Stormy Weather

By Shawn Healy

April showers are supposed to bring May flowers, but at a local public school and at two of our nation's leading Catholic universities, academic freedom is under attack, threatening the spring knowledge bloom. This story centers on two of the leading figures of the fall presidential campaign, namely our since elected President, Barack Obama, and his Hyde Park neighbor and sometimes nonprofit partner, Bill Ayers. Obama is to deliver one of three commencement speeches at the University of Notre Dame this May, and Ayers was to speak at Boston College this week, and Naperville (IL) North High School next month.

Obama's predicament is fairly straightforward. As a popular and pathbreaking president, most institutions of higher learning would fall over themselves to have him speak to departing graduates. Notre Dame leaped at the opportunity, and also offered Obama an honorary doctorate of law. Select students, staff members, and alumni have since rallied against the invitation, suggesting that Obama's support for expanded abortion rights and embryonic stem cell research stands in conflict with the university's Catholic mission. To date, Obama is still slotted to speak, and though he may compete with protesters on site, the marketplace of ideas and academic freedom flourish in the process.

We cannot say the same for Notre Dame's Catholic brethren in Boston. Ayers, whose claim to fame is tied to his role as a member of the Weather Underground in the 1960's and 1970's, has since moved beyond his youthful indiscretions and charted the course of an education reformer. However, his past life and prominence in the just-completed campaign make him an interesting draw. Indeed, his 2001 book documenting his past life, Days of Rage, is a must-read.

Ayers planned speech at Boston College was eventually moved off campus and televised remotely. University officials stood behind the cloak of a private university, along with a potential link between the Weather Underground and a slain Boston police officer. Boston College is not bound to the dictates of the First Amendment, but their decision to pull the carpet from Ayers represents a direct threat to academic freedom.

As reported in the Boston Globe, a student organizer of the speech warned of the standard this indecision and capitulation may establish: "Now the precedent that they're setting is that if something goes against the wills of alumni who call in and threaten to pull donations . . . any events could get canceled."

Ayers also pointed to the of perils of the so-called "heckler's veto": "Let's say the mob gathers outside the gate at BC and demands that they teach astrology, or creationism, or that the world is flat. Should they then give in to the mob and teach those things? Absolutely not. So why should they do that with this?"

Closer to home, a similar predicament involving Ayers came to a head at Naperville North High School. His April 8th speech to a select group of students was canceled by the local superintendent in response to community uproar and the distraction it created for students. Given that this is a public high school, the First Amendment is certainly in play, though student speech and expression is limited by a series of Supreme Court precedents. The ruling standard here is the Hazelwood decision that enables administrators to exercise prior review of speech and other expressive activities disseminated by the school (in this case an assembly) for "legitimate pedagogical reasons."

On constitutional grounds I cannot quibble with District 203's actions, but the law of unintended consequences is arguably more powerful in this scenario. The superintendent allowed dissenting voices in the community to override the equal number of supportive messages he received, and simultaneously curtailed the "marketplace of ideas." While the District may save face with angry parents, students are taught that speech is free so long as a majority, or even vocal minority, supports its content.

In Naperville as in Boston, the hecklers won in their battle to sanitize the marketplace of a voice on the fringe, but nonetheless deserving of a place at the table. Here's hoping that there is room for both the heckler and the leader of the free world in South Bend next month. Who knows, through a marketplace where ideas are forced to compete with one another, but parties may actually learn something from one another, elevating and not sanitizing public discourse.

Decision Ends Gag on Press

By Shawn Healy

This was the June 2, 1931, headline of the Chicago Tribune in response to the landmark Supreme Court decision, Near v. Minnesota. With a narrow 5-4 majority, the Court struck a sweeping blow to state prior restraint laws impacting private presses, emboldening the industry to perform their watchdog role essential to a proper functioning democracy. Nowadays, with the print industry on life support nursing a broken economic model, we are obligated to look to the past for guidance, and there is no better place to begin than the Near decision.

Eric Easton's March 2008 journal article titled "The Colonel's Finest Campaign" reviews the Near case through the lens of its benefactor, the venerable Robert R. McCormick, then publisher of the Chicago Tribune and the namesake of the Foundation that funds the Freedom Museum. Others have documented the case and cemented its importance, no one better than the late Fred Friendly in Minnesota Rag, but Easton focuses specifically on McCormick's role in the case, namely his push for the professional media industry to litigate on its own behalf.

McCormick assumed leadership of the American Newspaper Publishers Association in the spring of 1928, and soon thereafter pressed for the organization's support of Jay Near, the publisher of a disreputable Minneapolis newspaper that documented local corruption, but was laden with Antisemitism and racism. Minnesota used a 1925 state public nuisance law to shut down Near's publication of The Saturday Press, inviting court scrutiny of whether state's could impose a prior restraint on private presses.

