Last night at Say Uncle’s, along with the eight other bloggers who showed up, Ry Jones brought his girls to play with Uncle’s kids. About 8 o’clock, Uncle came in and announced that all four of them were in the back yard playing, and all of them had tactical flashlights – Surefires and the like. “We have tactical children!” somebody said.
I’m sitting in the Tucson airport waiting to board my first flight from here to Dallas. Blogger was bloggered yesterday, so I couldn’t work in the next uberpost. That’s going to be a few days, as I expect this weekend to be busy. I have a camera, though, so I hope I will be posting photos and video of the shoot.
Should be a fun weekend!
No, this is not a post about Global Warming™©®.
When I started seriously studying the topic of the right to arms back about 1993, it became apparent to me quickly that the Second Amendment to the Constitution was hardly the only “right of the people” under attack, it was just the most obviously and blatantly abused victim. I have, over the intervening years, read enough legal decisions to make my eyes bleed, and I have stopped being surprised by the mental gymnastics our black-robed betters go through, the logical pretzels they twist themselves into, in order to reach decisions that no honest reading of the law could support.
Now I’m surprised when a court gets it one right.
Randy Barnett’s 2004 textbook Restoring the Lost Constitution: The Presumption of Liberty begins with a cite from John Marshall’s 1803 decision in Marbury v. Madison:
The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed?
Barnett continues in his introduction:
Since the adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power. This started early with the Necessary and Proper Clause, continued through Reconstruction with the destruction of the Privileges or Immunities Clause, and culminated in the post-New Deal Court that gutted the Commerce Clause and the scheme of enumerated powers affirmed in the Tenth Amendment, while greatly expanding the unwritten “police power” of the states. All along, with sporadic exceptions, judges have ignored the Ninth Amendment. As a result of judicial decisions, these provisions of the Constitution are now largely gone and, in their absence, the enacted Constitution has been lost and even forgotten.
And I would add, with the assistance of a public education system designed, as Henry Louis Mencken described it in the 1930’s,
…not to spread enlightenment at all; it is simply to reduce as many individuals as possible to the same safe level, to breed a standard citizenry, to put down dissent and originality
Schools are maintained in order to bring this uniformity up to the highest possible point. A school is a hopper into which children are heaved while they are still young and tender; therein they are pressed into certain standard shapes and covered from head to heels with official rubber-stamps.
So while the executive, the legislative and the judicial branches of government have been slowly, inexorably erasing the boundaries on the defined, limited scope of government as written in the Constitution, our schools have been busy cranking out generation after generation ignorant of what it is that is being taken.
Without these missing clauses, the general scheme of the Constitution has been radically altered, which is precisely why they had to go. The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted constitution creates islands of liberty rights in a sea of governmental powers.
My twenty-four-year study of the right to arms has shown me that radical alteration. I didn’t learn about it in primary school. I didn’t learn about it in high school. I didn’t learn about it in college. I learned it on my own, starting at about age 31.
When I started this blog, I detailed the history of the Second Amendment jurisprudence in one post from my online debate with an Irishman in London in The Blog that Ate Poughkeepsie, later expanded before the oral arguments in Parker v. D.C. as Of Laws and Sausages, and then slightly expanded upon again before the oral arguments in McDonald v. Chicago in Cut-‘n-Paste. With respect to the Second Amendment and the individual right to arms, it was the Fourteenth Amendment’s Privileges or Immunities Clause mentioned by Barnett that had to be destroyed in order to gut that right; and even now, that clause is still dead. Witness this exchange between Alan Gura and Justice Scalia during the oral arguments in McDonald:
Scalia: Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due? Is it easier to do it under privileges and immunities than it is under substantive due process?
Gura: It is easier in terms, perhaps, of — of the text and history of the original public understanding of —
Scalia: No, no. I’m not talking about whether — whether the Slaughter-House Cases were right or wrong. I’m saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?
