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Archive for the ‘Constitution’ Category

A man in New York recently scared off some gang members by firing a couple of warning shots into the ground. When the cops arrived, did they congratulate the man for protecting his family and start looking for the thugs? That’s what would happen in a logical and just society, but the anti-gun mentality in New York is so pervasive that the cops actually arrested the homeowner. Needless to say, I can’t imagine this happening in Georgia or Wyoming – places where both the law and cops seem to be more rational. Some day, I hope to be on a jury and have a case like this so I can vote not guilty and engage in the noble tradition of jury nullification. Here’s an excerpt from the story I saw on Drudge.

He was arrested for protecting his property and family. But it’s how the Long Island man did it that police say crossed the line. …George Grier said he had to use his rifle on Sunday night to stop what he thought was going to be an invasion of his Uniondale home by a gang he thought might have been the vicious “MS-13.” He said the whole deal happened as he was about to drive his cousin home.

“I went around and went into the house, ran upstairs and told my wife to call the police. I get the gun and I go outside and I come into the doorway and now, by this time, they are in the driveway, back here near the house. I tell them, you know, ‘Can you please leave?’ Grier said.

Grier said the five men dared him to use the gun; and that their shouts brought another larger group of gang members in front of his house.

“He starts threatening my family, my life. ‘Oh you’re dead. I’m gonna kill your family and your babies. You’re dead.’ So when he says that, 20 others guys come rushing around the corner. And so I fired four warning shots into the grass,” Grier said.

…You may think a person has the right to defend their home. But the law says you can only use physical force to deter physical force. Grier said he never saw anyone pull out a gun, so a court would have to decide on firing the gun.

Police determined Grier had the gun legally. He has no criminal record. And so he was not charged for the weapon.

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With the public unconvinced of the wisdom of soaking the rich, the latest hot idea floating around in statist circles is not to soak the rich, but rather the really, super-duper, ultra rich.

In a class-warfare filled screed, James Surowiecki wrote in the New Yorker on the need to “Soak the Very, Very Rich.”

A better tax system would have more brackets, so that the super-rich pay higher rates. (The most obvious bracket to add would be a higher rate at a million dollars a year, but there’s no reason to stop there.) This would make the system fairer, since it would reflect the real stratification among high-income earners…

Ezra Klein then blogged at the Washington Post that he is “very sympathetic to the idea that there should be more tax brackets,” reasoning that  “It would be a lot easier to fight the super-rich than to fight the super-rich, the really rich, the pretty rich, and well-off.” If there was a bracket just for the super-duper-really rich, you see, it could be more easily raised to unconscionable and economy killing levels without public objection.

Adding more tax brackets would complicated an already inexcusably incomprehensible tax code,  resulting in increased economic waste and compliance costs, more expenditures on lobbying and even greater uncertainty than is currently holding down economic growth.

Furthermore, tax policy should not be decided based on which group is easiest to demagogue and demonize.  Nor is it the purpose of the tax code to enshrine into law a particular view of economic fairness, which in the case of Surowiecki and Klein, means redistribution.

There is one legitimate reason and one legitimate  reason only for taxes, and that’s to raise the funds necessary for the limited functions of constitutional government and rule of law.  There is no honest assessment of those functions as enshrined in the US Constitution which can find that the present revenues received by the state are insufficient to provide for those functions.

I’m sure it’s too much to ask, but rather than ruminate on which of its citizens the government and its statist boosters should declare war on next, the Ezra Klein’s of the world should think about how government spending can be reduced, and our federal government brought back into the bounds of legitimate, constitutional governance.

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I’m not a lawyer, so I certainly can’t pretend to have expert views, but everytime I read something like this, my regard for Justice Thomas rises even higher.

In the McDonald case, the justices were asked by the plaintiffs to strike down Chicago’s gun-control ordinance as a violation of the Second Amendment to the Constitution.

In order to do so, the justices would have to make two maneuvers. Of course, they’d have to rule that the ordinance runs afoul of the Second Amendment’s prescription that “the right of the people to keep and bear Arms, shall not be infringed.” But they’d also have to rule that the Second Amendment restricts not just Congress’s ability to make laws controlling the use of guns, but that of state governments as well. Remember, the Bill of Rights, as originally constructed, only applies to the federal government.

In order to extend the Second Amendment to laws passed by states or cities, the court was faced with a choice of two clauses embedded in the 14th Amendment. It could “incorporate” the Second Amendment to the states through the 14th Amendment’s Due Process Clause. Or, pursuant to the 14th Amendment’s Privileges or Immunities Clause, it could deem “the right to bear arms” one of the “Privileges” or “Immunities” that the states are forbidden from taking away.

So you’ve never heard of the Privileges or Immunities Clause? We’re not surprised. The clause was largely neutered in a set of cases decided in 1873.

…Those arguing for resuscitation of the Privilege or Immunities Clause pinned their hopes on Justice Antonin Scalia and Justice Clarence Thomas, both known for their “originalist” approach to constitutional interpretation.

But Justice Scalia on Monday opted, along with Justices Alito and Kennedy and Chief Justice Roberts, to use the Due Process Clause. As Liptak noted, Justice Scalia, in a concurrence, “acknowledged misgivings about using the due process clause to apply Bill of Rights protections to the states” but went along with it “’since straightforward application of settled doctrine suffices to decide it.’”

But in a separate concurrence, Justice Thomas boldly went where no justice has gone before: to the arms of the Privileges or Immunities Clause. He wrote:

[T]he text of the Privileges or Immunities Clause . . . command[s] that “[n]o State shall . . . abridge” the rights of United States citizens . . . the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.

