Monday, June 30, 2008


On Saturday, I said Justice Breyer's dissent "may well serve as "The Idiot's Guide to what NOT to do as a dissenting SCOTUS Justice.""

I may have spoken prematurely. That, or there's a book in the offing titled "The ABSOLUTE Idiot's Guide to what NOT to do as a dissenting SCOTUS Justice."

Justice Steven's struggle to define what right is protected by the Second Amendment is discussed at the following link.

Read the whole thread.

...the right that Stevens does allow is for an individual to bring an action complaining that he was prevented from bearing arms as a member of a well-regulated militia.

Mike 99:
...The Stevens right is a right without an application. It's not even a right in search of an application. It's an individual right to own a gun in the home, but only if the gun mysteriously appears in the home without connection to reality outside the home and that mysterious materialization of the gun.

...It is a mess, relying on odd definitions ("bear arms" was only used in military purposes, except when in the few cases where it didn't and are thus outliers, thus making "keep and bear arms" military-only?), denies any right to self-defense, and flat-out swats asides examples like Jefferson's failed and proposed amendments while using Madison's failed and proposed amendment.
The dissents are rambling and confused because the activist Justices attempt to apply originalist arguments. That is, they have to make stuff up.

Sunday, June 29, 2008

Canada is telling us something

...but we're not listening.

These two articles are serendipitous.

EDITORIAL: Obama's America is Canada
In summary, when pondering Mr. Obama's proposals, voters should examine the Canadian record. Canada is on the whole a gentler, softer and more liberal nation — but there is also less freedom, opportunity, prosperity, competition and dynamism.
Canadian Health Care We So Envy Lies In Ruins, Its Architect Admits

In the 1960's Claude Castonguay recommended that Quebec institute government-administered health care. This was a "free" system. That is, paid for by taxpayers. Quebec followed his advice and
Castonguay has become known as "the father of Quebec medicare." Eventually his ideas were implemented from coast to coast.

He has had second thoughts:
"We thought we could resolve the system's problems by rationing services or injecting massive amounts of new money into it," says Castonguay. But now he prescribes a radical overhaul: "We are proposing to give a greater role to the private sector so that people can exercise freedom of choice."

Castonguay advocates contracting out services to the private sector, going so far as suggesting that public hospitals rent space during off-hours to entrepreneurial doctors. He supports co-pays for patients who want to see physicians. Castonguay, the man who championed public health insurance in Canada, now urges for the legalization of private health insurance.
We have been given the favor of observing a costly social experiment carried out on a grand scale. We can see that it hasn't worked the way we're told it will if we follow a similar course.

Liberal Democrats' arrogance is breathtaking. Here, we'd socialize medicine the "right way."

Serendipity Update 12:40PM. Add Heller to the North/South dialog. Maybe some Canadians are listening to us? Why can't we protect ourselves?

Correcting the record

Apropos of the post immediately below is this entry at Reason magazine's "Hit & Run":
Gun Nuts Like Lawrence Tribe
Jacob Sullum
May 7, 2007

This short piece is worth checking since you will undoubtedly hear that the majority in Heller had to resort to judicial activism. They ignored the Constitution in order to implement their political preferences. This fabrication is important to Liberals because they will point to Heller as evidence originalist Justices are hypocrites. It will be used to justify the activism of the "living Constitution" cadre. It is a lie.

In Heller, the majority simply corrected the historical revisionism of the activists. As pointed out yesterday, if they'd been activist they'd have incorporated the 2nd Amendment into the 14th.

Saturday, June 28, 2008

A close run thing: Life, liberty, and the pursuit of happiness

Without the first of these the second and third are problematic.

"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."
- Second Amendment to the U.S. Constitution.

SCOTUS has narrowly, both in the margin and in the specifics of the ruling, affirmed that the Second Amendment describes an individual right. Some of the major points:
  • “... we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”
  • “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.”
  • “Like most rights, the right secured by the Second Amendment is not unlimited.”
  • “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and 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.”
What the Court found was narrow; that an absolute ban on possessing a working firearm in one's own home is, if one is of sound mind and character, unconstitutional under the Second Amendment. The decision is remarkable mostly for the fact that only five out of nine Justices believe the Constitution protects so basic a right of self defense.

Another short summary of the majority opinion can be found at Of Arms and the Law. See also, - DC v. Heller Round-Up - for many links to interesting commentary, pro and con.

What the Court has done is ensure that much litigation will result with the intent of forcing lower courts to fill in many blanks. It is clear that much remains to be decided: Commentary: So, what’s next on guns?

The gun-control lobby is not going to disappear, see Lessons For Gun Rights Supporters From the Property Rights Experience I - The Importance of Ideological Divisions on the Court: and Lessons for Gun Rights Supporters from the Property Rights Experience, Part II - A Narrowly Defined Right May Not be Much Better than No Right at All:

Despite years of propagandizing by the likes of the Brady Center, 73% of Americans agree that the individual right to possess a firearm is Constitutionally guaranteed. The Court is by no means obligated to follow the polls, but on a civil rights decision, lacking any real precedent and where both sides used originalist arguments (What was the intent of the Founders?), this is surprisingly out of step. Five to four is, in the words of Bill Dupray, "One Vote Away From Revolution." If this seems hyberbolic you might want to consider this aspect of the decision:
One aspect of the Heller majority opinion that has not yet attracted the attention of commentariat, but may be greatly important of the long run, is the presence of natural law.

