Monthly Archives: June 2008

Anyone Else Object to Being Called a “Human Resource”

Ahhh work, that most marvelous of pursuits that keeps food on the table.

Today was my first official day of work as a full time employee of Gigantomegabankcorp North America, where I have been a contractor for 26 months.

Going from Contractor to FTE means bennies, paid time off (25 days a year actually. Woo hoo), and job security (at least to the degree that it exists anywhere today).

I am officially classified as an “authorized homeworker or telecommuter”, for which I get to work at home; and the bank gets a tax credit, since I’m not out there every day clogging up the roads, and burning up the gas.

Nice deal all around eh?

However, for things such as receiving and filling out and submitting the 400 pages of HR paperwork, you kind of have to be in a physical office location.

…That’s not a joke or an exaggeration by the way. Between the general employment paperwork, Homeland Security paperwork, federal tax paperwork, Arizona tax paperwork, medical insurance, dental insurance, optical insurance, life insurance, AD&D, long term care coverage, healthcare savings account, 401k, employee stock purchase plan, employee credit card, employee checking, savings, and money market accounts, direct deposit, security forms, badge forms, non disclosure form, health and safety forms, electronic and information security forms, building safety forms, employee handbook acknowledgment, sexual harassment policy acknowledgment, terms of use acknowledgment, disciplinary procedures acknowledgment, environmental disclosures, and the checklists to keep track of them all; I had to deal with over 100 form pages requiring filling in, and approximately 300 pages of reference materials.

How is it we make money again?

Of course to fill all of this in, I had to get to the office at 8:30, meet an admin assistant so she could let me in to do my badge paperwork (my old contractor badge is officially no good; I had to get a visitor badge until they could issue me a new “team member” badge) so I could get my badge, and my two large “packets” (I use the term loosely as together they weigh about 5 lbs and are 3 inches thick) of reference materials and forms to fill out.

Amazingly enough, this is after a HUGE paperwork REDUCTION, and moving “most” of the HR, tax, wage, and benefit forms online.

Seriously.

Why exactly I had to go to the office to do this, when all I ended up doing was filling it all in while borrowing someone else’s cubicle, then dropping it into interoffice mail, and faxing copies of my homeland security form…

Oh wait….

..Riiiiiight

I have to do it in the office, so they can get a photocopy of my drivers license and social security card, witnessed by another employee for the homeland security form (Oh and the fax is insufficient, they have to have the hardcopy, but it has to be on file within three days, and it may be delayed so we had to fax it).

Remind me again how we make money… and why it is that we have a “homeland security” department, checking up on my work status?

…Riiiiiiight

Ahhh the joys of working for Gigantomegabankcorp North America in America today.

We ARE in America…

Aren’t we?

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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10 Reasons To Support Getting High Before You Fly

From that bastion of objective news, The CW:

SAFER, Safer Alternative For Enjoyable Recreation, which got a ballot initiative passed to make enforcing marijuana laws the lowest legal priority in Denver, is now pushing to allow passengers to get high before they fly. But since the FAA oversees the airport and smoking pot is against federal laws, the idea has some people scratching their heads wondering how it would work.

SAFER members aren’t mapping out the legal landmines. Instead, they just say that the smoking lounge, outside of security at Denver International Airport, falls under Denver Police jurisdiction. And since the new city ordinance was enacted, all penalties for adult marijuana possession have been removed. So they think adults should be allowed to smoke either marijuana or cigarettes in the airport’s smoking lounge.

So why should you support this?

10. It’s the mile-high city. Duh!
9. It makes the jerk in the seat next to you for 5 hours much funnier.
8. Letting a drunk out of his window seat three times during a flight to pee is annoying.
7. Flying 500 mph at 35,000 feet in a steel tube is just plain trippy, man… Whoa.
6. It’s probably easier to get weed through security than liquor.
5. The event of a “water landing” is a great cure for cottonmouth.
4. Pilots fly better stoned than drunk.
3. No sober person wants to watch “Snow Dogs.”
2. Because it’s natural, dude. It’s from the earth…

And the reason that it might actually happen?

1. The airlines will find it a lot easier to sell a bag of Doritos for $5 if passengers have the munchies!

How Badly This Administration Wants War

Seymour Hersh writes in the New Yorker:

Late last year, Congress agreed to a request from President Bush to fund a major escalation of covert operations against Iran, according to current and former military, intelligence, and congressional sources. These operations, for which the President sought up to four hundred million dollars, were described in a Presidential Finding signed by Bush, and are designed to destabilize the country’s religious leadership. The covert activities involve support of the minority Ahwazi Arab and Baluchi groups and other dissident organizations.

This sum, 400 million dollars is larger than the 350 million requested to bail out bad loans in the current mortgage crisis.

So what is the U.S. government purchasing with this princely sum?

In recent months, according to the Iranian media, there has been a surge in violence in Iran; it is impossible at this early stage, however, to credit JSOC or C.I.A. activities, or to assess their impact on the Iranian leadership. The Iranian press reports are being carefully monitored by retired Air Force Colonel Sam Gardiner, who has taught strategy at the National War College and now conducts war games centered on Iran for the federal government, think tanks, and universities. The Iranian press “is very open in describing the killings going on inside the country,” Gardiner said. It is, he said, “a controlled press, which makes it more important that it publishes these things. We begin to see inside the government.” He added, “Hardly a day goes by now we don’t see a clash somewhere. There were three or four incidents over a recent weekend, and the Iranians are even naming the Revolutionary Guard officers who have been killed.”

Is the U.S. government targeting individual Iranian officers? Probably not. In all likelihood, The U.S. is providing dissident groups with money and arms in exchange for intelligence – and has little control over what these groups do.

Many of the activities may be being carried out by dissidents in Iran, and not by Americans in the field. One problem with “passing money” (to use the term of the person familiar with the Finding) in a covert setting is that it is hard to control where the money goes and whom it benefits. Nonetheless, the former senior intelligence official said, “We’ve got exposure, because of the transfer of our weapons and our communications gear. The Iranians will be able to make the argument that the opposition was inspired by the Americans. How many times have we tried this without asking the right questions? Is the risk worth it?”

The groups that the U.S. are funding are, to be frank, what George Bush likes to pretend what the war on Terra’ is dedicated to eradicating:

The use of Baluchi elements, for example, is problematic, Robert Baer, a former C.I.A. clandestine officer who worked for nearly two decades in South Asia and the Middle East, told me. “The Baluchis are Sunni fundamentalists who hate the regime in Tehran, but you can also describe them as Al Qaeda,” Baer told me. “These are guys who cut off the heads of nonbelievers—in this case, it’s Shiite Iranians. The irony is that we’re once again working with Sunni fundamentalists, just as we did in Afghanistan in the nineteen-eighties.” Ramzi Yousef, who was convicted for his role in the 1993 bombing of the World Trade Center, and Khalid Sheikh Mohammed, who is considered one of the leading planners of the September 11th attacks, are Baluchi Sunni fundamentalists.

One of the most active and violent anti-regime groups in Iran today is the Jundallah, also known as the Iranian People’s Resistance Movement, which describes itself as a resistance force fighting for the rights of Sunnis in Iran. “This is a vicious Salafi organization whose followers attended the same madrassas as the Taliban and Pakistani extremists,” Nasr told me. “They are suspected of having links to Al Qaeda and they are also thought to be tied to the drug culture.” The Jundallah took responsibility for the bombing of a busload of Revolutionary Guard soldiers in February, 2007. At least eleven Guard members were killed. According to Baer and to press reports, the Jundallah is among the groups in Iran that are benefitting from U.S. support.

