Loyal opposition

I LOVE this article so much that I'm linking to it and copying it. The point of the piece is that judges are criticizing the Heller v. District of Columbia ruling as bad law.

Why? Because it attempts to impose a government answer on states. It also finds a debatable "right" in the Constituion which might or might not exist.

Does that remind you of another ruling? Like Roe v. Wade?

I don't agree with all of their logic.

But I find it fascinating that some more liberal eagles read an individual right into the Amendment. I love it that the conservative federal appeals court judges had the guts to make the argument and criticize the sometimes impossible Antonin Scalia -- Drama Queen of the Supremes.





October 21, 2008
Justices’ Ruling on Guns Faces Attacks, From the Right
By ADAM LIPTAK
WASHINGTON — Four months after the Supreme Court ruled that the Second Amendment protects an individual right to possess guns, its decision is under assault — from the right.
Two prominent federal appeals court judges say that Justice Antonin Scalia’s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law.
The judges used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion. Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures.
Comparisons of the two decisions, then, seemed calculated to sting.
“The Roe and Heller courts are guilty of the same sins,” one of the two appeals court judges, J. Harvie Wilkinson III, wrote in an article to be published in the spring in The Virginia Law Review.
Similarly, Judge Richard A. Posner, in an article in The New Republic in August, wrote that Heller’s failure to allow the political process to work out varying approaches to gun control that were suited to local conditions “was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.”
Sharp criticism of a recent Supreme Court decision by federal appeals court judges is quite unusual, though these two judges — both Reagan appointees — are more outspoken than most.
Judge Wilkinson, who sits on the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., was recently considered for a spot on the Supreme Court. Judge Posner, of the Seventh Circuit, in Chicago, is perhaps the most influential judge not on the Supreme Court.
Not all conservatives agree with the critics, of course. Robert A. Levy, a libertarian lawyer who was a principal architect of the victorious strategy in the Heller case, rejected the comparison to Roe.
The two sides in the Heller case claimed to rely on the original meaning of the Second Amendment, based on analysis of its text in light of historical materials. The amendment says, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
The more liberal justices said the amendment protected only a collective right tied to state militias, thus allowing most gun control laws. The more conservative justices found an individual right and struck down parts of a District of Columbia gun control law.
In Judge Wilkinson’s view, the upshot of the court’s extensive historical analysis was that “both sides fought into overtime to a draw.”
Others said the quality of the combat was low. “Neither of the two main opinions in Heller would pass muster as serious historical writing,” Jack Rakove, a historian at Stanford, wrote on the blog Balkinization soon after the decision was issued.
The strong reaction from the right after Heller was preceded, with a sort of symmetry, by liberal support for an individual-rights reading of the Second Amendment. For much of the 20th century, the conventional view of the amendment had been that it only protects a collective right. (Warren E. Burger, after retiring as chief justice in 1986, called the individual rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen.”)
But some prominent liberal law professors, including Laurence H. Tribe of Harvard, Akhil Reed Amar of Yale and Sanford Levinson of the University of Texas, have concluded, sometimes reluctantly, that the amendment in fact protects an individual right. Professor Levinson’s seminal 1989 article in The Yale Law Journal captured the tone of the enterprise. It was called “The Embarrassing Second Amendment.”
In an interview, Professor Levinson said, “The result in Heller is eminently respectable.” But he added that he understood why some conservatives were upset. “People say the Roe court was too interventionist,” he said. “So is the Heller court from that perspective.”
Judge Wilkinson’s basic critique is that the majority, like that in Roe, used an ambiguous text to impose its policy preference on the nation, at great cost to the democratic process and to local values. He assumed, as most experts do, that the decision would apply to the states.
“In both Roe and Heller,” Judge Wilkinson wrote, “the court claimed to find in the Constitution the authority to overrule the wishes of the people’s representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way.”
Judge Posner built on themes in his recent book “How Judges Think,” which argued that constitutional adjudication by the Supreme Court is largely and necessarily political. The Heller decision, he wrote in The New Republic, “is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.”
Indeed, Judge Wilkinson wrote, “Some observers may be tempted to view Heller as a revenge of sorts for Roe” or “a sort of judicial tit-for-tat.” As Judge Posner put it, “The idea behind the decision” in Heller “may simply be that turnabout is fair play.”
Mr. Levy, who helped win Heller, said some conservatives wanted almost all decisions to be made by the political branches rather than the courts.
“But these are constitutional rights,” Mr. Levy, now chairman of the Cato Institute, a libertarian research group, said of the rights protected by the Second Amendment. “They are not rights consigned to the legislature.”
The analogy to Roe, he went on, is misguided. There is no reference to abortion in the Constitution.
The Second Amendment, by contrast, indisputably protects a right to keep and bear arms, though there is sharp disagreement about the scope of the right. Mr. Levy said the natural reading of the amendment, one supported by historical materials, was that it protected an individual right.
In his article, Judge Wilkinson wrote that he “readily agreed” that Roe “involved the more brazen assertion of judicial authority.” But he added that the Roe and Heller cases shared a number of common flaws, including “a failure to respect legislative judgments,” “a rejection of the principles of federalism” and “a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation.”
Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia’s opinion that seemed to endorse a variety of restrictions on gun ownership. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. “The Constitution’s text,” he wrote, “has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”
Mr. Levy, too, said he was not a fan of the passage. “I would have preferred that that not have been there,” he said. “It created more confusion than light.”
It is too soon to say much about the legacy of Heller. But Judge Wilkinson said that Heller, at a minimum, represented “the worst of missed opportunities — the chance to ground conservative jurisprudence in enduring and consistent principles of restraint.” At worst, he warned, “There is now a real risk that the Second Amendment will damage conservative judicial philosophy” as much as Roe “damaged its liberal counterpart.”

