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Clayton Cramer's BLOG |
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Clayton's commentary on news and events of the day. Broadly speaking, I'm a conservative with libertarian sympathies (getting more conservative as my children get older).
 Never forget! I ran for Idaho state senate in 2008--didn't win I've written a number of history books, as well as scholarly and popular articles, (see my web page).
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Saturday, January 19, 2008
Forthcoming Papers The paper "Pistols, Crime, and Public Safety in Early America" has been accepted by the Willamette Law Review, so it is now available to cite as forthcoming. The other paper "What Does Bear Arms Imply?" has also been accepted by a law review that you may have actually heard of, but I'm waiting until Sunday when my co-author Professor Joe Olson tells me that it is safe to announce. We actually turned down a higher prestige law review that suggested a bunch of actually pretty good improvements (although nothing that changed the fundamental nature of the paper)--but more than we have time to do within the constraints the Heller case is putting on us. Labels: gun rights, history Second Snowiest Winter Ever in Madison, Wisconsin At least, that's what this article from the January 16, 2008 Salt Lake City Tribune says: After the second snowiest December on record in the state capital - and with temperatures hovering around 20 degrees Tuesday - the Legislature abolished a statewide ban on heated sidewalks, stairs, entrances and pedestrian walkways.Gee, how liberal they were! Labels: global warming Friday, January 18, 2008
Global Warming Again In Siberia:
In Cyprus (you know, that island nation in the Mediterranean): Plummeting temperatures and cold blasts of wind mean few will escape the cold in Cyprus this weekend.In New Mexico: And a few days ago in Bulgaria: Recent heavy snowfalls and temperatures as low as minus 30 degrees Celsius claimed yet another life in Bulgaria, taking the cold snap death toll up to seven.UPDATE: Oh yeah--and it snowed in Baghdad recently for the first time in at least decades: BAGHDAD -- The flakes melted quickly. But the smiles, wonder and excited story-swapping went on throughout the day: It snowed in Baghdad. Labels: global warming Laziness vs. Efficiency Transterrestial Musings makes the point that a lot of people think Fred Thompson is lazy:
You may recall the famous Ronald Reagan quote, "Sometimes the best thing that government can do is nothing at all." Many years ago, I hired an engineer named Eric who turned out to be extremely effective at what he did. He explained that he was good at what he did because he was lazy--always looking for a way to do something with the least effort. Let me give you a couple of examples. 1. Everyone who uses Unix or one of its progeny knows this now, but in the early 1980s, this was not common knowledge yet. We all used emacs as a program editor--and on the VAX that we used back then, it took literally a few seconds for emacs to load all of its initialization files, and get ready for you to edit. Eric figured out something that none of us knew--that you could hit one control character in emacs, and put it in background mode, drop back to the shell, do what you needed, and then resume running emacs with the fg command. It doesn't sound like much, but starting up emacs from scratch a few hundred times a day per engineer really added up! 2. The project that I was leading was all written in C. I'm not sure how many lines my team wrote, but it was easily above 100,000 lines--a windowing user interface for a rather specialized piece of equipment that ran on a Sun workstation or a VAX (both running variants of BSD Unix) or a PC running MSDOS in text mode. (This was a long time ago.) We knew that we had subroutines that were no longer in use, and the tools to find which subroutines those were just didn't exist. We could have gone through and removed each subroutine, one at a time, to see if it would still compile and link--but it would have taken days, if not weeks, and it would have been tedious labor--but Eric had a better idea. Because I had early on created a very demanding set of standards for subroutine names, headers describing the subroutines, function and variable names, Eric was able to write a script that went through all of our source code, turning off each subroutine, and then trying to rebuild the complete system. He started it up over the long Christmas weekend--and when we came back, we had a complete list of unused functions. We still had a little bit of verification to do (sometimes a function was called in the MSDOS version, but not the Unix version, and some functions were called by other dead functions), but what would have been a long and tedious process turned into a few hours of somewhat more interesting work. Definitely a lazy man's way of doing things! Labels: 2008 presidential candidates Thursday, January 17, 2008