The M.E.K. has been on the State Department’s terrorist list for more than a decade, yet in recent years the group has received arms and intelligence, directly or indirectly, from the United States. Some of the newly authorized covert funds, the Pentagon consultant told me, may well end up in M.E.K. coffers. “The new task force will work with the M.E.K. The Administration is desperate for results.” He added, “The M.E.K. has no C.P.A. auditing the books, and its leaders are thought to have been lining their pockets for years. If people only knew what the M.E.K. is getting, and how much is going to its bank accounts—and yet it is almost useless for the purposes the Administration intends.”

And, as usual, the amateurish attempts to play “the Great Game” are backfiring:

In recent weeks, according to Sam Gardiner, the military strategist, there has been a marked increase in the number of PJAK armed engagements with Iranians and terrorist attacks on Iranian targets. In early June, the news agency Fars reported that a dozen PJAK members and four Iranian border guards were killed in a clash near the Iraq border; a similar attack in May killed three Revolutionary Guards and nine PJAK fighters. PJAK has also subjected Turkey, a member of NATO, to repeated terrorist attacks, and reports of American support for the group have been a source of friction between the two governments.

Gardiner also mentioned a trip that the Iraqi Prime Minister, Nouri al-Maliki, made to Tehran in June. After his return, Maliki announced that his government would ban any contact between foreigners and the M.E.K.—a slap at the U.S.’s dealings with the group. Maliki declared that Iraq was not willing to be a staging ground for covert operations against other countries. This was a sign, Gardiner said, of “Maliki’s increasingly choosing the interests of Iraq over the interests of the United States.” In terms of U.S. allegations of Iranian involvement in the killing of American soldiers, he said, “Maliki was unwilling to play the blame-Iran game.” Gardiner added that Pakistan had just agreed to turn over a Jundallah leader to the Iranian government. America’s covert operations, he said, “seem to be harming relations with the governments of both Iraq and Pakistan and could well be strengthening the connection between Tehran and Baghdad.”

At this point, I would ask all readers to consider what would happen if Canada or China was spending this amount of money to destabilize” the United States through targeted assassinations and the like? How would average U.S. citizens respond to such acts of war? Would they turn against a belligerent government in Washington DC? Or would they rally behind the U.S. government and support it?

The effect of U.S. policy in the region is quite predictable. The United States government, and by extension the United States people, will be seen as a dangerous aggressive enemy. Make no mistake, since 1953 the United States has been in a war with the Iranian people. Every escalation of the conflict has taken the form of the U.S. government initiating an escalation, the Iranians responding and providing the U.S. government with a casus belli for another escalation.

Absent U.S. meddling, the Iranian people would probably be ready to throw out the religious authorities who have ruled the country since 1979. The religious authorities have wrecked the economy through excessive taxation and a loose monetary policy. By attacking the Iranian government, the U.S. is strengthening it. Iranians who would otherwise see a nuclear weapons program as a dangerous misuse of resources become convinced that it is the best hope for a defense against U.S. aggression. They are not blind to the fact that the government of Pakistan has prevented the u.S. government from hunting systematically for Osama bin Laden. They see how the Pakistani nuclear arsenal deters the U.S. from attacking it, and they cme to the logical conclusion that they need one too.

A war with Iran is absolutely not in the interests of either the United States government nor the people of the United States. The American people will lose a great deal of treasure and find themselves confronted by numerous implacable enemies. The U.S. governments will earn enmity and hostility from governments it seeks to dominate. These governments will not only be unwilling to work with the U.S. government but may even provide safe haven for those who wish to kill Americans.

The only people who benefit from this action are those who wish to infuriate groups like Hezbullah while depriving it of monetary support. In other words, a faction of Israeli politicians who seek to expand settlements in the occupied territories and to keep the Israeli policy of anti-Arab apartheid in place.

The fact that the U.S. government is willing to spend a princely sum in an attempt to trigger such a war does more than shock me. I think it borders on treason.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

What are you REALLY voting for?

Yesterday, the supreme court announced that the constitution actually means what it says, and that it’s OK if we want to exercise our pre-existing and fundamental rights… at least most of the time, presuming we follow the allowed restrictions…

Don’t get me wrong, I’m very happy about Heller, and I think it’s a better ruling than many would have you believe (not that it won’t require literally decades of litigation to resolve those issues)…

…My problem here is that there had to be a supreme court decision on this; not to determine how much the government could restrict a fundamental right, but whether that right even existed at all.

The even bigger problem I have with this, is that about 30% of the population have convinced themselves that it doesn’t; and that among that 30% are a strong minority of our national legislature (there are some pro gun democrats, and some anti-gun republicans), and a not insignificant minority of our state legislatures (about 15% of the state legislatures outright, and presumably anywhere from 15 to 30% of the legislators in the rest of the states).

Even a member of the supreme court, construed the very concept of the limitation of government so obscenely, that he was openly mocked by another; to wit:

“The majority would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.” – Associate Supreme Court Justice John Paul Stevens

YES, that is EXACTLY what the framers did; that is in fact the entire purpose of the second amendment, and the bill of rights as a whole;. and anyone who in any way does not understand that has no business being a citizen of this country, never mind being a supreme court justice.

Stevens is either a liar, a fool, or disingenuously dissembling to make a fundamental right into nothing more than a hindrance to government.. which is by far the worst interpretation of his actions, and unfortunately I think the correct one. It makes him both craven, and a clear enemy of the core principles of liberty and limited government.

… but 30% of the population agrees with him.

… and that frightens me.

Now, that wouldn’t really be an issue, except for one thing: That 30% controls one of the major political parties in this country.

Which also wouldn’t be TOO much of a problem, except for one other thing: That 30 percent also controls 4 members of the 9 member supreme court.

Yesterdays decision on Heller was 5-4 in favor of the idea that the government cannot abrogate our fundamental rights by force of law; except in certain strictly limited ways.

5-4…

There were four justices of the supreme court who voted against the very foundation of our limited government…. In fact against the very IDEA of any real limitation on government, as I see it.

And it’s not just about guns (though Silveira and Fincher are certainly illustrative), it’s also about Angel Raich, and Susette Kelo, and all the other decisions favoring government over the rights of the people.

Those four justices have been reliable votes against freedom, liberty, and limitation of government (they were frequently joined by Anthony Kennedy, and now retired Sandra Day O’Connor. I also don’t discount the fact that on occasion even the so called “conservative justices have also voted against liberty)

5-4…

So, at this point, there comes a decision.

In 2008, this country will choose our next president. We have two choices (yes, only two. Don’t try and pretend otherwise).

In addition to the veto pen, and the office of commander in chief; the next president is likely to select at least one, and possibly as many as three justices for the supreme court.

Barack Obama is one of the 30%, and unabashedly so.

John McCain is one of those people who have deluded themselves into thinking there is a balance to be struck between the rights of individuals, and government. He’s wrong, in some ways disastrously so (BCRA for example); but he isn’t actively promoting the position that individual rights are superseded by “governments rights” (which don’t exist).

Obviously, neither are good; but one is clearly worse.

More importantly though, is the realization that indeed we ARE in a two party game; and what that game really is.

One party is controlled by those utterly hostile to the notion of individual rights; the other is controlled by people who believe in individual rights but disregard them when it suits them.

One party is the 30%, the other isn’t.

For those of you who say “I don’t vote for the party I vote for the man”, or “Continuing to vote for the lesser of two evils is rewarding their bad behavior. We should teach them a lesson”…

Let me be blunt: Grow the hell up, wake the hell up, and get your head back into the real world where it belongs.

Let’s face it folks, we ARE in a two party system. No matter what the Libertarian party wants to believe about its own relevance (and nominating Bob Barr showed they really don’t care so long as they can get enough press to get 4% in the general and qualify for automatic ballot inclusion and matching funding) a vote for anyone other than John McCain is a vote for Barack Obama.

Welcome back to the real world folks; where there hasn’t been someone you could actually vote FOR (as opposed to voting against), since around 1817. All you can do now, is vote against the worse guy (or rather, the worse party).

