Heller: A Fork In the Road

Sundown at Coffin Rock
by Raymond K. Paden

The old man walked slowly through the dry, fallen leaves of autumn, his practiced eye automatically choosing the bare and stony places in the trail for his feet. There was scarcely a sound as he passed, though his left knee was stiff with scar tissue. He grunted occasionally as the tight sinews pulled. Damn chainsaw, he thought.

Behind him, the boy shuffled along, trying to imitate his grandfather, but unable to mimic the silent motion that the old man had learned during countless winter days upon this wooded mountain in pursuit of game. He's fifteen years old, the old man thought. Plenty old enough to be learning. But that was another time, another America. His mind drifted, and he saw himself, a fifteen-year-old boy following in the footsteps of his own grandfather, clutching a twelve gauge in his trembling hands as they tracked a wounded whitetail.

The leg was hurting worse now, and he slowed his pace a bit. Plenty of time. It should have been my own son here with me now, the old man thought sadly. But Jason had no interest, no understanding. He cared for nothing but pounding on the keys of that damned computer terminal. He knew nothing about the woods, or where food came from...or freedom. And that's my fault, isn't it?

The old man stopped and held up his hand, motioning for the boy to look. In the small clearing ahead, the deer stood motionless, watching them. It was a scraggly buck, underfed and sickly, but the boy's eyes lit up with excitement. It had been many years since they had seen even a single whitetail here on the mountain. After the hunting had stopped, the population had exploded. The deer had eaten the mountain almost bare until erosion had become a serious problem in some places. That following winter, three starving does had wandered into the old man's yard, trying to eat the bark off of his pecan trees, and he had wished the "animal rights" fanatics could have been there then. It was against the law, but old man knew a higher law, and he took an axe into the yard and killed the starving beasts. They did not have the strength to run.

The buck finally turned and loped away, and they continued down the trail to the river. When they came to the "Big Oak," the old man turned and pushed through the heavy brush beside the trail and the boy followed, wordlessly. The old man knew that Thomas was curious about their leaving the trail, but the boy had learned to move silently (well, almost) and that meant no talking. When they came to "Coffin Rock," the old man sat down upon it and motioned for the boy to join him.

"You see this rock, shaped like a casket?" the old man asked. "Yes sir." The old man smiled. The boy was respectful and polite. He loved the outdoors, too. Everything a man could ask in a grandson ....or a son.

"I want you to remember this place, and what I'm about to tell you. A lot of it isn't going to make any sense to you, but it's important and one day you'll understand it well enough. The old man paused. Now that he was here, he didn't really know where to start.

"Before you were born," he began at last, "this country was different. I've told you about hunting, about how everybody who obeyed the law could own guns. A man could speak out, anywhere, without worrying about whether he'd get back home or not. School was different, too. A man could send his kids to a church school, or a private school, or even teach them at home. But even in the public schools, they didn't spend all their time trying to brainwash you like they do at yours now." The old man paused, and was silent for many minutes. The boy was still, watching a chipmunk scavenging beside a fallen tree below them.

"Things don't ever happen all at once, boy. They just sort of sneak up on you. Sure, we knew guns were important; we just didn't think it would ever happen in America. But we had to do something about crime, they said. It was a crisis. Everything was a crisis! It was a drug crisis, or a terrorism crisis, or street crime, or gang crime. Even a 'health care' crisis was an excuse to take away a little more of our rights." The old man turned to look at his grandson.

"They ever let you read a thing called the Constitution down there at your school?" The boy solemnly shook his head. "Well, the Fourth Amendment's still in there. It says there won't be any unreasonable searches and seizures. It says you're safe in your own home." The old man shrugged. "That had to go. It was a crisis! They could kick your door open any time, day or night, and come in with guns blazing if they thought you had drugs ...or later, guns. Oh, at first it was just registration -- to keep the guns out of the hands of criminals! But that didn't work, of course, and then later when they wanted to take 'em they knew where to look. They banned 'assault rifles', and then 'sniper rifles', and 'Saturday night specials.' Everything you saw on the TV or in the movies was against us. God knows the news people were! And the schools were teaching our kids that nobody needed guns anymore. We tried to take a stand, but we felt like the whole face of our country had changed and we were left outside."

"Me and a friend of mine, when we saw what was happening, we came and built a secret place up here on the mountain. A place where we could put our guns until we needed them. We figured some day Americans would remember what it was like to be free, and what kind of price we had to pay for that freedom. So we hid our guns instead of losing them."

