« previous post | Main | next post »

January 28, 2005

two bills from Rep. Bartlett

Don Herzog, The Bartlett Files: January 28, 2005

Suffering a lazily pleasurable case of Bartlett-on-the-brain ever since stumbling into the representative's stumbling comments on our being a Christian nation, I found myself wondering if he's been sponsoring any legislation.  Here are two measures, each referred to committee.

First is the soberly named First Amendment Restoration Act.  It would make three changes in campaign finance law.  One:  it would relieve people of any obligation to divulge contributions to "electioneering communications," roughly speaking campaign ads for federal candidates run within 60 days of an election or 30 days of a campaign.  Two:  it would repeal the current rule that corporations and labor unions may not spend their funds on electioneering communications.  Three (and it looks like at least the dot-gov version I linked to has a typo; it must mean 441a(a)(7)):  under McCain-Feingold, if you contribute to an electioneering communication and your contribution is coordinated with the candidate's campaign, it counts as a contribution to the candidate; the act would repeal that rule.

These changes look technical, and I'm the last person around to think that abstract principles readily decide concrete cases.  But I think Bartlett's proposed changes are crummy — yes, that's a legal term of art and I want to back up to explain why.

If you think of democratic politics as a kind of a market, with votes as dollars and candidates as salesmen hawking themselves and their agendas and hoping to close a sale, you're suffering what I diagnose as market fundamentalism.  (And no, you may not defend against the diagnosis by pointing out that the analogy illuminates some matters.)  We assign each citizen the inalienable right to cast one vote.  An economist might worry about deadweight loss.  Why not have the state mail each citizen a coupon that says, "bearer may cast one vote"?  Then you could "consume" yours by voting yourself, or you could donate it to Greenpeace or the Liberty Fund, or you could sell it to Ross Perot.  Nor do we auction off the right to sit as Representative or Senator or President.  Instead of conjuring up market failure, be sweetly obliging I'm kind of cranky today and agree that democratic politics isn't a market.

That means we have reasons to worry about the role of money in politics.  Campaign finance reform raises many vexing issues no surprise that the Supreme Court pronouncements on that legislation are sprawling, confusing, and confused but the impulse to limit the role of money in our politics is an attempt to draw the line between markets and politics.  Or, if you like, it's an attempt to insist that as citizens we properly meet as equals, regardless of how rich or poor we happen to be.  So too for the impulse to keep corporations and unions out of our political debates.  They aren't citizens.  They have no standing.

Incidentally, we rightly know the great liberal (and feminist and socialist, that latter of the democratic or anti-statist or market-friendly kind, thank you very much) John Stuart Mill as a passionate defender of free speech.  But in thinking about elections, Mill vigorously endorsed severe limits on what wealthy candidates could spend.  A while after asking sadly, "Of what avail is the most broadly popular representative system if the electors do not care to choose the best member of parliament, but choose him who will spend most money to be elected?" he insisted, "If the friends of the candidate choose to go to expense for committees and canvassing there are no means of preventing them; but such expenses out of the candidate's own pocket, or any expenses whatever beyond the deposit [for declaring candidacy] of £50 (or £100), should be illegal and punishable."  The usually decorous Mill followed that up with a snarling attack on parliamentarians "of both parties" for being eager to ensure that workers not become MPs.

So we have reasons to worry about the sway of money in our politics.  We have reasons not to enfranchise corporations and unions.  And finally we have reasons to insist on sunshine or transparency for the role money does play.  Every one of Representative Bartlett's proposed changes would cut the opposite way.  He would let people make secret donations, let corporations and unions run campaign ads, and effectively raise spending limits.  Bad ideas one and all, say I.

I can be briefer with his other proposal, though the Citizens' Self-Defense Act is getting far more frenzied, gleeful attention on the internet.  I don't really grasp the passionate enthusiasm for guns and access to guns this has to be a characteristic tone-deafness of the left but anyway the Act would guarantee our rights to obtain and use firearms

  1. in defense of self or family against a reasonably perceived threat of imminent and unlawful infliction of serious bodily injury;
  2. in defense of self or family in the course of the commission by another person of a violent felony against the person or a member of the person's family; and
  3. in defense of the person's home in the course of the commission of a felony by another person.

1 and 2 are traditional common-law conceptions of the privilege of self-defense, or would be if they sharpened the language about the proportionality of response to the threat you're facing.  3 is way too rough for the same reason.