Of course that’s “OK” because you don’t actually vote for the president, you’re voting for the party; and as much as we are not a parliamentary system and that should NOT be the case, it is.
The president himself has very little to do with how the country is run, except in crises. The party, who fill in all the blanks for appointees and bureaucrats, really chooses who runs things and how.

So, you can vote for the 30%, or you can vote for the other guy, but as the game is right now, there is no third choice.

I’ll take the other guy thank you.

I’m not saying I like it, or that you have to like it. I’m saying that’s how it is whether you like it or not, and deluding yourself into thinking otherwise is ridiculous and harmful.

So either play the game by the rules, don’t play the game, or change the rules.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

A Human Right, A Civil Right: Fundamental, Pre-existing, Strictly Scrutinized, Universal, and Incorporated

This morning, I’m noting a lot of ill informed …or perhaps just informed by misunderstanding of the text… opinions and statements regarding the historic Heller ruling on the scope and applicability of the 2nd amendment.

This of course is unsurprising when many people of varying levels of knowledge about law, history, and firearms have just a short time to digest a 90 page majority opinion and another 70 pages of dissents and cites.

In the table below, I’ve selected out the critical passages, and highlighted some of those I consider most instructive or important (bold for important, red for critical).

Briefly, I need to specifically address some points:

1. Incorporation: Scalia makes it clear in his majority opinion that the second amendment is a fundamental right, that must be treated the same as other fundamental rights such as the first amendment. He specifically notes it in respect to the 14th amendment NUMEROUS times. This decision will be applied universally within the domain of the court, and should be considered controlling upon the states (this is clarified in the later references by the way).

2. Universality: This decision applies to all within the jurisdiction of the court. Excepting prohibited persons (and there is a clear definition under federal law of who those persons are by the way), all individuals under the jurisdiction of U.S. law, have the right to keep and bear arms.

3. Scrutiny:
Again, this issue is clear. Though in the opinion itself Scalia does not explicitly state that second amendment issues should be reviewed with strict scrutiny, this is made clear in the text by equating the 2nd amendment with the first, 4th, 14th etc… Further, Scalia explicitly dismisses Stevens call for a “balance of interests” standard of medium scrutiny. This is in effect strict scrutiny, with certain well defined exceptions (such as for felons, the insane, and weapons of mass destruction).

4. Class III (machine guns and other): This one is mixed. Although the majority expresses that some restrictions are permissible, it also explicitly denies outright bans. It is clear that weapons that are in the common usage and available to citizens, are protected. That includes machine guns (machine guns are not illegal for the general public to own, they are just very expensive and tightly restricted). Although Scalia points out that Miller said it was OK to ban short barreled shotguns, he also noted that the decision is flawed, because it only took judicial notice of what was presented to the court, and the original apellant (Miller, though technically he was the respondent for the appeal to the supremes) never presented a case (he died before the date set for arguments, and his attorney didn’t bother to show up).

Based on my reading, I would say that the current law prohibiting the new manufacture of machine guns for civilian sale after May of 1986 (actually that’s not what it says, but that is how the ATF chose to interpret it) is out; after some long and difficult litigation. However, the door is open for other laws restricting such weapons, fi properly written to pass constitutional scrutiny.

This of course applies to other weapon types specifically targeted for bans; for example the requirement that all weapons imported into the United States have a “sporting purpose”, and that certain shotguns are considered “destructive devices” simply by arbitrary features; are also disallowed (again with the caveat that new laws could be written to pass a constitutional standard).

5. Scope: I think it is clear, though it will require significant litigation to hash out details; that no outright ban on any type of weapon (including machine guns as currently construed), excepting weapons of mass destruction, can stand muster. This means that all state “Assault weapons bans” will be struck down… eventually; along with magazine capacity bans, hollowpoint bullet bans etc… (though likely the ban on “armor piercing” handgun ammunition will continue).

I also think it is clear that there is significant room for licensing programs, and standards (including standards for weapons features and functionality)to be set, so long as the requirements for licensing are not discriminatory, arbitrary, capricious, or onerous. Of course, again, that is going to require years of litigation to define better.

I do think that clearly this means the end of Chicago gun laws, and most likely the radical reformation of laws in Massachusetts, New York, California, Hawaii, and New Jersey.

I should note that this does not mean universal “shall issue” concealed carry, but it almost certainly DOES mean that all states which allow concealed carry must allow it on a “shall issue” basis; using those standards as a guideline. Unless someone is a prohibited person, as spelled out under law since 1968, you MUST license them (presuming licensing exists).

Additionally, I believe this actually DOES set a requirement for lawful OPEN carry throughout the country; in that self defense is a recognized lawful, and traditional purpose of the bearing of arms.

And of course, this ruling does specifically allow for the restriction of carry of firearms in some ways, and some locations. As Scalia repeatedly says, no constitutionally protected rights are absolute (under the law).

Finally, any legislation that does not EXPLICITLY violate the above prohibitions, but would have the effect of doing so, is certainly disallowed. This means that standards for licensing, firearms design, dealer sale regulations etc… cannot be set so as to constitute an effective ban, or an onerous burden.

Now we just need to spend the next 15 years suing to define what constitutes an onerous burden.

Summary of Impact:
So you can’t ban guns, or any particular types of guns; you can’t keep anyone not a prohibited person from buying, owning, keeping, bearing, and using guns for all lawful purposes (including self defense); you can license and set standards for guns to be sold, and for persons to purchase, own, keep, and bear them; but those standards cannot be discriminatory, arbitrary, capricious, or onerous.

Oh and of course, that doesn’t get into the halo effect this has on other cases dealing with fundamental rights issues (remember how many times they state that this is simply protecting a pre-existing right).

Excerpts from the text of the majority decision:

Held:

1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home…

… 2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues.

The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment.

The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense.

Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.

Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and
is hence unconstitutional.

Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.

Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

Affirmed..


* * *
We turn first to the meaning of the Second Amendment.

The Second Amendment provides: 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.”

In interpreting this text, we are guided by the
principle that “The Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.”

Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.

* * *

“Right of the People.” The first salient feature of
the operative clause is that it codifies a “right of the people.”

The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (“The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people”). All three of these instances unambiguously
refer to individual rights, not “collective” rights, or rights
that may be exercised only through participation in some
corporate body…

…This contrasts markedly with the phrase “the militia” in
the prefatory clause. As we will describe below, the “militia”
in colonial America consisted of a subset of “the people”—
those who were male, able bodied, and within a
certain age range.

Reading the Second Amendment as
protecting only the right to “keep and bear Arms” in an
organized militia therefore fits poorly with the operative
clause’s description of the holder of that right as “the
people.”

We start therefore with a strong presumption that the
Second Amendment right is exercised individually and
belongs to all Americans.

* * *

… in the course of analyzing the meaning of
“carries a firearm” in a federal criminal statute, JUSTICE
GINSBURG wrote that “[s]urely a most familiar meaning is,
as the Constitution’s Second Amendment . . . indicate[s]:
‘wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict
with another person.’ ”

We think that JUSTICE GINSBURG accurately captured the
natural meaning of “bear arms.” Although the phrase
implies that the carrying of the weapon is for the purpose
of “offensive or defensive action,” it in no way connotes
participation in a structured military organization.

* * *

Putting all of these textual elements together,
we find that they guarantee the individual right to
possess and carry weapons in case of confrontation
.

This meaning is strongly confirmed by the historical background
of the Second Amendment.

We look to this because it has always been widely understood
that the Second Amendment, like the First and
Fourth Amendments, codified a pre-existing right.

The very text of the Second Amendment implicitly recognizes
the pre-existence of the right and declares only that it
“shall not be infringed.” As we said in United States v.
Cruikshank, 92 U. S. 542, 553 (1876), “This is not a right
granted by the Constitution. Neither is it in any manner
dependent upon that instrument for its existence. The
Second amendment declares that it shall not be infringed”

* * *

There seems to us no doubt, on the basis of both text
and history, that the Second Amendment conferred an
individual right to keep and bear arms. Of course the
right was not unlimited, just as the First Amendment’s
right of free speech was not, see, e.g., United States v.
Williams, 553 U. S. ___ (2008). Thus, we do not read the
Second Amendment to protect the right of citizens to carry
arms for any sort of confrontation, just as we do not read
the First Amendment to protect the right of citizens to
speak for any purpose.

