It's a Small World, D. C. Version

The 1962 song Little Boxes by Malvina Reynolds describes a neighborhood of commonality, where all is the same except for the colors. It opens:

Little boxes on the hillside,
Little boxes made of ticky-tacky,
Little boxes, little boxes,
Little boxes, all the same.
There's a green one and a pink one
And a blue one and a yellow one
And they're all made out of ticky-tacky
And they all look just the same.

I'm particularly reminded of the song when thinking of Washington, D.C., where nothing seems to change within our ruling class, no matter the season, the decade or the administration in power.

The second verse:

And the people in the houses
All go to the university,
And they all get put in boxes,
Little boxes, all the same.
And there's doctors and there's lawyers
And business executives,
And they're all made out of ticky-tacky
And they all look just the same.

Paul Mirengoff over at Powerline makes the point with regard to Mr. Obama's preening claim to history with a nominee for a third Supreme Court seat for a woman. Paul points out:

If Elena Kagan is confirmed, as she is expected to be, the Supreme Court will contain three female Justices. And it will be a diverse group of women too -- one originally from Brooklyn, one originally from Manhattan, and one originally from the Bronx.

Then, there's this thoroughly depressing observation by David Bernstein, one of Eugene Volokh's Conspirators

The president went to Harvard, and barely defeated a primary opponent who went to Yale. His predecessor went to Yale and Harvard, and defeated opponents who went to Yale and Harvard, and Harvard, respectively. The previous two presidents also went to Yale, with Bush I defeating another Harvard grad for the presidency. And once Elena Kagan gets confirmed, every Supreme Court Justice will have attended Harvard or Yale law schools.

I know that Harvard and Yale attract a disproportionate percentage of America’s talented youth, but still, isn’t this a bit much? Are there no similarly talented individuals who attended other Ivy League schools, other private universities or (gasp!) even state law schools. (emphasis added.)

To put it more directly, every single President since our last truly successful one has been a graduate of one of two schools. Ditto, every single Justice on the Supreme Court. Every. Single. One.

No wonder they haven't the slightest idea what's going on in the rest of the country.

And they all play on the golf-course,
And drink their Martini dry,
And they all have pretty children,
And the children go to school.
And the children go to summer camp
And then to the university,
And they all get put in boxes
And they all come out the same.

And the boys go into business,
And marry, and raise a family,
And they all get put in boxes,
Little boxes, all the same.
There's a green one and a pink one
And a blue one and a yellow one
And they're all made out of ticky-tacky
And they all look just the same.

The systemic arrogance of little boxes.

Is Sotomayor Racist? Maybe, but…

Is Sonia Sotomayor, President Obama's first nominee to the Supreme Court, a racist? If we consider only her 2001 comment that women of her race are uniquely qualified by their race to judge others, then certainly so. It describes an inherently racist view. Her long-time membership of an overtly racist organization that actively supports segregation and superiority, La Raza ("The Race"), increases the concern. Certainly, a white male caught in the same positions would be instantly disqualified as a nominee, properly so.

I confess a certain perverse pleasure imagining the reaction from my leftist friends if Clarence Thomas, a man with a much more impressive life story, had been discovered to have said something similar prior to his nomination:

"I would hope that a wise black man with the richness of his experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Wow! The fireworks would have been spectacular.

Or, imagine Clarence Thomas as a member of Louis Farrakhan's equivalent to La Raza.

That said, I don't believe Ms. Sotomayor any more racist than is the typically superior liberal product of Princeton and Yale. More importantly, both for the argument over her nomination and for the future of the Court, she has not allowed her biases to tilt her decisions on racial matters. Tom Goldstein, writing on SCOTUSBLOG at Judge Sotomayor and Race, has reviewed Judge Sotomayor's complete opinion file as an appellate juror and finds no evidence of racist decisions.

Unfortunately, as so often seems the case when a class-obsessed liberal makes a selection based primarily on membership in a group, as did President Obama, Ms. Sotomayor is far, far from the most qualified choice for one of nine seats on the court. Her legal skills barely reach the unarguably low threshold set by her retiring predecessor, who until this year's performance by Justice Ginsberg held secure the position of weakest justice on the bench. She will not add to the quality of the arguments or opinions, but only, if her colleagues can be believed, to their heat.

Even Judge Sotomayor's most ardent supporters frame their enthusiasm in terms of her life story, not her performance in office. Liberal thinkers looking for an historic change agent are muted in their cheers, weighted by a sense of lost opportunity.

Neither our Constitution nor our political system assure us of only the best qualified nominee or justice. It's potluck and that a nominee is mediocre is not sufficient reason to block a President's choice.

Is Wisdom Racial, as Judge Sotomayor Says?

Supreme Court Justice nominee Sonia Sotomayor, on a riff on comments by Justices Sandra Day O'Connor and Ruth Bader Ginsburg that "at the end of the day a wise old man and a wise old woman reach the same judgment," took exception with both of history's only female justices. According to Judge Sotomayor, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Perhaps, then, we could cut to the chase by asking Judge Sotomayor to rank the races and genders by the innate wisdom in the possession of each. It would then be a very simple matter to seek out potential nominees exclusively from the race and gender that ranks highest, thereby assuring us that only the very most qualified justices would be nominated and confirmed.

This approach is certain to appeal to President Obama, as a solid meld of qualification and identity politics.

The only real issue that remains: Does the wisdom inherent in a particular race change over time, so that this year's leader might be next decade's goat?

Let's ask Judge Sotomayor.


Who knew it could be as easy as that?

Looking for Empathy in All the Wrong Places

President Obama has announced his criteria for his first nomination for Justice of the Supreme Court. The "essential ingredient" for the President's approval is empathy, presumably meaning a sensitivity to the feelings of others.

Given this, the President should skip rummaging through the appellate courts, district courts, the law professoriate. As a matter of fact, he should probably avoid lawyers entirely.

Why not go right to the top? He already knows the nation's leading empath, coincidentally a good friend and political supporter. Even better for those who appreciate group politics, she's a three-for: astoundingly successful empath, woman of color, a lifetime of real experience, her own and borrowed from others.

Leftists are pressing for a game-changing leader, a justice who can compete with Scalia by building arguments that sway the entire judiciary with brilliant charisma.

Yep, Oprah's the one.

If Oprah's tied up, I'd like to suggest Christina Aguilera. She hits all the hot buttons: hispanic, female, lots of life experience, probably doesn't care much about some "abstract legal theory or footnote." Just right.

Heller's Friends: The Intellectuals Explore Unintended Consequences

I'm a sucker for irony, especially for what I think of as intellectual irony, which is when allegedly smart people discover that fate doesn't necessarily follow the path they've set for it. So naturally, I've enjoyed reading the amicus brief filed in support of Heller by The Center for Individual Freedom.

This is the ninth in a series of reviews of the SCOTUS briefs supporting Heller in the landmark District of Columbia v. Heller.

The brief is in two major sections. The first, and less fun but still very useful section, describes how United States v. Miller has been misinterpreted for 70 years by most lesser courts and almost all media. Most readers will recall that Miller was decided in favor of the government based on the Court's the finding that a sawed-off shotgun is not suitable for military work. These authors make abundantly clear two very significant points.

First, as always emphasis added:

In Miller, criminal defendants Jack Miller and Frank Layton were charged in federal court with “unlawfully, knowingly, willfully, and feloniously” transporting an unregistered shotgun with a barrel fewer than the required 18 inches in length from Oklahoma to Arkansas in violation of Section 11 of the National Firearms Act. Defendants demurred, and the trial court sustained the Demurrer on the basis that the National Firearms Act “offend[ed] the inhibition of the Second Amendment to the Constitution.”

