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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). Relocating to Boise? Use my realtor, neighbor, and friend, Cindy Smith csmith@1realtyone.com.
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Friday, June 27, 2008
More Fallout From Heller It was very nice of Professor Randy Barnett (with whom I have clashed more than once) to include me in this June 27, 2008 Wall Street Journal article: Due to the political orthodoxy among most constitutional law professors, some of the most important and earliest of this scholarship was produced by nonacademics like Don Kates, Stephen Halbrook, David Kopel, Clayton Cramer and others. Believe it or not, Heller was a case of nearly first impression, uninhibited by any prior decisions misinterpreting the Second Amendment.Instapundit brought to my attention this amazing example of antigunners seeing the light, from June 27, 2008 WMAQ channel 5: WILMETTE, Ill. -- Wilmette has suspended enforcement of its 19-year-old ordinance banning handgun possession in the wake of a U.S. Supreme Court decision that appears to invalidate such bans.What is amazing is that Heller only applied to the federal government--not to the state or local governments. But I have high confidence that we are going to be successful. If anything, the historical evidence is much richer to show that the 14th Amendment was intended to impose the Second Amendment onto the states--and boy, do I have a collection of stuff from the 14th Amendment period! I found so much of it while doing research for the Heller case that it was something of a nuisance, because it got in the way of finding stuff from the period that I needed. Still, it is important not to get too overconfident. To quote Han Solo in Star Wars: "Don't get cocky, kid!" Labels: gun rights Idaho Statesman Quotes Me Extensively Today And accurately, too! See June 27, 2008 Idaho Statesman:
Labels: gun rights Blogging Will Be Limited The Next Few Days I'm headed to Los Angeles and Reno, for a family reunion and a visit to some friends. Thursday, June 26, 2008
That Was Quick The lawsuit challenging Chicago's gun ban on Second Amendment grounds has been filed by Alan Gura! Labels: gun rights A Little More Analysis of the Heller Decision 1. The decision is narrow; Scalia was careful not to go much beyond the actual question of this case: did D.C.'s ban on handgun ownership at home exceed the Second Amendment? That's why he made a point of saying that any standard of review would find that this law was unconstitutional. 2. By focusing on the question of handguns (which is what the D.C. law banned), Scalia avoided the question of what sort of arms are protected. This is probably wise, since there are a number of categories of guns that are clearly protected under any revolutionary theory of the Second Amendment, but which would cause even some gun owners to start making exceptions (assault weapons and machine guns, for example). 3. The dissents are astonishingly bad--rather like Saul Cornell and Nathan Kozuskanich had written them. They pick and choose facts that they want, ignoring what doesn't fit their model. You would never know from reading the dissents that overwhelmingly, the courts in the 19th century recognized the Second Amendment as protecting an individual right to arms. Arms and the Law points to some embarrassingly gross factual errors in Stevens' dissent. 4. The discussion of the 14th Amendment is clearly an encouragement for us to file a suit challenging a state or local law. You should have heard Chicago Mayor Daley this afternoon--he sounded like he was about to pop a gasket over this. How horrifying: they might have to allow law-abiding Chicagoans to defend themselves! 5. Because our side didn't challenge the constitutionality of licensing or registration--only that such can't be arbitrary or restrictive--I expect that D.C. will create some system of licensing of handguns. Okay, I'm not happy about that, but as long as it is comparable to a driver's license in how hard it is to get, that's an improvement--and in time, the absurdity of this will become apparent to every person of normal intelligence. In even more time, it will even become apparent to the subnormals that make up D.C. government. Labels: gun rights We Won! Justice Scalia wrote the decision in Heller. It was a 5-4 decision, but they ruled: 1. The Second Amendment protects an individual right, not tied to or limited to militia duty. 2. It protects handguns and other weapons "in common use." I will be reading through the decision in more detail over the next few hours, and updating this as I go along. UPDATE: With respect to the meaning of "bear arms," footnotes 7 and 9 use a number of items that appear in the Georgetown Journal of Law and Public Policy paper by Joe Olson and myself that, to my knowledge, no one else had found. At p. 15, they cite our paper! Yahoo! UPDATE 2: On p. 38 Scalia cites Johnson v. Tompkins (CC Pa. 1833), a case that, to my knowledge, our paper first brought into the RKBA discussion. On pp. 43-44 Scalia discusses the Second Amendment and its connection to passage of the 14th Amendment! On pp. 59-60, they use the evidence concerning the fire protection purpose of the 1783 Massachusetts statute concerning loaded firearms. Labels: gun rights Wednesday, June 25, 2008