Contrary to popular conception, Near v. Minnesota did not incorporate freedom of speech and the press to state and local laws; Gitlow v. New York accomplished this in 1925. It did hold that prior restraint laws like the "gag" mechanism imposed in Minnesota at the time were unconstitutional, leaving libel suits after the fact as the proper recourse for defamation and reckless disregard for the truth.

Beyond this, McCormick, a First Amendment champion for both idealistic and selfish reasons, realized that most battles concerning civil liberties are fought on the fringes. How could the Chicago Tribune feel safe in taking local government officials to task if smaller-scale operations were threatened with closure by elected officials wary of written scrutiny?

Toward this end, McCormick instantly recognized the importance of the Near decision upon is announcement:

The decision...will go down in history as one of the greatest triumphs of free thought. The Minnesota gag law was passed by a crooked legislature to protect criminals in office and supported by a state court as feeble in public spirit as it was weak in legal acumen.

Never one to pull punches, the Colonel warned that the battle to subvert freedom was a perennial one:

We must not bind ourselves to the fact that subversive forces have gone far in this country when such a statute could be passed by any legislature and upheld by any court, and must be on guard against further encroachments.

McCormick ended on an optimistic note, and I am hopeful that the current captains of the newspaper industry will heed his call during these trying times:

The newspapers of America will realize the responsibilities devolving upon them under this decision and will maintain and increase the high principles which has guided them since the inception of a free press.

The free press as we know it is threatened today not by an overarching government (although Illinois' since departed Governor did attempt to remove an unfriendly Tribune editorial board member last year), but by fading advertising revenues, migration of readers to the Internet, and most disconcerting, public apathy and ignorance. We all have a role to play in order to reverse these fortunes, and it is our hope that the Foundation that bears the Colonel's name can live his legacy and play a small part in moving the needle back to the glory days of Near.

Live Blogging the Struggle Continues: The Gun Debate

By Nathan

Good evening, this is Nathan Richie, director of exhibits and programs, blogging live from tonight's premier of the Freedom Museum's newest program series The Struggle Continues. Each installment of The Struggle Continues we focus on a particular aspect of a contemporary rights issue. Tonight's debut program will focus on the 2nd Amendment, gun control, and the implications of the landmark Supreme Court case District of Columbia v. Heller (2008).

Tonight's event will be a moderated debate by former NPR radio host Gretchen Helfrich and feature Robert Levy of the CATO Institute and Dennis Henigan of the Brady Center to Prevent Gun Violence.

Check back here with live updates to this exciting debate about a bedrock American freedom.

5:45 PM
People are now beginning to arrive here at the beautiful Gleacher Center at the downtown University of Chicago Campus. We are expecting a full house tonight. Also here tonight is CAN TV. Information about the television broadcast is forthcoming.

Prologue:
I am anticipating that tonight's program will closely examine the results of the Supreme Court case Washington DC v. Heller, in which the court effectively struck down a Washington DC law that restricted the use of firearms. While the decision is narrowly applied to DC (a federal district whose laws are overseen by the US government), the ruling has widespread implications. Heller was the first time the court decided that the 2nd Amendment applies to individual rights, not a collective right (as the vague wording of the 2nd Amendment seems to suggest).

Now what remains to be seen is how this precedent will be applied nationally. The first place where this is likely to play out is right here in Chicago--a city with one of the most restrictive laws pertaining to gun ownership.

Will the Heller ruling soon make Chicago's gun laws unconstitutional? Therein lies tonight's debate.

6:10
The program has now begun and introductions have been made. Gretchen Helfrich is welcoming the crowd of approximately 150 people.

6:15
Robert Levy opens tonight debate. Levy is a constitutional scholar who, although has never owned a gun, was instrumental in bringing the Heller case to court. He vetted plaintiffs for the lawsuit and helped financed the suit.

Levy posits that the Heller case was specifically about personal handgun ownership--not assault rifles or semiautomatic weapons.

6:25
Henigan takes the podium and begins his statement saying that he is not here to interpret the 2nd Amendment, but rather why the Heller decision is bad jurisprudence. He believes that the Heller decision has in some ways actually enabled stronger gun control.

There are 30,000 gun victims of gun violence each year.

Section 3 of Heller Decision actually lays out which gun restictions are actually still valid: waiting periods, background checks, and prohibitions of concealed weapons, bans on assault weapons, possession of arms by felons, guns in schools, and more.

6:40
After my computer crashed twice during the presentations and rebuttals, we are back live.

Henigan contented that Heller actually helped gun-restriction advocates because the decision says that gun banning is not an option. That decision erodes a key argument by gun advocates who say that any restriction leads to a slippery slope toward wholesale gun banning.

Levy responds that the case is highly important because it targeted specific restrictions against gun ownership that were unreasonable. It also sets up a precident that will afford gun advocates in any state to file suit against unreasonable restrictions.

6:45
Henigan goes on to say that the Heller decision may help reverse some city gun restrictions, it does not say that some restrictions are unreasonable--it in fact says the opposite.


6:50
"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. "
--2nd Amendment to US Constitution.

Not too many words to help decide such a complex issue.

