Archives for February 2013

Auto Safety Concerns Often Stay Secret

USA Today; February 25, 2013

Herman Ray Evans was killed when the tread separated on his 2001 Ford Explorer’s tire, the vehicle rolled over into the median and he was ejected, according to the Daphne, Ala,. police crash report.

Evans was in one of at least 15 fatal tire-related crashes last year in Ford Explorers and Mercury Mountaineers, according to news reports. In Evans’ crash, the police department did not find fault with the tiremaker or Ford Motor.

But from April 2002 through 2009, there were 375 similar deaths in mostly older-model Explorers and Mountaineers — nearly four times the number that led to the Ford/Firestone fiasco in 2000, according to an analysis of federal fatality data by the research firm Quality Control Systems. Still, neither the National Highway Traffic Safety Administration nor Ford Motor recalled the vehicles.

In a statement, Ford said it reviewed this issue with NHTSA and found the Explorer “has no unique tire issues.” Ford says “numerous government safety agencies and independent organizations” have confirmed the Explorer’s safety.

Although Ford is required to tell NHTSA about claims it receives about serious injuries and deaths in its vehicles — and NHTSA can investigate them — information about the probes and many of the injuries and deaths is only available to the public and news media through a Freedom of Information Act request. Even then, manufacturers can request the information they submit to the agency be kept confidential.

That’s in sharp contrast to all the information posted on NHTSA’s website about potential defects, injuries and deaths for the agency’s official safety investigations. But informal investigations — where weeks or months can go by before potential problems are brought to the public’s attention — are becoming more common. And that has ramifications for car buyers, who may not learn the vehicles they own or are considering buying have quietly raised safety concerns at NHTSA and among automakers.

Other examples:

• Hyundai recalled some of its Veracruz and Santa Fe SUVs in August 2011 because their air bags might not inflate in a crash. There was no public investigation or incidents, but in announcing the recall, Hyundai said it had been contacted by NHTSA about its nearly 8,000 warranty claims and 16 consumer complaints.

• Evenflo and NHTSA recalled more than 1 million Discovery child car seats in January 2008. But consumers didn’t know the agency had been testing the seats for nearly a year because of concerns about how the seats fared in crash tests.

• And in November 2011, NHTSA announced it was opening a formal investigation of Chevrolet Volts — although it had been quietly testing Volts for six months after a car caught fire weeks after a crash test. The agency said it didn’t consider that an investigation.

What these federal safety scenarios have in common is that they happened behind the scenes in what President Obama last week called “the most transparent administration in history” — even though questions about its transparency extend far beyond the halls of the U.S. Department of Transportation (DOT).

And they also involve an agency taken to task by Congress and DOT’s Inspector General after the Ford/Firestone and the more recent Toyota sudden-acceleration cases. The issues: How NHTSA conducts its investigations of possible vehicle-related defects and how much information it publicly releases.

“It all goes back to the criticism for years: Where’s the methodology? What are the thresholds? No one knows,” says Sean Kane of Safety Research & Strategies. “It’s a black art over there.”

But NHTSA chief David Strickland disputes charges that his agency’s methods are opaque and says if NHTSA isn’t the most transparent agency in the federal government, it is certainly one of the most open.

“We definitely get information out to the consumer,” he says.

The life cycle of a probe

Federal laws and regulations are both designed to prevent secrecy and written in ways that enable it.

Just what exactly signals the start of a formal public investigation falls into a gray area, both NHTSA critics and supporters agree. And that gives federal investigators considerable leeway when they want to work behind the scenes with the automakers they regulate.

The information that would be available to consumers and safety advocacy groups if early investigatory work were public includes testing, correspondence with manufacturers, injuries and deaths, says Allan Kam, a former NHTSA senior enforcement attorney.

On the other hand, delaying or deciding against starting a formal investigation can save automakers the bad press that comes from public probes — especially if they don’t lead to a recall.

“Maybe the agency and the manufacturer know, but the public doesn’t know and may want to provide input,” Kam says.