But here's what's really disturbing.  It's hard to see how Congress conceivably could have the constitutional authority to pass this legislation.  The best theory I can muster would run this way.  State actors say courts issuing tort awards are violating people's 2nd amendment rights, and so Congress has the right under section 5 of the 14th amendment to act this way.  But as far as I know the 2nd amendment has never been incorporated against the states.  And on the Court's post-Boerne scrutiny of Congress's section 5 powers, this act, without a careful legislative record documenting extensive state abuses and without an argument that the federal rule is proportionate and congruent to the state violation, would be clearly unconstitutional even if we assume the amendment is incorporated.

People should be principled about their commitments to federalism.  If you invoke states' rights when you don't like federal policy, it's embarrassing to neglect them the moment you get excited about some other policy.  And I'd hate to think that much of the right has only been opportunistic about federalism all along.

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d834536ae669e200d83440c08353ef

Listed below are links to weblogs that reference two bills from Rep. Bartlett:

Comments

Posted by: Jay Cline

Don,

Re: campaign financing, you're absolutely right on the mark. Unfortunately, any campaign finance reform suffers from the Dutch-boy syndrome; at best it is a rearguard defense that can only stem the more blatant attempts of monied influence in politics. That is how the Roman Republic lost it's way; peddling political franchises. In the end, though, it comes down to that inalienable and inseparable right of individuals to participate in politics. No amount of reform is going to make up for a disinterest franchise. And no amount of money can stop a fully participatory electorate.

Sorry for being so fatalistic.

Posted by: Jay Cline | Jan 28, 2005 7:55:39 AM


Posted by: Paul Deignan

The last three election cycles have marked the steady decline of the Democratic Party into minority status on the national level. Should this progress continue, we could well have uncontested single party control of the national apparatus within the next decade. In an environment of terrorism and the proliferation of WMD, it is possible that a police state could emerge from this single party state.

It is possible that those currently confused about the necessity of the Second Amendment may yet discover its appeal within their lifetimes.

Rosie seems to be a fan of the idea. We could ask her.

Posted by: Paul Deignan | Jan 28, 2005 8:29:52 AM


Posted by: sierra

Don, your language is uncharacteristically imprecise. We don't "enfranchise" unions and corporations. Exercising your free-speech right to persuade others how to vote is not the same as voting. Maybe that makes me a "First Amendment Fundamentalist."

Posted by: sierra | Jan 28, 2005 8:37:01 AM


Posted by: oliver

Jay, malaria and AIDS are pernicious evils too, but let's give a go at fixing them. So many people vote on little more than name recognition that just diminishing the frequency of the mention of candidate names in paid ads could tilt us a little towards ideas and policies and away from celebrity. The margin of victory in the race for governor of Washington was way below statistical significance, and Bush won by the lowest margin earned by a sitting president in a century or so. To me these are worse signs than the unimpressiveness of voter turnouts. The approach to statistical insignificance suggests the will of the people is becoming what a sound engineer or physicist would call pure noise. Some may say that in election results we're looking at a photo finish of sprinters in peak condition. I think we're looking at voters chosing between disparate candidates in a room full of shouted opinions, and imposing a little order could make all the difference.

Posted by: oliver | Jan 28, 2005 8:56:29 AM


Posted by: Henry Woodbury

Regarding election reform, I've always been a fan of the proposal that everything goes, but everything must be disclosed. This is an example where the Internet makes possible a level of transparency not possible in an earlier era.

Take the money out of politics, and control does not revert to the people -- it reverts to parties (and institutions such as labor unions and media outlets who congeal to parties). It reverts to political bosses and favorite sons, featherbedders and fixers.

Machine politics is still fairly prevalent in many localities, but free floating money is a great equalizer.

