The Kritocracy of Justice Stevens

SCOTUSblog has the full decision of the court available at Heller Opinion.

Let's start with a quote from the dissent of Justice Stevens to District of Columbia v. Heller.

I do not know whether today’s decision will increase the labor of federal judges to the “breaking point” envisioned by Justice Cardozo, but it will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries.

The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.

For these reasons, I respectfully dissent.

His statement, "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons," demonstrates a profound ignorance of the origins of the Bill of Rights.

The Bill of Rights was not something proposed by the Framers. The Bill of Rights was forced on the Framers, because of the distrust of the power of government. The citizens of this country decided that they would only accept a government with these limitations on the government.

His bias blinds him.

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A Bit of History And Then I Rant About the Bill of Rights

From Wikipedia's June 22 page. I found the following interesting.

June 22:
1812 - Napoleon declares war on Russia and invades.

June 22:
1815 - Second abdication of Napoleon.

Apparently the invasion of Russia was not one of his better ideas, but it does have a great soundtrack.

June 22:
1941 - Germany invades the Soviet Union in Operation Barbarossa, one of the most dramatic turning points of World War II.

Has Hitler never seen The Princess Bride?

"You fell victim to one of the classic blunders! The most famous is never get involved in a land war in Asia."

On the anniversary of Napoleon's invasion!

Yes, Hitler died in 1945 and the movie came out in 1987, 14 years after the book, but Hitler was into all of that predestination, divination, Nostradamus stupidity. Therefore, he should have known. :-)

June 22:
1942 - Erwin Rommel is promoted to Field Marshal after the capture of Tobruk.

So, even the blind nut occasionally makes a good move. Fortunately, he did not do this too often. Rommel was the one guy who might have stopped, or slowed Patton, but Hitler prevented this last real chance he had at survival because of his superior intellect. And people still worship this poster child for destruction - his self destruction not coming soon enough.

June 22:
1969 - The Cuyahoga River catches fire, which triggered a crack-down on pollution in the river.

It looks like William Goldman is going to be supplying my quotes today. "Think ya used enough dynamite there, Butch? "

When you are dumping your garbage just outside your door you don't notice it, maybe because the air is too thick with smoke, you might have a problem. When your garbage catches fire and it is not in an incinerator, you might have a problem. It's this kind of idiotic management of waste that gives global warming acolytes ammunition.

But the earliest event is probably the most significant.

June 22:
1633 - The Holy Office in Rome forces Galileo Galilei to recant his scientific view that the Sun, not the Earth, is the center of the Universe.

Galileo is supposed to have said, under his breath, "Eppur si muove!"

"When the legend becomes fact, print the legend."

This has been translated as, "And yet it does move!" Not a translation that works for me. The translation that has so much more going for it is:

"Still, it moves."

A physics pun from one of the giants of physics. Something that provides a visual concept, rather than just a statement. If there is any truth to the legend of his statement, then "Still, it moves," is what I would expect from Galileo. Not even an exclamation mark needed on the end.

Still - The earth/church is still, stationary, unmoving, calm, free from discord, unchanging, silence.

It moves - The earth does move, tradition cannot halt progress, minds continue to explore new ideas, the attempts to cover up knowledge will fail.

This is not isolated to Catholicism, or religion, or science. This is about what makes the US Constitution such a great document. The respect for ideas. You may disagree with me, but you may not silence me. I may disagree with you, but I may not silence you. Truth does not come about with censorship.

Still, we give up this right, little by little - fighting words (as if we are animals and incapable of restraint), hate speech (as if someone's feelings should be more protected than speech), the expansion of copyright limitation (something to appease the Disney corporation, one founded on the production of modified public domain material), and the inevitable return of attempts to prevent flag burning (often by the very religious creating a modern golden calf in the flag).

Preventing flag burning is not the answer. Preventing the continual erosion of protected speech is far more important. Silencing Galileo did nothing to prevent his ideas from getting out. Cover ups do not work. Stifling flag burners does nothing to stop their access to other forms of expression, but does give them something to speak about.

Secrecy is another area of concern. When it is exaggerated, the attempts to make everything secret end up decreasing the protection of legitimate secrets. More is better sounds good to a lot of people, just not to a lot of smart people.

Why are we surprised at the continual narrowing of the scope of other rights protected by the Bill of Rights?

Protecting my speech means I need to protect the right of someone else to do the same, as unpleasant as I may find that expression. When we place limitations on this right, just to make ourselves feel better, to be less offended, we give up too much of our own right. The Bill of Rights is not a feel good document. It is an uncomfortable compromise that helps all of us in the long run. It helps protect us from those who would lie to us to lead us to further restrictions on our rights.