NHTSA says the screening work it does to decide whether to open an investigation is sometimes confused with actually being an investigation. A public investigation is only opened when the agency has a reasonable belief a defect may have occurred, NHTSA says.

Strickland says NHTSA is able to do more pre-screening work these days, thanks to new data tools, “better technology and better exchanges with manufacturers.” This non-public phase can last for months, depending on the complexity of the issue.

“Sometimes it’s very fast; sometimes it lasts longer,” he says.

But Kane, whose group does research for lawyers, engineering firms and the government, says he believes NHTSA carries this to an extreme so it can toil out of the harsh glare of public — and consumer advocate — scrutiny.

He calls NHTSA’s work before it opened a formal probe of the Volt a “secret investigation” and questions how the agency could get a recall of the Evenflo car seat after doing the kind of testing usually considered part of a public investigation.

“If they can hide these kinds of investigations, there’s more secrecy and it’s less likely they’re going to be accountable,” Kane says.

To those in industry and government who suggest Kane pushes for public probes so the information is available to lawyers suing automakers, Kane notes, “The litigation isn’t there unless people are killed or seriously injured.”

The budget for NHTSA’s Office of Defects Investigations nearly tripled in 2001, after all the news about Ford and Firestone injuries and deaths. Kane was instrumental in publicizing these issues after he uncovered what he calls a “secret recall” of tires by Firestone in Venezuela in 2000 that was then followed by a U.S. recall. In the past 20 years, the budget for the defects office has quadrupled.

Despite the increase and subsequent outcry over Toyota acceleration issues in 2009, the defects office has opened far fewer public investigations in each of the last three years than it had in nearly any of the previous 25 years.

“It seems logical to conclude that the reason there are fewer investigations is that they are doing more in the pre-investigation phase,” says Kam, who worked in the defects office for 25 years until retiring in 2000.

Strickland says the agency shouldn’t be judged by the number of public investigations it does: “The goal is to get recalls.” In 2012, he notes, NHTSA defect investigations resulted in 134 vehicle recalls involving more than 9 million vehicles. That’s the second highest number of recalls per investigation in the agency’s history, he says.

The agency says it has gotten better at screening for defects, now that it gets what’s known as “early warning reports” from automakers who have had to disclose data including warranty claims and injury and death reports to the agency since the post-Ford/Firestone law known as the TREAD Act. NHTSA also says it combs online car chat rooms and other sources for information.

NHTSA guidelines set timetables for how long each stage of an investigation should take, Kam says. That, he says, encourages the agency “to do more in the pre-investigatory phase because the clock doesn’t start ticking until the investigation is opened.”

Cars, trucks and child seats

These early-warning reports can lead NHTSA to launch a variety of little-known probes, including “Death Incident Inquiries,” “Comprehensive Inquiries” and “Aggregate Inquiries” — all activities that resemble typical investigations but are done out of the public eye.

Advocacy group Public Citizen as well as Quality Control Systems separately sued the Transportation Department to get it to release the death and injury data it gets from automakers, and NHTSA agreed to release this information starting in 2008.

But Randy Whitfield, the statistician who heads Quality Control Systems, says he often has to make a FOIA request to get it.

Clarence Ditlow, who successfully led efforts in the late 1970s to get the informal early stage of defect investigations made public, believes information about NHTSA’s death investigations eventually will become more public, too: “We’ll get there,” he says.

Kam, who now runs a highway-safety consulting firm that does work for companies or attorneys with matters before NHTSA, agrees the death reports should be readily available public information.

But if NHTSA were to do that, “Consumers wouldn’t have any idea what to trust when it comes to the safety of their vehicles. There are fatalities every single hour of every single day,” Strickland says.

To read the complete article, please click here: http://www.usatoday.com/story/money/cars/2013/02/21/nhtsa-cars-defects-investigations-recalls/1919537/

Woman Freed after ’05 Conviction Tossed: ‘Just glad to be Free’

Chicago Tribune; February 25, 2013

Nicole Harris, who has been locked up since the 2005 death of her son, walked out of an Illinois prison today after an appeals court threw out her murder conviction.

