It’s nuts to claim the 2nd Amendment does not protect our right to an AR-15 rifle

A well educated electorate, being necessary to the proper functioning of a democratic republic, the right of the people to buy and read books, shall not be infringed. — David Kopel

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.  — Second Amendment, U.S. Constitution

If David Kopel’s hypothetical were a law or an amendment to the Constitution would anyone believe the right to buy and read books was a collective right only, and that it did not confer any rights upon individual citizens? [Actually, the right to life and to the pursuit of happiness made effective by keeping and bearing arms and reading books, and a slug of other rights, are not bestowed upon us by the Constitution. They are natural rights bestowed upon us by our creator. The Constitution and the Declaration of Independence recognizes these rights and prohibits the government from infringing on them]

The “right of the people” in the 2nd Amendment refers to the rights of individuals just as do those same words in the 1st, 4th, 9th and 10th Amendment. All Federal gun cases from the 19th Century either said so explicity or implied so by the factual context of each case. In the 20th Century when classical liberalism gave way to the mindset of modern “progressivism” the true believers looked for any hook they could find to reach the result they wanted, so it became fashionable to claim that the right keep and bear arms was only a collective, not an individual right. The Supreme Court’s 2008 Heller case set things right and it can no longer by argued that the 2nd Amendment protects anything other than an individual right to keep and bear arms.

The nutters in Maryland recently outlawed possession of AR-15 rifles, and the 4th Circuit Court of Appeals has blessed them for it. The Maryland political thugs, with the approval of the 4th Circuit, reasoned unreasonably that the AR-15 is a military weapon and therefore not covered by the Second Amendment. They either didn’t know or didn’t care that Supreme Court Miller case in 1939 found that a short-barrelled shotgun was not covered by the Second Amendment precisely because it was not a military weapon.

The 1939 Supreme Court, the 4th Circuit, and the thugs in Maryland State government were all wrong on their facts. Shotguns were used by the U.S. MIlitary in WW I and the AR-15 is not used by the military today. The military rifle is the full auto select-fire M16. The AR-15 is a semi-auto civilian version. It could be used by the military but that would make no difference to the 2nd Amendment because this rifle is the modern equivalent of the muskets used by citizens in 1789. It is in common use by citizens.  In fact, it is in such common use that more copies of this rifle are sold annually than the number of Ford F-150 pickup trucks, which is the most popular vehicle not just of trucks but of all passenger vehicles in America.

The Heller decision said guns in common use are protected. Millions of AR-15 rifles are sold in the United States every year. Tens of millions of them are in common use today. They’re used for target shooting, hunting and personal defense. They are almost never used to commit crimes. Criminals prefer handguns.

 

 

United Airlines breached its contract by removing David Dao from his seat

Here’s why, from Roy Spencer:

Because the man had a legal right to keep his seat.

Under United’s Contract Of Carriage (COC) rules (which follow federal rules), a passenger may only be bumped from a flight before they board (Rule 25). After they have taken their seat, Rule 21 is in effect, which would allow security to forcibly remove the passenger for many reasons — none of which includes accommodating last minute needs for a seat for other airline employees (or even overbooking).

The flyer is in a contractual relationship with the airline, and each has rights and responsibilities under that contract. United Express violated the terms of the contract, and injured the passenger in the process.

Yes, Dr. Dao has a shady history. Under the facts here, that is not relevant.

A Primer On Proper and Improper Judicial Reasoning

Kimberly Hively was canned from her adjunct professer job at Ivy Tech College. She’s openly lesbian and figures that’s why she was fired. She filed a lawsuit under the Civil Rights Act of 1964 in hopes of getting her job back, with back pay. Maybe even some puntive damages. You can get that in civil rights cases. Attorneys fee too. Or so she thought. But a trial court pointed out that while the Civil Rights Act does offer a remedy for discrimination on the basis of sex, the courts have long held that since it doesn’t say anything about sexual orientation, which is a trait distinct from one’s sex as either a man or a woman, the statute doesn’t cover it.

But never fear Kimberly, some activst judges are here to help. The case is Kimberly Hively v. Ivy Tech College of Indiana, U.S. Court of Appeals, 7th Circuit, April 4, 2017.

