Wednesday, March 31, 2010

Another Look at Iranian Nuclear Capabilities

Back in February, I had analyzed that Iran’s economic infrastructure is so poor that they can’t even produce the millions upon millions of gallons of oil, let alone put together a nuclear bomb. The CIA, however, begs to differ. As stated in their recent report to Congress, "Iran continues to develop a range of capabilities that could be applied to producing nuclear weapons, if a decision is made to do so.”

The CIA’s report helps confirm the IAEA’s earlier report confirming their nuclear capabilities. It seems that Obama has even had his dose of reality since his last meeting with French President Nicholas Sarkosy. They are putting up a front to make sanctions against Iran in hopes that other nations will follow suit. As Obama himself stated, "My hope is that we are going to get this done this spring," Obama said. "I'm interested in seeing that regime in place in weeks."

If Obama is truly interested in stopping Iran, he will put pressure to have Congress hammer out the differences in H.R. 2194 as soon as possible. Although this will be a step in the right direction, other nations need to put sanctions on Iran because “the more, the merrier [except if you’re Iran].” The obstacle for multilateral sanctions is China and Russia. The reason for this notion is the simple neo-realist concept of balance of power. In short, China and Russia don’t want the United States exerting its power in Central Asia. Russian-Iranian relations have been at an all-time high, and China finds that Iran will be useful for economic gain, the sole stabilizing force of internal Chinese affairs. Since the United States does not exert enough power to have China obey upon America’s say-so, the only way to change China’s mind is to take the drastic action of the United States to withdraw all of its economic activity out of China.

But I digress….slightly. Before I get too carried away, let’s see if Obama can abandon his foreign policy of “stick it to your friends while kowtowing to your enemies” before we discuss multilateralism.

Tuesday, March 30, 2010

Who Needs a Yom Tov Sheni?

I purposefully post this blog entry on a yom tov sheni to prove a point, which is that we no longer need a second day to celebrate Jewish holidays in the Diaspora. Biblically speaking, Pesach and Sukkot were to be celebrated seven days, whereas the others were meant to be celebrated for one day. From a historic standpoint, the reason for the divergence from the Tanach is due to exile. When there was a Sanhedrin, they would declare the arrival of the new moon. That message was then conveyed by via beacon fires on hilltops. Because of the extensiveness of the Diaspora, this system was later replaced by a system of messengers who would travel throughout the Diaspora to deliver the news, as is stated by Talmud (Rosh Hashanah 22b):

בראשונה היו משיאין משואות. משקלקלו הכותים, התקינו שיהו שלוחין יוצאין

In the beginning they would light torches but when the Kutim caused sabotage, the Sages enacted [notification of the new moon] by sending out messengers.

The messenger system, however, was not as effective as one would have liked. As a result, the practice of yom tov sheni (a second holiday day) was instituted to make sure that one would, G-d forbid, accidentally eat chametz on Pesach or hear the shofar on the wrong day. Although imperfect, the practice of messengers continued until the fourth century C.E. The Byzantine Empire made the declaration of the calendar illegal and punishable by law. Fortunately, Hillel Hanasi had calculated all of the times of the Jewish holidays. In spite of this generated back-up, yom tov sheni is still practiced (Beitza 4b):
וחשתא דידעינן בקביעא דירחא, מאי טעמא עבדינן תרי יומי? משום דשלחו מתם,
הזהרו במנהג אבותיכם בידיכם, זמנין דגזרו המלכות גזרה ואתי לאקלקולי

Now that the calendar is fixed what is the reason we have two days of Yom Tov [in Chutz L’Aretz]? Because they sent from there [from Eretz Yisrael to Bavel]: be zealous in maintaining the custom of your forefathers lest a foreign government will pass a law to forbid the calculations of the new moon and you may miscalculate [the time of the festival].

Even though this is declared as a rabbinic law, I will now explain why yom tov sheni is unnecessary:

1a) The purpose of yom tov sheni was to act as a safeguard to ensure that the holiday was properly observed. We know when all of the holidays will occur because they have been calculated. Although the practice of “a government passing a law to forbid the calculations of the new moon and you may miscalculate” is theoretically of concern, we don’t have to worry about that anymore. Especially with the wide dissemination of Jewish information and the advent of the Internet, the probability of all information regarding the Jewish calendar being destroyed is well beyond the improbable. Hence, the Sage’s concerns here are a non-issue.

