On the 9th and 14th

The Cato Institute has an analysis of current conservative judicial thinking about those rights not enumerated in the constitution. Using Charles Schumer's questioning of a current 3rd Circuit Court of Appeals candidate over his legal basis and interpretation of Griswold that found a right of privacy in marriage and thus struck down a ban on the purchase of contraception, Roger Pilon proves an interesting point. Currently Scalia and in another venue Bork hold a position that makes the 9th Amendment a nullity and thus is untenable.

The analysis certainly sheds light on the ability of the court to apply stare decisis beyond the Constitutional framework using English common law and the dangers of majority tyranny. The majority tyranny analysis of the Madisonian question are worth reading this article alone.

On Memorial Day

I've been thinking a lot about guns recently. Its likely the outcome of worrying about my new daughter and a more secure solution to home defense than my old loaded shotgun. Its lead me down in depth looks at the Constitution and the Bill of Rights - The American Tradition. Its made me hurt that folks like Bellesiles can belittle the courage of a bunch of armed farmers in the Revolution, or the strength of those who made the journey west with their lever action Winchesters.

As I've watched it all and listened to our reaction to our latest challenge I am only really proud.

To those who have and will continue to sacrifice for the rest of us.

Thank you.

The Speech Slippery Slope

Dr. Eugene Volokh (nice name!) has a very well put piece regarding a case of French speech restrictions applied to a prominent historian who, in the words of the French judge, didn't present a balanced statement regarding the massacre of Armenians in Turkey while being interviewed for a short news piece. Dr. Volokh makes his case clearly on the reasons that we Americans should avoid the desire of some in the legal establishment to chart a legal course closer to European systems.

The point I think he makes in closing, but doesn't spell out in so many words, is that one of the chief strengths of the U.S. legal system is its desire to find "bright white lines" that can be applied in all cases and that take the practical reality of human behavior into consideration. Our legal and judicial history has been built by giving the benefit of the doubt to all American behavior, even if that means tolerating more bad behavior. It is always refreshing to see how the doctrine of "innocent until proven guilty" generally holds forth in America. I think this is reflected in many citizen's disdain of "Zero Tolerance Policies". In point of fact, the abridgement of this concept is one of the things that most steams me regarding the DMCA and the CBPDTA proposal. Europe had best remember that we were the rouges, and in some cases the prisoners, that didn't want to be in Europe or that Europe didn't want.

I think much is lost when individual victims of crime hold forth that their injury deserves special attention at the cost of the many when in actuality this special attention often comes at the direct cost of another individual. It has always seemed to me that letting a few more criminals go so that we can have certainty that no innocent is executed or incarcerated in our (my!) name is a very small price to pay. What is the point of any government if, in an attempt to over protect the masses, it fails any number of the innocent people it is sworn to protect?

I also find interesting parallels in this post by Dr. Volokh and his earlier post on the comment by a Washington Post Editorialist that the only thing anti-gunners wish to ban is handguns.

Squashing Saddam Like A Bug

I think Lileks has said everything there is to say about why we must depose Hussien at the other end a an explosive. A favorite passage

And the Belgian organization Frown is already drafting plans to mount an international campaign of scowling, which will force his regime to divert precious resources to rubber chickens, joy-buzzers and Singing Telegram Gorillas to improve their standing abroad. Meanwhile, the French organization Surrender is drafting plans to cede Marseilles to whomever wants it, just in case.

Lileks ends with

Extra credit for those who said “because we don’t know if the next regime will be worse.” Explain, in 50 words or less, how this is possible.

When writing your answer, remember the new motto of the American Air Force: neatness counts.

Napster Body Blows

As if things weren't bad enough, greed kept the Senior Fanning from dealing with the fact that they had signed a financing with a liquidity preference to the venture capitalists. Both Konrad Hilbers and Shawn Fanning resigned today.

Karma. Also a poster child for the statement, "Sell early, sell often."

Eric S. Raymond is Armed and Dangerous

Eric S. Raymond, who has long had a pro gun stance on his website, has started a blog named Armed and Dangerous. He starts off with a good rant about the current state of the media and arms. I guess I'm not the only technology/second amendment crossover pundit around.

Lileks Screed On Patch Adams

Any essay that ends:

Toleration makes Baby Adolf cry.

is a must read!

Ambivalence Toward Motherhood

The New York Times has an article regarding the ambivalence that many mothers face in actually having a baby. Seeing much of this first hand and feeling sorry for my wife as she tries to get past the fact that perfection is not the story in the baby raising books, but instead being willing to be frustrated and confused really brings this home. Maybe Lamaze class needs a section on the fourth trimester and feeling lost. As both my wife and I are type-A personalities, it has taken time to realize that sometimes the crying can't be fixed...

