Category Archives: Equal Protection

A Personal View of the DC VS. Heller Oral Arguments

Constitution, District of Columbia v. Heller, Dumbasses and Authoritarians, Equal Protection, Government Regulation, Individual Rights, Keep and Bear Arms, Politics, Theory and Ideas

I watched/listened to the oral arguments in DC vs. Heller this morning, and in my view (solely based on my knowledge of the justices, and the questions and arguments raised today; which is always iffy) we’re looking at a mixed bag.

Well, first the good news. It seems clear that the entirety of the court, even Souter, Breyer, and Ginsburg, agree that the second amendment protects a pre-existing individual right right to keep and bear arms.

The rest of the question gets a bit thornier however.

Clearly, the position of the courts is, and has always been; that all rights protected by the constitution are, under some circumstances, subject to regulation or restriction. I can for example say whatever I want in the privacy of my home, or make any criticism of the government that I want, but I cannot publish malicious lies about someone. Preventing libel, is a reasonable restriction on the first amendment, and is a compelling interest of the state.

Given this historical and legal basis, folks who say “What part of ‘Shall not be infringed’ don’t you understand” are just being silly (and often offensive, threatening, etc… etc…).

At this point, it seems clear that all of the justices believe that some regulation is reasonably allowed under the second amendment. The question then devolves down to “what is a reasonable restriction”… therein lies the rub.

DC presented the position that not only was there not an individual right; but that even if there were, that local legislatures had nearly unlimited power to regulate such rights (in fact, their lawyer suggest that they had plenary authority, a position flatly rejected by the court).

Walter Dellenger, who argued the case for DC, was absolutely DESTROYED by all the justices during questioning. Even the liberal justices tore him to pieces. It was clear he was disingenuous in his arguments, and presented no clear or coherent logic, justification, or defense of their positions. Even Ginsburg and Breyer, who nominally support strict regulation of firearms, seemed unswayed and unimpressed.

Paul Clement, the Solicitor general of the U.S., argued a “middle road” standard; presenting very strong arguments for the individual right position, which seemed to impress the justices. He was much weaker on his other contention however that reasonable restriction and a broad standard of review were necessary to protect the public interest in regulating firearms; specifically citing machine guns and “plastic guns designed to get through metal detectors” (a fantasy commonly used by gun banners to scare people into agreeing to bans in principle).

Alan Gura, the chief council for Heller, was very strong on presenting the individual rights position; but was very weak and unfocused in his arguments on the position of what constitutes reasonable regulation, and why. I think he was expecting most of the challenge to come from the “individual rights” argument, and not as much from the ‘reasonable regulation” argument. Though he was certainly prepared with facts and citations (his knowledge of 300+ year old statutes and precedent in both American and English common law was impressive), his arguments lacked coherent structure or flow.

For example, Justice Breyer repeatedly asked questions to the effect of “do the 80,000 deaths per year by handguns in the united states constitute a basis for reasonable regulation, or can they be considered in crafting such regulation?”. Were Gura prepared to argue the basis of reasonable regulation, his response should have been something along the lines of “We contend that crime rates are neither affected by, nor relevant to, the lawful possession and use of arms; and that regulation and restriction of the use of arms by law abiding citizens does not serve the compelling interest of the state in preserving public safety”. Instead he made vague arguments about reasonable standards of review etc… etc…

Dellenger in fact seized on this waffling about standards, to suggest during his rebuttal that if the court specified a strict standard of review (something they seemed inclined towards), that it would result in hundreds of judges around the country determining what was and was not protected by the second amendment, on an individual case by case basis.

So, as I said, a mixed bag.

Kennedy, Scalia, Roberts, Alito, and Thomas all clearly believe (both from questioning in this case, and in previous opinions and writing) in a strongly protected INDIVIDUAL right to self defense, and to keep and bear arms. It also seems clear that they support a strict standard of review for legislation; and a very limited scope for legitimate regulation.

