Monthly Archives: April 2009

Two Steps Forward, One Step Back On Gun Rights

One of the many issues left unresolved by last year’s decision in District of Columbia v. Heller was the question of whether or not the Court’s holding, and the Second Amendment in general, would apply to the states. Back in 1886, in the case Presser v. Illinois, the Supreme Court specifically held that the Second Amendment only limited the national government, and no subsequent case has applied the doctrine of incorporation to the Second Amendment.

Until now that is.

Yesterday, a panel of the Ninth Circuit Court of Appeals ruled that the Second Amendment does in fact apply to the states:

The Constitution’s protection of an individual right to have guns for personal use restricts the powers of state and local government as much as it does those of the federal government, the Ninth Circuit Court ruled Monday. The opinion by the three-judge panel can be found here. This is the first ruling by a federal appeals court to extend the Second Amendment to the state and local level. Several cases on the same issue are now awaiting a ruling by the Seventh Circuit Court.

Ruling on an issue that is certain to reach the Supreme Court, the Circuit Court concluded “that the right to keep and bear arms” as a personal right has become a part of the Constitution as it applies to the states through the Fourteenth Amendment’s due process clause.

That right, it said, “is ‘deeply rooted in this Nation’s history and tradition.’ Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the ‘true palladium of liberty.’

“Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”

But, following the lead of the Supreme Court’s decision last June in District of Columbia v. Heller, finding a personal right in the Second Amendment for the first time, the Circuit Court concluded that the right as interpreted by the Justices is limited to “armed self-defense” in the home.

Based on this, the Court upheld the law at issue in the case; a county ordinance that prohibited gun owners from bringing guns on county property or, more specifically as Chris Byrne notes, the county passed an ordinance prohibiting the Plaintiff’s in this case from holding a gun show at a county convention center.

Given the holding in Heller, this result is as unsurprising as the Ninth Circuit’s decision on incorporation. Consider this excerpt from Justice Scalia’s majority opinion:

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. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). 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 of arms.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.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

While this is dicta that was not essential to the ruling in Heller, it was a clear signal from the Court to the Circuit and District Court’s that it’s decision was not intended to be, and should not be interpreted as, a blanket declaration that restrictions on gun ownership of all kinds were per se unconstitutional. In fact, Scalia was careful to say in his opinion that the basis for the Court’s ruling in Heller was based primarily on what it saw as a fundamental right of self defense in the home.

Given that, the present makeup of the Court, and the likelihood that we’ll see at least one new Justice before this case is argued in Washington if it is appealed, it seems likely to me that the Supreme Court would agree with the Ninth Circuit on the incorporation issue, but that it would also agree that Alameda County’s restriction on guns on public property was a reasonable regulation under the Second Amendment.

That said, though, this is an important decision for gun rights because it means that restrictive gun laws across the country — in places like New York, Chicago, and San Francisco — are now potentially subject to being struck down for the same reasons that the Court struck down the laws at issue in Heller.

On the whole, that’s a big victory.

C/P: Below The Beltway

Medical Ethicist Suggests Senile “Have A Duty To Die”

This is what medical ethics has come to in Britain:

Medical ethics expert Baroness Warnock, 84, said senility sufferers were a burden to their families and doctors.

And she said there was nothing wrong with them feeling they had a “duty” to opt for euthanasia for the sake of others.

She said: “If you are demented you are wasting people’s lives, your family’s lives and you are wasting the resources of the NHS.

So much for the socialized medical systems “putting humanity before profit”. Sorry, granny, you’re not a person, you’re a burden. You’re not a patient, you’re a cost. And we need to cut costs these days.

This is what’s coming, America.

Hat Tip: Billy Beck

Buy This Book — Your Stomach Will Thank You

All,

Co-blogger Chris just announced a new cookbook that he and his wife are putting together, heavily based upon a number of recipes that he’s posted on his blog. I still haven’t managed to go and enjoy any of said cooking on my trips into the Phoenix area, but I can say that based on the recipes I’ve seen him post — I’m looking forward to it.

Since the book hasn’t been released yet, I can’t offer any definitive comments. But I can tell you that I’m not expecting The French Chef; rather something more along the lines of 1,001 Ways to Cook Large Dead Animals. Either way, I expect to see a lot of tasty offerings.

Chris mentions that since it will be a limited print run, the best option is to pre-order for a book that will be officially available sometime in the next month or so. You might want to jump on this one quickly. Head on over and take a look.
» Read more

The Constitution really DOES mean what is says

This morning, the 9th circuit court of appeals confirmed that the 2nd amendment is indeed incorporated against the states under the selective incorporation doctrine, in the case Nordyke Vs. King.

This means that the 2nd amendment has a lawful status equivalent to that of the first, fourth, fifth, and other amendments which explicitly protect our fundamental rights.

Of course, that is only lawfully binding within the 9th circuit; but it is expected that other circuits will take judicial notice of the 9ths ruling.

If you aren’t familiar with the Nordyke Vs. King; this is the case where a gunshow operator was denied access to use country fairgrounds for their gunshows, because a county ordnance prevented the possession of firearms on county property by anyone other than law enforcement.

