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Clayton Cramer's BLOG
Clayton's commentary on news and events of the day. Broadly speaking, I'm a conservative with libertarian sympathies (getting more conservative as my children get older).
Relocating to Boise? Use my realtor, neighbor, and friend, Cindy Smith csmith@1realtyone.com.
Sorry, high pressure isn't included.
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[3] In the context of a facial challenge, Nordyke’s contentions are unpersuasive. Gun possession can be speech where there is “an intent to convey a particularized message, and the likelihood [is] great that the message would be understood by those who viewed it.” Spence, 418 U.S. at 410-11. As the district court noted, a gun protestor burning a gun may be engaged in expressive conduct. So might a gun supporter waving a gun at an anti-gun control rally. Flag waving and flag burning are both protected expressive conduct. See Johnson, 491 U.S. at 404-06.
They don't directly say that waving a gun as a political act is protected speech, but you would have to be an idiot not to see that point. It might provide an interesting opportunity to attack brandishing laws as a violation of free speech. That's absurd, but it should cause some discomfort for liberals, since the argument in favor of laws against flag-burning was the potential for violence that it might provoke--and that's the same argument for laws against brandishing.
More interesting is the point that the decision makes about the Second Amendment claim. While they upheld the existing Hickman decision of the 9th Circuit that claimed the Second Amendment does not protect an individual right, they did so on strictly procedural grounds, admitting that they might have decided otherwise if they had been free to do so:
We recognize that our sister circuit engaged in a very thoughtful and extensive review of both the text and historical record surrounding the enactment of the Second Amendment. And if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson.
They also had a few words to say about the recent Silveira decision:
We should note in passing that in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), another panel took it upon itself to review the constitutional protections afforded by the Second Amendment even though that panel was also bound by our court’s holding in Hickman. The panel in Silveira concluded that analysis of the text and historical record led it to the conclusion that the collective view of the Second Amendment is correct and that individual plaintiffs lack standing to sue.
However, we feel that the Silveira panel’s exposition of the conflicting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary. We agree with the concurring opinion in Silveira: “[W]e are bound by the Hickman decision, and resolution of the Second Amendment issue before the court today is simple: plaintiffs lack standing to sue for Second Amendment violations because the Second Amendment guarantees a collective, not an individual, right.” Silveira v. Lockyer, 312 F.3d 1094 (9th Cir. 2002) (Magill, J., concurring). This represents the essential holding of Hickman and is the binding law of this circuit.
There was simply no need for the Silveira panel’s broad digression. In a recent case, an individual plaintiff cited to the Fifth Circuit’s holding in Emerson and argued that the Second Amendment protects an individual right to bear arms. United States v. Hinostroza, 297 F.3d 924, 927 (9th Cir. 2002). However, we summarily, and properly as a matter of stare decisis, rejected the Second Amendment challenge on the grounds that it is foreclosed by this court’s holding in Hickman.
Judge Gould's concurring opinion, however, was a bit more forceful:
I join the court’s opinion, and write to elaborate that Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), was wrongly decided, that the remarks in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), about the “collective rights” theory of the Second Amendment are not persuasive, and that we would be better advised to embrace an “individual rights” view of the Second Amendment, as was adopted by the Fifth Circuit in United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001), consistent with United States v. Miller, 307 U.S. 174 (1939). We should recognize that individual citizens have a
right to keep and bear arms, subject to reasonable restriction by the government. We should also revisit whether the requirements of the Second Amendment are incorporated into the Due Process Clause of the Fourteenth Amendment.
Yeah! And then it gets good, at the end!
The Second Amendment protects not the rights of militias but the rights “of the people.” It protects their right not only to “bear arms,” which may have a military connotation, but to “keep arms,” which has an individual one. By giving inadequate weight to the individual right to keep arms, the Silveira majority does not do justice to the language of the Second Amendment and disregards the lesson of history that an armed citizenry can deter external aggression and can help avoid the internal danger that a representative government may degenerate to tyranny. The right to “keep and bear arms” is a fundamental liberty upon which the safety of our Nation depends, and it requires for its efficacy that an individual right be recognized and honored.