Surprisingly, it also seems that Souter and Ginsburg agree that there is a right to self defense, AND that there should be a strict standard of review; however it seems they believe in a broader scope for legitimate regulation.

Stevens and Breyer, although they both seem to believe there IS an individual right, also seem to believe that very strong regulations or perhaps bans, are acceptable.

My prediction… that’s a tough one…

I think that we will see an absolute affirmation of the individual right to keep and bear arms, and that this right includes explicitly the right to self defense. In fact I think we may see some language to the effect of “for all lawful purposes, including hunting, sporting uses, and self defense”.

I also think we will see a strict standard for review, and application of that standard to the entire United States, including the states individually (under the 14th amendment and equal protection clause), rather than limiting the scope to D.C. or to the federal government only.

What I really have no prediction on, is what standard of “reasonable regulation” they might promote.

What seems clear, is that the entire court believes that US V. Miller (one of the few cases directly addressing the second amendment), and the standards it presents, are deficient. Scalia, Alito, Breyer, and Ginsburg all made comments to that effect. What that means for the future though… I think its anyones guess really.

I think we have a good shot at striking down all total bans on any gun, or even any class of gun, excepting perhaps machine guns and destructive devices. I believe they may explicitly approve of some licensing provisions provided that the licensing standard is non discriminatory. I believe that they would explicitly approve of regulations that restricted the rights of felons and minors.

I have no real read though on what their take is on the legitimacy of state and local regulations, such as trigger lock requirements, ammo bans, safe storage requirements, etc… I’m sure they will rule that state and local regulation are acceptable, but what standard of “reasonable regulation” will apply… who knows?

As it is though, under any possible construal of “reasonable regulation”; I would expect that the majority of the gun laws in California, Massachusetts, New York, Illinois, New Jersey, and Hawaii; would be in whole or in part, struck down.

Chris Byrne
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

http://anarchangel.blogspot.com

The National DNA Database

Equal Protection, Foreign Affairs, Individual Rights, Legal, Privacy, The Surveillance State

Britain has long been a bellwether for what is coming to the United States. First it was smoking bans, soon it will likely be national health care. And shortly to follow will probably be a federal DNA database.

What will follow that? The inevitable stories of DNA database abuses:

IT IS an object lesson in the unwisdom of shopping your nearest and dearest after an argument. In 2001 Michael Marper was arrested after his partner complained of harassment; the couple were later reconciled and the case was dropped. But in the meantime Mr Marper had to give police a sample of his DNA-which is still sitting in Britain’s DNA database, along with 4.5m others. That collection, already the world’s largest, covers 7% of the population (and 40% of black men). It is still growing, boosted by samples taken from all those arrested for a wide range of offences and kept even if they are never charged.

Since this lovers’ tiff, Mr Marper and a teenager known as “S”, who was tried for attempted robbery and acquitted, have spent much time trying to get their records removed from the database. In 2004 the House of Lords rejected their claim that the retention was discriminatory and infringed their rights to privacy.

A case can be made that one forfeits one rights when committing a crime, and thus after that point they may lose their right to DNA privacy. But in the eyes of the law, one hasn’t “committed” a crime until one is convicted of committing a crime. This is a simple case where individuals who have not been proven to have done anything wrong are having their privacy violated by the state, in case they might do something wrong in the future.

And they’re not alone. At the moment, their case is under appeal with the European Court of Human Rights, and if they are successful, as many as a million DNA samples might need to be purged from the database. But the Europeans may not be likely to view DNA privacy as an “essential” liberty. After all, if you haven’t done anything wrong, you have nothing to fear, right?

What will it take to see a federal DNA database on our shores? Probably one skillful politician to demagogue the threat of terrorism, despite the fact that a DNA database wouldn’t do anything to stop terrorism. But if it works* for Britain, it’ll probably work here, right?
» Read more

Brad Warbiany
https://thelibertypapers.org/

The Consequences When Government Tries To Do A Good Thing&#153

Economics, Equal Protection, Foreign Affairs, Government Regulation, Political Correctness

I think we can all agree that gender equality is a Good Thing&#153. I think we can all agree that there should not be any barriers, legal or otherwise, to women reaching the highest levels of the workforce. And I think we can mostly, if not all, agree that the “old boy’s club”, to the extent that it exists, harms our economy by making it much harder for qualified women to reach that level of a company.

