joyfulchristian

Mona Charen's wrong on one point

She says:

When the First, Fourth, and Ninth Amendments speak of “the right of the people” to free speech and to be free from unreasonable searches and seizures and so on, no one interprets these as collective rather than individual rights.

In fact, Stevens' dissent in Heller does claim that our first amendment rights to assemble and petition the government are, in essence, collective rights.

Justice Stevens is an Imbecile (Part 6 of ???)

Stevens claims that contemporary commentators are largely useless because 1) they discuss the 2nd amendment and Article VII of the English Guarantee of rights and because 2) they appear to be unfamiliar with the drafting history of the 2nd amendment.

Stevens 1st argument is especially illustrative. He had previously claimed that Article VII has little use because it was worded differently and written at a different time. However, faced with the fact that contemporary commentators often expressed the view that 2nd amendment was the logical progression of Article VII utterly fails to consider the possibility that this might mean that his view of Article VII is wrong and instead concludes that contemporary commentators are worthless on the subject.

His presents no evidence that those writing soon after the 2nd was ratified had no understanding of it's history. Given that, this statement seems to be based on nothing more than that they reached different conclusions than he did. I also find the proposition, common among academics, that we understand more about what was "really" going on in some time in the past than did those who experienced it to be incredibly arrogant.

Justice Stevens is an Imbecile (Part 5 of ???)

Arggh.

What is important about Blackstone is the instruction he provided on reading the sort of text before us today.  Blackstone described an interpretive approach that gave far more weight to preambles than the Court allows. Counseling that “[t]he fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable,” Blackstone explained that “[i]f words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate.  Thus, the proeme, or preamble, is often called in to help the con-struction of an act of parliament.”  1 Commentaries on the Laws of England 59–60 (1765) (hereinafter Blackstone).  In light of the Court’s invocation of Blackstone as “ ‘the preeminent authority on English law for the founding generation,’ ” ante, at 20 (quoting Alden v. Maine, 527 U. S. 706, 715 (1999)), its disregard for his guidance on matters of interpretation is striking.

It is not Scalia, but Stevens, who ignores Blackstone's guidance.  As quoted by Stevens himself, Blackstone counsels that preambles be used to resolve meaning, "whenever they are ambiguous, equivocal, or intricate.  Stevens argues at length that the preamble must be read to confine the possible meaning of the operative clause because failing to do so would render the preamble without meaning. The Blackstone text he quotes, however, seems to say that the purpose of a preamble is to help resolve ambiguity and offers not other interpretive usage of preambles. Interpreting ambiguity is valuable and using a preamble solely in this way clearly does not render it without meaning.

Scalia, on the other hand, argues:

That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.”  The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.)  But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.

It sems to me that Scalia is taking the exact same view on preambles as Blackstone, they serve to resolve ambiguities and nothing else. (It should be noted that elsewhere Stevens claims that Scalia is inventing a whole new system of interpretation by requiring "only" a logical connection between the preface and the operative clause. Scalia, however, is clearly using this test to articulate the exact same interpretative position proposed by Blackstone and praised by Stevens.

Justice Stevens is an Imbecile (Part 4 of ???)

A good 9-10 pages of Stevens' dissent is spent looking at all the different proposed languages set forth for the 2nd amendment and then concluding that because Madison chose not to base his language on proposals that more explicitly protected civilian usage, that he MUST not have had any intention to protect civilian usage.

This statement is not based on any historical evidence whatsoever. Stevens is apparently capable of reading the mind of a man who's been dead a VERY long time. I'm impressed.

There are any number of reasons Madison might have chosen this particular formulation.  It is, for one, far simpler and more elegant than other proposed variations. For all we know, this could have been his reasoning. He could have felt that additional commentary on what exact usages were protected was superfluous since he had already stated that the right "shall not be infringed".

Attempting to discern what was intended by what was not said is always dangerous and claiming to be able to read the author's mind to determine his underlying motive for NOT saying something is shear hubris. (And yes, Scalia does a bit of this as well, but it's tangential in Scalia's argument and is a fundamental cornerstone of Stevens' dissent.)

Justice Stevens is an Imbecile (Part 3 of ???)

Here we go again:

Although the abstract definition of the phrase “the people” could carry the same meaning in the Second Amendment as in the Fourth Amendment, the preamble of the Second Amendment suggests that the uses of the phrase in the First and Second Amendments are the same in referring to a collective activity.  By way of contrast, the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual interest.

I know I've seen similar comments elsewhere, but just who does Stevens think is going to be "infringing" on the right to keep and bear arms or to assemble or to petition the government? Santa Clause? The Tooth Fairy?