Posted by: Henry Woodbury | Jan 28, 2005 9:30:45 AM


Posted by: Terrier

I confess I have never understood the gun thing either - but beyond registration and the banning of war weapons (you all know what these are) I really don't care. Have known many responsible people who enjoyed shooting for fun, competition, and for hunting and have shot a gun myself on many occasions for fun. But I have never been delusion enough to buy this argument that guns guaranteed democracy. In the 70s when my Dad was alive I remember that he and I got such a kick out of a news report about a coup in an African nation where the former dictator had a tank arrive at his house that thoroughly shelled the compund then knocked down the walls and flattened everything and the rebel radio station announced the 'General' had been 'dismissed.' When they come for you these days, the don't pack a pocketful of china berries like I did as a kid and considering the guns that are available on the streets of America I don't blame them when they arrive in a tank. Do I want a totalitarian state? Hell, no! But don't try to tell me your hunting rifle or handgun is all that stands between me and the gulag - that's stupid. What might keep us all out of the gulag is keeping bad influences out of our politics and campaign finance reform is certainly a step in that direction. We will never solve this problem, but we must continue to wrestle with it. I know there are free speech issues but voting is political speech and if an entity can't vote it shouldn't have the right to any other kind of political speech. That seems a reasonable place to start drawing a line and certainly once a line is drawn we need to be vigilant and be prepared to stop the Bartletts of the world from smudging the page at the behest of undisclosed interests. I have long advocated that we triple the size of the House of Representatives and send all of them home to their districts and make all contact with to them public thru and on the internet. If they were spread out over the country (like the citizenry) they would be more difficult to lobby and we the people could have more direct access to them.

Posted by: Terrier | Jan 28, 2005 11:15:40 AM


Posted by: D.A. Ridgely

I agree with Mr. Herzog regarding the desirability of transparency in campaign financing and the undesirability of constructively enfranchising organizations of any sort. (I’m sure he didn’t really mean to assert that the right to vote was “inalienable,” but that’s a minor point.)

I’ll even accept arguendo his thesis that democratic politics is not a market, I don’t think a protracted discussion of what the 1st Amendment does or does not require would be useful here, and I know he cannot be responsible for addressing every relevant collateral consideration in his post.

Three points, however. First, any satisfactory solution to these sorts of issues will also require attention to the role the media plays and, sorry folks, the extent to which the media is or is not a neutral, disinterested source of objective information. Second, that solution must address the extent to which any restriction on campaign financing gives incumbents an unfair competitive advantage. My third concern is how such restrictions also reinforce the huge advantage the major parties already have vis a vis third party movements and candidates.

Posted by: D.A. Ridgely | Jan 28, 2005 11:49:45 AM


Posted by: Henry Woodbury

If they were spread out over the country (like the citizenry) they would be more difficult to lobby and we the people could have more direct access to them.

Terrier, I really like that idea. With current technology there's no need for Congress to meet in Washington DC at all. Nor any need for some many agencies to be centralized in one city. A fully telecommunicating government would be more representative, cheaper to maintain, more resilient to natural or unnatural crises, and more open. Whenever congress or any of its committees met, by video or phone conference, any citizen who wanted would be able to dial in to listen or go to the Internet for the video stream.

A lot of marble-faced buildings could then be put to more productive use.

Posted by: Henry Woodbury | Jan 28, 2005 11:59:13 AM


Posted by: Paul Deignan

Terrier,

We have to keep some historical context when considering the Second Amendment. At that time the most a militia could muster in the way of firepower was a horse drawn cannon and muskets. Things have certainly changed. I doubt that anyone then thought that we would not amend the Constitution more frequently than we do now. After all, they introduced 10 new amendments at once. Was $20 always meant to be a magic number in guaranteeing the right of trial by jury?

Back then, the newspapers (hence political discourse) were local by necessity of the fact that they had to be printed and delivered physically. Localities could evolve their own rules without upsetting the national applecart if their situations demanded. Cities could decide to restrict firearms altogether without fear that the far flung rural areas would be drawn into the municipal debate. Through such local incrementalism, new national and state rules could safely rest on an evolved, stable public consensus. Global and dramatic changes to the law would not occur except perhaps as a result of war.

All that has changed. Incremental adjustments to the Constitution are near impossible as they require a national consensus for minor variations that may be highly localized. We have substituted the judiciary for our inability to engage in productive local legislation and by this means we have departed from the clear meaning of the written law. Judicial decisions have global effect and can be radical. As a result, people in many localities are fearful of their rights. Therefore we have extremism over such practical issues as the right to bear arms.

So, your sense of the need for guns is probably most directly a function of the company your keep. If we shared the same company, (and thought in the same scope) we would likely reach a close agreement on the issue.

Posted by: Paul Deignan | Jan 28, 2005 12:07:57 PM


Posted by: AlanC9

Terrier, I wouldn't push that argument too hard. You could end up with a Second Amendment interpretation that permits citizens to own military-grade automatic weapons but forbids concealed handguns. It's more principled than the current situation, and there actually is some Supreme Court precedent for it.

