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In a brief filed in connection with an appeal to the Supreme Court in a
gun possession case, the Bush Justice Department, breaking with sixty
years of jurisprudence, asserts that individuals have a constitutionally
protected right to own firearms. Seeking to quiet ghosts of gun debates
past as the November elections approach, the Administration tries to
reassure us that this proposed sea change in American law would, if
realized, leave law enforcement and gun laws unaffected. But in doing
so, it elevates sophistry and doublespeak to a new art form.

In the case in question, a lower court held that a provision of the 1994
amendment to the gun control act prohibited one Timothy Emerson from
possessing a Beretta pistol, since he was under a domestic-violence
restraining order obtained by his wife. Even after a court issued the
restraining order, Emerson used the pistol to threaten his wife and
daughter as they entered his office to retrieve the daughter's shoes. In
his appeal, Emerson claimed that the restriction abridged his Second
Amendment rights. The Justice Department, in its brief to the High
Court, departed from its historical position and agreed that Emerson did
possess an individualized Second Amendment right. But in a legal
high-wire act, it argued that this right was nonetheless trumped by his
misconduct and that, therefore, the indictment should stand.

Gun control advocates criticized the inclusion of the constitutional
assertion in the department's brief as gratuitous. But on this they miss
the point. The real goal of Justice's new strategy is not to throw a
bone to the gun lobby but to mount a backdoor attack on the very
legitimacy of gun laws it doesn't like but doesn't have the guts, in the
current political climate, to try to repeal legislatively. For as the
Administration knows, elevating gun rights into the rarefied sphere of
constitutional rights would create new, perhaps insurmountable, legal
hurdles for existing gun violence statutes.

Individual rights, such as freedom of speech and religion, to which the
Attorney General claims gun rights are analogous, occupy a unique area
of American law. The Court has repeatedly held that legislative
encroachments in these areas are presumptively invalid unless narrowly
tailored to meet compelling government interests. On this basis, the
Court has invalidated laws in the areas of affirmative action, free
exercise of religion and freedom of speech. Recently, in Ashcroft v.
Free Speech Coalition
, it held that a law prohibiting virtual child
pornography was too broadly drafted, and the putative harm it sought to
prevent too speculative to pass constitutional muster. Were the Court to
embrace the Bush view on the Second Amendment, the likely result would
be to invalidate many federal and state gun laws, like the popular Brady
law and the ban on assault weapons.

In passing the 1993 Brady Act, which is applied to the general
population to screen out felons and other miscreants from buying
firearms, the House and Senate judiciary committees did not consciously
undertake the exactingly narrow drafting requirements necessary to
overcome the constitutional hurdles placed on such rights as speech or
religion. Rather, they acted under the authority of the Constitution's
commerce clause, which gives Congress broad legislative discretion. And
while Justice's brief, arguing that the prohibition on gun possession by
those with domestic-violence restraining orders could pass the "narrow
tailoring" constitutional test it seeks generally for gun laws, may be
correct, it is unclear, even improbable, that the broader purpose of
laws like the Brady Act (background checks for everyone) could survive
the test.

Similarly, because the ban on military-style assault weapons, intended
to remove the tools of many gang-type street massacres, was broadly
drafted to apply to everyone, that law could be invalidated on the
grounds that it is not sufficiently tailored to prohibit access by those
with criminal records. So, too, could scores of state and local laws,
such as the ban on handgun possession in the District of Columbia. The
new proposal by Senators John McCain and Joseph Lieberman to apply
background checks at gun shows could also be constitutionally dead on
arrival should the Administration view of gun rights become law.

Indeed, this is not the first time since September 11 that the Attorney
General has catered to gun owners. In October, responding to gun lobby
paranoia about gun registries, he refused to give the FBI access to
records that could help it determine if post-September 11 detainees had attempted to purchase weapons.