Levy stated that only three provisions of the DC law were contested in the Heller case and found unconstitutional. Just because only those three were litigated, it doesn't mean that all other law provisions are okay. The Supreme Court did not rubber stamp certain restrictions, but rather alluded that restrictions can be reviewed on a case by case basis. For instance, because DC has had such restrictive laws, no gun stores have been in the city. Now, as new stores open up, DC is imposing strong restrictions on sales. Many of those restrictions may be subject to judicial review.

7:53
Henigan said that what the Heller decision did was a type of Conservative judicial activism--actions bemoaned by many on the right for years.

Whats the continued relevance of the "well regulated militia?" asked Helfrich.

Levy: These discussions were mostly relevant during the founding era when disputes between Federalists and Antifederalists argued about who should be able to control munitions. It was a way of codifying the right to keep and bear arms. Self defense was assumed.

Henigan: Says that Levy's account of the Second Amendment is not based in fact. The framer's only addressed militias and it was up to the states to later pass laws protecting personal gun ownership.

Levy opines that the term "bear" means to personally own and handle arms. Henigan says that "bear" refers to carry weapons--such as the way a militia would.

7:00 Opening the floor to audience questions.

Grethen Helfrich points out that it widely said that court decisions are narrow and only affect specific things, but ultimately are broadly applied--implying that Heller will later be much more broadly enforced.

Levy: It is true that Scalia, in making his opinion, did say that some restrictions may be okay. But he still feels that the Heller decision will make "draconian" gun laws as supported by the Brady Center will fall.

Henigan: The Brady Center does not support outright gun bans. But, it also believes that individual communities should be and have the right to decide their own laws. "Guns are not vacuum cleaners," they should be subject to stronger restrictions.

7:08
"Will ammunition become a target of banning?"

Levy: If a ban on ammunition ends up restricting gun ownership, it will be overturned.

Henigan: Bob is right, but gun laws can be constructed that are not unconstitutional.

"Inconvenience is not infringement."--audience comment. Infringing means to abolish, and restrictions are not intended to abolish. Levy responds that any abridgement is by definition a restriction of freedom.

7:13
"If gun victims can now get guns easier, will there be more violence?"

There is obviously opposing views on this. Causal studies yield very conflicting information. Levy contends that robberies and related violence goes down, but Henigan remarks that homicide is higher.

"How relevant are the founders views on our present day society?" asked one audience member. I think this is one of the most important questions of the night. The world of 1775 is so vastly different that 2009. How and should gun rights be separated from the notion of a militia--a concept unknown to our society today.

Great moment of contention when an audience member suggests that the second amendment is as irrelevant to our modern society as the third amendment (which forbids the forced quartering of soldiers in private homes).

Levy raises another great point--because gay people are officially barred from the military (our modern militia), does that mean that gays are not allowed to own guns?

7:30
The program is concluding. Great discussion and a wide variety of opinions expressed tonight.

Gun Control on Trial

By Shawn Healy

Brian Doherty's Gun Control on Trial recounts the evolution of the landmark Second Amendment Supreme Court decision in 2008, District of Columbia v. Heller. In a title published by the Cato Institute, he writes from a libertarian perspective, and casts Cato's role in the outcome in heroic terms.

In a post earlier this month I reviewed A Well Regulated Militia, and spoke of the historic debates over the original intent of the Second Amendment. Saul Cornell argued that we abandoned our civic conception of the amendment for the individualistic and collective alternatives that frame the contemporary debate. Doherty dodges this conundrum, coming out decisively in favor of an individual right to keep and bear arms, suggesting that it extends above and beyond state militia service.

My reading of history points to a hazy hue of original intent arguments. Indeed, in their majority and dissenting opinions in the Heller case, Justices Scalia and Stevens both use originalism to defend their respective individual and collective claims. Some conservative legal scholars have actually taken issue with the decision, arguing it is a case of judicial subjectivity on par with Roe v. Wade.

Doherty's contribution is his revelation of the intimate details that made an underdog collection of gun rights proponents historic trailblazers, from Cato President Robert Levy, who brought the case into fruition, to relatively unknown attorney Alan Gura who ushered the case all the way through oral arguments at the High Court, to Dick Heller, the D.C. security guard who could not legally possess a firearm in his own home.

The 5-4 decision affirmed that the Second Amendment constitutes an individual right. However, because the ruling applied only to the District of Colmbia, a federal terrority, the Second Amendment remains the sole province of national limitations. The Supreme Court has refused in the past to incorporate the Second Amendment, or applying it to state and local laws via the Due Process Clause of the Fourteenth Amendment.

Before the ink was dry on the opinion last summer, the invitations for the Court to incorporate gun rights made their way into lower federal courts. Three cases, two involving Chicago and the other a western suburb of the city, Oak Park, are situated in the U.S. Court of Appeals for the 7th Circuit. At issue is whether the 1886 Supreme Court decision, Presser v. Illinois, which denied a bid to incorporate the Second Amendment, stands in the aftermath of Heller and the passage of time.