A Constitutional Right To Solicit Sex In The Men's Room The ACLU has once again done a fine job of combining a series of fairly reasonable decisions into a completely absurd result. Here's their amicus brief in support of my U.S. Senator Larry "Wide Stance" Craig. The short version is this: 1. There is a constitutional right to have homosexual sex in private places. (Of course, this is the core error, as I point out here.) 2. If action X is legal to do in private, then soliciting someone to go somewhere in private to do action X is not only legal, but constitutionally protected free speech. (So if a guy walks down a busy street, crudely asking every woman he meets for a quickie, that's not disorderly conduct--that's a protected First Amendment freedom! Unless both of them are at work--then it's sexual harassment, not freedom of speech.) 3. Because the law prohibiting soliciting sex applies no matter whether you are going to do it in the restroom or go somewhere else for sex, the law thus violates a Constitutionally protected right. (A law that prohibited solicitation of sex in a public place might well qualify as Constitutional--although I am sure that the ACLU would challenge that on different grounds.) On a parallel line, the ACLU argues that there is a right to privacy in a men's room stall based on a 1970 Minnesota Supreme Cour decision that held that two men having sex in a department store restroom stall had a right to privacy. And they argue that the proof is that is the police charged Craig with violating the right to privacy of the police officer in the next stall. So here's a question: what makes it constitutional to limit sex in public places? And what makes a public restroom stall "private" while the locker room isn't? Almost any argument that starts out with, "You don't have to watch what happens in a stall" suffers the same problem if you change it to, "You don't have to watch what happens in the locker room (or in the middle of a public street)." The rules against sex in public places (or defecating in the middle of a public street) are purely esthetic choices reflecting traditional moral values. Why doesn't the ACLU sue to overturn these laws? Or is that just ten years down the road when they have successfully abolished the laws against having sex in locker rooms? If you want your children to get used to seeing people having sex in the middle of public streets, make sure you vote Democrat for President this year. You can guarantee that lawyers who think the ACLU is "defending the Constitution" will end up on the federal bench. Labels: constitutional history, homosexuality The Tube Assembly Problem It turns out that while I can use a clamp to get the tube assemblies properly round, once I remove the clamps, it returns to out of round. The only real solution is to reduce the diameter of the base plate of the mirror cell. I don't have a lathe capable of turning a 20" diameter round, but the solution is to sand the edge of the base plate. I have a small belt sander that includes a rotating round disc. I have found that holding the base plate up to the disc, maintaining a steady pressure against the disc, and carefully turning the base plate, I can remove a very consistent, even amount from the edge. So far, have taken about 1/4" off the diameter without too much effort. I need to take a little bit more to get the base plate to slip easily into the tube--then I can put the mirror cell back together, and move forward. Once I bolt the mirror cell flanges to the inside of the tube, it will pull the tube back into round (or at least close enough to round). Labels: telescopes Female Burglary Victm Shoots Female Burglar And then a woman journalist writes this account for the January 16, 2008 Register-Herald: A Fayette County burglary suspect was shot by a homeowner who police said was burglarized by the same suspect at least one other time.It really isn't a man's world anymore, is it? Labels: gun self-defense Wednesday, January 16, 2008
The Tube Assemblies Arrived I'm a bit disappointed with National Metal Fabricators. In spite of specifying 20.4" ID, +- .05", what I received for the lower tube assembly was 20" ID on one diameter, and 20.5" ID on another diameter. For this level of imprecision, I could have paid half the money and received the same or better results. I went with National Metal Fabricators at roughly twice the price of what Parallax quoted me, because Parallax warned that the tubes would be as much as 1/4" out of round--or considerably closer to round than what I have received. I was able to, with a bit of squeezing and tapping, get the mirror cell into the tube. Part of why I built the flanges that hold the base plate in position with 2" of travel, was to be able to adjust the mirror cell fore and aft for the additional travel required for astrophotography. Something that has to be tapped into the tube isn't going to do the job. I think the solution is going to be to find a woodworking clamp that lets me stretch the tube a little in the 20" ID dimension, and trim the base plate of the mirror cell by perhaps 1/8". Since I don't have a lathe big enough to turn something this large, I'm going to have to use a grinder instead--which isn't going to win any elegance awards. Labels: telescopes Tuesday, January 15, 2008
