Today’s opinion in the Heller case is classic Scalia. Founded on a profound and in-depth historical analysis loaded with detail, Scalia’s opinion defines originalism. For 54 pages of rhetorical flourish, he constructs an overwhelming argument and disposes in detail of the dissenters’ “wrong headed” contentions. Every word is authentically his.
Until page 54.
There we find a section that seems a bit out of place among Scalia’s defining second amendment opus. In simple, straightforward language, Section III of the majority opinion limits the impact of everything Scalia had previously presented. It is the very definition of judicial modesty.
And to my mind, this section is the illustration of the Chief Justice’s hand at work behind the scenes. The impact, I would wager, could have been the critical difference between a five vote majority with no concurrences or partial joiners. The result? A clear, decisive decision from the high court — a rarity in major cases in recent years.
Now, divining the behind-the-scenes machinations of the Supreme Court is universally difficult and dangerous, but let’s do it anyway.
It’s not hard to see Justice Kennedy flirting with Justice Breyer’s view, which brings the real world impact of importance of the D.C. gun ban to the fore, and suggests that Justice Scalia’s view will result in more crime and real harm to real people. It also invents a new line of Constitutional reasoning that might be appealling to Justice Kennedy’s emerging O’Connor-esque, finger-in-the-wind jurisprudence.
Faced with losing the majority for a strong opinion supporting an individual right to keep and bear arms, one can imagine the Chief Justice penning Section III himself, persuading Justice Scalia to include it, and managing to keep Justice Kennedy on board by assuring him that while the opinion is a landmark, only through further cases will the high court shape the details of Second Amendment jurisprudence.
Indeed, a paragraph near the end of the opinion, which reads almost as though it was added at the last moment, sounds as though it was intended to magnify and clarify the modesty embodied in Section III:
JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us. [Citations omitted.]
And then there is the opinion’s last paragraph, which is remarkable for the frankness of its acknowledgement of the real world impact of the Court’s decision.
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
Both of these examples convey an underlying uneasiness among one or more justices who have joined the majority. But whereas in the past, that uneasiness would have manifested itself in a confusing myriad of concurring and dissenting opinions, in the Heller case, the majority hung together. And some force evidently made it so.
Perhaps I am underestimating Justice Scalia by supposing that holding his majority fell to one of his colleagues. There are an infinite number of ways that I could have bungled my own reasoning.
But it is not unfair to say that whatever the mechanics, the outcome is one that anyone who values clear rulings with a minimum of ambiguity can celebrate.
Jim: Say, Marshall… Yes, this is Jim. Yes, I know it’s been a long time since I’ve posted on On Tap. Yes, I know my picture has been affixed with the label “HAVE YOU SEEN ME?” and is now circulating on milk cartons.
Anyway, one line of the post left me grinding my teeth, or even more than usual. You note the section that “limits the impact of everything Scalia had previously presented. It is the very definition of judicial modesty.”
Thus, I fear, strict constructionists will always be outgunned in the legal tug of war in a “4 vs. 4 with one swing vote” Court. The “living constitution” crowd rarely feels the need to make its decisions modest or limited; but even when the strict constructionists make a decision I agree with, they narrowly tailor the decision. It feels like even when we win, we lose.
Cam: I think it’s an interesting take, and it jibes with what I’ve been thinking. I told a co-worker this morning that I had convinced myself that we’d see a 9-0 ruling on an individual right (which we did, or at least the dissent doesn’t argue the individual right point), but that the split would come over how far the right goes. I actually had almost talked myself into believing that Justice Ginsberg would be writing for a 5-4 majority (along with Breyer, Stevens, Souter, and Kennedy) in declaring the 2nd Amendment an individual right but one that the D.C. laws don’t violate. I’m glad I was wrong. 
M. Night Shymalan’s “The Happening”:
The Crappening.
Read more if you want a longer review.