While we keep one eye fixed on incorporation, the other is trained on the immediate impact of the Heller decision. According to Adam Liptak of the New York Times, the alleged landmark decision has fallen on deaf ears as gun control legislation has been upheld repeatedly in the lower courts with a single exception. Given Justice Scalia's laundry list of permissible regulations toward the end of his majority opinion in Heller, this should come as little surprise. The sea change may come via the incorporation case Heller invited.

The topic of gun rights in certainly a fascinating one, and we plan to present it as the first installment in a new public programs series at the Freedom Museum entitled "The Struggle Continues." The aforementioned Robert Levy of the Cato Institute will speak alongside Dennis Henigan of the Brady Campaign to Prevent Gun Violence at a free program (click here to register) this Thursday from 6-7:30pm at the Gleacher Center in Chicago.

On Friday, Levy and Henigan will join us for the first of two teacher seminars centered on our new Second Amendment curriculum, titled "To Keep and Bear Arms." The Heller decision is the centerpiece of the lesson, and our speakers (myself included) will further illuminate its central tenets and aftermath. We do it again in the western suburb of Wheaton on Saturday with guest speakers from the Joyce Foundation and the Naperville Police Department. CPDU's are available and registration (click here), with breakfast and lunch served, is free of charge.

Faithfully Fleeting

By Shawn Healy

Trinity College recently released the third edition of their ongoing study of religious identity in the United States. Titled the American Religious Identification Survey, the authors, Barry Kosmin and Ariela Keysar, concludes that our nation is drifting away from faith altogether. Based on a survey of 54,461 respondents, the authors replicated their earlier efforts in 1990 and 2001. They asked participants a simple, open-ended question: "What is your religion, if any?"

While all religious denominations grew over this twenty-eight year period, most shrank in a relative sense. The number of Americans who call themselves Christian is down more than 10 percent since 1990, from 86.2 to 76 percent. Catholics make up the largest single denomination of this bloc, though their share has fallen slightly. The heavy influx of immigrants from Latin American countries in the intervening years has rescued the Catholic Church from a more accelerated decline.

Those who fail to identify with a religious faith entirely nearly doubled from 8.2 to 15 percent, though the rate of growth slowed significantly since 2001. Controlling for our growing national population, atheists and agnostics represent the largest share of this demographic, a full 37 percent, clearly outdistancing the next closest competitor, Catholicism, at 21 percent.

Among the Protestant faiths, the Baptists own a plurality of adherents, with 15.8 percent of Americans claiming affiliation. Generic Christian ranks just behind at 14.2 percent, and both have declined marginally since 1990. Eastern Religions and Islamic adherents have more than doubled, yet they claim only 0.9 and 0.6 percent of the population, respectively.

There is significant gender balance across most faiths, with the most prominent exceptions being Pentecostals, who claim the highest percentage of females, 58 percent, and non-believers, who are most likely to be male (60 percent). Muslims are the youngest of any of the major religious traditions in America, as 42 percent are 29 or younger, while Baptists are the oldest denomination, with a full 37 percent older than 50. Most faiths are populated by middle-age adherents in the 30-49 demographic.

Turning to race, Catholicism is most prominent among both whites and Hispanics, with 21 and 59 percent of each racial group affiliating with the faith. Blacks are more likely to be Baptist, a full 45 percent of the group, and a plurality of Asians (27 percent) are non-believers.

More than two-thirds (69.5 percent) of Americas claim a definitive belief in God, while 12.1 reject a personal God, but do believe in a higher power. Among non-believers, 5.7 percent plead uncertainty, 4.3 percent claim that their is no way to know, and 2.3 percent reject the notion outright.

A vast majority continue to engage in the rituals of faith such as initiations at birth and later in life, weddings, and funeral services, although 26, 30, and 27 percent of Americans do not tie religion to any of these respective events.

In sum, "when it comes to religion, the USA is now a nation of freelancers." When Kosmin published the first study in this series in 1990 he concluded that Americans saw God as a "personal hobby" and the nation is a "greenhouse of spiritual sprouts." In the intervening years, he has resorted to describing religion as a "fashion statement" and "not a deep personal commitment for many."

The authors steer clear of the impact of these trends, but I will dive into this cauldron for a moment, raising two pressing matters of concern. One, religion serves as one of many indicators of civic health, and a widespread abandonment of institutionalized worship threatens to further undermine our commitment to the local fabric of our community. I am not suggesting that religious entities are the only actor in this arena, but they are the most widespread and perform a number of charitable and community-building functions from a faith-based model. Their erosion requires alternatives to operate in the remaining vacuum.

Two, greater religious diversity demands educational attention by our schools and faith-based institutions to overcome discrimination that is bread by fear and ignorance. The religious quilt that continues to characterize America is as old as pre-European settlement, but the respective patches have been altered and rearranged. The Free Exercise Clause of the First Amendment is the most prominent protection for this variegated form of worship or non-affiliation, and we have an ongoing obligation as a society to pay heed to its central tenets.