Posted by: AlanC9 | Jan 28, 2005 3:39:54 PM


Posted by: Terrier

Paul Deignan, The reason you gave for having a gun was what I questioned. Really, I don't think you need a reason to have a gun. If you just want to hug the warm barrel that's fine with me. Just don't tell me you need one because it will stop the ATF from lobbing grenades into your compound. Can't we just get beyond silly rhetoric like this and deal with the issues about gun ownership that reasonable people should be able to agree on? For instance, some implements of war are too powerful to let individuals have, children should not have unsupervised access, prohibiting the sale of 100 cheap handguns purchased in South Carolina on a Saturday will most likely save lives on Monday in a northern city. The imflamatory rhetoric (and grandstanding bill proposals) obscures real problems and prevents solutions that would respect the 2nd amendment.

Henry Woodbury, a key point is expanding the size of congress. Let the House expand to better represent the people's interests. The founders thought no more than 400 or so could meet and debate but hell they don't debate now except in the Senate which we could retain where it is. More seats would mean more turnover. Right now they have to maintain offices and residences in both places and that in itself could drive qualified people away that would otherwise serve.

Posted by: Terrier | Jan 28, 2005 3:44:43 PM


Posted by: a-train

Right on Don. The problem is that the Big Business will always find a way to control Gov't (Gov't spending and buying is a huge market force). But this doesn't mean we should not be trying to control it, just have to accept the battle never ends.

Posted by: a-train | Jan 28, 2005 3:45:35 PM


Posted by: LPFabulous

Instead of conjuring up market failure, be sweetly obliging — I'm kind of cranky today — and agree that democratic politics isn't a market.

That means we have reasons to worry about the role of money in politics.

Non sequitur alert! How does one of these even begin to follow from the other? Households aren't markets (meaning family relationships are not market relationships), so should we worry about the role of money in families? Do we need to have laws against too much allowance so we can protect children from undue parental influence?

So too for the impulse to keep corporations and unions out of our political debates. They aren't citizens. They have no standing.

Seems to me that this argument applies equally well to political parties. But if you're trying to refute James Madison, you will fail. And you will fail spectacularly.

Campaign finance is now, and always has been, a really easy free speech issue. When you say "[c]ampaign finance reform raises many vexing issues," you're being unnecessarily cute. Campaign finance reform is blatantly unconstitutional in the way you want to use it. A right to free speech contains a right to spend your money on whatever kind of speech you want. And anonymously too. If I write a letter to a newspaper, I'm free to ask them to withhold my name. The same rule applies here.

This is not a complicated issue. It's very simple. Always has been.

Posted by: LPFabulous | Jan 28, 2005 4:25:42 PM


Posted by: Paul Deignan

Terrier,

If you read what I wrote carefully, you will perceive that I believe:

1. There is a structural reason in our democracy to insure that as a generic principle the people should have gun (or some weapon of sufficient lethality relative to that available to the government) rights i.e., to bear arms.

2. The Second Amendment is antiquated and should be repealed as written.

3. Our democracy has atrophied resulting in rampant extremism.

4. Local solutions to gun control are best.

5. The reasons for extremism are systemic.

6. Lack of imagination is no excuse for willful ignorance.

Posted by: Paul Deignan | Jan 28, 2005 4:40:34 PM


Posted by: Henry Woodbury

Terrier -- I like the idea of an expanded house, but the redistricting would be very bloody.

I'm with Fabulous on the root question. Campaign finance is a really easy free speech issue. When advocates of campaign finance reform complain about "unregulated" speech, I just start wondering what makes "regulated" speech so virtuous.

Regulations don't take money out of politics, they just make its application more perverse.

Posted by: Henry Woodbury | Jan 28, 2005 4:49:04 PM


Posted by: Henry Woodbury

Very very bloody. Every 10 years.

Posted by: Henry Woodbury | Jan 28, 2005 4:50:10 PM


Posted by: oliver

If currency is speech then bullets are too. I mean seriously, people who support a candidate are going to contribute ammo and weaponry to them no matter what we do, and a candidate has every right to the unrestricted use of those instruments toward the defeat his or her opponent (along with citing key votes in the opponent's record). That kind of democracy worked in Afghanistan 'til Karzai imposed his silly regulations. What makes money so special?