The real question, then, is what to do about it. Personally, I’m more of a “let the market sort it out” type. After all, we’ve seen a sea change on this issue in just my lifetime, and anyone who still harbors thoughts that business is just a “man’s game” should keep his guard up before Oprah owns his ass. Norway, though, has taken a different tack. Not content to let the market sort it out, they’ve mandated that 40% of the countries seats on Boards of Directors be held by women. Unfortunately, though, they’ve put the cart before the horse, and simply crowned a few of the countries top business women:

Before the law was proposed, about 7% of board members in Norway were female, according to the Centre for Corporate Diversity. The number has since jumped to 36%. That is far higher than the average of 9% for big companies across Europe—11% for Britain’s FTSE 100—or America’s 15% for the Fortune 500. Norway’s stock exchange and its main business lobby oppose the law, as do many businessmen. “I am against quotas for women or men as a matter of principle,” says Sverre Munck, head of international operations at Schibsted, a media firm. “Board members of public companies should be chosen solely on the basis of merit and experience,” he says. Several firms have even given up their public status in order to escape the new law.

Companies have had to recruit about 1,000 women in four years. Many complain that it has been difficult to find experienced candidates. Because of this, some of the best women have collected as many as 25-35 directorships each, and are known in Norwegian business circles as the “golden skirts”. One reason for the scarcity is that there are fairly few women in management in Norwegian companies—they occupy around 15% of senior positions. It has been particularly hard for firms in the oil, technology and financial industries to find women with enough experience. DNO, for instance, an oil and gas firm that operates in Yemen, Iraq and elsewhere, found women it was happy with last November, but their expertise is in finance and human resources, not oil, says Helge Eide, DNO’s president. “However, we retain sufficient oil and gas experience in the men on our board,” he adds.

When government tries to do something “good”, they end up bringing in unintended consequences and ill effects that they often seem surprised to find. In this case, much like Sarbanes-Oxley, it has caused many companies to go private. And rather than leveling the playing field for all women, it has simply elevated a few specific women to a level where they sit on so many boards that their efforts must be spread too thin to have any real effect.

What is also interesting here is the difference between allowing the market to sort it out, and not. America tends to have relatively low business regulation in comparison to Europe, where the barrier to entry for a public company is tremendous. Thus, America’s more free market offers more opportunity for women to start public companies and to prove their mettle in the business world. As the story points out, this has resulted in about 15% of Board of Directors at American Fortune 500 companies to be women, with Britian, Europe, and Norway (pre-mandate) lagging behind.

This is a perfect example of government attempting to fix a problem through mandate, when all they have done is masked the problem. America lets the market sort this out, and women hold more top-level positions than other industrialized nations. It proves what we free-market advocates have long stated: the free-market isn’t simply the most efficient distributor of capital, it is also one of the most equal and fair systems for distributing opportunity.

Brad Warbiany
https://thelibertypapers.org/

Author Of The Ron Paul Newsletter Outed?

Election '08, Equal Protection, Political Correctness, Politics

After speaking with multiple sources (many of them off-the-record) and going through a publishing history, Reason Magazine has added weight to the suspicions of many on who was responsible for the Ron Paul newsletter…current Ron Paul advisor Lew Rockwell.  From the tone of the article nobody else seems to come close as a prime suspect, except anarcho-capitalist icon Murray Rothbard (who is now dead and unavailable for comment).  Rockwell’s denied the allegations but there don’t appear to be a swarm of people coming to his defense.  Of course, we’ll never know for certain unless the guilty party does step forward or someone provides evidence to point him out, but it seems pretty clear that Rockwell had some significant level of involvement with the newsletter (he benefited financially from it according to Reason) and as such if Ron Paul expects libertarians to believe he had nothing to do with the sentiments in those newsletters when one of the chief beneficiaries of that newsletter is still one of his key advisors I think he’s got some explaining to do…something more convincing than the “I have no clue what was going on because I’m an incompetent manager” defense.

