Obama and SCOTUS

So if the gun ban in DC "works" and is supported by its voters, why impose the standards on Cheyenne on it?

And what does the DC handgun ban have to do with sportsman and hunters? Who goes hunting with a handgun? Shotguns and rifles were still legal under the ban.

It's so nice to live in a country with a sane view of guns.

I meant "standards OF Cheyenne."

I have to say, I disagree with the SCOTUS decision on the death penalty for child rapists as well.
I honestly feel that they should be executed.

"...would seem to indicate he’s trending to the middle"

(sigh)
Jay Newton-Small:

I know that it's hard for you to keep up with these things sometimes, but you have to know that your "opposing gun control is a Republican/conservative position" formulation on is way old. Things have changed a little bit since the Delay era, don't you know...

Howard Dean supports upholding 2nd amendment rights; he was the NRA's "Governor of the Year" award-winner for a few years running, and was the candidate of most liberal activists in 2004. Markos (of the Great Orange Satan) is another supporter of the 2nd amendment. We're everywhere --liberals who just don't see the point of Federal gun control laws (or who just don't care about the issue at all) are the relatively new face of liberalism. Neo-liberals, libertarian Dems, whatever you want to call us, we don't fit that anachronistic description of "the liberal base". It's not 1980.

That Obama has taken the positions that he has isn't a "trend to the middle" it's a trend to the muddle. It's mildly inconsistent to support increasing the State's right to kill people at the same time one supports the people's constitutionally enumerated right to defend themselves with firearms. It's not remarkably principled either way, I'm afraid. It does allow the campaign to trumpet the idea that Obama is a Centrist in the mold of the Village's favorite politicians, since the Villagers are wildly incoherent most of the time, and love to hold themselves up as examples of great political wisdom. Of course the whole Village is still living in 1988, too.

Oops! I think that I just figured it out!
You're not necessarily just spouting hackneyed national media CW that's decades old, brand stale and politically irrelevant. You could be trying to say something else!
Maybe that's why you're using the phrase "trending to the middle", Jay Newton-Small. I often use that term as a euphemism for "having no coherent political ideas" and/or "displaying obvious political opportunism", myself.

I can't wait to see the photo ops of Obama out on a turkey hunt, decked out in his cammo gear, with a shotgun in hand. The only turkeys that would have any worries are those on his campaign.

Should be as good as Dukakis in the tank!

Obama is no hunter sportsman. He is an arugula eating elitist.

I honestly feel that they should be executed.

We have too many amounts of innocent men and women on death row already, thanks to an inequal defense system and outright prosecutorial misconduct.

Remember the Duke Lacrosse Incident? And how the assh*le attorney there unjustly tried to railroad those kids into jail for life with falsified evidence, crocodile tears in the courtroom, and public smearing tactics via the ever-complicit MSM? And how one of the accused from Duke commented that if he wasn't white and well-represented, he'd be in the slammer, and shudders to think of those that are not as fortunate? Now picture more DAs doing the same to accused child rapists, and railroading them into the gallows whether or not they are guilty.

On-topic: Very disappointed (again) in Obama, but I understand the stakes that are forcing him to go so centrist. Just wish he wouldn't be so Clintonian about it.

Yes Rusty. Obama is an elitist.

I know for a fact that McCain on the other hand has primer and rust on his wife's corporate jet.

All 8 homes they own have pink flamingos on the lawns, and the tvs are turned on to Nascar 24/7.

"I have to say, I disagree with the SCOTUS decision on the death penalty for child rapists as well.
I honestly feel that they should be executed."

Yeah, divorce attys probably feel the same. F@ck it, lets go Sharia!

Jay Newton-Small asserts: "Barack Obama had some interesting thoughts on two of the Supreme Court decisions this week that would seem to indicate he’s trending to the middle.

"The second decision came today, repealing DC’s gun ban (we’ll all be wearing flak jackets soon)...."

"Of course, there’s little Obama would be able to do to about either ruling, even as president."

"[T]here's little Obama would be able to do about either ruling, even as president"? Right. There's is nothing Obama would be able to do but nominate absolutely lawless justices like Ginsburg, Stevens, Souter and Breyer who would substitute their own political preferences for the United States Constitution and the rule of law. Capital punishment is mentioned twice in the U.S. Constitution, and the Constitution also says that "the right of the people to keep and bear arms shall not be infringed", but the type of lawless justices that Obama would nominate, following something called a "living" so-called "constitution" would declare both non-existent because they don't fit the preferences of people like Ginsburg, Stevens, Souter, Breyer and usually Kennedy.

Also, you have to love the hysteria of Newton-Small and other activists of the anti-Second Amendment lobby who think "we’ll all be wearing flak jackets soon."

"There's is nothing Obama would be able to do but nominate absolutely lawless justices like Ginsburg, Stevens, Souter and Breyer who would substitute their own political preferences for the United States Constitution and the rule of law."

I always find it interesting how much people's views of "lawless" pretty much exactly corresponds to their personal political views.

Funny how that works.

Could we find better trolls please? I know that there indeed sane and reasonable Rupublicans to be found. Rusty and texte do more to discredit their own cause than anything I could ever accomplish.

And by the way. I also take issue with the phrase "trending to the middle". 'Trending' implies 'change' and I think Obama has always had centrist instincts.

Now, his turnabout on FISA on the other hand is much stronger evidence that he is indeed tacking in a new direction.

