District of Columbia vs Heller

Comment Of The Day: “Update On The Uvalde Massacre Extension Of The Sandy Hook Ethics Train Wreck, Part 5…”

/ Jack Marshall / 5 Comments

Michael provides some much needed perspective (legally correct, too) on gun control issues in the wake of the Memorial Day weekend freak-out on the topic. You can read the Heller case here. It is amazing how many people (and pundits) shooting off their unregulated mouths on the topic of guns have never bothered to read the SCOTUS opinion that constitutes the latest boundaries on the Second Amendment.

Here is Michael’s Comment of the Day on this post:

***

Let’s get something correct in the debate about regulation of firearms.

Heller, often cited, does NOT preclude regulation. In fact, Justice Scalia’s (certainly not a left-wing progressive, rather a proponent of originalism) opinion suggests the contrary. Toward the end of the Heller opinion, he states “the problem of handgun violence in this country” is real and the government has “a variety of tools for combating that problem, including some measures regulating handguns.” The Constitutional requirement of Heller is that the government may not disarm citizens in their homes. Justice Scalia recognized regulations of several types of government regulation as presumptively lawful: “conditions and qualifications on the commercial sale of arms,” bans on carrying weapons in “sensitive places,” and he noted the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” See (for example) the FDR era laws that restricted guns presumed to be the type used in mob violence. Continue reading →

Ethics (And Judicial) Hero: Federal Judge Roger Benitez

/ Jack Marshall / 15 Comments

cartoon-guns

If one bothers to read his opinion, which most anti-gun, anti-Second Amendment zealots will not, including your outraged friends on social media, it is clear that that the U.S. District Court for the Southern District of California judge’s long overdue ruling striking down the state’s three-decade-old unconstitutional ban on so-called “assault weapons” is well reasoned, well-researched, and difficult to rebut. As usual, those who want to remove the right to bear arms from law abiding Americans (while law-defying Americans continue to do as they please) are resorting to emotion and dishonesty to argue their case.

It is unfortunate that the judge, who is not one of those evil Trump judges but a moderate appointed by President Bush II, began his opinion with an invitation to be misquoted and misunderstood. “Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment,” Judge Benitez wrote, so furious would-be gun-grabbers are aping California Governor Gavin Newsom, who tweeted,

“Overturning CA’s assault weapon ban and comparing an AR-15 to a SWISS ARMY KNIFE is a disgusting slap in the face to those who have lost loved ones to gun violence. This is a direct threat to public safety and innocent Californians. We won’t stand for it.”

This raises the question, so frequently encountered on Ethics Alarms, of whether a speaker is deliberately lying, or just stupid. In this case, it is also possible that he only read the first sentence, which is irresponsible. Benitez, as the rest of his opinion makes crystal clear, was comparing the versatility of an AR-15 to a Swiss Army Knife, not their characteristics as weapons. An important part of his opinion explains that when the California legislature banned semi-automatic rifles,it never even considered the weapon’s value for self defense, and not just as a “sporting rifle.” (The Red Sox have a utility player named Marwin Gonzalez, and I have heard him compared to a Swiss Army Knife because he can play almost any position; in other words, he’s versatile. No baseball writer has been so foolish as to mock the characterization by saying that the comparison is ridiculous because the knives aren’t alive, Gonzales isn’t Swiss, and he’s much, much bigger.) It is also a non sequitur to call a ruling based on black letter law a “slap in the face” to anyone. Not following the Constitution, as California frequently wants to do, is a slap in the face of democracy.

Continue reading →

Comment Of The Day: “From The ‘Appeal to Authority’ Files: Why Should We Care What John Paul Stevens Thinks Now?”

/ Jack Marshall / 23 Comments

Enough abortion for one day: let’s  have a Comment of the Day on another unending Supreme Court controversy, the Second Amendment. Here is Jutgory’s passionate response to the post, “From The “Appeal to Authority” Files: Why Should We Care What John Paul Stevens Thinks Now?”:

So many pet peeves all wrapped into one post:

“Bloviating about Columbia v. Heller, the 2008 decision holding that the Second Amendment created an individual right to bear arms”

NO! The Bill of Rights created no rights. It identified rights upon which the government could not infringe. This is as old as the Constitution. The Federalists said, we don’t need no Bill of Rights because powers not given to the government could not be exercised (naive and idealistic. The Anti-Federalists insisted but wanted it to be clear that the enumeration of the Bill of Rights was not exhaustive of the rights we had.