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Another School Massacre Anniversary

June 11 is the anniversary of Walter Seifert going to a school, killing 11 people, and wounding 21. The Cologne school massacre was not prevented by gun laws. Actually, he never even used a gun. He used a flame thrower and a lance. Then he killed himself with insecticide, perhaps this was his way of making a statement. He also used a wedge to block the door, so that students were trapped. Would pesticide or wedge laws have prevented these killings?

He was a veteran of World War II and probably learned how to use the flame thrower, then. The lance, well the last battle that lances had a major part on the winning side was the Battle of Isandlwana in 1879. My familiarity with lances has more to do with when the ambulance gets a new door and the ambu part is missing. All that is on the other door is lance.

I do not mean to make light of this. It was a tragedy and being burned to death by a flame thrower is not up there on my list of acceptable ways to go. The man was crazy, so deterrence by logical means probably would not have much effect.

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Fred Fisk thinks America is "barbaric."

NPR has a show called Metro Connection. A "senior commentator" named Fred Fisk was spouting off some idiocy Friday about the Kimbo Slice mixed martial arts fight.

Mr. Fisk states,"Individuals with multiple personalities are said to be schizophrenic." Actually, the term for a multiple personality disorder is Multiple Personality Disorder (MPD). Imagine that. Schizophrenia is more of an inability to deal with reality. How appropriate.

The pontificating pundit pretends that there is no difference between cock fighting, where they have no capacity to consent to the activity and the loser stands a good chance of ending up dead, and mixed martial arts. People competing in mixed martial arts are protected by rules, and are seriously hurt less often than in many other sports.

Mr. Fisk states that, "In which, two men, often in cages, engage in combat, with very few rules, which results in beatings so severe, that people who used to inflict them were arrested."

Wow! Where to begin?

The "often in cages" appears to be a way to suggest that these are not adults with free choice. Cages = lack of choice.

The "with very few rules" suggests a bias toward a lot of rules. This says nothing about the quality of the rules, only the number. When it comes to rules, for Mr. Fisk, more appears to be better. No fan of the Founding Fathers. He would probably be thrilled with fewer rules, if there were a complete ban on the things he disapproves of other adults participating in.

The "beatings so severe" is meant to suggest that there are serious injuries. As with any contact sport, there occasionally are. He does not provide anything other than his opinion of the severity of the "beatings."

This idolater of regulations describes the "beatings" as ones "that people who used to inflict them were arrested." Mr. Fisk is apparently not one to believe in innocent unless proven guilty. He does not consider that the same could be said of skateboarding. It is so bad that people, who used to do this were arrested. And skateboarding doesn't even involve beatings, so that must be unbelievably "barbaric." Try playing golf in a public area, where golf is not permitted. Will that result in an arrest? No reason why it shouldn't.

Sports are activities that involve competition and generally need to be practiced in a controlled environment, so that they do not interfere with the daily activities of others. This does not work out so well, when you are trying to drive a vehicle anywhere near a stadium around game time.

He apparently has no concept of anything good coming from mixed martial arts. He thinks that it is shocking that the military is using this in their training. His opinion of the benefits of this training, "What nonsense. How much hand to hand combat is involved in present day warfare?"

In present day warfare, there is the need to enter homes and clear them room by room. It appears that Mr. Fisk does not wish to have American soldiers get close enough for the possibility of hand to hand combat. The distance, between yourself and a potential opponent, that firearms instructors tell you is unsafe is about 21 feet. This means that if you have a gun and are presented with someone not armed with a gun, the unarmed person may be able to close the distance between you and them before you are able to draw, aim, and shoot effectively to stop that person, if the person is closer than 21 feet.

While the military weapons would be expected to be aimed and used more quickly, do we lower the distance to 15 feet? How many homes have that much room for soldiers to enter, remain clear of each other, not engage in any physical contact with anyone in the room, and remain safe?

Should the military just lob some grenades into the homes that are not certain to be unoccupied? Napalm? Cluster bombs? Tactical nuclear weapons? Certainly, no hand to hand combat. That would be "barbaric."

How do you take someone into custody if you do not engage in different levels of hand to hand combat? Mixed martial arts does a great job of preparing people to restrain others without hitting them.

Fred Fisk would probably be one of the first ones to complain if an American soldier were to kill a civilian, but he does not see that there is a need for options to killing.

Mixed martial arts can give the appearance of out of control violence, but that is only appearance. This, as with other martial arts, can be an excellent form of physical conditioning, which is just one way to instill discipline in otherwise difficult to discipline people.

This may help to keep the idle hands of restless young adults busy and engaged in productive activities, rather than engaging in illegal fights, sometimes with weapons.

I had been looking for the proper music to play while writing this. I like Albinioni's adagios when writing, but this screamed for something more lively. Welcome to the Jungle by GNR? No.