Thus, it must initially be noted that the trial court recognized an individual right to keep and bear arms under the Second Amendment, disproving any assertion that early federal courts uniformly recognized only a collective states’ right.

Following the trial court’s dismissal, the government appealed, ultimately to the Supreme Court. The defendants, however, refused to even appear before the Supreme Court to defend their position or engage in oral argument, as their indictment had been quashed. Because no appearance by counsel was made on behalf of the defendants, their position thus wasn’t argued.

As a result, a unanimous Supreme Court held only that the failure of the defendants to appear for argument rendered the Court unable to determine whether the Second Amendment protected the defendants’ right to keep and bear the firearm in question:

“In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

Thus, the Court didn’t reject an individual right of the people to keep and bear arms under the Second Amendment, nor did it hold that the Second Amendment creates a collective states’ right. Rather, the Court observed that the absence of evidence entered into the record rendered it unable to thoroughly apply the Second Amendment’s provisions to the allegations in question.

This argument provides the basis for the Heller position that an individual rights interpretation is not inconsistent with the only previous SCOTUS decision this century.

The second section is wildly fun. It is here that the authors explore what none have before: What happens if the District wins its argument?

The summary is in the section title

A Collective Right To Keep And Bear Arms Would Contradict Other Constitutional Provisions, Call The National Guard Into Question, And Collide With Existing Federal Firearms Laws

The first sentence lays out the issue that I addressed two months ago in Where's the Militia? I Want To Enlist!

If this Court accepts Petitioners’ collective right proposition, then the Second Amendment guarantees state governments the right to maintain military instruments as a counterweight to the federal military.

It seems unarguable. The ramifications, though, are breathtaking.

[I]f the Second Amendment creates only a state right, then that contradicts several military power provisions within the Constitution, it likely renders the National Guard as currently administered unconstitutional, and it potentially allows state governments the right to disregard federal firearms laws that presently limit states’ ability to formulate a powerful militia.

This creates a whole new set of very powerful states' rights, almost whole cloth, none of which have any case law upon which courts, states or people can rely. Among the questions are these:

If Petitioners are correct in their contention that the Second Amendment protects the states’ right to keep and bear arms as a bulwark against federal power, then almost any federal measure limiting state militia independence in the manner described above could suddenly be subject to dispute and litigation.

***
If Petitioners are correct in their assertion that the Second Amendment protects only the states’ right to maintain militias, then federal firearms laws are also suddenly open to legal challenge. Assuming the validity of Petitioners’ collective right view, the purpose of the Second Amendment is to preserve state militia independence from federal control and suppression. In turn, this would require that state militias be sufficiently powerful and independent to repel the federal military. Because arming and maintaining a state militia of sufficient size and force would be extremely expensive, states could opt to compel citizens to obtain and preserve firearms and other military instruments. By doing so, states would not only save money, but also ensure that citizen militia members would naturally become more familiar with their weapons without as much need for formal, periodic, costly state training.

At present, the federal government strictly licenses and taxes fully automatic firearms. This could change.

Obviously, a collective right view of the Second Amendment as applied to such a system would run head-on into existing federal firearms laws. As just one example, the federal prohibition against automatic weapons could suddenly be in jeopardy.

Thus, inherent in Petitioners’ collective right position is the consequent power of states to challenge discordant firearms laws and enact legislation authorizing possession of weaponry currently prohibited by federal law. Furthermore, a collective right holding could allow a dramatically broader variety of arms in the hands of citizens than would a decision recognizing an individual right of the people to keep and bear arms. This is because an individual rights view would extend to individualized weapons only, subject to reasonable restriction. In contrast, a collective right view could logically include all variety of weapons currently within the federal arsenal, because the states would be empowered to arm themselves sufficiently to thwart those same federal forces.

If the purpose of the Second Amendment is as the District say it is, then it is incumbent on the 50 states to arm up. It is their duty.

If the logic behind the Second Amendment is to preserve the right of states to maintain militias that constitute a counterweight to federal forces, as Petitioners contend, then states would logically be allowed to keep and bear even the most potent and destructive weapons of modern warfare.

Having the weapons, the states need a structure which doesn't exist today.

Given this gradual transformation, and the current structure of the National Guard, it logically cannot serve the role of state militia that underlies Petitioners’ collective right interpretation of the Second Amendment. Stated differently, the National Guard cannot stand as a state bulwark against abuses by the federal government, because it now exists primarily as a federal force subject to national control.

***
Given this fact, the National Guard’s status as an organization subject to federal authority might immediately be exposed to challenge if Petitioners’ collective right proposition is adopted. Thus, should Petitioners’ contention that the Second Amendment confers only a collective right upon the states prevail, then a dramatic reexamination of other relationships between state and federal governments will be necessary. If this Court rules that the Second Amendment effectuates the proposition that state militias exist to check federal power, then other seemingly settled questions of state-federal relations may be reopened to question.

Not only is this path difficult to imagine, given its obvious circularity, but it is nearly impossible to imagine this Court opening up the fifty years of litigation that would be necessary for the courts to draw the new lines of authority between the people, their states and the federal government.

In fact, such a decision would put some real meaning behind the term federal.

RELATED LINKS:
State AGs; 31 to 5, in Favor of Heller
Heller: The Analysis of Crime Statistics
Heller Has More Friends
Heller's Friends: The Doctors' Prescription
Heller's Friends in Congress, And One More
Heller’s Friends: Claremont Institute and the Scholars
The Heller Posse: A Roundup of Briefs: The NRA
Heller: The Good Guys Shoot Back, With Effect
On Heller: Shot in the Back by the Bush DOJ

For even more on the case and the subject, click here.

Gee, I'd almost like to see it happen. Almost.

Where's The Militia? I Want To Enlist!

Everyone is taking the 2nd Amendment more seriously and more literally these days. While I agree with the growing number of commentators who think it likely that the Supreme Court will not find it necessary to posit penumbras in order to find an individual right to keep firearms, I'm not adverse to a small covering bet in case the current Court chooses to embarrass itself.

So, just in case the phrase the people is found to really mean, men and women who work for and wear the uniform of a government, acting under orders of a state, I'd like to get a headstart on the rush that will result from such a decision.

I'd like to volunteer now for the to-be-formed militia(s) of whichever state(s) would appreciate and value my services and meet my, admittedly very modest, compensation requirements. (About which, see below.)

You see, under a "collectivist" decision by the Supreme Court, the various state militias would become on paper—and perhaps eventually in reality—among the strongest military forces on the planet.

There really can't be any other outcome:

1. The Constitution is the supreme law of the land.
2. The various amendments were and are understood to have amended earlier versions of the Constitution. To the extent that there is a conflict between the body and the amendment, the amendment is superior.
3. Common law, statutes, interpretations or administrative decisions which were earlier understood to limit the individualist interpretation of the 2nd Amendment can't possibly limit governmental "rights." For example, where individual Americans haven't seriously attempted to push the envelope on laws that restrict ownership based on caliber, explosive potential, or platform, it would be unreasonable to think that a government could be limited to sub-.50 caliber rifles, restricted from inventorying hand grenades and RPGs, or precluded from stockpiling Bradleys and Strykers, Apaches and Warthogs.
4. Antigun commentators have had great fun over the years with strawman discussions about whether every NRA member should be able to buy a bazooka or join with their neighbors for a bunker buster. Any possible justification for such a discussion disappears with a states' rights decision. While Fred and Steve should probably never own a TOW, Montana and Louisiana could buy all they choose.
5. Given the explicit language, "shall not be infringed," and its placement as an Amendment authorized two years after ratification of the body of the Constitution, it will be difficult to argue that the language doesn't at least severely restrict the Presidential authority over state Militias contained in Article 2. Under a collectivist interpretation based on and explicitly recognizing the needs of "a free state," its difficult to see how the rights of the states to arm themselves can be limited or restricted or substantially interfered with by the other governmental party to the Constitution.