Don't get me wrong however. My daughter is amazingly beautiful and we wouldn't give her up for the world. We just weren't prepared for the downsides and they are not the downsides we worried about while my wife was pregnant. Except for Sleep...

George Will on Michael Bellisiles

You know a situation is main stream when George Will covers it in the "Last Word" in Newsweek for the week of May 20th.

He used the fraud word, too.

US v. Miller and Anti-Gun Newspapers

I am simply amazed by the number of papers holding up US v. Miller as supporting a states rights models. Others here, here, here, and here.

US v. Miller is a case against two mobsters transporting a sawed off shotgun. The case was dismissed at the district level as the court ruled that the National Firearms Act of 1934. The US appealed the case to the Supreme Court. Neither the Mobsters (Miller and Layton), nor their counsel showed up. The Supreme Court held that the mobsters were members of the Militia as the Militia is defined in Federal Code as all able bodied male citizens or prospective citizens aged 18 to 35. They then held that in absence of any evidence that a sawed off shotgun was a weapon involved in military use - since there was no evidence presented by any defense - it was thus not covered by the 2nd amendment. The obvious inference is that any weapon that is related to the military is covered by the 2nd amendment. The court did not say much more as the case was remanded to the district court for trial. Miller died before the new trial and Layton plead for 5 years probation.

If you don't belive this reading, feel free to read the case and the background documents yourself. It is clear that the editorialists above have not.

Update: I'm not the only person who has noticed similarities in the OpEds.

Eugene Volokh's Second Amendment OpEd and Gun Registration

Dr. Eugene Volokh has an excellent OpEd in the Wall Street Journal. Rand Simberg doesn't agree that there would be support for registering guns. I tend to agree with the logic of Rand and if we do get a definitive right to bear arms against tyranny decision from the Supremes it seems that registration would likely lose in a later challenge as undermining much of the protection against oppressive government.

The one thing that I'm not sure about is what the point of registration actually is. I understand a desire to license gun ownership so as to enforce certain basic knowledge and skills, but simple registration has no real purpose outside of licensing and maybe taxation or confiscation. There is a form of gun regulation that should be acceptable to many across the gun control spectrum. I've heard of this before - I think from Jim March - so I don't want to take full credit. The concept is often referred to as modified Vermont. The concept is that the state can require certain storage requirements and training requirements, but the would be enforced only after a law was broken. Having the correct private course completion certificate or proof of purchase of a lockbox or safe would be defacto proof of innocence to otherwise penalty enhancing charges.

DOJ Supports 2nd Amendment Individual Rights

The story is everywhere, but I had to mention it with a moment of happy silence. There is some chance that this long overlooked right may finally get full recognition. The only thing missing is a good definitive Supreme Court case in this beneficial environment. Interestingly, the anti-gun folks have pointed out that the correct DOJ interpretation endangers quite a few gun laws on the books.

It will be very funny when a future decision says that U.S. v. Miller specifically endorses private ownership of auto selectable M-16s.

California is but a case away from having much of its onerous restrictions nixed. Interestingly, I doubt that this will stop waiting periods which I don't have much of a problem with. I do hope it curtails the 1 handgun a month restriction (1 per waiting period might be palatable) and 10 round clip enforcement.

The best news of all is that this will hopefully start to unwind the damage that could and has been caused to the other amendments through ignoring the Second not to mention the inherent racism of most of the gun laws in the first place.

9th Circuit Denies Motion to Dismiss DMCA Case

Judge White denied a motion by Elcomsoft to dismiss their corporate indictment on charges of violating the anti-circumvention clauses of the DMCA.

The judge did effectively shoot down the argument that the law impermissibly allows an copyright owner to take a work back from the public domain or keep it from the public domain and I now understand the argument that both he and the 2600 appeals court were making about this issue. Interestingly Judge White points out that a savvy end user can defeat a protection device, but he just can't traffic in that tool. Thus, once a movie falls into the PD (watch for Eldred v. Ashcroft) then I can use my hacking skills to grab the DVD contents and post them on my website.

I still think this misses the fundamental point though. Before the DMCA, all copyright laws were actions based in the sense that a potential infringer had to do a public act to fall into its purview. Now, a copyright owner can fall afoul by doing something before an infringement takes place. A Priori speech restrictions in pursuit of copyright trouble me. Granted that White feels that since this is not a content based restriction it is acceptable. It just seems very problematic that I can publish this source code in a book - and even though it is on the continuum of speech and Judge White even agrees that the continuum includes object code - it is somehow different.

One of the funnier thoughts I had was that there might be a challenge to the DMCA under the equal protection clause. As a copyright holder in the tool to circumvent Adobe Ebooks, Elcomsoft is not being treated the same as Adobe. I know... I know... Elcomsoft could employ anti-circumvention tools too... It was just a silly thought.

Is there any situation outside of National Security, contract breach, and obscenity that I can be criminally prosecuted for publishing in book form?

