Sanitized for your protection

by Ted on August 31, 2004

“The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.”

That’s a quote from a Supreme Court ruling in 1972. It’s also apparently a state secret, as the Justice Department tried to black it out on a court document.

It’s part of a complaint brought by the ACLU (.pdf file). One aspect of the Patriot Act is a gag provision that prohibits anyone who receives a National Security Letter (a request for information) from “disclos[ing] to any person that the [FBI] has sought or obtained access to information or records.” The ACLU is contesting this, and their legal documents are subject to redacting by the Justice Department. This quote from the Supreme Court was one of many portions redacted.

If you’ve ever thought about becoming a member of the ACLU, this might be a good time.



fyreflye 08.31.04 at 8:48 pm

The ACLU was the first social action organization I ever joined (at 19) and now, nearly fifty years later, I’m thankful every day that they’re still around.


Brett Bellmore 08.31.04 at 9:08 pm

Hey, no problem. I’ve pledged to join the ACLU the instant they stop lying about the meaning of the 2nd amendment. And not one second sooner.

So maybe they better decide whether they really hate the 2nd amendment more than they love the 1st. Because it really ought to be the ACLU that has 4 million members, not the NRA. And that’s the reason that it isn’t.


Barry 08.31.04 at 9:44 pm

Gee, Brett, you could join both. Then you could have lots of fun, particularly once you laminated the two membership cards back-to-back.


fdl 08.31.04 at 9:54 pm

it was a nice democracy while it lasted. this is how the rule of law dies; death by a thousand cuts.



Brett Bellmore 08.31.04 at 10:13 pm

Nope, Barry, I’m not into abusive relationships like that, getting defended with one hand, and attacked with the other. Fortunately, the NRA is against gun control AND the “patriot” act.


limberwulf 08.31.04 at 10:34 pm

Im with Brett on this one, tho I cant say I am a member of the NRA either, I dont buy into all of what they say. The ACLU is definately taking the proper side on this issue, I wholeheartedly applaud them. I just wish they fought for the rest of the constitution with the same fervor. I do find it encouraging, however, that so many people of differing views oppose the patriot act. That means that at least one aspect of government growth is universally unacceptable, and that is a good sign that perhaps all of government growth will be seen as a negative.


harry 08.31.04 at 10:39 pm

I have my own reservations about the ACLU. But their view of the second amendment is hardly out-of-the-ballpark, I’d have thought. Do you think that they are really lying, Brett, as opposed to being mistaken in a sincere disagreement with you? I often disagree with the approach they take to the establishment clause of the 1st Amendment is often wrong, but I don’t think they are insincere or unreasonable about it.

Of course, I say that as someone who finds the idea that there is a fundamental individual right to bear arms ludicrous; even if I thought second amendment absolutists were interpretively right I’d think they were normatively wrong.


Brett Bellmore 08.31.04 at 10:58 pm

“But their view of the second amendment is hardly out-of-the-ballpark, I’d have thought.”

True, but only because afer a few decades of revisionist constitutional “scholarship” specifically intended to rationalize the constitutionality of gun control, the ballpark is about the size of North Dakota. Look, even Tribe, when he finally deigned to look at the evidence, had to admit that it’s an individual right. It’s rather difficult to explain the use of the phrase “right of the people”, otherwise.


voter 08.31.04 at 11:24 pm

Nope, Barry, I’m not into abusive relationships like that, getting defended with one hand, and attacked with the other. Fortunately, the NRA is against gun control AND the “patriot” act.

So, how do you ever vote for anyone?


limberwulf 09.01.04 at 12:09 am

voter –
I dont know how Brett votes, but I vote for the candidate that will try to give me the most possible freedom to run my own life, rather than try to run my life. Unfortunately, this election that means voting third party, and hope for enough fellow voters to shake up the big parties.

Thats why Im voting for Michael Badnarik of the Libertarian Party, see

seriously though, I like what the guy says, who knows if he would actually do what he says. I do know that if a man says things that mean true freedom and gets enough support for it, then other politicians will start to see what they are missing.


pseudosophist 09.01.04 at 12:31 am

Let me suggest that you read “Arming America,” by Michael A Bellesiles. This book does an excellent job of setting the context in which the Second Amendment was written, debunking a few myths in the process. The early government of our country was actually trying to find ways to make people keep and maintain guns. Perhaps it will persuade you to view the amendment differently, perhaps it won’t. But as President Bush tells us, you can’t make good decisions without good information. Check out this good information, then see what you think.


bob mcmanus 09.01.04 at 12:36 am

Uhh, Badnarik is a little much for me, and I have voted Libertarian four out of the last six times.

