J. Balkin on Heller

Following up on the point made by his colleague Sanford Levinson, Balkin (author of combination originalist and living constitutionalism) sees the living constitutional permeating Scalia’s majority opinion.

Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans’ minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.

Like Lawrence v. Texas, Heller is another example of how the Supreme Court exercises judicial review in response to successful social and political mobilizations, regardless of what individual Justices understand themselves to be doing. The only difference is that in Heller, it is conservatives who have successfully changed public opinion, a change that has now become reflected in Supreme Court opinions.

Read the whole thing.

Final result:

No matter how much the arguments in Boumediene and Heller are dressed up in originalist garb, they show us that that living constitutionalism is alive and well. In each case the Supreme Court revises existing law to match changes in public opinion.

For Balkin’s very deft and penetrating analysis of the relationship between the Court, political movements, and the ballot box, here.

Sandford Levinson on Heller Vs. DC

A “dismaying performance” by the Court, on all sides.

Levinson points out that both John Paul Stevens (who authored the dissent, i.e. the liberal) and Antonin Scalia (authored the majority opinion, the conservative) assume an originalist reductionistic view of 2nd Amendment.  Stevens stating that the record unequivocally against, Scalia for.

Levinson:

If one had any reason to believe that either Scalia or Stevens were a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions are what is sometimes called “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other — and, presumably, their colleagues who signed each of the opinions — with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Neither Scalia nor Stevens pays any real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence.

This overly certain originalist position is particularly self-defeating for Scalia because:

What is especially ironic is that the strongest support for Scalia’s position comes from acknowledging that the Second Amendment, like the rest of the Bill of Rights, has been “dynamically” interpreted and has taken on some quite different meanings from those it originally had. Whatever might have been the case in 1787 with regard the linkage of guns to service in militias — and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge — there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship.

Doh.

New Kind of Movie Theater

A link sent to me by my dad.  This is being built in Florence, KY (just south of Cincinnati).

Extra-large seats with swivel trays for balancing made-to-order cocktails and pizzas. A waiter at the push of a button. Concierge service.

With today’s opening of the 14-screen Showcase Cinema De Lux in Florence, movie-goers can upgrade from a standard popcorn-and-candy experience to the upstairs Lux Level.

The location is the first new National Amusements cinema with the reserved-seating Lux Level concept. Guests pay $10 extra for a seat in one of the four Lux Level auditoriums; each of those tickets comes with a $5 voucher for food and beverage.

You’ll need the special ticket and have to be 21 or older to enjoy the upstairs lounge, which serves cocktails and a full menu.

Downstairs there’s a bar and grill, Ben & Jerry’s ice cream, Starbucks coffee, hot dogs, pizza and more. There’s also a baby grand piano, space for lounging, and two party rooms.

The General Construction Firm my dad works for is building this one.  Don’t quote me but I think my dad is leading the project.

Mind Blowing Factoid of the Day

Photo here.

Thus the average person in the world of 1800 was no better off than the average person of 100,000 BC.  Indeed in 1800 the bulk of the world’s population was poorer than their remote ancestors.  The lucky denizens of wealthy societies such as eighteenth century England or the Netherlands managed a material lifestyle equivalent to that of the Stone Age.  But the vast swath of humanity in East and South Asia, particularly in China and Japan, eked out a living under conditions probably significantly poorer than those of cavemen.

–Gregory Clark  A Farewell to Alms: A Brief Economic History of the World p.1

I’m reading this book now and it puts forth the very intriguing thesis that the Industrial Revolution (which is when humans finally broke through the Malthusian Trap detailed in the quotation) took place due to higher levels of reproduction among the higher English classes (higher survival rates as well) which was selected for in the population, bringing “down” in the class hierarchy the cultural attitudes necessary to a capitalist society.  I think he overplays this line as the most determinative factor (underplaying say the rule of law, private property, etc.) but it’s a brilliant text nonetheless.

J. Klein on Pakistan

Showing yet again who is actually the most dangerous nation on earth (hint not North Korea as even Bush understands nor Iran which he has not yet grasped [along with others]) but Pakistan. And that Obama was ahead of the curve on FP, as usual.

Pakistan is clearly the most difficult, delicate military/diplomatic problem we now face. It will take a combination of intense diplomatic pressure backed by the judicious use of military action–not occupation, but action–to deal with this situation. It’s time to return our attention to the War of Necessity, against those who attacked us in 2001.

Read the whole thing.

