The Seventh Sense

How It All Started: A Reminder

IN CONGRESS, JULY 4, 1776

The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

— John Hancock

New Hampshire:
Josiah Bartlett, William Whipple, Matthew Thornton

Massachusetts:
John Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry

Rhode Island:
Stephen Hopkins, William Ellery

Connecticut:
Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott

New York:
William Floyd, Philip Livingston, Francis Lewis, Lewis Morris

New Jersey:
Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark

Pennsylvania:
Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross

Delaware:
Caesar Rodney, George Read, Thomas McKean

Maryland:
Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton

Virginia:
George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton

North Carolina:
William Hooper, Joseph Hewes, John Penn

South Carolina:
Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton

Georgia:
Button Gwinnett, Lyman Hall, George Walton

Bush's Wiretapping: Now 0-For-3 With The Courts

Greenwald:

A Bush-41-appointed Federal District Judge yesterday became the third judge -- out of three who have ruled on the issue -- to reject the Bush administration's claim that Article II entitles the President to override or ignore the provisions of FISA. Yesterday's decision by Judge Vaughn Walker of the Northern District of California also guts the central claims for telecom immunity and gives the lie to the excuses coming from Congress as to why the new FISA bill is some sort of important "concession." More than anything else, this decision is but the most recent demonstration that, with this new FISA bill, our political establishment is doing what it now habitually does: namely, ensuring that the political and corporate elite who break our laws on purpose are immune from consequences.

Judge Walker's decision (.pdf) was issued in the case of Al-Haramain v. Bush. That lawsuit was brought against the Bush administration by an Oregon-based Muslim charity and two of its American lawyers, alleging that the Government violated FISA -- i.e., broke the law -- by eavesdropping on their telephone conversations without the warrants required by law. The warrantless eavesdropping occurred as part of Bush's NSA spying program, which entailed spying on Americans' international communications without warrants (the lawyers were in London when they spoke on the telephone to their client in Oregon). What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.

The Bush administration argued that the plaintiffs could not prove their case because, to do so, they would have to rely on documents and information that the President deemed to be "state secrets" (i.e., the Government's eavesdropping activities) and which are, therefore, unusable in court. That is the argument the court rejected -- holding instead that Congress, when it enacted FISA, established a procedure that allows even classified information to be considered by a court, and the President's Article II powers cannot override the FISA statute. As the Court pointed out, Congress' core purpose in enacting FISA in 1978 was to bar the President from exercising untrammeled, unchallenged power in the area of eavesdropping. Thus, presidential assertions of secrecy do not override the law.

He's got a deeper analysis.  Read it.

UPDATE:  And yes, I am disappointed that Obama supported the new FISA bill which gives telecoms immunity.

Hurricane Season

Not for nothing, but it seems to me that if you name a hurricane "Bertha", you're just asking for trouble.

Tropical Storm Bertha gathers steam in Atlantic

How To Confuse An Idiot

Very funny instructional video:

 

More Nauseating Food

Introducing the bacon cheeseburger....

... with a sliced Krispy Kreme donut serving as the bun.

Yes, this is a cultish delicacy.  It's known as the Luther Burger, named (perhaps apocraphly) after Luther Vandross, who supposedly loved them or possibly invented them.

Wretched excess, yes?

Watermelon Is The New Oyster

Doing my duty here, keeping you up to date on the latest sex advice:

Texas A&M scientists say watermelon contains ingredients that deliver Viagra-like effects to the body's blood vessels and may even increase the libido.

Researchers from Texas A&M long have studied the fruit and found that it contains natural "enhancers" to the human body.

"We've always known that watermelon is good for you, but the list of its very important healthful benefits grows longer with each study," said Bhimu Patil, director of Texas A&M's Fruit and Vegetable Improvement Center, in a news release from the university.

Read the whole thing (you know you want to).

UPDATE:  Lee Ann quips, "If you eat watermelon for more than four hours, consult a physician."