Count On Barack Obama To Upset Our Closest Ally From the June 25, 2008 Canadian Financial Post: Hmmm. Here's a source of oil right next door, where the money won't be funding dictators, religious fanatics, or people that like to blow themselves up--and Obama wants to shut it off. And you were saying that the nasty rumors about Obama being a closet Muslim are just vicious lies? What, exactly, would you expect a closet Muslim to do, if not for this guarantee that we will be even more dependent on oil from places where they have their turbans wound too tight? Let's try this, Barack Hussein Obama: Pakistan is an ally (not a very strong one, I admit). We don't invade allies. Iran is our enemy--and has been in a state of undeclared war with us since 1979. We don't roll over and engage in submissive urination for an enemy. Canada is our ally--the closest ally that we have. We don't go out of way to insult an ally. Foreign policy is complex--but Obama seems to be failing even the kindergarten level of it. Labels: 2008 presidential candidates Kennedy v. Louisiana (2008) My respect for Justice Kennedy--which has never been real high--continues to decline. Regular readers will know that I am a mild opponent of the death penalty. It lacks an Undo button, and that's a very serious deficiency. Advocates of social justice (at least in the Soviet, Chinese, and National Socialist sections) have a long history of indiscriminately using the death penalty against their political opponents. Still, the death penalty is clearly Constitutional. The Constitution explicitly makes provision for it. That the Constitution provides for it--and at the same time, prohibits "cruel and unusual punishment," shows that the Framers didn't have a problem with the death penalty. There was a bit of a movement away from the death penalty at the time, because of the influence of Cesare Beccaria and his book On Crimes and Punishments (1764). (Here's a 1775 translation into English erroneously attributed to Voltaire.) English law had something like 168 capital crimes when we declared independence. The list of crimes that were capital in Pennsylvania (one of the more liberal colonies because of the Quaker influence) before the Revolution is quite extraordinary, including burglary, rape, sodomy, bestiality, malicious maiming, and arson. This wasn't just theoretically the punishment. I've read many newspaper accounts of Pennsylvania hanging people for burglary before the Revolution. After the Revolution, Pennsylvania reduced the number of capital crimes substantially: some sources say to four crimes, others indicate to two (treason and murder), this book claims only murder was capital after 1794. Delaware had fourteen capital crimes. Still, capital punishment was accepted as a necessary part of the criminal justice system. It enjoys widespread support in America today--and from what I have read, it enjoys widespread support in Europe as well. (The European elites are even less tolerant of majority will than our elites.) And it is abundantly clear that not just treason and murder were legitimate reasons for capital punishment--so was rape. In Furman v. Georgia (1972), the Supreme Court decided that capital punishment was excessive punishment for rape of an adult victim. I've known a lot of rape victims (being from California); as much as capital punishment runs a cold chill down my spine, to call it "excessive punishment" just shows how liberal the Court was in 1972, completely and utterly unconcerned about the trauma that rape inflicts. Because Furman was quite explicit that rape of an adult could not be punished with death, a few states passed laws that made rape of a child a capital crime. Louisiana made rape of a child under twelve years of age into a capital crime. In this particular case, the accused was convicted of brutally raping his eight year old stepdaughter. How brutal? He called up a cleaning service to help clean up the blood splattered everywhere. The language that he used when requesting their help, even if it were not evidence that he was the rapist, suggests that insensitivity at a level that I find incomprehensible. Professor Kerr over at Volokh Conspiracy has a pretty good discussion of what's wrong with the majority opinion. There is a pragmatic argument that one could make for why child rape shouldn't be a capital crime: that it creates an incentive for the rapist to murder the victim. I've mentioned my concern about capital punishment in general. But the reasoning that Justice Kennedy uses to justify why the death penalty is unconstitutional for the rape of a child is utterly specious. UPDATE: A commenter over here points out the inconsistency between: "The death penalty doesn't deter criminals because they don't think that far ahead" and "If we make it a capital offense, criminals will decide to murder their victims to eliminate a witness." Which is it? Are child rapists so present oriented that they can't be deterred by the prospect of death, or will they kill their victim because they can reason far enough ahead to see the risk of leaving a witness? You can't have it both ways. UPDATE 2: It struck me that yet another reason why liberals may want to keep the death penalty off the table for child rape is the danger that too much of the elite of American society might be at risk. For example, Charles Rust-Tierney, past president of the ACLU of Virginia, who pled guilty to purchasing videos of little girls being raped last year. Or CBS producer Daniel Barron, arrested last year after attempting to swap football game tickets for the use of a man's 11 year old