Defining Poverty Professor Volokh tells us that the Los Angeles Times recently ran an editorial that claimed that "In our America, 60 million people survive on $7 a day." That's an astonishing number: he points out that this means 20% of the population is living on $2555 per year. The number isn't just astonishing, but wrong, based on misreading of a New York Times story about income reported to the IRS--and of course, excluding "the value of government benefits like food stamps, the earned-income tax credit for working families and subsidized medical care." And of course, a fair number of people--including poor people--work off the books, and so don't report all of their income. Okay, no surprise: the Los Angeles Times is a bunch of liberal journalists who aren't very good at checking facts, and are so innumerate that they can't immediately spot something suspicious about this number. More interesting is that one of the commenters pointed to this Heritage Foundation report that discusses the nature of poverty in America. There are two points that they are making, and depending on what emotional reaction to the concept of poverty that you bring to the table, you may react to one of their points, and miss the other. The first point: For most Americans, the word "poverty" suggests destitution: an inability to provide a family with nutritious food, clothing, and reasonable shelter. But only a small number of the 37 million persons classified as "poor" by the Census Bureau fit that description. While real material hardship certainly does occur, it is limited in scope and severity.In short: there is serious suffering out there--but the government's definition of "poverty" includes a lot of people that aren't what most of us think of as "poor". The report points out that of the 37 million Americans considered "poor" by the government: The second point: Most of America's "poor" live in material conditions that would be judged as comfortable or well-off just a few generations ago. Today, the expenditures per person of the lowest-income one-fifth (or quintile) of households equal those of the median American household in the early 1970s, after adjusting for inflation.For most of America's "poor," they are only poor by comparison to the rest of America. The report points out that not only by measures of material possessions, but also by measures of malnutrition, most of America's poor aren't particularly miserable: While the poor are generally well nourished, some poor families do experience temporary food shortages. But even this condition is relatively rare; 89 percent of the poor report their families have "enough" food to eat, while only 2 percent say they "often" do not have enough to eat.The next time that Senator Edwards gives his "two Americas" speech, keep this in mind. I find myself wondering at times if the government's definition of poverty may be so expansive that resources and money have been diverted to people that are doing okay, and might be better spent on the desperately poor--the 2% that reported that they "often" did not have enough to eat, or that lacked shelter, or were unable to obtain medical care. Labels: poverty Monday, January 14, 2008
Strict Scrutiny & Fundamental Rights I blathered on a bit earlier today about the differing standards of review that the courts use with respect to laws. As I mentioned, the vast majority of strict scrutiny applications to law seem to be state laws, and disproportionately involved in questions of race and national origin, where various groups have challenged discrimination as violating the equal protection clause of the 14th Amendment. But what about the application of strict scrutiny to laws that do not discriminate against particular classes, but do impinge on fundamental rights? Because so many of the strict scrutiny decisions are decided based on application of the 14th Amendment (which applies only to the states), I found myself asking, "What are the existing precedents that would justify the Supreme Court applying strict scrutiny to fundamental rights, without the use of the 14th Amendment's equal protection clause?" So far, I have identified the following cases where the courts applied strict scrutiny (or at least claimed that they did) to federal laws or regulations. Really serious fundamental human rights questions: Korematsu v. U.S. (1944) is the Japanese-American internment case--supposedly decided under strict scrutiny, but there is some cynicism about whether the Court really applied strict scrutiny in upholding the internment, or just claimed to do so. Free speech and campaign contributions questions: Buckley v. Valeo (1976) is a free speech case wrapped up in a dispute about campaign contribution limits. FEC v. National Right To Work Committee (1982) is another free speech case involving campaign contributions. McConnell v. FEC (2003), which upheld the McCain-Feingold limitations on campaign spending. Obscenity definition questions: Roth v. U.S. (1957) which held that obscenity was not protected by the First Amendment. Ginzburg v. U.S. (1966), which also upheld an obscenity statute. Freedom of religion: U.S. v. Lee (1982), which argued that requiring an Amish employer to collect Social Security taxes violated the religious freedom guaranteed by the First Amendment. Can you think of any other Supreme Court decisions that I have missed that involve: 1. A federal law or regulation. 