Trust Me -- You Won't Notice Any Difference

Starbucks closing 600 stores

Modern Day Salem

Via Volokh, an interesting case (pdf) from Texas involving the exorcism of demons from a teenage girl:

On Friday evening, before her parents left town, Laura [Schubert, a 17-year-old congregant,] attended a youth group activity at Pleasant Glade in preparation for a garage sale the next day. The atmosphere during this event became spiritually charged after one of the youth announced he had seen a demon near the sanctuary. The youth minister, Rod Linzay, thereupon called the group together to hear the story, and after hearing it, agreed that demons were indeed present. Linzay instructed the youth to anoint everything in the church with holy oil and led a spirited effort throughout the night to cast out the demons. Finally, on Saturday morning at about 4:30 a.m., Linzay gathered the exhausted youth together to announce that he had seen a cloud of the presence of God fill the church and that God had revealed a vision to him. Although exhausted, the young people assisted with the garage sale later that morning.

At the Sunday morning worship service the next day, several young people gave testimonials about the spiritual events of the preceding day. At the conclusion of the service, the youth, including Laura and her brother, prayed at the altar. During these prayers, Laura’s brother became "slain in the spirit," collapsing to the floor where church members continued to pray into the early afternoon.

Later that afternoon, Laura returned to church for another youth activity and the Sunday evening worship service. During the evening service, Laura collapsed. After her collapse, several church members took Laura to a classroom where they "laid hands" on her and prayed. According to Laura, church members forcibly held her arms crossed over her chest, despite her demands to be freed. According to those present, Laura clenched her fists, gritted her teeth, foamed at the mouth, made guttural noises, cried, yelled, kicked, sweated, and hallucinated. The parties sharply dispute whether these actions were the cause or the result of her physical restraint.

Church members, moreover, disagreed about whether Laura’s actions were a ploy for attention or the result of spiritual activity. Laura stated during the episode that Satan or demons were trying to get her. After the episode, Laura also allegedly began telling other church members about a "vision." Yet, her collapse and subsequent reaction to being restrained may also have been the result of fatigue and hypoglycemia. Laura had not eaten anything substantive that day and had missed sleep because of the spiritual activities that weekend. Whatever the cause, Laura was eventually released after she calmed down and complied with requests to say the name "Jesus."

On Monday and Tuesday, Laura continued to participate in church-related activities without any problems, raising money for Vacation Bible School and preparing for youth drama productions. Her parents returned from their trip on Tuesday afternoon.

On Wednesday evening, Laura attended the weekly youth service presided by Rod Linzay. According to Linzay, Laura began to act in a manner similar to the Sunday evening episode. Laura testified that she curled up into a fetal position because she wanted to be left alone. Church members, however, took her unusual posture as a sign of distress. At some point, Laura collapsed and writhed on the floor. Again, there is conflicting evidence about whether Laura’s actions were the cause or result of being physically restrained by church members and about the duration and force of the restraint. According to Laura, the youth, under the direction of Linzay and his wife, Holly, held her down. Laura testified, moreover, that she was held in a "spread eagle" position with several youth members holding down her arms and legs. The church’s senior pastor, Lloyd McCutchen, was summoned to the youth hall where he played a tape of pacifying music, placed his hand on Laura’s forehead, and prayed. During the incident, Laura suffered carpet burns, a scrape on her back, and bruises on her wrists and shoulders. Laura’s parents were subsequently called to the church. After collecting their daughter, the Schuberts took her out for a meal and then home. Laura did not mention her scrapes and bruises to her parents that night.

The girl's family eventually sued the church for false imprisonment, infliction of emotional distress, and assault...

claiming that she was involuntarily restrained, and that this caused a wide range of emotional distress damages: "angry outbursts, weight loss, sleeplessness, nightmares, hallucinations, self-mutilation, fear of abandonment, and agoraphobia. Despite the psychiatric counseling, Laura became increasingly depressed and suicidal, eventually dropping out of her senior year of high school and abandoning her former plan to attend Bible College and pursue missionary work. Finally, in November 1996, Laura was diagnosed as suffering from post-traumatic stress disorder, which the doctors associated with her physical restraint at the church in June 1996. One of the expert witnesses at trial testified that Laura would 'require extensive time to recover trust in authorities, spiritual leaders, and her life-long religious faith.' Ultimately, Laura was classified as disabled by the Social Security Administration and began drawing a monthly disability check."

The jury found found for the girl and awarded her $300,000 in damages.

But the Texas Supreme Court has reversed, on the grounds that emotional distress liability (as opposed to liability for physical injuries as such, which were apparently very slight, and for which Schubert apparently didn't claim any damages) was unconstitutional.

Their problem?