Harris emerged from Dwight Correctional Center in front of a gathering of news crews after being reunited with her other son.

“I’m just overwhelmed and I’m thankful that’s it’s going to be over and I just want to be home with my son,” Harris told the assembled media.

“I’m just ready to get on with my life and hold my son.”

The Chicago woman was 23 when a jury found her guilty of killing her 4-year-old son Jaquari in their Northwest Side apartment following her confession to authorities. But Harris has long maintained that her confession was false and the result of threats and manipulation by police.

She said today that she was able to make it through the past seven years knowing that “I’m innocent and the truth will come out.”

“It was like at some point I just knew this isn’t it, that this was not my final destination.”

In a 90-page ruling last October that vacated her conviction, the 7th Circuit U.S. Court of Appeals said there were “many reasons” to question her confession.

The appeal judges also ruled that Diante, then 5, should have been allowed to testify.

Now 14, Diante was the first person to meet Harris when she was released into an outer room of the prison at about 11:30 a.m. today.  Diante walked in bearing a balloon that read, “It’s your Day” and a teddy bear. Harris threw her arms around him, wept softly and kissed him.

When asked later what it was like to see her son at that time, she said, “There are no words.”

At exactly noon, a prison official told Harris she was “free to go.” She clutched hands with a close friend and walked out of the prison. She had been told to get her things together around 8:30 a.m. this morning, she told the media, and said that, at that time, “I was beyond anxious.”

Jaquari had been found dead with an elastic bedsheet cord wrapped around his neck. Diante had told authorities that he was alone with Jaquari when he saw him wrap the cord around his neck while playing.

Prosecutors, who argued that Diante also said he was asleep when Jaquari died, accused Harris of strangling Jaquari with the cord because she was angry he would not stop crying.

Harris’ release, which the state argued against, is not the end of legal battle. The state has appealed the October ruling, asking the U.S. Supreme Court to review the case. In addition, Cook County prosecutors could still move to retry her. A representative from the state’s attorney’s office said no decision on a retrial has been made.

For now, Harris said, “I just want to enjoy life.”

“I’m just glad to be free. I’m just glad to be free.”

http://www.chicagotribune.com/news/local/breaking/chi-woman-freed-after-conviction-tossed-in-05-death-20130225,0,5508782.story

Payback Time for Irish Women Incarcerated in Workhouses

Thomson Reuters; February 21, 2013

For decades, thousands of Irish women were incarcerated in Catholic workhouses where they did the wash for nearby hotels, hospitals and prisons. Now, Ireland’s prime minister says, the country must apologize and compensate the 1,000 survivors of the so-called Magdalene Laundries, the Associated Press reports.

“A government-commissioned report published two weeks ago found that more than 10,000 women were consigned to the laundries after being branded ‘fallen’ women, a euphemism for prostitutes, even though virtually none of them were — instead they were products of poverty, homelessness, and dysfunctional families,” the AP writes.  Many of the women were sent by judges, truancy officers and other state officials. The often spent months or years doing menial labor and received no education. The last such workhouse closed in 1996.

Following the report, Prime Minister Enda Kenny, the leader of the Fine Gael political party, pledged compensation and acknowledged the country’s “cruel, pitiless” treatment of the women.

‘‘The Magdalene women might have been told that they were washing away a wrong, or a sin. But we know now — and to our shame — they were only ever scrubbing away our nation’s shadow,’’ he said. ‘‘I believe I speak for millions of Irish people, all over the world, when I say we put away these women because, for too many years, we put away our conscience.’’

The previous governing party declined to compensate Magdalene survivors on grounds that the laundries were private businesses.

http://newsandinsight.thomsonreuters.com/Legal/News/2013/02_-_February/Summary_Judgments_for_February_21/

Woman Alleges Grandmother Victim of Nursing Home Abuse

NewsInferno; February 19, 2013

We have long written about the growing issue of elder abuse in nursing homes. And, while nursing home abuse makes headlines on an ongoing basis, the headlines this deplorable practice has garnered have not slowed news of elder abuse. Take, for instance, recent news involving a Bronx nursing home accused of abusing a female resident.

