Monthly Archives: June 2010

Christopher Hitchens Diagnosed With Cancer

I should honestly not be blogging right now but this required my attention. I have some bad news for those who like having an intellectually engaging political climate. Christopher Hitchens has been diagnosed with cancer of the esophagus. From Michael J. Totten:

Damn.

Christopher Hitchens has been diagnosed with cancer. According to the Washington Post, he has been “advised by my physician that I must undergo a course of chemotherapy on my esophagus. This advice seems persuasive to me.”

Some thought he published his new book Hitch-22: A Memoir a bit prematurely. I hope they’re right.

Get better, Christopher.

From getting literally beat up by thugs in Beirut after pulling down a nationalist poster to traveling to the worst troublespots of the world, Hitchens put his words to reality in a way that has set him distinctly apart from other writers and pundits. While I’m not an atheist, I distinctly appreciate the message of God is not Great, which took to task the corruption and perverse history of organized faith. From taking on the pedophilia of the Catholic Church to the oppression of Islam, Hitchens wasn’t afraid to critique those who are often taken to be untouchable.

I’m hoping that he pulls through. Without him, the discourse in this country (and globally) is going to get even dumber than it already is.

Yes, the Second Amendment really means what it says… and that means you too Chicago

This past Monday, Samuel Alito, writing for the majority (with separate concurring opinions from Clarence Thomas and Antonin Scalia) in the case McDonald vs. City of Chicago and Village of Morton Grove; handed down what in 30 years will I believe, be held as one of (or perhaps half of a pair of, or the second in a series of) the most significant rulings in the courts history, not just for the right to keep and bear arms, but for the rights of all people in this nation.

I had meant to get this post out yesterday, but I had to take the time to read the entire opinion… all 214 pages of it… and think about it for a bit.

This judgment is notable, both for what it does, and for what it does not do; and I want to go into that in some depth… and I want to go into some of the background and issues surrounding the decision that aren’t necessarily about the right to keep and bear arms

However, that is going to get long…. and if you aren’t interested in constitutional law and the nature and exercise of the rights and powers of the states, it’s going to be boring. There’s only so much you can do to make enumeration and separation of powers issues over more than two hundred years, all that interesting.


Note: Also, for those of you who DO closely follow con law, this is going to be a gross simplification in some ways. I don’t have time to write a book here, and a book is what it would take to cover this comprehensively (actually several… there are a few out there already, and Heller and its progeny are sure to generate more).

At any rate, I’m going to break it out into another posts, and I’ll update this post with a link when I finish the other one.

… I should warn you, I’m already 5,000 words in, and I’m probably less than half done…

McDonald vs. Chicago is the first major gun rights case brought before the supreme court under the clarified Heller doctrine, to wit:

The right to keep and bear arms for all lawful purposes is an individual right, possessed by all citizens and lawful residents of this country (provided this right has not been statutorily stripped from them, with due process of law); and the core of that right, is the fundamental right to defense of self, and others.

Actually, McDonald is a bit more than just “first”… In fact, the case was prepared in advance, and filed immediately on the handing down of the Heller ruling; by the lead counsel on the Heller case, Alan Gura.

The issue at hand in Heller was to affirm and clarify the basic right; something which those on the left in general, and in the gun control lobby in particular, had been trying to deny for something like the last 40 years

Note: The modern gun control movement as currently constituted really began in the late 60s; roughly coinciding with accelerating decay of civil order and rise in civil unrest, the rise of the drug and counterculture, and dramatically rising crime rates.

More than anything else, it was the assassination of Robert Kennedy, and Martin Luther King that kick-started the gun control movement as it exists today.

The gun control movement in the U.S. as a whole has its roots in racial discrimination against immigrants in the pre-civil war northern cites, and blacks in the post civil war south.

Up until the late 1950s, the left as a whole actually advocated gun ownership, as a bulwark against the state… a position generally ascribed these days to the “far right”; but as the left post 1932 increasingly BECAME the state, their position on civilian non-police gun ownership changed.

The issue at hand in McDonald is substantially identical to Heller, with a crucial difference we’ll discuss in a moment; that of incorporation of the second amendment against state and local governments, as other rights enumerated in the bill of rights have been.

In Heller, the substance and nature of the right were affirmed. However, though the assertion of the right is very clear; it’s application is potentially limited.

Because the Heller case pertained to a federal enclave (Washington D.C. is not a part of any state. It is a federal enclave. Precedent in DC cases applies federally, but not necessarily to issues in the several states), the ruling only explicitly applied to the federal government.

In principle the right could be asserted against the states, or it could not be… depending on judicial interpretation. Either way a judge decided, it would almost be certain to be appealed… as indeed it was (in at least four cases so far, all of which were delayed pending the McDonald ruling).