* * *

We reach the question, then: Does the preface fit with
an operative clause that creates an individual right to
keep and bear arms? It fits perfectly, once one knows the
history that the founding generation knew and that we
have described above.

That history showed that the way
tyrants had eliminated a militia consisting of all the ablebodied
men was not by banning the militia but simply by
taking away the people’s arms, enabling a select militia or
standing army to suppress political opponents. This is
what had occurred in England that prompted codification
of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear
arms, as with other guarantees in the Bill of Rights, was
not over whether it was desirable (all agreed that it was)
but over whether it needed to be codified in the Constitution.

* * *

We may as well consider at this point (for we will have
to consider eventually) what types of weapons Miller
permits.

Read in isolation, Miller’s phrase “part of ordinary
military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939.

We think that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary
war era, [small-arms] weapons used by militiamen
and weapons used in defense of person and home were one
and the same.”

As for the “hundreds of judges,” who have relied on the
view of the Second Amendment JUSTICE STEVENS claims we endorsed in
Miller: If so, they overread Miller. And their erroneous reliance upon
an uncontested and virtually unreasoned case cannot nullify the
reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.

In any event, it should not be thought that the cases decided by these judges
would necessarily have come out differently under a proper interpretation
of the right.

The amendment’s operative clause furthers the purpose announced
in its preface. We therefore read Miller to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns
.

* * *

It should be unsurprising that such a significant
matter has been for so long judicially unresolved.
For most of our history, the Bill of Rights was not thought
applicable to the States, and the Federal Government did
not significantly regulate the possession of firearms by
law-abiding citizens.

Other provisions of the Bill of Rights
have similarly remained unilluminated for lengthy periods.
This Court first held a law to violate the First
Amendment’s guarantee of freedom of speech in 1931,
almost 150 years after the Amendment was ratified, see
Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and
it was not until after World War II that we held a law

invalid under the Establishment Clause, see Illinois ex rel.
McCollum v. Board of Ed. of School Dist. No. 71, Champaign
Cty., 333 U. S. 203 (1948).

Even a question as basic
as the scope of proscribable libel was not addressed by this
Court until 1964, nearly two centuries after the founding.
See New York Times Co. v. Sullivan, 376 U. S. 254 (1964).

It is demonstrably not true that, as JUSTICE STEVENS
claims, post, at 41–42, “for most of our history, the invalidity
of Second-Amendment-based objections to firearms
regulations has been well settled and uncontroversial.”
For most of our history the question did not present itself.

* * *

Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose…

…Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale ofarms.26
We also recognize another important limitation on the
right to keep and carry arms.

Miller said, as we have explained, that the sorts of weapons protected were those
“in common use at the time.” 307 U. S., at 179. We think
that limitation is fairly supported by the historical tradition
of prohibiting the carrying of “dangerous and unusual
weapons.”

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty.

It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the amendment

* * *

We turn finally to the law at issue here.

As we have
said, the law totally bans handgun possession in the home.
It also requires that any lawful firearm in the home be
disassembled or bound by a trigger lock at all times, rendering
it inoperable. As the quotations earlier in this opinion demonstrate,
the inherent right of self-defense has been central to the
Second Amendment right.
The handgun ban amounts to a
prohibition of an entire class of “arms” that is overwhelmingly
chosen by American society for that lawful purpose.

The prohibition extends, moreover, to the home, where the
need for defense of self, family, and property is most acute.

Under any of the standards of scrutiny that we have applied
to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster….

… See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A
statute which, under the pretence of regulating, amounts
to a destruction of the right, or which requires arms to be
so borne as to render them wholly useless for the purpose
of defence, would be clearly unconstitutional”).

It is no answer to say, as petitioners do, that it is permissible
to ban the possession of handguns so long as the
possession of other firearms (i.e., long guns) is allowed. It
is enough to note, as we have observed, that the American
people have considered the handgun to be the quintessential
self-defense weapon.

There are many reasons that a
citizen may prefer a handgun for home defense: It is easier
to store in a location that is readily accessible in an emergency;
it cannot easily be redirected or wrestled away by
an attacker; it is easier to use for those without the upperbody
strength to lift and aim a long gun; it can be pointed
at a burglar with one hand while the other hand dials the
police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

* * *

After an exhaustive discussion of the arguments for and against
gun control, JUSTICE BREYER arrives at his interest balanced
answer: because handgun violence is a problem,
because the law is limited to an urban area, and because
there were somewhat similar restrictions in the founding
period (a false proposition that we have already discussed),
the interest-balancing inquiry results in the
constitutionality of the handgun ban. QED

We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding
“interest-balancing” approach. The very enumeration of
the right takes out of the hands of government—even the
Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insisting
upon.

A constitutional guarantee subject to future judges’ assessments
of its usefulness is no constitutional guarantee at all.

Constitutional rights are enshrined with the scope they
were understood to have when the people adopted them,
whether or not future legislatures or (yes)even future
judges think that scope too broad.

We would not apply an “interest-balancing” approach to the prohibition
of a peaceful neo-Nazi march through Skokie. See
National Socialist Party of America v. Skokie, 432 U. S. 43
(1977) (per curiam).

The First Amendment contains the freedom-of-speech guarantee
that the people ratified,which included exceptions for
obscenity, libel, and disclosure of state secrets,
but not for the expression of extremely unpopular and wrong-headed views.

The Second Amendment is no different.

Like the First, it is the very product of an interest-balancing
by the people—which JUSTICE BREYER would now conduct for them anew.
And whatever else it leaves to future evaluation, it surely
elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and
home.

* * *

In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.

* * *

We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution.

The Constitution leaves the District of Columbia a variety
of tools for combating that problem, including some measures
regulating handguns,see supra, at 54–55, and n. 26.
But the enshrinement of constitutional rights necessarily
takes certain policy choices off the table.
These include the absolute prohibition of handguns held
and used for self-defense in the home.

Undoubtedly some think that the Second Amendment
is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a
serious problem. That is perhaps debatable, but what is
not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct.

We affirm the judgment of the Court of Appeals.

–It is so ordered.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Presidential Candidates Respond to D.C. vs. Heller Ruling

Given that the D.C. vs. Heller ruling is a historically important ruling for the Second Amendment and given that the next president could appoint between two and three Justices to the Supreme Court over the next four years, I think the responses from Bob Barr, John McCain, and Barack Obama might give us some insight into what kind of judges each would appoint and how each views the Second Amendment. Below are the complete official press releases from each candidate’s web site.

Bob Barr

June 26, 2008 10:16 am EST

Washington, DC – Today the U.S. Supreme Court upheld the individual right of Americans to own guns in District of Columbia v. Heller. The ruling “will go down as one of the Supreme Court’s most important rulings on behalf of liberty,” says Libertarian Party presidential candidate Bob Barr.

Until today, the Court had never held that the Second Amendment directly applied to individuals. “Today’s decision marks a new era for gun rights in America,” explains Barr, who is a member of the Board of Directors of the National Rifle Association. Barr also drafted the Libertarian Party’s amicus curiae brief in Heller. “By protecting an individual’s right to keep and bear arms, the Second Amendment ensures that all Americans are able to participate in sporting activities, hunt, and protect themselves and their families,” he explains.

The right to self-defense is particularly important for women and minorities in a city like Washington, D.C. “Where crime rates are high, a gun may be the only means for law-abiding citizens to safeguard themselves and their families,” Barr notes. “Lawful gun ownership deters an untold number of crimes every year.”