Each year we lose roughly 28,000 people at the wrong end of a gun
barrel, nearly ten times the number of people who perished on September
11. As the Violence Policy Center has documented, Al Qaeda terrorist
training manuals note the ease with which one can obtain firearms in the
United States--like the .50-caliber rifles that can with precision blow
a nine-inch hole in a concrete wall from 100 yards. At a minimum,
criminals and terrorists will benefit from new defenses that gun
prosecutions violate constitutional rights as envisioned by the Bush
Justice Department. Prior to his plea agreement, attorneys for the
so-called American Taliban, John Walker Lindh, had already indicated his
intention to invoke such a defense on his behalf.

If, when the Attorney General is proclaiming about the need to restrict
Americans' civil liberties, he seeks to expand constitutional liberties
for gun owners, he should at least be straight with the American people
about the likely legal consequences and what it could mean for safety on
our streets.

It used to be a matter of flashing a badge and appealing to patriotism,
but these days federal agents are finding it a little harder to get
librarians to spy. Under an obscure provision of the USA Patriot Act,
federal agents can obtain a warrant to acquire information about library
users. According to a recent survey, agents have been showing up at libraries--a lot--asking librarians for reading
records. Nearly everything about the procedure--from the granting of the
warrants to the search itself--is secret (as an excellent story in the
San Francisco Chronicle pointed out recently). But, unlike in the
cold war years, when the FBI last tried to conduct such library
surveillance, this time around, top librarians are on the warpath to
protect reader privacy. And Congress wants Attorney General John
Ashcroft to account for his agents' library conduct.

It wasn't like this back in George W.'s daddy's day.

Between 1973 and the late 1980s, the FBI operated a secret
counterintelligence operation called the Library Awareness Program. Back
then the Feds were particularly concerned about what Soviet bloc
citizens were reading in the nation's premier science libraries. In the
words of Herbert Foerstel, a science librarian in those years, "Agents
would approach clerical staff at public and university libraries, flash
a badge and appeal to their patriotism in preventing the spread of
'sensitive but unclassified' information."

Today, with Section 215 of the USA Patriot Act in hand, law enforcement
agents are at it again. This time, the stated purpose is to gather
information on people the government suspects of having ties to
terrorists or plotting an attack. The act makes it hard to track just
what's going on. Anyone who receives an FBI request is prohibited, under
threat of prosecution, from revealing the FBI visit to anyone, even to
the patron whose records are subject to search.

On April 3 I interviewed Deborah Caldwell-Stone, deputy director of the
American Library Association's Office for Intellectual Freedom, on
Working Assets Radio, and the interview illustrated the problem. To
paraphrase: Flanders: "How many libraries have received information
requests from the FBI?" Stone: "They are not allowed to tell us, and we
are not allowed to say."

But in February one enterprising library sciences professor sent a
survey to 1,503 libraries around the country. Dr. Leigh Estabrook asked
librarians for answers to a set of questions, to which they did not have
to append their name. According to Estabrook's raw data, presented this
spring at a Public Library Association conference, eighty-five of the
libraries surveyed report that authorities (for example, FBI or police)
requested information about their patrons pursuant to the events of
September 11. More worrisome, about one-fifth of the libraries said
staff had changed their attitude toward or treatment of users in some
way. More than 10 percent (118) reported that they had become more
restrictive of Internet use. Seventy-seven said they had monitored what
patrons were doing.

Librarians on the alert aren't necessarily a bad thing. In Florida, an
attentive Delray Beach librarian reported the use of her library by a
group of Middle Eastern men, and they turned out to have connections to
the attacks of 9/11.

But some of this monitoring may be illegal. Since the abuses of the cold
war, almost every state has passed confidentiality laws to protect the
privacy of personal records. Since passage of the USA Patriot Act, the
American Library Association has been busy reminding librarians of their
abilities to question things like federal search warrants and advising
them of the best practices to undertake to protect confidentiality of
patrons and themselves. In January, the ALA released a set of guidelines
to inform librarians of what search warrants were, what subpoenas were
and how they could react if in fact they were presented with such
documents. Then in June, the ALA's governing council passed a resolution
publicly affirming the privacy rights of patrons and implicitly
instructing library staff to do all they can to protect their clients'

"Privacy is essential to the exercise of free speech, free thought and
free association," says the ALA council statement, in part. It wouldn't
be a bad idea for librarians to post the statement in the stacks.
Concerned library readers should also know that one sure-fire way to
keep your reading records private is to take back your borrowed books on
time. The ALA's Stone told Working Assets Radio that the circulation
software most libraries use today automatically erases a reader's
borrowing record once a book is returned and all fines are paid.