Do Newspapers Matter?

By Shawn Healy

My recent blog posts have lamented all too often about the demise of local daily newspapers. In each I have warned of the implications for democracy, but as we saw in the Pew Survey last week, most Americans merely shrug their shoulders as these sentinels stop the presses for good after decades of operation, while we wax with anxiety. Two researchers, Sam Schulhofer and Miguel Garrido, studied the political implications of the closing of a local newspaper in a paper published under the title Do Newspapers Matter? Evidence from the Closure of the Cincinnati Post.

Cincinnati was long a two-newspaper town, and since 1977, the Post and the larger Enquirer were published in tandem under a joint operating agreement. Gannett, the parent of the Enquirer, decided to part ways with the Post in 2004. Scripps, the owner of the Post, resolved to soldier on, but ultimately surrendered after losing 90 percent of its circulation over the course of 30 years on December 31, 2007. The Post was widely distributed across the river from Cincinnati in Northern Kentucky, and Schulhofer and Garrido sought to measure the impact of its closing on politics in these Cincinnati suburbs.

Other researchers have shown that cities with high newspaper readeship are less likely to breed corruption. Cities with daily or weekly newspapers are less likely to reelect incumbents, and the endorsements of these broadsheets actually impact voters' decisions at the ballot boxes. Schulhofer and Garrido find similar results in the Kentucky counties, as incumbents were not just more likely to claim victory, but also to face an opponent in areas where Post readership was the highest. More people did go to the polls in 2008, but the authors attribute this to the "unusually high turnout" in 2008, and when this anomoly is controlled, drops in relative turnout in former Post-dominant municipalities.

Upon closer inspection, the authors' data is a bit sparse given that only one presidential election has taken place since the Post closed, and much of the Cincinnati area has yet to hold local elections, the crux of their argument. The excitement that President Obama generated atop the ticket makes it difficult to swallow the argument that turnout was depressed in 2008. Indeed, other factors may be in play in the Kentucky counties at the center of this study given that they lie in a bright red Republican state, yet share the same metropolitan area with a city in one of the most fiercely contested states.

These qualifications aside, the authors promise to continue to gather data to further prove their point, and my guess is that they are on to something with their preliminary conclusions. Devoted newspaper readers and champions of the watchdog role of the press have long warned of the impact that newspaper closings and downsized newsrooms would have on the local democracies they enable through the provision of a common base of information to the citizenry. A century ago, 689 American cities had competing daily newspapers. At the beginning of 2009, we were down to 15, and Denver recently dropped from the mix, soon to be followed by Tucson, and Seattle arrived there this week for all intents and purposes when the Post-Intelligencer assumed a vastly scaled back online-only model.

One can only hope that the remaining dozen two-newspaper towns can hold on during these turbulent times, and that the remaining solo acts like the Cincinnat Enquirer do their part in fostering the ever-fragile engagement of local citizens.

Stop the Presses?

By Shawn Healy

I wrote last week about the turbulent times wreaking havoc on the established newspaper industry across the country, and the slate of bad news continued this week with the announcement of massive layoffs at the Miami Herald, pay cuts at the San Francisco Chronicle and San Jose Mercury News, and an eerie ranking of the next ten newspapers likely to collapse, including the Sun-Times in Chicago. On Thursday, the Pew Research Center for the People & the Press released a survey showing relative apathy amongst the population as a once formidable industry crumbles before our eyes.

Only a third of survey participants said that they would miss their local paper "a lot" if it closed, while 16% said "not much" and 26% said "not at all." Among those who get their news regularly from papers, a majority reported they would miss it "a lot," compared to 30% of those who read newspapers less often. A startling 42% of those who read papers less often would not miss them at all in their absence.

There are significant generational differences in response to this question, with those over 65 most likely to miss their local paper "a lot" (55%), as opposed to a mere 23% of those in the 18-39 age bracket.

When asked to evaluate the impact of the closing of their local newspaper on civic life, respondents were slightly more attuned to the perils of the current sea change. Forty-three percent said it would affect civic life "a lot," and another 31% said it would have "some" effect. Differences emerge once more based upon frequency of readership and age, with regular and older readers more likely to understand the stakes.

These rather dismal figures probably have something to do with the fact that newspapers are no longer the most common source of news; indeed, they have not been for some time. Nearly two-thirds (66%) of survey participants reported that they watch television regularly as a source of news, compared to 41% for newspapers, 34% for radio, 31% for the Internet, and 13% and 11% respectively for online newspapers and television.

For those who said the loss of their local newspaper would affect civic life "a lot," 30% said it was because people relied upon it as a local source for news, 18% read it regularly for news, 12% said there was only a single paper in their community, and 10% claimed that reading a paper was a habit they enjoy.

Looking at the group that does not see the civic implications of the collapse of their local daily, 29% said there remained alternative sources for news, 20% complained about the quality of their local paper, 10% don't read them anyway, and 9% said that others shun papers, too.