DC Hand Gun Ban Case

With the SCOTUS ruling today, I thought it would be good to revisit a Blogginghead between Megan McArdle and Mark Kleinman.  Kleinman has proposed what I think is the best grand compromise position on firearms out there.  They discuss in light of the DC hand gun case (from 2007).

Dingalink to the relevant section here.

The deal is a national carry permit and shell casing (that’s the deal for the pro-gun side) along with the closing of the firearm show private (non-background check) sale, firing a bullet from every gun made with serial number keeping a national database of everyone, and a training course to earn a permit like driver’s licenses (for the pro-control crowd).

The counterintuitive fact (to both the left and right) is that increasing gun ownership in the hands of law abiding citizens neither increases (contra left) nor decreases (contra right) crime.

Not like I imagine that ever happening, it would be too rational and rationality in this context is in short supply sadly on all sides.  But anyway that is a legislative issue, not something for the Courts.

The ruling does leave this opening:

In a concluding paragraph to the his 64-page opinion, Scalia said the justices in the majority “are aware of the problem of handgun violence in this country” and believe the Constitution “leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns.”

Or there is always the Family Guy Theory of the 2nd Amendment.

Vid of Zakaria on Conservative Appeasement Charge

Great little piece of reporting by Fareed, h/t to Matthew Yglesias, who tips the hat to Andrew Sullivan).

Ygelsias’ comment:

One thing I say in my book and that I’ve especially tried to emphasize in book talks I’ve given is that the country was basically fortunate during the Cold War years in that at key moments Republican Presidents Eisenhower, Nixon, and Reagan wound up rejecting the advice of the conservative movement that brought them to power — Ike in rejecting “rollback,” Nixon in pursuing détente, and Reagan in sitting down with Gorbachev — whereas George W. Bush has come much closer to hewing to the straight conservative ideal and the results have been disastrous.

While Ron Paul reminded us of the peace/isolationist wing of the Republican Party (e.g. Robert Taft), it is also important to remember this black/white good/evil strain runs straight through Conservative Foreign Policy well before the neoconservatives (though they arguably the most vociferous and undoubtedly the most powerful).

The book on that subject is Peter Scoblic’s, Us vs. Them persuasively showing that this strain of conservatism (mythic meme) is bound to a black/white us/them dangerously naive view of the world.  The proof of course is Newt Gingrich railing against Reagan for meeting with Gorby as being 1938 all over again.  So looks Obama could be in good company.

The obvious point is when you recall this, you realize these dudes can’t be taken seriously.  Not all conservatives and Republicans mind you (again Yglesias’ point), just the ones from this strain.  And while Reagan appropriate the language when he needed to he was not that dumb (at least when it came to a nuclear power, as opposed to say Central American Civil Wars), but McCain is not.  McCain wants to rattle sabers with Russia and China (both nuclear powers), is against the deal with North Korea (another holder of a nuke).  That is it’s not just talk with McCain, he actually believes it.

The Candidates and Muslim Americans: Worse and Worser

Team Obama has (shamefully imo) asked Rep. Keith Ellison (first Muslim American member of Congress) to cancel an event at a mosque. Presumably I guess they could claim church/mosque-separation status but given Obama giving sermons at black churches, probably not.

This comes right on the heels of his handlers moving two young women out of a photo op because they were wearing hijabs. Obama later apologized and is shown in a photo with another woman similarly dressed. In walking the fine line between saying that he is not a Muslim and that such rumors are beneath our politics while at the same time making clear that being a Muslim in America is not a smear. It is the prejudice surrounding the charge that is at issue.

So right now they are leaning far too much in the other direction and alienating Muslim American voters. But since there are at most 6 million in the US, they get the shaft.

Now Obama’s dissembling is bad (kind of the same position he seems to have relative to gays and lesbians), so let’s look at his opponent on the issue.

And there sadly it gets worse.

People probably don’t remember this kind of inside baseball from the primaries but this might stoke some recollection, from an interview with Beliefnet summarized in this Daily News piece:

GOP presidential candidate John McCain says America is better off with a Christian President and he doesn’t want a Muslim in the Oval Office.

Here is the McCain quotation:

“I admire the Islam. There’s a lot of good principles in it,” he said. “But I just have to say in all candor that since this nation was founded primarily on Christian principles, personally, I prefer someone who I know who has a solid grounding in my faith.”

I admire the Islam? The Islam? WTF? The kids today with the intertubes, the sports, and the Islam.

That’s some straight talk—as in Muslims need not apply. You may rent space in this white Christian nation just don’t screw around (like show up at an airport with funny dresses or a beard) and don’t expect anything from us in return.