Posted by: oliver | Jan 28, 2005 5:42:59 PM


Posted by: Terrier

Henry Woodbury, I agree that redistricting is a problem but it is a problem now with 400 seats. Both Iowa and Arizona use nonpartisan redistricting methods and there is always proportional or multi-seat districts as options. As a run at it, why not start with current districts and triple the number of representatives, top 3 get elected? The virtue of multi-seat is that it ensures a little better chance for non-big-two parties and thus would address D.A. Ridgely's concerns also. There are many ideas that would improve our democracy but I have to admit it will probably always take the party out of power to advance them because once elected all campaign promises (think term limits) sound hollow.

"Our democracy has atrophied resulting in rampant extremism." <- have we already become a totalitarian state? This sounds exactly like something Chomsky would say - though I must confess I plead willful ignorance where his politics are concerned (long ago - before I think his political opinions were prominent - I had an interest in linguistics and thus have great respect for him there - and like my feelings about Elvis, I want to remain there.)

Posted by: Terrier | Jan 28, 2005 5:57:27 PM


Posted by: Jay Cline

Oh, I so love being misquoted. Bill O'Rielly suffered at the hands of Left2Right Bloggers in the past couple days.

Oliver,

I never said it wasn't worth the effort. Instead of repeating myself, allow me the unusual honor of quoting myself thusly, at best it is a rearguard defense that can only stem the more blatant attempts of monied influence in politics.

I don't know. That didn't sound like an unconditional surrender to me then, or now.

Posted by: Jay Cline | Jan 28, 2005 6:17:51 PM


Posted by: Alive in America

I agree with Paul on the gun issue: your right to bear arms is based on the company you keep (or more to the point those whose company is forced upon you). If he lived in my neighborhood, he'd probably be armed to the teeth.

The other argument, the tinfoil hat argument about keeping the government in check, is silly if not fatal. If I'm in trouble with the law I want a lawyer, not a gun.

A sane person feels relief when the police show up, relief that he or she will be safe and not be forced to make a life-or-death decision that day.

A sane person also realizes there is no protection like one's own protection in that unavoidable gulf of time separating the arrival of the bad guys from the arrival of the good guys. In extreme cases the "good guys" don't show up at all. Whole neighborhoods were spared the devastation of the L.A. Riots not through police action but because a critical mass of residents organized ad-hoc militias to protect themsselves.

I'm guessing that liberals who don't "get" the gun issue are the ones living in gated communities with low crime rates.

They're the ones who've never been through a natural disaster or riot and had to defend their homes from looters.

They're the ones who've never made a frantic phone call to 9-1-1 while a coked-up criminal pounds on the door hard enough to shake the walls.

Having a gun means knowing you and your children will survive, even if the door gives way and the madman outside invades your home.

When I think about what it would mean to be British I cringe. If you're British and the door gives way, it is you and your family who die. It's the law. Pick up a knife, a bat, or even a toy gun to protect yourself, and assuming you survive you go to prison. In Britain The State expects its subjects to die. Republicans want to make sure that can't happen in this country.

No one can really understand a situation like this, nor what it means in such a situation to have a weapon available, until one has experienced it firsthand.

I understand those who say they "don't like guns", so long as they aren't presuming to take mine. These are people who simply haven't needed one yet. I truly hope they never will. To find oneself in need of a weapon is a terrible situation, whether or not a weapon is at hand.

But there's one group of "dedicated activists" who will never know: politicians and celebrities. "Gun control advocates" in Congress and Hollywood are the most perverted kinds of hypocrites: gun grabbers with bodyguards.

Bracketed by Secret Service, police escorts, and armed professionals these people pontificate in safety on the evils of staying safe. The politicians and celebrities take the Second Amendment for themselves. The rest of us get "The British Model".

It's why I'm a Republican. Call me a single-issue voter if you like; I call it Maslow's Hierarchy.

Posted by: Alive in America | Jan 28, 2005 7:07:02 PM


Posted by: David

Alive in America:

I don't think the issue is so much whether you can have a gun; it's whether you can have certain kinds of guns and whether you can have dozens of them. The issue also involves certain criteria of gun ownership, like the absence of a criminal background, mental competency, etc. Of course, there are those who would like to outlaw all gun possession by private citizens, but the gun regulation being debated typically addresses firearms that offer destructive capacity beyond that which an insecure homeowner would need for self-defense.