Vicious maniac brings up a good point - there are huge flaws in our justice system. I feel that, all things being equal, child rape merits death. But all things aren't equal.
It's unfeasible to support the death penalty when the system is broken, and thank you for reminding me of that, vicious maniac.

Cincinnatus - How did you go from child rape to divorce?

Right on Paul D.

Well said, Paul Dirks.

I've seen little evidence to associate the word "smart" with anything Massimo Calabresi has written. And it was really reprehensible for him to end with this GOP talking point -
'"Its pretty clear that if he's elected and Justice Scalia or Kennedy retires that he's going to appoint someone who's very likely to reverse [the gun control decision]," says Eugene Volokh, a professor at the UCLA School of Law.' - when (a) Scalia and Kennedy aren't the justices who are about to step down in the next term (we should be so lucky - even McSame would be hard-pressed to come with a more conservative justice than Scalia), but rather the liberal Stevens and maybe Ginzberg, and (b) it's very unlikely that a reconstituted SC would revisit a case that has already been decided so quickly.

In case that gammar was unclear, I meant, "would revisit a case so quickly that has already been decided."

I was going to say, isn't Calabresi the same guy that screwed the pooch on the FISA vote story? Maybe Klein's being sarcastic with the "smart" tag.

Yglesias on the DC gun decision:

...From a policy perspective, what DC is trying to accomplish is just futile -- as long as the District is a very small patch of land adjacent to Virginia, there's no way gun regulations of this sort will prevent criminals from acquiring weapons.

Quite.

"UPDATE: My colleague Massimo Calabresi..."

Jay Newton-Small:

Thanks for the "update", LOL.

It's a testament to the ideology-driven dishonesty of both the editors at Time and Calabresi (author of that farcical piece of stenography on Pelosi's self-congratulatory spin the FISA capitulation) that a "move to the Center" is predictably lauded as "Supreme" for a Democrat (in this case Barack Obama).

It's also a testament to the pathological other-directedness of national political journalists and their sick culture that Jay Newton-Small provides an "update" of another journalist's political "analysis" as justification for further lazy regurgitation on her part.

Jay Newton-Small:
Massimo Calabresi isn't a credible source of analysis on any matter before the electorate, since the ultimate conclusion of every piece will inevitably be some version of "Centrism Good for Politician! Centrism Good!"

...I should just add that perhaps the most "supremely" dishonest aspect of Massimo Calabresi's "Obama's smart Centrist move" is the disappearing act (ubiquitous in the national political media) that Calabresi pulls with the ideology of Centrism itself.

Calabresi places the debate between the familiar "Liberals think this", "Conservatives think that" binaries, so that any given Democrat's "move to the Center" is somehow the natural meeting of practical minds at the sanest way forward on all issues, instead of the febrile adherence to the Beltway Establishment's prevailing political ideology --the Third Way, the Radical Middle, Centrism-- of which Massimo Calabresi and the editors of Time are obvious proponents. It's simply not true that moderate conservatives or moderate liberals are Centrists. Centrists are Centrists, whether they are moderate or radical, and Centrism is not synonymous with moderation (despite the best efforts of Time Magazine to favorably brand their own political views). Since Centrists love to make the absurd marketing claim that they're really "non-ideological pragmatists, taking the best ideas from all sides", they effectively disappear themselves from the debate in pieces like Calabresi's, whilst simultaneously cheerleading their positions as "politically astute on the part of the Candidate".

Disgusting people, really. They're just as much the reason as the neo-conservatives why thousands of our troops, and hundreds of thousands of Iraqis are dead in their graves.

Malcolm:

I had the same problem with the unsupported soothsaying of a single law school type. Is he by chance the Distinguished Professor of Omens and Crystal Ball Law? Doesn't anybody in the journalism dodge know how to ask a follow-up (like "How do you know that?") anymore? Volokh's assumption flies in the face of almost the entire history of SCOTUS, which reverses itself only rarely and after extended periods.

Jeez, these people will say anything, and too many reporters will take it at face value. My old prof always reminded us, "If your mother says she loves you, CHECK IT OUT!"

I was going to say, isn't Calabresi the same guy that screwed the pooch on the FISA vote story? Maybe Klein's being sarcastic with the "smart" tag.

Posted by Mr. Nice Guy

JNS wrote that, not JK.

The D. C. gun case is an EXCELLENT opinion from the High Court! OsiSpeaks.com

I'm re-reading 'Audacity of Hope' and recent Obama comments on these two cases are the same opinions he expressed in the book. Sometimes it is better to read the book, rather than just checking to see if you are in the index, Massimo and Jay.

Whether Obama's new centrist sheen is the result of flip-flopping or reemphasizing moderate positions.....

I knew it even before I checked.....

http://www.time.com/time/politics/article/0,8599,1818334,00.html

http://www.time.com/time/politics/article/0,8599,1816911,00.html

These two articles have three things in common.

The first is that thet're packed with reprehensible lies that seriously and deliberatelty distort liberal positions.

The third is that they both appear in Time magazine.

"I was going to say, isn't Calabresi the same guy that screwed the pooch on the FISA vote story?"

Malcolm,

Yes it is the same reporter on the FISA story. In the current story that JNS he states:

"But while Barack Obama may be ranked as one of the Senate's most liberal members"

No sourcing on where that ranking comes from (NRO). It is just stated as a fact. Obama is ranked that way, by that publication for a reason and surely Mr. Calabresi knows what that reason is. That's lazy.

Mr. Calabresi knows what that reason is. That's lazy.