With the senior population growing and living longer and with the elderly among our most vulnerable citizens, concern for the care of this country’s seniors is significantly important and relevant. More and more, people are finding themselves faced with the challenging decision of placing older relatives and loved ones in nursing homes.

The woman’s granddaughter says that she believed her grandmother was being abused at the Gold Crest Care Center in the Bronx, New York, said ABC Eyewitness News. She hid a camera in her grandmother’s room to gain a better understanding of what was happening inside the Bronx nursing home after noticing strange marks and bruises on her 89-year-old grandmother’s body.

Diana Valentin said she was shocked at what her hidden camera revealed. Ana Louisa Medina was helpless, unable to defend herself, and being abused by a nurse’s aide at Gold Crest Care Center, said Eyewitness News. Medina suffers from dementia and Alzheimer’s disease. “They were telling me she had gotten the bruising on her hands by banging on the bed railing,” Valentin told Eyewitness News.

It was the lack of response from Gold Crest Care Center that prompted Valentin to conceal a camera within the plastic base of a plant in her grandmother’s room. Valentin said she recorded more than 600 hours of footage. “The first video that I saw, she grabbed my grandmother’s arm, twisted it back, lifted her off the bed and slammed her into the bed,” Valentin told Eyewitness News. The “she” is 55-year-old nurse’s aide, Sandra Kerr. Kerr has since been arrested, was charged with endangering the welfare of a physically disabled person, and was released on her own recognizance. Eyewitness News went to Kerr’s home, but no one was there and has been unable to reach nursing home administrators for comment.

Valentin is not releasing video of the alleged abuse due to pending criminal and civil cases, telling Eyewitness News, “I viewed the video on a Sunday and a Monday morning I was at the nursing home, and I requested that they transfer her to the emergency room because my grandmother was not safe there.” Her grandmother is now being cared for in a nursing home in New Rochelle, New York. “She basically took care of me. I was very close to her, so now it’s my turn to take care of her,” Valentin said, telling Eyewitness News that Gold Crest Care Center fired three other workers due to the investigation.

Sadly, families seeking care of elderly family members are often left with very limited options, a scary prospect in today’s environment in which reports of nursing home abuse are rising. A devastating indignity that attacks these defenseless members of society on all levels abuse encompasses physical, emotional, chemical, financial, medical, and sexual maltreatment. Not just abuse, but also neglect, mocking, and even workers who have abused residents as part of pranks against each other are becoming more and more commonplace.

We have written about a number of nursing home neglect lawsuits that the national law firm, Parker Waichman LLP, has filed against a number of facilities on behalf of residents who have suffered severe, sometimes permanent, injuries. Parker Waichman has long been dedicated to protecting the rights of nursing home abuse and negligence victims and has, among other measures to protect this vulnerable demographic, prepared a number of video blogs, such as this one.

http://www.newsinferno.com/?p=42883

DePuy ASR Hip Recipient Dreaded Surgery, Feared Death

NewsInferno; February 20, 2013

The plaintiff in a lawsuit brought against Johnson & Johnson over its DePuy Orthopaedics ASR metal-on-metal hip devices was questioned about surgery he had to undergo to remove the faulty hip implant. Loren Kransky’s lawsuit is the first of some 10,000 filed against the device maker over a now-recalled hip device.

Kransky testified that he dreaded having to undergo revision surgery to have the DePuy ASR removed, but he said he feared the device was poisoning him, he was unable to walk, and the pain was unbearable, said Bloomberg.com. As we’ve explained, revision surgery is a complex, painful, and dangerous procedure in which a faulty device is removed and a different device is implanted.