Heller reaffirms a point made in the 1876 Cruikshank case. The right to arms (unlike, say, the right to grand jury indictment) is not a right which is granted by the Constitution. It is a pre-existing natural right which is recognized and protected by the Constitution:

“it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ’shall not be infringed.’ As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed…”

This is consistent with Blackstone’s language, quoted by the majority, that the right to arms protects the “natural right of resistance and self-preservation.” The majority writes that “Justice James Wilson interpreted the Pennsylvania Constitution’s arms bearing right, for example, as a recognition of the natural right of defense ‘of one’s person or house’ — what he called the law of ‘self preservation.’”
[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed…” What, then, would be the proper response to attempts to extinguish that right? Revolution is not too strong a reponse. Five/four the other way suggests, at the least, that secession is justified. Certain Montanans have already so argued.

I recommend exploring The Volokh Conspiracy generally on this decision, but here are two links I found particularly interesting in implications for the future:
Heller and incorporation of the Second Amendment: ...the Supreme Court expressly left open the question whether the individual right to keep and bear arms in the Second Amendment should be incorporated into the Fourteenth Amendment to apply against the states. Here is the relevant passage reserving the issue:
With respect to [the nineteenth-century case of U.S. v.] Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.
This is not how the Liberals on the Court would have approached the opposite result, they would have "incorporated" the collective right interpretation even though they had not been asked to rule on it. The Justices in the majority are to be commended for their explicit restraint.

The collective rights argument was examined in the context of the Constitution as a whole and was found wanting. The Second Amendment, interpreted collectively, would be the only case where the Founders defined a collective right when using the term "the people." The fallacy is even acknowledged, despite their explicit political preferences, by heavy duty liberal Constitutional experts such as Lawrence Tribe and Alan Dershowitz.
Supreme Court Adopts Individual Rights Interpretation of the Ninth Amendment:! Buried in Justice Scalia's exegesis on the Second Amendment is a wonderful gift to those of us who study and care about the Ninth Amendment:
The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.
The individual right interpretation was resisted vigorously by the dissenting Justices, including an attempt by Justice Stevens described, one might say ridiculed, in a Scalia footnote:
JUSTICE STEVENS is of course correct . . . that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And JUSTICE STEVENS is dead wrong to think that the right to petition is “primarily collective in nature.”
In fact, if Justice Stevens is to be taken seriously in this argument, it seems that the dictum "one man, one vote" describes a collective rather than an individual right.

Justice Breyer, hardly to be outdone, wrote an opinion which may well serve as "The Idiot's Guide to what NOT to do as a dissenting SCOTUS Justice." He agrees with Stevens that the right is collective, but goes even further to say that individual or collective doesn't really matter anyway: The government is justified in arbitrarily curtailing possession of firearms if it sees an "imbalance" in not so doing. We don't need to amend the Constitution, we merely need make it subservient to current political need. Unfortunately for Breyer, his argument is self destructive: Justice Breyer's self-refuting dissent in Heller:
I suspect that it may go down in history as one of the strongest arguments AGAINST balancing tests. If the restriction on liberty were trivial, then it might be easy to use a balancing test to uphold the DC statute’s ban on handguns. Or if handgun bans were known to be spectacularly successful in reducing death and violence, then fair-minded judges might determine that even very substantial restrictions on liberty could be balanced away by the overwhelming benefit of gun control.

But gun control has very little effect on rates of violence or death (I think the evidence, while contradictory, points on balance to a small reduction associated with some gun controls.) Given this, the DC case should be an easy one for balancing: a major restriction of liberty (an outright ban) cannot be justified by a small or nonexistent gain in public safety.

That Justice Breyer reaches the opposite result from what should be a very easy case of balancing major restrictions of gun rights against minor net benefits suggests either that Justice Breyer is an unusually biased judge or – more likely – that the balancing test he posits is not workable in practice. Thus, Breyer’s own opinion may be the strongest possible refutation of his jurisprudential approach.
A third interpretation is that Breyer actually finds the right of self-defense trivial compared to the intent of the state to protect its citizens. This is no more ridiculous than any other reading.

Scalia had this to say about "balancing" a right enumerated in the Bill of Rights against legislative fads:
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
So what has Heller changed? There is much litigation to follow, so the only immediate difference is a reversal of the burden of proof. The state now has to prove an individual does not qualify for the right to possess a working firearm under fairly limited rules. Before, individual qualifications did not signify because of an outright prohibition.

In practice, this will be a small difference. Do you remember the arbitrary CCW permit issuance rules Michigan observed under "may issue?" "Shall issue" is where SCOTUS took us.

I predict a the creation of a regulatory morass by jurisdictions such as D.C., Chicago and San Francisco - all intended to complicate the "fairly limited rules." Many of these new regulatory attempts will eventually come before SCOTUS. Before Heller, they would not have.

This is a significant victory, but it is only the foundation against which future regulation will be measured.

Remember, "The same folks who can read the Constitution and Bill of Rights and find an unassailable right to abortion and gay marriage can't find a right to possession of a firearm."

