2nd Amendment

[Annie]

http://volokh.com/archives/archive_2006_02_26-2006_03_04.shtml#1141082874

Monday, February 27, 2006
[David Kopel, February 27, 2006 at 8:06pm] 0 Trackbacks / Possibly More Trackbacks
Legal Status of Israel's Border and its Defensive Barrier:

Below is a list of statements of law and fact regarding Israel's border, and its right under international law to build a defensive wall. I invite commenters to advance the discussion on these issues in terms of international law. I don't claim to be an expert on the issues of international law raised below, so comments from readers with expertise would be particularly welcome. Please do not use the comments to re-argue general issues about Zionism etc.

1. In November 1947, the United Nations partitioned the British mandate of Palestine. The partition gave the Jews only territories which were already owned by Jews, or which belonged to the British crown.

2. Many Palestinians began a war against Israel as soon as the partition was announced.

3. In May 1948, Israel declared its independence. In response, five Arabs nations immediately declared war on Israel.

4. In 1949, Israel and Jordan signed an armistice which specifically stated that the armistice lines were "without prejudice to future territorial settlements or boundary lines." Jordanian-Israeli General Armistice Agreement, April 3, 1949, Art. VI, sect. 9.

5. In 1967 Israel was attacked by Jordan, which at the time ruled the West Bank and East Jerusalem. Israel had no obligation, under international to vacate any territories until its foes entered into a meaningful peace agreement.

6. Later in 1967, the United Nations Security Council adopted Resolution 242, Notably, the resolution calls for Israel to withdraw from "territories" (not "all territories" or "the territories") as part of a peace agreement by which Arab states would end their belligerence against Israel. Today, most Arab states remain in a declared state of war against Israel.

7. Having acquired the West Bank in a defensive war, Israel later began building settlements on the West Bank. The settlements were built solely on land belonging to the Jordanian government, and not land belonging to individual Arab owners.

8. As a general rule, international law forbids the permanent annexation of territory, even after a defensive war. However, Israel's settlements did not violate this rule, because they were built in areas where no internationally-agreed international border existed. (See points 4 and 6).

9. Later, Jordan signed a peace treaty with Israel, and renounced all claims to the West Bank and East Jerusalem. Jordan's renunciation of the West Bank necessarily included a renunciation of all claim to West Bank land which had been owned by the Jordanian government. The renunciation therefore perfected Israel's legal ownership of the former Jordanian government lands in the West Bank.

10. Even if the last sentence of point 9 is incorrect, a nation has no obligation under international law to surrender control of territory to an entity which is in a state of war with the nation. The constitution of the PLO and the Hamas charter both explicitly call for the destruction of the state of Israel. Accordingly, Israel has no international law obligation to give any territory to a government controlled by the PLO or Hamas. (Had the PLO followed through on its promises in the Oslo Accords, and actually ended its war against Israel, the legal situation might be different.)

11. Under international law, including the Fourth Geneva Convention, nations may build defensive structures in enemy territory which the nation has captured. The defensive structures may be maintained as long as the enemy remains in a state of belligerence.

12. Israel's right to build a defensive barrier in the West Bank is clear under item 11, since the wall is being constructed while the enemy (PLO/Hamas) is in a declared and actual state of war against Israel. (A temporary truce, subject to unilateral revocation, does not end a state of war.)

13. Israel's right to build the barrier is even stronger under international law, since (pursuant to points 4 and 6 above), the barrier does not extend beyond a legal international border, because the 1949-67 armistice line is not a legal border.

14. International law forbids the permanent annexation of enemy territory, but this point is irrelevant to the defensive barrier, for the reasons listed in items 4, 6, and 13.

15. If and only if the 1949-67 armistice line were a legal border, then Israel's construction of the barrier would be illegal under international law if the purpose of the barrier were for annexation. The barrier would not be illegal if the purpose were for defense (item 11).

16. The Israeli Supreme Court ruled that the barrier is primarily for defense, and accordingly, legal. The International Court of Justice--in a purely advisory and non-binding opinion--stated that the barrier is for annexation, and therefore illegal. The ICJ opinion was defective as a matter of law because it did not properly consider Israel's defensive rights under the laws of war, nor did the opinion acknowledge the legal implications of Security Council 242, which refutes the notion that the 1949-67 armistice line is a permanent, legal international border.