Chief Judge Diane Wood delivered the majority opinion, and opened with this:

WOOD, Chief Judge. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discrim- inate on the basis of a person’s “race, color, religion, sex, or national origin … .” 42 U.S.C. § 2000e-2(a). For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination. We therefore reverse the district court’s judgment dismissing Kimberly Hively’s suit against Ivy Tech Community College and remand for further proceedings.

Do you see what they just did? The statute doesn’t cover the particular facts of your case, but that’s OK, we’ll fix it for you Kimberly. We won’t let the mere words of the statute deter us, and we won’t let a few decades of stare decisis get in our way either. We are Judges and we don’t intend to be the lackies of legislators. If they won’t act, we will!

Judge Richard Poser agrees wholeheartedly, but he’s much more honest about what he’s doing:

A diehard “originalist” would argue that what was believed in 1964 defines the scope of the statute for as long as the statutory text remains unchanged, and therefore until changed by Congress’s amending or replacing the statute. But as I noted earlier, statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning. Think for example of Justice Scalia’s decisive fifth vote to hold that burn- ing the American flag as a political protest is protected by the free-speech clause of the First Amendment, provided that it’s your flag and is not burned in circumstances in which the fire might spread. Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990). Burning a flag is not speech in the usual sense and there is no indication that the framers or ratifiers of the First Amendment thought that the word “speech” in the amendment embraced flag burning or other nonverbal methods of communicating.

Or consider the Supreme Court’s holding that the Fourth Amendment requires the issuance of a warrant as a precon- dition to searching a person’s home or arresting him there. E.g., Johnson v. United States, 333 U.S. 10, 13–14 (1948). There is nothing in the amendment about requiring a warrant ever. All that the amendment says about warrants is that general warrants, and warrants that are vague or issued without probable cause, are invalid. In effect the Supreme Court re- wrote the Fourth Amendment, just as it rewrote the First Amendment in the flag-burning cases, and just as it rewrote the Sherman Act, and just as today we are rewriting Title VII. We are Blackstone’s heirs.

Umm,  excuse me Judge, that’s all a lot of…Well, one need not be a “diehard” originalist to believe himself bound by the actual words Congress used in the statute. Any old ordinary originalist would think so. Scalia didn’t have to re-write the law to decide the flag burning case. Speech and non-verbal conduct clearly meant as communication are not distinctly separate things. Requiring a warrant for a search is not too much of a stretch because the 4th Amendment speaks to warrants and says they require a showing of probable cause. It would seem odd that the language of the 4th Amendment could be understood as not requiring a warrant for a search. The stretch of the 4th Amendment that has occurred is to be found in all the exceptions to the warrant requirement that courts have labored to create and justify. Finally, to say that the 2nd Amendment originally did not protect an individual right to keep and bear arms is ridiculous.  Just one reason among many is that the words “of the people” that are contained in the 2nd Amendment clearly refers to the rights of individuals, just as it does in the 1st, 4th, 9th and 10th Amendments.

But thank you Judge Posner, for your honesty. Thank you for admitting that you and your colleagues chose to rewrite the Civil Rights Act of 1964 in order to reach the result you wanted.

Now comes the wisdom of a good judge:

Judge Diane Sykes in Dissent:

SYKES, Circuit Judge, with whom BAUER and KANNE, Circuit Judges, join, dissenting. Any case heard by the full court is important. This one is momentous. All the more reason to pay careful attention to the limits on the court’s role. The question before the en banc court is one of statuto- ry interpretation. The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion. So does Judge Posner in his concurrence. Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted. The result is a statutory amendment courtesy of unelected judges. Judge Posner admits this; he embraces and argues for this conception of judicial power. The majority does not, preferring instead to smuggle in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents. Either way, the result is the same: the circumvention of the legislative pro- cess by which the people govern themselves.

Respect for the constraints imposed on the judiciary by a system of written law must begin with fidelity to the tradi- tional first principle of statutory interpretation: When a statute supplies the rule of decision, our role is to give effect to the enacted text, interpreting the statutory language as a reasonable person would have understood it at the time of enactment. We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.

Read the whole thing, particularly Judge Sykes’ Dissent. It’s a primer on what is the proper judicial function in a free society. Judge Sykes, by the way, is on Trump’s list of 20 judges he’d consider for the Supreme Court. Imagine if she replaced Ruth Bader Ginsburg.