But the Court’s ruling, though welcome, is not enough. “It is important to have a president who also supports the right of Americans to own firearms,” says Barr. “Sen. Barack Obama says that he believes in such a constitutional right, but he supports the District of Columbia’s ban, which gives criminals an advantage over law-abiding citizens,” notes Barr.

Sen. McCain has not advocated an absolute prohibition, “but he cosponsored legislation which could require registration of attendees at gun shows and even ban such shows,” Barr warns. And Sen. McCain’s campaign legislation “curtailed the First Amendment right of gun owners to protect their rights by participating in election campaigns.”

As part of the Bill of Rights, the Second Amendment undergirds American liberty. “The individual’s right to keep and bear arms helps ensure all of our freedoms,” says Barr. “The Supreme Court’s recognition of the constitutional right to gun ownership is a recognition of the right to life, liberty, and property for all Americans.”

Barr represented the 7th District of Georgia in the U. S. House of Representatives from 1995 to 2003, where he served as a senior member of the Judiciary Committee, as Vice-Chairman of the Government Reform Committee, and as a member of the Committee on Financial Services. Prior to his congressional career, Barr was appointed by President Reagan to serve as the United States Attorney for the Northern District of Georgia, and also served as an official with the CIA.

Since leaving Congress, Barr has been practicing law and has teamed up with groups ranging from the American Civil Liberties Union to the American Conservative Union to actively advocate every American citizens’ right to privacy and other civil liberties guaranteed in the Bill of Rights. Along with this, Bob is committed to helping elect leaders who will strive for smaller government, lower taxes and abundant individual freedom.

John McCain

For Immediate Release
June 26, 2008
Contact: Press Office
703-650-5550

Statement by John McCain on Today’s Supreme Court Ruling on Second Amendment Rights

ARLINGTON, VA– U.S. Senator John McCain today issued the following statement regarding today’s United States Supreme Court ruling on District of Columbia v. Heller:

Today’s decision is a landmark victory for Second Amendment freedom in the United States. For this first time in the history of our Republic, the U.S. Supreme Court affirmed that the Second Amendment right to keep and bear arms was and is an individual right as intended by our Founding Fathers. I applaud this decision as well as the overturning of the District of Columbia’s ban on handguns and limitations on the ability to use firearms for self-defense.

Unlike Senator Obama, who refused to join me in signing a bipartisan amicus brief, I was pleased to express my support and call for the ruling issued today. Today’s ruling in District of Columbia v. Heller makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans. Unlike the elitist view that believes Americans cling to guns out of bitterness, today’s ruling recognizes that gun ownership is a fundamental right- sacred, just as the right to free speech and assembly.

This ruling does not mark the end of our struggle against those who seek to limit the rights of law-abiding citizens. We must always remain vigilant in defense of our freedoms. But today, the Supreme Court ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.

Barack Obama

I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view, and while it ruled that the D.C. gun ban went too far, Justice Scalia himself acknowledged that this right is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe. Today’s ruling, the first clear statement on this issue in 127 years, will provide much-needed guidance to local jurisdictions across the country.

As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals. Today’s decision reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe.

Supreme Court Upholds Individual Right To Keep And Bear Arms

After nearly two centuries of silence, the Supreme Court today struck down a District of Columbia gun ban and affirmed that the Second Amendment protects an individual right to keep and bear arms:

WASHINGTON — The Supreme Court ruled Thursday that Americans have a right to own guns for self-defense and hunting, the justices’ first major pronouncement on gun rights in U.S. history.

The court’s 5-4 ruling struck down the District of Columbia’s 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision went further than even the Bush administration wanted, but probably leaves most firearms laws intact.

The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: “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.”

The basic issue for the justices was whether the amendment protects an individual’s right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

Justice Antonin Scalia, writing for four colleagues, said the Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home.”

In dissent, Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

Yes, that’s right Justice Stevens, they did. It’s called the Second Amendment.

While the devil is, as always, in the details and, as I noted in March, this is far from the end of the Constitutional debate about gun control, this is, all in all, a great day for individual liberty.

The Death Penalty, Child Rape, And The Supreme Court

Today, the Supreme Court ruled in a 5-4 decision that a Louisiana law allowing the death penalty for rape of a child even when it doesn’t result in death is unconstitutional:

A divided Supreme Court ruled today that it is unconstitutional to execute someone who rapes a child but does not kill the victim.

In a 5 to 4 decision, the court struck down a Louisiana law that had authorized the death penalty for anyone who rapes a child under the age of 12. Of 3,300 inmates on death row across the country, only two face capital punishment for a crime other than murder. Both were convicted under Louisiana’s law, the broadest in the land. There has not been an execution for rape in the United States since 1964.

Justice Anthony M. Kennedy joined the court’s more liberal members in continuing the court’s trend of narrowing the number of criminals eligible for death. He wrote that the harm caused a child who is raped is “grave,” but “cannot be quantified in the same way as death of the victim.”

Says who ? Well, apparently, 5 of the 9 unelected men and women in black robes say so.

And that, I think, is what’s really wrong with this decision.

Make no mistakes, the doubts that I harbor about capital punishment to begin with would probably cause me to vote against any effort to expand the death penalty to crimes beyond first degree murder, but that’s a question for a legislator, not a judge. Unfortunately, the legislator-as-judge is something that is far too common and it’s something we see on both sides of the political spectrum notwithstanding the right’s continual repetition of the phrase “judicial restraint.

As Orin Kerr points out, Justice Alito does a fairly good job of pointing out the real problem with today’s decision in his dissent:

A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35.
These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.

Alito, I think, get’s it 100% right. It isn’t the Supreme Court’s job to second guess a particular state’s determination that raping an 8 year old girl, in this case your 8 year old stepdaughter, is not a sufficiently heinous crime to justify the death penalty. That decision belongs to the people, acting through their legislators.

Far more clearly than most may realize, this decision lays bare what has gone so terribly wrong with Constitutional jurisprudence in this country over the past 50 years or so.

Originally posted at Below The Beltway

TLP Commentor Receives Name In Lights

Well, a letter to the editor, anyway. In response to a sycophantic article regarding government’s– in general, Obama’s in particular– ability to “plan” an economy, regular commenter Jeff Molby penned a letter. The critical points:

In a column Tuesday, deputy editorial page editor Stephen Henderson lauded Democratic presidential candidate Barack Obama’s economic plans as bold investments that would pay off in the long run (“Obama’s economic agenda: Plan hurts now, helps later”). What he neglected to mention is that such attempts at centralized planning are inherently flawed — as Nobel laureate Friedrich Hayek so thoroughly demonstrated in his seminal work, “The Road to Serfdom.”
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No one seems to mention that anymore. Instead, we are offered a revolving door of politicians who claim that we can finally solve the problems we face — often the same problems their predecessors promised to solve. All we need to do, they tell us, is to put them in power and implement their plan. Being hopeful and trusting by nature, we keep electing them, hoping that one of these days we’ll elect a group smart enough and honest enough to follow through; we believe them when they tell us that we got where we are despite the individual freedom secured for us by our forefathers.

We don’t need elaborate plans or an all-knowing president. We simply need to let individuals make their own decisions about what to do with their time and money.

That’s not very exciting, though, and it’s hard to win a modern election on such a boring platform.

Sadly, he’s right. Promising a free lunch doesn’t impress economists or thinking individuals, but those constituencies seem to be rarities in today’s voting public.

Freedom To Travel: Such A Pre-9/11 Concept

Ah, the good old TSA. When faced with a minute* number of citizens asserting their rights, they simply take those rights away.

And what’s worse? They don’t even take the rights away from everyone, only the loudmouths like us cantankerous civil libertarians:

Passengers who refuse to show ID, citing a constitutional right to fly without ID will be refused passage beyond the checkpoints. Passengers who say they have left their ID at home, will be searched, and then permitted to board their flights.