Praying for Obama

Isn't that a graven image?

But never mind that. Some US pol insults their religion by equating a representation of one of their gods with a rabbit's foot...
"The idea of sending an idol of Hanuman dawned on him after friends in the United States mentioned a “prominent American politician who carried a miniature Hanuman idol in his pocket for luck,” Mr. Bhama said speaking on the first day of the ceremony on Tuesday."
...and they appreciate it. Nice change from some of the more excitable Muslims.

Friday, June 27, 2008

How can you be in two places at once

...when you're not anywhere at all?

If you're buying Obama's latest ad, Ralph Spoilsport has a car for you.

Is there nothing Obama can't do? He doesn't even need to be physically present in the Senate to vote. Or at least to claim credit for voting.
...Mr. Obama, in his first national TV ad rolled out Friday, claims credit for having "extended health care for wounded troops," citing the 2008 defense authorization. That bill passed 91-3 – but Mr. Obama was one of only six senators who didn't show up to vote. This brazen claim underscores the candidate's thin résumé and, again, his chutzpah.
The man is amazing. I'm sure his presidency will be good for the Small Animal Administration. Where is the Firesign Theater when you need them, anyway?

Thursday, June 26, 2008

O Michigan

At an international medical conference several doctors get into a bragging seesion about how advanced medical care is in their countries.

A Japanese doctor says, "Medicine in my country is so advanced that we can take a kidney out of one man, put it in another, and have him out looking for work in six weeks."

A German doctor says, "That is nothing. We can take a lung out of one person, put it in another, and have him out looking for work in four weeks."

A British doctor says, "In my country medicine is so advanced that we can take half a heart out of one person, put it in another, and have both of them out looking for work in two weeks."

The Canadian doctor, not to be outdone, interjected, "You guys are way behind. We took a woman with no brains, sent her to Michigan where she became Governor, and now half the state is out looking for work."


McCain and Obama agree

...that Supreme Court Justice Anthony Kennedy is wrong when he says:
The death penalty is not a proportional punishment for the rape of a child.
But think, Justice Kennedy may be right. He could mean a long, slow, painful death is "proportional," and that simple death by lethal injection is not enough punishment.

...Nah, the Eurolords in Brussels wouldn't like that attitude.

OTOH, Massachusetts Democrat Rep. James Fagan takes Justice Kennedy's opinion to heart, and goes him one better. Fagan has threatened "to torment and "rip apart" child rape victims who take the witness stand..."

"I'm gonna rip them apart," Fagan said of young victims during his testimony on the bill. "I'm going to make sure that the rest of their life is ruined, that when they’re 8 years old, they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”
It would be "proportional" for Rep. Fagan to be incarcerated, ideally for child molestation, in an institution where he might have the opportunity to become the witness he so despises. Mulitiple times.

Fagan can stare into the face of evil and not only defend it, but he promises to ensure the innocence it has contaminated is utterly destroyed. No biggie. After all, it's just the logical conclusion of Justice Kennedy's opinion that evil doesn't actually exist.

Wednesday, June 25, 2008

Answering MoveOn

MoveOn has spent $500,000 running an ad of a mother telling John McCain he can't have her infant son, for his "100 year War in Iraq." Never mind that when the kid turns 18 he'll volunteer, or not, as HE sees fit. Never mind hat John McCain never said he was in favor of 100 years of war.

That ad can be found by Googling - moveon "You Can't Have Alex" . If you want to see it, and haven't, you'll have to do a little work. I'm not linking to it.

Another take on this theme seems much more compelling.

Tuesday, June 24, 2008

The Supremes sing "Freedom's just another word for someone else to loose"

Kenneth Anderson, law professor at the Washington College of Law, American University, is also a member of the Hoover Institution Task Force on National Security and Law. He writes about the Boumediene decision here:

Supreme Court Flexes Its Muscles in Boumediene Decision. Read the whole thing.
...Habeas at Guantanamo affirmed in principle. But developing actual standards for individual cases — what the specific rights of detainees are and how they should be weighed against real-world security concerns — was handed off to the myriad federal district courts. The Court offered no glimmer of what it thought actual, workable principles should be. It is evident that Justice Kennedy has no idea; he simply believes that district courts will be better and, perhaps, have greater legitimacy at it - particularly in the world of global judicial elites in Europe in which Justice Kennedy basks - than the American people's elected representatives.
On June 12th, I called this SCOTUS Europhilia an example of "...the insidious weakness of Western Civilization's leftist guilt-quest for cultural self-esteem," contending (in the comments) that, "the motivation arises from cultural guilt parallel to the Shelby Steele model: It has far more to do with the moral redemption of the 5 Justices than with the law..." The long link above is from Professor Anderson's original article and it links to an article in The New Yorker magazine subtitled, How Anthony Kennedy’s passion for foreign law could change the Supreme Court. It was written in 2005. It didn't take very long to come to pass. For anyone who's been hanging out with Ted Kaczynski for the last 40 years, I'll mention that The New Yorker is a "progressive" magazine. They approve of Kennedy's sycophancy.