1b) According to Jewish law, if a takanah [or a gezeirah, for that matter] has an explicit reason to it and that reason no longer applies, a higher court is not needed to overturn the Sanhedrin’s ruling. Even though there is a debate on whether this is a takanah or a minhag, much of what I have seen treats this practice as a takanah. Read the Reform movement’s teshuva on the issue.

[Note: Normally, I would never, ever use a Reform responsum to justify my opinion. The reason behind that is that their response to just about everything else in Judaism is “forget tradition, we’re going to do it our way!” They don’t even attempt to struggle with the complexities of Jewish law, which is nothing more than a form of intellectual laziness. Rather, they find it more convenient to throw out the baby with the bath water via subjective autonomy. However, I find exception with this teshuva because it actually takes halacha into consideration.]

Although the Orthodox community would rather be a stalwart advocate for “halacha doesn’t change,” this practice becomes a textbook case for overturning a takanah because, as mentioned above, the reason, that being that a government can prohibit the Jewish people from being able to accurately calculate the time of the holidays, is explicitly stated in the halacha.

2) This practice can cause economic hardship. It usually is difficult enough to get time off for the primary yom tov. Getting off for yom tov sheni produces even more difficulty. In some instances, it can mean the difference between taking a certain job and having to find a more menial job. Other instances can cause the loss of your job. Even if you are lucky enough where your boss approves the time off, it will, in all likelihood, be unpaid. In all instances, creating further economic strain does not help, especially when “a vow of poverty” is anathematic to Judaism.

3) Yom tov sheni does not enhance one’s observance of the holiday. A one day yom tov does better to preserve one’s kavanah than a two-day yom tov. This is not an attempt to justify the short attention span that American culture has instilled in us. It is a pragmatic argument stating that with most people, religious or not, it is much more likely that one will be able to appreciate the meaning of a holiday if that fervor is concentrated into one day rather than being drawn out to two.

4) In all reality, not even the religious communities take yom tov sheni all that seriously. How do I know that? I just look at two Jewish practices d’oraita, and realize that observant Jews don’t consistently practice yom tov sheni. The first one is fasting on Yom Kippur. I understand that most people do not have the endurance to fast for two days. But if you wanted to be absolutely sure that you observed the mitzvah of fasting on Yom Kippur, wouldn’t you, based on your rationale for yom tov sheni, fast for two days to be absolutely sure that you perform the mitzvah? Rather than fasting for two days, any Orthodox Jew relies on the calendar for a one-day observance. The second proof is the counting of the omer. When one counts the omer, does one say “this is the 28th day of the omer or the 29th day of the omer? No! Traditional Jews rely on the calendar for this practice, as well. Finally, we see that halacha even permits, albeit with a lot of debate, doing acts of melacha on yom tov sheni.

In short, people keep the practice not because it cannot be annulled (quite the contrary!), and not because it adds anything to Jewish observance, but because "it's tradition."  On a personal level, if it's your minhag to practice a yom tov sheni, that's fine. But as for me, I find it to be halachically unnecessary, not to metion an impediment on my celebration of the holidays, which is why I'm going to stick with one-day observance for the time being. 

Monday, March 29, 2010

Told You So!

This is the kind of blog I like writing, not because I think I have magically accrued prophecy, but because it's nice to know that my analytical work is accurate and lines up with that concept we like to call reality. 

While skimming through the news, I managed to find two incidents today in which I had accurately predicted an outcome. 

1) Jimmy Carter is a phony.  Obviously, this statement should be more common sense than anything else, but I wouldn't be much of a Jew if I didn't believe people can change their character, even if it is as someone as loathsome as Carter, and even if that possibility is next to nil.  The incident to which I refer was back in December when the ex-President supposedly was being sincere in his repentence to the harm he has caused with his lies.  As if I weren't surprised, Carter is up to his old tricks again.  As Abraham Foxman, president of the Anti-Defamation League, stated earlier today, "As far as I'm concerned, there is no Al Chet. President Carter's recent comments on Israel are profoundly disappointing, and leave little doubt of the insincerity of his apology."  With antics like these, it makes one wonder who's more anti-Israel: Obama or Carter?