As a young boy, I was enamored by newspapers. Growing up in Milwaukee, I devoured the Sentinel each morning and the Journal come afternoon. During my freshman year of college, I mourned their merger, yet continued my subscription, and learned to love the Chicago Tribune, too, as a regional repository for news. As an adult, I have the luxury of holding a job where news awareness is placed at a premium, and I consult a plethora of papers, both online and in print, on a daily basis.

Results like those reported above trouble me deeply, for I fear that we are casually allowing a linchpin of our democracy to slip away. Restoration of our window into the happenings of government at all levels and news critical to the fabric of our community will be a more difficult task than saving these sentinels from pending disaster. We have a duty to school the next generation in media literacy and consumption, and an obligation to renew our commitment to these daily documents so vital to democracy.

Beyond the Vote

By Shawn Healy

I've written before about the Civic Health Index calculated annually by the National Conference on Citizenship. The organization attempts to construct indicators similar to those used to gauge the state of our economy. As the U.S. weathers the worst recession of our lifetime, we also stand in a precarious place on matters of civic engagement according to the 2008 report. The uptick of involvement in the recent election is certainly a promising sign, but the challenge moving forward is to harness this energy as we transition from voting to governance. The report, titled "Beyond the Vote," sets forth an agenda of how to make this happen.

Among the solutions earning the highest support in a combined telephone and Internet survey of Americans were college tuition in exchange for a full year of college or community service, involving Americans in deliberation over a national issue and demanding Congress respond in kind, along with requiring service learning in America's high schools. A majority supported mandatory testing in civics or government for high schoolers, federal support for non-profit organizations serving the community, a shift back to local control over education, and expanding the Peace Corps and other service-oriented overseas programs.

These prescriptions are intended to address deficiencies identified through ten civic measures in the 2008 report. Each of these is highlighted in part below.

1. Connecting to civic and religious groups. 55% of those surveyed belong to any group or organization, while only 36% attend a group meeting on an annual basis, 33% work on a community project, and 48% go to religious services at least once a month.

2. Trusting other people. Only 36% generally believe in the honesty of most people, and 58% feel that most try to be helpful.

3. Connecting to others through family and friends. Higher marks proliferate in this area, as 53% report eating dinner regularly with their family and 69% spend ample time communicating with friends electronically. However, only 39% of partisans claim to have friends with opposing allegiances.

4. Citizen-centered engagement. Dismal results hamper these activities, with only a third attending local meetings where community affairs are discussed, 39% working with others in their community to "fix or improve something," and 21% performing both duties.

5. Giving and volunteering. 59% volunteer in some way, equaling 8.1 billion hours worth more than $158 billion to local communities.

6. Staying informed. Only 43% read a newspaper daily, while a little more than half, 54%, follow news about government and public affairs. The Internet is not the answer to a society generally tuned out from news consumption, as only 30% claim to use the web as a source for information about politics, social issues, and community problems.

7. Understanding civics and politics. Only a minority (49%) can identify the Republican Party as more conservative than the Democrats, and slightly more than half (51%) feel that they understand politics and government.

8. Participating in politics. A high percentage (84%) are registered to vote, and there was a significant uptick in turnout during last year's primary season (57%). Seven percent volunteered for a presidential campaign in 2008, while 13% attended a rally, and 15% donated money.

9. Trusting and feeling connected to major institutions. A high percentage (74%) feel that their vote matters, and a slim majority (52%) say people like themselves have a voice, but only 23% believes our national government does what is right, and 22% feel that the government is run for the benefit of all.

10. Expressing political views. There is a great deal of political discourse via electronic means (57% report to engage in these media), and 52% report face-to-face conversations of a similar nature. Twenty-six percent donned campaign buttons or placed a bumper sticker on their car or yard sign on their lawn, while 14% wrote a letter to the editor of a news publication.

In balance, there are several uplifting data points when measuring our nation's civic health, but much work remains. Deep cynicism and distrust prevails and serves as a deterrent to further civic participation. On top of this, lack of civic knowledge reduces related efficacy.

We can all play a part in this turnaround, and the McCormick Foundation and the Freedom Museum are committed to this end. The Foundation helped to underwrite the cost of this report, and also funded a conference last month where the fate of civic education in Illinois was discussed. Expect a civic blueprint by the end of May, and a renewed effort to prepare and certify Illinois High Schools through the Civic Mission Coalition as "Democracy Schools."

Through its revamped outreach programs, the Freedom Museum hopes to play a vital role in this effort, from a mobile museum, to enhanced professional development opportunities for teachers, to a classroom educator and assembly speaker program, our mission of using the First Amendment as a vehicle in improve civic engagement and health continues. Stay tuned for updates on our latest efforts toward this end.