Brett: A) I am a 2nd amendment absolutist, and will discuss personal nukes in a theoretical argument. The laws have gone way too far already. But most people take a more moderate position than myself, desiring rifles, shotguns, and pistols of restricted firepower. I would ask for examples of actual restrictions on the rights of decent citizens to arm themselves. All I really hear is fears and doomsday scenarios.

B) There is a certain division of labor, the ACLU not necessarily getting into cases the NAACP is attracted to. Since the NRA seems to be doing a decent job on 2nd Amendment issues, why can’t the ACLU take a position that pleases its contributors while having little real-world consequences?


bob mcmanus 09.01.04 at 12:49 am

“Let me suggest that you read “Arming America,” by Michael A Bellesiles” …I think the NRA crowd thinks his research shoddy. It was he that lead me to my current position: that since there many many state laws restricting gun ownership on the books at the time of ratification, the meaning of the 2nd amendment by original intent is that there shall be no Federal laws restricting firearms. The ratifiers certainly did not assume that all the state laws were immediately voided. This, however, does not translate into a Federal Right to gun ownership, unless by some application of the 13th and 14th or whatever.

Eugene Volokh is an expert on the 2nd Amendment, and last time I checked, had his work at his site.


Brett Bellmore 09.01.04 at 1:05 am

“Let me suggest that you read “Arming America,” by Michael A Bellesiles.”

Ah, right. Bellesiles. The guy who got caught making up sources and altering quotes to fit his theisis. Who cited probate records that were destroyed in a fire before he was born. Who had to quit his job at the university in order to escape being sacked. Who became the first person in history to have the Bancroft prize for historical writing taken back by reason of fraud. THAT Bellesiles.

Geeze, you’re not just gullible, you’re positively clueless.


Brett Bellmore 09.01.04 at 1:13 am

Bob, his research wasn’t “shoddy”; That’s a pathetic defense people raise to avoid facing the fact that he committed academic FRAUD. Proven beyond any reasonable doubt. If you’re at all familiar with the source material, reading “Arming America” is a real Alice in Wonderland experience.


Brett Bellmore 09.01.04 at 2:05 am

The thing that really freaks me out, thinking about Bellesiles, is that I, not exactly a professional historian, noticed some of the altered quotes. The degree of willful blindness necessary for the pros to take him seriously as long as they did is positively frightening.

Bob, you are of course correct that the 2nd amendment, as originally adopted, applied only to federal laws. (Keeping in mind that most of the states had similar provisions in their state constitutions, of course.) But if you’ll look at the Congressional debate over the 14th amendment, you’ll find that it was indeed, explicitly, intended to apply the 2nd amendment to the states. In order to stop Jim Crow gun laws from keeping freedmen defenseless against the KKK, as a matter of fact. Along with the rest of the Bill of Rights. “Selective” incorporation was invented by a racist court to sabotoge the 14th amendment. It’s in no way a good faith reading.


Jason McCullough 09.01.04 at 3:56 am

I wasn’t aware the ACLU even had opinions on gun control. For example:

As to the NRA’s opposition to the Patriot Act: what have they done about it?


Jason McCullough 09.01.04 at 3:57 am

I wasn’t aware the ACLU even had opinions on gun control. For example:

As to the NRA’s opposition to the Patriot Act: what have they done about it?


pseudosophist 09.01.04 at 5:06 am

Brett –
Thank you for pointing out the controversy around “Arming America.” I was not aware of this.
But why do you feel you need to finish up by hurling insults at me? “Geez, you’re not just gullible, you’re positively clueless.” Like you I’m not a historian. If he could fool the Bancroft prize people, I don’t feel all that clueless just because he fooled me, too. Why do you choose to be so rude?


bad Jim 09.01.04 at 9:15 am

I got a 20-gauge shotgun on my 12th birthday. I joined the ACLU just a few years later. The application back then stipulated that fascists and communists could not apply for membership, which even now appears to be an implicit bar to some.


Brett Bellmore 09.01.04 at 10:56 am

I’ll grant you that calling you clueless wasn’t very nice, but how else can you describe somebody citing “Arming America” almost four years after it was exposed as a fraud? Your exposure to this debate has to have been remarkably circumscribed to have not known that. Heck, if you’d just done a search on his name, or the title of the book, you couldn’t have avoided knowing.

Never assume any one source is being honest with you. Both sides in any sizeable debate will include fraudulent sources. Search engines, though, are wonderful resources for becoming genuinely informed. If you use ’em.

Jason, the ACLU doesn’t “officially” have an opinion about gun control. Except that they’ve lent their good name to furthering the gun control movement’s lies. And why they’d put their credibility in hock like that, if they didn’t care?


james 09.01.04 at 3:45 pm

Here is the ACLU’s official stance on the 2nd ammendment.