The facts of the case as presented to the court are as follows (emphasis in bold and red are mine):

Russell and Sallie Nordyke operate a business that promotes gun shows throughout California. A typical gun show involves the display and sale of thousands of firearms, generally ranging from pistols to rifles. Since 1991, they have publicized numerous shows across the state, including at the public fairgrounds in Alameda County.

Before the County passed the law at issue in this appeal, the Alameda gun shows
routinely drew about 4,000 people. The parties agree that nothing violent or illegal happened at those events.

In the summer of 1999, the County Board of Supervisors, a legislative body, passed Ordinance No. 0-2000-22 (“the Ordinance”), codified at Alameda County General Ordinance Code (“Alameda Code”) section 9.12.120.

The Ordinance makes it a misdemeanor to bring onto or to possess a firearm
or ammunition on County property. Alameda Code § 9.12.120(b).

It does not mention gun shows.

According to the County, the Board passed the Ordinance in response to a shooting that occurred the previous summer at the fairgrounds during the annual County Fair.

The Ordinance begins with findings that “gunshot fatalities are of epidemic
proportions in Alameda County.”

At a press conference, the author of the Ordinance, Supervisor Mary King, cited a “rash of gun-related violence” in the same year as the fairground shooting. She was referring to a series of school shootings that attracted national attention in the late
1990s, the most notorious of which occurred at Columbine High School in Littleton, Colorado.

But the Nordykes insist that something more sinister was afoot. They point to some of King’s other statements as evidence that she actually intended to drive the gun shows out of Alameda County.

Shortly before proposing the Ordinance, King sent a memorandum to the County Counsel asking him to research “the most appropriate way” she might “prohibit the gun shows” on County property.

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as
icons of patriotism.”

Without expressing any opinion about King’s remarks, the Board of Supervisors adopted the Ordinance. County officials then exchanged several letters with the
Nordykes.

The General Manager of the fairgrounds asked the Nordykes to submit a written plan to explain how their next gun show would comply with the Ordinance.

As the County Counsel had told the General Manager, the Ordinance did not
expressly prohibit gun shows or the sale of firearms.

An aside from the the blog author: This is in fact a false statement. California statute in conjunction with federal law (i.e. the sum total of requirements imposed by both sets of statutes combined; not each set individually), requires that firearms transfers occur face to face, through an FFL; that the FFL conduct a background check and in person identity verification of the person they are delivering the weapon to at the time of sale, AND at the time of delivery if those times are separate; and that the sale be conducted at the FFLs place of business, an organized gun show, or a licensed auction.

Effectively, the only way they could conduct a gun show, would be to have pictures of guns available, at which time prospective gun purchasers could arrange to meet the FFL later at their place of business to purchase a firearm. It would not even be lawful to explicitly arrange for a sale at the show and then complete the transaction later.

The county counsel knew, or should have known, that this was the case.

The Nordykes insisted then and maintain now that they cannot hold a gun show without guns; perhaps because they thought it futile, they never submitted a plan.

During the same period, representatives of the Scottish Caledonian Games (“the Scottish Games”) inquired about the effect of the new law on the activities they traditionally held on the fairgrounds. Those activities include reenactments, using period firearms loaded with blank ammunition, of historic battles.

After the inquiries, the County amended the Ordinance to add several exceptions. Importantly, the Ordinance no longer applies to [t]he possession of a firearm by an authorized participant in a motion picture, television, video, dance, or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.

This exception allows members of the Scottish Games to reenact historic battles if they secure their weapons, but it is unclear whether the County
created the exception just for them.

By the time the County had written this exception into the Ordinance, the Nordykes and several patrons of and exhibitors at the gun shows (collectively, “the Nordykes”) had already sued the County and its Supervisors under 42 U.S.C. § 1983 for various constitutional violations. The amendment did not mollify them, and their lawsuit has wended through various procedural twists and turns for nearly a decade.

I just want to highlight again one particular passage:

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism.”

Disgusting.

Unfortunately the result here is mixed. The circuit has ruled that the 2nd is incorporated against the states; but that it did not overturn the statute in question… I’m not really sure I agree with or follow their reasoning on this one.

The ruling provides that the second amendment is explicitly incorporated against the states, in plain language:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.”

Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right.

It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a
recalcitrant South from abridging it less than a century later.

The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

There could not be a better, and more unambiguous, declaration of right than this.

What is puzzling to me is how they decided that the county ordnance did not then violate the second amendment.

Yes, they make clear that laws which make exercising fundamental rights more difficult do not automatically infringe upon them (from a legal standpoint); but it seems to me this is a clear cut case of a local government, promulgating a complete ban on the possession of firearms on land controlled by that local government.

Such a ban should be clearly unconstitutional under this analysis.

It would be like saying free speech did not apply on county property, which IS clearly prohibited. Yes, there can be reasonable restrictions, but total prohibition should be right out.

Given the relative weakness of argument supporting the ordnance, and complete lack of precedential support, I can only conclude they were desperately hunting for a reason not to invalidate ALL gun control legislation in one stroke.

Now, the real question, is whether either party is going to continue appealing, and file a petition for certiorari before the supreme court.

Both parties have grounds, and standing to file; and both parties have both incentive and disincentive to do so.