Finally, it is difficult to see how the federal government could interfere with the structure, purpose, size or recruitment of any state's militia given such a decision. Given such an interpretation, shall not be infringed is just too broad in its coverage of the 50 states and too specific in its import. Perhaps we should be concerned about a New York/New Jersey arms race one day?

While the National Guard would presumably continue in its quasi-state role (have the collectivists ever wondered why it's called the National Guard?), a prospective collectivist decision opens up grand new vistas for state authority and responsibility. It would resurrect the meaning of federal as a subject fit for polite discussion and likely change the atmosphere and the politics of federal-state conversations. Taken to an admitted extreme, imagine the excitement should Montana or North Dakota mix a little eminent domain with a whole lot of states' rights 2nd Amendment and use the two to demand control of the couple of hundred Minuteman silos still buried in the high plains prairies. The two states would immediately become full faith members of the super power club. The poetic geometry of their militias holding Minutemen missiles would be… priceless.

I can see one of the progressive states, those already comfortable with the benefits of an armed citizenry, say Arizona or New Mexico, facing a military issue such as their presently porous borders and immediately calling upon a newly formed state militia to help supply the manpower necessary to stop the surge of invaders across their borders. With the right inducements, any state that wished could recruit ample numbers of skilled and law-abiding citizen volunteers in an instant. All at a cost that would make Scrooge squeal with delight.

They could require basic Militia members to take the same training as Arizona presently requires for a concealed weapons permit, adding substantially more range time as well as basic tactics training. They could run the background checks every year or two, even while recognizing that holders of concealed carry permits are already the most law abiding group in each one of the 41 states that allow concealed carry.

As a condition of membership in the militia, the sponsoring state could require citizen-members to actually serve by spending a weekend or two a year patrolling the border. I suspect that adding 50,000 men and women to that effort, even part-timers, would make a significant difference along a state's southern border. Governor Richardson, Governor Napolitano are you listening?

For compensation, I'd suggest offering basic militia members only the minimum wage while actually on duty, and only after successfully completing training.

Of course, so that members would be ready to answer the call to duty as quickly as possible, I'd also allow require members to carry concealed while traveling.

That's the big payoff, for individuals, for the sponsoring state, for everyone. Militia members would be armed wherever they go, whether while flying the friendly skies, or touring the crime zones known as D. C. and Chicago. TSA, which is presently failing 100% of its own tests, could be disbanded as redundant.

Such would be the strength of a Supreme Court decision that ties "shall not be infringed" to a newly found "right" of the 50 free states. No federal law, rule or regulation would be superior. And that's not all bad.

LINKS: More than ten years ago, Glenn Reynolds and Don Kates penned a prescient analysis of the presumably unintended consequences should the collectivist crowd actually win the decision they seek. For a thoughtful and authoritative look at the potential outcomes from the Supreme Court this year, I recommend a careful read of The Second Amendment and States' Rights: A Thought Experiment.


You know, a defeat at SCOTUS, though unlikely, might not be so bad after all. The possible unintended consequences are very interesting.

Brady Campaign Nervous; Admits Effort to Get DC to Modify Gun Ban Rather Than Risk Trip To Supreme Court

Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, confirmed today that the group attempted to convince the District of Columbia to change its law banning guns rather than risk an appeal to the U. S. Supreme Court. They were unsuccessful.

The District, which this summer suffered a landmark defeat in a ruling by the Second District Court of Appeals that its 1976 ban on private possession of handguns violates the Second Amendment to the Constitution, chose to appeal rather than change.

According to Mr. Helmke, explaining his strategy to retreat rather than fight

It will be the biggest ruling on the Second Amendment ever. You get nervous when you see something with far-reaching implications.

The District's homicide rate ranks among the highest in the nation and last year police seized more than 2,600 illegal guns in spite of the nearly-absolute ban.

Presumably all of the guns were seized from criminals as all the lawful citizens were standing around with their hands in the air, surrendering to the murderers, rapists, robbers and muggers.

The District's attorney general offered the rubric that the homicide rate would be even higher without the ban, saying

More guns leads to more gun violence. (sic)

Her statement would be more credibility if she could point to a city with more guns and a higher crime rate, but unfortunately for her argument each of the cities with more guns has a lower crime rate than the city that known as "the murder capital of the country."

According to the Associated Press

Some cities and states with tough gun laws are getting nervous about D.C.'s appeal. During the lower court proceedings, Washington had the backing of several jurisdictions, including Massachusetts, Maryland and Chicago. But fearing they could lose - and lose big - at the Supreme Court, few have publicly backed the city or filed briefs in support of its appeal.

Of course, every one of those listed have serious crime issues and victims with no recourse. Since 1986, state after state has allowed their citizens more handgun latitude and their crime rates have fallen, significantly. England and Australia, once poster children for the Brady campaign, have suffered the consequences of greater restriction and seen their crime rates increase dramatically.

The facts are in, the good faith arguments are over. There can no longer be any rational justification for blaming the gun, for taking the position that otherwise law abiding Glocks, Sigs, Colts, Rugers and HKs are magically teleporting across the beltway in order to wreck wanton havoc on the peaceable and innocent residents of our fair capital.

Again, according to the AP

Helmke, of the Brady Campaign, said the group suggested to Washington that it rework its gun laws rather than press on with an appeal. A broad Supreme Court ruling on the Second Amendment could jeopardize a variety of laws, including waiting periods for handgun sales and California's machine gun ban, he said. (sic)

UPDATE: It's news to the NRA

RELATED LINKS: What on Earth Are D.C. CIty Politicians Smoking? Hallucinating About Gun Control in Parker
Ten Years Later, It's True: After Guns Have Been Outlawed, Only Outlaws Have Guns
The Most Important Gun Rights Court Decision… Ever!

First, the constitutional scholars, now the Brady Campaign. The winds are blowing, and sails are triming.

Supreme Court Rules Politicians Have Right to Lie

It shouldn't surprise, given the state of the law, our courts and our politicians, and, in fact, it actually makes sense, but still, it's a bit… disconcerting.

The Supreme Court of the State of Washington ruled today in a 5-4 decision that candidates for political office have a constitutionally protected right to be free from prosecution for lying in their pursuit of office.

It is sobering to consider the responsibilities that courts have taken from the shoulders of common men and women and to contrast them with those that remain, including the duty on the part of each individual to provide protection against politicians who lie, given that government cannot be charged with that duty.

UPDATE: Eugene Volokh, for whom I have enormous respect, comes to a different conclusion and sides with the minority. He also thinks that a case such as this will eventually make it to the U. S. Supreme Court, but, like me, doubts this will be the one.

So, let's see. You can be prosecuted for lying on an application for a pilot's license. You can go to jail for lying when buying a gun, or filling out the form needed to arrange a post office box. You can be fired for lying on your resume, but if politics is your career choice, it's "Get Out of Jail Free."

What on Earth Are D.C. City Politicians Smoking? Hallucinating About Gun Control in Parker

Lawyers for Washington, D. C. today belatedly filed the District's request that the U. S. Supreme Court consider its appeal of Parker, the landmark decision by the 2nd Circuit Court of Appeals that the Second Amendment to the Constitution means what it says.

The city's petition rests on three arguments and some strained logic and very smoky facts.

The arguments:

1. The Second Amendment protects weapons possessed and used by state militias, only.
2. The District of Columbia is not subject to the Second Amendment.
3. Because the District bans only handguns and not shotguns and rifles, the District's ban does not infringe on the right to keep and bear arms.

Fine.