Sorry. That's not lazy. That's lying.

need more evidence?

http://www.usnews.com/blogs/washington-whispers/2008/3/31/its-obama-over-clinton-for-pennsylvania-gun-owners.html

Some heinous crimes justify the ultimate punishment
While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes--mass murder, the rape and murder of a child--so heinous that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment. On the other hand, the way capital cases were tried in Illinois at the time was so rife with error, questionable police tactics, racial bias, and shoddy lawyering, that 13 death row inmates had been exonerated
Source: The Audacity of Hope, by Barack Obama, p. 58 Oct 1, 2006

http://www.ontheissues.org/2008/Barack_Obama_Crime.htm

That link to Calabresi's article is pretty problematic. He cites, as an example of Obama moving towards the center, Obama making a Father's Day speech in which he says that being a man means not the ability to have a child but having the courage to raise one.

Are you really implying that the left wing position on fatherhood and manhood is that men should spread their seeds around and not raise the babies?

Are you implying that "fatherhood" is a conservative value?

Because that seems more than a little unfair.

OMG, a substantive post. Even if I disagree with parts of the analysis.

Thanks for that at least.

Sorry, That should be National Journal not NRO.

Malcolm: "And what does the DC handgun ban have to do with sportsman and hunters? Who goes hunting with a handgun?"

Haven't spent much time in SE Washington, have you?

Seriously, I generally favor strong gun control laws, but I can see why a Constitutional scholar might have a problem with D.C.'s law.

Regarding the child rapist decision: decisions based on the "cruel and unusual" clause have always been difficult, as the Court really has nothing to go on other than what they see as current standards of most Americans. They have to draw a line somewhere, and anywhere they draw it is going to be subject to criticism. Their current position at least has the advantage of being clear: the state will kill only when the criminal has killed.

I did find it interesting that some child-welfare groups endorsed the decision. They argue that having the death penalty makes it more difficult for victims to come forward - always the hardest part of enforcing child-rape laws.

I should actually say thank you, Jay Newton-Small. This is a post about issues, and therefore valuable. If this had been a piece of Dowd-ist podium posture, hand gesture and clothing analysis, I would have been much, much more offended.

Thanks again for staying on these important issues that so bore the Villagers, Jay Newton-Small.

"Of course, there’s little Obama would be able to do to about either ruling, even as president. So, his comments come purely as opinions that give voters an idea of where he stands on the political spectrum".

Would all this coherence and understanding be applied to all candidates (and I will not mention any names) would the press be so condescending?
Pathetic, truly, truly, truly pathetic.

By the way, I do not mean McCain, although it certainly applies.

"Of course, there’s little Obama would be able to do to about either ruling, even as president. So, his comments come purely as opinions that give voters an idea of where he stands on the political spectrum".

Would all this coherence and understanding be applied to all candidates (and I will not mention any names) would the press be so condescending?
Pathetic, truly, truly, truly pathetic.

By the way, I do not mean McCain... although it certainly applies.

i don't own a gun, never have and never will. On the other hand, a gun ban would in my opinion do nothing. If I actually wanted to shoot someone i would just go and purchase an unlicensed gun off the streets. Any self respecting criminal with half a brain would do the same. Issuing a gun ban would in my opinion do nothing.

Criminal "I want to shoot someone today, but oh wait , I can't carry a gun in this city, oh well, so much for that idea"

also on the child rapist thing, if a child in my family was raped I would kill the perpetrator myself, no need for a trial, it would be over and done with.

I support someone being able to defend herself if her home is broken into by someone intending to do harm to her. This does not include crazy, semiautomatic guns. Just something in case 911 can't get there fast enough. I also support very thorough background checks (as in Virginia Tech) to make sure the person purchasing is mentally sound. The plaintiff in this case lived in an unsafe neighborhood and was fearful. I disagree with the mayor of Chicago. He compared owning handguns to the wild west. I have friends and family who own guns. They are locked up. They take this responsibility very seriously. Ultimately, if some huge man breaks into my home (I am petite), I want something to protect me from being raped and murdered.

Just so we're clear.

That Obama is taking centrist positions is true and unsurprising.

That this represents any sort of shift or, God forbid, flip-flop is a deliberate lie which is being pushed forward because it fits in with the cookie-cutter narrative that certain journalists are so addicted to.

The Calabresi article in particular is loaded down with blatant falsehoods which can be easlity demonstrated by using google for five minutes to find old Obama statements that are perfectly consistent with his current ones.

But that would spoil the punch-line......

I think he's just being honest. He doesn't give an opinion based on how popular it seems. The early Russert debate when he spoke up in favor of drivers licenses for illegal immigrants was not popular, but he made his position clear.

It's this kind of stale "theme" regurgitation that I'm so heartily sick of.

Being a responsible dad is not a conservative value, and encouraging that is not a sign of "moving to the middle". Being a dad is the most important thing to me, and to suggest it's not a "liberal" value is beyond offensive.

It's just beyond silly to throw off trite phrases like that, as if it provides some window of understanding.

The folks at TIME at the masters at shallow binary analysis. It's really just evidence of intellectual laziness. I'm sure they spend plenty of time chit-chatting on the phone and engaging in their blackberry politics, as Carney loves to moan about, but it's really just wasted time.

> also on the child rapist thing, if a child in my family was raped I would kill the perpetrator myself, no need for a trial, it would be over and done with.

"A Time to Kill." I had a boy, so the worry was a little less, but he grew up and had a daughter, and they'd have to shoot me to keep from strangling any b@stard that touched her.