2. A fundamental human right that was allegedly infringed. 3. Do not involve an identifiable class or group that is subject to special treatment? Oddly enough, Roe v. Wade (1973) seems to have been decided based on intermediate scrutiny--although Justice Blackmun's decision seems to weave all over the road. But it doesn't seem to be based on strict scrutiny. Also, cases like Skinner v. Oklahoma (1942) involve discrimination against a particular class--three felony convictions led to sterilization (or as one article described it, "Three strikes and you're snipped"). There probably aren't a lot of these because throughout most of American history, because of the genius of the Constitution in limiting federal power, the job of denying fundamental human rights was taken care of by state legislatures, not Congress. Hence, Gideon J. Tucker's famous observation, "No man's life, liberty, or property are safe while the legislature is in session." I now need to find the time to read through these decisions, and find out if there is any consistent standard that they use for figuring what constitutes a fundamental human right that requires use of strict scrutiny. If only I didn't have my silly day job (the one that pays the bills) to go to in the morning. Labels: constitutional history Fishy Humor My wife is getting ready to teach a Great American Writers literature course (which includes Herman Melville), and it suddenly occurred to me that the first line of Melville's most famous novel, Moby Dick, must have suffered a serious typo in the first printing. It isn't, "Call me Ishmael." It's "Call me Fishmeal." Labels: humor What Standard Of Review Should The Court Use? A number of other bloggers have discussed the Solicitor-General's brief in the DC suit that argues that the Supreme Court should apply not "strict scrutiny" but "intermediate scrutiny" to the question of whether the District of Columbia can ban residents from acquiring handguns. Snowflakes in Hell discusses why his initial upset is mellowing a bit. Right Side of the Rainbow says that it isn't as bad as some think. Say Uncle thinks this brief from the Solicitor-General is a truck sized hole through which more infringements on the right to keep and bear arms will come. If you are scratching your head about what "strict scrutiny" and "intermediate scrutiny" mean--you are not alone. The courts have created a bunch of different standards of review for deciding whether a law violates your constitutional rights--and just to add to the confusion, almost all of what is below is specific to the Fourteenth Amendment's equal protection clause, since challenges to state laws are almost always because one class feels that it is being slighted by how a law is written or applied. Strict scrutiny means that a law is constitutional if: 1. It is justified by a compelling governmental purpose (like public safety--but not making everyone love each other). 2. The law must be narrowly tailored to achieve that goal. It can't be overly broad, which means that the law takes away the rights of people that aren't the target of the compelling governmental purpose. For example, if the government passed a law designed to prevent the spread of STDs, it can't pass a law that bans everyone from having sex. At the same time, the law can't be underinclusive. If you pass a law designed to prevent the spread of STDs, it can't apply just to homosexuals, because that leaves heterosexuals free to spread STDs. 3. The law must achieve the compelling governmental interest by the least restrictive means. For example, there is a compelling governmental interest in preventing drunk driving. Prohibiting everyone from driving would certainly prevent drunk driving, but this is hardly the least restrictive means of accomplishing that goal. If this seems like an extraordinarily demanding standard--especially that Goldilocks requirement that a law has to be not overly broad or underinclusive--yes, it is. If the Court applied this standard to every law, it seems likely that a great many laws would be struck down. While the famous saying, "Strict in theory, fatal in fact" turns out not to be true (read this paper by Adam Winkler from Vanderbilt Law Review, which shows that about 30% of laws reviewed under strict scrutiny are upheld), it is certainly the case that most gun control laws that upset gun owners would fail such a test. (Remember that there are a lot of gun control laws that aren't controversial: requiring serial numbers of guns; prohibiting convicted felons from possession; laws prohibiting sales of handguns to minors.) The Court created the strict scrutiny standard in the 1960s, and uses it if a law relies on either "suspect classifications" (race, national origin, religion, or status as an alien) or because it burdens fundamental rights: 1. Denial or