If they do, and the court decides to take it, it would be the second most significant second amendment case ever, after Heller (Heller clearly supersedes Miller, and is therefore more significant)

By the by, if you read the whole ruling (and I recommend you do) there is some extensive discussion of Cruikshank, Presser, and Slaughterhouse. I believe that Heller provided an explicit foundation for all three to be overturned (at least partially).

Actually I believe that proper jurisprudence suggests they should be overturned as having had no facial validity in their initial rulings, being clearly against the principals engendered in the constitution; but Heller gives a precedential foundation for this).

Although I’m generally not a big fan of Hugo Black; I think he had the right concept on the 14th amendment. In fact, I believe it should have been clear without the fourteenth amendment, and merely through the supremacy clause that ALL elements of the constitution as directly related to the people and the protection of our rights (as opposed to the structural components of the constitution) applied to the states.

Also contained therein, is an analysis of the right to keep and bear arms as a fundamental individual right, and commonlaw right from before the founding of this nation through the passage of the 14th amendment and beyond; including a discussion of the racist nature of gun control.

The footnotes and citations too contain a wealth of information, this lovely nugget being my favorite:

we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.

In all, the incorporation portion of the ruling and opinion are so well researched, and reasoned, in such depth; that I cannot see how a credible argument could successfully be made against it, given an honest arbiter.

Conversely, the section (only a few paragraphs of a 40 page ruling) arguing that the ordinance did not violate the second amendment was so poorly argued that I can’t see how a successful argument COULD NOT be made against it, given an honest arbiter.

So I say, Alameda County, PLEASE appeal this to the supreme court on incorporation grounds; and to the Nordykes, please appeal the decision to uphold the law.

Thanks ever so much.

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

Today’s Winners and Losers

With the exception of “pure” libertarians, everyone gets it right sometimes and everyone gets it wrong sometimes.

Lately, I’ve been praising Robert Stacy McCain while being a mildly critical of Andrew Sullivan regarding Tea Parties.  Today, Sullivan makes up for it by bringing our attention to a post made by McCain regarding waterboarding.  McCain writes:

Who could possibly give a crap about the “rights” of terrorist scumbags like Abu Zubahdah and Khalid Shaikh Mohammed? Their “rights” would not have been infringed if they had gotten a 9mm slug through their skulls the day they were captured…

…Everybody would get their turn, one whack at a time, until there was nothing left of Abu and Khalid except a bloody stain. The $20 per ticket is a nominal fee. The real money would be in the pay-per-view royalties.

Hell, I hate the 9/11 hijackers as much as any red-blooded American can.  However, I’m a member of something which someone as bright as McCain must have heard: Western civilization. We’ve hundreds of years of tradition in providing legal rights to those accused of even the most heinous crimes.  I hate to go Godwin here, but we even tried folks like Hermann Göring, Rudolf Hess and Albert Speer in Nürnberg.  Serial killers generally receive fair trails before they are executed.

McCain may be wrong on torture, but he’s smart enough to realize the blowback resulting from the creation of new and powerful government institutions with the power to disregard other civil liberties. “Don’t Like Being Labeled a ‘Rightwing Extremist’? Blame Bush!” is how McCain just entitled a Hot Air piece covering this statement made by Alabama Republican Liberty Caucus Chairman Scott Boykin. “Keep this in mind next time someone tries to tell you that all Republicans are brainwashed Bushbot lapdogs,” notes McCain.

On the winners side today is the ACLU.  While the right hates and loathes the organization, the ACLU has been bold enough to defend the rights of even the right.  Now if the ACLU would only spend a bit more time protecting our Second Amendment rights…

Over at the Atlanta Journal Constitution, former prominent Republican Congressman Bob Barr aimed his arrows at the current House GOP leadership, stating that the Republicans are still leaderless in Congress.

“On issue after issue, [House Minority Leader John] Boehner’s responses to Stephanopoulos’ jabs were disjointed, vague and rambling,” wrote Barr. “There were virtually no specifics put forward by Boehner, despite numerous openings provided by Stephanopoulos for the Republican leader to provide a counterpoint to the Obama Administration’s liberal agendas on matters such as healthcare, climate change, and energy policy.”

Speaking of McCain and torture, Robert Stacy’s “crazy Uncle John” McCain stepped on it today on the only key issue where he’s been right.  Think Progress reports that the enemy of both waterboarding and the First Amendment is also a partisan hack who wants to protect GOP interests by calling it “a ‘serious mistake’ for the Obama administration to release the torture memos. The release of these memos helps no one, doesn’t help America’s image, does not help us address the issue.”  Au contraire, mon frère.

I should add as a disclaimer that (R. S.) McCain and I had drinks and cigars with Barr in Atlanta over the weekend.  However, this won’t stop me for praising my friends when they are right — or keep me from calling them out when they are wrong.

Dissent is not unhealthy, it’s patriotic

Dissent is “unhealthy”:

A top adviser to President Barack Obama takes a dim view of last week’s anti-tax “tea parties,” promoted by organizers in the spirit of the Boston Tea Party.

“The thing that bewilders me is this president just cut taxes for 95 percent of the American people. So I think the tea bags should be directed elsewhere because he certainly understands the burden that people face,” David Axelrod said Sunday.

