The Foreign Intelligence Surveillance Act

What It Is And Why It Doesn't Work

"The complexity of the problem must not be underestimated. Electronic surveillance can be a useful tool for the Government’s gathering of certain kinds of information; yet, if abused, it can also constitute a particularly indiscriminate and penetrating invasion of the privacy of our citizens. My objective over the past six years has been to reach some kind of fair balance that will protect the security of the United States without infringing on our citizens’ human liberties and rights." – Chief Bill Sponsor, Senator Edward Kennedy (emphasis added)

It All Started in the Seventies. In the early 1970s, under Presidents Nixon and Ford, massive abuses of surveillance by the FBI, the CIA, the U.S. Military, and the White House were exposed. In response to these abuses, Congress passed the Foreign Intelligence Surveillance Act (FISA) which, in turn, established the Foreign Intelligence Surveillance Court (FISC or FISA Court). Congress set up this Court to provide a system of judicial review and approval (or denial) of the government's proposed surveillance actions, along with necessary safeguards against abuse whenever the surveillance might involve an American citizen. Because foreign intelligence surveillance requires certain measures of secrecy, the details of surveillance requests and the FISA Court's actions are classified.

Why We Need Control Over Government Surveillance. Working behind closed doors, the FISA Court has the authority to approve or deny government requests for accessing and searching business or personal information – and not just telephone metadata. 

They can also gather specific information from e-mails chat sessions, and text messages, and any attachments. These items can include privileged attorney-client communication, sensitive communication between you and your doctor, and even communication between you and your accountant, tax preparer, financial adviser, etc. 

They can also collect information from sites visited, uploads and downloads made, on-line shopping and purchases – you name it: if it is digital they can access it.  That includes user IDs and passwords for protected sites you visit, including your credit card and bank accounts. They can get such a broad array of information that they can get to know you and your pattern of living better than your closest friends. Anything a hacker can do, they can do, too -- only better.  And they are able to do all this behind a shroud of secrecy, without your even suspecting that they are doing it to you. That is why we need control over such surveillance. It is too dangerous otherwise.

The Foreign Intelligence Surveillance Act of 1978 (FISA). This law was enacted in response to allegations of abuse by the federal government in conducting electronic surveillance. It was recognized that some kind of judicial warrant should be required for such surveillance to protect citizens' rights guaranteed by the Fourth Amendment of the Constitution. This law required the government to obtain a judicial warrant authorizing the surveillance.

The Foreign Intelligence Surveillance Court (FISC or FISA Court) This court was authorized by FISA to review and approve or deny surveillance requests. It consists of a pool of eleven judges, all of whom are appointed by the Chief Justice of the Supreme Court.

Submission of Surveillance Requests. These are usually originated by one of our security agencies, such as the CIA or FBI who sends them to the NSA where warrant applications are prepared and forwarded to the Office of the Attorney General, where they are certified that the proposed surveillance targets are either a foreign power or an agent of a foreign power. (“Agent of a foreign power" is defined as meaning any person, other than a United States person, who acts in the United States as an officer or an employee of a foreign government or any component thereof, whether or not recognized by the United States.) If the target is a U.S. Citizen or a resident alien, he or she must reasonably be believed to be involved in the planning or commission of a crime that poses a threat to our national security.

Secret Hearings with Secret Decisions. Warrant applications are then assigned on a rotating basis to one of the FISA Court judges, who evaluates the requests and either approves or rejects them, based entirely on the statements of government officials. There is nobody to represent the other side of the issue or to protect the people from potentially overreaching requests or decisions. Because of the sensitive nature of this surveillance, the Court's work is performed in secret, so we never know what specific decisions are made and why, or what impact they may have on our Constitutional rights.

Foreign Intelligence Surveillance Court of Review (FISCR). FISA also established this court to serve somewhat like an appellate court for decisions made the the FISA Court. This body consists of three judges, also appointed by the Chief Justice, to review, upon request, decisions made by the FISA Court. Because no no opposing counsel is allowed in the FISA Court cases, the only appeals that are normally allowed are those from the government. From 1978 to 2002, no cases were brought to this Court, and only two are known to have been brought before it since then.

FISCR Rules. The first FISA Court of Review ruling came in 2002. The FISA Court had granted a warrant to the FBI, but made it subject to certain restrictions, most notably of which was that the FBI was not to use evidence gathered under the warrant to prosecute criminal cases. The Court of Review ruled that there was no constitutional basis for the restrictions.

FISCR Rules Again. Six years later, the Court of Review delved into another questionable area when it ruled on and affirmed the constitutionality of the Protect America Act of 2007.

A Second (But Secret) Supreme Court? In ruling on these two issues, the FISA Court of Review made rulings based upon its interpretations of the Constitution, which, at the national level, is the normally considered to be the realm of the Supreme Court. In so doing, the Court of Review may have muddied the line between the role of the two courts and lent credence to the notion that the FISA Court of Review is becoming a second (but secret) Supreme Court.