While TSA’s announcement stated that the goal of the change was to “increase safety,” this blogger disagrees. The change of rules seems to be a pretty obvious case of security theater. Real terrorists do not refuse to show ID. They claim to have lost their ID, or they use a fake.

TSA’s new rules only protect us from a non-existent breed of terrorists who are unable to lie.

Don’t you feel safer?
» Read more

RIP, George Carlin

Today is a sad day for comedy. While I can’t say that I always agreed with some of his ideas, the simple fact is that George Carlin, through the vehicle of comedy, did an incredible job of making people question the world around them. That questioning is the first step towards having independent thoughts– a trait far too lacking in ordinary society.

Carlin likely won’t be remembered by those in media quite as fondly as Tim Russert, a man who spent his media career looking up old quotes of politicians and asking them why they weren’t consistent with their current quotes. Russert was part of the media machine that incentivized bullshit, because only people who spout platitudes can avoid being criticized for changing their minds.

Carlin, on the other hand, was the catalyst for a very important free speech case before the Supreme Court. The case was decided wrongly, but his courage to push the boundaries– and thus be slapped down by the FCC, upheld by the Supreme Court– gave us all a lesson in the limits of our government’s willingness to allow us to be free. As Justice Murphy said in a previous decision (quoted as precedent in the decision re: Carlin)–

“Such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U.S., at 572.

Can anyone honestly say that the below monologue isn’t an exposition of ideas?

Just because it comes in a comedic package doesn’t make it any less of an indictment of the absurdity of our society’s treatment of language. Perhaps the powers that be might not like us treating their somber regulations as the butt of jokes, and such a monologue hits them a little too close to home. So be it. It should hit too close to home, because these regulations are asinine and unnecessary. Ridicule is a great way to point that out.

Thank you, George. You will be missed.

Government Reefer Madness

Its stories like these that make my blood boil. Here we have a young man who has found relief from serious pain with marijuana. I have yet to read a story where anyone has overdosed and died from smoking too much cannabis but for some reason, our federal government sees a need to prosecute those who dispense and use the drugs for medical and therapeutic purposes. The Republicans can talk all they want about how they are proponents of federalism but regrettably, their actions differ from their words when states like California decide a new direction when it comes to drugs.

What makes me even angrier is the thought that John McCain’s wife Cindy, was busted for stealing prescription pain killers (drugs many times more dangerous than marijuana, by the way) yet because she is married to John McCain, she gets a pass. One would think that Sen. McCain would be a little more sympathetic to those who seek relief from pain via marijuana or other means but the good senator seems to be content with the status quo double standard which currently exists. When asked if individuals such as Owen Beck should have access to medical marijuana, Sen. McCain “Just Said No!”

Steve Kubby

Despite these setbacks in what the federal government says that an individual can do with his or her body, there has been at least one recent victory on the medical marijuana front. Former 2008 Libertarian presidential candidate Steve Kubby recently wrote a post at Third Party Watch reporting that all the charges against him have been dropped and his record has been expunged.

Kubby writes:

Yes, you read that right, thanks to the incredible support of my fellow libertarians, I not only survived, I PREVAILED!

Because of those who cared enough to help me and my family, I survived an indictment for 19 criminal counts amounting to a minimum of 40 years to life in prison. That indictment was backed by a $10 million grant by the US government to put me, and the medical marijuana revolution, behind bars.

While Mr. Kubby’s fight appears to be over, the man who made it possible for Owen Beck to receive relief from his pain, Charlie Lynch, his fight is just beginning. Lynch is facing charges which could put him in prison for 100 years. And for what? Dispensing a product (marijuana) which California voters decided was acceptable for medicinal purposes?! Meanwhile, the average first degree murderer spends 20 years in prison in California.

This is madness. Foolish, disturbing, government reefer madness.

Obama & McCain Call For Renewed Laws Against Witchcraft and Those Who Make Infernal Pacts With the Devil

In barbaric cultures, when people find themselves facing unpleasant changes, like the failure of crops or natural disasters, they look for scapegoats to blame. In the Europe and early colonial America, all to often the quest for a scapegoat took the form of a persecuting old women, who were charged with having used magic to curse their neighbors crops or herds. The fact that many of these old women owned or were squatting on property that was coveted by neighbors or powerful landlords was not lost on the more enlightened thinkers of the time.

Witches in the StocksThree centuries may have passed since the infamous Salem Witch trials, but the backwards superstition that prompted them is still with us. And Barrack Obama and John Sidney McCain have decided to publicly embrace the superstitions and to lead a modern day hunt looking for witches and sorcerers to punish. their targets are not the old defenseless women that their predecessors hung and burned alive. No, they have decided to target a new scapegoat. The speculator:

Kill the speculators! is a cry made during every famine that has ever existed. Uttered by demagogues, who think that the speculator causes death through starvation by raising food prices, this cry is fervently supported by the masses of economic illiterates. This kind of thinking, or rather nonthinking, has allowed dictators to impose even the death penalty for traders in food who charge high prices during famines. And without the feeblest of protests from those usually concerned with civil rights and liberties.

Yet the truth of the matter is that far from causing starvation and famines, it is the speculator who prevents them. And far from safeguarding the lives of the people, it is the dictator who
must bear the prime responsibility for causing the famine in the first place. Thus, the popular hatred for the speculator is as great a perversion of justice as can be imagine.

Walter Block – Defending the Undefendable

How have these evil speculators supposed to be driving up prices? The International Herald Tribune endeavors to explain – using arguments which would be right at home in the Chewbacca Defense or in A Tryal of Witches.

The “Enron loophole,” a 2000 measure that allowed unfettered oil trading on electronic markets, is now blamed by many for speculation in the tight energy market and is seen as responsible for the rapid increase in prices …

The Enron loophole was “slipped into law by Senator Phil Gramm in late 2000 at the behest of Enron lobbyists to exempt some energy traders from the regulations and public protections applicable to exchange-traded commodities. As a result, the Commodity Futures Trading Commission (CFTC) is unable to fully oversee the oil futures market and investigate cases where excessive speculation may be driving up oil prices,” said an e-mail from the Obama campaign. …

Energy trading giant Enron collapsed in a major corporate scandal in 2001 that sent executives to prison, but not before it won exemption a year earlier from federal oversight for energy commodity trading. Critics claim that measure has allowed speculators to drive up the price of oil well beyond levels dictated by current supply and demand.

The International Herald Tribune, Obama details plan to tax excess oil company profits, end energy trading loophole

So what have these evil speculators done? They have purchased oil today and stored it, hoping to sell it tomorrow for a much higher price. How does this raise the price? To answer this question, we must look at how a speculator acquires his oil. When a company which is pumping oil out of the ground auctions off their oil, the speculator offers more money than anyone else to purchase the oil. Let’s think about the implication of that statement for a moment. The speculator spends his own money and offers more of it to the producer than anyone else. In other words if we are being screwed by the price of oil, the speculator, who is paying more than we are, is even more screwed.

In the short term, this does drive the price of oil up. However, in the end, the speculator must sell his oil. he must sell his oil to people who wish to consume it, and at a higher price than he paid for it. If he guesses right, he can sell every barrel he has for a price higher than he paid for it. If, on the other hand, only when the price is $30.00 a barrel lower than he paid for it, will enough people be willing to purchase his oil for him to sell off all his stock, he may take a huge loss – having made a small fortune by wasting a large fortune. Much like a witch who wastes her time cursing a neighbors sheep by dancing naked under the full moon having drunk a potion made out of fingernail clippings, the speculator who tries to purchase enough of a good to create an artificial shortage is wasting his time and money.

This can be easily shown from the reaction of commodities traders to one of the most blatant attempts by any speculator to corner a market and drive up the costs of agricultural products permanently. This speculator hoped to double or even trebble the price of grain by creating artificial shortages. This dastardly speculator was called the United States Agriculture Department, and it was acting at the behest of many congressmen in the 1920’s to prop up food prices at the levels they had reached in World War I when under Herbert Hoover’s leadership, it tried to corner the world grain market using the American taxpayer as a source of financing.