The rallies coincided with the deadline to file income taxes, and gave people a chance also to voice frustrations about government spending and corporate bailouts.
[…]
Axelrod was asked on CBS’ “Face the Nation” for his opinion on what the show’s host described as “this spreading and very public disaffection with not only the government, but especially the Obama administration.”

Axelrod replied: “I think any time that you have severe economic conditions, there is always an element of disaffection that can mutate into something that’s unhealthy.”

“Unhealthy?” the moderator repeated.

“This is a country where we value our liberties and our ability to express ourselves. And so far these are expressions,” Axelrod answered.

These were peaceful protests were people displayed frustration, regardless of who co-opted or organized them, hundreds of thousands of people took time out of their day to express themselves. There is nothing unhealthy about that.

On a separate point. These “tax cuts” aren’t really tax cuts. It’s a direct spending program, according to the Congressional Budget Office (via FactCheck.org). A tax cut is a reduction in tax rates, not a check or tax credit.

Also, 95 percent of taxpayers did not get a “tax cut,” despite the talking points from MSNBC or CNN. The Tax Policy Center (again, via FactCheck.org) shows that 75 percent of taxpayers are affected. The average “tax cut” is $13 a week, which is marginal and not likely to help anyone once you factor in the rising cost of living, the increase in gas prices and rising property taxes.

You have to take the deficit into account, which will be a record this year at $1.8 trillion. You’re not cutting taxes unless you are cutting spending as well. It’s one of the great myths of the Bush Administration. Yes, he cut the tax rate, but he and his Republican cohorts effectively raised taxes on the next generation by spending liken drunken sailors.

Obama is only worsening an already dire situation. It’s not a problem we can just tax our way out of either, because you put economic prosperity at risk whenever you raise taxes. So tough choices will need to be made, but Obama isn’t going to make them. He’ll do what is politically popular, damn the future, and use it in his re-election campaign.

An Open Letter To Jan Schakowsky

Dear Representative Schakowsky –

I’m a taxpayer.  The Tea Partiers are also taxpayers.  We are the people who make the enterprise of government possible.

People in government would object to that statement.  They would say that the US Government has multiple revenue streams:  the income tax, other federal taxes, the Social Security Trust Fund, other intergovernmental funds, external bond sales, bond sales to the Federal Reserve.  They’re right, on a technical level.  Year to year, the full burden of federal spending doesn’t rest on the taxpayers.

There’s more to the story, though.  Any money borrowed by the US Government is borrowed in the name of its taxpayers.  The more than $2 trillion that will be borrowed to close the deficit in Obama’s first budget is being borrowed in our name.  The same goes with the undisclosed billions borrowed to pay for the Bush bailout plan.  We currently have a national debt of $11,194,472,663,030 that the Congressional Budget Office projects will grow to over $20 trillion under the Obama spending plan.  As one of the approximately 138 million Americans who paid taxes last year, I look at the Obama deficit of $2 trillion and realize that almost $15,000 was borrowed in my name alone, just this year.  Over 10 years, the Obama plan will borrow over $65,000 in my name.  As scary as those numbers are in the aggregate, they are frightening when made personal.

I imagine it must be a pretty amazing job, being one of the 536 people that direct an enterprise with a limitless credit card that will be paid off by others.  Unlike every corporation and citizen in the country, Congress and the President don’t have to worry about where the money’s going to come from.  You have the authority to fund anything you want by pretty much any means you want.  Max out the credit card?  Just write a bill that increases the credit line!

From the perspective of this ordinary, hard-working taxpayer, that authority has gone to your heads.  You never bother to stop and ask us whether we want your spending anymore.  When Obama debuted his budget, it faced severe opposition from the taxpayers of this country.  Instead of wielding the power granted to him responsibly and reconsidering based on that opposition, he began moving to ram his budget down our throats without even a moments pause.  He tried to sic his campaign machine on us to “persuade” us that the irresponsible borrowing and spending was for our own good and that we should take it with a smile.

Between that and Bush’s TARP debacle, it became clear to ordinary taxpayers all across the country that we had no voice in Washington anymore.  Democrats and Republicans were spending all their time pandering to core constituencies and special interests while ignoring the people who pay the freight.  In fact, it’s gotten so bad that we taxpayers are not even perceived as an independent group anymore.  This is shown so clearly in your own comments on the Tea Party protests:

Rep. Jan Schakowsky (D-Ill.) blasted “tea party” protests yesterday, labeling the activities “despicable” and “shameful.”

“The ‘tea parties’ being held today by groups of right-wing activists, and fueled by FOX News Channel, are an effort to mislead the public about the Obama economic plan that cuts taxes for 95 percent of Americans and creates 3.5 million jobs,” Schakowsky said in a statement.

“It’s despicable that right-wing Republicans would attempt to cheapen a significant, honorable moment of American history with a shameful political stunt,” she added. “Not a single American household or business will be taxed at a higher rate this year. Made to look like a grassroots uprising, this is an Obama bashing party promoted by corporate interests, as well as Republican lobbyists and politicians.”