Dr. Volohk's Ammendment Challenge

Eugene Volokh has an interesting challenge to come up with an amendment to the Constitution. My submission is the Technology Freedom Amendment

In furtherance of Amendments I and II of the U.S. Constitution, Congress and the States shall make no law restricting the right of the people to own and utilize Technology. Technology shall not be limited to and shall include firearms, software in source and object code, and scientific processes. Nothing in this amendment shall limit the right of Congress or the States to pass laws regulating the use of Technology in commission of violent crimes, property crimes, and intellectual property crimes. However, all laws regulating the subsequent use of Technology shall be subject to strict scrutiny.

The current debates about many of the most annoying freedom issue in the US really boil down to a desire to limit the access and ownership of certain tools so as to possibly increase the social welfare. This line begins to blur as the definition to "tool" and "speech" cross at computer source code. By stating the inalienable right of humans to own and use tools in a presumptive libertarian way and thus subjecting the use regulations to strict scrutiny it becomes clear that punishing bad behavior instead of potential bad behavior at the cost of innovation and the natural benefits of tool use to the human is what is acceptable in a truly free society. Owning burglars tools and using them to open your own door is fine. Using them in the commission of a burglary can be punished. Same for Guns in a murder or decryption source code in a piracy ring.

Ah the sanity this could bring!

Presumptive Libertarian

Eugene Volokh has a very interesting piece responding to Francis Fukuyama's Oped in the Journal regarding a supposed decline of the political strength of the libertarian movement in America based on September 11 and cloning. I'll let Eugene speak for himself.

What I found very compelling was his introduction of the concept of a "presumptive libertarian." This is the closest I've seen to being able to encapsulate my own political world view.

To the extent that libertarianism has worked itself into American political culture, it has been as what I call "presumptive libertarianism" -- a presumption that people should be free to choose, and free to keep and use their property, but one that can be rebutted when there are strong enough arguments to the contrary, e.g., national defense, protecting children, and so on.

Always nice to find a simple concept to express a relatively complete political system.

Joe Canda Moved to LA

Some may remember a Canada Day party held here in Silicon Valley where the Quicktime on all the laptops was "I Am Canadian!" Well, Jeremy Lott wrote an excellent piece on the fact that Joe Canada moved to LA to pursue better opportunities. He also inquires into what really makes a Canadian nation, how it just might be ending in a way, and how that may not be all that bad.

Armed Pilots

I think the key issue being left out of the armed pilots debate has to be the air to air missiles. If another high-jacking occurs, there WILL be a pair of F-15s, F-16s, or F-18s armed with heat seeking missiles pointed at your plane a thumb twitch away. Don't you want to have one more line of defense short of a missile in the GE engine?

My cousin who now flies for Fedex used to talk about the compact 45's they issued all Air Force pilots that flew high-jackable aircraft, though the general public is/wasn't supposed to know. Something like 90% of the commercial pilots are all ex military and all of them are pistol trained and specifically hijacking pistol trained. I'd argue that they may be better than Marshals when it gets down to the final seconds between a highjack and an American fighter jet downing an airliner.

Historical Background in Israel and Palestine

Brett Thomas over at McFreedom has an excellent analysis of the real issues (outside of the religious and anti-Semitic ones) of the Israeli/Palestinian conflict. This question was formulated over beers and burritos as Brett and I had a meal after coming back from some trap shooting.

I had stated - by pulling it out of my *ahem* - that I thought the situation was that Israeli settlement was on a practical level an exceedingly dumb long term strategy in the Gaza Strip particularly. However, I doubted that Israel was doing anything dramatically different than what the US did to Indian land in the 19th century. The property rights seem to both of us to matter and Brett found some answers that tend to support that what the settlers are doing is not exactly morally wrong. A fundamental difference is that unlike the US in the Indian Wars, this land was taken in a defensive war and still didn't belong to any individual.

From a realpolitik point of view Israeli settlement is a really dumb idea though. Every time I think about it I remember the 60 minutes piece on the beginning of this Intifada and the killing of the first Palestinian boy to get major coverage this time around. Something like 7 stucco monsters were guarded by a detachment of IDF that had to fly in the bread on Black Hawk helicopters and the Israelis living there saw nothing wrong. Even though it was only a year or so ago it has been a long time...

I also tend to agree with Brett about the rights of return as well.

Stephen Ambrose Diagnosed With Cancer

Talk about injury following insult. Stephen Ambrose has diagnosed with lung cancer. Having just lost my own mother to a likely similar diagnosis, I feel for the Ambroses. I guess it was one hell of a year for Dr. Ambrose between the HBO miniseries (arguably some of the best television ever created), the plagiarism scandal, and now this.

I wish him the best of luck. Hopefully the diagnosis will be better than most and he can beat it. I look forward to those books he still has left.