Some stories out today that, oh no! shocking!, further discuss Obama's move to the center:

New York Times: For Obama, a Pragmatist’s Shift Toward the Center
http://www.nytimes.com/2008/06/27/us/27obama.html?_r=1&ref=todayspaper&pagewanted=print&oref=slogin

McClatchy: Will Obama's shifting stances undermine his true-blue image?
http://www.mcclatchydc.com/election2008/story/42361.html

Washington Post: The Ever-Malleable Mr. Obama
http://www.washingtonpost.com/wp-dyn/content/article/2008/06/26/AR2008062603653_pf.html

Politico: Obama: Change agent goes conventional
http://dyn.politico.com/printstory.cfm?uuid=C6D9A9B8-3048-5C12-007ECB3F0699E3EB

JNS

GySgt213,
I'm not the one who said, "I was going to say, isn't Calabresi the same guy that screwed the pooch on the FISA vote story?" That was Mr. Nice Guy. I was quoting him in my response to him.

As to the Obama, I agree that his stance on the death penalty is entirely consistent with his earlier position. On the other hand, the example that Paul Dirks cited only mentions the "rape and murder of a child," whereas the whole point of this ruling was that murder was not involved. But nothing BO said would preclude him supporting this ruling either, since he said it depends on the communities' standards.

But for the hand gun ban he does seem to be contradicting himself (or at least being intentionally OT). Especially with respect to the quotes that I was referring to with my first comment at the top of this page: BO says, "I know that what works in Chicago may not work in Cheyenne," but the point of this ruling is that Chicago's ban is likely going to be struck done, so apparently what works in Chicago will not be allowed there either. This goes against his notion that different communities will be able to set their own rules. This reminds me of FISA, where he asserted that the bill will do the opposite of what in fact it does.

Also, he assures that he "will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen," when in fact the right of hunters and sportsmen were not at issue here. And since handgun owners in DC were technically not law abiding before this ruling, his statement would have had no implication for the ruling regardless of which way it turned out. So he is essentially saying nothing, but trying to counter the typical GOP claim that Dems want to take away their guns.

So, Massimo Calabresi came out with a column claiming that the Democratic candidate is moving to the center, as he must. Couldn't've seen that coming!

Seriously, that dude is as committed an ideological activist as Phyllis Schlafly or Ralph Nader, with the requisite level of interest in actual facts.

I guess the Safire/Kristol "working the refs" strategy really worked. The goal of political journalists is now "stressing the importance (for the Democrats) of moving to the center," supplanting the outmoded "reporting facts" model.

And Safire and Kristol both wound up with sinecures at the Times.

Mr. Albany,
"If I actually wanted to shoot someone i would just go and purchase an unlicensed gun off the streets. Any self respecting criminal with half a brain would do the same. Issuing a gun ban would in my opinion do nothing."

You're missing 2 elemants here. One is that many shootings are committed with no forethought - either accidentally (say, children are playing with a gun they found in the home), or that during an argument someone pulls out a gun and shoots the other person in the heat of the moment. Not having guns around eliminates those risks. The other way that guns bans help is that they reduce the number of guns readily available on the streets, if they are implemented widely enough. I agree that a ban in only DC is unlikely to have much effect, since one can just drive to a nearby state, such as VA, and load up your trunk with them, but that is an argument to widen the bans. Here's a good example: In the country where I live, with about 40% of the population of the US, the total number of people shot to death last year was around 2 dozen. The year before I think it was 2. Two people in a country of 127 million people. A big part of that is because virtually no one owns guns here since they're illegal. A few gangsters have smuggled some in, but they are very rare (street punks don't have them), so they are practically only used to kill other criminals, which doesn't particularly bother most people.

Malcolm,

Thanks for the response.

Gosh, now Charles Krauthammer says so, too. That seals it!

You've established that it's the story of the day, Jay. Do you think it's accurate? Do you think it's important? Why or why not? Cite specific examples. Compare and contrast the coverage of Obama's "move to the center" with the coverage of McCain's "over three dozen flip-flops in four months."

I swear, 10th grade English and Social Studies exams require a lot more intellectual rigor and honesty than publishing a political article in the New York Times.

JNS, Your pointing out that the "Obama shifting" story is widespread doesn't change my assertion that the facts are being massaged to fit the existing narrative.

Several of the shifts cited by the MCclatchey story are direct responses to bullying by the press and opponents. (That would be the flag pin and the Pastor)

the Politico ignores it's own statement about the candidate and digs for a contradiction here:

Though he had tried to avoid taking a firm stand on either the ban or the case, an unnamed staffer last year told The Chicago Tribune that "Obama believes the D.C. handgun law is constitutional."

Charles Krauthammer
- I won't even comment......

I gladly concede that the FISA stand is a stunning reversal, but it's also clear that in everyone of the styories you cited, The premise was decided first, and the evidence filled in, much of it questionable.

Jay Newton-Small asserts: "Some stories out today that, oh no! shocking!, further discuss Obama's move to the center ...."

Got it. For the last thirty years, just as the sun sets every single day, the Washington press corps has announced that the Democrat party presidential nominee is a "centrist", a "moderate", a "pragmatist", or "has moved to the center", or ....

Bet your last penny, if you find any takers, that in four years the same dupes declaring Obama's "centrism" will be declaring how the 2012 Democrat party nominee has moved to the "center".

Also, bet your last penny that just like the presidential elections of the last thirty years, the 2012 Democrat party nominee will not receive a majority of the popular vote.