"One fellow I knew disagreed. He said we ought to use our guns now and stand up to the government. Said that the colonists had fought for their freedom when the British tried to disarm them at Lexington and Concord. Well, he and a lot of others died in what your history books call the 'Tax Revolt of 1998,' but son, it wasn't the revolt that caused the repeal of the Second Amendment like your history book says. The Second Amendment was already gone long before they ever repealed it. The rest of us thought we were doing the right thing by waiting. I hope to God we were right."

"You see, Thomas. It isn't government that makes a man free. In the end, governments always do just the opposite. They gobble up freedom like hungry pigs. You have to have laws to keep the worst in men under control, but at the same time the people have to have guns, too, in order to keep the government itself under control. In our country, the people were supposed to be the final authority of the law, but that was a long time ago. Once the guns were gone, there was no reason for those who run the government to give a damn about laws and constitutional rights and such. They just did what they pleased and anyone who spoke out...well, I'm getting ahead of myself."

"It took a long time to collect up all the millions of firearms that were in private hands. The government created a whole new agency to see to it. There were rewards for turning your friends in, too. Drug dealers and murderers were set free after two or three years in prison, but possession of a gun would get you mandatory life behind bars with no parole.

"I don't know how they found out about me, probably knew I'd been a hunter all those years, or maybe somebody turned me in. They picked me up on suspicion and took me down to the federal building."

"Son, those guys did everything they could think of to me. Kept me locked up in this little room for hours, no food, no water. They kept coming in, asking me where the guns were. 'What guns?' I said. Whenever I'd doze off, they'd come crashing in, yelling and hollering. I got to where I didn't know which end was up. I'd say I wanted my lawyer and they'd laugh. 'Lawyers are for criminals', they said. 'You'll get a lawyer after we get the guns.' What's so funny is, I know they thought they were doing the right thing. They were fighting crime!"

"When I got home I found Ruth sitting in the middle of the living room floor, crying her eyes out. The house was a shambles. While I was down there, they'd come out and took our house apart. Didn't need a search warrant, they said. National emergency! Gun crisis! Your grandma tried to call our preacher and they ripped the phone off the wall. Told her that they'd go easy on me if she just told them where I kept my guns." The old man laughed. "She told them to go to hell." He stared into the distance for a moment as his laughter faded.

"They wouldn't tell her about me, where I was or anything, that whole time. She said that she'd thought I was dead. She never got over that day, and she died the next December."

"They've been watching me ever since, off and on. I guess there's not much for them to do anymore, now that all the guns are gone. Plenty of time to watch one foolish old man." He paused. Beside him, the boy stared at the stone beneath his feet.

"Anyway, I figure that, one day, America will come to her senses. Our men will need those guns and they'll be ready. We cleaned them and sealed them up good; they'll last for years. Maybe it won't be in your lifetime, Thomas. Maybe one day you'll be sitting here with your son or grandson. Tell him about me, boy. Tell him about the way I said America used to be." The old man stood, his bad leg shaking unsteadily beneath him.

"You see the way this stone points? You follow that line one hundred feet down the hill and you'll find a big round rock. It looks like it's buried solid, but one man with a good prybar can lift it, and there's a concrete tunnel right under there that goes back into the hill."

The old man stood, watching as the sun eased toward the ridge, coloring the sky and the world red. Below them, the river still splashed among the stones, as it had for a million years. It's still going, the old man thought. There'll be someone left to carry on for me when I'm gone. It was harder to walk back. He felt old and purposeless now, and it would be easier, he knew, to give in to that aching heaviness in his left lung that had begun to trouble him more and more. Damn cigarettes, he thought. His leg hurt, and the boy silently came up beside him and supported him as they started down the last mile toward the house. How quiet he walks, the old man thought. He's learned well.

It was almost dark when the boy walked in. His father looked up from his paper. "Did you and your granddad have a nice walk?"

"Yes," the boy answered, opening the refrigerator. "You can call Agent Goodwin tomorrow. Gramps finally showed me where it is."

Perhaps a bit further down the road, now.

But where would we be now if not for Roberts and Alito? Despite our President's many sins... he saved us.

Heller Post-Mortem Follow-Up

Apparently Justice Breyer "shares" my concern, in a manner of speaking. Although he seems more worried that it will cause new weapons NOT to be banned....

Nor is it at all clear to me how the majority decides which loaded "arms" a homeowner may keep. The majority says that that Amendment protects those weapons "typically possessed by law-abiding citizens for lawful purposes." Ante, at 53. This definition conveniently excludes machineguns, but permits handguns, which the majority describes at "the most popular weapon chosen by Americans for self-defense in the home." Ante, at 57, see also ante, at 54-55. But what sense does this approach make? According to the majority's reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority's reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

BREYER, J., dissenting at 42. (emphasis added)

Heller Post-Mortem: Wagging the Dog

As I mentioned in the previous post, the individual vs. collective rights issue was a constitutional no-brainer. The only surprise there was that it went 5-4 over this point.