I'm not certain that the District's reasoning and legal artistry in the petition reflect well on the dozen lawyers who labored weeks past the scheduled filing date to hone their arguments, but there are some absolute gems within the District's petition for a hearing, including:

[E]ven if there is a right to possess and use weapons unrelated to militia service, the Second Amendment restricts only federal interference with state-regulated militias and state recognized gun rights. (Emphasis added throughout.)

The District's lawyers claim that

[T]he Fourth, Sixth, Seventh, and Ninth Circuits have held that only states may enforce the Second Amendment.

Hmm. Is that position unique to the Second Amendment or does it apply to the others, as well? If the states are responsible for enforcing the Amendments, do they also have a responsibility to enforce the body of the Constitution on behalf the federal government?

According to D. C., states have a duty to enforce, but are not subject to, the Constitution:

State courts seldom construe the right secured by the Second
Amendment because of their uniform agreement that the
Amendment does not bind the states, as this Court held
unanimously more than a century ago in Presser v. Illinois,
116 U.S. 252 (1886).7

Perhaps the lawyers should have at least mentioned as a courtesy to the Justices that Presser was decided years before the courts ruled that state governments are subject to the Bill of Rights. Today, that's a settled matter.

The District's rhetoric is "strong" regarding the political decision of the D.C. council in 1976 to ban handguns:

The Council concluded that existing regulations imposed on handguns and penalties associated with handgun-related crimes were insufficient to combat handgun violence, because handguns themselves are inherently dangerous. The very premise of the legislation was thus that “the ultimate resolution of the problems of gun created crimes and gun created accidents . . . is the elimination of the availability of handguns.” As the Council summed up, “the bill reflects a legislative decision” that handguns “have no legitimate use in the purely urban environment of the District of Columbia.”

Strong but wrong. The reality has been a bit different.

The number of homicides within the District does not appear to be related, at least in a positive way, to the 1976 ban.

Homicides in the District have been at historic, tragic and nation-leading levels for more than 30 years, and they remain so today. In fact, measured against comparable national figures, the "ultimate resolution" has been an abysmal and deadly failure, as D.C. residents and visitors find themselves without any meaningful defense against the thuggery so prevalent there.

Even the finest lawyers can only shade history, but they can't re-write it wholesale.

The District has been extraordinarily dangerous for ordinary people, before the gun ban in 1976 and since. The District Council enacted the ban in reaction to runaway violence. In 1975, homicides in the District reached a rate of 33 per 100,000 population, a rate 241% greater than the rest of the country.

While District politicians proclaim handguns “have no legitimate use in the purely urban environment of the District of Columbia,” its citizens are deprived of the one tool proven most effective preventing crime, the threat of an effective self defense.

So, 30 years after the D.C. council solved the crime problem with their "effort to 'freeze the pistol population within the District of Columbia,'" thousands more citizens are victimized by crime each year than should be the case if only the District would reduce its crime rate to average.

According to the FBI 2005 Uniform Crime Report and figures complied from the UCR by The Disaster Center, the District's violent crime rates far exceed those of the rest of the nation. Today's numbers reflect the failure

• Murder, 530% greater than the rest of the nation.
• Robbery, 376% greater than the rest of the nation.
• Aggravated Assault, 148% greater than the rest of the nation.

Today, we know that "gun free zones," whether cities, post offices, schools or countries like England and Australia, have become magnets for crime as criminals prey upon their victims secure in the knowledge that there will be no effective resistance from their victims. On the other hand, there are 100 million more guns in the U. S. than there were in 1975, and crime rates have decreased. Forty states have recognized the rights of citizens to possess and use handguns, and crime rates have gone down.

Comparing the experience of the various states that have liberalized gun possession for lawful citizens with areas taking the opposite path, the conclusion is inescapable that crime has increased within the District, and law-abiding citizens have been made victims, because of the 1976 law. Scores of thousands of victims have suffered as a result.

In the 30 years since the "ultimate resolution" they're now defending so energetically, 30 years spent working to "freeze" pistol availability, D.C.'s homicide rate has increased while the rest of the country's has decreased. The District now suffers from a murder rate five times greater than the rest of the country, twice as bad as it was when it enacted the ban.

With a success like this, D.C. politicians should be looking for solutions in the mirror and stop sacrificing their citizens an the altar of a failed ideology.

Perhaps the dollars and time invested in the ban could better be invested in "gun psychology" research: What makes an average Glock, Smith & Wesson, Ruger or Colt go bad after crossing the border into D.C.? What are the catalysts that turn guns that were ordinary law-abiding pistols when they left the factory into deadly creators of gun crimes and accidents? How can we approach the root causes of whatever is missing from the guns' lives? What has caused guns to jump up from their homes elsewhere to illegally enter the District and prey upon its people and why don't they perform the same way in the same numbers elsewhere? What motivates these guns to enter a life of crime in Washington, D. C.?

LINKS: For a PDF of the District's petition, click here.
H/T: SCOTUS Blog

One Comment on Sen. Larry Craig: Leave Now

When he was arrested and he and the officer were going over the reasons, toes touching, hand showing, etc., how did Senator Craig know what the hell the officer was talking about?

Would you have? I suspect not. I suspect this sort of thing is not known by those who do not practice bathroom cruising.

I cannot imagine a single person I know well who wouldn't first ask what is going on, and then after having it explained, go into a 100% indignation mode, ask to see a superior, refuse to sign anything, call for an attorney on the spot. In other words, go absolutely berserk.

That's not what Senator Craig did. He didn't ask what's going on. He didn't ask what the various signs meant. He didn't go nuts. He just argued how far his toe had gone wandering (without his knowledge), and whether it was his left hand or his right hand under the stall.

Whether innocent or guilty (of the non-crime!) matters less than that his judgment is too peculiar for him to remain in the Senate. His effectiveness is destroyed. He must leave.

Republicans and conservatives have different, higher standards than do those who maintain the likes of Teddy Kennedy.

Senator Craig must go.

The behavior of the police officer was every bit as strange, and the legal standard that was applied is a joke, except when it ruins a life.

Schumer Pledges to Strangle Future Nominations; Claims Two Justices Deceived Senate

Senator Charles Schumer, a ranking member of the Judiciary Committee, promised today to prevent the confirmation of any nominees to the Supreme Court in the next 18 months.

Schumer accused two current Justices of deception during their confirmation hearings, saying (the other) Senators were

"too easily impressed with the charm of Roberts and the erudition of Alito."

He added

"There is no doubt that we were hoodwinked."

Senator Schumer was gracious in his use of the inclusive "we," as Senator Schumer voted against confirmation of both Roberts and Alito and is far too intelligent to have ever personally been "hoodwinked."

He obviously doesn't believe the same of his colleagues.

Federal Court to Valerie Plame Wilson: "No"

U. S. District Court Judge John D. Bates has dismissed the lawsuit that Valerie Plame Wilson filed against Vice President Dick Cheney and other members of the Bush administration, saying there was no legal basis for the suit.

The judge commented that the act of rebutting public criticism—such as that levied by Joseph Wilson against the administration—by speaking with members of the press is within the scope of employment for members of the Executive branch.

Mr. and Mrs. Wilson have, of course, pledged to appeal the judge's ruling.

They certainly won't be asking for a rehearing before the same judge. His 41-page opinion makes his thinking clear as could be.
No.
No.
No.
No.
and, No.

Scooter Libby: The Witches in Salem Got a Fairer Trial

Either the concept of "special prosecutor" needs to be done away with once and for all, or we need to agree that in cases where one is appointed trials should be separated from investigations in terms of both personnel and geography.

The Libby case reflects poorly on both the inquisitor and the judge and has resulted in a true and literal miscarriage of justice. The prosecutor investigated until he had helped generate a crime where none was before. The judge excluded witnesses and evidence until the "crime" reached a mass where a DC jury could legitimately seem to find it. (Remember: the jury didn't learn that no crime had been committed, didn't learn that Plame's employment was not covered by IIPA, didn't learn Plame's role was "widely known" in DC, and wasn't allowed to hear from experts how frail memories can be.)

In the future, if especially prosecute we must, let's at least separate the roles between investigator and trier. Let's add an extra, independent review by someone who's not invested in the need to find some crime to justify the years and dollars spent.

Then, let's move the trials out of Washington, D.C., where it seems that everything is, as Andrea Mitchell famously said, "widely known." The evidence has become persuasive that Judge Walton "knew" before any hearings that Libby was guilty of horrendous crimes that Prosecutor Fitzgerald could not prove. Coupled with Judge Walton's pervasive, and thanks to this story, now apparent sense of class bias, it was enough to tilt the table so radically as to deprive Libby of a fair trial.

The appellate court will overturn the verdict.

Perhaps those judges will go the distance and reprimand the Judge Walton and the Department of Justice for the numerous abuses the Libby case so clearly illustrates.

Related Links: Scooter Libby: A Funny Thing Happened on His Way to Jail

UPDATE: John Hinderaker over at Power Line has figured a way to intelligently link two disparate stories:

Scott Rasmussen's latest survey has Harry Reid in a dead heat with Scooter Libby, each with a 19% approval rating. And Reid hasn't even been convicted of anything yet!

Scooter Libby: A Funny Thing Happened on His Way to Jail

Last week Judge Reggie Walton sentenced Scooter Libby to 30 months in the federal penitentiary for allegedly lying about a crime that never occurred and didn't exist. While everything about the case qualifies as script material for The Twilight Zone, acknowledging plot contributions from both Kafka and Heller, the newer developments owe more to One Flew Over The Cuckoo's Nest.

No Crime

During the trial Judge Walton ruled that Valerie Plame Wilson's role at the CIA would not be an issue. Good thing for the prosecution, as there is no evidence anywhere, even today, that Ms. Wilson was a "covered person" under the law that Special Prosecutor Fitzgerald was tasked with enforcing. In fact, the CIA itself had confirmed Ms. Wilson's employment to the reporter writing the original news story and the Agency today—almost four years later—remains unable to describe Ms. Wilson as an employee covered under IIPA. Not only did Judge Walton's ruling deprive the defense team of the argument that no crime was committed, it also deprived them of the strongest possible defense: No matter whose memories were more accurate two years after the fact, Libby's or the reporters, no matter who was more credible, the outcome would be exactly the same: There was no crime. If Libby had parroted the reporters' stories—remember there were only minuscule differences between his version and theirs—it would not have changed this most basic fact. It would not have created a crime where one did not exist. Nothing that Libby remembered or didn't remember about those conversations, no matter how farfetched, would have created a crime where none existed.

Most readers relate perjury to guilt, believing that guilty parties might lie under oath to prevent themselves being found to have engaged in a crime. We accept that we need prosecutions for perjury in order to minimize that bad behavior. It is a foreign and intrinsically uncomfortable leap for most of us to accuse a person of lying when there is no crime to defend or hide; when the lie alleged cannot be a lie to protect the guilty from prosecution, or to prevent the discovery of a crime. It's almost like one of those geometric shapes that can't exist. We think we've been shown something, but it's vaporous and disappears as we study it.

In this case, there was no crime. There could be no coverup of a crime. There was no perjury in support of a coverup that didn't exist of a crime that not only did Scooter Libby not commit, but more importantly and entirely glossed over by media, no one committed.

Libby could have testified that Dick Cheney himself personally ordered that he tell every reporter in Washington the name and role of Joe Wilson's wife. Still, no crime.

Smoker: "I quit smoking the day before the forest fire."
Witness #1: "He always smelled like a smoker in the years I knew him."
Witness #2: "He smoked heavily."
Witness #3: "I saw him with a cigarette the morning of the fire."

Verdict: The smoker is guilty of perjury, with no more evidence than he said/he said; even though it was known that the forest fire was caused by a lightning strike; that it was an act of God and therefore neither malicious nor negligent; and, that the smoker had absolutely nothing to do with starting the fire in the first place.

Libby Didn't Do It, Armitage Did

Almost literally from day one, Special Prosecutor Fitzgerald knew who "leaked" Ms. Wilson's name to columnist Robert Novak as the person who recommended her husband for the trip to Niger and who was a CIA employee. It was Richard Armitage, Deputy Secretary of State to Colin Powell, who outed Ms. Plame in an off the record conversation with Novak. Interestingly, the official State Department website describes Armitage as "the principal deputy, adviser, and alter ego to the Secretary of State." Armitage was, as they say, "widely known" around Washington as an inveterate gossip who was unable to keep his mouth shut and as no particular friend of Libby or his boss. Rather than declare "case solved and closed" with the knowledge of the leaker, roll up his office and call it a day, Fitzgerald continued to troll, seeking a worthy target to substitute.

Critical Witness Excluded

Judge Walton denied the defense the ability to call a critical witness, Andrea Mitchell, the well-connected Washington reporter who observed that it was "widely known" that Joe Wilson's wife worked for the CIA. According to Ms. Mitchell, in a 2003 interview with Alan Murray on CNBC:

Murray: Do we have any idea how widely known it was in Washington that Joe Wilson's wife worked for the CIA?

Mitchell: It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger. So a number of us began to pick up on that. But frankly I wasn't aware of her actual role at the CIA and the fact that she had a covert role involving weapons of mass destruction, not until Bob Novak wrote it.

Defense Experts Barred From Testifying

Finally, in a case entirely dependent on memories of three conversations two years prior, where the difference between participants was each less than a sentence, Judge Walton refused to allow the defense to put on the stand even one expert witness to testify as to the known frailty and fallibility of human memory.

Four Balls and He's Convicted

Would the verdict have been different if the jurors had known what was "widely known" everywhere but inside Judge Walton's courtroom:

1. Ms. Plame was not a covered employee under IIPA. Sharing her name and knowledge of her position with the CIA was not a crime, no matter who did it.
2. Ms. Plame's employment with the CIA was "widely known" in Washington circles.
3. Richard Armitage first "leaked" the information to Robert Novak. There are no plans to prosecute Mr. Armitage because, again, no crime was committed.
4. It is completely normal for two parties to a conversation to have different memories of who said what, and the disparities grow with the passage of time. This is true whether speaking of Scooter Libby or Tim Russert.

It's impossible to know, of course, whether "the rest of the story" would have had any influence on the jury's decision a couple of weeks ago. Nor can we know the reasons the Judge decided that the sentence he would impose in this case should be twice the recommendation of the corrections officers assigned to the case.

An Odd Development

What is newly very apparent is the personal animus that Judge Walton has displayed towards those who have sprung to Libby's defense.

Judge's written rulings are normally dry as dust, way less than 1% are fit for reading by anyone not connected with a particular case. Procedural rulings, the bureaucratic and managerial rulings that determine how a particular case is to be run in the court are drier than dry, they tend to be formulaic, short, curt and generally suck interest out of the reader. Only lawyers actually paid to read them do so.

Last week a group of 12 very distinguished law professors and legal practitioners, most notably including both Alan Dershowitz, the very liberal Harvard specialist in constitutional law, and Robert Bork, a conservative constitutional mind of the first order, asked to be allowed to enter a friend of the court brief in support of Libby's appeal. Their ten colleagues who joined in the brief are on faculties at such schools as Harvard, Rutgers, Pepperdine, Columbia, Georgetown, and Hastings. They are not representing Libby, they are not being paid. It is only because of their deep concerns over the handling and legality of the case that they have joined together to present an argument that Fitzgerald's original appointment coupled with his handling of the case may have deprived Libby of his constitutional rights.

Judge Walton's order allowing the 12 to file their brief was short, formulaic, curt. It contained only three sentences. What was unusual, and what perked up the legal community and law commentators watching the case was this striking footnote added to the order by Judge Walton and directed at Dershowitz, Bork and the others:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Keep in mind, the 12 are not paid and not representing Libby. Their concern is a potentially serious miscarriage of justice, one that may have lasting and detrimental effects if not corrected. For any federal judge, but particularly one in a case already rife with peculiar rulings, to engage in such snarky personalisms is… odd.



But, then, the whole damn case is odd.

Related Links: No Crime, Do the Time
Scooter Libby: The Witches in Salem Got a Fairer Trial

Hat Tip to The Last Hurrah

UPDATE: Professor Volokh comments on Judge Walton's footnote in What Exactly Is Judge Walton's Beef Here? with the lede "I too found it hard to see any sensible justification for Judge Walton's footnote." His central observation? It makes no sense.

Cassandra at Villainous Company weighs in with somewhat similar thoughts but a thoughtfully different perspective.

No Crime, Do The Time

Special Prosecutor Patrick Fitzgerald, after failing to prove any crime was committed by anyone leaking Valerie Plame's name, has recommended to the court that Lewis Libby be sentenced as though he had committed the crime that wasn't committed.

In a Cheshire Cat climax to a case that he has admitted knowing from the beginning didn't exist, Fitzgerald has recommended that Scooter Libby serve three years in federal prison for mis-remembering, or for the extremists among us, lying about, a couple of completely meaningless conversations with reporters.

The circularities abound:

• There was no crime. We know this because the men who actually did the act that would have been criminal had there been a crime were not charged. Leaking Plame's name was not criminal. As recently as this morning Fitzgerald acknowledged that Valerie Plame Wilson was an administrative employee of the CIA not a covert agent. As such, no violation of the Intelligence Identities Protection Act occurred.

• If there had been a crime, others committed it. Fitzgerald knew two years ago the name of the State Department employee who "leaked" Plame's name to the press.

• No matter how Lewis might have testified about his conversations with the reporters who called him, the answers would not have changed the outcome of the case. Lewis' memory about momentary conversations of a year earlier differs from that of three reporters. Regardless, if he had testified exactly as they testified, the case would be just as empty as it is today.

• Having failed to prove a crime, the aptly named Special Prosecutor wants an appropriate sentence imposed for the crime that didn't exist.

Stalin? Nifong? Alice in Wonderland?

Where in this nation of "laws, not men" did Mr. Fitzgerald learn such as this?

UPDATE: Many in the obsolescent media make the point that because Mr. Fitzgerald says that Ms. Plame was covert a.) she was and b.) as such she was a covered employee under IIPA.

Again, an argument from Alice in Wonderland. With such, who needs trials? We could simply submit selected facts to Mr. Fitzgerald to prosecute, decide and impose sentences. The savings in judicial resources would be enormous.

The Special prosecutor had every opportunity that unlimited funds could buy in order for him to present the evidence, make his case and have the trial decide. That he did not do so speaks volumes.

I note that the CIA, after two full years of effort, is still unable to supply its own answer to the question, explaining that the question of Plame's status is so complex that it will need even more time in order to answer whether or not her role was covert.

UPDATE: The Wall Street Journal points out the un-American aspect of requesting a sentence based on evidence never presented to the jury, and suggests an immediate pardon of Mr. Libby by the President.

Valerie Plame Wilson: Misinformation Draped in a Lie Wrapped in Perjury

Scooter Libby will likely be sentenced next Tuesday for allegedly mis-representing three one-minute conversations from more than a year earlier.

The subject matter was Valerie Plame Wilson, whether she recommended her husband for a junket to Niger and her status with her employer at the time.

It turns out that Ms. Wilson has a bit of explaining to do, having made statements that include at least three different versions of her role in the selection of her husband to travel to Niger. At least two of those statements were under oath. According to Senator Kit Bond as reported in USA Today, she testified under oath to the House Oversight and Government Reform Committee in March,

I did not recommend him. I did not suggest him.

She added,

…an unidentified person in Vice President Cheney's office asked a CIA colleague about the African uranium report in February 2002. A third officer, overhearing Plame and the colleague discussing this, suggested, "Well, why don't we send Joe?" Plame told the committee.

The request for information from the office of the Vice President that she referenced was made on February 13th, as reflected in her own memos

Unfortunately for Ms. Wilson's credibility, a previously unreported memo has made its way out of the Senate Intelligence Committee files. Dated February 12, the day before Vice President Cheney's question, we find her writing to a colleague within the Agency

The report forwarded below has prompted me to send this on to you and request your comments and opinion. Briefly, it seems that Niger has signed a contract with Iraq to sell them uranium. The IC [Intelligence Community] is getting spun up about this for obvious reasons. The embassy in Niamey has taken the position that this report can't be true — they have such cozy relations with the GON [Government of Niger] that they would know if something like this transpired.

So where do I fit in? As you may recall, [redacted] of CP/[office 2] recently approached my husband to possibly use his contacts in Niger to investigate [a separate Niger matter]. After many fits and starts, [redacted] finally advised that the station wished to pursue this with liaison. My husband is willing to help, if it makes sense, but no problem if not. End of story.

Now, with this report, (this being the Iraqi effort to buy uranium from Niger – ed) it is clear that the IC is still wondering what is going on… my husband has good relations with both the PM and the former minister of mines, not to mention lots of French contacts, both of whom could possibly shed light on this sort of activity. To be frank with you, I was somewhat embarrassed by the agency's sloppy work last go-round, and I am hesitant to suggest anything again. However, [my husband] may be in a position to assist. Therefore, request your thoughts on what, if anything, to pursue here. Thank you for your time on this. (Emphasis added.)

Libby is looking at three years in the slammer for either saying or not saying, "Yeah, I've heard that, too."

See also: No Crime, Do The Time

Full 2nd District Court Backs Panel; Upholds 2nd Amendment

The full Second District Court of Appeals refused to rehear the March decision by its panel overturning a District of Columbia law which effectively banned handguns within the District. The decision in the Parker case is the first by an appellate court to rely on the 2nd Amendment to overturn a gun control law. It is the second decision to find that the 2nd Amendment protects an individual right of citizens to keep firearms.

DC Mayor Adrian Fenty vowed to continue the fight for gun control,

"We are committed to combating gun violence. Residents expect us to fight aggressively to make sure laws are as strong as possible."

The mayor says the District has two options: file a petition with the U.S. Supreme Court or try for new legislative initiatives.


The decision to deny a rehearing the case en banc was 6-4.

Related links:
Discussion of Parker
Importance of Second Amendment as proxy for candidate's views
Potential political ju-jitsu

DC Guns: The Dems Will Lead the Charge for Change

The March 9 decision by the DC Circuit Court of Appeals finding that the Second Amendment protects an individual right to keep and bear arms will have unexpected and almost unimaginable consequences. Foremost among them will be a Democratic effort to repeal the laws effectively banning ownership of handguns within the District of Columbia.

The Status Quo Is Acceptable But Unsustainable

The radical Democratic leadership, Clinton, Pelosi, Schumer, Kennedy, Feinstein and the rest, are comfortable with the current state of the law, a complete ban within the DC and various levels of restrictions (NYC, Chicago, California) and regulations (Ohio, New Jersey, Maryland) in the rest of the country. If there are future opportunities to expand the same rules, that's fine, but it’s not worth the substantial electoral cost to their party to attempt to tighten gun rules legislatively.