Again, I'm not claiming expertise on the subject-matter of this post, and one major purpose of this post is find out if there are any flaws with the above reasoning, in terms of international law. In your comments, please focus on international law; this means, inter alia, don't waste time by citing UN General Assembly resolutions, statements by diplomats, or other sources which (while important from a policy sense) do not have the authority to create binding international law. Please focus on clear, relevant international law, such as treaties which have been ratified by Israel, or Security Council resolutions.
15 Comments
[Eugene Volokh, February 27, 2006 at 7:55pm] 0 Trackbacks / Possibly More

 

[Gunny]

Odd, I must have missed UltimoTroll David2004's rebuttal.

 

[Annie]

Odd, I must have missed UltimoTroll David2004's rebuttal.

Damn, I posted the wrong entry!

http://volokh.com/archives/archive_2006_02_26-2006_03_04.shtml#1141082874

[Eugene Volokh, February 27, 2006 at 6:27pm] 0 Trackbacks / Possibly More Trackbacks
State Constitutional Right to Bear Arms Opinion:

The Kentucky Constitution states,

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ...

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

Kentucky courts have rightly read this as protecting people's rights to have guns for their own self-defense ("in defense of themselves") and not just for the common defense. Does this, though, apply to convicted felons? Last Thursday's Kentucky Supreme Court decision in Posey v. State answers "no," but in much more detail than all the other state court decisions that have likewise held that felons are implicitly excluded from state constitutional rights to bear arms. There's even one dissenter, who would hold that some felons (though probably not those convicted of the more serious felonies) do have a right to bear arms under the Kentucky Constitution. If you're interested in either the right to bear arms or the broader question of how courts should interpret Bill of Rights provisions, these opinions are much worth reading.

 

[Gunny]

Damn, I posted the wrong entry!

http://volokh.com/archives/archive_2006_02_26-2006_03_04.shtml#1141082874

Many states do not allow convicted felons to own or otherwise posess firearms. Some I know used to not let them vote. Not sure how current that is.

W "say" once a convicted person has served his sentence he/she is forgiven, but I think more often than not the stigma stays with them for the rest of their lives.

Does a completed prison sentence sufficiently answer to being accountable for one's actions? I say it depends on the crime, but the politically correct will have NONE of that type of dsicriminatory review.

 

[Annie]

Many states do not allow convicted felons to own or otherwise posess firearms. Some I know used to not let them vote. Not sure how current that is.

W "say" once a convicted person has served his sentence he/she is forgiven, but I think more often than not the stigma stays with them for the rest of their lives.

Does a completed prison sentence sufficiently answer to being accountable for one's actions? I say it depends on the crime, but the politically correct will have NONE of that type of dsicriminatory review.

Hell, I don't want them able to vote, much less have legal access to arms. :firing:

 

[5stringJeff]

At some point, especially if convicted of a non-violent felony, one should be able to regain their rights to vote and to bear arms.

 

[insein]

Im suprised at you Kathy. When a person has served their debt to society, they should regain all their rights that they held before their conviction. They did the crime. They paid their punishment. They should be able to rejoin society.

One thing i thought about while the whole allowing felons to vote thing came during the election about was, why shouldnt they be able to vote? They are still citizens of this country. They have the right to decide who the leaders are. They pay taxes from prison so they should be able to vote.

It looks like a clever way for politicians back then to eliminate those that they didnt want voting by creating the "No felon can vote" law then passing numerous Felonies for not paying child support, drunk driving, etc. This way they could easily remove those people that they didnt want effecting the vote through petty felonies. Its scary how manipulative our government has been for at least a century when you think about it.

 

[Annie]

Im suprised at you Kathy. When a person has served their debt to society, they should regain all their rights that they held before their conviction. They did the crime. They paid their punishment. They should be able to rejoin society.

One thing i thought about while the whole allowing felons to vote thing came during the election about was, why shouldnt they be able to vote? They are still citizens of this country. They have the right to decide who the leaders are. They pay taxes from prison so they should be able to vote.

It looks like a clever way for politicians back then to eliminate those that they didnt want voting by creating the "No felon can vote" law then passing numerous Felonies for not paying child support, drunk driving, etc. This way they could easily remove those people that they didnt want effecting the vote through petty felonies. Its scary how manipulative our government has been for at least a century when you think about it.

Sorry, I disagree. Those that are convicted of serious crimes, whether or not they serve time, have given up the priviledge of voting as well as gun ownership. It's all about choice. Just like being convicted of sexual crime can put quite a limit on where you live and where you work.