Congress is getting interested as well. On June 13 a bipartisan
committee sent a twelve-page letter to John Ashcroft demanding details
on the implementation of the USA Patriot Act. Representative James
Sensenbrenner, Republican of Wisconsin, the staunch conservative chair
of the House Judiciary Committee, and Michigan Democrat John Conyers,
the progressive, ranking Democrat, want to know, among other things,
just how many subpoenas the Justice Department has issued to libraries,
bookstores and newspapers under Section 215 and what safeguards are in
place to prevent abuse. The letter asked for written answers by July 9,
which at presstime had yet to be received; then Sensenbrenner and
Conyers plan to hold hearings on the response. Are G-men harassing your
librarian? The hearings should make for good, hot summer viewing on
C-Span. Meanwhile, library staff are under a lot of pressure--why not
drop by or write to your librarian and send a message of support?

On its anniversary, two of its authors assess its relevance for today.

At the fourteenth international AIDS conference, the gulf between the
United States and the rest of the world widened as US officials touted
policies that world health experts agree are ineffective strategies for
stemming the pandemic. Without stepped-up prevention efforts, 45 million
more people will become infected with HIV by 2010, according to the
Global HIV Prevention Working Group. Yet 29 million of these people
would never contract the virus if leaders ratcheted up preventive
strategies--most crucially teaching the use of condoms.

In European countries, including the Netherlands and Sweden, the
promotion of a variety of safe sex practices--abstinence, monogamy and
condom use--has reduced teen pregnancies and sexually transmitted
diseases. In Senegal and Uganda, it has cut the rate of new HIV
infections in half. In all these countries and in others, national
governments have supported such programs both rhetorically and

The White House, however, wants to expand programs enacted under the
Clinton Administration that tie federal funding of sex education to the
promotion of abstinence-only curriculums. While the vast majority of US
schools provide information about what HIV is and how it is transmitted,
less than half give students information about what condoms are or how
to use them, according to Centers for Disease Control surveys.

In a speech drowned out by angry protesters in Barcelona, US Secretary
of Health and Human Services Tommy Thompson touted the Administration's
$500 million drug initiative to prevent babies in Africa and the
Caribbean from becoming infected with HIV during birth or through
breastfeeding. He seemed confused when reporters later suggested that
preventing women, girls and their partners from becoming infected in the
first place might be a more productive strategy.

The evidence is clear: Campaigns that rely only on abstinence and drugs
to protect babies from AIDS won't slow the world pandemic. HIV
prevention does work when it is part of reproductive health programs
that recognize that sex is an integral component of human behavior.

"How do you feel, being there?" my friend asked on the phone from
America. I thought a minute, looking out of my Haifa hotel window at the
moon rising over the sea. "Relaxed. I feel relaxed." This seemed to my
friend an improbable way to feel in Israel on May 28, 2002. And in one
sense, it obviously was. Many people urged me not to go--some out of
fear for my safety, some with a moralistic doubt as to whether I should
accept an honor associated with the state of Israel (an honorary degree
from the University of Haifa). About the first, I felt probably I was as
safe in Haifa as in Chicago. About the second, I was determined to
affirm the worth of scholarly cooperation in the face of the ugly
campaign, waged mostly in Europe, to boycott Israeli scholars and refuse
cooperation with them. (The campaign has led to the dismissal of Israeli
scholars from the editorial board of at least one major journal, and to
a general call to boycott Israeli scholars in publications and
conference invitations.) I was also planning to deliver a speech, with
the advance approval of the rector, that said the things I wanted to say
about the situation, in a polite, detached, but unequivocal way.

But relaxed, certainly, is not how I had expected to feel. On my one
previous trip to Israel, in the relatively good times of December 1995,
I had felt edgy all the time, skeptical as I am about muscular Zionism.
I converted to Judaism at the age of 21, and I felt then, as I do now,
that Judaism is above all a moral identity, connected to the love of
justice. I felt that I was dedicating myself to a program of moral
action aimed at realizing justice in the here-and-now rather than in
some dim Christian afterlife--that, as Moses Mendelssohn once wrote,
"The highest stage of wisdom is incontrovertibly doing that which is
good." More viscerally, I felt I was leaving an elitist WASP culture
that cared not one whit for social justice to join a liberal, socially
alert Jewish family that read I.F. Stone and The Nation.

For the sort of Jew I have ever since felt myself to be, Israel was a
source of much embarrassment. Reform Jews traditionally were
anti-Zionist on the ground that Israel is a moral idea, like Kant's
Kingdom of Ends, not a place. And even if the Holocaust has caused
Reform to moderate that position, it still explains a lot of the unease
many of us have with the idea that Jews would attach themselves to a
kind of nationalism that seems in tension, at least, with the
cosmopolitan goals of justice for all that (so I think) ought to be the
goal of a good Jewish life.

But in Haifa I felt relaxed. And the reason was not just the beauty of
the silvery beach, with the large moon above, or the high quality of the
philosophy department and the philosopher-rector, a man whose work on
emotions I have long admired. It was deeper, connected to the
ambivalence I have described. Haifa, and especially its university, were
simply a different Israel from any I had seen, an Israel that still
makes justice and peaceful cooperation its central goals and, to a
surprising degree, realizes those goals. The university enrolls about 20
percent Arab students (Muslim, Christian and Druse), and the faculty,
too, has many Arab members. The first priority of the philosophy
department, I was told, was to raise funds for an endowed chair for an
Arab faculty member to teach Islamic philosophy. We like to see
ourselves as an outpost of peace and reciprocity, people kept telling
me. And the rector, the dean of the law school and the board of
governors, holding their annual meeting the day of the ceremony, made me
feel that my own sentiments about peace and respect for all humanity
were theirs also, and real pragmatic goals of university policy rather
than just slogans. Campus life seemed remarkably peaceful, as Arab and
Jewish students continued to learn side by side and interact without

One great sorrow I heard repeatedly expressed: their feeling that as
Israelis they are being demonized by the world community, and their
efforts toward justice are simply not being recognized, their story not
being told. (Would the American Philosophical Association pass a
resolution opposing intellectual cooperation with Israeli philosophers?
I was asked, as a past president of the association and past chair of
its Committee on International Cooperation. I said I hoped not, and that
I thought it most unlikely, though I know that things are otherwise in

The city, too, seemed bent on something like peace. Its economy is
clearly suffering, and the Druse villages, dependent on tourism, are
particularly hard hit. (I had to get a jeweler's young daughter to go
find him so that he could open his shop--he had gone home because there
were no customers. I concluded that the purchase of a beautiful necklace
was a virtuous deed.) But once again, there is cooperation and even
amity. The Arab-owned restaurant that had been hit by a suicide bomber
has been rebuilt and is ready to reopen. Walkers stroll along the Louis
Promenade with their dogs, as if daily life still brings joy. Flowers
abound in the Bahai gardens below; perhaps Haifa was not such an
unreasonable choice for the worldwide headquarters of a religion
committed to peace and internationalism.

So, relaxed in my moralistic heart, I put on the academic gown for the
ceremony, and I added to it the little silver Star of David from
Tiffany's that a graduating PhD student gave me but that in my
anti-Zionistic frame of mind I never wear. I gave my speech about global
justice and the limits of nationalism, and then I sang "Hatikvah" like
everyone else. And for the first time that sort of speech and that song
did not seem to be so ill suited to each other.

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