2) "Health Overhaul Likely to Strain Doctor Shortage" is a recent piece from Associated Press written by Lauran Neergaard.  Wow, really?!  I didn't know that the health care bill was going to do that.  But voilà, I did blog on that....back in October! Granted, I discussed more about the resultant of a doctor shortage, which, incidentally enough, is the inevitability of rationing health care [i.e., a doctor shortage would be implicit in the argument].  This is basic economics.  When you throw on an extra thirty million people [i.e., a substantialy huge increase in demand of health care services] without increasing the supply of labor in the health care field [i.e., increase the amount of doctors], it strains doctor availability to the point where doctors will have to prioritize because simply put, they won't have time to check up on all of their patients.  I can also predict that Obamacare is going to be disastrous for us, much like David Hogberg does, but then again, that's just something that should be self-evident, rather than rely on some messianic figure to give us false hope of ameliorating the health care system.

I hope to write a blog like this soon.  It's nice to re-visit previous blogs and verify their accuracy.

Voting Democrat: A Secular Jew's Minhag

This blog was inspired by a fellow Republican Jew I was talking to at shul this past Shabbos.  I know, I know, I'm not the only Republican Jew in a non-Orthodox shul, especially the one my size.  Amazing, isn't it?

After the rabbi gave a sermon on the whole "Obama being absolutely rude to Bibi" incident, I was talking with her [the fellow Republican Jew], and we were going on and on about how corrupt Obama is and how he's a terrible president.  We then got on the subject of how a lot of Americans voted for Obama to assuage what Shelby Steele calls "white guilt."  [Yes, Shelby Steele is black, and amazingly enough he wrote this article over a decade ago!]

What stumped us was when we tried to figure out why 78% of Jews voted for Obama when only 53% of Americans did.  For those of you who don't know, the tradition of Jews voting overwhelmingly Democrat dates back to FDR's election in 1932.  The fact that they have been doing so for nearly 80 years still doesn't answer the question "why."

Surely, it cannot be for economic reasons.  Based on the 2000 National Jewish Population Survey, the most recent survey of the American Jewish population that is out there, Jews are statistically more likely to have a higher salary and less likely to be in poverty.  This translates to "a Jew is more likely to be taxed more heavily."  Although I truly have met some masochistic Jews who don't mind being taxed, most people hate the concept of "the more you make, the more they take," especially when it applies to them.

Maybe it's foreign policy.  The only foreign policy issue that would particularly matter to a Jew is Israel.  Based on the Democrats' stunt a couple months ago to pressure Israel, the vast majority of Israel's destructive critics are on the Left (yes, that's the Left, not the Right) not to mention the fact that the Obama administration in unprecedently the most anti-Israel administration ever, it makes me wonder why any Zionist Jew who leans Left could tolerate the virulent anti-Zionism on the Left.

I think history tells a better picture of why so many Jews vote Democrat.  If you look at a millennia of European anti-Semitism, there were all sorts of expulsions of Jews, pogroms, and many other vile acts of anti-Semitism.  What were the commonalities of their oppressors?  They were religious [mostly Christian, although the Sephardic Jews could have told about their fair share of Muslim anti-Semitism].  They were conservative in the classical sense (i.e., they wanted to preserve the status quo, not conservatism as we know it today).  A final commonality that came about post-Enlightenment is that they were highly nationalistic.  When Jewish immigrants came to America in the late nineteenth/early twentieth century, they carried those valid fears with them.  Those fears permeated when FDR created the New Deal Coalition, and because of them, many Jews sided with FDR to prevent an oppressor reminiscent of those in the Old World.