We are in an age of taxation without representation. The taxpayer has no voice in Washington. The charade of democracy fostered by the two major parties has no place at the table for ordinary, hard-working Americans.  If you’re a Wall Street executive or an ACORN organizer, you have a say in how much money is borrowed and spent in America.  If you’re a simple plumber, electrician, or office worker, you have none.

You and the rest of Congress are gambling with our futures and you couldn’t care less what we have to say about it.  That’s why the Tea Parties are happening.  You want to deny us our voice?  Our place at the table?  Fine.  We’ll take it back from you.  Tea Party after Tea Party, letter after letter, column after column, we will make ourselves heard again.

The only shameful and despicable thing here is the fact that we have to take back our voice at all.  You and the rest of the ruling class have ignored the people who make your existence possible for far too long.  I’m sure your comments will be the first in a long line of bleating on the part of the ruling class, that we will have to endure rhetorical slings and arrows far worse than yours before we are heard again, but it doesn’t matter.  We WILL be heard, whether you like it or not.

No more irresponsibility.  Not in our name.  Not without a fight.

Sincerely,

A Taxpayer

Gov. Rick Perry’s Tenth Amendment Stance: Principle or Political Pandering?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. – Amendment X – Powers of the States and People. Ratified 12/15/1791.

Texas Governor Rick Perry (R) in his support of HCR 50, a resolution reaffirming Texas’ Tenth Amendment rights has reinvigorated not only the debate over state’s rights but also the ultimate “nuclear” option of a state’s right to secede from the U.S.

On April 9th, Gov. Perry explained his reasoning behind supporting the resolution.

    Gov. Rick Perry’s Tenth Amendment Stance: Principle?

Gov. Perry, speaking at a Tea Party event on April 15th went a step further telling the crowd that the day could come where Texas could decide to secede.

“We’ve got a great union. There’s absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that. But Texas is a very unique place, and we’re a pretty independent lot to boot.”

Christy Hoppe, writing for The Dallas Morning News, calls the notion that Texas has a right to secede a “mythology.”

“The fact is, the treaty under which Texas joined the U.S. provides that it could be divided into five separate states. But it is not empowered to leave the union, a question that the Civil War seems to have settled once and for all.”

Left leaning blogs such as Texas Liberal also agree that the question of secession was “settled” with the Civil War and goes even further stating that Gov. Perry’s statements are “treasonous.”

On further inspection, the idea that individuals on the Left would call the question of secession settled should not be surprising at all. When taken to its ultimate conclusion, the philosophy of the Left is “might makes right.” If a majority of people can be convinced they have the right to pick the pockets of a minority of taxpayers, for example, then by all means. In their collectivist world view, “the majority rules;” individual rights must always take a back seat to the will of the majority.

The question of secession was by no means “settled” by the Civil War (or the War Between the States if you prefer), at least not in a sense which recognized the rule of law. Abraham Lincoln made a choice between upholding the U.S. Constitution and preserving the Union. With his suspension of the writ of habeas corpus, and other civil liberties we normally take for granted, Lincoln chose the latter*. The state’s rights issue was “settled” from the barrel of a gun in a period of U.S. history we now call “Reconstruction.”

Beyond this “settled history” argument, it seems to me that if the federal government violates the Tenth Amendment and ignores the sovereignty of the states, it stands to reason that the states can ignore the dictates of the federal government (which is really all Gov. Perry is trying to do). The Tenth Amendment was a guarantee to those who were concerned about states losing sovereignty to a stronger federal government. After all, it wasn’t that long ago that they had secured their independence form Great Britain, why would they want to surrender sovereignty to a new authority?

Over time, the Tenth Amendment was ignored by the courts and the congress. The aftermath of the Civil War practically changed the term “The United States” from an “are” to an “is.” And with the passage of the Seventeenth Amendment in 1913, the states lost the ability to be represented at the federal level. For all practical purposes, the “United States of America” could be more accurately referred to as “The United State of America.”

These facts of history do not make the notion of either state’s rights or secession “mythology” by any means. The Declaration of Independence makes the case for “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another…” Thomas Paine’s “Common Sense” makes a similar case as does John Locke in his “Two Treatises of Government.” There is no shortage of political theory which supports Gov. Perry’s claim that states (and people for that matter) have the right to seek self determination and dissolve or separate themselves from oppressive government.

    Gov. Rick Perry’s Tenth Amendment Stance: Political Pandering?

Gov. Perry’s sudden concern for state’s rights does have me wondering about his motives. As I’ve pointed out above, this erosion of Tenth Amendment rights has been happening since before the text of the amendment’s ink dried. The federal government did not just start undermining state sovereignty when Barack Obama was sworn into office on January 20, 2009.

I can’t help but wonder how concerned Gov. Perry was when his predecessor, George W. Bush, moved from the Texas Governor’s Mansion and into the White House imposing unfunded federal mandates such as No Child Left Behind? On what side of the state’s rights debate did Gov. Perry fall when the Ashcroft/Gonzales Justice Department argued successfully before the Supreme Court that Angel Raich could not use marijuana for her medical conditions pursuant to California law on the theory of interstate commerce**?