Disorder in the Court. In 2002, the Justice Department asked the FISA Court to grant them broad new powers, but the Court refused, saying that the government had misused the law and misled the court dozens of times. The court released an opinion alleging that FBI and Justice Department officials had supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one that had been signed by the Director of the FBI at the time.

Bush Administration Ignored Court. Apparently, the Bush administration decided to ignore the FISA Court and the procedures for obtaining approval for surveillance. Three years later, The New York Times reported that the Bush administration had been conducting illegal surveillance of U.S. citizens without the knowledge or approval of the FISA Court since 2002. Four days later, Judge James Robertson abruptly resigned his position as a member of the FISA Court.  Congress later passed legislation making Bush's actions legal and made the law retroactive, to prevent prosecution for illegal search, and to grant immunity to the companies who provided the information to the administration.

Need for Advocate Counsel in the FISA Court.  Former FISA Court Judge Robertson has been quoted as saying, "Anyone who has been a judge will tell you that a judge needs to hear both sides of a case."  He went on to say that, since the government presents instances where it wants to use its powers under FISA to go to the FISA Court without an advocate for the other side, the Court is not well placed to act in an unbiased manner and judge the merits of the case, because the Court hears only one side of the case. He said that the system is flawed because of its failure to allow adversarial counsel to question the government's actions. Robertson said the system needed the presence of a legal adversary to act as a check on the government's programs. 

Another former judge who served on the FISA Court, James Carr, has proposed that the judges themselves could appoint independent lawyers as special counsels on a case-by-case basis. He suggests the advocate should also have the power to appeal FISA decisions to higher courts; something only the government can do at this time.

Without an opposing counsel, Robertson says that when the government presents its case to the FISC without adversarial counsel, the process becomes more like administrative approval process than a court hearing with true judgment on the merits of the case.

Some Food for Thought. How would you feel if eleven people, without any meaningful oversight by, or responsibility to, a higher authority, rotated decision-making among the individual members, one at a time, and ruled secretly on matters that could adversely affect your everyday life, eat away at your democracy, and destroy Constitutional rights that deal with privacy, unreasonable search and seizure, due process, and self-incrimination? Yet, that is exactly we have under FISA.

And Even Worse . . . Those eleven judges on the FISA Court were all appointed by one person (a political partisan who espouses a particular ideology), who is also without any meaningful oversight by, or responsibility to, a higher authority, and without any confirmation hearings, any examination of nominees' philosophies and prior rulings on matters likely to come before the Court, without any public input, and without confirmation or rejection of the nominees by a government body that is elected to represent the welfare and defend the rights of the American people?

But, Worst of All … All of the judges who have ever served on the FISA Court and the FISA Court of Review since it was established in 1978 have been appointed solely by conservative Chief Justices of the Supreme Court, and the present one could continue to do so for a combined total of 25 to 30 years. The sad part is that of all these things are true. Through 2012, FISA Courts have approved 99.97% of the 33,949 requests submitted to them. Does this sound like a good system of checks and balances that should continue indefinitely?

Heading Away from Diversity – and Away from Democracy. If a country allowed all appointments to such powerful positions to be made by one person who is an established partisan politician (and who is accountable to no one), and if these Court appointees operate in secrecy, allowing only one side to present its case with no advocates for the other side, could you honestly view this process as being democratic? Overtly, we claim we live in a democracy, but covertly we we give many indications of creeping more and more toward a totalitarian form of government. And FISA is a major example of this.

Opinions from Law Professionals. Stephen Vladeck, Law Professor at American University's Washington College of Law says:

"Since FISA was enacted in 1978, we've had three chief justices, and they have all been conservative Republicans, so I think one can worry that there is insufficient diversity,"

Penn Law Professor, Theodore Ruger says,

“The judges are hand-picked by someone” (presently Chief Justice Roberts), “who, through his votes on the Supreme Court, has demonstrated his particular view on civil liberties and law enforcement,. The way FISA is set up, it gives him unchecked authority to put judges on the court who feel the same way he does."

Wouldn't our country would be better served if these judges represented a broader spectrum of political views?

Which Party Is Most Likely to Support Civil Liberties? In the last 30 years, Supreme Court justices appointed by Democratic presidents support civil liberties claims approximately 74 percent of the time, while those appointed by Republican presidents support civil liberty claims only about 38 percent of the time. This is just one example of how the justices appear to arrive at their legal opinions -- largely along party lines. I am sure that our founding fathers would be very disappointed if they knew that any appearance of unbiased and nonpolitical findings and rulings seems to have all but vanished from the Supreme Court.

How does that Apply to the FISA Courts? Over their 35-year history, we find that 91% of the judges for these courts were appointed by Republicans and only 9% were appointed by Democrats. Out of 13 currently-filled positions, only one is occupied by a Democrat. (One position on the three-person FISA Court of Review has been vacant for more than a year.) Because the FISA Court deals largely with issues involving civil liberties, and because 10 of its 11 members are Republicans, that might explain why the FISA Court seems to be more receptive to issuing warrants that might impact civil liberties.