Also, Heller left various questions open to interpretation, such as the standard of review for laws pertaining to the right to keep and bear arms, and whether interest balancing tests could be made.. or for that matter just what types of laws would be acceptable short of outright bans on firearms in the home (which were explicitly forbidden).

In Mondays decision on McDonald, it was affirmed (quite strongly), that the rights protected by the second amendment are equal in stature to the rights protected by the first amendment, and all the others.

In both the majority opinion, and the concurrences, the court made it explicit that the protections afforded by the second amendment applied against the state. Further, they made it clear that a strict standard of review was to be applied to any law regarding the right to keep and bear arms (though they do not by any means disallow all regulation. In both Heller and McDonald, it is acknowledged that some regulation of any right can be acceptable, but must be strictly scrutinized).

There is still one set of questions to be resolved, what exact restrictions against keeping and bearing arms will be acceptable under this standard of review. Just as there are many limitations against speech permitted by current jurisprudence, including many which probably should not be allowed under the constitution (such as most of what is called “campaign finance reform”); there will likely still be substantial restrictions allowed by the court. In any case, it will be years… likely decades… before the whole issue is settled law, and in the mean time, there will be a lot of contradiction and chaos.

The fight is certainly not over… in fact it’s really just getting started.

This is where we get into the theoretical discussion about the constitution, so I think I’m going to end here and pick it up in the next, much longer, post.

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

The Ownership Society

One of Bush’s central themes — when he wasn’t talking about the War on Tara — was the “ownership society”. As we all know, it was a pretty universal failure. NCLB didn’t get parents any closer to owning control over their childrens’ education. Medicare Part D gave the government more control over Seniors’ prescription drugs; while HSA’s and HDHP’s never really caught on — and now may be destroyed completely by Obamacare. And we all know where his other privatization, which I affectionately call Social Security Part D ended up – with Democrats controlling both houses of Congress.

But for most of his presidency, Bush could point to one shining acheivement: record homeownership levels! But today, with so many people underwater on their loans, one wonders whether you can still call it “ownership”:

The U.S. homeownership rate, already down two percentage points from its 2006 peak of 69%, could fall by another five percentage points over the coming years to levels last seen in the mid-1990s, says a staff report from the Federal Reserve Bank of New York.

The study looks at the number of homeowners who are underwater, owing more than their homes are worth, and excludes them from the official homeownership rate calculated every quarter by the Census Bureau.

While the official figure stood at 67.2% at the end of last year, the authors produce their own estimate of an “effective” homeownership rate. The difference between the official and effective homeownership rates, or what the authors dub the “homeownership gap,” is around 5.6 percentage points for the nation as a whole, which means the effective rate of homeownership is closer to 62%.

I guess it’s not that big of a surprise. Buyers faked their incomes (or never documented them at all), and now they’re “fake” owners.

And the bad news is, if prices keep dropping (as I predict), it’s only gonna get worse.

Hat Tip: Irvine Housing Blog

Hayek on Urban Life

It’s not by mistake that you’ll hear talk of property rights more in the country than in the city, since it’s clearer who owns what in the wide open range. I’ve thought about this a few times but the brilliant economist Frederich Hayek thought about it more intensively in his work The Constitution of Liberty:

“In many respects, the close contiguity of city life invalidates the assumptions underlying any simple division of property rights. In such conditions it is true only to a limited extent that whatever an owner does with his property will affect only him and nobody else. What economists call the ‘neighborhood effects,’ i.e., the effects of what one does to one’s property on that of others, assume major importance. The usefulness of almost any piece of property in a city will in fact depend in part on what one’s immediate neighbors do and in part on the communal services without which effective use of the land by separate owners would be nearly impossible.

The general formulas of private property or freedom of contract do not therefore provide an immediate answer to the complex problems which city life raises. It is probable that, even if there had been no authority with coercive powers, the superior advantages of larger units would have led to the development of new legal institutions—some division of the right of control between the holders of a superior right to determine the character of a large district to be developed and the owners of inferior rights to the use of smaller units, who, within the framework determined by the former, would be free to decide on particular issues. In many respects the functions which the organized municipal corporations are learning to exercise correspond to those of such a superior owner.”

Quote Of The Day

Ezra Klein:

For those of you who don’t click on the link, the conclusions, based off a raft of numbers that the Committee for a Responsible Federal Budget worked up for me, are that you’ll never get deficits under control if you don’t get growth back on track; you’ll never get deficits under control if you refuse to consider tax increases;

And yet he just doesn’t seem to see that if you raise taxes, you’ll kill growth.

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