Some of Perry’s critics believe that his sudden Tenth Amendment convictions have more to do with political pandering than principle (and they may have a point). Gov. Perry is looking to face Sen. Kay Bailey Hutchison in the 2010 Republican Primary Governor’s race. What better way to win support than to promote state’s rights at a Tea Party event? Who knows, perhaps with all of the state’s rights and small government rhetoric he’s espousing, small government minded Texans will forget about his executive orders forcing 11 year-old girls to receive HPV vaccinations?

While it is great to hear someone of Gov. Perry’s stature stating that there are limits to federal power, it would be a lot easier for me to accept as genuine if it wasn’t his party that was out of power in Washington.

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Weekend Open Thread: Tea Parties As Pent-Up Hostility?

As said before, much “ink” has been spilled on these “pages” to discuss the libertarian response to the tea parties. Several of us have suggested that while we’re happy the partiers have regained their allegiance to small government and fiscal conservatives, we’ve thought it a bit strange that these folks seem to come out of the woodwork once they lose power.

But I’m struck by the thought that these people may have been just as fed up with the behavior of elected Republicans as we libertarians, and although they weren’t very vocal about it, they largely laid down at the polls due to that disgust.

Why weren’t they vocal? Well, as former CA state Republican chairman Gaylord Parkinson once called The Eleventh Commandment (as recalled by Ronald Reagan):

Thou shalt not speak ill of any fellow Republican.

Given that one of the biggest problems in the libertarian movement is constant infighting and purity battles, I can understand the desire to hold your ammunition for the enemy, not expend it on friendly fire.

So here’s my thesis. Republicans, getting disgusted by the behavior of Bush and his spendthrift Congress, but conflicted about in-party fighting opening the door to the Democrats (particularly during wartime), acquiesced at the spending as the “cost of remaining in power”. Then, when finally Bush was gone and the Republicans lost control of Congress, the built-up rage at the spending immediately erupted into an onslaught of protest. This sudden protest seems like a change of position, but it was a position that already existed under the surface and the acceleration of spending was the catalyst to open it up.

Two things must, of course, be said:

1) Republicans remaining silent during the Bush administration was wrong. Not only did they not get small government, they ended up losing control of Congress and the White House. Had they enforced spending discipline and acted like Republicans, they might have gotten small government and kept control. At worst, they would have slowed the rate of government growth before losing, instead of dramatically increasing the growth of government.
2) Obama’s spending levels are far beyond those Bush envisioned. Even if Bush’s wish list came to fruition, Obama’s intended spending is a whole new level.

So what do you folks think? Is the tea party protest an eruption of latent hostility that was masked during the last 8 years, or is it simply an about-face of our partisan American polity?

You might be a right-wing extremist if…

…via the Lady Godiva of the Tax Day Tea Party and the big pimp daddy of blogwhoredom, I’ve posted video of the speech Robert Stacy McCain delivered at the Birmingham/Shelby Country Tea Party in Alabama.

Additionally, I should take this time to do a little blogwhoring of my own.  As I’ve noticed that site traffic increases around here when McCain shoots us some linky-love, it would be nice to receive such connubial bliss on a more regular basis. Considering that McCain has an ego-wall on his sidebar, I thought I’d throw some flattery his way in exchange for a permalink on it:

“Like Ronald Reagan, Robert Stacy McCain is a former Democrat turned into an eloquent fiscal conservative with a mile-wide streak of libertarianism.”

Now here’s the video.  Enjoy!

A very special thank you note…

…for this week’s links, visits and media

The Liberty Papers would like to issue a very warm welcome to our fellow travelers visiting from the following websites.  We’d also like to express our appreciation to these sites for linking to us.  Here’s (below the fold) a list of recent links (and I apologize, in advance, for the ones I missed).

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Two Quotes of the Day

Sometime one has to get up early to get the quote-of-the-day post on this site.  Not being a morning person, I simply waited until after midnight.  Blogging is more fun while sucking down a beer than drinking the first cup of morning coffee, anyway.  Since I rarely provide the QOTD here, I thought it was time for twofers.

While at the Birmingham Tea Party, quite a few Republicans thanked me for my role in bringing the Department of Homeland Security document to the light of day.  One was even shedding real tears of gratitude.  Every since the report was released, I’ve been amazed by the amount of site traffic and major media attention this issue has received.  And also very, very confused.

Thoreau, via Mark Thompson, explains my confusion very well:

WE FVCKING TOLD YOU SO!!!!!  WE TOLD YOU THIS EVERY G*DD@MN DAY FOR 8 G*DD@MN YEARS!!!!!

He adds:

Anyway, I, for one, welcome my new rightwing fellow travelers.  All I ask is that they try to remember that a red boot can stomp on a human face as much as a blue boot.

He expressed my feelings so well that I’m at a loss for words.  And that’s a very difficult accomplishment, indeed.

Trying to teach newbie fiscally conservative Republicans a few speaking points

The Hill reports:

Rep. Jan Schakowsky (D-Ill.) blasted “tea party” protests yesterday, labeling the activities “despicable” and shameful.”

“The ‘tea parties’ being held today by groups of right-wing activists, and fueled by FOX News Channel, are an effort to mislead the public about the Obama economic plan that cuts taxes for 95 percent of Americans and creates 3.5 million jobs,” Schakowsky said in a statement.