And to the commenter on an earlier thread who claimed that Murray Rothbard was very capable of writing some of the more offensive things in the newsletter, based on what I read in the Reason article you were right and I was wrong.  Kudos for being able to recognize the stench.

UCrawford
I Can’t Think Of A Catchy Title

I suppose the best way to describe myself would be to say that I have a problem with authority. I’ve always disliked when people told me what to do, even as a young child, and I’ve always preferred to find my own path through life and make my own decisions, even if it occasionally went against the conventional wisdom and sometimes worked to my short-term disadvantage. My dad said I inherited it from him, but that I’ve taken it to a whole new level. When I was young I wanted to be a journalist, until I got to college and realized that journalism was less about the search for objective truth than it was about writing the stories that best suited your employer’s interests, whether they were true or not (which didn’t sit well with me at all). So I drifted aimlessly through a couple of years of college as an indifferent (often drunk) student, unsure of what to do with myself until one of my fraternity brothers gave me a copy of “The Fountainhead” and I got hooked on the ideas that success and a refusal to conform to societal standards were not mutally exclusive, and that the greatest evil in the world was society and government’s failure to recognize or accept individuality and individual freedom as a strength, not a weakness. So I threw myself into studying politics and history, worked in a few political campaigns after college, had some success, and thought about doing a career in politics until I realized that most of the people I knew who had never had a career outside of politics had no comprehension of how the real world actually worked and tended to make a lot of bad, self-absorbed decisions that rarely helped the people they claimed to be representing.

That didn’t sit well with me either, so I decided to put any thoughts of going into politics on hold until I’d actually had a life and possibly a real career, and I spent the next couple of years drifting between a series of random yet educational jobs (debt collector, deliveryman, computer salesman, repo man, dairy worker) that taught me the value of hard work, personal responsibility and the financial benefits of dining at Taco John’s on Tuesday nights (2 tacos for a buck) when money got tight.

After awhile, however, the desire to see the world (and the need for a more consistent and slightly larger paycheck) convinced me to join the Army, where I spent ten years traveling around the world on the government dime working as an intelligence analyst. I generally enjoyed my time in the military, despite the aforementioned problem with authority (which wasn’t as much of an issue in the military as many people might think it would be), and I got to see that the decisions our political leaders make were sometimes frivolous, often ill-informed, and always had unforeseen repercussions down the road…especially on the soldiers tasked with implementing those decisions. I was fortunate enough to spend most of my 10 years in the military doing jobs I enjoyed, traveling to countries that I always wanted to see (Scotland is the greatest place in the world to hang out, Afghanistan is very underrated) and working with people I liked and respected, until I finally decided that at 35 it was time to move into a job where I didn’t have the threat of relocation lying over my head every two or three years, where I didn’t have to worry about my friends being blown up, and where I didn’t have to work in any capacity for George W. Bush.

I work now for a financial company in Kansas where I’m responsible for overseeing, pricing and maintaining farms, commercial and residential properties, mineral assets, insurance policies, annuities, etc. In my spare time I like to read books on economics, history, and politics (I’m preparing to tackle Murray Rothbard’s “Man, Economy & State” and Von Mises’ “Human Action”…should take me about a year at the rate I’m currently finishing books), watch movies, and destroy posers on “Halo 3” (where I’m signed in under “UCrawford” for anyone interested in taking a shot at me some time). I used to play rugby until age, inconsistent conditioning, and a string of gradually worsening injuries finally convinced me to quit. I’m a rabid fan of the Kansas Jayhawks in general and their basketball and football programs in particular and I’m also a devoted fan of the Kansas City Chiefs and Royals. I’m also fond of going online and debating/picking fights with people on the merits of the philosophy of individual freedom…sometimes to the point of being an asshole (but hopefully a reasonably well-informed asshole). I’ve been a big fan of The Liberty Papers ever since finding it online, I respect the body of work they’ve put out, and I’m honored that Brad Warbiany invited me to join his jolly band of freedom fighters. So cheers, Brad, and to everyone else I look forward to reaching consensus or locking horns with you in the near future.

http://dangerouslyidealistic.blogspot.com/

Iowa’s Pink Locker Room — Federal Issue?