Today, how would one describe a "stereotypical Republican?"  They're religious, they lean Right, and they are more patriotic than their Democratic counterparts.  If it were 1932, I can understand the parallels, but the flaw with that argument is that it's 2010.  Those in the Republican Party are more pro-Israel than those of the Democratic Party.  Although Bush 43. is a poor example of a Republican advocating for smaller, more limited government, that tends to be something that Republicans, as well as most Americans, favor.  This fact is important because the fourth thing that past oppressors have in common is the usage of Big Government to make Jews' lives absolutely miserable.  From the Inquisition to the Cossacks to Hitler to Stalin, the usage of a statist government to commit heinous acts cannot be ignored as a historical fact.

One can't argue that Jews are mentally delayed.  It's quite the contrary, especially when one considers that Jews are 0.25% of the world's population but have managed to acquire 22% of Nobel Prizes.  Just for those math aficionados, we contribute more than our fair share, which by the way, is by a factor of eighty-eight!

The only explanatory option left is that as much as liberal Jews don't like tradition, they have ironically created a minhag of their own--voting Democrat!  It's not out of the realm of imagination to believe that Jews still have some connection to a sense of tradition.  After all, many still feel an obligation to attend Yom Kippur services or a Passover seder, even though their observance lacks in so many other ways.  Plus, even though denial and obstinance can play a detrimental role, just about everybody has a yearning for their roots and heritage, even if it religious in its origin.  In that sense, the minhag of voting Democrat doesn't surprise me.  Jews who abandon Judaism need to latch onto something else, and that something else is the Democratic Party. 

That fervor is so strong that they dishonestly attempt to pass Judaism off as liberalism, something that has sadly been done with an unexpected amount of success.  I save that topic for another blog entry at another time, but it's ironic to note that ardently Democratic Jews have become the very thing they rebelled against---tradition.  And with that, I give you Tevye, who seems to have gone Democratic.....Tradition!

Friday, March 19, 2010

Jews Should Be Vegetarians

That’s a ballsy statement to make—Jews should be vegetarians. Usually, when people hear something like that, one automatically thinks of the stereotypical “holier-than-thou” vegetarian who tries to force their vegetarianism on everybody else because he thinks that vegetarianism truly is dietary superiority. That is not the purpose of this blog entry. I am fully aware that G-d gave man permissibility to eat meat in Genesis 9:3. If I tried to argue that meat consumption was forbidden, I would lose that argument in a New York minute. I am not making an imperative argument here, but merely a highly suggestive one.

One of the primary arguments that traditional Jews make against vegetarianism is that it is anathema to Jewish concepts. Not only will I outline how it is not an anti-Jewish practice, but how it actually enhances one’s Jewishness and is consistent with Jewish values.

כשרות קל.  Vegetarianism makes for better Jewish observance. Some people have a hard time believing this one, but think about it. What do a vast majority of Jewish dietary laws entail? Limiting the consumption of meat. First of all, you have to wait six hours to eat dairy after you eat meat. Wouldn’t it be better to eat whenever you want rather than wait? Second, you have to own four pairs of dishes. Wouldn’t it be better to have just two—one set for Pesach and the other for the rest of the year? Third, kosher meat is downright expensive, particularly in light of the Agriprocessers scandal. If you’re looking to save a few bucks, don’t eat meat. This is viable to do in America, especially since more and more food in the supermarkets has a hechsher on it.

This reason is one of my personal favorites—if you don’t eat meat, there is no way that you can transgress twenty mitzvot. For Orthodox Jews, this should be reason enough, especially when Orthodoxy has unprecedentedly taken the approach of “stringency for stringency’s sake,” or what they would prefer to call חומרה. If Orthodox Jews want to build a fence around dietary laws to absolutely make sure that they don’t want to violate any of the laws of kashrut d’oraita, as well as most of the laws d’rabanam, don’t eat meat…it’s that simple! Even if you’re not Orthodox, but you’re looking to get in touch with your Jewishness, vegetarianism is so much easier than all the convoluted laws involving meat. Vegetarianism, in fact, could actually draw people closer to their Judaism rather than deter them.