Unfortunately for them, the status quo is unstable and will change. If the Court’s ruling is unchallenged, the DC law is vacated and the Circuit Court ruling will influence all other courts across the land. Best case, it’s cited in a footnote from time to time. Worst case, it stimulates other lawsuits and similar judgments, opens academia from grammar school to law school to further discussion of the individual vs. collective rights arguments, and legitimizes decades of effort by the NRA and other supporters of the right to keep and bear arms to build an unassailable intellectual framework supporting the RKBA.

The potential damage gets even worse for them if the ruling is challenged. Current best thinking is that the Supreme Court would go 5-4 or better in support of the Circuit Court’s ruling, putting at risk many of the more than 20,000 laws across the country regulating gun ownership, every one of which would for the first time be subject to review on constitutional grounds. Whether that review falls into the “strict” or “intermediate” scrutiny bucket matters less; there is simply no way that many of those laws will survive any scrutiny. There will be years of litigation and legislation as citizens seek a new balance for the issue in nearly every jurisdiction that has a law on the books. If upheld, the ruling becomes is a ticking time bomb with the potential to make “gun rights” a primary issue in every election in every hamlet, village, city and state, as well as nationally. If that were to happen, it would spell disaster at the polls for the Democrats, just as it has nearly every time in the past. They cannot afford the fight, their losses at state and federal legislative levels would be too great.

A delayed decision from Supreme Court would be almost as bad as a quick decision. An appeal that isn’t resolved before the next election would be more motivational to gun rights supporters than to their opponents. The makeup of the Supreme Court would likely become a significant issue in the presidential and senatorial elections, again to the detriment of the Democrats.

The Smartest Move

Now that so much intellectual energy supports the individual rights position, the anti-gun group will ultimately suffer defeat in the argument on the Second Amendment. However, there is a strategy the liberal leadership could take to minimize the immediate negative effects of the ruling.

To prevent the disaster that will otherwise unfold over the next two years, they could arrange for the DC Council to appeal the ruling to the full Circuit Court. While there is little chance of reversal, certainly less than 10%, there is also no downside. It can’t get much worse for their position, and even a 10% chance of reversal, with no further risk, is a shot worth taking.

Given either a refusal of the full Court to hear the appeal or that it upholds the panel decision, the Democratic leadership really has no choice but to lean on the DC government to drop any further appeal and to immediately repeal the laws at question. While that would obviously not be a sign of confidence in their fundamental position, it would limit the immediate effect of what has already happened to DC. Even if there is only a 50-50 chance that the Supreme Court will eventually affirm the ruling, given the risks to the liberal position, both in terms of the issue but also in terms of electoral costs, the risk is too great to take.

Repeal by the DC Council would take the political issue off the table: The Circuit Court ruling would be moot and any further appeals would be foreclosed, obviating the threat of an adverse Supreme Court ruling and preventing intense national attention on the issue. Done properly, no visible action would be necessary by the national party or its leaders, there would be no fingerprints other than those of the politicians at the local level, who are presumably immune from voter retribution on nearly any gun issue. Making lemonade from lemons, the DC Council could both repeal the problematic law and pass new, equally restrictive legislation that would require another five or six years of effort to redress through the courts. They could successfully “kick the can” down the calendar, while maintaining effective gun control over the victimized citizens within the District.

Will it happen this way? It’s hard to say. The deciding factor will be the patience of the radical activist groups to whom Democratic leaders bow. It’s entirely possible that the Brady bunch and like-minded groups would not accept the wisdom of backing away from the potential Armageddon for their cause that an adverse Supreme Court ruling would represent. They may not agree that it would be preferable to give an inch in DC rather than risk an early heavy bet on a weak hand only to lose everything on a national scale.

In any event, it is only a matter of time before gun grabbing goes out of fashion, as eventually all truly bad ideas become embarrassing to their supporters. It may be that the DC Circuit Court not only found our missing individual right hiding plainly in sight but has also made clear that the statist counter argument, like the emperor of children's tales, has been wearing no (constitutional) clothing at all.

For further reading, Jennifer Rubin has done a superb job in Opening Shots at National Review Online describing the effects of the ruling on the Republican contests.

UPDATE: Glenn Reynolds has lots more on this over at Insta-Pundit.

UPDATE: Jonah Goldberg does an absolutely superb job illustrating the rapidly changing liberal posture on the Second Amendment, its increasing intellectual respect and the steps the anti-gun forces will need to take in order to return to the good old days. Read Gun-Shy Liberals over at National Review Online.

Update: Glenn Reynolds takes it up again at InstaPundit and Robert Levy worries about the NRA's role as he confirms for the first time that the NRA repeatedly attempted to derail his case.

The Canary in the Mine

It was twenty years ago that Britain retired the last of 200 teams of canaries officially charged with protecting miners from the insidious danger of methane gas asphyxiation. Canaries are extremely sensitive to the presence of methane gas and will quickly sway drunkenly then fall dead from their perches at the slightest whiff, thereby giving miners warning and a chance to flee to safety. From at least 1911 to the end of 1986, hundreds of canaries died so that tens of thousands of deep-shaft miners might live.

As conservatives begin to weigh the credibility of presidential contenders, a candidate’s affection for the second Amendment might serve a function similar to that of the canary. While nearly all politicians, particularly those with any attraction to conservatives, will swear to “support the second Amendment,” some mean it and some only mouth it. While the meaning of “support” can be a bit ambiguous, I consider the strength of a candidate’s allegiance a great indicator of the candidate’s trust of the citizenry generally. If he or she doesn’t trust citizens with guns, chances are trust is missing in other areas as well. Guns are dangerous. So are economic freedom, school choice, health issues, investment decisions, even voting! The second Amendment canary can tell us when a candidate’s true belief is closer to “I’ll take their votes if I can get them, but after that these people need adult supervision.”

Some, such as the former mayor of New York City, think guns are best only if issued to licensed hunters after they pass through the turnstiles enclosing government game lands and then reclaimed immediately afterwards. In the past, he’s backed up his “support” by suing gun manufacturers in order to extort the cessation of gun manufacturing even while subjecting citizens to a prohibitive licensing scheme. In this case, the canary died long ago and deserves an honest burial.

Others, like the senator from the west, “fully support” the second Amendment, while voting as though never really meeting a government regulation that isn’t necessary. Whether “closing loopholes” or licensing citizens, this one no more supports the second Amendment than he does the first. The canary is on its back on the bottom of the cage, legs flopping and eyes crossed.

The former governor from the east speaks in favor of the second Amendment, and all the others, too, but we can’t be certain that he has actually read any of them as his position(s) continue(s) to evolve. He forgot the canary topside and has no idea what’s in the air.

Finally, there is Fred Thompson, who not only “supports” the second Amendment, but who actually knows what it says and who believes it means what it says. On a recent Sunday interview show during a “lightening round” of quick questions and quick answers, Chris Wallace asked Fred about gun control and the new second circuit decision confirming an individual right to “keep and bear arms.”

WALLACE: (What about g)un control.

THOMPSON: Well, I'm against gun control generally. You know, you check my record. You'll find I'm pretty consistent on that issue.

WALLACE: So this federal court — appeals court ruling this last week, I guess Friday, in the case of D.C. — you'd be perfectly happy to have people have handguns in their homes?

THOMPSON: Yes. Absolutely. The court basically said the Constitution means what it says, and I agree with that.

In Fred’s case, the canary is dancing on its perch, whistling with the joy of life!

Fred Thompson trusts the citizenry.

I trust Fred Thompson.

UPDATE: The story continues to incubate, here in InstaPundit

The Most Important Gun Rights Court Decision… Ever!

Just like in baseball, there are three touchstones a decision must pass in order to be a home run.

1. It needs to be intellectually defensible.
2. It needs to be convincing.
3. To pass third base, it needs to turn a phrase that will grow into public usage.