From Differing Views on the Role of the Judge, by John M. Walker Jr:

Justice Oliver Wendell Holmes emphasized rule of law values and the attendant need for objective standards in statutory interpretation. In Holmes’s view, a government of laws, not men, demanded standards external to judges. These were to be found in the plain meaning of the words actually enacted. “[W]e ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used”

— OLIVER WENDELL HOLMES, THE COMMON LAW 41, 44 (1881)

Factually Correct But Not Politically Correct

Next Tuesday is tax day…

The IRS returned a tax return to a man in New Jersey after he apparently answered one of the questions incorrectly. Actually, it was correct in a real sense, just not politically correct.

In response to the question, “Do you have anyone dependent on you?” the man wrote “9.5 million illegal immigrants, 1.1 million crack heads, 3.4 million unemployable scroungers, 80,000 criminals in over 85 prisons, plus 650 idiots in Washington.

The IRS said the answer he gave was unacceptable!
The man responded, “Who did I leave out?”

Hillary courts the “strong woman” image while blaming others for her loss

Hillary Clinton: A lot of other people are to blame for my 2016 election loss

“You know in any campaign there’s so many different cross-currents and events and some have greater impact than others. But it is fair to say…certainly, misogyny played a role. I mean that just has to be admitted.”

Is that why a majority of white women voted for Trump?

The Russian interference meme is a crutch she holds on to even though there has never been any evidence for it and even Obama said it didn’t happen. Then there’s logic that tells you Putin would have preferred Hillary to Trump because he’d have an easier time keeping the United States out of his sphere of influence with her as “president reset button.” She clearly sent the message to Putin that she’s incompetent in dealing with him while she was Secretary of State. He’d naturally prefer more of her incompetence than any of Trump’s brashness.

When asked why Putin would have wanted to interfere with the American election she parades the conceit of, “Because I’m so smart and powerful and Trump’s so dumb and destablizing.”

“I don’t think it’s that complicated. He had his desire to destabilize us and others and, you know, he’s not exactly fond of strong women.”

Yeah, that had to be why voters rejected her. It couldn’t possibly be that 30 years of corruption, lying, and law breaking had anything to do with it.

Making insurance companies cover pre-existing conditions ruins insurance for everyone else

Paul Ryan and his crowd keeping talking about “binary choice.” What they mean is accept this turd we’ve produced, or keep Obamacare.  The turd is insurance coverage for pre-existing conditions. The actual binary choice is insurance for pre-existing conditions and no insurance that anyone else can afford without government subidies, or allowing insurance companies to sell and people to buy whatever sort of insurance they desire with no government restrictions and no subsidies.

Oh that’s so cruel, what about my aunt with cancer, or my dad with heart disease?

They won’t be left behind, there are plenty of things that can be done for them but insurance isn’t one of them. Look at what Obamacare does. It requires insurance companies to do something that only government should do: provide welfare subsidies to needy people. The insurance companies don’t actually pay, their healthy policyholders pay it in the form of sky-high premiums.

Under this scheme the Obamacare subsidies go to the wrong people, they go to the young and/or healthly people who need a subsidy to pay the jacked-up premiums the insurance companies have to charge in order to cover pre-existing conditions.

Paul Ryan wants to keep it that way. It’s a plan for disaster every bit as much as Obamacare. This is really unbelieveable that after promising to repeal Obamacare for seven years this is what the GOP came up with.

The answer is a separate government program exclusively for people with pre-existing conditions who cannot pay for the care they need. In a country as rich as the United States making sure people who have suffered a health misfortune that costs more than they can afford to pay can easily be cared for.  The current spending cuts being made by Trump will cover it. Probably with millions to spare.

Then just repeal Obamacare with a new law that says simply “Sayonara Obamacare,R.I.P” and make health insurance legal again for everybody else.

It’s an idea so crazy it just might work.

Crime is the new black entitlement

Crime is the new black entitlement.

As long as black people are permanent victims of relentless white racism, cops should not chase them, juries should not convict them, judges should not sentence them, schools should not punish them, and white victims should not complain about the black crime and violence so wildly out of proportion.

This is what a growing number of lawmakers, professors and, of course, reporters are prescribing as a way to “improve the way our system serves justice.”