Education, Equal Protection, Government Regulation, Political Correctness, Theory and Ideas

Many years ago, coach Hayden Fry of the Iowa Hawkeyes chose to paint the visiting team’s locker room pink. In the world of big-time college football, he believed that putting his opponents into a pink locker room would pacify them and give the Hawkeyes a better chance for victory.

Such a sentiment, though, doesn’t quite fly in the “enlightened” world found on college campuses today:

A former University of Iowa law professor plans to file a Title IX complaint alleging the University of Iowa’s insistence to maintain Kinnick Stadium’s pink locker room is ‘‘a civil rights issue.’’

Jill Gaulding, who left Iowa in 2005 and practices law in Minnesota, led a protest Nov. 17 outside Kinnick Stadium and gathered signatures for a petition to change the locker room.

She said she plans to file the federal complaint ‘‘in the next several weeks.’’

‘‘I’m interested in asking the Office for Civil Rights to investigate, and if they find that there’s a problem — which I hope that they will — we’ll see what happens then,’’ she said.

In 1979, former Iowa Coach Hayden Fry painted the visiting locker room pink for two primary reasons. He claimed the color has a passive effect on opponents. And, according to his biography, ‘‘pink is a often found in girls’ bedrooms, and because of that some consider it a sissy color.’’

Gaulding contends the pink locker room represents a harmful message ‘‘because of the impact it can have in our brains.’’

So we’ll go crying to the feds. We’ll define ourselves by our surroundings, and if they’re not exactly how we think is fair, we’ll run to the authorities to “make the bad men stop”. Just think what impact that lesson will have in our brains!

The color of a locker room is not against any rule of football or the NCAA. For opposing players, it should be seen as a fair bit of “psychological warfare”, and addressed as such. For a good coach or a good team, it can be used as a motivating factor to beat the team that you’re facing. The coach, for example, could explain to his players that it’s a sign of Iowa’s disrespect, motivating them to prove themselves. Which is exactly what I think would be the response to this:

‘‘Well, ask a question of your readers about whether Iowa should hang a banner across the opposing team’s locker room that said you’re a bunch of sissies,’’ she said. ‘‘Because if you think there might be a problem with that, then you should agree that there might be a problem with the pink locker room.’’

Oppose it? I’m guessing any opposing coaches would love to walk into the locker room and see that. College football is a highly emotional game, and if you really want to get a 20-year-old testosterone-fueled athlete to give his all in a game, trying to attack his manhood is a pretty simple factor. As a Purdue fan, I would think that the Boilermakers would be motivated by such a banner, not cowed into submission.

There are a lot of lessons that our young people need to learn before they enter real life. I’d say one of the most important is that often the world doesn’t quite do exactly what you like, but that you should suck it up and win anyway. It may take the form of an opposing team having a pink locker room, or it may have to do with a coworker who tries to take credit for your accomplishments to further his own career at your expense. Running to the feds might get your locker room fixed, but it will make you look like a crybaby. Running to human resources might get your coworker reprimanded, but it will destroy the level of respect that most of your other coworkers have for you.

The feds have no place in this, although I can’t say they’ll keep their noses out of it. Barring any NCAA rules prohibiting this, it’s a question for the University of Iowa as to how to balance their desire for political correctness with their desire for football success. The school’s administration is not changing, and while I have no problem with social pressure being exerted on them to change (such as the protest this lady led to get it changed), but to put this in the hands of federal judges is downright ludicrous.

Brad Warbiany
https://thelibertypapers.org/
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