Have you heard about the Senate restaurants being privatized because they’re losing scads of money? Here’s the WaPo take on it:
Year after year, decade upon decade, the U.S. Senate’s network of restaurants has lost staggering amounts of money — more than $18 million since 1993, according to one report, and an estimated $2 million this year alone, according to another.
…
In the past 10 years, only 20 new items have been added to the Senate menus. So rare are new entrees that last year’s arrival of daily fresh-made sushi was treated in some senatorial quarters as if a new Nobu had opened in the Capitol dining room.Even revenue in the once-profitable catering division has been decimated, as senators have increasingly sought waivers to bring in outside food for special events with constituents and private groups.
…
“I know what happens with privatization. Workers lose jobs, and the next generation of workers make less in wages. These are some of the lowest-paid workers in our country, and I want to help them,” Sen. Sherrod Brown (D-Ohio), a staunch labor union ally, said recently. The wages of the approximately 100 Senate food service workers average $37,000 annually.Feinstein made another presentation May 7, warning senators that if they did not agree to turn over the operation to a private contractor, prices would be increased 25 percent across the board.
According to this website, the average fast food assistant manager earns $32,000 a year, which makes $37,000 seem like a pretty good wage.
I also like this quote:
The fact that the government can’t manage it’s own restaurant doesn’t make me feel very good about the government managing anything more difficult. Not that I’m saying that’s the easiest thing in the world to manage a restaurant. I can see where it would be difficult. But in the grand scheme of things, wouldn’t managing a restaurant be easier than, oh let’s say, managing social security? Or national security?
Amen, sister.
This is the craziest thing I’ve read yet on the Obamessiah.
After reading Kyle-Ann Shriver’s excellent piece on the hard-core left pinning their hopes on Obama, after hearing my neighbor talk about the “brilliance” of Barack Obama, after watching the YouTube videos and seeing a large number of people who are awfully zealous in their support of Obama, I’ve begun asking a question that I haven’t been able to answer.
What does Barack Obama expect of us? After all, we’re the ones we’ve been waiting for. Yes we can! We we we, all the way home. But surely our obligation to change and hope doesn’t end the moment we cast our ballot for the junior senator from Illinois. So what will the Obamaites do after their man wins in November (assuming that happens)?
To paraphrase John F. Kennedy: Ask not what your country can do for you, ask what you can do for Barack Obama!
So I’m asking. What does Obama expect of me, and frankly, what does he expect to do with the millions of glassy-eyed followers? Am I alone in thinking this is a fairly important question I haven’t heard asked?
Of course, you shouldn’t ask the question without looking for the answer. And the first thing I thought of was this post by Jim. In it, he quotes Michelle Obama:
Barack Obama will require you to work. He is going to demand that you shed your cynicism. That you put down your divisions. That you come out of your isolation, that you move out of your comfort zones. That you push yourselves to be better. And that you engage. Barack will never allow you to go back to your lives as usual, uninvolved, uninformed.
You have to stay at the seat at the table of democracy with a man like Barack Obama not just on Tuesday but in a year from now, in four years from now, in eight years from now, you will have to be engaged.
Assuming that Michelle Obama wasn’t simply pulling that thought out of thin air, what exactly does that mean? How will Obama try to accomplish this? Isn’t this worth asking?
I’ve been perusing Barack Obama’s “The Audacity of Hope” today, hoping to go beyond the typical campaign rhetoric and find out what Obama thinks about issues and ideals. His chapter on the Constitution is pretty interesting, full of all sorts of quotes.
Ultimately though, I have to side with Justice Breyer’s view of the Constitution-that it is not a static but rather a living document, and must be read in the context of an ever-changing world.
In this regard, Barack Obama sides with Woodrow Wilson, who derided the “Fourth of July sentiments” of original intent. As Powerline’s Scott Johnson points out, Wilson was the chief proponent of the idea that our Constitution changes, not through amendments, but through the passage of time. This mentality brought us the Espionage Act of 1917 and the Sedition Act of 1918, which made it illegal to criticize the war effort, the military, the government, or the form of government.