Gura: Justice Scalia, I suppose the answer to that would be no, because —
Scalia: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due — I mean, you know, unless you are bucking for a — a place on some law school faculty — What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.
This from a Justice who has made his dislike for “substantive due process” known ever since he’s been on the bench:
I have grammar school students come into the Court now and then, and they recite very proudly what they have been taught: “The Constitution is a living document.” You know, it morphs.
Well, let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law.
It’s one thing for a state to amend it’s libel law and say, “We think that public figures shouldn’t be able to sue.” That’s fine. But the courts have said that the First Amendment, which never meant this before, now means that if you are a public figure, that you can’t sue for libel unless it’s intentional, malicious. So that’s one way to do it.
Another example is the Constitution guarantees the right to be represented by counsel. That never meant the state had to pay for your counsel. But you can reinterpret it to mean that.
That was step one. Step two, I mean, that will only get you so far. There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.
What substantive due process is is quite simple – the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.
What difference does it make whether there’s 140, 150 years of prior law if the precedent is WRONG, if the court used bad decisions to reduce the enumerated limits on government power in contravention of the written Constitution? Scalia also said elsewhere:
I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that’s what it says, that’s what it says.
[N]o government official is “tempted” to place restraints on his own freedom of action, which is why Lord Acton did not say “Power tends to purify.” The Court’s temptation is in the quite opposite and more natural direction –- towards systematically eliminating checks upon its own power; and it succumbs. Planned Parenthood v. Casey, 505 U.S. 833, 981 (1992)
If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it – the original meaning of the Constitution – I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury – once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society.
Apparently, he’s not so handcuffed about other things, though.
In September of 2011 the Indiana Supreme Court handed down its decision in Barnes v. Indiana, declaring not only that there is no right to reasonably resist an unlawful entry and search by police, but that “Indiana no longer recognizes a common law right to resist police.” This case joins numerous other cases, both state and federal, along the same lines – expanding police powers and gutting the protections of the Fourth Amendment against “unreasonable search and seizure.” I’ve noted several of these here myself. Examples like the Fifth Circuit Court of Appeals’ 2004 decision in U.S. v Gould, where the court found that searching without a warrant the residence of a known felon suspected of planning to kill two judges was not a violation of the Fourth Amendment. I wrote about this case at length in The Road to Hell is Paved with Good Intentions, a quote taken from one of the dissents, and an essay having much in common with this one. The full cite from that dissent goes:
In summary, the Fourth Amendment is the keystone that holds up the arch of our Bill of Rights which in turn is the unique contribution of our founding fathers to our system of government which has now survived longer than any other representative government in the world. In his famous dissent in Olmstead v. United States, Justice Brandeis called privacy – which he defined as: “the right to be let alone” – “the most comprehensive of rights and the right most valued by civilized men.” Justice Brandeis argued that the framers knew that Americans wanted protection from governmental intrusion not only for their property, but also for their thoughts, ideas and emotions. Take away the Fourth Amendment and the right of privacy disappears.
The deputy sheriffs here in Gould made no attempt to develop a sworn affidavit in writing from the purported informant, Forehand, and they therefore made no attempt to get either a search warrant or an arrest warrant from an independent third party magistrate on the basis of probable cause. I have no doubt that the deputy sheriffs believed that they were acting reasonably and with good intentions. But the old adage warns us that “the road to hell is paved with good intentions.” In my judgment, that is precisely where the majority opinion wants to put us – by unhooking the “protective sweep” from its connection with the execution of an arrest warrant in a home, which is where the Supreme Court framed the concept. In my view the gambit of getting permission to enter a citizen’s home in order to talk to someone and then conducting a protective sweep search under the guise of sensing danger to the investigating officer will effectively eliminate the need for complying with the Fourth Amendment and at that point we will all be, literally and figuratively, on the road to hell.
We were told, immediately afterward, that this new power “would be used judiciously.”
Well, that’s OK then.
