| 7/27/2010 10:00:00 PM | Email this article • Print this article | Thoughts on guns and the living wage
Adam Salzman, One View
Conventional wisdom can be intimidating. This is particularly true in matters of law and economics. Therefore, I am not surprised that two very controversial decisions affecting our village - the U.S. Supreme Court's decision in McDonald v. Chicago, striking down Oak Park's handgun ban, and the Village of Oak Park's decision to cut off consideration of a living wage ordinance - have not yet been extensively debated. What little public discussion we've seen has turned on certain assumptions that are supposed to be beyond debate.
The recent rash of pro-gun comments on Oak Park news websites and message boards are notable primarily for their utter confidence in the correctness of their interpretation of the Constitution. Opponents of the Supreme Court decision and advocates of gun control are told to "Go read the Constitution," and, "If you don't like the Constitution, amend it."
Fair enough. Let's consult the Constitution. The Second Amendment reads as follows: "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." Pro-gun activists rarely cite the preamble to the portion that establishes a "right to bear arms," because it creates ambiguity. A well-reasoned and respected lineage of American legal scholarship argues that the Second Amendment does not provide an individual right to bear arms, but rather a state's right to establish a formal militia. So there is certainly room for debate. Advocates of gun control should not cede the debate just because gun-rights advocates claim that the text of the Constitution is on their side.
Similarly, conventional wisdom appears to have stifled debate for the time being on the proposal for a living wage ordinance placed before the village board by the Community Relations Commission on July 6. Trustees gave rationales for rejecting the measure, but none made much sense. The prevailing sentiment seemed to be that the proposed ordinance would create uncertainty during the recession. Further explanation should be offered as to why a living wage ordinance would cause uncertainty. It seems that the board is subscribing to a well-worn conservative economic theory: "As long as we don't overburden businesses and developers with regulations, they'll look favorably upon our village and jump-start our economy by setting up shop here!"
Why must we assume this is correct? Wouldn't a living wage stimulate the local economy? An employee of a local business who is paid more is likely to be a more reliable, higher-earning employee. That employee increases the profitability of his employer. When that employee shows up for a day's work in our village, he may take some of his additional income on his lunch break and visit a restaurant or a local grocery store. But just as importantly, adequately compensating working people is the right thing to do.
Our village has a rich history of grounding its policies in justice and equality as much as in dollars and cents. We should not allow conventional wisdom to change that.
• Adam Salzman is an Oak Park resident and a labor and employment attorney. He also serves as chair of the Village of Oak Park's Universal Access Commission.
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Reader Comments
Posted: Saturday, August 21, 2010
Article comment by:
John Murtagh
The $25,000 estimated cost to the village was an estimate based on a single factor -- enforcement of the ordinance. It was a figure that was not extensively studied.
Posted: Monday, August 02, 2010
Article comment by:
Tom Broderick
Dear 2nd Amendment Dem, et al.
$25,000 is the figure that the Community Relations Commission settled on as the dollar figure that they felt might get passed along to the Village.
For what it's worth, that is $0.50 per resident of Oak Park per year.
Best,
Tom Broderick
Posted: Friday, July 30, 2010
Article comment by:
2d Amendment Dem
@Messrs. Salzman and Broderick: The number $25,000 sticks in my head and I checked and saw that the Wed Journal reported in Feb that $25,000 was the estimated cost to the Village. Personally, that is $25,000 I'd rather have go to keeping the cops we have (instead of laying them off) and to the schools.
@Mr. Salzman: We can agree to disagree whether the Cruikshank decision was, at the time, a "results oriented decision" (in much the same manner as I believe Gore v. Bush was) intended to prevent freed slaves from being able to arm themselves for protection. That being said, I would hope we could agree that what transpired afterwards, as a result of Cruikshank, is not something for our country to be proud of.
Thanks to both gentlemen for their responses.
Posted: Friday, July 30, 2010
Article comment by:
Adam Salzman
One last comment on two issues understandably raised by 2d Amendment Dem:
(1) I think you are making allegations regarding the Living Wage proposal without a firm basis of knowledge as to how much it would have cost. The Village already pays its employees a Living Wage, and they rejected the CRC's proposal, so any attempt to conflate the Deputy Police Chief's layoff with the Living Wage proposal strikes me as a huge stretch. Proponents suggested it would have cost very little. That may or may not have been the case, but the point of my article is that we never got to analyze the proposal closely enough to get a clear sense of what it would have cost and whether it would have negatively impacted the economy.