פיקוח נפש‎. Vegetarianism is a healthier practice than consuming meat since, on average, it increases longevity up to a decade. The Torah mandates us to preserve our health, which is implied from His word: "Take heed to thyself and take care of your lives (Deut. 4:9),” and again six verses later: "Be extremely protective of your lives (ibid 4:15).” Judaism teaches that our bodies are the vessels for our souls (Ta'anit 11a-b). If you are in poor health, it becomes all the more difficult to perform a mitzvah. As Maimonides states: "Since maintaining a healthy and sound body is among the ways of G-d - for one cannot understand or have knowledge of the Creator if one is ill—therefore one must avoid that which harms the body and accustom oneself to that which is helpful and helps the body become stronger (MT, Hilchot Deot 4:1).” If you shorten your time span on Earth, you deprive yourself of doing more mitzvahs. As R. Samson Hirsch points out in Horeb (Ch. 62, ivcxxviii) “You may not rob yourself of your life nor cause your body the slightest injury... Only if the body is healthy is it an efficient instrument for the spirit's activity... Therefore you should avoid everything which might possibly impair your health."  In short, our physical health becomes our spiritual health.

It's not that that I have more to say on the topic.  It's just that there's enough to say that I need to divide this into two posts.  Part Two is coming soon.....

Thursday, March 18, 2010

"The Devil Made Me Do It"

While reading Drudge Report a few mornings ago, I came across an article about the Vatican. No, it’s not about Catholic priests molesting little boys…..per se. The Vatican’s chief exorcist, Father Gabriele Amorth, says that Satan has infiltrated the Vatican. Even though the man has performed 70,000 exorcisms in the past twenty-five years, it still hasn’t deterred the “might of Satan.” I’m just going to throw this question out: “If the Vatican is such a holy place, how could Satan possess such a stronghold over it?”

I leave that question aside for a moment, and get to the larger issue at hand: blaming evil on Satan.  In all sincerity, is “it’s the devil’s work” this an actual argument? Satan made me do it?! Growing up as a Catholic, I unfortunately know the answer to that question all too well. It doesn’t matter which denomination of Christianity to which you adhere; the answer is decidedly “yes.” I don’t even want to get into the fact that Satan suddenly becomes a focus in Christian theology when the Tanach only mentions the word “Satan” twenty times [fourteen of which are in the book of Job because Satan happens to be the antagonist in the Book, and the other six times, can be translated as “adversary”]. I’ll even ignore the fact that in the Book of Isaiah (45:7), it states that “I form the light and create darkness, I bring prosperity and create disaster; I, the L-rd, do all these things,” would negate the Christian notion of Satan.

What bothers me is that have you have found a convenient scapegoat—“the Devil.” The reason for feeling perturbed is that if you have a found a spiritual bouc émissaire, personal responsibility goes out the window. “The Devil made me do it” is nothing short of flabby, religious determinism.

What ever happened to free will? Judaism has a skeptical view of human nature. Flip through the Tanach, and it’s a series of stories outlining the imperfections of man. However, G-d teaches that “Sin crouches at the door, but you can overcome it (Genesis 4:7).” No excuses, no finger-pointing. Sure, it’s difficult to overcome one’s evil inclination, but it can be done! If we didn’t have free will, what is the point of G-d telling us to do things such as “love thy neighbor” or “don’t put a stumbling block before your fellow man?” If you can point the finger at Satan, not only would there be no reason to behave properly, but Torah becomes superfluous. So rather than blaming shortcomings on some external, non-existent force, maybe those in the Vatican, like everybody else, should take a look in the mirror and take constructive measures to correct their flaws.

Wednesday, March 17, 2010

Judaism and the Afterlife

Last Shabbos, I partook in an adult education course on Jewish thought and the afterlife at my synagogue. It initially made me think of how Christianity, specifically the Catholic Church, approaches the afterlife: if you were absolved of all your sins via confession, you would get a straight trip to Heaven, and St. Peter would meet you at the Pearly Gates. All this “heavenly bliss that would await you” if you accept Jesus as your savior, and of course, if you “behaved like a good Catholic should.” The certitude presented by the Catholic Church can be as comforting as it can be daunting.

This, of course, can easily be contrasted with the Jewish tradition on the afterlife. When it comes to Judaism and the afterlife, we’ve come up with just about every theory regarding the afterlife.