The FFB managed to hold up wheat prices for a time. Seeing this apparent success, wheat farmers naturally increased their acreage, thus aggravating the surplus problem by the spring of 1930. Furthermore, as America held wheat off the market, it lost its former share of the world’s wheat trade. Yet, prices continued to fall as the months wore on, and the heavy 1930 acreage aggravated the decline. The accumulating wheat surpluses in the hands of the FFB frightened the market, and caused prices to tumble still further. …

The FFB programs had thus inadvertently encouraged greater wheat production, only to find by spring that prices were falling rapidly; greater surpluses threatened the market and spurred greater declines. It became clear, in the impeccable logic of government intervention, that the farmers would have to reduce their wheat production, if they were to raise prices effectively. The FFB was learning the lesson of every cartel-production must be reduced in order to raise prices. And the logic of the government’s farm monopoly also drove the FFB to conclude that farmers had been “overproducing.” Secretary of Agriculture Hyde accordingly lectured the farmers on the evils of “overproduction.” The Secretary and the FFB urged farmers to reduce their acreage voluntarily.

The first group of farmers selected to bear the brunt of this sacrifice were the marginal Northwest growers of spring wheat-the original agitators for price supports. They were not very happy at the prospect. The farmers, after all, wanted subsidies from the government; having to reduce their production of the subsidized crop had not been included in their plans. A group of economists left Washington at the end of March to try to persuade the Northwest farmers that they would be better off if they shifted from wheat to some other crop. In the meanwhile, in this topsy-turvy world of interventionism, troubles piled up because the wheat crop was abundant. Surpluses continued to accumulate, and wheat prices continued to fall. Legge and Hyde toured the Middle West, urging farmers to reduce their wheat acreage. Governor Reed of Kansas reflected the common-sense view of the farmer when he wondered why the government on the one hand promoted reclamation projects to increase farm production and, on the other hand, urged farmers to cut production.[20] Since the individual farmer would lose by cutting acreage, no amount of moral exhortation could impel any substantial cut in wheat production.

As wheat piled up in useless storage, foreign countries such as Argentina and Russia increased their production, and this increase, together with the general world depression, continued to drive down wheat prices.[21] On June 30, 1930, the GSC had accumulated over 65 million bushels of wheat held off the market. Discouraged, it did little until late 1930, and then, on November 15, the GSC was authorized to purchase as much wheat as necessary to stop any further decline in wheat prices. Bravely, the GSC bought 200 million more bushels by mid-1931, but all to no avail. The forces of world supply and demand could not be flouted so easily. Wheat prices continued to fall, and wheat production continued to rise. Finally, the FFB decided to dump wheat stocks abroad, and the result was a drastic fall in market prices. By the end of the Hoover administration, combined cotton and wheat losses by the FFB totaled over $300 million, in addition to 85 million bushels of wheat given gratis to the Red Cross.

Murray Rothbard – America’s Great Depression

The important lesson from Herbert Hoover’s disastrous experiences as a speculator is that a speculator cannot create an artificial shortage. Why?

1) because consumers of the good will be aware that the speculator has a great deal of the commodity in storage waiting to go back on the market and will make their plans accordingly.

2) because until he is selling the stuff he bought for more than he paid for it, the speculator is losing massive amounts of money.

Thus if the speculator guesses wrong about future demand for consumption, he will go broke. If the speculator is right, and the price of oil will go up much higher, then the speculator has provided a marvelous service. For when consumers are at their most desperate, when the supply of oil is at a low point relative to demand, the speculator adds his stock to the supply. This action alleviates shortages, and thus drives prices down. Furthermore, by taking product off the market now, by bidding up prices now, the speculator encourages producers to increase production helping mitigate the future shortages that the speculator is foreseeing.

The so-called “excessive” profits that Obama and McCain are demogouging against are as mythical as the witchcraft that the British Crown so zealously prosecuted more than a quarter millenium ago. It is ironic that as they make speeches about the downturn in the mortgage industry, a textbook case where speculators completely misread future consumer demand and were financially wiped out as a result, that these politicians turn around and accuse another class of speculator of doing the same thing. It is shameful that just as fellow Harvard alum William Stoughton promoted a superstitious theology that sent people to the gallows, Barack Obama, who really should know better, has chosen to promote a superstitious econology that will inevitably destroy many lives.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Remember Kelo

“The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is no force of law and public justice to protect it, anarchy and tyranny commence. Property must be secured or liberty cannot exist.”- John Adams

Monday is third anniversary of the Supreme Court’s ruling Kelo v. New London. The reason I am writing about this today is because it will likely be overshadowed by the decision in the District of Columbia v. Heller case, which involves the Second Amendment. A case which is equally important to any individual who values Liberty.

Here is some background on Kelo v. New London, in case you are unfamiliar with it. The City of New London, Connecticut sought to redevelop the Fort Trumbull neighborhood in hopes of increasing the city’s tax base (“economic development”). Several property owners refused to sell to the city, including Susette Kelo, and condemnation proceedings were started by New London Development Corporation, a private body acting on behalf of the city. Ms. Kelo received her condemnation notice the day before Thanksgiving in 2000.

On June 23, 2005, the Supreme Court dealt another blow to the Bill of Rights. The majority (opinion written by Stevens, joined by Breyer, Ginsburg and Souter with Kennedy writing a concurring opinion) ruled that taking private property for economic development and to increase the tax base is a “public use.” This ruling gave local government nearly unlimited power to take private property though eminent domain and give it to a developer to increase the tax base of the city. The court considers this to be a perfectly reasonable example of the “public use” clause of the Fifth Amendment.

Justice Clarence Thomas wrote in dissent, “Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.”

Contrary to what John McCain’s recent comments on Boumediene v. Bush, Kelo has paved the way for local governments essentially steal land at an unprecedented rate. The Institute for Justice noted just one year after the Kelo decision was announced “more than 5,700 properties nationwide [had] been threatened by or taken with eminent domain for private development.” Compare that to around 10,000 instances of Kelo-style takings from 1998 to 2002.

Kelo is not the first case dealing with property rights to come before the Supreme Court. Property rights had been protected until the Progressive Era. In 1954, the court ruled in Berman v. Parker that displaced 5,012 people, nearly all were African-Americans, from their homes in a DC neighborhood.

In court’s decision, Justice William Douglas deferred power to Congress and the District of Columbia (judicial deference) and expanded the purposes where eminent domain could be used:

The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them.

By the way, this is the same court that issued the Brown v. Board of Education decision. Something that certainly cannot be disputed is how use of eminent domain impacts the poor and minorities.

Then in 1984 the Supreme Court ruled in Hawaii Housing Authority v. Midkiff that a Hawaii law, the Land Reform Act of 1967, was an acceptable use of eminent domain. This law allowed renters to take property from their landlords. In her opinion, another example of judicial deference and the rational basis test, Justice Sandra Day O’Connor wrote:

This Court will not substitute its judgment for a legislature’s judgment as to what constitutes “public use” unless the use is palpably without reasonable foundation. Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not prohibited by the Public Use Clause.
[…]
The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose. Government does not itself have to use property to legitimate the taking; it is only the taking’s purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause.

Rehnquist, often referred to as an Originalist, joined the majority this decision and ironically, O’Connor’s dissent in Kelo has been praised, but her opinion in Midkiff was actually cited as precedent by the majority.

Since Kelo 42 states have enacted some sort of protection for private property rights, some stronger than others. Florida easily has the strongest of any state.