A contrarian perspective from Nick Kristof

On why the recession might not be bad for many of us...

Which doesn't mean ignoring those who are suffering. There are a lot more than there used to be.

Slaves and slave holders

What would your life be like if you found out that you were not wholly the race you had always thought you were?

That's what happened to a minister I ran into at a public event here in Philadelphia a few weeks ago. In the course of looking into his genealogy, he found that he had slave-holder ancestors.

In digging further, and after DNA analysis, he found that some of his blood is African and Native American.

Blacks have been dealing with the impact of having had while ancestors for quite a while. But unless you had some reason to delve into your past, you may not know whether or not you are come from a mixed race background.

Of course, I guess if you go back millenia, all of us do -- or have a common forefather and mother.

I wonder what it would be like if we all took DNA tests. Would that alleviate some of the biases we carry around with us -- against Jews, or blacks, or Catholics, or Muslims? I bet it would make some of them seem really idiotic.

Given where I came from, I kind of doubt I have mixed race blood. But I'm sort of excited about seeing how much it would cost to find out.

Come the Revolution?

After an email chat with a friend last night about the possibility that socialism/Marxism might direct our new fiscal policy if Barack Obama and Warren Buffett take over, I started to wonder: how much are things really going to change?

That's what Joe the plumber wants to know, isn't it? Will the spirit of capitalism be destroyed? Will the wealthy be robbed of their rightful earnings? Will the "little man" have a chance to make it in America anymore?

I would say that its close to unarguable that in the past, oh, say, 15 years, our tax policies have become much kinder to the upper middle class and the wealthy (those who earn above 250,000) a year. Those who earn that kind of money could say that it's their money, they earned it, and why should the government take it away from them.

I do think that we are, with the exception of the very poor, going to have to pay higher taxes, whoever gets into office. The amount of debt we are in is staggering - if your kid owed 5,000 on his or her credit card, would you ask someone in Australia to loan him or her money? I don't think so.