1) There is no afterlife. The Torah does not make any explicit statements about the existence of an afterlife. Furthermore, there are a couple of Psalms that allude to the fact that there simply isn’t an afterlife: “What profit is there if I go down to the pit? Can the dust give thanks to You? Can it declare Your truth (30:10)?” and “The dead do not praise G-d; neither any that go down into silence (115:17).”  Even King Solomon states that we return to the dust from which we came (Ecclesiastes 3:19-20).  2 Samuel 14:14 likens the human's inevitability to die to water spilt on the ground [that can never be re-gathered].

2) There is a Heaven and Hell. Jewish sources talk about the Gan Eden (Heaven) and Gehenna (Hell). Some Jewish sages portrayed Gehenna (Mishnah, Eduyot, 2:10) more like a Jewish version of purgatory where one temporarily, usually no more than twelve months, and afterwards, their souls come out “squeaky clean.” [The obvious issue with that viewpoint is that there would be no reason to behave properly] Others have viewed Gehenna as a a state of consciousness in which the soul wrestles with its unresolved guilt. Either way, these purely spiritual realms are comparable to the Christian version of the afterlife.

3) Olam Ha-Ba. Olam Ha-Ba, or the World to Come, is an eschatological concept in which the righteous of all nations are resurrected (i.e., reunification of body and soul) after the coming of the Messiah. As for the wicked, they supposedly perish. This would certainly line up with a majority of traditionalist Jewish teachings, and is in Jewish liturgy, most notably the thirteenth principle of Maimonidean Principles of Faith and the end of the second blessing of the Amidah. The Biblical verse most commonly associated with this viewpoint is Daniel 12:2, “And many of them that sleep in the dust of the earth shall awake, some to everlasting life and some to reproaches and everlasting abhorrence."

4) Sheol. This gloomy view of the afterlife, mostly developed from earlier Biblical thought, is a place that is a place of darkness (Psalm 88:13, Job 10:21, 22) and silence (Psalm 115:17), located in low places (Numbers 16:30, Ezekiel 31:14, Psalm 88:7, Lamentations 3:55; Jonah 2:7, Job 26:5). Jewish tradition teaches that the soul reaches this place, but that the soul is not conscious in Sheol.

5) Reincarnation. Although this sounds very much like a concept stemming from Eastern religions, this viewpoint managed to sneak its way into Jewish thought, most notably through the Zohar and other Kabalistic works. I remember reading a kabalistic text that said that Moses and Aaron were reincarnations of Cain and Abel, and their purpose was to undo the wrongs of the Cain and Abel story. The concept of reincarnation is not necessarily mutually exclusive with the other options; it’s merely a spiritual means to an ends.

My thoughts on the afterlife: Asserting anything regarding the afterlife in Jewish thought comes with two major issues. First, as I have previously illustrated, there are multiple viewpoints about Jewish thought on the afterlife. The fact that multiple viewpoints, all of which have textual backing, exist creates this ambiguity that we like to call reasonable doubt. The second issue, the one that I find to have more gravitas, is how one would prove that such a place exists. How do Jews know that the righteous are resurrected after the coming of the Messiah? How do Catholics know that St. Peter is waiting at the gates of heaven? How do Hindus know that we are reincarnated after we die?

The fact of the matter is that no positive, empirical evidence whatsoever proving the existence of an afterlife. I have just as much evidence to prove its existence as I do counter-evidence, which, by the way, is nil. I have always found it amazing that people can focus on and expound upon an alleged destination that we truly know nothing about.

Out of humility, my opinion as to whether there is an afterlife is "I don't know."  It's a valid opinion.  How could I objectively know the answer to such a question?

However, if push came to shove where I had to postulate about the afterlife, I would use a proof that can potentially be used to assert a Jewish belief in the afterlife.  The catch, though, is that the following proof has a conditional clause in it: “If G-d is all-powerful, all-knowing, and all-just, there has to be another realm, whether it would be spiritual or otherwise, because simply put, too many bad things happen to good people in this world, and vice versa.”  This belief is not an emotional crutch to deal with the inevitability of death.  It's a way to explain and cope with clear-cut examples of suffering and anguish in this world.  It is also a valid, Jewish way of explaining an ultimate sense of justice from HaShem. 