Obama also writes:
I’m reminded that deliberation and the constitutional order may sometimes be the luxury of the powerful, adn that it has sometimes been the cranks, the zealots, the prophets, the agitators, and the unreasonable-in other words, the absolutists-that have fought for a new order. Knowing this, I can’t summarily dismiss those posessed of similar certainty today-the antiabortion activist who pickets my town hall meetings, or the animal rights activist who raids a laboratory-no matter how deeply I disagree with their views. I am robbed even of the certainty of uncertainty-for sometimes absolute truths may well be absolute.
Anybody else think of Bill Ayers after reading that?
What’s interesting is that Obama speaks of individual rights, individual liberties, and the importance of the constitution. Yet he never mentions that if we want to change the constitution, there’s no need to try and “interpret” it in today’s terms. We can simply amend it. Yes, the process is long and arduous. But Obama seems to believe that we need national conversations about these issues, and it seems to me a constitutional convention would accomplish some of these goals. Why he never brings it up is a mystery to me.
Oh, one more quote that doesn’t have anything to do with the Constitution, except that he tells this story in concluding his chapter on that great document. He talks of meeting with Sen. Robert Byrd (who just endorsed him) in early 2005. He says:
We spoke about the Senate’s past, the presidents he had known, the bills he had managed. He told me I would do well in the Senate, but that I shouldn’t be in too much of a rush-so many senators today became fixated on the White House, not understanding that in the constitutional design it was the Senate that was supreme, the heart and soul of the Republic.
I guess he decided not to take that bit of advice to heart.
Via Rachel Lucas comes the story of a girl afraid of school, and the taxpayers willing to pay for her “acute school phobia”.
Rebecca Maykish is 17 and dreads school so much that she stopped going regularly.
In fourth grade.
Those days off have come at a price to her school district and the Palmerton taxpayers who support it. Since 2004, the Palmerton Area School Board has authorized payments of more than $45,000 to help Rebecca make up for her missed school days. Rebecca’s mother, Barbara, has used the money for at-home tutoring and education software purchases. She has also spent it on modeling classes for Rebecca, subscriptions to teen magazines, and travel to New York and Toronto with a summer camp.
All of the expenses were approved by the district.
That’s right. All because some doctor said she shouldn’t go to school. Of course now Rebecca and Babs are being fined by the school district for truancy, since they’ve reached the limit of the “compensatory education fund”.
But wait? A fine for not going to school? Why hasn’t Mommy Dearest simply started homeschooling her child?
Rebecca says she reads for pleasure, enjoying parodies such as ”Zen of the Zombie,” a mock self-improvement book. But her writing skills are weak and she can only do basic multiplication and division on downloaded worksheets. She estimates she spends three hours a day learning. Barbara Maykish has opted not to homeschool her, saying she worried that she would not be able to help Rebecca with her math and writing problems.
Rebecca said she has only one friend in Palmerton. She spent her 17th birthday in March with her mother, who is her only close companion. Her father lives in Peru.
So not only does she have “school phobia”, she’s got the education level of my 2nd grader. She only spends three hours a day “learning”, and mom’s not willing to help her out. She’s worried she wouldn’t be able to help? I’ve got news for ya, ma’am. Unless you too are as dumb as a fencepost… you’ll be able to help.
But wait! It gets better!
Barbara Maykish has been fined 111 times for truancy, with the earliest cases filed in 2003, a year before the compensatory education fund was set up.
She fought the fines, but has lost every case in Palmerton district court, and 10 appeals so far in Carbon County. Maykish, who is unemployed, has paid $1 so far. State law allows a jail term of five days for each unpaid fine, although no judge has threatened jail yet, said Serfass, the school district solicitor.
Payment schedules call for her to pay about $35 a month through the year 2037.