Sadly, they were both wrong: we needed the Bill of Rights because government seizes power when it can, and, not only do we look at the Bill of Rights as creating rights, we look at it as delimiting the rights we have.

You are spot on about rights not being subject to need. I know many people who don’t need freedom of speech and have hardly exercised that right in a constructive way, but they have it nonetheless.

On the argument that the Second Amendment is limited to militias. First off, see the above argument about rights. Continue reading →

From The “Appeal to Authority” Files: Why Should We Care What John Paul Stevens Thinks Now?

/ Jack Marshall / 36 Comments

Already, the mainstream news media is starting to re-gurgitate retired SCOTUS justice John Paul Stevens’ opinion on gun control, as related once again in his newly published memoir. They seem to think this old news is new ammunition  in its war against gun rights in alliance with the Democratic Party. (Note: ethical journalists are not supposed to be allied with any party. I may not have mentioned this in the last 24 hours.)

Bloviating about Columbia v. Heller, the 2008 decision holding that the Second Amendment created an individual right to bear arms, Stevens calls the ruling “unquestionably the most clearly incorrect decision” rendered while he was on the Court. And this proves—what? Stevens dissented in that case. His view lost. The fact that he dissented was significant when he was on the Court. That as a retired justice a decade later (who is commenting on current Court rulings from the sidelines more openly than any previous justice, a breach of professionalism and ethics) he really, really thinks he was right though a majority of his colleagues on the Court did not, should be at most a footnote somewhere on the ABA Journal’s gossip page. Instead, we will see it everywhere as “new evidence” and authority that there really isn’t a right to bear arms.

Was there widespread publicity when retired Justice Byron White wrote that his dissent in Roe v. Wade was right and the decision was wrong? No, for two reasons: White observed the traditional respect for the Court  requiring that ex-Justices not snipe at past decisions after they retire., and nobody in the news media would try to hype a dissent against abortion rights.

This doesn’t even get to the sad reality that Stevens’ arguments regarding gun rights are juvenile and emotional, essentially belonging to the popular “Do something!” ilk. Continue reading →

Morning Ethics Warm-Up, 4/2/2018: The Unreliable Authorities Edition

/ Jack Marshall / 38 Comments

Good morning!

1.  Another baseball ethics dispute! This is an exciting time of changes in the traditional wisdom of how to play Major League Baseball, all sparked by that new ethics bugaboo, Big Data. Now that so many aspects of the game can be measured and analyzed, tradition and assumptions rarely challenged are now under fire. One massive shift is, ironically, in the matter of shifts, radical defensive alignments in which players are not fielding their normal positions, but rather are places where computer spray charts for each batter suggest that the likelihood of fielding a ball is highest.  This can mean anything from one lonely fielder on the left side of the infield, or four outfielders.

Shifts are not new, but they used to be used on a handful of super-sluggers with dead-pull propensities, notably Ted Williams, who famously refused to bunt for easy hits to the unoccupied side of the field, and instead usually tried to hit through or over the shift. It has been estimated that the Williams Shift, combined with the player’s infamous stubbornness, cost him many points off of his lifetime batting average, especially since Williams defeating the shift by bunting might have discouraged its use.

But he was Ted Williams, the second greatest hitter of all time.  The question of whether lesser batters should bunt against shifts, for now many teams shift against everyone, has an easy answer: Of course they should.

In yesterday’s Twins-Orioles game, Twins starter Jose Berrios had  a one-hit shutout in the ninth inning. leading with one out and no runners on base. O’s rookie catcher Chance Sisco came to the plate—he has my favorite baseball name this season–and the Twins put on a shift like the one Ted Williams despised:

So, knowing he wasn’t Ted Williams and also knowing that in baseball even seven run leads aren’t a sure thing, Chance dropped down a bunt to the left side for a single. Berrios then walked two batter Davis and Manny Machado to load the bases, but finished his shutout by getting the next two outs without further disruptions.

After the game, the Twins players questioned the ethics of Sisco’s hit. Berrios said, “I just know it’s not good for baseball [to bunt] in that situation. That’s it.” Twins outfielder Eddie Rosario said, “Nobody liked that. No, no, no. That’s not a good play.” Second baseman Brian Dozier added, “Obviously, we’re not a fan of it. He’s a young kid. I could’ve said something at second base but they have tremendous veteran leadership over there. I’m sure they’ll address that. It’s all about learning. You learn up here.”