We also didn't get a standard to apply. I was predicting intermediate scrutiny, which in hindsight was quite stupid of me. The smart move for the Court to make was to punt the standard to the lower courts, so they get a chance to see how it goes before they pick a rule with the force of stare decisis. So my predictions get no points.

I wish I could say I was pleased with the decision, but the more I think about it, the more I'm troubled. The problem is in Justice Scalia's definition of the "arms" that are protected by the RKBA. Consider the following passages:

We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia]service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same."

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."
It may be objected that if weapons that are most useful in military service--M-16 rifles and the like--may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, would would bring the sorts of lawful weapons that possessed at home to militia duty. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

The problem here is the limiting of the RKBA to apply to weapons "in common use" by civilians at the time. I preferred the straight up Miller approach, which implied that weapons that are "any part of the ordinary military equipment" or those the use of which would "contribute to the common defense" were within the scope of protection. The difference between these two standards is very slight, but has one crucial difference: The government doesn't get to decide which weapons "contribute to the common defense," but it absolutely can determine which weapons are "in ordinary use" by civilians. Case in point: If not for the National Firearms Act of 1934, weapons such as the M-16 and MP-5 would be in common use by civilians today. But because they are severely regulated, these weapons are not in ordinary use.... and are therefore ineligible for protection. The tail has wagged the dog. Looking prospectively, to ban weapons the government need only pick a weapon not in ordinary use (perhaps, for example, .50 caliber rifles), or regulate a weapon or class of weapons until the people stop ordinarily using it, making that new weapon or class of weapons eligible to be banned.

So, while on its face Justice Scalia and the majority have appeared to prevent the "extinction" of the Second Amendment, they have provided the government with a method to narrow the scope of the Second Amendment until it collapses into irrelevance.

Heller Predictions

A decision is expected in less than two hours, so I need to get on the record quickly. Here goes:

Judgment: Affirmed
Holding: RKBA is individual right, not collective.
Rule: Intermediate scrutiny; similar to the 1st Amendment's Time, Place, and Manner standard. The government must prove that the regulation serves an important/overriding/compelling interest not related to the suppression of gun ownership/use rights, and the regulation must be reasonably tailored to support that interest without unnecessarily harming the RKBA.
Application: DC ban does not pass scrutiny.

Of these, I think the Rule is the only outcome that's even in doubt. As long as there is an individual RKBA, the DC ban absolutely violates it. And the Supremes don't fail at reading comprehension enough not to find an individual RKBA.

For what it's worth, I hope we get strict scrutiny instead, but I don't think the Court will go there. Ordinarily SS would mean that 90%+ of the challenges against gun laws would win, which is simply not politically acceptable to the Court. And if they found a way to articulate the RKBA in such a way that many laws could pass SS, then SS itself would be harmed, and with it protections for other rights. So my bet is on intermediate scrutiny, which in all likelihood will only lead to the downfall of the most extreme gun control laws.

Linked: If Obama Wins, Blame Ditka

From rockin' it right.

NBC Sports: Quit your QQing!

Full disclosure: I'm from Chicago, so as a matter of principle, I oppose the Red Wings. I'm also tired of them being so good year after year. While I respect the team for their fundamentals and style of play (which has cleaned up a lot since the Blackhawks were a serious rival to them), I support the Penguins for the Cup this year.

With that note aside, I gotta gripe about NBC's whining about two goaltender interference calls in OT last night. They said there was no consistency and implied they were "soft" calls. They flat out called them wrong calls, and said that if they had led to goals it would have been a terrible way to decide the game.

NBC, kindly shut the hell up. First of all, everyone knows consistency is a problem. And YOU are not consistent about griping about that inconsistency. We all know that obstruction hooks, interference, holds, etc. go uncalled all the time b/c the ref doesn't see it or doesn't think it was substantial enough to merit a penalty. What is substantial enough varies from one ref to the next, or sometimes from one period to the next with the same ref. Yet, you insist on saying things like "whenever you get the stick horizontal across a player's body, there will be a penalty." Bullshit. The refs try to do a good job, but they're not perfect.

But these two calls weren't bad or inconsistent by any means. They were easy to make and clearly right. Both involved an offensive player knocking the goaltender around inside the goal crease. It's clear cut. It doesn't matter that an offensive player is expected to drive to the net. He can do so without going in the crease. So what about all those other times when there is contact between a player and the goaltender in the crease when there is no call? That's easy. Those are non calls because almost invariably, the offensive player wound up in the goal crease because a defenseman shoved the opposing player into the crease or knocked him on his ass causing him to slide into the crease. Neither Detroit player that was called last night had any help from the defense.