A Little Help from Your Friends. Because of an extremely high rate of approval, the FISA Court has been perceived as being a rubber stamp for the government's surveillance requests. Apparently, there have been more than 500 requests that were not acceptable as submitted, so the FISA Court rulings essentially told the submitters what they needed to change to get those requests accepted. Apparently, that helped the government get its approval rate at 99.97%

FISA Secrecy Attacked. A 2003 Senate Judiciary Committee Interim Report on FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures, cited the "unnecessary secrecy" of the court among its "most important conclusions":

"The secrecy of individual FISA cases is certainly necessary, but this secrecy has been extended to the most basic legal and procedural aspects of the FISA, which should not be secret. This unnecessary secrecy contributed to the deficiencies that have hamstrung the implementation of the FISA. Much more information, including all unclassified opinions and operating rules of the FISA Court and Court of Review, should be made public and/or provided to the Congress."

Allegations of Bias. Elizabeth Gotein, a co-director of the Liberty and National Security Program of the Brennan Center for Justice at the New York University School of Law, has criticized the court as being too compromised to be an impartial tribunal that oversees the work of the NSA and other U.S. intelligence activities. She says:

"Like any other group that meets in secret behind closed doors with only one constituency appearing before them, they're subject to capture and bias."

Julian Sanchez, a scholar at the Cato Institute, has described the near certainty of the polarization or group think of the judges of the court. Because all of the judges are appointed by the same person (the Chief Justice of the United States) and, because nearly all the judges are of the same political party (the Republican Party), and because these judges hear no opposing testimony and feel no pressure from colleagues or the public to moderate their rulings, group polarization is almost a certainty. He says:

"There's the real possibility that these judges become more extreme over time, even when they had only a mild bias to begin with."

Court Approves Requests, but Not Surveillance Programs. Stephen Vladeck has argued that the FISA Court reviews requests merely to ensure that they comply with various statutory requirements, including court-approved policies allow the NSA to:

• keep data that could potentially contain details of U.S. persons for up to five years, and
• retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity.

However, the Court does not approve the specific surveillance plan. Without having to seek Court approval of the specifics of their plan, the U.S. Attorney General and the Director of National Intelligence can apparently engage in sweeping programmatic surveillance at their discretion.

According to The Guardian:
 

"The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans' calls or email information without warrants."

The Most Revealing and Damaging Insight. Glenn Greenwald, who published details of the PRISM surveillance program in The Guardian , explained:

“… (T)his entire process is a fig leaf, "oversight" in name only. It offers no real safeguards. That's because no court monitors what the NSA is actually doing when it claims to comply with the court-approved procedures. Once the FISA Court puts its approval stamp on the NSA's procedures, there is no external judicial check on which targets end up being selected by the NSA analysts for eavesdropping. The only time individualized warrants are required is when the NSA is specifically targeting a US citizen or the communications are purely domestic.”

“When it is time for the NSA to obtain FISA Court approval, the agency does not tell the court whose calls and emails it intends to intercept. It instead merely provides the general guidelines which it claims are used by its analysts to determine which individuals they can target, and the FISA Court judge then issues a simple order approving those guidelines. “

“The court endorses a one-paragraph form order stating that the NSA's process 'contains all the required elements' and that the revised NSA, FBI and CIA minimization procedures submitted with the amendment 'are consistent with the requirements of [50 U.S.C. §1881a(e)] and with the fourth amendment to the Constitution of the United States.”

“As but one typical example, The Guardian has obtained an August 19, 2010, FISA Court approval from Judge John Bates which does nothing more than recite the statutory language in approving the NSA's guidelines. Once the NSA has this court approval, it can then target anyone chosen by their analysts, and can even order telecoms and internet companies to turn over to them the emails, chats and calls of those they target.”

The FISA Court plays no role whatsoever in reviewing whether the procedures it approved are actually complied with when the NSA starts eavesdropping on calls and reading people's emails. The guidelines submitted by the NSA to the Fisa court demonstrate how much discretion the agency has in choosing who will be targeted.

The only oversight for monitoring whether there is abuse comes from the executive branch itself: from the DOJ and Director of National Intelligence, which conduct "periodic reviews … to evaluate the implementation of the procedure."

“At a hearing before the House Intelligence Committee , deputy attorney general James Cole testified that every 30 days, the FISA Court is merely given an "aggregate number" of database searches on US domestic phone records. The decisions about who has their emails and telephone calls intercepted by the NSA is made by the NSA itself, not by the FISA Court, except where the NSA itself concludes the person is a US citizen and/or the communication is exclusively domestic. But even in such cases, the NSA often ends up intercepting those communications of Americans without individualized warrants, and all of this is left to the discretion of the NSA analysts with no real judicial oversight.”

Summary.

What's Wrong with FISA?

1. It's poorly worded, with terms that are either ambiguous or too broad to be meaningful.
2. The Court sometimes issues warrants or subpoenas without valid cause.
3. Along with a FISA subpoena comes a gag order that bars recipients from ever discussing it with anyone except their lawyer(s).
   What's wrong with the FISA Court?

1. There is entirely too much secrecy. Meaningful information could be shared without revealing vital secrets.
2. Secrecy can be used to cover up malfeasance. Yet, because of the secrecy, it might never be revealed.
3. FISA Court members are appointed by one person – the Chief Justice of the Supreme Court. The present Chief Justice could do this for a total of 30-40 years, continually appointing people who share his ideologies.
4. Ever since FISA was implemented, all Chief Justices have been Republicans, and 91% of the FISA Court members have been Republicans. As a result, Republican Chief Justices have appointed all of the members of both the FISA Court and the FISA Court of Review – almost 50 appointments in total.
5. Democrats tend to support civil liberties issues by almost a 2 to 1 margin over Republicans. If Republicans on the FISA Court follow suit, we cannot trust them to fully protect our civil liberties.
6. The FISA Court hears only one side of a case, so they are more likely to rule in favor of that side. As of 2012, the FISA Court ruled in favor of the government 33,938 times out of 33,949 cases.
7. Requests for warrants or court orders are heard by only one of the seven judges, who serve on a rotating basis. They meet as a group only about six times a year.

What's wrong with the FISA Court of Review?

1. This body consists of three members, and functions somewhat like an appellate court. However, because 99.97% of the cases in the FISA Court are decided in the favor of the government, there have been very few cases for them to review.
2. At least twice, this court has overstepped its authority in making rulings on constitutionality, which are normally reserved for the Supreme Court.

Conclusion. Connecticut Senator, Richard Blumenthal, summed things up very concisely:

“The FISA court . . . in its current form — unaccountable, secretive, one-sided — is broken. It not only lacks any genuine transparency and accountability, but it also deprives the entire system of trust and credibility in the eyes of the American people. The FISA court is exactly the type of secret tribunal that fanned the flames of revolution we celebrate each July 4. It’s time to change that.”

What Next?  We will see ongoing debate on these issues to give the impression that Congress as a whole really cares about protecting the privacy of the American people.  They don't want to risk their chances of getting re-elected by not showing proper concern.  However, I have seen little movement toward anything but token legislative changes that will do very little to address these problems.  I hope I am wrong.

<<  Where secrecy prevails, democracy fails.  >>

Focus on Our Government -- Not on Snowden

What to Look for from Our Government and the News

Watch Out for Diversionary Tactics. Why is so much attention being directed at Edward Snowden? Is he really a traitor – an enemy of the State? Why is he being castigated by massive numbers of Republicans and Democrats in Congress and members of the present administration for his recent actions? The answer is simple. It is to divert attention away from the very thing Snowden has protested – our government's malfeasance and disregard for the Constitutional rights of our citizens. As long as they can keep Snowden in the headlines, and as long as they can keep the conversation fixed on him, they can keep themselves and their own misdeeds out of sight.

Don't Believe Everything You Hear. Most of what we have heard from government officials and spokespeople has been very carefully worded to make things revealed by Snowden are more devastating that the really are. They say that the safety and security of our people has been compromised by the release of secret information. Here are just a few examples:

Rep. Mike Rogers Chairman of the House Intelligence Committee warned “It’s dangerous to our national security and it violates the oath that person took.”

John Boehner, Speaker of the House, claimed, “The disclosure of this information puts Americans at risk.”

James Clapper, Director of National Intelligence, complained that recent leaks could "render great damage to our intelligence capabilities." In addition, when asked whether or not the NSA collects “any type of data at all on millions or hundreds of millions of Americans.” He responded, “No, sir. Not wittingly.” He has since admitted that his testimony was “the least untrue” statement he could make, whatever that means. But, regardless, it means that he was lying to Congress and the American people under oath and should be charged with perjury.

Jay Carney, White House Press Secretary, recently stated, “Leaks of classified information that cause harm to our national security interests are a problem, a serious problem …”

But, where's the damage? This litany of fault-finding and blame permeates much of our federal government. However, nobody has yet described in a meaningful way just what damage has been done other than to embarrass our government and its elected representatives.

Jay Carney Went a Step Further. He added “... and they’re classified for a reason…” He is absolutely right in this statement. They are classified for a reason – and that reason is to hide the government's actions in a cloud of secrecy from the American people, not our enemies. Our enemies most likely already know about our spying on their citizens because they are most likely doing the same to us. So, when our government wants to do something that is illegal or not in the best interests of our country and its people, all they have to do is just classify it as top secret, to prevent the public from knowing what they are really doing.

Privacy Compromised Without Consent. Our government's secret acts of espionage were conducted without the knowledge and consent of the people whose privacy was invaded. We, the people, had no say in the matter. Our government took it upon themselves to determine for us which rights are important to us and what are not. We were not consulted. They made those decisions on their own in privacy and cloaked them in secrecy to keep them from learning about them under penalty of imprisonment. The American people have a right to know when and why their privacy is being invaded. Our freedoms are being eroded, our Constitutional rights are being trampled, and our government is destroying our democracy. America is becoming a surveillance state and, in certain circumstances, takes on the demeanor of a police state. The lack of oversight and protection against the potential misuse of data collected is a severe indictment of both previous and present administrations, as well as Congress itself.

Bush's Bad Behavior. In 2005, George Bush admitted publicly that he had ordered the National Security Agency to eavesdrop on Americans without ever seeking constitutionally-required court-approved warrants – an impeachable offense -- but Congress chose not to pursue that route, which lets us know just how important our freedom and rights are to them. At least, the United States Supreme Court did step in. They ruled that the President does not have that kind of power within the Constitution. Bush had the power to protect the nation, but his surveillance actions went beyond that.

How Things Have Changed. Our present government is doing some of the same things on an even broader scale, but with the tacit approval of the feckless Foreign Intelligence Surveillance Court (FISC), a body set up specifically to provide oversight for foreign intelligence surveillance, to approve or disallow the issuance of warrants, and whose rulings and opinions are kept top secret.

About the FISC. The Foreign Intelligence Surveillance Court consists of eleven judges. Three of them are in Washington, D.C., and the other eight are spread out in eight different states across the county. Appointments are made by the Chief Justice of the Supreme Court, with no apparent review, oversight, or approval process for these appointments. Oddly enough, the four most populous states (California, Texas, New York and Florida), which have 1/3 of the country's population, do not have any representation on this court. California alone has a greater population that the bottom 21 states added together, but that's beside the point.

The Express Lane for Surveillance Warrants. Whenever the administration wants a warrant, it contacts one of the eleven judges – frequently, if not usually, by phone – and presents its case to them. It is entirely a one-sided presentation representing the administration's best interests, with no legal counsel to represent the other side. And the administration cannot always be relied upon to make an accurate presentation of facts. At one point, the Court charged that the FBI and Justice Department officials had submitted “erroneous” information to the court in more than 75 applications for search warrants and wiretaps.

Rubber Stamped Warrants. In most cases, the one judge makes the determination, not the entire “court.” And here's the shocker: Out of 33,949 requests for warrants in the Court's history, only 11 have been declined. That has given credence to the claim by Russell Tice, a former NSA analyst, who said "It is a kangaroo court with a rubber stamp." To indicate that this body maintains credible oversight over the issuing of surveillance warrants is somewhats laughable. My personal perception is that the FISC is a court in name only, and that it functions more to streamline the process of securing warrants than evaluating their purpose and value relative to the rights of the people.

The FISC Has Lower Standards. Keep in mind that the FISC operates at a lower standard of scrutiny than a “real” court.

Under the Fourth Amendment of the Constitution, a warrant must be based on probable cause to believe that a crime has been or is being committed. However, the FISC does not abide by this Constitutional stipulation, Instead, it makes its rulings based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, regardless of whether or not the target is suspected of actually engaging in any criminal activity.

However, if the target is a "U.S. person,” the FISC judge has to find probable cause that one of four conditions has been met:

(1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which may or may not involve a criminal law violation;

(2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his (or her) activities involve or are about to involve criminal violations;

(3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or

(4) the target knowingly aids or abets another who acts in at least one of the above ways. (Source:Electronic Privacy Information Center)

Please note that a recurrent keyword in each of these conditions is “knowingly.” How many of the hundreds of millions of people caught up in the tide of communications surveillance in the U.S. are likely to fit any of these descriptions? And yet, these hundreds of millions are being forced to give up totally private or sensitive information about themselves without their knowledge or informed consent. This could include privileged communication between lawyers and their clients, or doctors and their patients, as well as various other types of very personal information.

The Final Question. Now that I have stated my case, I present this final question to the reader: Which is more reprehensible:

– a huge government apparatus that breaks (or stretches) the law, tramples on the
    rights of millions, and covers it up with a blanket of secrecy, or
 – one private citizen who broke his oath of silence and risked his entire future to 
    expose clandestine actions that could be harmful to the public?

Or, to put it another way:


Which is worse?

A secret surveillance program,
     with secret submissions
          to a secret court,  
               for secret data searches 
                    of secret targets,
                         with secret (rubber-stamp) rulings,  
                              secret justification for the rulings, and  
                                   subsequent secret actions  
                                        that violate our Constitutional rights?

Or . . .

Breaking an oath of secrecy
     by revealing those secret practices
          that violate our Constitutional rights?

We are now living in a high-level surveillance state.
          What's next -- a police state?

Gun Control -- or Guns Out of Control????

Which Do You Prefer?

“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.”

-- Second Amendment to the U.S. Constitution

Introduction. The twenty-seven words cited above are the basis for a long-standing battle over whether or not private citizens have a Constitutional right to keep and bear arms individually, in any manner they choose, and without any restraint, restrictions, controls or other forms of regulation by the government. This blog offers my personal views on the subject, along with some suggestions on how we might be able to break the impasse that divides us and reach an equitable, reasonable, and acceptable accommodation on the subject. First, however, let's examine the text above and its meaning.

What is a Militia? Simply stated, a militia is a collective body of citizen soldiers enrolled for military service, and called out periodically for training, but who serve full time only in emergencies.

What is a “Well-Regulated” Militia?  The word “regulated” is defined as “controlled or directed by rules, principles, methods, etc.” Based upon many sources from around the time our Constitution was drafted, the term ”well-regulated militia” is one that is thoroughly trained, highly-disciplined, with a certain level of expertise in military movements, that functions as a coordinated unit. Alexander Hamilton indicated that a well-regulated militia is maintained in a state of preparedness obtained after rigorous and persistent training. He wrote in Federalist Paper No. 29:
    

“... going through military exercises and evolutions as often as might  

       be necessary  to acquire the (desired) degree of perfection ... would 
entitle (a militia) to e character of a well regulated militia ...”

     

Is the National Guard a Well-Regulated Militia? Yes. It meets the requirements cited above.

Is Our Existing Body of Firearm Owners a Well-Regulated Militia? No. It does not meet the requirements cited above. What we presently have is a huge, uncoordinated mass of generally untrained and undisciplined gun owners throughout our country, very few of which have much expertise in military movements or maneuvers. They do not constitute a “well-regulated militia.”

Who Are “The People?” The preamble to the U.S. Constitution begins with three simple but very crucial words, “We, the people ....” The word “people” is a collective noun. The legal definition of the word is “the aggregate of the individuals who comprise a state or nation.” Its usage in Constitutional law refers to “the entire body of those citizens of a state or a nation.” Therefore, the Constitution does guarantee the right of individuals to keep and bear arms, but only as part of well-regulated militias only, and not as private individuals.

What Happened to Our Constitutional Right to Keep and Bear Arms?  Nothing.  The Constitutional right to “keep and bear arms” extends only to members of a “well-regulated militia.” It does not apply to private gun ownership for personal security, sport, recreation, or hobbies. This amendment does not prohibit gun ownership for these activities. It just doesn't guarantee such ownership as a Constitutional right.

Does This Mean We Have to Surrender Our Guns? No, not necessarily. The Constitution establishes the right for the people to keep and bear arms as part of a well-organized militia, but it does not prohibit gun ownership by private citizens for their personal use. The difference is that private ownership outside a militia is considered to be a privilege, and not a Constitutional right.
Can Our Government Ban Firearms for Private Individuals? Yes. Because gun ownership outside a militia is a privilege and not a right, our government can exercise control over their distribution, ownership, and use. However, banning all guns from private possession might not be advisable.

What Can We Learn from History?  In 1920, the 18th Amendment to the Constitution was ratified, banning the manufacture and sale of intoxicating liquors. Positioned right at the onset of the Roaring Twenties, prohibition was doomed to failure from the start. Alcohol became the product of the underground. It flourished in the black market, and was eventually taken over by organized crime. Prohibition fostered corruption and disdain for the law and law enforcement. In 1927, Al Capone reportedly took in $60 million and bragged that he had half of Chicago's police force on his payroll. By that year. there were an estimated 30,000 speakeasies in the country – twice the number of legal bars and saloons prior to prohibition. Raids in New York were severely curtailed after raids uncovered some of the City's top officials and leading citizens at some of the speakeasies. At least one U.S. President, Warren Harding, served liquor openly at the White House during prohibition.

If Success Builds on Success, Can Failure Breed Failure? We did not succeed in controlling the consumption of liquor by banning it. We are not succeeding with our war on drugs. And, if we were to totally ban firearms for individual use in this country, we would undoubtedly fail again.

Why Ban Firearms But Not Motor Vehicles? In discussions of firearm regulation, pro-gun advocates often cite the maxim, “Guns don't kill people; people kill people.” The same could be said for motor vehicles: “Cars don't kill people; people kill people.” The primary reason for this comparison is apparently that both contribute to tens of thousands of deaths per year in this country.. However, while many people call for an outright ban of civilian-owned firearms, there is no such outcry for an ban on motor vehicles. We might learn something by comparing guns to cars and how differently these two entities are viewed and have been handled.

What Are the Facts About Cars vs Firearms?  Motor vehicles have been involved in more deaths per year than firearms for quite some time, but that gap has been closing for many years, and firearms are about to overtake motor vehicles when it comes to numbers of deaths. It is not the purpose or intent of this paper to validate or invalidate either side in this issue. Rather, it is to examine the similarities and dissimilarities between the two and how they are handled.
  
A Comparison Between Motor Vehicles and Firearms
 

Motor vehicles were designed and are manufactured primarily for transportation.

Firearms were designed and are manufactured primarily for killing.

Motor vehicles are rarely used for suicide or homicide, but are mostly involved in accidents.

Firearms are rarely involved in accidents, but are mostly involved in acts of violence.  

When a motor vehicle is instrumental in taking lives, such an incident is usually involuntary, without any intent of violence, and is usually classified as an accident.

When a firearm is instrumental in taking lives, such an incident is usually deliberate, with an intent of violence, and is usually classified as a homicide or a suicide.

People are less negative about involuntary accidents.

People are very negative about deliberate acts of violence.

People in general tend to look upon motor vehicles as being very important to their way of life.

People in general tend to look upon firearms as a potential threat to their way of life.

Motor vehicles are very heavily regulated with regard to safety.

Firearms are subject to relatively few regulations with regard to safety.
     

How Do We Bring the Two Sides Together?  First of all, we need to realize that both sides are interested in and concerned about safety and security. They just have different perspectives and approaches to achieving this. Anti-gun people need to accept the fact that a total ban on firearms is not the solution. Pro-gun people need to accept the fact that that firearms are out of control and need more regulation. Without this mutual understanding, we will never reach an acceptable resolution of this situation.

What Might Be A Workable Solution? Pro-gun advocates have asked why anti-gun advocates would like to see a ban on guns but not on motor vehicles that are as lethal as guns. Perhaps that question should be asked differently:. Why shouldn't firearms be subject to regulations similar to those for motor vehicles? The following steps, common to most motor vehicles, should also apply to guns. It wouldn't totally eliminate our fatality problems, but it could go a long way toward establishing accountability, responsibility, and tracking ability for firearms, which should eventually decrease the number of gun-related fatalities by a huge amount. At least it would be a step in the right direction. ”

Firearm Registration. On an annual basis, all firearm owners would be required to register their firearms by a unique identification number permanently affixed to each weapon. Registration fees would vary, based upon class, model, and intended use. Semi-automatic and automatic weapons would be subject to more stringent procedures, justification, and approval, because of the increased danger to the public. A national firearm registry could be checked to ensure that the gun was legally procured and has been used in a lawful manner. Such checks would be repeated for each renewal of registration.

Insurance and Notification Requirements. Gun owners would be required to maintain and provide proof of liability insurance for each firearm they own and submit to possible safety inspection of the weapon(s) as well as provide evidence of safe storage. They would also be required to notify the appropriate agency, within prescribed legal time limits, of the purchase, sale, donation, gift, theft, salvage, or location of any owned firearms. They must also notify the appropriate authority, within applicable time limits, of any change of owner's address.

Responsibility and Accountability of Ownership. The greatest element of this proposal lies with the owners of firearms. Owners would have to assume all responsibility for the safekeeping and safe operation of their firearms, as well as for the consequences of failure to do so in a lawful manner. This includes ensuring that the firearms are stored in a secure place that is kept locked at all times whenever it contains one or more weapons. In addition, all guns should be equipped with trigger locks which must be used at all times, except when the firearm is in actual use. Preferably, the storage unit should also have an alarm connected to an alarm control center to monitor and alert the owners and/or police in the event of unauthorized access to the storage unit. Weapon owners could be charged with criminal neglect for failure to comply with the safekeeping provisions.

Operator's License. Before any individuals would be authorized to operate a firearm, they must be licensed for each class or type of weapon they plan to use. They would have to pass both a written and a performance test to demonstrate their knowledge and competence in each class of firearm for which they desire to be licensed. Licenses would be valid for five years and renewed as established by the issuing jurisdiction.. Retesting and re-inspection of the firearm(s) at each renewal point would be up to the issuing jurisdiction. In addition, the owner would also have to undergo a background check to ensure that he or she did not have a criminal record, a history of violence or threats of violence, or any mental condition that might be result in hostile action with the weapon.

What About Use by Somebody Other Than the Owner? If any firearm is knowingly used by a friend or a member of the owner's family, that owner would be responsible for determining in advance that any person using such a weapon is legally licensed to operate that class of weapon. The weapon owner, as well as the person using such a weapon, could be charged criminally for any unlawful use of such firearms, and would be legally liable to any damages incurred or lawsuits that might ensue as a result of such use, including homicide.

What About Ammunition and Magazines? Ammunition would be sold based upon documented need. All sales would have to be done in person – no more mail order or purchases for others. The purchaser would also have to provide the registration of the gun in which the ammunition is to be used. Such purchases will be recorded in the central registry and excessive purchase could be flagged for investigation. Magazines will be limited in capacity to a reasonable level appropriate to the owner's intended use.

What About Concealed Weapons Permits? These would be handled on a case-by-case basis in accordance with the applicant's stated need. Permits would be valid for one year, subject to renewal yearly based upon demonstrated need. Permits would be valid for a specified time period and renewed for an additional period upon expiration.

What About Automatic and Semi-Automatic Weapons? Existing weapons of this type could be subject to a “grandfather” clause, which would allow them to remain with their owners for a period of up to five years, subject to proper registration, licensing, and insurance requirements. After that time, the need for such weapons would have to be justified on a year-to-year basis, just as newly-purchased weapons of these types would be. Failure to comply with any of these requirements can result in a forfeiture of all such weapons and an automatic suspension from gun ownership or operation for a minimum period specified by the governing jurisdiction.

Who Pays for the Costs of This Program?  Ultimately, it would be the owner. Just as gasoline for cars includes taxes in the price of the fuel, so too could these be included in both the weapons and the ammunition costs. Gun licensing and firearm registration fees could also address the costs of administering those programs.

What About Firearm Manufacturers? Motor vehicle manufacturers have been required over the years to implement new safety features ranging from such items as tempered glass windows, padded dashboard/visors/steering wheels, seat belts, head restraints, adjustable and collapsible steering wheels. outside remote-control rear-view mirrors, directional signals, backup lights,power steering and brakes, , anti-locking brakes, protective air bags, and the list goes on and on. I am certain that there are at least a few features that gun manufacturers could implement to promote safety and reduce homicides and suicides. There could be reduced registration fees for such weapons if these types of features ere implemented, which might give such manufacturers an edge over their competition's.

What About Variations in Laws from State to State? Because the recommendations described here could be implemented differently within the various states, there is no way any given state could be expected to enforce the gun laws of another state. Therefore, it would be incumbent upon the gun owner, bearer, or user to be knowledgeable of and conform to the laws of any other state he or she may visit.

Where Do We Go from Here? First of all, I hope you agree with at least some of my suggestions and recommendations. However, whether you agree with any of them or not, I hope you will communicate your personal views on the subject to your members of Congress. We cannot rely on Congress to arrive at a proper solution on their own, because too many of them have too much fat in the fire. Without strong feedback and pressure from their constituencies, they will have a tendency to vote for their personal political interests and those of their party, as determined largely by their financial backers, but not necessarily in the best interests of the country and its people.

Just Remember This ... If we don't have some sort of gun control, we are going to have all sorts of guns out of control.

 

Democracy: From Definition to the Constitution

First let's examine two types of democracy and see how the founding father chose the type they did..

Pure Democracy

A pure democracy is one in which the power to govern lies directly in the hands of the people. Hence, it is sometimes also referred to direct democracy. All citizens are allowed to participate on an equal basis with fellow citizens in establishing policies, regulations and laws, and their enforcement. This form of democracy can work well for organizations or small towns, but it becomes unwieldy and virtually impossible at a national level. Attempts at pure democracy in a few colonies failed, which helped lead our country toward a different form of government.

Democratic Republic

To overcome the unwieldiness of a pure democracy, the drafters of our Constitution turned to a representative form of government. Instead of direct participation of the people in day-to-day governance, they set up a system that provided for elected representatives to enact executive and legislative policies and laws on behalf of its citizens in accordance with the common good and the welfare of our country. Therefore, our country was founded not as a pure democracy but as a democratic republic.

The Articles of Confederation

The Articles of Confederation were this country's first attempt to draft a constitution, uniting thirteen states under a weak federal government whose primary responsibilities were overseeing the revolution against England, conducting diplomatic discussions and negotiations with Europe, and dealing with territorial matters. There was no president, no cabinet, and no federal departments of any significance. It had no power to levy taxes (which was understandable considering the issues at that time), and was totally at the mercy of the states to make voluntary contributions for its support. This confederation did not establish a new country. Rather, it established only a loosely knit association of thirteen separate, diverse, and independent states. While this confederation was relatively successful in the three areas outlined above, it was totally ineffective in dealing with other urgent matters that required a stronger central government to be effective in other critical areas.

The U.S. Constitution

The United States Constitution was written in 1787 and took effect upon ratification of nine states in 1789. In framing a new constitution, its drafters had to walk a very tight line between national rights and states' rights. Many concessions had to be made on both sides to develop a document that would be acceptable to states with widely varying principles and practices. As a result our Constitution as drafted was considered by many to have been imperfect, even for the times, and had many defects which needed to be corrected after ratification. 

Where Do We Go From Here? 


Our Constitution has served us fairly well for more than 200 years.  It has endured thousands of challenges to our democratic republic.  However, it was not written to address every possible event or development that could arise in the indefinite future.  There is no way our founding fathers could ever, in their wildest dreams, have conceived that one day corporations would be recognized as persons, entitled to the same rights of free speech as private citizens, and that money would be considered free speech.  They could never have perceived of our government and our political system essentially being bought by big money interests. Most of all, they could never have envisioned that this country would one day (today) have established an aristocracy that rivals the very one they sought and fought with their life's blood to escape.  It is small wonder that Supreme Court Justice Ruth Bader Ginsburg recently made the comment,  "I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012.,".

Our Constitution could not anticipate the challenges of the distant future, and our government has failed to guard our country from adapting it to changing times..  The bottom line is that our beloved Constitution  is in critical condition and needs to be revised.  The only real question that remains now is whether or not we are up to that challenge.


Next Topics:

	Are We a Democratic Republic or a Plutocracy? Major Threats to Our Democratic System
	The Great Economic Divide