When do you “learn” not to try to win the game and get on base? For Sisco, a rookie, sending the message that shifting against him is a bad risk also is a wise career move. There is a long-standing, and stupid, unwritten rule in baseball that it is “bush league” to try to break up a no-hitter with a bunt, but extending that dubious logic to a mere shutout breaks the Stupid Meter.

2. Coffee is good for you, but be worried when you drink it. Continuing its rapid devolution into Bizarro World, just as increasing scientific evidence suggest that coffee is good for you, California is demanding that it carry a tobacco-like warning label. Last week a judge ruled that Starbucks and  other coffee companies in California must carry a cancer warning label because of a chemical produced while beans roast has been shown to cause cancer in high doses. California’s Safe Drinking Water and Toxic Enforcement Act  requires companies with more than 10 employees to warn their customers about the presence of carcinogenic and toxic chemicals in their products, even in tiny amounts. Acrylamide, a chemical compound that is produced naturally during the roasting of coffee beans, is on the state’s list of chemicals known to cause cancer or reproductive toxicity. The judge ruled that the coffee company had the burden of proof  to show that acrylamide posed no significant health risk to coffee drinkers, even though there is no evidence that coffee does pose a risk. Continue reading →

President Trump And Secretary Mnuchin Join In The Fun Of “Let’s Pretend The Constitution Doesn’t Count!” Month

/ Jack Marshall / 17 Comments

The most pathetic episode in the recent fad of pretending the Constitution is a gossamer wisp that can be altered by a prayer was probably 97-year-old retired SCOTUS justice John Paul Stevens  writing an op-ed re-litigating his minority dissent in District of Columbia v. Heller. That case held that the Second Amendment was an individual right (you know, like all the others in the Bill of Rights). In the process of making a wish for some future Leftist genie to grant, presumably along with banning “hate speech”  and the Republican Party (you get three wishes, remember) Stevens misrepresented the previous 1939 Supreme Court Second Amendment ruling, and appeared not to remember, or just be willing to leave his readers uninformed, that repealing the Second Amendment wouldn’t change any gun laws by itself.

It was kind of sad to watch anti-gun zealots on social media jump up and down with glee as old John Paul engaged in his nostalgia-fest. I had to wonder if the Times would have been similarly eager to publish a similar op-ed from one of the dissenters in Roe v. Wade or Obergefell v. Hodges. Okay, no I didn’t. I understand and am used to the double standard: conservatives are expected to accept the Supreme Court’s rulings as the law of the land when it goes against their beliefs, but rulings that offend liberal agendas are to be considered temporary. Thus I look forward to Justice Ginsberg’s upcoming op-ed on why the 2000 Florida recount should be started up again, and to my left-leaning Facebook friends sharing it with the breathless exhortation, “Read this!”

Insisting that the Constitution doesn’t say what the Court has ruled it says is oodles of fun, so we also had the nauseating spectacle of President Trump and his Treasury Secretary Steven Mnuchin lobbying for  that failed nostrum from the Clinton years, the line-item veto. When Trump signed the $1.3 trillion spending package on March 23, thus moving the United States one step closer to fiscal calamity, he said that it was the last time he would approve such bloated spending, “Trust me, I’ll never do it again” being such a reliable promise in the world of politics.

The President said, 

“To prevent the omnibus situation from ever happening again, I’m calling on Congress to give me a line-item veto for all government spending bills.”

Okay, I don’t expect the current President to be up to speed on Constitutional law, but somebody in the administration has to know that this horse has not only left the barn, it’s run in the Triple Crown, been put out to stud, and ended up in a can of Alpo. Yet here is the Secretary of the Treasury on Fox News Sunday: Continue reading →

Ethics Quote Of The Day: Charles W. Cooke

/ Jack Marshall / 114 Comments

“You’re going to need a plan. A state-by-state, county-by-county, street-by-street, door-to door plan. A detailed roadmap to abolition that involves the military and the police and a whole host of informants — and, probably, a hell of a lot of blood, too. Sure, the ACLU won’t like it, especially when you start going around poorer neighborhoods. Sure, there are probably between 20 and 30 million Americans who would rather fight a civil war than let you into their houses. Sure, there is no historical precedent in America for the mass confiscation of a commonly owned item — let alone one that was until recently constitutionally protected. Sure, it’s slightly odd that you think that we can’t deport 11 million people but we can search 123 million homes. But that’s just the price we have to pay. Times have changed.”