Retired prison guard Kransky, 65, of Montana told a Los Angeles jury that he was afraid the revision surgery would kill him, but underwent the procedure last February to remove the faulty ASR that was implanted in December 2007, said Bloomberg.com. “I didn’t want to have the hip done because I had 25 surgical procedures done prior to that,” Kransky told a state court jury, said Bloomberg.com. “I thought that surgery was going to kill me. I thought I was going to die.”

Johnson & Johnson recalled 93,000 ASR devices in a worldwide move in August 2010 after acknowledging that at least 12 percent of the hips failed. Since, noted Bloomberg.com, the failure rate has been reported as being higher. For instance, the ASR failure rate reached 40 percent, according to data from an Australian joint registry.

Not unsurprisingly, Johnson & Johnson denies Kransky’s claims that it defectively designed the ASR, failing to warn of its risks. An attorney for the device maker also said that Kransky’s claims of increased metal ions in his body are due to his other health issues such as diabetes, high blood pressure and cholesterol, strokes, and kidney cancer, said Bloomberg.com, and that Kransky is a vasculopath, meaning that his blood vessels are diseased.

“I came to believe that I was going to have to do it because I was told that something in my body was poisoning me,” Kransky said of the revision surgery, according to Bloomberg.com. “I was told it could be the hip. I thought, ‘I’m going to die either way.’ One way would be slow and one would be fast. I took the lesser of two evils.” Kransky described “a kind of stabbing type of pain. It was debilitating. I couldn’t do anything, couldn’t walk long distances,” adding that he was unable to appropriately rehabilitate following a stroke, could not use the bathroom appropriately, was unable to sleep, and needed a wheelchair, which he said was “humiliating.” Kransky explained, “I didn’t want anybody to see me in a wheelchair…. I was always independent and strong. Here I am in a wheelchair,” Bloomberg.com reported.

The trial has also revealed a troubling trend seen in the physicians who were paid consultants to DePuy. In one case, noted The New York Times previously, a doctor sent a note to a number of Johnson & Johnson executives stating that one of the firm’s artificial hips was so badly designed, its marketing should have been cut so that the firm could review why the device was injuring patients. The physician consultant wrote the note nearly two years before the DePuy Articular Surface Replacement (ASR) devices were recalled.

This was not the only “early waning” the device makers’ executives received from its paid consultants, noted The Times. Yet, despite numerous warnings DePuy Orthopaedics continued to tout the now-recalled device that is at the center of thousands of lawsuits and patient claims of serious injury. As bad, pointed out The Times, are the physician consultants who never went public with what they learned about the ASR to other surgeons and who kept implanting the faulty device. The startling memos have surfaced as part of the first trial brought against Johnson & Johnson over the ASR.

Metal-on-metal hip implant devices were created for greater durability and longevity and with the intention that the seemingly stronger components would be far superior over their more traditional counterparts that are constructed with plastic or ceramic components. In recent years, the metal devices have come under fire for failing at unexpectedly high rates and leaving patients with significant and, often, life long injuries. Some experts say that European and American regulators worked to ensure patients were unaware of the devices’ risks and many have criticized device makers for placing profits before patient safety.

http://www.newsinferno.com/?p=42887

Arizona Woman Files Lawsuit Over Injuries Allegedly Caused by Boston Scientific Transvaginal Mesh Implant

NewsInferno; February 20, 2013

An Arizona woman who was implanted with a transvaginal mesh device in February 2006 has filed a lawsuit against Boston Scientific, the device’s manufacturer, for injuries she alleges were caused by the device.

National law firm, Parker Waichman LLP, filed the suit, Case No. 2:13-cv-01527, in the U.S. District Court for the Southern District of West Virginia on January 28. The lawsuit alleges that the Obtryx Transobturator Mid-Urethral Sling System is defective and poses a number of serious health risks to women. The suit further alleges that the defendants knew of the risks but did not adequately warn the plaintiff or her doctor.

The mesh material itself is one of the issues in the case. The lawsuit alleges that the mesh used in the device is unfit for use in the female pelvis because the material is not inert. The mesh can react with the tissues of the body, can travel through the abdominal cavity, and can become deeply embedded in the body’s tissues.