The rationale didn’t carry the day, but many legal commentators were thrilled by Justice Thomas’s concurrence. “He’s sticking with the text of the Constitution,” said Georgetown law professor Randy Barnett, to the Law Blog. “At the same time, nobody voices disagreement with Justice Thomas. And that’s because they can’t.”

Writing at Scotusblog, George Mason’s Nelson Lund cheered Thomas’s opinion:

His opinion is scholarly and judicious, and it cements his standing as the only Justice who is more than a half-hearted originalist.

Barnett and others hope that Thomas’s lone dissent has planted the seeds for a constitutional reawakening rooted in the Privileges and Immunities Clause.

http://blogs.wsj.com/law/2010/06/28/is-his-gun-control-concurrence-justice-thomass-finest-hour/

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I don’t know what will happen when the Senate Judiciary Committee grills Obama’s Supreme Court nominee, but I hope at least one member reads George Will’s column and uses some of his suggested questions. They are all worth reading, but here are my three favorites: 

The government having decided that Chrysler’s survival is an urgent national necessity, could it decide that “Cash for Clunkers” is too indirect a subsidy and instead mandate that people buy Chrysler products? …Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? …Should proper respect for precedent prevent the court from reversing Kelo? If so, was the court wrong to undo the 1896 ruling in Plessy v. Ferguson that segregating the races with “separate but equal” facilities is constitutional?
http://www.washingtonpost.com/wp-dyn/content/article/2010/06/24/AR2010062403178.html 

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In addition to noting that gun control tends to increase crime by reducing the cost of being a criminal (i.e., thugs are less likely to meet armed resistance), Tom Sowell also explains that people who don’t like the Constitution should amend the document rather than appointing ideologically-motivated Justices who ignore what it says. 

…there is no obvious reason why issues like gun control should be ideological issues in the first place. It is ultimately an empirical question whether allowing ordinary citizens to have firearms will increase or decrease the amount of violence. Many people who are opposed to gun laws which place severe restrictions on ordinary citizens owning firearms have based themselves on the Second Amendment to the Constitution. But, while the Supreme Court must make the Second Amendment the basis of its rulings on gun control laws, there is no reason why the Second Amendment should be the last word for the voting public. If the end of gun control leads to a bloodbath of runaway shootings, then the Second Amendment can be repealed, just as other Constitutional Amendments have been repealed. Laws exist for people, not people for laws. There is no point arguing, as many people do, that it is difficult to amend the Constitution. The fact that it doesn’t happen very often doesn’t mean that it is difficult. The people may not want it to happen, even if the intelligentsia are itching to change it. …As for the merits or demerits of gun control laws themselves, a vast amount of evidence, both from the United States and from other countries, shows that keeping guns out of the hands of law-abiding citizens does not keep guns out of the hands of criminals. It is not uncommon for a tightening of gun control laws to be followed by an increase– not a decrease– in gun crimes, including murder. Conversely, there have been places and times where an increase in gun ownership has been followed by a reduction in crimes in general and murder in particular. Unfortunately, the media intelligentsia tend to favor gun control laws, so a lot of hard facts about the futility, or the counterproductive consequences of such laws, never reach the public through the media. We hear a lot about countries with stronger gun control laws than the United States that have lower murder rates. But we very seldom hear about countries with stronger gun control laws than the United States that have higher murder rates, such as Russia and Brazil.
http://townhall.com/columnists/ThomasSowell/2010/06/29/gun_control_laws 

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John Lott is one of America’s leading scholars of gun rights and the 2nd Amendment. His Foxnews.com column explains today’s ruling in favor of the Constitution and explains how the 2008 Heller decision led to less murder in Washington, DC. 

With another closely decided 5 to 4 decision, the Supreme Court ruled today that state governments are not able to ban most Americans from owning most types of handguns. The court ruled that firearms are “essential for self-defense.” The court found that if the Second Amendment indeed protects an individual right to own a gun, the notion that the government can’t ban all handguns is the minimum protection the Constitution can offer. …When the “Heller” decision was handed down in 2008 striking down Washington, D.C.’s handgun ban and gunlock regulations, Chicago’s Mayor Richard Daley predicted disaster. He said that overturning the gun ban was “a very frightening decision” and predicted more deaths along with Wild West-style shootouts and that people “are going to take a gun and they are going to end their lives in a family dispute.” Washington’s Mayor Adrian Fenty similarly warned: “More handguns in the District of Columbia will only lead to more handgun violence.” Yet, Armageddon never arrived. Washington’s murder rate has plummeted — falling by 25 percent in 2009 alone. This compares with a national drop of only 7 percent last year. And D.C.’s drop has continued this year. Comparing Washington’s crime rates from January 1 to June 17 of this year to the same period in 2008, shows a 34 percent drop in murder. This drop puts D.C.’s murder rate back to where it was before the 1977 handgun ban. Indeed, the murder rate is as low as was before 1967. Other gun crimes have also fallen in Washington. While robberies without guns fell by 7 percent, robberies with gun fell by over 14 percent. Assaults with weapons other than guns fell by 7, but assaults using guns fell by over 20 percent. …Neither the latest justice, Sonia Sotomayor nor the next potential justice, Elena Kagan are sympathetic to an individual’s right to self-defense.
http://www.foxnews.com/opinion/2010/06/28/john-lott-supreme-court-guns-ban-washington-chicago-daley-kagan-sotomayor/

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