I reach this conclusion despite a recognition that many may think that these ideas are outmoded, that there is no risk in modern times of our government becoming a tyranny, and that there is little threat that others would invade our shores or attack our heartland. However, the Second Amendment was designed by the Framers of our Constitution to safeguard our Nation not only in times of good government, such as we have enjoyed for generations, but also in the event, however unlikely, that our government or leaders would go bad. And it was designed to provide national security not only when our country is strong but also if it were to become weakened or
otherwise subject to attack. As the people bear the risk of loss of their freedom and the pain of any attack, our Constitution provides that the people have a right to participate in defense of the Nation. The Second Amendment protects that fundamental right.
Okay, I know who I want elevated to the Supreme Court!
A Very Powerful Letter from an Iraqi Exile to Prime Minister Blair
This is on the Prime Minister's website. This Iraqi exile has some harsh things to say about the U.S., but points out:
Why is it now that you deem it appropriate to voice your disillusions with America's policy in Iraq, when it is actually right now that the Iraqi people are being given real hope, however slight and precarious, that they can live in an Iraq that is free of the horrors partly described in this email?
Whatever America's real intentions behind an attack, the reality on the ground is that many Iraqis, inside and outside Iraq support invasive action, because they are the ones who have to live with the realities of continuing as things are while people in the West wring their hands over the rights and wrongs of dropping bombs on Iraq, when in fact the US & the UK have been continuously dropping bombs on Iraq for the past 12 years.
Of course it would be ideal if an invasion could be undertaken, not by the Americans, but by, say, the Nelson Mandela International Peace Force. That's not on offer. The Iraqi people cannot wait until such a force materialises; they have been forced to take what they're given. That such a force does not exist - cannot exist - in today's world is a failing of the very people who do not want America to invade Iraq, yet are willing to let thousands of Iraqis to die in order to gain the higher moral ground. Do not continue to punish the Iraqi people because you are "unhappy" with the amount of power the world is at fault for allowing America to wield. Do not use the Iraqi people as a pawn in your game for moral superiority - one loses that right when one allows a monster like Saddam to rule for 30 years without so much as protesting against his rule.
Some will accuse me of being a pessimist for accepting that the only way to get rid of Saddam is through force. I beg to differ; I believe I have boundless optimism for the FUTURE of Iraq, where Iraqis are able to rebuild their shattered country, where Jews, Muslims, Christians, atheists, communists - all peoples of any and all backgrounds are able to live in peace and safety and without fear of persecution. I beg you to imagine such an Iraq, such a democracy in the Middle East, and ask where in that do you see pessimism? Such an Iraq is what is being envisaged and sought by many millions of Iraqis; such an Iraq is where I hope I will be able to take my children.
If you want to make your disillusions heard then do speak out, put pressure on Blair, Bush & Co to keep to their promises of restoring democracy to Iraq. Make sure they do put back in financial aid what they have taken over the years, and make sure that they don't betray the Iraqis again. March for democracy in Iraq. If you say that we can't trust the Americans then make sure that you are a part of ensuring they do fulfil their promises to the Iraqis.
I found this article over at instapundit.com, but contrary to Glenn's somewhat depressing tone, the article really points out that any nation that can redirect asteroids for use as a weapon can build nuclear weapons much more cheaply. It is an interesting article, however, for its discussion of the sizes of recent meteor collisions, and the frequency of these collisions. posted by Clayton at 8:47 AM permalink
Good News From Iraq
The Guardian is reporting that Hussein has put the defense minister, Lieutenant-General Sultan Hashim Ahmad al-Jabburi Tai, under house arrest. If the defense minister was really considering a coup d'etat that's good for the U.S. (though not necessarily for the Iraqi people). If he wasn't, then this will tend to drive even more people within the government into silent opposition to Hussein. posted by Clayton at 8:31 AM permalink