Here's more from Professor Anderson:
...Prior to Boumediene, I would have said that the Court’s main concern has been that the war on terror is not “war” in the traditional sense, operationally or legally, and that just because the political branches call something war does not mean it actually is war, at least not if a consequence is the executive’s ability to detain anyone — which is where the administration started out, back with Jose Padilla, a U.S. citizen — as any enemy combatant solely on its say-so. If habeas did not apply to that claim of executive power, what was it good for? It is a fair question, but one that, as the chief justice noted in his dissent, is covered not just for citizens but even for aliens, by the MCA and DTA. Why the need to go beyond those? After Boumediene, it would seem to matter only if you see this as part of a larger project to carry the Constitution abroad, insofar as American agents and military act beyond U.S. borders, and to transform warfare into a species of large-scale law enforcement. If you are required to collect and preserve evidence in order to be able to hold alien security detainees picked up in foreign war zones, after all, war has become a very different activity.
Emphasis mine, because I agree with it. As I pointed out to an anonymous Ontarian in comments to that June 12th post, "You consider that laws of the United States ought to apply to foreign nationals on foreign soil. I can't help but remember chief CHRC [Ironically, that's the Canadian Human Rights Commission.] investigator Dean Steacy's comment that, “Freedom of speech is an American concept, so I don't give it any value.”"

We can't even export the responsibilities of American law to Canada in defense of its own Charter of Rights, but "enlightened" Canadians think we should be Mirandizing Osama bin Laden (as do Barack Obama's advisors), Disagree and it means you'd like to see the Constitution "ripped up". Thanks, but Anthony Kennedy is already on that job.
...Justice Kennedy is a human rights universalist — habeas corpus for aliens as for citizens, contrary precedents like Eisentrager be damned. And yet Afghan and Iraqi lives apparently are at a steep discount in the Boumediene majority’s weird, morally preening settling of accounts between liberties and security; so too, eventually, are American lives.
The obvious problem with exporting American Constitutional rights to foreign nationals is that we have no way to require any of the cultural behavior expected to be associated with having those rights. I wasn't joking about Mirandizing terrorists, it is a straight line to that from believing habeas rights are due to POWs or enemy combatants on foreign soil. The only appreciation shown by those who respect neither habeas nor free speech is likely to be glee in killing more people who disagree with them.

I understand the objection: "You can't just lock people up forever without lawyers because George Bush says so!" And I agree, but this is not at issue. How did this case come before the Supreme Court if Lakhdar Boumediene was denied a lawyer? Answer: He wasn't. Access to lawyers, and to the Circuit Court of the District of Columbia, was part of the procedure to which Congress and the President jointly agreed, at SCOTUS' direction. SCOTUS then found these protections inadequate on grounds it needn't even have considered in this case. It was, indeed, a sad day.

See also, for more links to commentary on this decision.

Monday, June 23, 2008

James Robert Cardinal Bellarmine Hansen

This is what passes for scientific debate among the Global Warmist elite:
[NASA's director of the Goddard Institute for Space Studies] James Hansen, one of the world's leading climate scientists, will today call for the chief executives of large fossil fuel companies to be put on trial for high crimes against humanity and nature, accusing them of actively spreading doubt about global warming...
Unfortunately, the Big Fossil execs probably won't have the moxie to stand up at the show trial and shout, "É, si muove!".

Besides, the Democrats keep talking about nationalizing the oil companies. The Dems are clearly lying when they claim this would increase our gasoline supply.

To reduce CO2 emissions they're mandating the use of CFL's, not so much incidentally filling the pockets of Big Electrics (GE, for example, also a BIG winner from proposed carbon trading legislation). When all this fails, Hansen will have to sue Congress for lying, pandemic mercury poisoning and the failure of their cap-and-trade scheme to stop AlGore from cornering the market on carbon indulgences; becoming the only American allowed to emit greenhouse gasses. Hansen will be pleased by the $25 a gallon gasoline, though.

Twenty years ago Hansen began to talk about Global Warming. Forty years ago Hansen's computer models were predicting a global Ice Age. Last year he was obfuscating about his programing error erroneously "proving" 1998 was the warmest year ever. He was also changing the data. After those changes the results of his corrected program better fit his original presumptions. In twenty more years, maybe he'll get the coding straight and settle on consistent data.

TOC has noted some of Hansen's career highlights:

Thursday, April 13, 2006
The heat goes on

Sunday, April 16, 2006
Climate of fear update

Saturday, August 11, 2007
Al Gore Rhythms

Thursday, September 27, 2007
Fire or ice? Follow the money

Friday, September 28, 2007
A trout in the milk

It is a joke to use the word "scientist" in conjunction with someone who refuses to admit that scientific method requires his theory to be falsifiable. What Hansen has is faith, as did Robert Cardinal Bellarmine.

Galileo Galilei was tried by the Inquisition of the Catholic Church for his support of Copernican astronomy. This was a defining moment in the relationship between religion and science.

Now the religion is Environmentalism, and Hansen is a Cardinal to AlGore's Pope.

Friday, June 20, 2008

Can you say "Petard?"

Barack Obama may have just killed campaign finance reform as we know it by refusing to participate in government financed government. He won't be taking any money paid in taxes to run his campaign. Good for him. It looks great on John McCain.

John's guys say it's fine, too.

"We think $85 million in public funding for the general election is plenty," McCain's general counsel, Trevor Potter, said.
Suuure you do. Obama is likely to have $400 million. This "$85 million is plenty" stuff is just whistling past the graveyard where your own freshly chiseled headstone is standing behind an open grave.