Highway to Hell by AC/DC. After all, this is one of those paternalistic fools, who is willing to give up all of our rights to protect us from ourselves. This road to hell is being paved with what he claims are good intentions, not that he would care.

If only we were as civilized as Mr. Fisk, we could get on the radio and whine about how "barbaric" the peons are.



Added 6-11-08:

The 1955 Le Mans disaster is the kind of tragedy that should not be a concern at any type of martial arts competition. 83 dead and over a hundred injured due to a crash. The hierarchy of ethical worth to Mr. Fisk probably ranks motor sports as more acceptable than fighting, because he sees fighting as an immoral form of sport. Mr. Fisk probably wishes to ban auto racing, too - a waste of fuel, redneck entertainment, no speed limits, . . ., although it is big in Europe.

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Escape From Washington, DC

Somebody in DC is putting a little too much faith in government. Certainly, not anything surprising about that. The problem is in the method. Considering DC, still no surprise.

A bunch of bloggers have written about this and I probably have little to add, but I see this as one way to help explain the excesses of government power. I have links to the other bloggers below.

1. The all knowing benevolent overseers have decided that what one does in the privacy of one's veins, or lungs, or stomach is not up to us and should be regulated - For our own good.

2. The all knowing benevolent overseers have decided that the second amendment to the Constitution, in the part known as the Bill of Rights, is not to be honored in many places, especially those where one might wish to have some sort of protection against criminals. Again, this is done - For our own good.

3. The all knowing benevolent overseers have decided that the resulting crime, even they will refer to it as drug crime, is so bad that we need to institute a form of police state - temporarily, at least until we get used to the idea and accept it as just the way things are in the post 9/11 world. One more time, this is done - For our own good.

Government is not necessarily bad, but the government that creates a crime that does not harm others, unless engaging in another crime at the same time, is out of hand. This crime leads to significant violence, so much so, that the government feels a need to create a temporary police state. This same government has the possibility of assistance from the citizenry entirely eliminated, because the government has completely disarmed the citizens. Because, as TOTWTYTR is fond of saying "When seconds count, the police are only minutes away!"

The only recourse the people have is not self reliance, but calling 911 and hoping that someone shows up in time, hoping that when someone shows up, they will do something to stop the crime, and hoping that there will not be retaliation from the cronies of the criminal(s) who was the reason for the 911 call.

Better to put up roadblocks, stop all vehicles (because real criminals don't walk), then ask why the occupants of the vehicle are entering the area, and if the answer is considered unsatisfactory, deny entrance to the vehicle. If the vehicle does not leave immediately the occupants may be arrested.

Unsatisfactory could include a whole bunch of things, such as "I want to score some crack, but I forgot my wallet and thought I would just cap some MoFo and take his drugs." This is not the kind of person you want to let in. BUT are we doing anything to discourage violent crime? What is this person likely to do? "I can't get into the usual places to get drugs, I don't have money, but I do have an illegal gun (even though no law would allow a violent criminal like me to obtain a gun), so I might as well use it in this nicer neighborhood. I just love the way unintended consequences make my life more interesting."

Since the traffic stop would allow the police to check for warrants and other reasons to detain people, it will probably discourage those wanted by the police from using this means of entrance.

"Just let me off at the corner, here. I'll meet you on the other side of the checkpoint."

"The police can't be that stupid. They will stop you and you're busted."

"The police aren't that stupid. Those are the rules the politicians came up with to sell this to people who are that stupid. The police have to follow the rules."

I wrote discourage for a reason. It will not stop much of anything. It will transfer illegal activity to other areas, as crackdowns are known to do.

There was another post about the way Beijing is being made not to resemble London, with cameras everywhere, but to surpass London. Washington, DC is planning the same kind of thing.

China is doing this to bring about the end of dissent - You know the stuff protected by the first amendment to the US Constitution. Can the politicians in America be too far behind? We don't really need those Bill of Rights things, after all we have a benevolent government. The people who wrote the Bill of Rights were a bunch of treasonous radicals.

Trust us. We're from the government and we're here to help.

The title of the post is a reference to the movie about isolating Manhattan as a penal colony - Escape From New York. It was the first thought I had. Well, I have covered the things that I felt needed adding.

Here are the links to other blogs commenting on this:

LawDog - Papieren, bitte!

No Looking Backwards - This Just In!

Too Old To Work, Too Young To Retire - In the Pantheon of Stupid Ideas.

Bayou Renaissance Man - China's all-seeing eye - coming to America?

The Volokh Conspiracy - Is the DC Checkpoint Plan Unconstitutional?

And a news story about the DC camera plan:

Examiner.com - Privacy advocates, lawmakers criticize citywide camera plan.

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