 

[theHawk]

When a person has served their debt to society, they should regain all their rights that they held before their conviction. They did the crime. They paid their punishment. They should be able to rejoin society.

I disagree. To what point have they "paid there debt to society"? Just because a person is convicted and serves a set amount of time behind bars, doesn't mean that all should be swept away under the rug so to speak. There are many crimes in which it may not be prudent to keep someone behind bars their whole life (or at all), but it would be prudent to keep "an eye" on them for the rest of their lives. Who is to say someone has or has not finished paying his "debt" to society? We are. "We" as in those who have not broken the law and have the right to vote about such issues. Letting people out of jail and denying them certain rights is a perfectly good compromise. I do not define "paying a debt to society" by a set amount of time spend in a jail. In fact I don't even believe in the term "paying a debt to society". If somebody in my community is convicted of a crime, I don't need or want him to "pay" anything to society whether it be money, time or his life. I want that person WATCHED, whether it be 5 months probation or 25 years behind bars, to ensure he does not commit more crimes...until it can be reasonably assumed he will NOT commit such crimes again. Do you think child molesters should have a set amount of time in jail and then when they get out, all their rights are given back? Of course not, such people need to be watched for their entire lives...even after their jail time. And do you not see the danger in giving political power to convicts? Our politicans would be making promises to them(such as promising shorter sentences)! That would lead us to a very dark place...

 

[theHawk]

Kath be sure to post that Isreali border article in the other section its a good one ^^

 

[5stringJeff]

I disagree. To what point have they "paid there debt to society"? Just because a person is convicted and serves a set amount of time behind bars, doesn't mean that all should be swept away under the rug so to speak. There are many crimes in which it may not be prudent to keep someone behind bars their whole life (or at all), but it would be prudent to keep "an eye" on them for the rest of their lives. Who is to say someone has or has not finished paying his "debt" to society? We are. "We" as in those who have not broken the law and have the right to vote about such issues. Letting people out of jail and denying them certain rights is a perfectly good compromise. I do not define "paying a debt to society" by a set amount of time spend in a jail. In fact I don't even believe in the term "paying a debt to society". If somebody in my community is convicted of a crime, I don't need or want him to "pay" anything to society whether it be money, time or his life. I want that person WATCHED, whether it be 5 months probation or 25 years behind bars, to ensure he does not commit more crimes...until it can be reasonably assumed he will NOT commit such crimes again. Do you think child molesters should have a set amount of time in jail and then when they get out, all their rights are given back? Of course not, such people need to be watched for their entire lives...even after their jail time. And do you not see the danger in giving political power to convicts? Our politicans would be making promises to them(such as promising shorter sentences)! That would lead us to a very dark place...

I disagree with this.

When we (as a society, through our judicial system) sentence someone to prison, we are taking away all of their freedoms. But eventually, most people finish their prison sentences and go back to living their lives, with all the freedoms afforded to them under the Constitution (like freedom of speech, religion, assembly, etc.). One of those rights is voting, and felons should be allowed to reestablish their rights to vote. Another is the right to bear arms, and non-violent felons should be allowed to reapply for their right to bear arms.

And the scenario of politicians promising shorter sentences if felons, out of prison, were allowed to vote, is ridiculous. First off, the ex-felon voting block would be too small to have any impact, and secondly, there are too many people who want larger sentences for felonies who would outweigh any effect the ex-felon voters would have.

 

[theHawk]

I disagree with this.

When we (as a society, through our judicial system) sentence someone to prison, we are taking away all of their freedoms. But eventually, most people finish their prison sentences and go back to living their lives, with all the freedoms afforded to them under the Constitution (like freedom of speech, religion, assembly, etc.). One of those rights is voting, and felons should be allowed to reestablish their rights to vote. Another is the right to bear arms, and non-violent felons should be allowed to reapply for their right to bear arms.

Maybe, for some non-violent felons yes I agree.

And the scenario of politicians promising shorter sentences if felons, out of prison, were allowed to vote, is ridiculous. First off, the ex-felon voting block would be too small to have any impact, and secondly, there are too many people who want larger sentences for felonies who would outweigh any effect the ex-felon voters would have.

More rediculous things have happened before in the world of politics. And I wouldn't put it past liberals to cowtow to them in order to get their votes. Of course they're not going to come out and say stuff like that, but promise to "end persecution against minorities" or some crap. Point is politicians are held accountable to the people they have to answer to. They should not be held accountable to convicted felons, whether or not they are out of jail. If people don't like having their voting rights taken away, how about not commiting a fucking felony? Its really not that hard!

