Monday, February 28, 2011
Read the linked review. Shouldn’t it be titled “Academically Sinking Fast”? I realize I am a dinosaur, but it’s becoming more and more obvious that the Emperor has no clothes. Yet I see very little dissent and complaint about the current trend in Higher Ed. Are faculty getting so lazy that they welcome the reduced expectations and responsibilities? Are faculty too busy with their hobbies, second jobs, research grants, etc. that they welcome the reduced expectations and responsibilities? Don’t parents care? It’s obvious the legislature doesn’t have a clue.
Friday, February 25, 2011
Below is a quote from 9th Circuit Judge Alex Kozinski. That Circuit is dominated by liberals but Kozinski is one of the more open-minded members of the Circuit. This was written 5 years prior to the U.S. Supreme Court’s decision in D.C. v. Heller (2008) which held that the Second Amendment gives a right to keep and bear arms to individual even though they are not connected to any official militia. As in much of the material, an individual right to keep and bear arms under the Second Amendment can be read to be roughly equivalent to relatively widespread civilian ownership of firearms. Note his description of the “doomsday” function of the Second Amendment/widespread civilian ownership of firearms. SILVEIRA; v. LOCKYER, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 328 F.3d 567 (2003) “KOZINSKI, Circuit Judge, dissenting from denial of rehearing en banc: Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet, see Reno v. ACLU, 521 U.S. 844, 138 L. Ed. 2d 874, 117 S. Ct. 2329 (1997), and that "persons, houses, papers, and effects" also means public telephone booths, see Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases--or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), [**3] rev'd sub nom. Washington v. Glucksberg, 521 U.S. 702, 138 L. Ed. 2d 772, 117 S. Ct. 2258, 117 S. Ct. 2302 (1997). But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there. It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be [*569] consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences. The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and [**4] choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174, 83 L. Ed. 1206, 59 S. Ct. 816 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. See Kleinfeld Dissent at 6011-12; see also Brannon P. Denning & Glenn H. Reynolds, Telling Miller's Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller's weapon--a sawed-off shotgun--was reasonably susceptible to militia use. See Miller, 307 U.S. at 178. We are bound not only by the outcome of Miller but also by its rationale. If Miller's claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered [**5] discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller's test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision. The majority falls prey to the delusion--popular in some circles--that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth--born of experience--is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks' homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. [**6] Id. at 341-42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417, 15 L. Ed. 691 (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble. All too many of the other great tragedies of history--Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few--were perpetrated by armed troops against unarmed populations. [*570] Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars. My [**7] excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed--where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once. Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel's mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear [**8] Arms, shall not be infringed. The sheer ponderousness of the panel's opinion--the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text--refutes its thesis far more convincingly than anything I might say. The panel's labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it--and is just as likely to succeed.”
Wednesday, February 23, 2011
I predicted months ago that states will be forced to accept gay marriage under an equal protection and privacy rationale as a matter of constitutional law. Another step in that direction occurred recently when the Obama administration announced it would no longer defend the federal Defense of Marriage Act--which defines marriage as a heterosexual union only.
Tuesday, February 22, 2011
The debate over police use of Tasers continues unabated, esp. in San Francisco. Unfortunately, we rarely hear about cases where the Taser works and may have saved a life. This is an example.
Monday, February 21, 2011
Bizarre case from France. I hope Americans appreciate the freedoms they have and will fight for them!
Friday, February 18, 2011
Legislation has been introduced in at least nine states, incl. Tex., Fla., Mich. and Ariz. to allow licensed concealed carry on college campuses. Persons who are licensed are no more likely to commit a crime on campus than they are in the community, and the latter are extremely rare. Even then, the crime may have been committed whether the person has the license or not. Rates of both violent and gun crime have been decreasing in spite of the vast increases in the number of guns and introduction of concealed carry licensing laws. Although many administrators and faculty wish it were not the case, both the Second and the First Amendment apply on college campuses. It amazes me how some campuses are so authoritarian. As was often the case when First Amendment rights were denied, the argument of danger to the public is made and is bogus.