Dilution of the VoteThe right to have a gun for self-defense is obviously not a fundamental right to the courts yet--in spite of having its own amendment. Just to add to the excitement, there are actually three different forms of strict scrutiny, explained in this UCLA Law Review article. So, if most laws wouldn't survive strict scrutiny review, what standard do the court use, and why? The next step down from strict scrutiny is intermediate scrutiny, "a regulation involves important governmental interests that are furthered by substantially related means." Examples of cases where this standard has been applied is classifications based on sex. In practice, this means that any law or regulation that classifies based on sex has a high standard to meet, although not as high a standard as strict scrutiny. If DC has to justify its gun control law under this standard, we can probably still win, but then it becomes a duel between various experts about whether the governmental interest--reduced crime--is actually furthered by their law or not. The step down from intermediate scrutiny is rational basis review, which is perilously close to no review at all. There have been times when the Supreme Court has ruled that a law fails rational basis review. For example, the Supreme Court struck down a city zoning decision designed to prevent operation of a half-way house for the mentally retarded in Cleburne v. Cleburne Assisted Living Center (1985) because the Court decided that it was because of "irrational prejudice against the mentally retarded." Similarly, in Romer v. Evans (1996), the Supreme Court decided that the voters of Colorado were not competent to amend their state constitution. The voters, by initiative, amended the state constitution to prohibit the government from adding homosexuality to the list of protected statuses. The Supreme Court decided that the voters were engaging in irrational prejudice, and overruled them. Where did this rational basis review come from? I happen to agree that the courts should not overturn a law unless there is a clear violation of the constitution. Otherwise, this is simply unelected judges substituting their opinions for that of elected legislators or the people--from whom all sovereignty flows in our republic. Rational basis review, as near as I can tell, is a response of liberals on the Court in the 1930s to the desire to let the Roosevelt Administration have its way with various New Deal schemes--a repudiation of Lochner v. New York (1905), in which the Court struck down a New York State law designed to limit the hours and working conditions under which bakers operated. Carolene Products v. U.S. (1938) seems to be among the earliest such repudiations of Lochner, and footnote 4 of Carolene Products is often cited as among the progenitors of the idea of strict scrutiny. It is interesting, however, to note that the footnote takes the position: There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.If the Second Amendment is recognized as an individual right, this would suggest that strict scrutiny should apply to it. Had liberals adopted this judicial restraint philosophy consistently, many other liberal causes would have suffered, such as desegregation, making obscenity readily available, making abortion legal everywhere, and striking down laws that promoted traditional sexual morality. That UCLA Law Review article I mentioned earlier points out that the history of strict scrutiny is recent, is not derived from the Constitution, and is so vague that it doesn't get applied with as much consistency as a rule of law should be. It seems clear to me that strict scrutiny is a liberal device for privileging rights that they care about more than rights that they don't care about. If the Court would dismantle strict scrutiny, I would be okay with intermediate scrutiny for the Second Amendment. But if they are not going to dismantle strict scrutiny, they need to recognize that the right of the people to keep and bear arms is a fundamental human right, and deserving of the strict scrutiny standard of review. UPDATE: John Lott has a piece up at National Review about this as well. Need Some RAM? I have two 512MB PC2-5300 memory sticks as a result of upgrading my son-in-law's Compaq notebook. They were working when I removed them. If you have a need or use for them, I would be happy to get $20 for both of them. Why Freedom of the Press No Longer Exists in Canada The fact that a magazine publisher who reprinted the Danish Mohammed cartoons is having to answer to a Canadian bureaucrat to defend his right to do so says worlds about where liberalism has taken Canada. See the details here, including video of the publisher defending his right to political speech. Labels: freedom of speech Sunday, January 13, 2008
Interesting Use of 911 Call My co-blogger at the Civilian Gun Self-Defense Blog has taken a 911 tape that was released by the police a while back, put some videos to it, and produced a nice piece of pro-gun video. A very calm woman who was just given a gun that morning uses it when the stalker forces entry. Dramatic audio. Labels: gun self-defense |