Also, it seems to me that the folks I most often hear defending unlimited rights to gun ownership are not those living in dangerous urban areas or even suburbs. At least here in South Carolina, I usually encounter some guy who lives out in the country who keeps an extremely safe distance from any human predators. To be sure, I'm generalizing and don't mean to be snarky. But, the self-defense argument doesn't make the case for unlimited gun rights. Nor do hunting privileges or the fear of an overreaching government. If Iran's right to bear arms is limited, then surely yours is.

Maybe I'll make my Constitutional and political case against extensive gun rights later. No time for that now.

Posted by: David | Jan 28, 2005 7:34:47 PM


Posted by: Ha

"market-friendly [socialist]..."

Funniest thing I've read all day. Might as well cheerlead the self-described "entrepreneurial" nature of the government's Ready-To-Learn office.

Familiar Washington excuse: "We make better investment decisions with your coerced tax money than you could possibly ever make without the taxes; in that way we are market-friendly."

Posted by: Ha | Jan 28, 2005 7:46:34 PM


Posted by: anon

Campaign spending is a SYMPTOM of the ROOT PROBLEM, the Federal Government's now enormous power. Consider that government as a large monopoly corporation, thousands of times bigger than WalMart.

The amount of money spent to influence Washington politics indicates the VALUE of the power those politicians wield there.

If Federal politicans didn't have the POWER they did, there would simply not be this much spent on campaigns.

Posted by: anon | Jan 28, 2005 8:13:59 PM


Posted by: sierra

I agree with anon. Considering the vast resources governments control to one degree or another, I'm surprised how little money goes into political campaigns.

Posted by: sierra | Jan 28, 2005 8:28:50 PM


Posted by: Paul Deignan

Terrier,

You observed this:
The imflamatory rhetoric (and grandstanding bill proposals) obscures real problems and prevents solutions that would respect the 2nd amendment.


,posed this question:
"Our democracy has atrophied resulting in rampant extremism." <- have we already become a totalitarian state?

and recommended this:
I have long advocated that we triple the size of the House of Representatives and send all of them home to their districts and make all contact with to them public thru and on the internet. If they were spread out over the country (like the citizenry) they would be more difficult to lobby and we the people could have more direct access to them.


Posted by: Paul Deignan | Jan 28, 2005 9:07:00 PM


Posted by: Henry Woodbury

Remember the days when Microsoft only had one lobbyist!

Oliver -- I could be wrong, but I imagine that right now a party could use their campaign funds to buy bullets and guns. They certainly could use their campaign funds to buy bubble gum and floor wax. Funny how the people who write campaign finance laws don't worry about such alternate cases.

Posted by: Henry Woodbury | Jan 28, 2005 9:15:43 PM


Posted by: oliver

Jay, I did not mean to characterize you as advocating that we not even try to reform campaign financing. I meant to characterize you as having a bad attitude. To paraphrase your point, you say there's no hope of regulation making more than a dent in the problem. To paraphrase my point, there's every hope of making all the difference.

Posted by: oliver | Jan 28, 2005 9:42:15 PM


Posted by: oliver

HW, yes campaigns could use donations to buy guns and bullets, but government regulations would restrict how they could use them. Likewise campaigns are free to buy radio and TV air time, but regulations rightly restrict what they can do with it.

Posted by: oliver | Jan 28, 2005 9:51:39 PM


Posted by: Perseus

Don Herzog's use of J.S. Mill is conveniently selective. Mill also advocated giving multiple votes (plural voting) to the better educated and denying the vote to those on the public dole (see "Of the Extension of the Suffrage" in Considerations on Representative Government), which are far more sensible ideas than trying to limit the amount of money that candidates may spend on their election campaigns. But I'd be willing to accept campaign finance reform in exchange for plural voting (or even literacy tests) and disenfranchising those on welfare.

Posted by: Perseus | Jan 28, 2005 10:32:30 PM


Posted by: D.A. Ridgely

Mr. Herzog writes: If you invoke states' rights when you don't like federal policy, it's embarrassing to neglect them the moment you get excited about some other policy.

Of course, if one changes “state’s rights” to the 1st Amendment and “federal policy” to restrictions on free speech, I think a bit of embarrassment is called for there, as well.

Here, by the way, is a fun, little argument to meet Mr. Herzog’s constitutional argument about use and possession of firearms. Title 10 U.S.C. § 311 makes all able-bodied male U.S. citizens between 17 and 45 not already serving in the military members of the “unorganized militia.” [Congratulations, by the way, to those of you who are men over 45 and who served honorably in the unorganized militia even though you never knew it. I recommend writing to the DoD for your honorable discharge and to the DVA for your veteran’s benefits today!]