The jury was given instructions by the trial court that they should view what happened through the lens of a secular act in a secular setting.  The Supreme Court of Texas disagreed, and said that the "laying of hands", the act upon which the lawsuit was predicated, was "normal" for that setting and that church, and therefore restraining the girl, even it was unwanted by her, was not actionable (at least as to emotional dammage).

Like Volokh, I disagree.  It's quite simple.  She didn't want to be restrained (or so the jury believed), and that's false imprisonment.  End of story.

That aside, I'm startled to find this kind of thing still going on in the 21st century.

Yes, The Rumors You Have Heard Are True

I approved this message...

Michael's At It Again With The Gay Thing

From Thursday, it's Michael Medved:

The act of sexual intercourse between a man and a woman is the only human interaction capable of producing offspring, and therefore enjoys recognition in every culture as the most significant form of intimacy.

"Significant" is a nice wishy-washy word.  Frankly, I didn't know that we ranked various forms of sexual intimacy, in this culture or any culture.  Go know.

But let's go with the premise for a second.  If the act of babymaking is the MOST significant form of intimacy in this culture, wouldn't it stand to reason that the second-most significant form is the ACT of babymaking, even if it doesn't result in a baby?  And if that's true, shouldn't we celebrate it by having porn channel after porn channel?

But I digress....

Gay couples, as well as heterosexual partners, may engage in other erotic contact but this affection can’t count as consequential or as serious as intercourse.

Serious or consequential to whom?  That's a frightfully judgmental statement.

But besides, "intercourse" IS erotic contact, and it can happen between gay couples.  Just look at the definition of the word:

in·ter·course (noun): physical sexual contact between individuals that involves the genitalia of at least one person

See how that works?  So you can have vaginal intercourse, anal intercourse, etc.

Society and law rightly give unique weight to this one form of physical contact, and pay less attention to other forms of affection or pleasure.

No bonehead.  Society and law don't give unique weight to one form of physical contact.  They just DON'T.  Certainly not the law.

(Are you suggesting, Mike, that if a man rapes another man, the law doesn't care, because it's not heterosexual intercourse?  C'mon.....)

What, after all, does it mean to “consummate” a same sex marriage?

Oh, Mike.  Sit down.  I'd like to introduce you to Mr. Merriam-Webster.

Hi, Mike.  I'm a dictionary.  I hear you have a problem with the word "consummate".  No problem, buddy.  "Consummate" means to "complete". 

There you go, Mike.  To consummate a same sex marriage, you have to complete it.  Presumably that would be by intercourse (see note above).

That's okay.  I'm here to help, Mike.

We know how to define “virgin” in heterosexual terms, but what, exactly, does that designation mean for lesbians or gay males?

Oh, Mr. Merriam Webster.  Come back!  He's doing it again.

Hi, Mike.  "Virgin" means "a person who has not had sexual intercourse".  Since intercourse involves only ONE genetalia, then it is indeed possible for lesbians and gay makes to have intercourse.  And a virgin in that case, would be one who hasn't had intercourse of any kind.

Thanks, Mr. Merriam-Webster.  Confusion abated, Mr. Medved?

The effort to erase all distinction between man-woman sex and gay relationships contradicts both nature and common sense.

Oh, Mike.  Sit down.  I'd like to interoduce you to Mr. Common Sense....

One Post Wonder

Seems like lots of people start a blog, and then give up immediately.

Here's a blog that collects other blogs that have but one single post:  One Post Wonder.

Facebook's Grammar Problem

As a new convert to Facebook, I've notices that its news and updates feature lack grammatical correctness.

For example, you might read that "John Smith has a picture to their profile."  (Emphasis mine).

That's because Facebook doesn't take into account one's gender.

But that's going to change.

Dot-Com Is Soooo Last Century

ICANN (the Internet Corporation for Assigned Names and Numbers) is the Internet's main oversight agency (ha! and you thought it was unregulated!).

Yesterday, they decided to "open up" top-level domain names.  A top-level domain is, well, ".com, .org, .biz", etc.  Soon you will be able to have .sports, .perfurme, .coke, and .seventhsense.

I'm not sure this is a good idea.  I think it'll be confusing.  Just more crap to remember.

More here.

UPDATE:  The L.A. Times says the initial fee for getting a top-level domain will be $100,000.  Uh, pass.

No More Christmas, Because Santa Drowned

This is very disturbing news:

No ice at the North Pole

Polar scientists reveal dramatic new evidence of climate change

It seems unthinkable, but for the first time in human history, ice is on course to disappear entirely from the North Pole this year.