daughter. "I will be very gentle with her," he promised. One of the events that ended up putting the Taliban in charge of Afghanistan many years ago was that two warlords, in the civil war after the Soviets withdrew, got into a rather public fight about two twin boys who had been taken captive. What were they fighting about? Who got the right to rape them. The Taliban--and especially Mullah Omar--ended up in power because this level of immorality was unacceptable to the population. Boy, did the Afghanis regret that, a few years later! One of the factors that helped to put the Nazis in power was that much of the German population was repulsed by the degraded morality that had become widespread in places like Berlin in the Weimar Republic. Of course, behind the facade of decency, the Nazis were pretty morally depraved. Ernst Roehm, the head of the Sturmabteilung, and most of the top leadership, were homosexual. Goering collected obscene art (including some really bizarre furniture). Genocide also isn't quite what traditionalist Germans expected when they voted National Socialist. In the 1920s, the KKK rode to enormous influence in many parts of the U.S. by focusing on traditional morality, as distinguished from the increasingly "sophisticated" sorts in big cities. A fair number of Americans bought into the KKK's program at least partly in reaction to what was going on in places like Chicago and New York City. As it turned out, the leadership of the 1920s KKK was personally immoral. The secretary of one of them committed suicide after her boss raped and mutilated her. When this became public knowledge, it severely impaired the moral authority of the movement, and played a major part in demolishing the Klan. Much of the elite of this country is utterly contemptuous of traditional morality, not just with respect to sexuality, but concerning personal honesty, financial improprieties, etc. Traditional Christianity in America doesn't have any charismatic leaders that could successfully rise against the depravity that is now in charge. That's both unfortunate and fortunate. The unfortunate part is that we aren't likely to stop what is going on anytime soon. The fortunate part is that the charismatic leaders tend to be like the examples above, who lead the masses to action, but are personally immoral monsters. Labels: death penalty Baby Animals Are So Cute! With one exception. We've noticed a few small snakes around the house--and one actually inside it last night. Our cat was fascinated by the snake it found in the family room, but seems to have the good sense to merely stare at it--not attack it. This afternoon, my wife was around the east end of the house, on the concrete, and she saw another small snake with a distinctive pattern--and sure enough, tiny little rattles at the end! We used a snow shovel with a long handle to pick it up and move it well away from the house. Tuesday, June 24, 2008
Interesting Supreme Court Decision A Few Days Ago Professor Volokh engages in "wild speculation" about the significance of some remarks in Justice Scalia's dissent in Indiana v. Edwards, handed down a few days ago, and what it may mean about the forthcoming Heller decision. Indiana v. Edwards is itself an interesting decision (at least to me), because of how it shows the weaknesses of the judicial process and the changing situation with respect to mental illness between 1791 (when the Bill of Rights was ratified) and today. The case involves a man who was charged with attempted murder and several other serious crimes after he was stopped trying to shoplift some shoes. Edwards is paranoid schizophrenic, and after considerable back and forth, Indiana courts decided that while he was mentally ill, he was at least well enough to stand trial. Edwards, however, decided that he wanted to defend himself, instead of using a public defender. Indiana law apparently did not allow that, because Edwards, being mentally ill, was regarded as competent to stand trial, but not to defend himself. The majority ended up ruling in favor of Indiana, requiring him to use an attorney. The dissent, by Justices Scalia and Thomas, argues that the Indiana law violates Edwards' right to defend himself, apparently because of the Sixth Amendment's guarantee "to have the Assistance of Counsel for his defence," the Fourteenth Amendment's imposition of that onto the states, and subsequent decisions by the federal courts that one may, with a few limited exceptions, chose to defend oneself. This is a very interesting and troubling decision. From a pure original intent standpoint, Scalia and Thomas may well be right about this. From my reading, it seems that relatively few persons who were seriously mentally ill went to trial in 1791. My understanding is that for many crimes, people regularly defended themselves. Did the courts allow these mentally ill defendants to represent themselves? I really don't know. This would be an interesting historical question to research. I can't see that either side of this dispute actually did so. Scalia's argument is based on existing precedent, which grants considerable freedom to defendants to represent themselves. (And Scalia is clear that representing yourself--even if you aren't mentally ill--is usually a bad decision.) The majority opinion might well be wrong, from an original intent standpoint. But it is probably also a very, very bad idea for states to allow mentally ill defendants to represent themselves, not only for the