(2) With respect to Cruikshank, of course it is a racist decision. It also happens to be a racist decision with many components, of which the Second Amendment component is relatively minor. The Court's analysis of the Second Amendment in Cruikshank exists somewhat independently of the facts, and could easily be applied to another situation less egregious situation than that of Cruikshank--which is of course why the Court has done so. Subsequent cases citing Cruikshank--and its holding that the Second Amendment is a provision that restrains the Federal Government instead granting an individual right to Citizens--have absolutely nothing to do with race. So I do not think you can infer from the horrible circumstances that gave rise to Cruikshank that the entire lineage of Second Amendment jurisprudence that followed is infected by racism.
Thanks again for those substantive responses posted here!
Posted: Friday, July 30, 2010
Article comment by:
Tom Broderick
Now a question on the gun control debate. John Hall refers to "the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."
What does this mean? Who makes up the "unorganized militia?" What purpose does it serve?
Best,
Tom Broderick
Posted: Friday, July 30, 2010
Article comment by:
Tom Broderick
Dear 2nd Amendment Dem,
Can you tell me what amount of money you feel this will cost the tax payers and how you arrive(d) at that?
What we are talking about is a public policy choice that says when we hand over public moneys to private/semi-private enterprises and directly hire workers that our tax dollars do not keep someone in poverty.
Posted: Friday, July 30, 2010
Article comment by:
2d Amendment Dem
Meanwhile, back in reality, the Oak Park Police lay off an officer. Yet, we allegedly still have the money to pay for the Living Wage proposal....
Posted: Friday, July 30, 2010
Article comment by:
John Sheehan
Thank you Mr. Broderick for providing us your actual synopsis of the CRC's recommendation to enact a living wage ordinance in Oak Park ...and the subsequent inaction and absurd rationalizations that followed. Much more enlightening than all the presumptions and prognostications you could carry in a bucket.
Posted: Thursday, July 29, 2010
Article comment by:
John Hall
10 U.S.C. § 311 : US Code - Section 311: Militia: composition and classes
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.
How can one aruge whats in US code?
Posted: Thursday, July 29, 2010
Article comment by:
2d Amendment Dem
@Adam Salzman: As you well know, the facts of U.S. v. Cruikshank, 92 US 542 (1876), reveal the racist origins behind Supreme Court's 2d Amendment jurisprudence.
For those that are unaware, Mr. Cruikshank was one of several whites that had engaged in an 1873 massacre of freed slaves who had armed themselves seeking to prevent the local La. courthouse from being taken over by a white mob following a contested election. Hundreds of freed slaves were killed by the mob. The massacre is known as the Colfax Massacre.
Mr. Cruikshank was indicted, in part, for seeking to deprive the freed slaves of their 2d Amendment right to bear arms. He was subsequently convicted.
The Supreme Court overturned Cruikshank's conviction by ruling, in part, that the 2d Amendment right to bear arms did not apply to the States and that the 14th Amendment Due Process and Equal Protection Clauses applied only to state action, and could not apply to the actions of individuals, such as Mr. Cruikshank.
Basically, this case gave individuals the unfettered right to trample others citizens' Constitutional rights.
It was this ruling that left freed slaves to the mercy of segregationists, the Klan and Jim Crow until the 1960s.
This same racist ruling was used for a CENTURY, until Heller and McDonald, to support restrictive state and local gun control laws under the guise of Stare Decisis.
So yes, Cruikshank is the origin of the Supreme Court's pro-gun control jurisprudence that was founded in racism.
Finally, there is a diffrence between lower court's expansive interpretation of Miller and the ruling itself. The Supreme Court in Miller grappled with whether the specific gun in question, an unregistered sawed off shot gun, actually had military purposes. As the Court found that it did not, the laws in question were not found to violate the 2d Amendment. The Court even then remanded the case for final ruling.
Posted: Thursday, July 29, 2010
Article comment by:
Tom Broderick
2nd Amendment Dem says the living wage "was being sold as not impacting local employers." It was actually proposed as an anti-poverty tool, one that is good public policy.