After Barnes v Indiana we were given an example of what kind of “judicious use” to expect by an Indiana Sheriff:
According to Newton County Sheriff, Don Hartman Sr., random house to house searches are now possible and could be helpful following the Barnes v. STATE of INDIANA Supreme Court ruling issued on May 12th, 2011. When asked three separate times due to the astounding callousness as it relates to trampling the inherent natural rights of Americans, he emphatically indicated that he would use random house to house checks, adding he felt people will welcome random searches if it means capturing a criminal.
We don’t need to send the country into bankruptcy, in the name of the poor, by spending trillions of dollars on people who are not poor, and who could take care of themselves. The poor have been used as human shields behind which the expanding welfare state can advance.
The goal is not to keep the poor from starving but to create dependency, because dependency translates into votes for politicians who play Santa Claus.
Thomas Sowell, Dependency and Votes
Edited to add this:
…though it is now clear that in the popular view of their case, as well as in the political view, the line between the deserving poor and the undeserving poor was not distinctly drawn. Popular feeling ran high at the time, and the prevailing wretchedness was regarded with undiscriminating emotion, as evidence of some general wrong done upon its victims by society at large, rather than as the natural penalty of greed, folly or actual misdoings; which in large part it was. The State, always instinctively “turning every contingency into a resource” for accelerating the conversion of social power into State power, was quick to take advantage of this state of mind. All that was needed to organize these unfortunates into an invaluable political property was to declare the doctrine that the State owes all its citizens a living; and this was accordingly done. It immediately precipitated an enormous mass of subsidized voting-power, an enormous resource for strengthening the State at the expense of society.
It was explained to us over 75 years ago (and before), but nobody paid attention. Except the ones pushing “progressivism.” They understood all along.
To quote Daniel Webster:
In every generation, there are those who want to rule well–but they mean to rule. They promise to be good masters–but they mean to be masters.
David Mamet’s new book, The Secret Knowledge: On the Dismantling of American Culture is described at Amazon as follows:
Mamet employs his trademark intellectual force and vigor to take on all the key political issues of our times, from religion to political correctness to global warming. The legendary playwright, author, director, and filmmaker pulls no punches in his art or in his politics. And as a former liberal who woke up, Mamet will win over an entirely new audience of others who have grown irate over America’s current direction.
That’s not the QotD, this, from that book, is:
We were self-taught in the sixties to award ourselves merit for membership in a superior group–irrespective of our group’s accomplishments. We continue to do so, irrespective of accomplishments, individual or communal, having told each other we were special. We learned that all one need do is refrain from trusting anybody over thirty; that all people are alike, and to judge their behavior was “judgmental”; that property is theft. As we did not investigate these assertions or their implications, we could not act upon them and felt no need to do so. For we were the culmination of history, superior to all those misguided who had come before, which is to say all humanity.
And they and their disciples still believe it.
And they’re in charge now.
This one from Victor Davis Hanson:
Our schools rate just below Mississippi in math and science. Tell me why, given our high taxes and highest paid teachers in the nation? Can the governor or legislature explain? Is the culprit the notoriously therapeutic California curriculum? The inability to fire incompetent teachers? The vast number of non-English speaking students? Derelict parents? How odd that not a single state official can offer any explanation other than “We need more money.” What is the possible cure for the near worst math and science students in the nation? Yes, I see it now: the California Senate just passed a bill mandating the teaching of homosexual, lesbian, bi-, and transgendered history, just the sort of strategy to raise those English composition and vocabulary scores among the linguistic and arithmetic illiterate.
He has much more to say on a much broader subject, but that paragraph is QotD.
UPDATE: I am reminded that this is another good place to reference California state Senator Tom McClintock’s 2005 piece, A Modest Proposal for Saving Our Schools. Nothing’s changed, except state Senator McClintock is now U.S. Representative McClintock.