For Obama to blame McCain for Obama's own flip on this is clearly disingenuous, but it just tickles me to see McCain's own petard exploding beneath him. It's his own ICD (Improvised Censorship Device) that got him. And he's not even getting any credit for the morality play he thinks he's playing lead in: It's all McCain's fault that Obama can't take public funds, you see, and ACORN and George Soros and MoveOn don't count:

McCain is "not going to stop the smears and attacks from his allies running so-called 527 groups, who will spend millions and millions of dollars in unlimited donations," Obama said.

McCain has decried the spending and attack ads by such groups and has promised to speak out against those campaigning on behalf of Republicans.
Ah yes, speaking out against those campaigning on behalf of Republicans is what you do very well, John. I hear you, so don't be concerned I'll make the mistake.
"Anyone who believes they could assist my campaign by exploiting a loophole in campaign-finance laws is doing me and our country a disservice," McCain said in November.
Au contraire, John, they're doing us all a favor by sticking your own pet cause where it belongs. You're the guy who already tried to stop anti-Obama ads in North Carolina. See what it's gotten you? Alienated Republicans. And while you continue to "reach out," you're gonna be outspent 5 to 1 by a loophole exploiter. You go, John. And take Olympia Snowe, Susan Collins, Arlen Specter, Lindsey Graham, Michael Bloomberg, Arnold Schwarzenegger, Rudy Giuliani, Mike Huckabee, Lincoln Chafee, Christopher Shays and Vernon Ehlers with you.

Not that Obama thinks Campaign Finance Reform is a bad idea (and why would he, since it's his opponent who's stuck in it). It's good for other people, however.
Obama acknowledged, however, that other candidates are not likely to be able to be as successful attracting small donors as he has been, so he still supports campaign finance reform.
Tell it to George Soros, Barack, and then run attack ads against McCain in all 50 States. He'll soon be pining for the civility of the 2000 North Carolina primary.
Obama's campaign today released its first general-election television advertisement and said it will be broadcast in some traditionally Republican states, such as Alaska, North Dakota and Montana, as well as battlegrounds such as Florida.
The only thing tempering my enthusiam here is that after Obama is annointed elected, he'll have a whole new set of ideas about how to gut the First Amendment. Then I'll be pining for the days of the current FECless regulations.

Thursday, June 19, 2008

With friends like these...

Debbie Schlussel has an interesting update on the Muslim women excluded from being in Obama's background shots the other day.

The Freep is clueless about who these people are, or they'd show a modicum of restraint.

The cause of everything bad - and NOT BUSH!

Increased earthquake intensity and Salmonella on tomatoes, there's just nothing that isn't caused by Global Warming™.

Obvious though it may seem to some that higher temperatures excessively warm the tectonic plates and also promote the growth of bacteria, it seems a stretch to blame these things on global temperature increases of hundredths of a degree. That probably won't deter AlGore, however.

The earthquake claim is bogus (apparently the original story has been disappeared) and even if it were not, it could be a tectonic plate cycle of friction and slippage. That bacteria growing on tomatoes is more likely due to global warming than someone not washing his hands is even more idiotic junk. Moreover, it could easily be that the geographic source of the tainted tomatoes has experienced local cooling, but we don't need no stinkin' evidence.

Wednesday, June 18, 2008

Clear and present. Ignored.

Here's a prophecy I made yesterday that I'd rather have seen unfulfilled. However, if Obama's people are saying it, who among Boumediene's apologists will disagree? Anybody? Anybody...?

Obama advisers say bin Laden can appeal to U.S. courts

Barack Obama's foreign policy advisers said Tuesday that Osama bin Laden, if captured, should be allowed to appeal his case to U.S. civilian courts, a privilege opposed by John McCain.

Responding to questions from The Examiner, Sen. John Kerry and former White House counterterrorism czar Richard Clarke said bin Laden would benefit from last week's Supreme Court decision giving terrorism suspects habeas corpus, the right to appeal their military detention to civilian courts.

“If he were to be brought back,” Clarke said of bin Laden, “the Supreme Court ruling holds on the right of habeas corpus.”

... On Monday, Obama applauded the civilian prosecution of terrorists prior to the attacks of September 11, 2001.

“In previous terrorist attacks -- for example, the first attack against the World Trade Center -- we were able to arrest those responsible, put them on trial,” he told ABC. “They are currently in U.S. prisons, incapacitated.”
This is really taking the idea of the United States as the world's policeman to the next level, but we have to remember that foreign nationals who brag about committing mass murder are people too. Probably Osama's how he is because of unresolved misogynist trauma as a child.

Well then, Obama, we'll just wait for the third round of WTC bombers to be arrested - then they'll be "incapacitated." Oh wait, there's no point.

Monday, June 16, 2008


Look, 5 years ago there were 660 guests at Gitmo. Today there are less than 270. Of the 390 released - that's released by the US military - 30 have either suicide bombed, been recaptured or have died while attacking (mostly) non-US citizen civilians. Those are the ones we know about. A rational guess would say there are probably more. It would also say those released who are still living free are the smarter, more dangerous ones.