The disappearance of the Arctic sea ice, making it possible to reach the Pole sailing in a boat through open water, would be one of the most dramatic – and worrying – examples of the impact of global warming on the planet. Scientists say the ice at 90 degrees north may well have melted away by the summer.

"From the viewpoint of science, the North Pole is just another point on the globe, but symbolically it is hugely important. There is supposed to be ice at the North Pole, not open water," said Mark Serreze of the US National Snow and Ice Data Centre in Colorado.

If it happens, it raises the prospect of the Arctic nations being able to exploit the valuable oil and mineral deposits below these a bed which have until now been impossible to extract because of the thick sea ice above.

Seasoned polar scientists believe the chances of a totally ice-free North Pole this summer are greater than 50:50 because the normally thick ice formed over many years at the Pole has been blown away and replaced by huge swathes of thinner ice formed over a single year.

This one-year ice is highly vulnerable to melting during the summer months and satellite data coming in over recent weeks shows that the rate of melting is faster than last year, when there was an all-time record loss of summer sea ice at the Arctic.

"The issue is that, for the first time that I am aware of, the North Pole is covered with extensive first-year ice – ice that formed last autumn and winter. I'd say it's even-odds whether the North Pole melts out," said Dr Serreze.

But By All Means, Let's Drill In ANWR

Stupid bureaucrats:

Faced with a surge in the number of proposed solar power plants, the federal government has placed a moratorium on new solar projects on public land until it studies their environmental impact, which is expected to take about two years.

The Bureau of Land Management says an extensive environmental study is needed to determine how large solar plants might affect millions of acres it oversees in six Western states — Arizona, California, Colorado, Nevada, New Mexico and Utah.

But the decision to freeze new solar proposals temporarily, reached late last month, has caused widespread concern in the alternative-energy industry, as fledgling solar companies must wait to see if they can realize their hopes of harnessing power from swaths of sun-baked public land, just as the demand for viable alternative energy is accelerating.

***

Galvanized by the national demand for clean energy development, solar companies have filed more than 130 proposals with the Bureau of Land Management since 2005. They center on the companies’ desires to lease public land to build solar plants and then sell the energy to utilities.

According to the bureau, the applications, which cover more than one million acres, are for projects that have the potential to power more than 20 million homes.

I smell a rat.  An oil-lobbyist-with-boatloads-of-cash kind of rat.

John McCain in Madonna's Vogue

This is disturbing and funny:

More On Heller: Scalia vs. Stevens

Prof. Sandy Levinson compares the majority opinion of Scalia with the dissent by Stevens:

I confess that I am equally dismayed by the Scalia and Stevens opinions (though, if absolutely forced to choose, I’d go with the Scalia opinion). One of the most remarkable features of Justice Scalia’s majority opinion (joined, of course, by Chief Justice Roberts and Justices Thomas, Kennedy, and Alito) and Justice Stevens’s dissent (joined by Justices Ginsburg, Breyer, and Souter) is the view that the Second Amendment means only what it meant at the time of its proposal and ratification in 1789-91. Justice Scalia, of course, has long been identified with “originalism,” even though some of his critics, both liberal and conservative, note that he has been a most inconsistent one. But Justice Stevens has certainly not embraced originalism. Yet they spend a total of 110 pages debating arcane aspects of the purported original meaning of the Amendment.

If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Justice Stevens pays no real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence, as is true also of Justice Scalia. There is no serious discussion, for example, of Saul Cornell’s fine book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control, but many other examples could be offered, from various sides of the ideological spectrum.

Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues. The late Victoria Geng once wrote a marvelous parody of Supreme Court decisions in which, among other things, the Court announced that “nature is more important than nurture.” We wouldn’t take such a declaration seriously. It is not clear why we should take much more seriously the kinds of over-confident declarations as to historical meaning that both Scalia and Stevens indulge in.

What is especially ironic is that the strongest support for Scalia’s position comes from acknowledging that the Second Amendment, like the rest of the Bill of Rights, has been “dynamically” interpreted and has taken on some quite different meanings from those it originally had. Whatever might have been the case in 1787 with regard the linkage of guns to service in militias—and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge—there can be almost no doubt that by the mid-19^th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship. One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so.

Good analysis.