News on the Rocks

By Shawn Healy

Last week's closing of the Rocky Mountain News just before it celebrated its 150th year anniversary made Denver a one-newspaper town, and unfortunately, this development is all too common in an industry struggling to find an answer to a failed economic model in the most turbulent times since the Great Depression. The word out of Seattle this morning is that the Post-Intelligencer will likely move to an online only model, following the Capitol Times of Madison, and most recently, the Christian Science Monitor.

The P-I is a Hearst-owned paper, and the company's desire to sell off select publications has fallen on deaf ears, hence the settlement in Seattle and the rumors that a similar fate, or perhaps the closure, of San Francisco's only major daily, the Chronicle, leaving the City by the Bay, America's 14th largest market, without a hometown broadsheet. True, one can travel across the bay and read the Oakland Tribune, or head south to San Jose to peruse the Mercury-News, but for this famously activist town to go without a major daily periodical is nothing less than alarming.

The jointly operated Detroit Daily News and Free-Press have suspended suburban delivery with the exception of a few days a week, and these papers and the industry as a whole has been decimated by the failing auto industry, which previously accounted for a strong plurality of advertising revenue.

Closer to home, the Chicago Sun-Times has been fading for years, sacrificing content for advertising, and feeling more and more like the derogatory term that defines its published piece: a tabloid. The Tribune is in the middle of bankruptcy and has shed significant staff in its effort to "rightsize." It has adopted a tabloid form itself, at least for newsstand sales, paring down content and embracing more advertising at the same time it drifts away and dries up.

Those of us who wax nostalgic about the newspapers of old are saddened by the daily unraveling of an industry so near and dear to our hearts, and we lament the loss of jobs by those scribes who have dedicated their lives to keeping us informed and holding our elected officials accountable.

Beyond these first-order effects, however, the biggest loser is our democracy itself. How are we, the people, to govern when the individuals who shed light on corruption are standing in an unemployment line? Who will facilitate an issues-oriented debate where we are exposed to a plethora of opinions on an editorial page now extinct, as we retreat to echo chambers on the Internet or cable television? What will take the place of investigative journalists who unveiled the pathetic conditions at Walter Reed Hospital, or Operation Silver Shovel?

These are questions without immediate answers. Perhaps finding a way to make online journalism profitable through advertising and/ or user fees is a partial solution, or endowing newspapers and running them as non-profits from this point forward. New media anchored niche publications like Politico may lead the way, along with MinnPost on a smaller scale. Pro Publica is attempting to focus solely on quality investigative journalism, the most expensive and labor intensive part of the craft, but arguably the most essential to democracy.

Let the experimentation continue, and ideas surface that meet the newsgathering needs of our time. There is no time for careful deliberation, for last week it was the Rocky Mountain News, today it is the Seattle Post-Intelligencer, and tomorrow it might be your major daily.

The Field of Pray

By Shawn Healy

The Supreme Court declined to revisit a Third District Court of Appeals decision upholding a New Jersey school district's ban on employees joining student-led prayers. For the time being at least, the precedent will stand in a district that encompasses the Mid-Atlantic region. It is consistent with earlier rulings striking down school-sponsored prayers in Engel v. Vitale (1962) and student-driven prayer read over loud speakers at high school football games in Sante Fe Independent School District v. Doe (2000).

In Engel, the Court declared the daily, voluntary recitation of the New York Regent's Prayer, which reads as follows, "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country," in violation of the First Amendment's Establishment Clause. The 6-1 decision looked beyond the non-denominational nature of the prayer and its voluntary recitation, given that it was officially endorsed by a governmental entity.

In Sante Fe, a Texas school district's policy that allowed students to elect a chaplain and also to decide whether or not a non-denominational prayer was recited prior to high school football games over the public address system was nullified. The fact that the government was an actor in terms of the organization, venue, and sponsorship proved its fatal flaw according to the 6-3 majority.

Yesterday's denial leaves us without an underlying rationale, but we might assume that the aforementioned precedents speak for themselves. The plaintiff, former football coach Marcus Borden, used to bow his head and kneel while his team prayed before it took the field. Given that he was a paid employee of a school district using taxpayer dollars, he is a governmental representative and thus provided legitimacy to student-led prayer.

I must confess that during my former life as a high school basketball coach that I encountered similar circumstances, but was not as well-versed in First Amendment jurisprudence as I am now. While my team initiated a prayer on the way out of the locker room prior to each game, I lingered on the side until they were finished, neither encouraging or discouraging their actions. I am a man of faith and as a player participated in such rituals, but a gray area emerged with my new duties as a coach, and I decided to error on the side of caution.

Call it blind luck or skilled prognostication, but nearly a decade later I stand on the side of settled law.

A Well-Regulated Militia

By Shawn Healy

Saul Cornell immerses himself in the contemporary debate over gun control by rooting it in American history in his 2006 book titled A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. Although written in advance of the landmark 2008 decision District of Columbia v. Heller, when the Supreme Court addressed the parameters of the Second Amendment for the first time since 1939, it is nonetheless helpful in framing the debates that emerged in the majority and dissenting opinions between Justices Scalia, Stevens, and Breyer.