If "innocent until proven guilty" has any meaning, I hope other Western democracies can live up to the example of the US military. Their record, and overwhelming Congressional and Executive suport for the process they followed, has not been sufficient for our own highest court. It's like gun-control rhetoric in Toronto.

As I said on June 12th, it was a sad day. My response to a naive comment on that post here. (#3 & 4)

SCOTUS has vastly complicated the prosecution of the war with the Miranda rights for Jihadi Boumediene decision. It has opened the door for every terrorist suspect captured on the battlefield, no matter where subsequently detained by US forces, to demand treatment with the full rights and protections of the Constitution of the United States. Following the SCOTUS majority's logic, this would include Osama bin Laden, should the United States be foolish enough to detain him itself.

To reach this conclusion, SCOTUS had to ignore multiple precedents and the structure of the Constitution itself. Why would it do so?

Eric H. Holder Jr., currently co-chair of Barack Obama's running mate selection committee and Deputy Attorney General during the Clinton administration (from which position he pushed for the pardon of Marc Rich) has an idea. He says the United States owes the rest of the world an apology.

Insisting it was disgraceful that the Supreme Court "had to order the president to treat detainees in accord with the Geneva Convention"* in the Boumediene decision, Holder went on to say:
“Our needlessly abusive and unlawful practices in the ‘War on Terror’ have diminished our standing in the world community and made us less, rather than more, safe,” Holder told a packed room at the ACS 2008 Convention on Friday evening. “For the sake of our safety and security, and because it is the right thing to do, the next president must move immediately to reclaim America’s standing in the world as a nation that cherishes and protects individual freedom and basic human rights.”
I have no doubt that 5 Supreme Court Justices agree. I am not alone.

Bloomberg: Guantanamo Ruling May Roil Obama, McCain With No Alternatives

...the Supreme Court said the prisoners must be treated as if they are on sovereign U.S. territory even though the prison is on Cuban soil.
The Weekly Standard: The Gitmo Nightmare
It's hard to summarize a decision as long and complicated as the Supreme Court's 5-4 ruling last week in Boumediene v. Bush. But we can try. Unprecedented. Reckless. Harmful. Breathtakingly condescending.

...As it happens, some of the most effective arguments against Boumediene come from the decision itself. For example, Justice Kennedy wrote that in cases involving terrorist detention, "proper deference must be accorded to the political branches." Then he overrode them.

...In his opinion, Kennedy conceded that "before today the Court has never held that non-citizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution." Inventing rights seems to be what some of today's Supreme Court justices do best. In 1950 the Court ruled in Johnson v. Eisentrager that foreign nationals held in a military prison on foreign soil (in that case, Germany) had no habeas rights. But, without overruling Eisentrager, Kennedy said the Guantánamo detainees are different from the German prisoners 58 years ago.

Why? Kennedy wrote that Eisentrager had a unique set of "practical considerations," and the United States did not have "de facto" sovereignty over Germany as it does over Guantánamo Bay. That territory, "while technically not part of the United States, is under the complete and total control of our Government." But these slippery distinctions only raise more questions. Doesn't the United States government exercise "complete and total control" over its military and intelligence facilities worldwide? If so, what's to stop foreign combatants held in those locations from asserting their habeas rights?
USA Today: Opposing view: An inexplicable power grab
...The court said the doctrine that it was upholding is enshrined in the Constitution, even though it candidly acknowledged that it could not cite a single prior case in which an American or English court had exercised such power in a case involving aliens held overseas.

The court's unprecedented power grab is inexplicable given the absence of substantial evidence that innocent people are being detained. Every Guantanamo Bay detainee has been afforded a hearing in front of a Combatant Status Review Tribunal; those still being held were all determined to be enemy combatants. The basic fairness of the hearings is readily apparent. Many resulted in detainees being released.
The Wall Street Journal: President Kennedy
Supreme Court Justice Anthony Kennedy isn't known for his judicial modesty. But for sheer willfulness, yesterday's 5-4 majority opinion in Boumediene v. Bush may earn him a historic place among the likes of Harry Blackmun. In a stroke, he and four other unelected Justices have declared their war-making supremacy over both Congress and the White House.

...Justice Kennedy's opinion is remarkable in its sweeping disregard for the decisions of both political branches. In a pair of 2006 laws – the Detainee Treatment Act and the Military Commissions Act – Congress and the President had worked out painstaking and good-faith rules for handling enemy combatants during wartime. These rules came in response to previous Supreme Court decisions demanding such procedural care, and they are the most extensive ever granted to prisoners of war.

...By the logic of Boumediene, members of al Qaeda will now be able to challenge their status in court in a way that uniformed military officers of a legitimate army cannot. And Justice Scalia points out that this was not a right afforded even to the 400,000 prisoners of war detained on American soil during World War II. It is difficult to understand why any terrorist held anywhere in the world – whether at Camp Cropper in Iraq or Bagram Air Base in Afghanistan – won't now have the same right to have their appeals heard in an American court. The United States Supreme Court Versus America: Awarding "The Privilege of Habeas Corpus To Terrorists"
...Only one thing is certain: Our terrorist enemies still at large must be amazed, amused and encouraged by the continued insistence by legal elites that they be treated like petty American criminals rather than fanatical killers eager for martyrdom.