Easy. Obvious. Stop your whining.

Red Meat on Creation

Musings on the Obama Conspiracy Theories and Impeachable Offenses

I think the Obama conspiracy theories are one of the saddest things about this election cycle. You know, the ones about how he's really not only secretly a Muslim, but is also hell-bent on getting into government so that he can sacrifice us to our enemies. <> But, with the new CBU ban treaty being the current controversy within military circles, it got me thinking...

I guess I should backtrack first before I get going. I think the CBU ban is a horrible idea. I'm especially disappointed in the UK, Canada, and Japan. I'm also concerned about other states, such as Italy, being member parties because US aircraft are based there and might be prohibited from storing CBUs at those bases. For the most part, the states that signed up fall into two categories: those who are likely to have their ground forces attacked by CBUs, or those who have no use for them anyways (either because they are unlikely to find themselves in a conflict or would be getting their air support flown by the US anyways). In other words, the treaty was in their interest or the effect on their military readiness was negligible.

On the other hand, states not signing up tended to be those who shared a border with potentially hostile states (ROK, DPRK, India, Pakistan, Saudi Arabia, Iraq, Iran, Afghanistan) or who were likely to use airpower to project power into an adversary's territory (US, China, Russia). Realpolitic at its finest.

So obviously, this ban is not for us. CBUs are an essential part of our warfighting doctrine, and have found use in Vietnam, Praying Mantis, Desert Storm, the Balkan conflicts, and the current war on terror. Giving them up with be an enormous sacrifice, and with our troops currently in harms way in two states, the sacrifice would quickly translate from a loss of efficiency to a loss of lives. So it shouldn't come as any surprise that when this issue was brought up in the Senate, it was soundly defeated by something like 70 to 30--only Alan Keyes could do worse.

But here's the rub: Barack Obama was one of those 30.

Forget Rev. Wright, if there was any reason not to vote for this guy, this is it. That's pretty much proof positive that he either doesn't know dick about being commander in chief, or he's too idealistic to care. But somehow I doubt this sort of thing is sexy enough for the media, so it won't be a major issue. And he probably will be able to beat McCain. So what happens if he gets into office and actually issues an executive order removing CBUs from service?

He'd be sacrificing an extremely valuable combat capability, and the lives that capability saves, for what? Warm fuzzies? It would be selling out our soldiers and our national interest, and that's tantamount to treason in my mind. If that were to happen, I'd probably join up with the conspiracy theorists in calling for his impeachment.

Now, I have no doubt that such an order is a cause for removal from office, both as a matter of democratic principle (think of it as a recall, people wouldn't have voted for him if they thought he would do that so they get rid of him before he can do more damage) and as a matter of justice (even if its just tantamount to treason, it's still a high crime or misdemeanor). The problem is the precedent it sets. We already have to deal with all sorts of petty impeachment demands. And for all it's stupidity, the CBU ban is at its core an arms-control agreement, not much different than the nuclear deals which most could agree are probably good deals to make. Would any such deal potentially cost a CinC his/her job? Well I sure hope not. But it seems to me that the key difference is national interest. A good deal is in our national interest. A treasonous one is in our enemies' interests.

If courts were inclined to decide such questions they could probably handle it. Of course, this isn't a question for them, but for Congress, which clearly has its head way up its ass on questions of impeachment. Take the House during the Clinton fiasco. They were the prosecutors. They had to decide whether to press charges over a rather minor transgression. IMO, they chose poorly. Then take the Senate, which was supposed to be the jury. The factual questions at issue wasn't difficult at all. Did he perjure himself? Yes. Is it a high crime or misdemeanor? Perjury is a felony, so yes. Guilty. Confusing their role with that of the House, they got that wrong too. The the moral of the story is that the process is entirely political and even the political decisions (such as the call to impeach Clinton) suck. So at the end of the day, I really don't trust Congress to handle the issue properly if it ever came to them. Or any impeachment for that matter.

Maybe a better system would be to let a real jury handle impeachment trials. Although I guess the tendency for ordinary people to vote to convict just to feel powerful might be overwhelming... But hey, maybe a recall referendum wouldn't be such a bad idea. Make it take a supermajority to prevent it from undermining the stability of the system. Such a system probably would have led to Bush's removal, but that's not necessarily a bad thing. You'd still have to choose a replacement, and I doubt a replacement that could be agreed upon wouldn't choose to cut and run in Iraq and really screw us. He/she probably would have just knocked off all the illegal shit like extraordinary renditions and extrajudicial wiretappings, etc. Eh, Probably wishful thinking, though. We are, as a whole, pretty damn stupid....