The contemporary controversy poses two distinct views of the Second Amendment against one another. The first, and a conception arguably in place since at least the 1939 U.S. v. Miller decision, centers on the collective right to “keep and bear arms” conditional upon membership in state militias. In other words, the preamble to the Second Amendment, which reads “A well-regulated militia being necessary to the security of a free state,” dictates the extent of the second, operative clause, “the right of the people to keep and bear arms, shall not be infringed.” This does not preclude an individual right to gun ownership and possession, but lowers it to matters of statutory concern, therefore enabling even severe restrictions to stand.

The second interpretation, known as the individual rights view or the “standard model,” acknowledges the historic meaning of the preamble, but suggests that it does not limit the explicit language of the operative clause. In their eyes, local, state, and federal regulations which deny gun ownership and possession to law-abiding Americans are flatly unconstitutional. This is the interpretation embraced by the majority of the Supreme Court in Heller, while those in the dissent clung to a collective rights view. In Cornell’s view, both are wrong.

The Second Amendment was one of twelve to emerge as a byproduct of the state ratifying conventions surrounding the adoption of the U.S. Constitution. Anti-federalists who opposed the tendency toward a strong central government attached a plethora of reservations to the document, among them the fear of a standing army in the aftermath of the British occupation that prefaced the Revolutionary War. Article I, Section 8, Clause 16, gave Congress the power to “…provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”

Emerging from an era when militias were organized by states, and a permanent national standing army did not exist, one can see the cause for concern that this provision raised amongst skeptics of the new Constitution. An army immune from the control of individual states could run rampant over their rights and rule as a despot. The Second Amendment was thus an effort to assuage their fears and restore the balance of power between the federal and state governments.

While Cornell acknowledges the advocates for inclusion of an individual right to gun ownership separate from militia membership, including Thomas Jefferson, these voices were cast aside, as the matter was assumed to be a province of common law, and gun control regulations are as old as the nation; indeed, some reach back further to the colonial era.

James Madison, the principal author of what came to be known as the Bill of Rights, including the Second Amendment, pushed for a conscientious objector clause to address the concerns of pacifist Quakers that they would not be forced into military service. It was excluded in the final version, but it does speak to the original conception of the amendment, Cornell argues. In the author’s eyes, it establishes neither a collective nor an individual right, but a civic responsibility to take up arms in defense of the nation from threats near and far.

Before the ink was dry on the document, debates over its meaning ensued, most tied to a states right’s conception of the Second Amendment. Its proponents suggested that citizens of a given state could take up arms to protest what they deemed tyranny from above. Shay’s Rebellion, which served as an impetus for the Constitutional Convention, was laden with this logic, and the Whiskey Rebellion that followed during Washington’s first term continued this legacy. Indeed, the Nullification Crisis of the Jackson era invoked similar terms, and this tussle between a civic and states rights interpretation of the Second Amendment were not put to rest until the conclusion of the Civil War.

Its aftermath provided a glimpse of the modern conceptual standoff as recently-freed slaves in the South took up arms in self-defense against the acts of terror perpetuated by the Ku Klux Klan. Despite the barbaric actions of the latter group, “freedmen” lost nearly every legal battle on this front, as the states rights conception of the Second Amendment held its ground.

At the time, the Supreme Court refused to incorporate the Second Amendment to state and local laws via the Fourteenth, and this holds true through this very day as future Courts selectively incorporated other portions of the Bill of Rights. In the years that followed, the even more restrictive collective rights view surfaced in the pages of the Harvard Law Review. Cornell argues that it was the civic model that the Supreme Court reinforced in its 1939 decision upholding the constitutionality of the National Firearms Act of 1934 in U.S. v. Miller, yet the collective rights view took hold among legal theorists and continued to hold sway until recent years.

The individual rights theory has been propagated by the National Rifle Association with great success on the legislative front, but fewer triumphs in the courts. Its adoption by contrarian scholars resulted in what the author terms “revisionism” and ultimately emerged as the mainstream or “standard model” of understanding the Second Amendment. The 5-4 majority in Heller clearly adhere to its central tenets, and therefore invite the Second Amendment’s incorporation and potential challenges to state and local gun laws in the aftermath.

Although Cornell resides firmly in the pro-gun control camp, his book offers a balanced view of the history surrounding this most controversial amendment. However, he leaves us with few solutions of how to proceed given that state militias are a thing of the past with the emergence of the National Guard in its place. A return to a civic conception of the Second Amendment is therefore impractical, and if we adhere to Cornell’s original understanding of its text, state and local statutes seemingly hold unbridled sway owner the extent of individual firearms ownership in America.

Perhaps Justice Scalia offered us a middle ground in his majority opinion last summer by recognizing an individual right to gun ownership, but allowing “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Regardless, on the heels of this landmark decision, Cornell provides us with excellent scholarship to question the claims of both Scalia and the dissenting bloc of the modern Supreme Court, not to mention the separate camps in this perpetual culture war.