...What is more alarming than the prospect of ignorance on the part of the majority is their collective seduction by hard left elites, particularly those in the Academy. Supreme Court justices don’t get out much. When they do it is typically to the nation’s law schools and to judicial and ABA conferences, where they are no doubt surrounded by thousands of elites who have as much experience with the war as the justices, but are perhaps even less well read on the nature of the jihadists’ ideology and tactics.
The Weekly Standard: Due Process for Jihadists?
The solicitor general had a very good case. Let's leave aside that in Johnson v. Eisentrager (1950) the Supreme Court flatly held that the Constitution does not vest foreign enemies with the right to habeas corpus--i.e., to challenge their military detention before the civilian courts. Let's instead compare what Congress has wrought (with the 2005 Detainee Treatment Act and the 2006 Military Commissions Act) and "the base line" of 1789, when the Constitution enshrined habeas rights for Americans.

Clement recounted that in the late 18th century, alien combatants faced three insuperable hurdles in front of the courthouse door: (a) the jurisdiction of the federal courts did not extend outside U.S. territory; (b) the judicial writ was simply unavailable to belligerents because taking prisoners of war was deemed a political act of the sovereign, not a legal question for the courts; and (c) judges were required by separation-of-powers principles to accept the executive branch's determination of combatant status.

Now, by contrast, combatants are given systematic judicial reviews in the civilian courts despite being held in a location, Guantánamo Bay, that the political branches have reaffirmed is not part of sovereign U.S. territory.
Wall Street Journal: The The Supreme Court Goes to War
Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention.

...The Court refused to wait and see how Congress's 2006 procedures for the review of enemy combatant cases work. Congress gave Guantanamo Bay prisoners more rights than any prisoners of war, in any war, ever. The justices violated the classic rule of self-restraint by deciding an issue not yet before them.

...Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge's view on how much "proof" is needed to find that a "suspect" is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.
Read The Whole Things

*The Geneva Convention explicitly excludes combatants who pose as civilians (i.e., without uniforms) or who target civilians. They are considered spies and terrorists respectively. They are not entitled to protection as prisoners of war. And even POW's have never been granted habeas rights.

Friday, June 13, 2008

If Dennis Kucinich were a Canadian he'd be Libby Davies

Wow! There's only 501 Canadian "Truthers" who will stand up and be counted? The Northern moonbats are falling down on the job. Proportionately, that would mean only about 5,010 victims of that particular delusion in the US.

I'll bet there are more Truthers in Michigan than that.

One Canadian Truther is an MP, of course. That's worth something. So, maybe Dennis Kucinich should move to British Columbia if McCain is elected. Along with his constituents.

Maybe I should move to Alberta no matter who is elected here in November. It seems like you'd be petitioning a kinder, dumber government for secession.

H/T Dust My Broom

Thursday, June 12, 2008

Obama and McCain are right. Close Guantanamo.

Blogging has been light lately for two reasons. First, I became a grandfather on Friday, June 6th. Second, as a result of storm damage in the Lansing area I've been without internet access since Saturday. But, onto the topic of this post's title.

Today's SCOTUS decision to extend Constitutional protections to enemy combatants - foreign nationals whose boots have never contacted US soil - reverses a 1950 precedent that nonresident alien enemy combatants have no right to habeas corpus. Guantanamo is now useless as a detention center for terrorist suspects. Unfortunately, the Bush administration was foolish enough to believe the precedent would protect the United States from having to reveal secret intelligence at trail before Civil courts.

Here is a small excerpt from Justice Scalia's dissenting opinion:

...The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950) , when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President’s Office of Legal Counsel advised him “that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].” Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys General, Office of Legal Counsel, to William J. Haynes II, General Counsel, Dept. of Defense (Dec. 28, 2001). Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.

In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.

These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As The Chief Justice’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.

But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54–55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id., at 15.

And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006) , when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:

“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.

“Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (Breyer, J., concurring).1

Turns out they were just kidding. For in response, Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, “the Military Commissions Act and the Detainee Treatment Act … represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.” Brief for Respondents 10–11 (internal quotation marks omitted).

But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” Ante, at 40. “The Government,” it declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.
I recommend reading the whole thing.

This is a sad day. Five SCOTUS Justices, in the name of preserving American justice, have instead demonstrated the insidious weakness of Western Civilization's leftist guilt-quest for cultural self-esteem.

Sadly, Osama, we may indeed be the weak horse. Our Supreme Court is a pony, at best. And it's riding us.

Debtor/Vetter abetter fretter

Barack Obama isn't worried about former Fannie Mae Chairman James Johnson, head of the Senator's vice presidential search committee. Obama, questioned about Johnson after the Wall Street Journal reported Johnson may have received preferential mortgage terms from Countrywide Financial Corp, whined that, "I am not vetting my VP search committee for their mortgages."

Well, given that mortgages figure prominently in Mr. Johnson's resume and since Obama said this about Countrywide in March, "These are the folks who are responsible for infecting the economy and helping to create a home-foreclosure crisis -- 2 million people may end up losing their homes," maybe he should have had a debtor vetter. Compared to a Senator abetter, for example.

Obama went on to claim executive incompetence by saying, "I would have to hire the vetter to vet the vetters." He then added that the members of his VP search team are unpaid advisers and "aren't folks who are working for me."