“It’s despicable that right-wing Republicans would attempt to cheapen a significant, honorable moment of American history with a shameful political stunt,” she added. “Not a single American household or business will be taxed at a higher rate this year. Made to look like a grassroots uprising, this is an Obama bashing party promoted by corporate interests, as well as Republican lobbyists and politicians.”

Here’s a response from the guy who alerted a significant amount of Americans that they are considered right-wing extremists:  I’ll be happy to trade my miniscule tax decrease for repayment of my share, as well as that of my children and their children, of all deficit spending which has occurred since President Obama took office.

I’m sure a lot of you can think of additional appropriate responses.

I’ve a more than a handful of libertarian friends who used to work for Ronald Reagan.  The GOP might wish to think about hiring some of us again.

Keeping What What We Make Away From the Tax-man

The furor over the Tea Party movement has been quite exciting.  While I love watching government officials and their sycophantic propagandists energetically denounce people for daring to suggest that people should be permitted to keep their earnings,  I, like others, think the protests – in and of themselves – are insufficient to meaningfully change the vampire economy that has seized the U.S. in its fangs.

The people protesting are not, however, wrong.   The basis of a free society is the independence of the people: their ability to choose how to conduct their lives, what professions they will pursue, where they will live, how they will order their lives.  The more resources a person has at their disposal, the wider the range of choices available to them. Freedom from taxation is as fundamental a human right as choosing whom we love.

The protesters are, however, seemingly oblivious to the real problem, the control the state has over the institutions of finance, banking and trade.   It is this control that not only allows the state to plunder without any limits, but also encourages people to acquire wealth through dishonest means – through rent seeking, wealth distribution, or other forms of special privilege.

If we wish to be a free people, we must build the institutions and the cultural habits that encourage individuals to amass these resources through peaceful commerce and production. The fundamental act by which people stockpile these resources is called saving. In a simple economy, such as an agrarian one, the importance of having people stockpiling seed-corn, or hay for feeding their herds during winters or periods of famine is obvious to everyone.

In a complex economy, people typically stockpile money, since there is a degree of uncertainty as to how those savings will be put to use in the future, and money is provides them with the most options when looking to consume savings to satisfy some present need. Unfortunately, people have stopped saving, largely because the current monetary regime makes saving a sucker’s game. A dollar stuffed under a mattress exponentially loses its value. A dollar deposited in a bank also steadily loses value, albeit at a lower rate; the bank typically makes up much but not all of the losses do to inflation by paying interest.

The story of the 20th and 21st centuries are, if nothing else, the capture of the banking system by the state. It is becoming increasingly difficult for people to amass wealth that is securely theirs. Bank accounts can be confiscated. Their money can be held hostage via a banking holiday. Regulators can learn intimate details of the private affairs of individuals by reviewing the banks’ records.

Those of us who wish to reverse the trend towards an ever more powerful and intrusive state must take the lead to restoring the ability of people to stockpile savings.

How can we do this? There are several ways:

  • Create new forms of money that are easily stockpiled. This does not have to be gold and silver, but can be things like cell-phone minutes
  • Create new markets to trade without interference
  • Create new systems for storing forms of money safely

Building these institutions will not be easy. They cannot be imposed from outside. They cannot depend on some messianic leader to encourage their adoption. They must attract users who have no interest in the political agenda, but because they satisfy the users’ personal needs. It is important to bear in mind that this regime has existed so long that for most of us who are alive today have no idea that it could ever be otherwise. Furthermore, the public is the target of a pretty comprehensive propaganda campaign that pervades all forms of mass media that distorts history and aggrandizes the growth of the state. At this point, the vast majority of people are absolutely convinced that a free society is at best doomed to economic collapse and in all likelihood a violent, brutish, dog-eat-dog dystopia.

While I don’t have a particular “magic bullet” to restore the vital freedom to amass wealth without having to fear government confiscation or debasement, I do have some suggestions:

  • Accept as wide a variety of currencies and goods as payment as you can.
  • Likewise be prepared to proffer as wide a variety of goods and currencies as possible.
  • Store some of your savings in places that others do not have access to. Limit knowledge about the size of your savings on a strict need to know basis. Loose lips sink ships! (NB. Safety Deposit Boxes don’t count; FDR had his thugs systematically go through people’s safety deposit boxes throughout the country, confiscating the newly illegal gold) .
  • Do not cooperate with the state any more than your conscience, or willingness to engage in civil disobediance permits. Keep in mind, though, that principled non-cooperation with the state can easily lead to being thrown in jail, beaten, or even murdered.
  • Keep your eyes peeled for new ways of doing business, new products, and new marketplaces that increase your independence. When you find something, publicize it as widely as is appropriate.

In the end, the current system cannot last. The United States Government is consuming resources at a rate that is unsustainable. Using the collapse of other states as a guide, it is quite likely that its officers will wreck a large portion of the U.S. economy in their efforts to delay the inevitable. How destructive the collapse is, how vulnerable people are to the destructive edicts issued by government officials will be a function of how well we do in fostering the growth of alternate institutions. Shielding ourselves from harm is but a first step. If we wish to avoid experiencing that which Germans did 100 years ago - the destruction of an enlightened culture by a voracious predatory state leading to totalitarianism, death and war (see here for the illustrated version)- we must also figure out how to shield our neighbors too.