—-Charles W. Cooke in a National Review self-described rant in 2015, ” …Aimed at Those Who Would Repeal the Second Amendment”

I missed Cooke’s piece in 2015, but it should be required reading today. Today was “Kill the Second Amendment Day” on social media and among the talking heads on Sunday Morning TV shows, in part because the obligatory coordinated freak-out over any tragic shooting always hits a brick wall of reality that disingenuous talk of “sensible gun reforms” won’t remove, and because for the second time in barely a week, , a New York Times op-ed regular advocated taking a big chunk out of the Bill of Rights. Once again, it was another Times house conservative, Bret Stephens, making the very un-conservative case for abridging individual rights. Earlier it was Ross Douthat wanting to hamstring freedom of speech in order to make “better men.” Stephens wants to repeal the Second Amendment.

I received fair criticism for attributing Douthat’s column to the leftist agenda of the Times, but Stephens’ piece reinforces my theory. For quite a while it has been clear that the Left views the Constitution as an impediment to it ascendance to transformational power the U.S. This has been on display from many angles, on many fronts, and with increasing intensity.  Progressives tried to get around the Electoral College to elect Hillary, and attacked that Constitutional device for months. They still regard the Due Process clause as an annoyance and an obstacle to blocking untrustworthy citizens from acquiring guns. During the battle over Obamacare, multiple leaders of the Democratic Party mocked the idea that the Commerce Clause imposed any limits at all on Congressional power, hence its ability, in their eyes, to “pass a law forcing citizens to buy broccoli.” (SCOTUS ruled otherwise, but the individual mandate was rescued by a creative Chief Justice.)

Hillary Clinton proposed excepting political speech in the form of purchased public advocacy for political candidates from the First Amendment. The grass roots Left, along with members of the media and leaders of the Democratic Party like Howard Dean, have not only denied that so-called “hate speech” is protected, but have acted as if it isn’t, and demanded that it shouldn’t be.  Majority Democratic states and cities are actively defying federalism in their efforts to prevent the enforcement of immigration laws. Since President Trump’s election, many Democrats in Congress and elsewhere that Constitutional requirements for impeachment should yield to simple numbers: If a party has enough votes, it should be able to remove a President, or at least this one.

I think it’s clever for the Times to use its nominal conservative writers to advance the progressive cause of selectively gutting the cornerstone of everything the United States of America has achieved in two and a half centuries. I also think that is what it has done here.

But I digress. Continue reading →

Regarding the New, Improved Second Amendment, Indoctrination and Hanlon’s Razor

/ Jack Marshall / 50 Comments

Just in time for the latest round of political exploitation of a gun-related tragedy, it has been discovered that a school history textbook used in some Texas  high schools (and probably others) mis-states the meaning of the Second Amendment, neatly editing away the part that all the controversy is about.

In fact, John J. Newman’s “United States History: Preparing for the Advanced Placement Examination,” rewrites the Second Amendment to the United States Constitution. On page 102 of Newman’s book (page 134 of the PDF version), the author summarizes the amendment in a way that distorts its meaning:

newman-book-1

Could this be intentional? Well, it is certainly wrong, and one is not being conspiratorial to wonder how such a blatant error 1) got into a history text in the first place , 2) passed any review process, and 3) lasted this long.

It is well-established that the Second Amendment  guarantees the individual’s right to keep and bear arms, and not only in a militia. How far that guarantee extends is indeed a matter of intense debate, but Newman has misleadingly limited that right only to those who are members of a government militia, essentially editing the amendment right into obsolescence.  Though that is clearly where many anti-gun zealots, including Senator Diane Fienstein, CNN talk-meister Piers Morgan, and many others would like to see it go, it is not the current state of the law, and never has been.The Supreme Court opinion in  District of Columbia vs Heller (2008), which is not mentioned in the textbook, held that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

There is no defending Newman’s textbook, except as a justifiable attempt to destroy the Second Amendment by teaching students that the right to bear arms doesn’t exist in the modern world—in other words, by using deception and indoctrination. Continue reading →