Maykish plans to appeal to federal court, arguing that Rebecca cannot be expected to go to a regular school.
That’s right… daughter’s not going to school and mom’s not going to work. Oh, but it gets even better.
Now that she is 17, Rebecca could legally drop out, but she says she wants to earn a diploma. She can attend Palmerton Area High School until she is 21, but she thinks a cyberschool or another boarding school would be better options.
Because her daughter has gone the past year without any formal education, Barbara Maykish said she thinks she might need another compensatory education fund.
That’s right. We need to give this precious little snowflake another $45,000. Otherwise, how will she continue to receive the valuable learning that a subscription to Seventeen magazine provides?
Here’s the quick lecture. This didn’t happen in a vacuum. The policies that allowed this situation to occur were approved at some point by a politician. Which ideology is responsible for this? The one that believes in individual rights and responsibilities, or the one that believes the government has an obligation to keep us “free from fear”?
Along the lines of this post… let’s take a look at what progressives want to do with our food.
There’s a fascinating look at the rules for caterers hoping to get the business of the Denver 2008 Host Committee when the Democrats hold their convention in town in August.
Among the rules:
- no fried foods
- no bottled water (or bottled soda for that matter)
- food served must be local, organic, or both
The reaction from caterers?
“I think it’s a great idea for our community and our environment. The question is, how practical is it?” asks Nick Agro, the owner of Whirled Peas Catering in Commerce City. “We all want to source locally, but we’re in Colorado. The growing season is short. It’s dry here. And I question the feasibility of that.”
You know, when the guy who runs “Whirled Peas Catering” thinks you’re being unrealistic, it’s a pretty good indication you’ve gone off the deep end.
Yes yes, I know. This isn’t a law. It’s just a Request for Proposal from some of the progressives running the convention. That’ll be very comforting to me when I read that Krispy Kremes across the country are being raided by the Department of Homeland Wellness and Nutrition.
So Barack Obama says we need to appease the world by changing our behavior.
Here’s the actual quote.
“We can’t drive our SUVs and eat as much as we want and keep our homes on 72 degrees at all times … and then just expect that other countries are going to say OK,” Obama said.
“That’s not leadership. That’s not going to happen,” he added.
As Mark Steyn points out, apparently “leadership” in Obama’s world is finding out what the world wants us to do… and then doing it.
Jim has an outstanding post that I believe goes right along with Obama’s statement about “global leadership”. First, the relevant quote from Obama:
“Strong countries and strong Presidents talk to their adversaries. That’s what Kennedy did with Khrushchev. That’s what Reagan did with Gorbachev. That’s what Nixon did with Mao. I mean think about it. Iran, Cuba, Venezuela – these countries are tiny compared to the Soviet Union.
And a key point from Jim:
The Soviet Union never killed 3,000 Americans in New York, Washington, and Pennsylvania by crashing jets into skyscrapers. The definition of a “serious threat” is different today than it was a generation ago.
These two quotes from Obama scare the crap out of me. They indicate a naivete about the ways of the world that I would expect from my seven-year old son, not a U.S. Senator and presidential candidate.
Obama’s firstly saying the rest of the world should be able to impose its vision of America on us. Fine. He doesn’t want us to be a superpower. But that will create a leadership vacuum, and there’s no shortage of countries out there who would love to step up. More importantly, there’s an ideology that will jump at the chance to exploit our weakness, and as Jim points out, they don’t need to be a massive country in terms of land or resources in order to do us immeasurable harm.
Considering some experts are calling a nuclear detonation in Washington, D.C. inevitable in the next two decades, a man who thinks of threats in terms of geographic size isn’t just naive. He’s dangerous to the future safety of my own children.
So we create a leadership vacuum our enemies will exploit, and then we will fail to recognize the threat our enemies pose to this country. Yeah, that sounds like a plan.
“Obama ‘08: Restoring America’s Place In the World… One Radioactive American City At A Time”