[Side note: I’m sure that agnostics or atheists reading this are wondering why I haven’t made G-d’s existence part of the conditional nature of the proof. The reason is that the author already has presupposed the existence of G-d simply because it is the most logical explanation to the creation of the universe. If you don’t believe me, read this.]

It’s ironic that the same R. Yaakov who stated that this life is but a corridor to Olam-Haba (Pirke Avot 4:16) is also the same man who stated that an hour of repentance is better than an eternity in Olam Haba (ibid 4:22). Although he believed in an afterlife, he showed us what Judaism truly emphasizes—Olam Ha-Zeh (i.e., the “here-and-now”). Prior to this adult education course, I didn’t really give any thought to the afterlife. After all, Judaism is so focused on doing good deeds and how to live life that I was not even aware that such a diverse opinion on the afterlife would be in Jewish thought.

Judaism doesn’t ask us to obsess over death like the ancient Egyptians. G-d asked us to walk in His ways [via imitatio Dei], choose life, and focus on the here and now. As long as I perform as many mitzvahs as possible and live my life to the fullest, I put my trust in G-d’s hands that He will take care of the rest.

Wednesday, March 3, 2010

Constitutional, Textual Analysis for the Right to Bear Arms

In my last blog entry, I began to analyze some historical context regarding militias and the right to bear arms.  Now, I would like to partake in some textual analysis and illustrate how the Second Amendment most certainly provides the individual right to bear arms:

1) As previously stated, there has historically never been a need to ensure the rights of soldiers because they were always protected. Even with that in mind, the Founding Fathers stated explicitly the military powers given to the federal government: raise and support armies, provide and maintain a navy, and maintaining the militia (Article 1, Section 8, Clauses 12-16). Since the first Article already enumerated that the federal government can maintain a militia, arguing for a militia's right to bear arms is a redundancy.

2) “A well regulated militia being necessary to the security of a free State” is prefatory, i.e. this phrase is a preamble. Preambles to amendments were common back in the day. One example is the Third Article of the Northwest Ordinance: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Does this mean that if society deems religion as irrelevant to good government, that we should not encourage education reform in the inner cities of Chicago?

The Constitution itself has yet another preamble embedded within a stipulation, this time within the Copyright Clause (Article 1, Section 8, Clause 8): “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” If there is a publication that does not promote the progress of science or useful arts, does it mean that a publisher is deprived of copyright protection? No! The federal government ensures copyright for all people. The purpose of the prefatory phrase is to illustrate an eighteenth-century issue. In short, whether this phrase was in the amendment or not, one should be able to figure out the operative clause, i.e., we have a right to bear arms.

3) This should be a given, but there are words in the English language that change meaning over time. As much dismay as this will cause my friends enamored with Big Government, “well-regulated” just so happens to be one of those words. Back in the day, “well-regulated” actually meant well-functioning. And just as a refresher, “militia” referred to “any able-bodied man.”

4) What is remarkable about the amendment is to note what it doesn’t say. It does not say that it protects the rights of the militia to bear arms. It does not say that the peoples' right to bear arms is protected only to the extent that it provides a well-regulated militia [See points 2 and 6].  Sometimes, tacitness can be as powerful as words.

5) “Location, location, location.” Although this phrase is used in real estate, the argument holds strongly when analyzing texts. Where a certain passage, word, or phrase is located helps give the text its meaning. If we don’t understand the context of a given phrase, one can pluck any phrase out of any text and distort the very meaning. Where is the Second Amendment located? This shouldn’t seem like a question I should even have to ask, but just as a refresher, the answer to that is the Bill of Rights. What is the purpose of the Bill of Rights? To establish the rights of the individual. The phrase “the people” is also located in the First, Fourth, Ninth, and Tenth Amendments, all of which dealing with the individual. The Tenth Amendment even uses language to distinguish between “the State” and “the people!” Since the Second Amendment is surrounded by nine other amendments ensuring the rights of the individual, it makes no contextual sense to assume that this amendment applies to the National Guard.