Transvaginal mesh implants are intended to treat pelvic organ prolapse (POP) and stress urinary incontinence (SUI), conditions which become more common after childbirth due to the weakening of the pelvic walls and muscles. Transvaginal mesh is supposed to correct these conditions by providing additional support to the pelvic walls, but the lawsuit alleges that the plaintiff’s implant only caused more issues.

The U.S. Food and Drug Administration (FDA) has warned that complications associated with transvaginal mesh are “not rare.” The agency issued a Safety Communication in July 2011 warning of adverse events associated with transvaginal mesh. These include mesh erosion (extrusion) through the vagina, infection, bleeding, organ perforation, urinary problems, and pain during sexual intercourse. The agency has asked a number of transvaginal mesh manufacturers to conduct post-market safety studies to assess whether the mesh implants cause organ damage and other health issues.

http://www.newsinferno.com/?p=42885

The Truth Behind the Second Amendment

By Thom Hartmann

 

The real reason the Second Amendment was ratified, and why it says “State” instead of “Country” (the Framers knew the difference – see the 10th Amendment), was to preserve the slave patrol militias in the southern states, which was necessary to get Virginia’s vote.  Founders Patrick Henry, George Mason, and James Madison were totally clear on that . . . and we all should be too.

 

In the beginning, there were the militias. In the South, they were also called the “slave patrols,” and they were regulated by the states.

 

In Georgia, for example, a generation before the American Revolution, laws were passed in 1755 and 1757 that required all plantation owners or their male white employees to be members of the Georgia Militia, and for those armed militia members to make monthly inspections of the quarters of all slaves in the state.  The law defined which counties had which armed militias and even required armed militia members to keep a keen eye out for slaves who may be planning uprisings.

 

As Dr. Carl T. Bogus wrote for the University of California Law Review in 1998, “The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search ‘all Negro Houses for offensive Weapons and Ammunition’ and to apprehend and give twenty lashes to any slave found outside plantation grounds.”

 

It’s the answer to the question raised by the character played by Leonardo DiCaprio in Django Unchained when he asks, “Why don’t they just rise up and kill the whites?”  If the movie were real, it would have been a purely rhetorical question, because every southerner of the era knew the simple answer: Well regulated militias kept the slaves in chains.

 

Sally E. Haden, in her book Slave Patrols: Law and Violence in Virginia and the Carolinas, notes that, “Although eligibility for the Militia seemed all-encompassing, not every middle-aged white male Virginian or Carolinian became a slave patroller.” There were exemptions so “men in critical professions” like judges, legislators and students could stay at their work.  Generally, though, she documents how most southern men between ages 18 and 45 – including physicians and ministers – had to serve on slave patrol in the militia at one time or another in their lives.

 

And slave rebellions were keeping the slave patrols busy.

 

By the time the Constitution was ratified, hundreds of substantial slave uprisings had occurred across the South.  Blacks outnumbered whites in large areas, and the state militias were used to both prevent and to put down slave uprisings.  As Dr. Bogus points out, slavery can only exist in the context of a police state, and the enforcement of that police state was the explicit job of the militias.

 

If the anti-slavery folks in the North had figured out a way to disband – or even move out of the state – those southern militias, the police state of the South would collapse.  And, similarly, if the North were to invite into military service the slaves of the South, then they could be emancipated, which would collapse the institution of slavery, and the southern economic and social systems, altogether.

 

These two possibilities worried southerners like James Monroe, George Mason (who owned over 300 slaves) and the southern Christian evangelical, Patrick Henry (who opposed slavery on principle, but also opposed freeing slaves).

 

Their main concern was that Article 1, Section 8 of the newly-proposed Constitution, which gave the federal government the power to raise and supervise a militia, could also allow that federal militia to subsume their state militias and change them from slavery-enforcing institutions into something that could even, one day, free the slaves.