“We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government. In today’s world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration. ”

They also have this statement:

“The ACLU agrees with the Supreme Court’s long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual’s right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms.” –Policy #47 ”

Not an accurate interpretation of US vs. Miller .

pseudosophist – Don’t feel to bad. A 9th circuit court judge also used “Arming America” as a cited reference after the scandal broke. The work is a proven fraud but its still being used by pro-gun control advocates.


Ginger Yellow 09.01.04 at 4:01 pm

Um, guys, interesting and important as the gun control/2nd amendment debate is, could we not have some constructive comment on the substance of the post? This is, after all, a case of the government censoring the judgement of its own Supreme Court on dissent and executive power. I thought 2nd Amendment “absolutists” were supposed to be concerned about this sort of thing.


Screwy Hoolie 09.01.04 at 4:24 pm

Governator said that the right to dissent was one of the reasons he’s a great american in a great party… WTF?



Brett Bellmore 09.01.04 at 4:28 pm

I don’t see how the Supreme court could rightfully complain about being censored, after the BCRA ruling. What’s sauce for the goose…

Neither Bush NOR Kerry have any particular respect for freedom of speech. We’re in for a rough patch however the election comes out, and I suspect it’s going to get a LOT worse before the backlash amounts to anything.


james 09.01.04 at 5:01 pm

Addressing the topic at hand. The tone of the article seems incorrect. Its not an attempt to restrict speech by the Supreme Court. Its an attempt by the Justice Department to creatively edit an opponents (ACLU) court papers. Not papers to the court, but court papers released to the public. There could be a gag order on the whole proceedings and not really effect freedom of speech.

The real concerns over freedom of speech are those restrictions committed at the local level. Restrictions on the right to assemble, restrictions on type of speech in schools and universities, restrictions of type of speech in public forums. These are the ones that need immediate action. These attacks on first amendment rights are being done by both parties and both political leanings.


Brett Bellmore 09.01.04 at 6:54 pm

“There could be a gag order on the whole proceedings and not really effect freedom of speech.”

That’s the most glaring contradiction I’ve seen in print in ages. “Gag orders” are attacks on freedom of speech, and nothing else. It’s always amazed me the way the courts feel entitled to issue orders which if drafted as legislation they’d strike down in an instant…


Jay 09.01.04 at 8:34 pm

Neither Bush NOR Kerry have any particular respect for freedom of speech.

Hmm, Bush pre-screens anyone who wants to attend his campaign events, Kerry doesn’t. That seems like a substantive difference to me.


Brett Bellmore 09.01.04 at 9:08 pm

It had not previously come to my attention that the First amendment guaranteed the right to attend campaign events unscreened. I’d thought it guaranteed the right to do things like publish works criticizing candidates for public office within a month of an election…

Both have done, and propose to do, grevious damage to our 1st amendment rights in the name of “reform”.


james 09.01.04 at 9:17 pm

Brett – Interesting comment. I have always viewed gag orders in a similar vein as restrictions against shouting fire in a crowded theater. Namely, my protected freedom of speech does not include the right to slander or through words, cause bodily harm to another individual.


Jay 09.01.04 at 10:37 pm

It had not previously come to my attention that the First amendment guaranteed the right to attend campaign events unscreened

It doesn’t. I didn’t say that. I wasn’t accusing the BC04 campaign of anything illegal. I was remarking on what I see as a difference in attitude.

As to your reference to prior restraint, I don’t know what you are referring to, but the First Amendment doesn’t protect libel.


limberwulf 09.01.04 at 11:26 pm

Jay, just out of curiosity, has there ever been an encumbent president that did not screen who came to events? Its sort of a requirement the secret service holds them to. Granted, it might be getting abused and used to make sure no dissenters come to the events, Im afraid I dont know the answer to that. There may also be reason to question the attitudes of dissenters towards Bush versus dissenters towards Kerry. I have met people with a nearly violent hatred for Bush, but not that many with an equally violent hatred of Kerry. I know many people who are thoroughly disgusted with Kerry, but they are not trying to sabatoge him with irrational outbursts. Perhaps the difference in attitude is not related to their views on free speech.
I could be wrong, its just a thought…


Brett Bellmore 09.01.04 at 11:41 pm

That’s “falsely” cry fire, and gag orders might be similar to barring crying fire in a crowded theater… if the whole country were a crowded theater, and they were gagging statements that would cause immediate loss of life due to riots.

In other words, they’re not at all similar.


james 09.03.04 at 5:50 pm

brett – Good point. Perhaps the courts should not have this power.

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