6) I know this is considered as an antiquated relic in the overall legal community, but we tend to forget that the Ninth Amendment exists. The text itself says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The essence of the Ninth Amendment is that the Constitution protects any non-enumerated individual rights. This amendment makes two important statements regarding our discussion. First, even if the Second Amendment did not protect the right to bear arms, the right to bear arms would certainly be protected by the Ninth Amendment because the right to bear arms has historically been a natural right. Second, since gun regulation is not explicitly stated as a power granted to the federal government, one can presume that they have no jurisdiction over gun control.

Conclusion: As for constitutionality of the right to bear arms, the case of McDonald v. City of Chicago is important indeed. The Fourteenth Amendment states, amongst other things, that any rights protected in the Bill of Rights [from being infringed upon by the federal government] also merit as much protection from state and local government. Once this historic case is resolved, the right to bear arms will firmly be established within American jurisprudence.

McDonald v. Chicago & the Second Amendment

Yesterday, the Supreme Court heard the opening arguments for McDonald v. the City of Chicago. The court case will be interesting because it will determine whether the handgun laws, as well as many other facets of gun regulation in Chicago, are unconstitutional. What makes the case interesting is that the plaintiffs of the case are trying to argue that the right to bear arms is applicable to the states due to the Fourteenth Amendment’s Privileges and Immunities clause, as well as the Due Process clause. I am confident that McDonald will win the case, not only because of the recent precedent set by District of Columbia v. Heller, but also because the justices who voted 5-4 on the aforementioned case are all justices on this case.

What interests me about this case, though, is whether or not we even have the right to bear arms in the first place. Normally, I would use case law as an indicator of the status of the amendment, but historically speaking, American jurisprudence is light on Second Amendment case law. Aside from District of Columbia v. Heller, the only other case of recent memory, not to mention relevance, would be United States v. Emerson, which was a decision by the Fifth District Appellate court that stated that the Second Amendment is an individual right. Although Emerson came from a state court, it was nevertheless cited in the Heller case back in 2008. Prior to that, the last case the Supreme Court heard on the Second Amendment was United States v. Miller, which was ruled upon in 1939. Even though that ruling was made seventy years ago, it is worth noting the irony that both sides of the gun control side cite this case. Gun control advocates cite it because they believed it attacked the notion of self-defense being protected by the Constitution, whereas gun advocates claim the Court ruled that the Second Amendment protected the right to keep arms that are “part of ordinary military equipment.” The ambiguities become moot because of the more recent ruling of the Heller case, stating that the Second Amendment does indeed provide the individual the right to bear arms.

Even with the case precedent set, and continuing to be set, the question in mind is whether or not they had the right to make such a ruling. In order to ascertain that answer, two facets of the right to bear arms need to be examined: contextual and textual. But before we do that, we might as well know the verbiage of the amendment itself:

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.

Liberals will contend that the Second Amendment only applies to the National Guard, whereas others would have you believe that we are talking about an individual right. If liberals wanted to take historical context into mind, one would have to ask “since when were the rights of a solider to bear arms ever an issue?” The challenge with coming up with an example for this one is that one does not exist. From the Spartans to Genghis Khan to today’s National Guard, soldiers have never had their ability to bear arms threatened in the slightest.

Using actual historical context, we need to look at the British Empire. Being heavily influenced by Anglo-Saxon common law and jurisprudence, it should be of no surprise that a posse comitatus, a group of armed citizens to locally keep the peace, is mentioned in the Constitution. Also, any man between the ages of sixteen and sixty were to arm himself to be ready for military service. The right to bear arms can actually be traced back to Aristotle, who stated that “those who possess and can wield arms are in a position to decide whether the constitution is to continue or not.” Sir William Blackstone points out that in 18th-century England, men had the right to bear arms. Throughout pre-modern European history, and leading up to 1787, the indicator of a free man was whether or not he was able to bear arms.

An issue during the American War for Independence was that the militia was subservient to King George III. To make sure that people would not acquiesce to tyranny again, the second clause, “the right of the People to keep and bear arms, shall not be infringed,” was written to assuage the fears of the anti-Federalists. As Richard Henry Lee, a Virginian statesman who is best known for being a president of the Continental Congress, stated that “To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike, especially when young, how to use them.”