Wednesday, February 16, 2011
Common sense has long dictated that the only people likely to comply with gun control laws are law-abiding citizens who are not the problem. This linked article confirms that drug dealers are likely to carry guns because of the dangers in their trade. Many have felony convictions already and cannot lawfully buy or carry handguns. These folks are not going to be deterred by gun laws from acquiring or carrying guns. Because of the dangers involved, they will go to great lengths to get guns. Many also have lots of money to spend on guns. For these folks, the demand for guns is very inelastic. This is not rocket science!
Monday, February 14, 2011
Tuesday, February 08, 2011
Because we rant a lot about the Constitution on this blog, I suggest to those of you who don't already have one, get a free pocket-size copy of the U.S. Constitution from the Heritage Foundation. They even pay shipping. No donation required although this is a very worthwhile Foundation, so at least consider a small donation.
Monday, February 07, 2011
In the U.S., there would be no criminal prosecution because the defendant’s speech is clearly protected under the First Amendment. Head to W. Europe if you want to trade you constitutional rights, including those granted to criminal defendants, for cradle-to-grave care.
It seems highly likely that the final say on the constitutionality of Obamacare will be had by the U.S. Supreme Court. If past patterns hold it will be 4-4 with Kennedy the swing vote. Doctrinally, I think he will vote against it, but he may decide that this is too great a leap by the Court and go with it. Stay tuned. See the linked article from the Economist which is an excellent publication (sometimes with a conservative lean).
Thursday, February 03, 2011
The state of Virginia, which won at the U.S. District court level in its challenge to ObamaCare, is seeking immediate Supreme Court review of that case. This is a somewhat unusual procedure as cases usually go to the appropriate U.S. Court of Appeals before going to the Supreme Court. This case is separate from the recent Florida decision also striking down the law. Given the importance of the issues, quick review by the Supreme Court seems warranted. Stay tuned to see if the Court will grant Virginia's motion.
Wednesday, February 02, 2011
As many of you already know, a federal judge in Florida has invalidated Obama Care. The portion of the statute that required people to purchase health insurance from a private source was deemed beyond the power of Congress. Some excerpts from the opinion are below: “The Commerce Clause originally applied to the trade and exchange of goods as it sought to eliminate trade barriers by and between the states. Over the years, the Clause’s reach has been expanded from covering actual interstate commerce (and its channels and instrumentalities) to intrastate activities that substantially affect interstate commerce. It has even been applied to activities that involve the mere consumption of a product (even if there is no legal commercial interstate market for that product). To now hold that Congress may regulate the so-called “economic decision” to not purchase a product or service in anticipation of future consumption is a “bridge too far.” It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent. Because I find both the “uniqueness” and “economic decision” arguments unpersuasive, I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law. . . . (3) Constitutionality of the Individual Mandate The individual mandate is outside Congress’ Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not Constitutional. Accordingly, summary judgment must be granted in favor of the plaintiffs on Count I. . . . [On Severability—the entire statute is invalid] “In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably “evident,” as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently. I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. The individual mandate cannot be severed. This conclusion is reached with full appreciation for the “normal rule” that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.” I believe this judge’s analysis is correct. However, at least one other U.S. District Court Judge has found the law constitutional. This case seems destined to the U.S. Supreme Court to provide us with a final answer. The full opinion is available at the LINK.
Tuesday, February 01, 2011
N.Y.'s wealthy, grandstanding, self-righteous mayor Bloomberg is at it again. His minions have been investigating gun shows in other states and complaining about sales at gun shows. I bet Bloomberg wouldn't be happy if folks from other states started sticking their noses into NYC's dark side. There is a thriving black market in guns inside NYC. No matter what state those guns come form, it would seem that Bloomberg's attention should be focused on the area where he has jurisdiction--NYC. Even if the gun show "loophole" was closed, the black market would find weapons elsewhere. Where there's a buck, there's a way. Witness the failed experiment that was Prohibition, massive smuggling in drugs, and all sorts of illegal items. As usual with politicians there's lots of political grandstanding, little rational action. Although I find Bloomberg's tactics pitiful, unlike some, I agree that Second Amendment rights are not absolute. This is obvious from the Supreme Court's opinions in Heller and McDonald. Although I have not thought about the issue in detail, carefully closing the gun show "loophole" could be constitutional. By "carefully" I mean, inter alia, ensuring due process for those whose applications are denied, reasonable privacy for applicants, and no de facto registration system.