I wrote commentary for the Georgia Public Policy Foundation last year about what had taken place in our state since the Kelo ruling and the need for more constitutional protections for property owners. The statutory law passed by the Georgia General Assembly was very good, but the constitutional amendment left the door wide open for future abuse. There are no actual protections for property owners in the amendment nor is the term “public use” defined. It points back to “general law,” which is set by the legislature and can be changed at anytime during a legislative session by a simple majority vote. An attempt to patch this massive hole in the amendment was defeated by two votes in the State Senate.

Needless to say, there is still much work to do in Georgia.

We need to press our elected officials at all levels of government and remind them that property is sacred. We do not spend our lives laboring to provide for ourselves and families only to have the government come and take the most sacred of our rights from us. Simply put, property rights are not subject to a majority vote.

We also must challenge progressivism and “cult of the collective.” We as individuals have natural rights that cannot be infringed upon by govternment.

“When ‘the common good’ of a society is regarded as something apart from and superior to the individual good of its members, it means that the good of *some* men takes precedence over the good of others, with those others consigned to the status of sacrificial animals.” – Ayn Rand

So-Called, Quote, Candidate McCain

Exhibit A, back in 2006:

I would rather have a clean government than one where quote First Amendment rights are being respected

Exhibit B, earlier this month:

We are now going to have the courts flooded with so-called, quote, Habeas Corpus suits against the government, whether it be about the diet, whether it be about the reading material.

Exhibit C, just a few days ago:

I trust the people and not the so-called economists to give the American people a little relief.

Sounds like what people have said about his meanness is true. He can’t seem to oppose a policy or a person without denigrating them using of language of ridicule.

I can only imagine how he’d blow his top if I told him what I thought of all his years of so-called national service in his Senate career.

Two Great Reads

I found a couple of really great articles I would like to pass on to our readers.

The first is an article posted at Townhall.com by John Stossel entitled: Legalize All Drugs. In this article, Stossel busts several myths about the war on (some) drugs such as “Heroin and cocaine have a permanent effect,” “If you do crack once, you are hooked,” and “Drugs cause crime.” The main point to Stossel’s article, however; is that rather than arguing for legalization for one drug (i.e. marijuana), libertarians should be working to legalize all drugs.

While I share his belief that all drugs should be legalized, I also understand that short of a Barr administration putting the brakes on the war on (some) drugs, the way to realize our ultimate goal will probably have to be done incrementally.

The second article comes from Capitalism Magazine by Dr. Richard Parker, Ted Kennedy vs. Universal Healthcare: A Double Irony.

It was reported that Senator Kennedy chose his surgeon for this difficult operation after very careful research and consultation with his physicians in Boston. Using his free and independent judgment, Kennedy chose Dr. Allan Friedman, a surgeon renowned for his experience and expertise in the field of neuro-oncological surgery.

No government regulations restricted the Senator in this extremely important personal choice. Facing a life threatening illness, no bureaucrat forced the Senator to chose his surgeon nor hospital from a government “approved” list–a list not generated by Kennedy’s independent and free judgment, but by “public servants” who’s expertise is not Kennedy’s life, but the arbitrary and byzantine politics of “pull”, of favors owed and collected, of political pressure groups and the bitter reality of healthcare rationing. No, Kennedy was not forced to sacrifice his life, liberty nor property in the name of the so-called “greater public good.”

Lesson In Unintended Consequences #2

The government likes to support biodiesel. It has all the buzzwords. “Recycling”. “Sustainable”. “Environmentally-friendly”. So they subsidize efforts to blend diesel with biodiesel.

One main problem here. Americans don’t use much diesel. So they’re subsidizing foreign, not domestic, use. In fact, they’re simply sending money for non-American-produced diesel that won’t be consumed on American soil to foreign fuel companies:

The problem began when Sen. Chuck Grassley (R., Iowa), the friend of farmers, inserted the so-called “Blenders’ Credit” into the Jobs Act of 2004. The idea was to increase biofuels production and consumption in the U.S., as biofuels were thought to be environmentally friendly and a viable alternative to fossil fuels. The credit provides $1 for each gallon of biodiesel that is mixed with regular diesel in the United States. The provision has not dramatically increased domestic consumption, but it has increased production and exports to Europe’s thriving and subsidized diesel markets.

Under World Trade Organization rules, the U.S. government cannot extend the credit only to American companies or to fuels produced in America. Thus, foreign companies are eligible whenever they bring their biodiesel stateside for mixing. But the limited American market for the fuel has given birth to an unintended consequence known as “Splash and Dash.”

Rep. John Shadegg (R., Ariz.) demonstrated the concept’s simplicity last week by referring to an article that received little attention when it was published last year. It works like this: A foreign tanker carrying 9 million gallons of biodiesel from Brazil or Malaysia sails to an American port. While it waits, 9,000 gallons of American diesel is added — that’s right, a .1 percent blend — so as to earn the blender a $9 million tax credit. The tanker heads to Europe, where diesel cars are far more common and biodiesel is further subsidized.

In some cases, tankers have reportedly made round trips from Europe to the U.S. simply to collect the subsidy. Thus we “import” and “export” the same fuel from and to the same country.

“Just think of it,” said Shadegg. “If I produce biodiesel anywhere in the world where the cost of shipping it to the United States before shipping it to the end consumer is less than a dollar a gallon, then I’m going to take advantage of this subsidy.”

(Emphasis added).

Does lowering the cost of fuel for Europeans really seem like a great use of our tax dollars (and those of our children/grandchildren, since we’re borrowing the money anyway)? Now, you’d think that this program would be universally opposed in the United States…

But you’d be wrong:

Last week, Shadegg proposed a bill (H.R. 5713) to end “Splash and Dash” by limiting the blenders’ tax credit to biodiesel that is actually consumed in the United States. But domestic producers are already upset by this idea: Although they resent foreign firms’ use of “Splash and Dash” to take away their competitive advantage, they still want their subsidy for the biodiesel they export to Europe. Grassley, the original author of the tax credit, wants to make Splash and Dash less profitable but continue those subsidies for American exporters that have so angered the Europeans.

Of course oil producers don’t worry that much about ending the subsidy to foreigners. While an infintesimal proportion of their tax dollars support the foreign subsidy, a far greater amount of our tax dollars go right into their own pockets.

But hey, I’m sure if we just elect Obama/McCain/Barr/Cthulhu, he’ll solve all these problems and “reform” the government!

What’s Right vs. What Works

In an article in the July issue of Reason about libertarian responses to environmental issues, Fred Smith of the Competitive Enterprise Institute makes this interesting point:

We believe that if we just go out and talk to everybody for a few hours they’ll become libertarians. That’s not a wisely thought-through process, and it misses the whole point. Most people are—have to be—rationally ignorant. Our challenge is to make them understand that for their values, freedom is better than coercion.

Smith makes a point here that I think is applicable to libertarian political strategy in general. When libertarians talk amongst ourselves, the truth of libertarian ideas is so self-evident that I think we lose sight of what it takes to win arguments in the political sphere.

The vast majority of Americans, and, in some cases, even politically aware and active libertarians, don’t spend their days and nights thinking about how some minute point of libertarian theory applies to some even-more-minute public policy issue (I mean, seriously, is there really a libertarian position on sanitary sewer maintenance ? I’m sure the anarcho-capitalists will say there is), and, when they walk into the voting booth, they aren’t worrying about the non-aggression principle or whether A is A.

The average American cares about their family, their job, and their pocketbook. Often, in that order.

Politicians who succeed understand that, and, more often than not, pander to it. Libertarian politicians who spend their time talking about monetary theory aren’t going to impress people like that much, if at all.

If libertarian ideas are going to succeed, it’s not going to be because of some Constantine-like conversion on the part of the public, it’s going to be because libertarian-oriented politicians have crafted a message that convinces the public of the one very simple idea:

Freedom works.

When that starts to happen, then libertarians — whether they belong to the Libertarian Party, the Republican Party, or the Democratic Party — will start to win elections.

Until then, I think, we’re all just going to be engaging in the political equivalent of arguing over how many angels dance on the head of a pin.

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