That would be straight talk except that McCain himself doesn’t actually believe it:

McCain later clarified his remarks, saying, “I would vote for a Muslim if he or she was the candidate best able to lead the country and to defend our political values.”

Though he still plays the social conservative theocratic card:

In the interview, the senator also said the “Constitution established the United States of America as a Christian nation.”

So either he believes that pile of steaming horse dung and he should be disqualified for not understanding a very clear point of the Constitution (pluralistic, non-state church union order) OR he’s just a pandering politician sucking up to the religious right (which is very Maverick btw).

Tactically since McCain repeatedly states that the “transcendent issue” of our time is Islamic extremism, the American Muslim community which has rejected the takfiri/caliphate/bin Laden heresy (which it is) would be his BFF or at least deserve a special shout out for job well done. But we all know that ain’t gonna happen.

Leaving the “alternative” as Obama’s wink-wink nudge nudge “just let me play this game through the election guys, you cheese it during that time, and I promise I’m really on your side but I can’t admit publicly during this campaign because you know I’m already black and liberal one more is three strikes and I’m out” thing.

Ugh and double ugh.

The full Beliefnet interview for those interested here.

Update I:  Muslims, gays, and Scarlett Johannson? Come on that crosses a line man.  He just lost the horny 18-24 year old Maxim reading sector of the electorate.

CJ’s Nintendo Theory of Iraq

This was the game box on which I was raised–most underrated/favorite game (Battle of Olympus). For those of you remember this bad boy prior to the great takeoff of video consoles, recall the reset button.

You hit it and it reset. Except if you held it in (and kept holding it in) in which case the screen went white and stayed so.

The US hit the reset button on Iraq. The Iraqi state, Iraq as a country was reset and is effectively gone. The US with the surge strategy particularly but with the occupation more generally is simply holding its finger on the reset button.

Politically. In terms of an end game/new equilibrium post-Saddam. The screen is simply white.

The destruction of the Iraqi police state under Saddam left a vacuum. Nature would like to see that vacuum filled. To add a second analogy. The existence of 150,000 or so troops in Iraq acts as a block or sealant around the vacuum. It itself doesn’t fill the vacuum but effectively prevents anyone from filling it either.

So when the news is that violence is down that is because no one is able to move into the vacuum and try to rejigger the system and gain political power. The country formerly known as Iraq is know simply run by warlords, militias, and fiefdoms. The Prime Minister and his crew being just one warlord among many. Just our warlord I suppose.

No doubt the sealant prevents violence because the characters would otherwise bum rush the vacuum would certainly come in Wild West Style guns blazing in all directions.

McCain to return to the original analogy is simply a continuation of holding his finger on the reset button keeping the country in a state of suspended political animation. It no doubt would help certain of the militias/warlords to relatively strengthen their position but not to any degree of lasting stability I would bet. Any government created via the US occupation is unsustainable and will not win the popularity of the people. It may become a de facto new dictatorship/strongman which is the only way the country known as Iraq (minus a federalization system) can be patched back together seems to me.

Obama will take his finger off the button. What will happen on the far side of the reset is anyone’s guess. Sometimes you will recall the game still didn’t come back on, other times it would and quickly freeze up, or play with lines running down/across the screen.

But for McCain since victory is defined solely in terms of military battles/casualties (theirs up, ours down) this isn’t an issue. The political is not an issue for him in Iraq. It’s a perfect closed-system and his crowd. They stay forever always winning battles (which the US army is going to do) and therefore victory is just within reach–never mind that victory in battles has nothing to do with political achievement/stability, has not this entire war and will not with a US occupation (see above). If Obama wins and lets his finger off the reset, undoubtedly some hell will be released and then McCain & Co. can blame the “loss” on the defeatist Democrats. In a war they (the Republicans) started and have never understood.

But no one knows what will happen on the far side of the finger being released–even slightly. There are guesses, some apocalyptic, some best case (me, somewhere in between but leaning more towards conflagration), but nobody knows.

Best Self-Promotion Ever?

Courtesy Reihan and Ross discussing their new book Grand New Party on Bloggingheads.

The plug via this dingalink.

Best line:

“No one gets hurt. We are not glorifying violence by any means. This is very child appropriate….It’s like a choose you own adventure book.”

The whole diavlog here.

On a more serious note, they take seriously the idea of income inequality (maybe the first conservatives to do so as they explain), wage stagnation, and class stratification. They see the issue more in terms of inequality in terms of marriage patterns and call for a pro-family economic policy at the same time believing in a great deal of bottom up human transformative power rather than the creation (a la the left) of new bureaucracies and governmental regulation. Looking forward to reading it.

For some more of his Reihan’s stylings, below: