Reflections From a Murky Pond

For the first time in the 17 years since President Clinton signed 10 U.S.C. § 654 (Policy Concerning Homosexuality in the Armed Forces), better known as “Don’t Ask, Don’t Tell” (DADT) into law it will be addressed by Congress.

The Senate Armed Services Committee will address the military’s “Don’t Ask, Don’t Tell” policy Tuesday — the first time in 17 years the topic will be debated before a Senate committee.

Secretary of Defense Robert Gates and Chairman of the Joint Chiefs of Staff Michael Mullen are slated to testify on the law, which bans openly gay Americans from serving in the military.

The hearing on “Don’t Ask, Don’t Tell” comes in the wake of Obama’s State of the Union address last week, when he declared his desire to end the policy.

“This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. It’s the right thing to do,” Obama said.

Armed Services Committee Chairman Carl Levin has said repeatedly he “has never supported” the controversial policy, and other senators have expressed their opposition to it as well.

“The military’s ‘Don’t Ask, Don’t Tell’ policy is an unjust, outdated and harmful rule that violates the civil rights of some of our bravest, most heroic men and women,” said Kirsten Gillibrand (D-N.Y.) in a statement. “I’ve been working with my colleagues in Congress and other leaders to overturn this wasteful and destructive policy. I am hopeful that President Obama will make this a top priority.”

Some Republicans, however, question the timing of the administration’s push to lift the ban.

“In the middle of two wars and in the middle of this giant security threat,” House Minority Leader John Boehner (R-Ohio) asked Sunday on NBC’s “Meet the Press,” “why would we want to get into this debate?”

Personally, despite President Obama’s claim of desire to end this policy, I sincerely doubt that anything will come of it. It’s an election year, one that looks to be particularly grimly fought, and Obama no longer has enough political capital to make up for the hit that any incumbent would take for trying to repeal this law.

This is just a stageplay designed to pander to gays and the farther Left of the country and to give the Dems a chance to again paint the GOP as bigoted and obstructive.

To my mind that is a crying shame because Don’t Ask, Don’t Tell should be repealed. It is predicated upon unconstitutional ideas and, as such, should have been struck down by the Courts years ago. Sadly, they have to-date failed to do so, though the SCOTUS has not yet deigned to hear any case regarding it.

From the US Constitution, supposedly the highest law of the land:

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.

— US Constitution, Second Amendment

That the right to “bear arms” was intended by our Founders to mean the right to bear arms in the common defense, i.e., serve in the military forces of America, can be deduced from the concerns over the original 2nd Amendment. The Constitution makes it quite clear that such a right exists for every American and it shall not be infringed.

Nowhere does it say, “except for sodomites,” which would have been the term used at the time.

Furthermore 10 U.S.C. § 311 – Militia: composition and classes states:

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

Yet the 2nd Finding of Congress listed in 10 U.S.C. § 654 flies directly in the face of both the 2nd Amendment and the US law which has formed the underpinning of military service in America since 1792.

(2) There is no constitutional right to serve in the armed forces.

It obvious to me that somebody is a piss-poor student of the law and the Constitution – either myself or various members of Congress and the Courts – because I sure as there’s a Hell can’t reconcile these things. I would that the error was mine but somehow I don’t think it is this time.

This is one of those cases where I’m so far to the Right that I arrive at the same decision as the Left, but for wildly different reasons. It is also a case where I part company from the GOP.

What to me is telling is that the opposition to letting gays openly serve in the military is that gays would harm unit cohesion. That is to say that homosexuals in military units would degrade the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.

Even if true – and I’m unwilling to speculate upon that since I’ve been out of the Service for too long to gauge things accurately – that is an empirical effect, not a proper basis for interpreting the Constitution in a rights restrictive manner. As I have argued before, the US Constitution and the rights it enumerates trump inconvenient or negative effects caused by maintaining the free exercise of those rights.

Is there a Republican or a Conservative of any stripe out there who can explain to me how the actual arguments being used against homosexuals being allowed to exercise their rights serve in our military are categorically different than the arguments used by the Liberals against gun ownership or the recent Citizens United ruling?

Tags: 2nd Amendment | Clinton | Congress | DADT | Gay Rights | Homosexuals | Law | Obama | Politics | Robert Gates | The Constitution | US Military

This entry was posted on Tuesday, February 2nd, 2010 at 3:46 pm and is filed under Politics. You can skip to the end and leave a response. Pinging is currently not allowed.