I don't feel any pity for the very wealthy, because they are cunning about tax dodges. The more you have, the better you are at hiring folks who will help you keep it. But I have to admit that I admire those of my friends who are sincerely trying to determine who to vote for on the merits, even though it will affect their bottom line. I have one wealthy friend who I think will cast a vote for McCain. Another is undoubtedly going to vote for Obama.

I have these kinds of conversations with my friend Tad a lot. Tad is a Polish immigrant who has done very well over here by working 80 hour weeks. As soon as his normal job is over, Tad drives to someone elses house to fix their electrical system or paint a room or install a bathroom.

Tad is worried, too, that if Obama gets in, his hard earned money will disappear. I have to say, I doubt it. The guys running Washington aren't radicals. A few terms in the House or Senate seems usually to take the edge off of whatever kind of radicalism they have, whether of the right or the left.

It's time for the pendulum to swing back a little bit -- but I doubt its going to swing that far.

A scarier possibility, and a real one, is that we've lost control of the pendulum. Liberal or conservative, that's a possibility that ought to frighten us more than the return of Robert Rubin.

A bigger stage

OK, I'm a publicity hound.

I really like it when readers write to me, taking my columns seriously enough to respond, even when they disagree. But I have to say that I got a start when I realized my musings at GetReligion ( http://getreligion.org) are being linked to other 'blogs on science, religious orthodoxy, and to that of a writer in Lancaster, where I have a monthly column.

The idea that others are reading carefully enough to want to comment on their sites makes me wonder if I'm really polished enough for that mass audience. Surely they can discern all of the cracks, glossed over with a few trendy terms and a critical eye?

Actually, folks seem remarkably charitable. Hopefully they will hold me accountable when I display my ignorance -- and I wont have too many dreams where I show up for work dressed only in my underwear!

Great article from Krugman in the NY Times

Congrats, Paul Krugman on winning the Nobel Prize for your work on global financial markets.

Check out this link for today's column on how the British government moved quickly and craftily to help reassure consumers - and take a beachhead in the almost unregulated private sector. In comparison, we seemed to be drifting. Ok, so Great Britain is a "junior partner" -- but junior partners have good ideas sometimes.

I sense the pendulum swinging, you de-regulators. Let's just see if establishing some standards brings a little stability - if it doesn't, feel free to call for deregulation again. But if it does...

Hungry

I'm done with Bill Ayers, for the moment - a guy who probably made some great contributions to education, but can't seem to get over himself.

Back to the dating world, with a bit of religion thrown in (well, a lot, but take only as much as you can stand).

So often, I have been thrown back into that strange phantasmagorical land in which I am never quite sure what is true and what is fiction -- mine, or someone elses.

Everyone is seeking, and many of the guys have ventured far afield, into places I would never dream of going.

I still don't dream of these places, and I've certainly heard more than enough to construct a decent fantasy. I think that tells me something.

My fantasies seem so daytime by contrast.

I would like a sometime companion, a fellow voyager, a guy with a wacky sense of humor and a love of fitness, someone humane and loving towards kids -- but I've been solicited for other kinds of relationships so often that I am often quilled, like a porcupine facing a predator.

At church today, I was taking communion when the praise band started playing one of my very favorite songs, "Hungry," by Jeremy Camp.


hungry I come to You for I know You satisfy
I am empty but I know Your love does not run dry
so I wait for You
so I wait for You
I'm falling on my knees offering all of me Jesus,
You're all this heart is living for
broken I run to You for Your arms are open wide
I am weary but I know Your touch restores my life
so I'll wait for You
so I'll wait for You

If I hadn't been in the room where we pray for folks, waiting for some victim of the financial crisis to come for spiritual solace, I would have sat in my pew with tears streaming down my face. The past month has been so tough (for reasons that have nothing to do with dating) that I am drained, running on fumes, and hungry...so I'll wait for You when I crave truth.

And hope, in the meantime, that Mr. Relatively Normal (but not boring) comes into my life.

I wonder what these guys, with their law degrees and good salaries and many gifts and hunger ---I wonder what they are waiting for. Whatever it is, I hope they find something worth having.