potential for a miscarriage of justice, but because a screwed up trial opens up opportunities for appeal. I would suggest that what we may be seeing here is another consequence of the dramatic transformation of the legal status of the mentally ill since the 1960s. Until that point, states regularly intervened under the doctrine of parens patriae (the government is effectively "father of the people") to care for those unable to care for themselves. In 1791--or even 1941--situations like this came up far less often, simply because so many of the mentally ill were institutionalized, and unable to commit crimes such as Edwards is charged with, or were institutionalized instead of proceeding to trial. Labels: deinstitutionalization Horror Movies Don't Have To Last Two Hours Crime, Guns, and Videotape points out that the Brinks Home Security ads are a little misleading because of how long it takes for Brinks to get through to the police--and has a very funny television ad that shows an alternative solution. Labels: gun self-defense Surviving in Argentina You think Los Angeles is bad? Someone gave me a pointer to Surviving in Argentina, a blog that describes current survival problems there. This account of a very organized criminal kidnapping attempt makes me glad that I don't live there. Monday, June 23, 2008
Environmentalism & Totalitarianism I've mentioned before the threat to put on trial for "war crimes" those who denied that global warming was a threat, or was actually happening, or was entirely man-made. Now, an employee of the federal government is saying to start those trials now. From the June 23, 2008 Guardian: Environmentalism is a form of totalitarianism. It seeks to criminalize free speech about important issues of public policy. It seeks to punish people for something that was not a crime when they did it, and which is still not a crime. And remind me: why does a guy who is proposing trying people for something that is not just legal, but protected by the First Amendment still have a job? Labels: global warming McCain's Energy Proposal About a month ago, I explained why if the government is going to do something about energy, it should work on encouraging innovation with a prize, not with subsidies for ongoing production. I guess Senator McCain has been listening to me. (Yeah, right.) From June 23, 2008 AP: Okay, I'm not happy about the $5,000 tax credits. But the $300 million prize for a better battery sounds like something that could really motivate the venture capitalists to pony up some money for research. Big Bertha 2.0: Wow! I mentioned that the optics seem to be behaving themselves. A friend came over for dinner last night, and we rolled Big Bertha 2.0 out. Unfortunately, Saturn was low in the west, and Jupiter was low in the east, so turbulence impaired image quality pretty seriously. But for objects closer to the zenith, the results were awesome! I was able to find M13 (the globular cluster in Hercules) without too much of a struggle--and at 111x, it didn't look radically different from this image. It has been often compared to a loose collection of tiny diamonds on black velvet; but remember that this is actually about 100,000 stars, 20,000 light years away. M57, the Ring Nebula, was not quite as large as this at 111x, but again, it wasn't dramatically worse. And it actually had some color through Big Bertha. (The larger the mirror, the more light there is, and the more light means the more opportunity for the cones of your eye to respond--which is why you see color. Rods show black and white; cones show color.) I still have to resolve some balance problems to get the clock drive to keep everything moving correctly. I am not quite balanced, so if I turn the balance clamps tight enough to prevent the scope from moving on its own, they are too tight for the clock drive to move everything. But I should get that resolved in the next few days, and be able to start do astrophotography of these deep sky wonders. The Boise House Is Marked Down We've cut the list price on the spare house to $309,000. I really don't want to have this house at the end of the summer. Sunday, June 22, 2008
These Reporters Need Prozac This AP report is astonishingly negative: WASHINGTON (AP) - Is everything spinning out of control? Midwestern levees are bursting. Polar bears are adrift. Gas prices are skyrocketing. Home values are abysmal. Air fares, college tuition and health care border on unaffordable. Wars without end rage in Iraq, Afghanistan and against terrorism. And it really doesn't get any better. Look, we have doom and gloom over unemployment figures that, for most my lifetime, would have been cause for celebration. Gasoline prices are bad--but Friday afternoon, I stopped at a gas station to buy a Coke, and I was glad that I wasn't buying gas--because there were long lines of SUVs, motor homes, and, best of all, motor homes towing power boats, filling up. Gasoline is above $4 per gallon and it isn't stopping completely discretionary recreational purchases. This is hardly a sign that Americans are suffering--or at least, there are plenty that aren't. Look, even the one part of the last few years which has definitely been very bad--Iraq--is beginning to turn around--as even the New York Times admits in this June 21, 2008 article: BAGHDAD — What’s going right? And can it last?Are these two reporters really this discouraged? Or are they just trying to get everyone depressed so that they will vote for Obamessiah? |