 

This was not an imagined threat.  Famously, 12 years earlier, during the lead-up to the Revolutionary War, Lord Dunsmore offered freedom to slaves who could escape and join his forces.  “Liberty to Slaves” was stitched onto their jacket pocket flaps.  During the War, British General Henry Clinton extended the practice in 1779.  And numerous freed slaves served in General Washington’s army.

 

Thus, southern legislators and plantation owners lived not just in fear of their own slaves rebelling, but also in fear that their slaves could be emancipated through military service.

 

At the ratifying convention in Virginia in 1788, Henry laid it out:

 

“Let me here call your attention to that part [Article 1, Section 8 of the proposed Constitution] which gives the Congress 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. . . .

 

“By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither . . . this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory.”

 

George Mason expressed a similar fear:

 

“The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless, by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them [under this proposed Constitution] . . . ”

 

Henry then bluntly laid it out:

 

“If the country be invaded, a state may go to war, but cannot suppress [slave] insurrections [under this new Constitution]. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress . . . . Congress, and Congress only [under this new Constitution], can call forth the militia.”

 

And why was that such a concern for Patrick Henry?

 

“In this state,” he said, “there are two hundred and thirty-six thousand blacks, and there are many in several other states. But there are few or none in the Northern States. . . . May Congress not say, that every black man must fight? Did we not see a little of this last war? We were not so hard pushed as to make emancipation general; but acts of Assembly passed that every slave who would go to the army should be free.”

 

Patrick Henry was also convinced that the power over the various state militias given the federal government in the new Constitution could be used to strip the slave states of their slave-patrol militias.  He knew the majority attitude in the North opposed slavery, and he worried they’d use the Constitution to free the South’s slaves (a process then called “Manumission”).

 

The abolitionists would, he was certain, use that power (and, ironically, this is pretty much what Abraham Lincoln ended up doing):

 

“[T]hey will search that paper [the Constitution], and see if they have power of manumission,” said Henry.  “And have they not, sir? Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power?

 

“This is no ambiguous implication or logical deduction. The paper speaks to the point: they have the power in clear, unequivocal terms, and will clearly and certainly exercise it.”

 

He added: “This is a local matter, and I can see no propriety in subjecting it to Congress.”

 

James Madison, the “Father of the Constitution” and a slaveholder himself, basically called Patrick Henry paranoid.

 

“I was struck with surprise,” Madison said, “when I heard him express himself alarmed with respect to the emancipation of slaves. . . . There is no power to warrant it, in that paper [the Constitution]. If there be, I know it not.”

 

But the southern fears wouldn’t go away.

 

Patrick Henry even argued that southerner’s “property” (slaves) would be lost under the new Constitution, and the resulting slave uprising would be less than peaceful or tranquil:

 

“In this situation,” Henry said to Madison, “I see a great deal of the property of the people of Virginia in jeopardy, and their peace and tranquility gone.”

 

So Madison, who had (at Jefferson’s insistence) already begun to prepare proposed amendments to the Constitution, changed his first draft of one that addressed the militia issue to make sure it was unambiguous that the southern states could maintain their slave patrol militias.

 

His first draft for what became the Second Amendment had said: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country [emphasis mine]: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

 

But Henry, Mason and others wanted southern states to preserve their slave-patrol militias independent of the federal government.  So Madison changed the word “country” to the word “state,” and redrafted the Second Amendment into today’s form:

 

“A well regulated Militia, being necessary to the security of a free State [emphasis mine], the right of the people to keep and bear Arms, shall not be infringed.”

 

Little did Madison realize that one day in the future weapons-manufacturing corporations, newly defined as “persons” by a Supreme Court some have called dysfunctional, would use his slave patrol militia amendment to protect their “right” to manufacture and sell assault weapons used to murder schoolchildren.

 

Thom Hartmann is a New York Times bestselling Project Censored Award winning author and host of a nationally syndicated progressive radio talk show. You can learn more about Thom Hartmann at his website and find out what stations broadcast his radio program. He also now has a daily independent television program, The Big Picture,  syndicated by FreeSpeech TV, RT TV, and 2oo community TV stations.  You can also listen or watch Thom over the Internet.