Posted by Elvis Elvisberg | June 27, 2008 10:06 AM:

"...that dude is as committed an ideological activist as Phyllis Schlafly or Ralph Nader..."

Elvis:

Exactly.

And Time Magazine, by virtue of its sole claim to credibility being an identification with Beltway elites, is an organ of ideological activism on behalf of Centrist politics, just as much as Fox News Channel expresses the interests and values of Movement Conservatives.

Posted by texte | June 27, 2008 10:23 AM:

"...just like the presidential elections of the last thirty years, the 2012 Democrat party nominee will not receive a majority of the popular vote...."

texte:

As far as lying or ignorance goes, that's pretty pathetic. The Federal Elections Commission has it like this:

2000 PRESIDENTIAL POPULAR VOTE SUMMARY
FOR ALL CANDIDATES LISTED ON AT LEAST ONE STATE BALLOT

Candidate (Party Label)
Popular Vote Total
Percent of Popular Vote

Al Gore (Democrat)
50,999,897
48.38

George W. Bush (Republican)
50,456,002
47.87

Ralph Nader (Green)
2,882,955
2.74

Patrick J. Buchanan (Reform/Independent)
448,895
.42

Harry Browne (Libertarian)
384,431
.36

Howard Phillips (Constitution)
98,020
.09

John S. Hagelin (Natural Law/Reform/Independent)
83,714
.08

Write-In (Miscellaneous)
20,767*
.02

James E. Harris, Jr. (Socialist Workers)
7,378
.01

L. Neil Smith (Libertarian)
5,775
.00

David McReynolds (Socialist)
5,602
.00

Monica Moorehead (Workers World)
4,795
.00

None of These Candidates (Nevada)
3,315
.00

Cathy Gordon Brown (Independent)
1,606
.00

Denny Lane (Vermont Grassroots)
1,044
.00

Randall Venson (Independent)
535
.00

Earl F. Dodge (Prohibition)
208
.00

Louie G. Youngkeit (Independent)
161
.00

Total: 105,405,100

On child rape, it is important not to let emotion cloud judgment here. One of the arguments that was used against the death penalty for child rape is that there is absolutely no incentive to leave the child alive, and in fact there is incentive to kill them, as the penalty would be the same but there is lower likelihood of being caught. Also, the death penalty has yet to be expanded to cases where there is not death inflicted upon the victim. A ruling favoring the death penalty for child rapists could open up the death penalty for other non-lethal crimes.

The death penalty should be reined in, not expanded. And it is important to note that historically the death penalty has been used overwhelmingly disproportionately against minorities and is highly subjective. Black aggression against white victims is far more likely to be pursued as a capital case. And I appreciate the poster who brought up the Duke Lacrosse case.

on the DC Gun Ban (I am a DC resident), it is not surprising that the Court finally ruled that the 2nd Amendment guarantees an individual the right to arms (though I disagree with that interpretation), but the bigger question and one that I have not heard anyone address, or whether this case addressed it, is what constitutes a "reasonable restriction" on the right to keep and bear arms. That will be the true crux on which gun control laws hinge.

Does the decision mention militias? Or are we now to just wipe clean the opening clause of the Second Amendment- "A WELL-REGULATED MILITIA, being necessary to the security of a free state..."

Is it just a little ironic that "conservatives" use the most liberal interpretation of the 2nd Amendment (ignoring the opening clause) to establish a conservative end?

And to wade a little bit into stupid: texte is clinging to the term MAJORITY. He and other conservatives seem to somehow believe that because George W Bush won a MAJORITY in 2004 instead of a PLURALITY (as Clinton and Gore won), this is somehow evidence of something important. He is technically correct that Clinton and Gore did not win MAJORITIES.

However, the majority/ plurality distinction is purely a function of the existence of a strong third party candidate (present in 1992, '96, 2000 but not in 2004), and is apropos of nothing whatsoever. It won't change the fact that one president who never won a majority left office with a 65% approval rating and the next who won a majority (slimmest re-election margin ever, btw, but a "majority" so woohoo!) will leave office with a 65% DISAPPROVAL rating.

Ah, to be a wingnut...

I think he's just being honest. He doesn't give an opinion based on how popular it seems. The early Russert debate when he spoke up in favor of drivers licenses for illegal immigrants was not popular, but he made his position clear.

Obama chimed in favorably on this to start making inroads into the so-called "Latino" vote; it was very calculated and you can actually even SEE him triangulating as he stumbled out his answer. And he never defended it much in later debates, giving a Hillary-style evasive answer when asked about his support of it.

It was the more honest pols like Dodd (as usual) that were forthright about that awful law (ridiculously complicated to manage, a massive security/legal issue, illegals will probably NOT want to carry some type of frickin' id that basically tells the world they are illegal, illegals will still drive uninsured as their wages are far too low to afford it, and on and on and on...).

On-topic, going "centrist" (ah, MSM) or not, Obama did in fact contradict himself on the gun ban and his position on executions for child rapists is full-steam ahead wrong.

Posted by Piper | June 27, 2008 11:42 AM:

"Does the decision mention militias? Or are we now to just wipe clean the opening clause of the Second Amendment- "A WELL-REGULATED MILITIA, being necessary to the security of a free state..."...Is it just a little ironic that "conservatives" use the most liberal interpretation of the 2nd Amendment (ignoring the opening clause) to establish a conservative end?"

What exactly is being ignored about the first part having to do with militias? Why is the affirmation of the second part (" the right of the people to keep and bear Arms, shall not be infringed.") "wiping clean the opening clause"?

What exactly is being ignored about the first part having to do with militias?