 

[Hobbit]

As a good friend of a convicted felon, I must say that I don't think I want him voting or owning a gun. Maybe, for certain felonies, a person could get their full right reinstated, but not without a full evaluation and a board of review at least 5 years after they get out of prison. They'd have the burden of proof, too. It would have to be up to them to prove that they should be trusted with those rights again. If you abuse your rights, they're taken away, plain and simple.

 

[5stringJeff]

Maybe, for some non-violent felons yes I agree.

Which non-violent felons, having served their jail time, probation, etc., would you not allow to vote or bear arms?

More rediculous things have happened before in the world of politics. And I wouldn't put it past liberals to cowtow to them in order to get their votes. Of course they're not going to come out and say stuff like that, but promise to "end persecution against minorities" or some crap. Point is politicians are held accountable to the people they have to answer to. They should not be held accountable to convicted felons, whether or not they are out of jail. If people don't like having their voting rights taken away, how about not commiting a fucking felony? Its really not that hard!

Hey, I'll be the first one to line up for tough sentences against criminals. I just testified in a court case where someone used my stolen pistol in an attempted murder. The guy was found guilty of 5 different felonies (including assault, burglary, robbery, and unlawful possession of a stolen firearm). I hope he gets the max sentence (which I believe is 52 years). He's an example of a violent felon who should not have his rights restored. But there are many non-violent felonies, such as fraud, which do not justify keeping someone's rights from them after they have completed their punishment, to include jail terms, probation, fines, etc.

 

[theHawk]

Which non-violent felons, having served their jail time, probation, etc., would you not allow to vote or bear arms?



Hey, I'll be the first one to line up for tough sentences against criminals. I just testified in a court case where someone used my stolen pistol in an attempted murder. The guy was found guilty of 5 different felonies (including assault, burglary, robbery, and unlawful possession of a stolen firearm). I hope he gets the max sentence (which I believe is 52 years). He's an example of a violent felon who should not have his rights restored. But there are many non-violent felonies, such as fraud, which do not justify keeping someone's rights from them after they have completed their punishment, to include jail terms, probation, fines, etc.

I'm not familiar with what every single non-voilent felony is so I won't say I'm against all of them getting their rights back. But at this point, I still have zero sympathy for anyone commiting a felony, even if its "non-violent". Maybe its because I could never even think about doing such a crime. It takes a dispicable human being to steal from someone, even if its "just on paper" or over the computer. You really have to go out of your way to lie and cheat people. I have Zero interest in those kinds of people having the right to own firearms or to vote....until I hear of a case that makes me feel otherwise.

 

[5stringJeff]

I'm not familiar with what every single non-voilent felony is so I won't say I'm against all of them getting their rights back. But at this point, I still have zero sympathy for anyone commiting a felony, even if its "non-violent". Maybe its because I could never even think about doing such a crime. It takes a dispicable human being to steal from someone, even if its "just on paper" or over the computer. You really have to go out of your way to lie and cheat people. I have Zero interest in those kinds of people having the right to own firearms or to vote....until I hear of a case that makes me feel otherwise.

Again, I'm all for punishing crime, just as you are. But once someone serves their sentence, they should be able to get their voting rights back and, if a non-violent felon, their right to bear arms.

 

[insein]

As a society we determine the length of punishment for a crime. How can we function as a society if we say "Well that wasnt long enough for you, You're punished longer." Its discriminatory against citizens of this nation.

We determine that a crime has a certain punishment. Once the punishment is completed, the felons rights should be restored. If the felon commits another crime, they again have a punishment and again lose their rights. The system is in place. We cant be selective or preventitive because then you have abuse of power. If a convicted felon has the threat of more jail time over their heads for so much as jaywalking, then an official with an agenda can and does use that power to put a felon back in prison. We have probation. That is also used as part of the punishment. If they can behave well enough, they regain some rights. IF they screw up while on probation, they are punished longer. But if a felon completes their sentence to the fullest, they should be able to rejoin soceity with no stigmas attached.

Part of the problem with ex-cons is that they are labeled as such. They cant get a job anywhere because of their history and thus they resort to the old behaviors that got them where they were in the first place. If a person has truly changed, then allow them to get a job, contribute to society and move on with their life. Stop punishing them after they have done their time.

When it comes down to it, its just another way for people to tell other people what to do.