Those of us working for this ordinance did provide much information to the Community Relations Commission as they researched the impact that such an ordinance would have on the Village. The record nationally is that very little additional cost is passed along to the tax payers.
After their thirteen months of in-depth study, the Community Relations Commission provided their report to the Village Board. The report included a recommendation that the Village Board enact a living wage ordinance for Oak Park.
The Village Board looked it over and decided they wanted no part in doing their own research and deliberation. Especially since much of the Oak Park business community opposed the ordinance, even though few of them would be impacted.
The Village Board decided to ignore the 60% of the voters of Oak Park who did endorse this ordinance during the Great Recession. The Village Board decided that regardless of the research and recommendation by the Community Relations Commission, they would prefer to simply walk away from the issue.
Four members of the Board voted to strip the report of the CRC of the recommendation to enact a living wage ordinance. End of discussion and bother for them. At least that's their intent.
Best,
Tom Broderick
Posted: Thursday, July 29, 2010
Article comment by:
Adam Salzman
@ Alan Atwood: With respect, you are incorrect about the holding in D.C. v. Heller. The minority opinion, authored by Stevens, does NOT concede an individual right to bear arms. Stevens cites four reasons that the Second Amendment shouldn't be construed as guaranteeing an individual right to self defense: (1) The authors of the amendment would certainly have made an individual right explicit and clear if that was their intention (2) The "militia" language and the specific phrase "to keep and bear arms" clearly indicate that the Second Amendment concerns state militia service only (3)Several lower federal courts' "collective-right" readings of the Miller decision establish a clear precedent (stare decisis), which the Supreme Court has historically been loathe to overturn (at least until this Court) and (4), that the Court has not treated Federal gun laws as unconstitutional.
So on the issue of whether the Second Amendment guarantees an individual right to bear arms, the Court was divided 5-4 in D.C. v. Heller, not 9-0.
@ "2d Amendment Dem": You cite no evidence of the racist origin of pro-Gun Control JURISPRUDENCE. Clarence Thomas's concurrence raises this notion, but Thurgood Marshall, a staunch supporter of gun control and someone who certainly had to contend with racist jurisprudential traditions in his time, would have disagreed.
This is not to say that strenuous efforts weren't made during reconstruction to prevent African Americans from protecting themselves. But these racist laws do not constitute a jurisprudential tradition.
Thanks to all who offered their substantive comments, I have enjoyed this discussion!
Posted: Thursday, July 29, 2010
Article comment by:
Alan Atwood
Actually, the Supreme Court found that the 2nd Amendment guarantees an individual right 9-0 in DC vs. Heller. And reaffirmed it by that margin in McDonald vs. Chicago. The disagreement is over how strict a scrutiny needs to be applied to laws affecting it.
FWIW, Clarence Thomas is the only Justice to actually get it completely correct.
Posted: Thursday, July 29, 2010
Article comment by:
2d Amendment Dem
Facts can be troubling things.....
1. McDonald: Unsurprisingly, absolutely ZERO mention from the author of the racist origins of gun control jurisprudence. Thomas' concurrence actually details the racist origins of Supreme Court 2nd Amendment gun control jurisprudence.
Also, zero mention of the scholarship from liberal scholars supporting the theory that such Constitutional rights were always intended to be personal, and not collective rights.
Given the, frankly, ignorance that has been displayed on this website (see Haley's "Let's have a real world debate and not a Constitutional debate" line), telling people to read the Constitution and that amendment is the way to "change it," appears to be necessary as quite a few people have forgotten their 7th Grade Civics lessons.
2. Living wage: This was being sold as NOT impacting LOCAL employers as it only applied to contractors (mostly from outside the Village) that deal with the Village. All this would do is RAISE taxes for the benefit of NON-Oak Parkers at the same time the Village is outsourcing every other job at Village hall due to budget constraints. To get this straight, you want to raise taxes in the middle of the greatest economic mess since the Great Depression and continue negatively impacting the economic diversity in our Village, all so we can pay more to people that do not even live in our Village? Did you forget that D97 is in financial straits and its referendum is right around the corner?
Posted: Wednesday, July 28, 2010
Article comment by:
Steve Kantig
I appreciate the informative discussion, gentlemen (and lady).
Shame on the Journal for publishing Bill's comment--Adam's piece has brought to light interesting information on these interesting issues.
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