The latest came on NPR a few days ago when Georgetown Law professor and former federal prosecutor Paul Butler broke it down for the racially unenlightened:

“If you go to criminal court in D.C., you would think that white people don’t commit crimes,” Butler said. “White people don’t use drugs, they don’t get into fights, they don’t steal, because all you see are African American people.”

Before you pack your child off to Georgetown Law school — or if you usually do not believe something too ridiculous to be true — you might want to hear the distinguished professor wax at length on this video: Racial Jury Nullification at Georgetown Law.

Link doesn’t work, video is here:

I have questions for Professor Butler. Most of the victims of black crime are other black people. Does he want juries to nullify those cases? Since when is selling crack cocaine, heroin, opiates and opiods a non-violent crime? All sorts of violence is associated with those sorts of drugs. At any rate, this calls for a repost:
racial_healing_12-17-15

On Violence

This is a quote from Ta-Nehesi Coates in the Atlantic, Violence and the Social Compact:

…the desire to dominate other people lurks under the surface of all humanity. I think this extends across all class boundaries. The project of a civil society is to curb this desire for violent domination. It is to recognize that there is an animal in us, and that, if we are left to our own devices, the animal will rule.

The question I want to pose is where does this violent animal in us come from?

Before reaching his conclusion, Coates sets forth the details of several incidences of violence against women perpetrated by husbands and boyfriends. Usually they are  ex-husbands and ex-boyfriends. The triggering event in each of case is rejection of the husband or boyfriend by the woman.

Coates is right about the animal within some of us, but not all of us. There are plenty of men that will take rejection, however much it may hurt, and will never resort to violence on any level. These are men who think positively about their own future and will not lightly indulge themselves in behavior likely to change their future dramatically for the worse. Even if it were otherwise they simply do not have the will to hurt other people, least of all someone they once cared deeply for.

As anyone can see, there’s also a large number of a different sort of man. These are men with a strong possessive and proprietary attitude toward wives and girlfriends.  These men want to dominate their lovers and they worry incessantly about the possibility of becoming a cuckold. I use that word because it derives from the cuckoo’s habit of laying its egg in another bird’s nest.

The explanation for why so many men are this way lies, I think, in the realm of evolutionary biology. In the vast space of time gone by, when the physically strongest ruled, these were the men most successful in passing their genes on to a sizable progeny. Their descendants came to outnumber those of the more mild mannered men. These were the men that turned other men into cuckolds.

Well-behaved men are aplenty today also, but they are the distant descendants of men who might have spent some of their resources unknowingly for the support of children not their own. These are what we would now call honorable men. They occupy a smaller part of the male universe and thus the lesser presence of their characteristics in the male gene pool.

None of this means the other subset of males are natural born brutes who can’t help themselves. An honorable man who wants fidelity from his wife or girlfriend no less than did his distant relatives may also have a working brain that tells him to always stay within the guardrails of the social order. Not merely for  his own good, but also for the good of all he cares about. In a civilized society the race is not always to the strong.

There remains on this earth certain other civilizations that are still mired in the social order of the primitive past.

Neil Gorsuch will be confirmed this week

Don’t let the left-wing nutcakes in the media mislead you. They like the term “nuclear option” because they think that will cause you to view the process pejoratively. It is accurately called the “Reid Option” that Harry Reid instituted in 2013 for lower court judges for the exact same reason the Repubicans will now extend that rule to the confirmation of Neil Gorsuch.

The media won’t tell you this, but the Democrats can easily prevent the GOP from applying the Reid rule to the Neil Gorsuch confirmation. All they need do is vote to confirm Gorsuch. In spite of what they are saying today thay might do exactly that. The reason is…by accepting Gosuch now they can preserve the filibuster for future Supreme Court nominations that President Trump may make. That would be in their interest but I believe (and fervently hope) they are too dumb and too frothing-at-the-mouth rabid mad to do it.

Another thing the media won’t tell you is that filibustering judicial nominations is a recent thing, not a traditional one. Clarence Thomas was confirmed 52-48. Not a single senator said he needed 60 votes.

Democrat cry babies (which includes media twerps) are bemoaning something they created. Mitch McConnell will be right to impose the Reid rule because politics today is based on the prisoner’s dilemma game. The only way to win (defined as not losing) is to play tit for tat. Cooperating does not work for the GOP, it only makes them lose because the Democrats never cooperate.