Um, all of it.

No other clause in the Bill of Rights amendments dealing with specific rights has zero legal meaning.

I'm not at all unhappy with the decision from a policy or political standpoint-- DC hasn't been the world's most peaceful city, and many people care passionately and want an individual right to possess guns.

But Scalia assumes his conclusion, that the second clause takes precedence, because he prefers the content of the second clause to the first. See FNs 3 and 4-- his rationale for rejecting Stevens' construction of the amendment is unconvincing and tendentious.

My thoughts on the DC gun ban are simpler, so I'll start there. I think the court got it right. I am, however, curious to see how these exceptions will flesh out, and I wish the court had been more specific.

The Constitution forbids infringing on the people's rights to bear arms in any way. The first part illustrates the reason, but does not change the effect. In order to mean that only militias have the right, the English language would require the word militias or a pronoun in the second part. I personally feel exceptions for the mentally ill and minors and in government buildings and schools are good ideas. But the constitution forbids them. The correct thing to do is to amend to constitution, not for justices to make common sense exceptions. But I'll gladly live with them.

Barack Obama seems to agree with the court and my sentiments here. I don't read him as being dishonest. I think (as befits his legal training) he was truly waiting to hear the legal arguments before passing judgement. I do get the feeling he'd like more exceptions than I would, and probably more than the Court would, too.

I haven't sorted through Scalia's opinion from yesterday, yet, but here's a bit from the DC circuit's opinion on the matter that was equally unpersuasive. The collective rights theorists always put the Second Amendment in the context of provisions from various state constitutions, not in the context of the Bill of Rights.

The District relies heavily on the use of “bearing arms” in a conscientious objector clause that formed part of Madison's initial draft of the Second Amendment. The purpose of this clause, which was later dropped from the Amendment's text, was to excuse those “religiously scrupulous of bearing arms” from being forced “to render military service in person.” The Complete Bill Of Rights 169 (Neil H. Cogan ed.1997). The District argues that the conscientious objector clause thus equates “bearing arms” with military service. The Quakers, Mennonites, and other pacifist sects that were to benefit by the conscientious objector clause had scruples against soldiering, but not necessarily hunting, which, like soldiering, involved the carrying of arms. And if “bearing arms” only meant “carrying arms,” it is argued, the phrase would not have been used in the conscientious objector clause because Quakers were not religiously scrupulous of carrying arms generally; it was carrying arms for militant purposes that the Friends truly abhorred (although many Quakers certainly frowned on hunting as the wanton infliction of cruelty upon animals). See Thomas Clarkson, A Portraiture Of Quakerism, Vol. I. That Madison's conscientious objector clause appears to use “bearing arms” in a strictly military sense does at least suggest that “bear Arms” in the Second Amendment's operative clause includes the carrying of arms for military purposes. However, there are too many instances of “bear arms” indicating private use to conclude that the drafters intended only a military sense.

That last sentence doesn't do the work the DC Circuit claims it does, in my view.

Not to invoke any slippery slope arguments or anything but if limiting access to revolvers violates the second amemdment, doesn't limiting access to shoulder launched heat-seeking missles violate the same right?

There are no absolutes....only interpretations.

"It is important not to let emotion cloud judgment here"

I agree. As a mom of two who heard on tv that the little girl (8 years old) was basically torn up by this man - lots of bleeding and much internal damage, the first thing I thought was "Kill him". But, if the death penalty is applied for this, I believe a slippery slope begins. Captital punishment, if it's going to be used, has to be for the worst of the worst. To me, this means only for murder.

As far as the remark about Obama stumbling with some of his answers, I believe he just knows that every word, every gesture, every facial expression can be misread. Unfortunately, now politicians must consider all of this while trying to explain their position.

On child rape and the death penalty: Piper, I think I learned a little something from you. I oppose just about every ruling on cruel and unusual punishment. They usually focus on the cruel part and forget that it must also be unusual to be forbidden. But in this case, it's justified. As Piper points out, child rape is one of the most unevenly punished crimes there is. And it also lends itself to wrongful conviction more than most. So again, I think the court got it right.

The purpose of the ban on cruel and unusual punishment is to prevent the government from selectively punishing people. The government could otherwise choose to execute black people for a crime that they merely fine white people. Or a local judge could give his friends or political supporters slaps on the wrist while severely punishing his political enemies. And child rape punishments have crossed these lines.

Here I disagree with Obama. I further get the sense, but do not know, that he is playing political games here, rather than speaking from the heart.

Well, sure, Paul Dirks, the First Amendment says "make no law," but obscenity receives zero protection, commercial speech didn't until about 30 years ago, then there's fighting words, threats, stuff that poses a risk to national security...

(It was a First Amendment case, Terminiello, in which the majority overturned a conviction of a priest whose pro-Nazi statements at a rally had incited a riot, in which Justice Jackson wrote the famous line, "the Constitution is not a suicide pact." His dissent is based largely on the facts of the situation-- an angry mob outside the building where the speech was being given ("the local court that tried Terminiello was not indulging in theory. It was dealing with a riot and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two."). It's quite a leap to apply that line to a defense of government torture, but that's what Judge Posner does in his book. But I digress...)

I know two people who make the slippery slope argument with nuclear weapons. Except they aren't making a slippery slope argument at all; they truly believe private citizens should be allowed to own nuclear weapons.

Frankly, as written, I think the constitution agrees with them. I think this is a case of something the founders could not forsee. And the constitution should be amended to permit the banning private ownership of certain types of weapons. And I think this would already have happened if we weren't in the habit of amending the constitution through disingenuous legal rulings.