Now, it’s clear that the federal government does have the power to arm its militia (that’s straight out of Amendment II) notwithstanding any state law to the contrary, so all we’d have to do is amend the statute to include females and we can avoid the states’ rights argument entirely on that count. As for federal preemption of state law regarding defenses to criminal or civil charges or private suits, we have done that, ahem, constitutionally all the time, too. Witness the effect of Roe v. Wade on state anti-abortion laws.

Ain’t the law fun?

Posted by: D.A. Ridgely | Jan 29, 2005 8:03:31 AM


Posted by: D.A. Ridgely

Alive In America’s comments about dangerous neighborhoods reminds me of the story of the liberal judge who announced from the bench that, despite having recently been the victim of a mugging himself, he intended to continue to impose light sentences on convicted street criminals. Whereupon someone from the back of the courtroom shouted “Mug him again!”

Posted by: D.A. Ridgely | Jan 29, 2005 9:10:22 AM


Posted by: LPFabulous

How does a post about campaign finance reform (which, I'll admit, is a silly non-starter of an issue) turn into a discussion of gun rights?

Posted by: LPFabulous | Jan 29, 2005 7:23:30 PM


Posted by: Paul Deignan

"Two Bills from Rep. Bartlett"

Posted by: Paul Deignan | Jan 30, 2005 8:49:42 AM


Posted by: john t

Don H/Paul Deigman The English managed to survive with a system that totally favored aristocracy,if I may pick dates abitrarily,from the Glorious Revolution 1688 th the beginnings of expnded sufferage in 1832,rotten boroughs and all. Leveling in all it's manifest forms doesn't work'it is the chief illustrator of the law of unintended consequences. George Will said once that if anybody was really serious about about finance reform they would advocate a smaller and less influential fed gov't. Nobody,or not enough, people do and yet they're shocked at the corruption of Gucci Gulch. Mr. Herzog your comparison of corporations and unions is off base,unions take mandatory dues and over the years have contributed,directly no pacs here,untold millions. The fact that a non=personal entity can't vote is no reason why money can't be spent on legally recognized causes,the question is is there an equitable ground for all such entities. Given the moral corruption of our news managers,er,news sources,I'm basically for the idea of large contributors,they tend,I say tend,to balance themselves out. Paul D I'm suprised at your 1/28 8.29 am post. Police state,2nd amend.? Get a grip on yourself!

Posted by: john t | Jan 30, 2005 10:19:59 AM


Posted by: oliver

George Will can bite me.

Posted by: oliver | Jan 30, 2005 10:22:12 AM


Posted by: Paul Deignan

John T,

I hope you realize that the reason for the Second Amendment was not to insure that the citizenry were able to protect themselves from brigands or to promote more efficient hunting practices. Remember, the militia back then was a collection of volunteer locally supervised citizens not under the control of any central government.

Today, that situation seems far afield. We resolve our differences by elections and polls. Our politicians and military are well under the control of the people. Why? Is it that we are just better people than the Germans of 1930?

Given that, is it possible that the ties that currently bind us could be broken? Could our government become unaccountable to the people? Well, clearly part of it already is unaccountable. The 14th or any other amendment does not change the fact that Congress clearly has passed laws infringing the right of the people to bear arms. Other fundamental aspects of democracy have been nullified as well by executive and judicial imperialism. Nonetheless, the people seem to accept this, so it is not the laws themselves that are responsible for the stability of our democracy.

Consider that after 9/11 Bush had approval ratings temporarily in the 90%+ region at the same time he was announcing the Bush doctrine. Now his approval ratings are back to the 52% characteristic level. So right after 9/11 there were many people who while opposed to just about everything Bush is doing now, were supportive of him. Fear.

Are WMD really a figment of our imagination? Were 9/11, Pearl Harbor, and engineering catastrophes such as the Columbia and Challenger "accidents" not predictable? You see, our greatest failures come not from a lack of intelligence, but from a lack of imagination. Not wild imagination -- rational system theoretic imagination. Because we are lazy thinkers, we imagine that our simple model of the world is the reality of the world. That is an error in reason.

The trick is to think of human systems as not too different from engineering systems. What makes them work? What are the working relationships? What is the space of inputs/outputs? Does the data support this or that relationship?