More commentary from legal minds around the blogosphere:

Analyis of Heller by Lawrence Solum (or scroll down)

Initial Thoughts on Heller by Orin Kerr & Key Limitations of Heller by Orin Kerr

The Second Amendment and State and Local Laws by Eugene Volokh

My Sense of the Bottom Line from Heller by Tom Goldstein

Heller Discussion Board: "Clarity is in the Eye of the Beholder by Alan Morrison

Heller, Justice Steven's Dissent, and the Historian's Brief by Jim Lindgren

Supreme Court: Scalia and Stevens Duke It Out by Tony Mauro

Thoughts on Heller? by Matt Bodie

Heller Discussion Board: Incorporporation and the Need for Further Litigation by David Schenck

The Scholarly Nature of Heller by David Bernstein

Meet Your Second Amendment: D.C. v. Heller Decided by Mike O'Shea

Commentary: So, what's next on guns? by Lyle Denniston

Some Thoughts on the Supreme Court's Second Amendment Decision by Eugene Volokh

Heller's Indictment of Originalism by publius

I would weigh in, but I haven't even begun to wade through the 157 page opinions.  I note that Sandy Levinson and publius (among others) have hit upon the most distressing point -- that the justices both for and against the Heller outcome have cherry-picked history in order to justify their decision.  This, as publius says, is the whole problem with an originalist interpretation of the Constitution: you simply can't know what the Framers originally intended.  In fact, I have no doubt that if you went back in time and asked them, "Hey, buds.  Is the Second Amendment supposed to be for militia purposes only, or is it for hunting, self-defense, etc.?", you would get a bunch of different answers among the Framers themselves.  Likewise, if you informed them about the future -- with semi-automatic reloading machine guns, or even nuclear weapons -- they would probably be split on whether their wording applies.

Am I arguing against an originalist approach?  Not at all.  When it is clear what the Framers unanimously intended, then the plain meaning of the words should govern.  Where it is ambiguous, then judicial reasoning should come into play.  Does that mean judges will be legislating from the bench?  Perhaps, but here's the thing about that -- Congress and the people can always override through legislation.  Checks and balances, my friend.

Heller Decision In

5-4 in favor of individual gun rights, meaning that you can own a gun for self-defense and hunting (rather than for being in the militia, which arugably is what the Second Amendment says).  Justice Scalia wrote the opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito. Justice Breyer dissented, joined by Justices Stevens, Souter, and Ginsburg; there's also apparently another dissent.   MSNBC reports that the opinion "went further than even the Bush Adminstration hoped for".  Great.

The ruling is here (PDF), but good luck getting it right now.  Site seems to be flooded.

UPDATE:  Apparently, Stevens (and perhaps others) in the dissent believed it to be an individual right as well, but thought that D.C.'s ban was a permissible restriction.

UPDATE:  From Scotusblog:

Individuals have a constitutional right to possess a basic firearm (the line drawn is unclear, but does not extend to automatic weapons) and to use it in self-defense.  The government can prohibit possession of firearms by, for example, felons and the mentally ill.  And it can also regulate the sale of firearms, presumably through background checks.

The opinion leaves open the question whether the Second Amendment is incorporated against the States, but strongly suggests it is.  So today’s ruling likely applies equally to State regulation.

So it sounds like nothing has really changed; it only has the official stamp of approval from SCOTUS.

UPDATE:  Still can't get the opinion, but here are (reportedly) some selected quotes from it:

“Logic demands that there be a link between the stated purpose and the command.”

“We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”

“the most natural reading of ‘keep Arms’ in the Second Amendment is to “have weapons.”

“The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.”

“Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.”

“Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”

“The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.”

Whoa.  I gotta stop there.  The prefatory clause of the Second Amendment says (in full): "A well regulated militia being necessary to the security of a free State, ....".

That clause does suggest that the militia was the only reason, since it is the ONLY reason mentioned.

Furthermore, what's with this "most undoubtedly thought it even more important for self-defense and hunting"?  What?  Is the majority mindreaders?  And even assuming that is true, maybe it is more IMPORTANT, but that doesn't mean they intended to make it a RIGHT.  Ugh.

Back to more selected quotes from the majority opinion....

“It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.”

“Like most rights, the right secured by the Second Amendment is not unlimited.”

“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

“We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U. S., at 179.”

“Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”

“In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”

On the question of the Second Amendment’s application to the States: “With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.”

That last bit is important.  Remember, this case involves D.C., which is all federal law.  Doesn't look like incorporation is happening, so states still can go further to ban guns.

