themselves and their homes with a firearm.
The high court’s Heller ruling did leave open the possibility of “reasonable” gun restrictions and DC officials quickly codified some of the nation’s most stringent gun laws. The modified gun laws required residents to have trigger locks, make multiple trips downtown to register the weapons, and forbad certain categories of firearms.
US District Judge Ricardo Urbina upheld DC’s revised gun laws in 2010 finding that the new regulations were designed to make DC safer and did not violate the Second Amendment guarantee of a person’s right to own a gun for self-defense.
“It is beyond dispute that public safety is an important – indeed, a compelling – governmental interest,” Urbina opined.
Wrangling with the mental health-related aspects of this nationally expansive conundrum might begin with the Fifth Amendment guarantees that: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The High Court held 5-4 in Miranda v Arizona (1966) that “there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.”
Even if a person’s public or privately observed tendencies “profile” them to be a potential ticking time bomb seemingly primed to perpetrate heinous acts of violence on their community, would not a potential assailant have an enduring Miranda right to remain silent during a court-ordered mental examination?
What would be the parameters of a “competency” assessment and impact when no crime has been committed?
In a 6-3 opinion in the landmark Sell v. United States (2003) the high court held that the Fifth Amendment Due Process Clause allowed for the involuntary administration of antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but does not establish a precedent for a pre-crime scenario.
The Fourteenth Amendment says: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Could a compelling community interest be established and legally upheld regarding the disposition and/or detention of a presumed or clinically documented mentally ill person, suspected of contemplating mayhem — when there is no imminent danger?
There is also the Writ of Habeas Corpus, Article I, Section 9, Clause 2, where there must be a demonstrated legal and jurisdictional basis for continuing to hold a prisoner which is constitutionally expressed as “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
President Abraham Lincoln ordered the suspension of the constitutionally protected right to writs of habeas corpus in 1861, shortly after the start of the American Civil War.
Of course, no one expects President Barack Obama to suspend habeas corpus. Might he or could he issue an Executive Order to require universal background checks for gun purchases? We’ll see.
In his remarks at the interfaith service the president stopped short of laying out his plan of action to address the recurring waves of predatory violence across the US, which left dead 20 children and 6 educators last Friday at the hands of a troubled man with a semi-automatic rifle at Sandy Hook Elementary School. But it appears he has something on the “executive” level in mind whatever may come of the idea of a per se national commission on violence.
“In the coming weeks, I will use whatever power this office holds to engage my fellow citizens — from law enforcement to mental health professionals to parents and educators — in an effort aimed at preventing more tragedies like this. Because what choice do we have?” said the president.
“We can’t accept events like this as routine. Are we really prepared to say that we’re powerless in the face of such carnage, that the politics are too hard? Are we prepared to say that such violence visited on our children year after year after year is somehow the price of our freedom?” added the president.
The president acknowledged the prospect of “hard” politics ahead, and as a former law professor he knows better than most that constitutional battles of epic proportions are likely ahead, engaged on the most fundamental tenets of US jurisprudence.