If you understand the system dynamics, you can predict intelligently. Thus, my election predictions were nearly dead on under the stated assumptions. That is better than the insider predictions (how could they have thought the exit polls were possibly correct?; Cheney even publicly predicted +5%) and the polls with the exception of Pew. (Results and analysis at blog).

I have found that the greatest determinant of accurate and generalizable models is the knowledge of which inputs to use. Based upon this I am able to outperform published results with ease from heart diagnostics to engine torque estimation. The same principles apply here. I believe the framers also where well aware of this. Thus, they provided the Second Amendment. Human nature has not changes for the better since that time.


Posted by: Paul Deignan | Jan 30, 2005 11:12:05 AM


Posted by: Cole

D.A. Ridgeley,

I think Herzog very much meant to say that the right to vote is inalienable. After all, if this right were alienable, then we could buy and sell votes, and that's just the sort of thing he targets in the "market fundamentalism" part of the post.

Posted by: Cole | Jan 30, 2005 5:59:14 PM


Posted by: Terrier

Paul Deignan, are you currently recruiting a neighborhood cell? I don't mean this facetiously. Have the system dynamics convinced you that we must be prepared for armed resistance? Most of our fellow consumers are cattle who can be reliably lead to the nearest abattoir. So what else is new? Is the revolution in their minds now?

Posted by: Terrier | Jan 31, 2005 9:59:59 AM


Posted by: john t

Paul Deigman, You should read David Hackett Fischer's book on Paul Revere whichis about a lot more then just him. Included is a photo of some of the arms actuallly used at Lexington and Concord,muskets,squirrel guns,blunderbusses,you name it. The militia arose from the fact that the people were already armed,David Besallies ignorant work of lies aside. As to the Constitution it clearly call for the fed Gov't arming and training said militia. This however is beside the main point ,the post that I initally responded to. It is common to refer to the world being made up of two kinds of people,you then pick your two examples to make a point. Today's example is;the world is made up of those who want centalized power and those who don't. You worry about the Dems becoming to weak and America devolving to a one party state,you have nothing to fear. The Dems may become as weak as the Repubs were in the 70's but I doubt even that. Paul,wer there but two people left on earth one would want colectivism and the other freedom. And you touched on something important. As some of the ratifying conventions stated and as Justice Joseph Story states in his commentaries,an armed militia constitutes a free people,as another founder said,"the people are the militia." Well the militia has changed but we still have the 2nd amend. as we should. Interestingly the 2nd is one of the few pieces of law that has no landmark cases. I guess the point of all this babble is given human nature{eliz. Anderson aside] and the still magnificent remnants of our constitution ,you needn't worry about a police state.

Posted by: john t | Jan 31, 2005 10:07:54 AM


Posted by: Tom Perkins

Terrier, you wrote:

"Paul Deignan, are you currently recruiting a neighborhood cell?"

You are late to the party. The cells have been in place for decades, in some cases. It is no neccessary for the mass of sheeple to be enraged or even interested. Their uncaring is as invaluable.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | Jan 31, 2005 1:37:29 PM


Posted by: arbitrary aardvark

Quick note on paul revere: I only this week learned he was among other things, a cartoonist, like franklin. OK, another: the battle of lexington and concord was about cannons, so we aren't just talking about handguns.
I like this post. Not saying I agree with it. It brings up two of the pillars of our democracy: free speech, and armed citizens.
Re Mill: not everyone agrees (Jim at Vice Squad) but Alice Rossi claims that On Liberty was written mostly by Harriet Taylor Mill - so it could be in conflict with other JSM writings.
The First Amendment protects both the idea of marketplaces (commercial speech) and the marketplace of ideas. If you are opposed to electoral communications, it is the first amendment you oppose, not just the restoration act. (I litigate about campaign speech, because those cases should be winnable. I don't litigate about gun rights, although I support them.) The gun act might be doable via the commerce power, the militia power, or, as you say, 14.5 with some legislative history. The second hasn't, but should be, incorporated. Gun rights and speech rights are implicit in the concept of ordered liberty - any society that loses one will lose the other, usually within 50 years.
I'm glad you brought these bills to our attention. I had previously had a lower opinion of the guy.

Posted by: arbitrary aardvark | Feb 3, 2005 9:26:28 PM


The comments to this entry are closed.

« previous post | Main | next post »