Today’s decision by the U. S. Court of Appeals for the District of Columbia spectacularly accomplishes all three. This decision will be the fundamental platform from which will grow future appellate and Supreme Court decisions expanding and solidifying our rights under the second amendment.

This action was filed by six residents of DC, and supported intellectually and financially by the libertarian-leaning CATO institute. One of the six plaintiffs, who are here known as the Appellants, is a DC special police officer who had actually been denied a permit to register his pistol and had therefore suffered the actionable damage of being prevented from keeping a firearm for self-defense.

The majority opinion will stand up to rigorous attack.

It sets out classic, historic, academic and precedentual support of its unequivocal finding that the second amendment defines an individual right to keep and bear pistols and rifles in support of self defense and other lawful uses.

Does the Amendment address individual or collective rights? It tackles the question head-on:

“The provision’s second comma divides the Amendment into two clauses; the first is prefatory, and the second operative. Appellants’ argument is focused on their reading of the Second Amendment’s operative clause. According to appellants, the Amendment’s language flat out guarantees an individual right “to keep and bear Arms.” Appellants concede that the prefatory clause expresses a civic purpose, but argue that this purpose, while it may inform the meaning of an ambiguous term like “Arms,” does not qualify the right guaranteed by the operative portion of the Amendment.”

The other side:

“The District of Columbia argues that the prefatory clause declares the Amendment’s only purpose—to shield the state militias from federal encroachment—and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right.”

The Court took a little license and described the position as:

“In short, we take the District’s position to be that the Second Amendment is a dead letter.”

The Court recognized the breadth of decisions that have sprung from federal courts over the years,

“The District’s argument—as strained as it seems to us—is hardly an isolated view.”

But it also recognized that the weight of the arguments have been changing recently and that the individual right is ascendent,

“And the United States Department of Justice has recently adopted the individual right model.” And, “The great legal treatises of the nineteenth century support the individual right interpretation…”

The majority writers describe themselves as textualists. They want to know what the words say. What is the plain meaning of the written words? They take the Amendment apart into its components.

“In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation.”

If anything, the meaning of the phrase “the people” is broader today than it was then:

“In sum, the phrase “the right of the people,” when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual. This proposition is true even though “the people” at the time of the founding was not as inclusive a concept as “the people” today. See Robert E. Shallope, To Keep and Bear Arms in the Early Republic, 16 CONST. COMMENT. 269, 280-81 (1999). To the extent that non-whites, women, and the propertyless were excluded from the protections afforded to “the people,” the Equal Protection Clause of the Fourteenth Amendment is understood to have corrected that initial constitutional shortcoming. The wording of the operative clause also indicates that the right to keep and bear arms was not created by government, but rather preserved by it.”

An incredibly insightful recognition that the rights of individuals are not granted by pieces of paper, governments or other individuals, but predate all those:

“Because the right to arms existed prior to the formation of the new government,[.b] see Robertson v. Baldwin, 165 U.S. 275, 280 (1897) (describing the origin of the Bill of Rights in English law), the Second Amendment only guarantees that the right “shall not be infringed.”

Here is one of the more intellectually telling points:

“The pre-existing right to keep and bear arms was premised on the commonplace assumption that individuals would use them for these private purposes, in addition to whatever militia service they would be obligated to perform for the state.”

This operates on a springboard of logic: The activities of the militia of that day (and today) were but a subset of all the activities in which an individual might engage. That subset, common defense, is desirable to civilization but even if it didn’t exist, the interest of the individual in the other activities, such as self-defense, would still require that he be allowed to keep and bear arms.

Refreshing from a federal court:

“The right of self preservation, in turn, was understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government.”

The Court looked at the context and found no room for a communal or states-rights argument:

“When we look at the Bill of Rights as a whole, the setting of the Second Amendment reinforces its individual nature. The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment’s inclusion therein strongly indicates that it, too, was intended to protect personal liberty. The collective right advocates ask us to imagine that the First Congress situated a sui generis states’ right among a catalogue of cherished individual liberties without comment.”

“Just as we would read an ambiguous statutory term in light of its context, we should read any supposed ambiguities in the Second Amendment in light of its context. Every other provision of the Bill of Rights, excepting the Tenth, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity. The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well.”

There is an area of the opinion that won’t get any media play but is likely amongst the most important. The Court watched DC wrestle with the word “keep” and then slashed their arguments to shreds: “Such outlandish views are likely advanced because the plain meaning of “keep” strikes a mortal blow to the collective right theory.” The Court observed that if “keep” and “bear” meant the same thing, the writers of the Bill of Rights would be very poor writers, indeed. Conversely, while lawyers and rulers could debate whether “bear” means “carry physically” or “have ready if called upon,” there really can’t be much room to argue that somehow “keep” doesn’t mean keep.

My favorite line, and the one I predict will be on bumper stickers in the next election:

“The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.””

What will be picked up by the general media is that the Court found room to restrict the carrying of arms:

“And as we have noted, the United States Supreme Court has observed that prohibiting the carrying of concealed weapons does not offend the Second Amendment. Robertson, 165 U.S. at 281-82. Similarly, the Court also appears to have held that convicted felons may be deprived of their right to keep and bear arms. See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (citing Miller, 307 U.S. at 178). These regulations promote the government’s interest in public safety consistent with our common law tradition. Just as importantly, however, they do not impair the core conduct upon which the right was premised.”

It’s easy to imagine the talking heads wondering whether we’re going to see an epidemic of open carrying. Of course, the opposite could much more easily be true, that governments, recognizing the popularity and efficacy of concealed carry, will go further to restrict open carry while encouraging concealed carry.

Further off, one can foresee classes on firearms safety returning to schools.

Buried in a footnote was the judges recognition of reality in the District:

“Of course, the District’s virtual ban on handgun ownership is not based on any militia purpose. It is justified solely as a measure to protect public safety. As amici point out, and as D.C. judges are well aware, the black market for handguns in the District is so strong that handguns are readily available (probably at little premium) to criminals. It is asserted, therefore, that the D.C. gun control laws irrationally prevent only law abiding citizens from owning handguns. It is unnecessary to consider that point, for we think the D.C. laws impermissibly deny Second Amendment rights.”

The District based its main arguments on two points. First, a ban on some firearms is not a ban on all firearms. The Court gave the argument the attention it deserved:

“The District contends that since it only bans one type of firearm, “residents still have access to hundreds more,” and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted. Once it is determined—as we have done—that handguns are “Arms” referred to in the Second Amendment, it is not open to the District to ban them. See Kerner, 107 S.E. at 225 (“To exclude all pistols . . . is not a regulation, but a prohibition, of . . . ‘arms’ which the people are entitled to bear.”). Indeed, the pistol is the most preferred firearm in the nation to “keep” and use for protection of one’s home and family.”

The second DC point was that because the District is not a State, the second Amendment does not apply within its borders. I understand Glen Reynolds’ point,

“the dissent, on the other hand, looks a bit odd. I'm going to have to think about it a bit more to decide if it's really as flimsy as it seems.”

All in all, I expect that this may be the most exciting appellate decision in my lifetime.

While the anti-gun groups will circle wagons feverishly in order to limit the effect and the applicability, some of the more imaginative pro-gun folks will be working to push the edges out from here. It's reasonable to expect to see "safe passage" litigation, testing whether New York City really has the authority to interrupt and arrest travelers passing through its airports with legal, checked guns, for instance. Or perhaps a suit testing the applicability of the "full faith" clause a carry permit issued by one state to its citizen traveling in another state, similarly to the treatment of drivers' licenses.

A great synopsis and further analysis of the decision is available at The Volokh Conspiracy the founder of which, Eugene Volokh, was cited repeatedly by the Court in its decision.