Happy Birthday Myth

You know that thing about "Happy Birthday" being copyright protected?

Turns out, not true so much:

"Happy Birthday to You" is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became "Happy Birthday to You," originally written with different lyrics as "Good Morning to All," was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.

The falsity of the standard story about the song demonstrates the dangers of relying on anecdotes without thorough research and analysis. It also reveals collective action barriers to mounting challenges to copyright validity: the song generates an estimated $2 million per year, and yet no one has ever sought adjudication of the validity of its copyright.

Good to know.

Read Maureen Dowd

She's surprisingly good today, as she takes on the Rove meme that Obama is a country-club elite.  Here's a taste:

Karl Rove was impressed with Barack Obama when he first met him. But now he sees him as a “coolly arrogant” elitist.

This was Rove’s take on Obama to Republicans at the Capitol Hill Club Monday, according to Christianne Klein of ABC News:

“Even if you never met him, you know this guy. He’s the guy at the country club with the beautiful date, holding a martini and a cigarette that stands against the wall and makes snide comments about everyone who passes by.”

Actually, that sounds more like W.

The cheap populism is really rich coming from Karl Rove. When was the last time he kicked back with a corncob pipe to watch professional wrestling?

Rove is trying to spin his myths, as he used to do with such devastating effect, but it won’t work this time. The absurd spectacle of rich white conservatives trying to paint Obama as a watercress sandwich with the crust cut off seems ugly and fake.

Obama can be aloof and dismissive at times, and he’s certainly self-regarding, carrying the aura of the Ivy faculty club. But isn’t that better than the aura of the country clubs that tried to keep out blacks? It’s ironic, and maybe inevitable, that the first African-American nominee comes across as a prince of privilege.

***

Conservatives love playing this little game, acting as if the “elite” Democratic candidates are not in touch with people like themselves, even though the guys doing the attacking — like Rove, Limbaugh, O’Reilly and Hannity — are wealthy and cosseted.

Haven’t we had enough of this hypocritical comedy of people in the elite disowning their social status for political purposes? The Bushes had to move all the way to Texas from Greenwich to make their blue blood appear more red.

***

Rove’s mythmaking about Obama won’t fly. If he means that Obama has brains, what’s wrong with that? If he means that Obama is successful, what’s wrong with that? If he means that Obama has education and intellectual sophistication, what’s wrong with that?

Many of Obama’s traits are the traits that people in the population aspire to.

Yup.

"I Cant Heeeeear You"

The White House is full of children.

In 2007, the Supreme Court ruled that the EPA must determine whether greenhouse gases represent a danger to health or the environment.  The EPA, under Bush Administration influence, had been dragging its heels on the issue, saying that it was not part of its duties.  The Supreme Court said, "Oh, yes it is".

So the EPA made its determination.  They studied the issue and concluded that greenhouse gases are pollutants that must be controlled.  They sent -- by email -- their findings to the White House, who would then have to, you know, do something about it.

But those clever people at the White House had a plan.  Knowing what the email contained, they decided not to open the EPA's email.  That was back in December (although we're only finding out about it now).

Following that clever ruse, the White House set out to pressure the EPA to water down their original conclusion:

This week, more than six months later, the E.P.A. is set to respond to that order by releasing a watered-down version of the original proposal that offers no conclusion. Instead, the document reviews the legal and economic issues presented by declaring greenhouse gases a pollutant.

Over the past five days, the officials said, the White House successfully put pressure on the E.P.A. to eliminate large sections of the original analysis that supported regulation, including a finding that tough regulation of motor vehicle emissions could produce $500 billion to $2 trillion in economic benefits over the next 32 years. The officials spoke on condition of anonymity because they were not authorized to discuss the matter.

Both documents, as prepared by the E.P.A., “showed that the Clean Air Act can work for certain sectors of the economy, to reduce greenhouse gases,” one of the senior E.P.A. officials said. “That’s not what the administration wants to show. They want to show that the Clean Air Act can’t work.”

The EPA, by the way, is supposed to be an independent agency.  From its website:

The Environmental Protection Agency (EPA) was established in the executive branch as an independent agency pursuant to Reorganization Plan #3 of 1970, effective December 2, 1970.

That means political branches can't mess with it.  But this is the Bush White House.  *Sigh*

Heller Today?