I guess it's matter of what you need to "protect yourself". A handgun is about it, I think. Why not limit how many you can own, also? Dangerous people have stockpiles of weapons is scary.

"The Constitution forbids infringing on the people's rights to bear arms in any way."

Umm, what? This is complete garbage. I hope someone who is more familiar with the decision will address whether this decision takes aim at what is a "reasonable restriction" on the right to bear arms, but the case that this essentially overturns 73 years ago said that a sawed-off shotgun was not a weapon reasonable to be used by a militia, and is thus not protected by the 2nd Amendment. So, WonderLlama, you are even farther out there than Scalia is on this one.

Further, you really are forcing the slippery slope argument to be fleshed out. The Constitution forbids infringing on the right to bear arms IN ANY WAY?!?! So it is your contention that I as a private citizen is Constitutionally able to purchase and keep shoulder-fired missiles, Abrams tanks, Blackhawk hellicopters, Predator drones, grenades, assault refiles, or nuclear-armed intercontinental ballistic missiles?

This was my point that Stuart the Contrarian objects to. How one can look at the opening clause of the amendment A WELL REGULATED (REGULATED!!!) MILITIA and come away with the opinion that the Legislature cannot regulate arms in any way is beyond me. But I don't think that is what this case actually states.

On a small aside, the District of Columbia is not a "free State." At best it is a "free state." It is thus even more interesting that DC's ban was used as the test case. I hope in the future this case can be used to demand equal rights for the citizens of DC. The extent that this swath of land is used as a dumping ground for conservative fantasies is appalling.

Back to my original question which I sincerely hope to have answered: I assume that this case, in throwing out the DC Gun Ban, makes clear that our legislation banning registration of hand guns is not a "reasonable restriction." Does the case offer any insight into what does constitute "reasonable restriction?"

I am glad to see you acknowledge your own slippery slope argument, WonderLLama. I hadn't seen what you wrote before posting.

However, I still think you have the facts wrong when you say that there can be no regulation of firearms. That was certainly not the case up until yesterday. I am awaiting an answer to whether this case establishes the unlimited right you suggest it does.

"The majority opinion, written by Justice Antonin Scalia, established for the first time in U.S. history that the Constitution's Second Amendment gives individuals the right to keep guns at home for self-defense.

Yet Scalia noted that a person's right to gun ownership is not unlimited." http://www.usatoday.com/news/washington/2008-06-26-scotus-guns_N.htm

WonderLlama -

Exactly. Thank you.

I see, Elvis.

So this decision defines the first clause as "prefatory", and the second as "operative".

(I understand your point now, too, piper)

Given the vast history of common law with respect to armed subjects being responsible for their own protection (doing their part to maintain the King's property in his Kingdom), and the anti-federalists' positions on the prevention of tyranny, isn't that definition reasonable and fair (even if Scalia wrote it to further his own political agenda)?

I don't think the justices agree with me. I think what they have said clearly leaves room for many exceptions.

I don't want ordinary people to have access to shoulder launched missiles. But I do think the constitution, as written, allows it. I think this is a result of the framers being unable to see the future of technology.

I think we should amend the constitution to make this clear. The constitution is difficult to change. That is because changing its meaning is dangerous. In this case, it is a good thing, but it's usually not. Changing it's meaning through justice opinion gets around the difficulty, and the difficulty is there for a good reason. And sadly, this habit we have makes it even harder to change the constitution when it is needed, because it removes the motivation.

Now as a pragmatic matter, I realize the constitution can't be changed over night, and don't think shoulder mounted weapons should be allowed in the mean time. I also think that the result of changing the constitution to forbid shoulder mounted weapons is likely to lead to banning something I don't think should be banned. But I believe in the constitution to such an extent that I can live with that.

Paul, Elvis -

As I see it, no Constitutional right can be absolute - even if it is stated in absolute terms. Why? Rights conflict. Your rights can conflict with my rights, and one Article of the Bill of Rights can conflict with another. Part of the SCOTUS' job is to resolve such conflicts, usually by invoking what comes down to common sense.

Yes, that is plausible, Stuart. I think Scalia argues that the Second Amendment codified a pre-existing right. I haven't read his opinion yet, so I don't know how he reaches that conclusion. (But the question of what the Second Amendment means can't be determined entirely by, say, Blackstone's commentaries or the Magna Carta or the New Hampshire constitution. You have to look at what the amendment itself meant, and collective rights theorists like Eugene Volokh don't read the Amendment in its context, in the Bill of Rights.)

Right, Robert Sullivan. I didn't mean to be arguing otherwise. No right is absolute, not even the ones written in the Constitution in absolute terms. It's usually a little more involved than common sense, but not always.

rainbow68:
Captital punishment, if it's going to be used, has to be for the worst of the worst. To me, this means only for murder.

To me, child rape is the worst of the worst. On the grounds of sheer heinousness, I feel execution is justified, and the slippery slope idea doesn't change things much for me either.

Piper's and Robert Sullivan's arguments against execution for child rape are far more convincing for me - if execution creates an incentive to kill the child and get away with it, it's far better to lock them up for life.

Yet another - and far more cynical - argument against executing those who rape children: They generally do not enjoy their time in prison. And they generally do not stay there long.

Except haven't the authorities started seperating child molesters so that they don't die horrible shank-tastic deaths?