After the meetings on Friday, the other people in my group had a flight home at 3:00PM (one, in retrospect, I probably should have been on) so after I dropped them off at the airport, my time was my own.
I had dinner that evening at Taste of Texas with Uncle Kenny and El Capitan, a couple of local Houston bloggers. Uncle Kenny co-blogs at Jaded Haven and Washington Rebel. El Capitan blogs at Baboon Pirates. El Capitan wrote about the meetup here.
It was a pleasant evening of interesting conversation and excellent food. One of the very enjoyable fringe benefits of blogging is the ability to meet good people who know you at least well enough to meet for dinner almost anywhere you go. Thank you, gentlemen.
Karl Marx would be giddy with pride seeing what our public schools are teaching my kids today. – Lyle over at The View from North Central Idaho – Critical Pedagogy Hits Home
Remember when I said I’d gotten some travel vouchers from United? My parents are planning a trip, and I asked my dad if he could use them. “What airline?” was his question. “United,” I replied. “I’d rather walk,” he said.
United has merged with Continental.
Now, flying to Houston was painless. Getting back, not so much. I arrived at the airport at 07:15 for my 09:20 flight – and discovered that said flight had been Cancelled. Oh. Joy. So off to the ticket counter goes I to find out what my options were.
Continental had rebooked my flight. For TUESDAY. BZZZZT! Sorry, wrong answer! Well, they could book me on the 6:00PM flight. That was all they could do.
OK, how about Phoenix? I can get a rental car and drive down to Tucson. Sure, they can do that. There’s a flight leaving at 09:10, or they can put me on standby for the 11:50 flight. The earlier the better, so I have a boarding pass for the 09:10 flight to Phoenix, boarding to begin at 08:35, and to compensate me for my inconvenience, they give me a $6 voucher for food from any vendor in the airport. By the time I leave the ticket counter it’s 08:15.
By the time I make it through security theater (don’t even ask about that) and get to the gate, it’s 08:50.
And boarding has not started yet.
We finally start boarding at 09:00. We push back from the gate at about 09:25. And sit on the tarmac for thirty minutes. Seems there’s a hydraulic problem. We’re going back to the gate. We get back to the gate about 10:00. And sit. Oh, wait! They’re going to let us off the plane while it’s being repaired – no, they have another plane for us!
At a different terminal.
It’s the 11:50 flight they offered to put me on standby for. I don’t know what they did, but they had one completely full flight when we pushed back from the gate.
An hour into the flight, we have a “medical emergency” – a passenger is ill. However, they decided to continue on to Phoenix rather than divert. We land in Phoenix at 12:50 local time. We wait while EMT’s check out the ill passenger and take her off the plane first. I’m in the back of the aircraft. Debarkation takes twenty minutes. I head for the car rentals.
Do you know how much it costs to rent a car one-way from Sky Harbor to Tucson International? Don’t ask. Somehow I doubt it will be a reimbursable expense.
I call my wife once I’m in the car on the way home. I’m going to be home in time for the birthday dinner at The Cheesecake Factory for my stepdaughter and my neice’s husband.
No I’m not. My mother is in the hospital. Dad took her in at 03:00 this morning with shortness of breath. She has atrial fibrillation and fluid buildup around her heart, and isn’t getting enough oxygen. This is the second trip in a month for this condition. Apparently they didn’t adjust her meds properly. So instead of going home and then out to dinner, I went straight to the hospital.
Now I’m home.
Houston is a 17-hour shot down I-10 from my house. Next time I think I’ll drive.
But Knoxville is next weekend. I hope American Airlines is better.
I’m flying to Houston, Texas today and will be in meetings most of tomorrow. Dinner Friday night with a couple of bloggers (I hope) and returning to Tucson on Saturday. Saturday night I’ve got a family obligation, so needless to say blogging will be light. There’s an überpost simmering on a back burner though, that I hope to hit “Publish” on in a week or so.
Meanwhile, the free ice cream machine is on the fritz.