UPDATE, BREAKING NEW (11:30 a.m.):  Although not related to the gun issue below, the Supreme Court just ruled that it is "cruel and unusual punishment" to give the death penalty to a man who raped an 8 year old.  It was a 5-4 decision, but I don't know the breakdown.  Interestingly, victims' rights groups didn't want the death penalty for something like this, because they feared that child rapists would be more likely to kill their victims if they knew they could get the death penalty for rape.  Not sure I agree with that.  But I do worry about the slippery slope.  We really should reserve the death penalty for crimes where the victim is killed.  Anyway, on to the post....

I suspect today is the day when we learn the Supreme Court's decision in D.C. v. Heller, and it will no doubt be the lead story in the media. [UPDATE:  According to Orin Kerr, I'm wrong.  It'll be out tomorrow].

For those of you without a scorecard, D.C. v. Heller, one of two cases remaining from this year's docket for which an opinion has not been rendered, is without doubt the most important case to come to the Supreme Court on the issue of gun rights.

For decades, people have argued whether the Second Amendment grants an individual right to own guns, or a collective right.  The Second Amendment text reads in full:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The individual-right argument is that the Second Amendment gives everyone a right to own a gun, for whatever reason.  The collective-right argument says, "Whoa there.  Clearly the framers intended people to have that right inasmuch as they have the right to form a well-regulated militia.  You can only have a gun for purposes of being in the militia"  (And, since we no longer have militias, you don't have a right to own a gun for all intents and purposes).

The arguments on both sides are compelling.  Individualists say that all the other amendments in the Bill of Rights are individual rights -- why make the Second Amendment different?  (I would couterargue that the right to assemble isn't an individual right, but that's another story).  Collectivists point out that "bear arms" is a military term, and you can't just "read out" the whole Militia/security clause.

There's no "right" answer.  We don't know what the framers meant.  They themselves probably weren't of one mind.

So how to resolve it?  Well, that's why they pay the big bucks to the Supreme Court.

But the Supreme Court has punted on this issue for decades.  Heller will put an end to that.

In a thoughtful post, on the assumption that the Court will hold that the Second Amendment reflects an individual right (I agree with that prediction), Professor Mike O'Shea addresses the incorporation question. 

What is "incorporation"?  That's the 14th Amendment, which says (in pertinent part):

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What that means, in layman's terms, is that if the federal constitution protects a "right", then the states cannot come along and take it away.  (The 14th Amendment was a by-product of the Civil War, which was, in part, about states' rights).  "Incorporation" means that a particular right guaranteed by the Constitution has been applied to states as well.

Not all the rights in the Bill of Rights have been incorporated to the states.  The Establishment Clause, the right to counsel, the rights of free speech, assembly, and petition, and the right against unreasonable searches and seizures, the right against self-incrimination, and a slew of others have all been incorporated.  The right to indictment by grand jury (in the 5th Amendment) and the right to a jury trial in civil cases (7th Amendment) has been held as NOT being applied to states.

But in Miller v. United States, back in 1894, the U.S. Supreme Court specifically said that the Second Amendment does not bind the states through 14th Amendment incorporation.  In other words, while the federal government cannot infringe the Second Amendment right (whether it be an individual right, a collective right, or something else), states still can.

In a sense, this may render the whole individual/collective argument moot.  Unless, of course, the Heller decision overturns Miller.

The incorporation issue presents a problem for conservatives.  They tend to support the "individual right" view of the Second Amendment.  But they also tend to support the "state's right" view of federalism, meaning (in essence) that the federal government cannot tell states what to do.  Justice Scalia himself once wrote in his book A Matter of Interpretation: Federal Courts and the Law (1997):

[T]he Second Amendment [i]s a guarantee that the federal government will not interfere with the individual's right to bear arms for self-defense. ... Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. ... [T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.

I suspect, however, that the Supreme Court will not address the incorporation question, since that is not an issue in this case.  It will be some other day, in some other case.

But setting aside the incorporation question, the long debate will probably end today (or within the next few days) on one of the hottest debates in the legal/constitutional arena.  Watershed, it will be.

Shorter McCain Energy Policy

It's this: "Fuck if I know, but if someone can build a better mousetrap, I'll give them lots of money."

That's not an energy policy; that's a game show.

First of all, giving a $300 million prize for the development of a battery package that has the size, capacity, cost and power to leapfrog the commercially available plug-in hybrids or electric cars sounds nice, but the companies that are likely to do it are already working on it, because they stand to gain huge financial profits far exceeding $300 million, should they succeed.