Posted by texte | June 27, 2008 10:23 AM:

"...just like the presidential elections of the last thirty years, the 2012 Democrat party nominee will not receive a majority of the popular vote...."

texte:

"As far as lying or ignorance goes, that's pretty pathetic. The Federal Elections Commission has it like this:

"2000 PRESIDENTIAL POPULAR VOTE SUMMARY
FOR ALL CANDIDATES LISTED ON AT LEAST ONE STATE BALLOT

Candidate (Party Label)
Popular Vote Total
Percent of Popular Vote

Al Gore (Democrat)
50,999,897
48.38

...

"At least try to support your arguments with statements of fact that aren't that easily debunked in half-a-minute, texte."

Posted by stuart_zechman

stuart_zechman:

Evidently, you are not too familiar with the English language. Majority means greater than half. Consequently, your claim that Gore received a "majority" of the popular vote is mistaken. Nice try, though.

Texte,

I already defended your statement against Stuart. Now how about defending your evident supposition that this little factoid of yours has any relevance to anything, whatsoever?

What credibility is established by winning a majority versus a plurality? Does Bush's 2004 majority win mean anything whatsoever to his legacy besides the fact that there was no credible 3rd party challenge? Is the fact that Bush won a majority for his reelection (though it was the slimmest reelection margin ever, far narrower than Clinton's) more relevant to his legacy than the 28% approval rating he will leave office with? Is Clinton's best-of-all-time 65% approval rating upon leaving office negated by the fact that he did not win a majority, but a "mere" 8 point plurality margin for reelection?

I rarely seek to engage the trolls, but I find this particular line of Republican argument to be even sillier than the usual tripe.

Piper -

While I agree with your post in general, I have to ask: was Clinton's 65% approval rating before or after those last-minute pardons?

texte:

Oh, I get it!

I'm so unfamiliar with the English language that I assumed you were using "majority" in the euphemistic manner common to most American, meaning having won the most votes, which, obviously, Democrats have succeeded in doing time and again.

I didn't understand that you really meant a literal majority of the votes cast for any candidate period, as in 50 + percent of all votes, even votes for "Write-In (Miscellaneous)", "James E. Harris, Jr. (Socialist Workers)", "Monica Moorehead (Workers World)", and "None of These Candidates (Nevada)". Did I forget to mention "Earl F. Dodge (Prohibition)"? Sorry about that, the votes cast for "Earl F. Dodge (Prohibition)" are certainly central to whatever point you're making, since it's necessary for you to clarify that you had referred to a literal majority of votes.

So, with that important distinction cleared up, and "Earl F. Dodge (Prohibition)" votes included in our thinking, what exactly does that mean in terms of Republican national representation versus Democratic national representation apropos of your point, texte?

There was nothing "smart" in that linked column, other than the comments of Professor Sunstein.

Please don't make me read another Calabresi article; two is two too many.

The death penalty decision is a tough one. In theory, I support the death penalty. As applied, I can't. There is too much human error in our justice system. Juries, judges, prosecutors, defesne attorneys, witnesses, imperfect rules -- they let awful criminals go and convict innocent people.

About the gun rights issue: The Constitution applies to the entire United States. DC is still part of the country. It should have to abide by the Bill of Rights. It's not like the Second Amendment decision has created some new surprise rights or grabbed an implied right out of the air, like the Supremes like to do. No, they actually read the text of the Constitution, did their contextual research and followed the law. 5-4. Good decision.

BrooklynGurl,
"It's not like the Second Amendment decision has created some new surprise rights or grabbed an implied right out of the air, like the Supremes like to do. No, they actually read the text of the Constitution, did their contextual research and followed the law."

No, they did pull an implied right out of the air. Or perhaps, they pulled a restriction out of the air. Scalia says that private citizens may own guns in their own home for protection, but that this right does not extend to automatically apply to any weapon, anywhere, for any reason. However, there is nothing in the Second Amendment that indicates the boundary of this limitation, except the first clause, which makes mention of peoples homes, weapon types, or personal self-defense. The Constitution as written allows for 2 possibilities: Either members of militias should be allowed to keep weapons for use when the militia is called to arms, with no other right guaranteed to non-militia members (this is the "original intent" type reading), or, if one ignores the first clause, anyone, even criminals or the insane, should have the right to carry any type of weapon, including nuclear ones, at any time (WonderLlama's literal reading). Any other interpretation is distorting the meaning to make it what you would like it to say, which is clearly what Scalia is doing. Personally, I would also like to see the Constitution amended to clarify this right, but good luck getting such an amendment passed.

Obviously I omitted the word "no" in my previous comment. I meant "which makes NO mention of peoples homes, weapon types, or personal self-defense."

While we're talking about applying the Second Amendment to shoulder-launched missles and nuclear weapons, we should also consider the opposite direction: One should be able to carry any type of knife or sword, too. Switch blades, butterfly knifes, etc., should all be legal.

Malcolm:
One interesting sideline to all this is the federal governments' banning of machine guns in the '30s.

That is a VERY inconvenient truth, and, I'm thinking, is responsible for defining some of the limits that were previously drawn before the current crop of Republicans expanded the boundaries of it in the '90s.

It's never been revisited, but today's semiautomatic assaut rifles are far more dangerous than those old Thompsons.

I think that the Second Amendment should be overhauled as well - but the will to do it won't exist until something really terrible happens.

I mean, this is ONE area where law enforcement and Republicans don't see eye to eye...

PS.

A noted "workaround" was the banning of automatic mechanisms rather than the machine guns themselves.

Damn. Now I have to go back and rethink this whole thing...

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