This is clumsy sophistry. Johnson is, in fact, Obama's hand picked unpaid advisor...

Oops, not any more he isn't.

Updated and bumped 12-June 7:59PM
Of course, by default, Obama himself is the vetter who vetted the vetter and, James Johnson would have expected to get a job in an Obama administration. This is working for Obama. Unless we get a new definition for "is."

Tuesday, June 03, 2008

Marsupial Law

TOC has written a number of times on this topic, so if you need background just search for "Mark Steyn" on this blog. I won't repeat the entire saga here, but...

You should be following the proceedings of the British Columbia Human Rights Commission as it considers A) whether Maclean's magazine must be forced to 1-apologize for a Mark Steyn article, 2-publish whatever rebuttal some Ontario Muslims want, with no editorial control, and/or 3- pay big bucks to those same persons, and B) whether to ban Mark Steyn's writings from Canada.

As mentioned yesterday, it is educational. It also tracks a humiliation of the complainants which is as surreally humorous as they are spooky. That's saying quite a bit.

The best jumping off place for more background is Free Mark Steyn!. Spend some time exploring if you are not familiar with the story. Go there for updates if you are.

California has been considered a harbinger of socio-cultural change, for multi-cultural fascism Canada makes California look like a pantywaist. Unless we understand this it will be coming to the US in general instead of just our college campuses.

Monday, June 02, 2008

Star Chamber

The mock show trial of Mark Steyn and Maclean's magazine began today in front of the British Columbia Human Rights Commission. You should read the live blog link below, because it is worth knowing how far "hate speech" legislation, and its fellow traveler "hate crime" statutes, can be used to undermine Western Democratic values. I'd say the existence of such laws is a disqualifier for that title.

Unfortunately, it's only a matter of degree for any present day "Western Democracy," but - once again - we can learn much from our northern neighbor. The aftermath of the result of this tribunal, widely expected to result in a "conviction," will tell us much about the condition of democracy in Canada.

You will have trouble believing the verdict will go that way, but if it does not it will be the first. As you read about the proceedings, you will come to understand why.

Follow the proceedings here.

The British Columbia Human Rights Commission is an extra-judicial body in which the traditional norms of evidence are disregarded and in which the State provides the money for the plaintiff. A plaintiff is anyone who can fill out form LHOR-72JP9D, or equivalent. The state also pays the "judges," who would be at least even further underemployed if not for the existence of free-ride plaintiffs.

The defendant has to pony up on his own. This can be a challenge, given the limited options available to the defence:

Under Section 7.1, he [the defence lawyer] continues, innocent intent is not a defence, nor is truth, nor is fair comment or the public interest, nor is good faith or responsible journalism.

Or in other words, there is no defence.
Unsurprisingly, the defence does not consider this an equitable situation. The astounding part is that Canada has, 'til now, so considered it.

Pay attention at 2:46 PM (2nd half of the live blog) for a truly bizarre evidentiary ruling. If there were any principle involved - IF - then ALL the material mentioned would be admissible, or NONE of it would be. These petty bureaucrats presume to rule on freedom of speech in Canada, and have gotten away with it.

Perhaps this "free speech" stuff is only an American concept, as Mr. Steacy, AKA Jadewarr, and CHRC agent provocateur, has informed us.

The BCHRC's decision will be a watershed, one way or another. Appearing live in Vancouver until at least week's end.

In Ontario, we have another story of blatant disregard for human rights. Which human right is not in question for the Ontario Human Rights Commission. They already know who's aggrieved.

Sunday, June 01, 2008

It's the scrutiny stupid

Experience can be a slow teacher.

The good news about Barack Obama is that he can learn from experience. The bad news is it takes him the equivalent of 5 Presidential terms to do it.

Barack Obama quits Trinity United Church of Christ

...A source in the Obama campaign said Obama had been having conversations with Moss for weeks over his concerns that the scrutiny the church was experiencing because of his candidacy was causing problems -- and that Trinity should not provide a platform for inflammatory rhetoric, which is exactly what happened last Sunday.

...Obama knew [Reverend Jeremiah A.] Wright was a potential liability from the first day of his campaign in February 2007, when he dropped him from his campaign kickoff program in Springfield, Ill.
The suggestion that Obama didn't know what went on at TUCC for 20 years is betrayed by the joyful reaction of the congregants to every race-baiting demagogue who takes the pulpit. The hate speech is business as usual.

Obama is leaving his church not because of what he could not fail to have observed in 2 decades, he's leaving because of the scrutiny - the judgment of others. Does anyone doubt he'd still be a member if Wright, Moss and Pfleger hadn't been exposed? Any argument that Obama's judgment trumps others' experience can now be formally retired. He is either exceptionally morally obtuse or he's a profound hypocrite. There's no third choice.

And, so much for his negotiating skills. Even with "friends." Maybe he needed to set some conditions.

Update: 4:30PM

Mark Steyn - Pews you can lose

Ed Morrissey - Breaking: Obamas quit Trinity United Church of Christ

Jennifer Rubin - Obama Acts Like Obama

Scott Johnson - Get me from the church on time

Larry Johnson - BREAKING NEWS: Michelle’s Whitey Problem

Duane R. Patterson - A Matter Of Judgment