Secondly, $300 million is nothing -- nothing -- compared to the $4 billion per-year tax break McCain has proposed giving to the 5 biggest oil companies (including $1.2 billion for Exxon Mobil alone) -- companies which have absolutely every disincentive to see such a battery work.

Finally, McCain is no friend of alternative renewable energy:

* McCain voted against, and Obama voted for, the Energy Policy Act of 2005, which, as USA Today noted, contributed to a dramatic increase in wind power generation: "The U.S. wind power grew 45% in 2007, the sharpest rise since the 1980s, as developers responded to a federal tax credit, a growing number of state renewable energy mandates and global warming concerns, the American Wind Energy Association said Thursday."

*  In 2006, John McCain voted against a renewable energy tax credits including a 2006 proposal sponsored by Senator Jeff Bingaman that included a four year extension of the production tax credit.  In addition, McCain supported the filibuster of the 2007 energy bill that sought to extend the production tax credit to 2011. 

*  McCain has repeatedly voted against renewable energy mandates, including a measure to require that renewable sources be used to produce at least 10 percent of the electricity sold by electric utilities by 2020, and a measure to require refiners to use 8 billion gallons of renewable fuels each year, by 2012.  He also supported an effort to delay renewable fuel mandates and to allow states to opt out of the mandates.

*  McCain has repeatedly opposed measures to provide tax credits to encourage investment in renewable energy technologies.  For example, in 2007 he supported the filibuster of energy legislation that sought to have revoke $13.5 billion in tax cuts for the five largest oil companies and instead provide tax incentives for solar, wind, geothermal, biomass, wave energy and other renewable sources of energy. McCain was the only Senator to miss the vote on the bill, but his staff noted that he did, in fact, support the filibuster that eventually killed the proposal.

Obama is right, speaking about McCain's gimmick today:

“After all those years in Washington, John McCain still doesn’t get it...  I commend him for his desire to accelerate the search for a battery that can power the cars of the future. I’ve been talking about this myself for the last few years. But I don’t think a $300 million prize is enough. When John F. Kennedy decided that we were going to put a man on the moon, he didn’t put a bounty out for some rocket scientist to win — he put the full resources of the United States government behind the project and called on the ingenuity and innovation of the American people. That’s the kind of effort we need to achieve energy independence in this country, and nothing less will do. But in this campaign, John McCain offering the same old gimmicks that will provide almost no short-term relief to folks who are struggling with high gas prices; gimmicks that will only increase our oil addiction for another four years.”

Inspector General's Report: DOJ Politicized Hiring

This just in: A report from the inspector general — the result of an investigation into DOJ hiring practices over the last six years — alleges that “many qualified candidates” were rejected from an elite recruitment program because of perceived liberal bias. Here’s a story from the NYT’s Eric Lichtblau, and here’s an AP report. Click here for the 115-page report.

The hiring practices, which reportedly took place under both AG Ashcroft and AG Gonzales, “constituted misconduct and also violated the department’s policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations,” the report says.

Some snippets from the summary:

...[W]e concluded that McDonald committed misconduct and violated Department policies and civil service law by considering political or ideological affiliations in assessing Honors Program and SLIP candidates. (93)

[W]e concluded that Elston violated federal law and Department policy by deselecting candidates based on their liberal affiliations. (94)

We also concluded that Elston committed misconduct, and violated federal law and Department policy, when he deselected candidates and denied appeals based on his perception of the political or ideological affiliations of the candidates. (96)

We also concluded that OARM Director DeFalaise did not adequately or timely address the concerns that were brought to his attention concerning the Screening Committee's deselections. (96)

Finally, we concluded that Acting Associate Attorney General Mercer did not adequately address the concerns that were brought to his attention by several senior Department officials that the Screening Committee's deselections appeared to have been politicized. (97)...

When Fridman asked McDonald how she obtained the additional information, she told him she conducted searches on Google and MySpace, and read law review articles written by the applicants. For example, Fridman recalled that one candidate had written a law review article about the detention of individuals at Guantánamo, and McDonald noted on the application that she perceived the applicant's viewpoint to be contrary to the position of the administration. On another application, McDonald noted that she found information on the Internet indicating that a candidate was an "anarchist." (78)

The OIG report also notes the destruction of documents pertaining to its investigation by the DOJ.

UPDATE