ALL rights protected in the Bill of Rights are rights "against governmental interference."  That's the whole stinking point!

Justice Stevens is an Imbecile (Part 2 of ???)

Good grief.  So apparently, the right to petition the government is only "sort of" an individual right.

In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.”  These rights contemplate collective action.  While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual.  Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature.  For if they are to be effective, petitions must involve groups of individuals acting in concert.(Emphasis added)

So, because you're unlikely to be all that effective petitioning the government on your own, that's not "really" what the right was meant to address.  This is important because Stevens' analogizes this "sort of" thinking to the 2nd.

Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble.  They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.

Stevens, then, appears to take the position that you have neither the right to petition the government or to fight to insure "the security of a free State" unless you have a bunch of people helping you.  In essence, he's arguing that because you're unlikely to succeed without help, that this is the only legitimate way to try at all.

Arghh!

Justice Stevens is an imbecile (Part 1 of ???)

So I finally started reading Stevens' dissent in Heller and I find this:

While the Court makes the novel suggestion that it need only find some “logical connection” between the preamble and the operative provision, it does acknowledge that a prefatory clause may resolve an ambiguity in the text.  Ante, at 4.7  Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its read-ing is not foreclosed by the preamble.  Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.

A few comments:

1. What on earth is ambiguous about, "the right of the people to keep and bear Arms, shall not be infringed."  Of course, Stevens and many on the Court seem to struggle with, "Congress shall make no law," as well.
2. I assume by, "Without identifying any language in the text that even mentions civilian use of firearms," he means "specifically mentions civilian use of firearms."  The majority opinion quite clearly explains, by reference to contemporary sources, that the 2nd amendment at the time would have been understood to protect the right for all legal uses.  Why, would you expect, then, to find a specific reference to civilian usage?
3. Stevens basically accuses them of legislating from the bench. Pot. Kettle. Kettle. Pot.  Sheesh!

Firefox 3.0

Really wishing I hadn't "upgraded".  The new version is constantly crashing and my Scribefire blogging tool plug-in now eats every post.

Great work guys.

Heller

I had a somewhat lengthy discussion of Heller drafted, but when I hit post, only the title showed up. If I have time, I may try writing it again.

Worst police sketch ever?

Possibly.

RIP

The Edmond Sun, Edmond, OK - Bomb claims Guthrie man in Iraq

EDMOND — Steven Farley died knowing freedom is not free and comes at a cost, his son said.

On Tuesday, Farley paid the ultimate sacrifice in Iraq, dying when a bomb tore through a district council building in a Shiite stronghold, killing 10 people, including four Americans. Farley had been trying to help build up the city government in Sadr City.

“He was the best father that a son could hope for,” Brett Farley told The Edmond Sun on Tuesday.

Secretary of State Condoleezza Rice confirmed the death of Farley, 57, during an international conference in Berlin, according to the Associated Press.

Never met him, but living in Guthrie, this hits close to home. May God be with his family.

Oh my word.

At first I thought this was a parody. It's not. We're all going to die.

Something bonkers enough to get Christopher Johnson to talk about something besides the collapse of the Episcopal Church

That's saying something.

Yes, he said "Lobster Empathy Center."

Depends on your definition of "everyone"

Dahlia Lithwick on Hillary

Clinton did answer one burning question: “What does she want?” She just wants to win the war, turn the economy around, and fix health care. Since we all of us want those things, too, her real desire is actually to be the person who does it. Why doesn’t she just say that?

Really, everyone wants to win the war? Even all those people demanding we bring the troops home NOW regardless of the consequences?

Apparently, I'm not the only one

Thank you!

Can someone explain to me why we should trust that McCain would honor his promise to appoint conservative judges, especially if he took a one-term pledge and had no re-election campaign to worry about?

Obviously, infuriating conservatives is not a concern. And just as obviously, McCain's stated commitments about the judiciary are suspect since McCain also made stated commitments about the purported importance of campaign-finance reform that were every bit as solemn as those he is now making about originalist judges. (Indeed, McCain even went to the Supreme Court to seek to suppress the pro-life message to which he says he is unflinchingly committed because the pro-life group in question was running afoul of his campaign finance regs.)

I certainly can't.

The only compelling reason I can think of to vote for McCain is his pledge on judges. The problem with that is that I just don't believe him. If he were up against Hillary, I probably wouldn't vote for President at all, as OK doesn't allow write-in votes.

However, Obama will almost certainly be the nominee and I see plenty of reasons to vote against him. Bad policies combined with bad judgment. There's a winning combo!