So I have a homework assignment for you, dear reader, what will you do to build the institutions that make it easier for you and your neighbors to keep what they make away from the tax-man?

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.

Quote Of The Day

CEO of a Danish wind energy company being very uncouth:

Ditlev Engel, president and chief executive of the Danish wind-energy company Vestas, said anecdotal evidence about birds being caught in turbine blades and other environmental horror stories do not usually hold up under scrutiny.

“Do people think it’s better all those birds are breathing CO2? I’m not a scientist, but I doubt it,” said Engel, whose company is expanding its U.S. manufacturing and distribution operations. “Let’s get the facts on the table and not the feelings. The fact is, these are not issues.”

Yeah, I know… All those birds inhaling oxygen and exhaling CO2? Think of the carbon footprint!

I say kill all the birds. It’s good for the environment.

Yes, I realize he was saying that we should reduce CO2 to make the air safer for the birds… Which was my second reaction. My first reaction is that above.

Hat Tip: Coyote Blog

Rush Limbaugh and Fox News too damned cheap to pay for their own bandwidth

rushbig

Screenshot of Limbaugh's website as of 4PM EST today

Being as they obviously can’t afford to serve their own Internet files, both Rush Limbaugh and Fox News have been hotlinking the now-infamous Department of Homeland Security report this site recently released. Since the report was published, we’ve experienced a tremendous burst of traffic, and been working overtime (special kudos to Brad) merely to keep this site operational. Hotlinking is a no-no in the Internet community. If you are new to the Internet, here’s a good explanation as to why it’s so frowned upon. It would be difficult to characterize Limbaugh or Fox as being an Internet newbies, however.

We’d take to take time to offer a special thank you to Michelle Malkin for going out of her way to serve a copy of the report on her own site.

I first learned that Rush had hotlinked us last night. The “talent on loan from God” webteam still doesn’t seem to be aware of what their readers see when clicking on the link.  Here’s what people coming from hotlinked sources will find.

In the meantime, if you came here to read the report, here’s a copy of the .pdf file.

rushsmall

Blowup of the Rush's frontpage hotlink

A Tea-Party Postscript

According to Nate Silver’s estimate, something approaching a quarter million people took part in the tea party protests that took place around the country yesterday. That seems like a large number, and maybe even the start of something big, right ?

Ross Douthat thinks not, and doubts that they’ll have any more impact on the growth of the state than the protests against the Iraq War did in stopping that conflict:

They resemble nothing so much as the anti-war protests during Bush’s first term.

(…)

But they do have all of the weaknesses of the anti-war marches: Their message is intertwined with a sense of disenfranchisement and all kinds of inchoate cultural resentments, they’ve brought various wacky extremists out of the woodwork (you know, like Glenn Beck), and just as George W. Bush benefited from having opposition to his policies identified with peacenik marchers in Berkeley and Ann Arbor, so Barack Obama probably benefits from having the opposition (such as it is) associated with a bunch of Fox News fans marching through the streets on Tax Day, parroting talk radio tropes and shouting about socialism.

(…)

Still, here we are in the sixth year of the Iraq War, and all those anti-war protests, their excesses and stupidities notwithstanding, look a lot more prescient in hindsight than they did (to me, at least) when they were going on. So if you’re inclined to sneer and giggle at the Tea Parties, keep in mind that just because a group of protesters looks ragged, resentful, and naive, that doesn’t necessarily mean they’re wrong to be alarmed:

Alarmed, yes, just as the anti-war protesters were alarmed at the idea of their country engaging in pre-emptive war based on dubious intelligence that latter proved to be entirely wrong, and fought a war without any idea of how to end it or what would follow in the wake of Saddam Hussein’s removal from power.

In hindsight, it seems clear that the anti-war protesters were more right than wrong but, despite their vocal opposition, we’ve lost thousands of troops and hundred of billions of dollars and have very little to show for it.

Along the same lines as Douthat, and echoing a question I raised yesterday, Alex Knapp believes that the movement’s biggest mistake is not figuring out what it’s for:

[I]ncreasing government spending is alarming. There’s no question about that. The higher deficits being predicted under an Obama Administration should be a cause for concern. But you can’t argue against higher deficits and for cutting taxes at the same time. Real life doesn’t work that way. You can’t simply wish federal revenue into being.

By the same token, you can’t just go around saying we need to “cut spending.” That’s just mindless handwaving. Let’s put this simply. 80% of the budget falls into five categories: Social Security, Medicare/Medicaid, Defense, Veteran’s Benefits, and Interest on the Debt. EIGHTY PERCENT. So if you don’t tell me what you’re going to be able to feasibly cut in those categories, you are not approaching the problem seriously.

Knapp is, of course, entirely correct.

The problems that we face are far bigger, and far more serious, than the relatively paltry sums that most people point to when they talk about government waste (earmarks, for example, account for less than 1 percent of the total Federal Budget). We aren’t going to solve are problems by nibbling at the margins, it’s going to take real sacrifice, it’s going to cause real pain, and it’s something we need to be talking about now.

Standing around calling Obama a socialist, or wearing a t-shirt that says “Who is John Galt ?” accomplishes nothing.

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