On Assault Rifles

A disturbing scenario:

It was not my intention to impugn the gun owners of America as cowards or fools. My intention was only to give an example of how the fight you expect is not always the fight you get. If I were to add anything it would be this: Americans, as with all people of formerly free Western democracies ought to prepare for the possibility that their back will never be put against the wall en masse. That there will be no great peril that makes brothers in arms of those who were formally mere neighbours and acquaintances. That no definable moment will tip the scales or “cross the line”.

Edmund Burke said “When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.”

Every militia, every army and every nation can trace its history back to a single point in time when two men looked each other in the eye and agreed not to fall “one by one”. Then two became four, four became eight, and so forth.

Start associating. Because by the time you’re waiting for them at your doorstep it’s already too late.

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Cheers and jeers

It has been a busy week, but it is, I guess, time to put some thoughts on paper.

Two important United States Supreme Court decisions were announced this week, King v. Burwell, the “Obamacare” case, and Obergefell v. Hodges, the gay marriage case. The internet, Twitter, and Facebook have been filled with cheers, jeers and rants from both sides (along with some calm and reasoned voices, where you can find them).

I believe that the Constitution is the law of the land. I also believe that it is written in reasonably understandable English, and that it means what it says. In addition, when it is silent on a subject, no additional reasoning can be inferred from its text. If the country wishes to add or subtract from the original text, there are prescribed ways of changing it. Indeed, we have amended it 27 times. I also believe that laws written by Congress (or state legislatures) should mean what they say. The King decision is quite frightening. Whether you are a fan or a foe of the Affordable Care Act should not matter. If the law does not read as Congress intended when they passed it (perhaps reading it before passing it would be helpful), then Congress can go back and fix it. In this decision, SCOTUS has decreed that a majority of an un-elected committee of lawyers can determine what Congress intended. This is a major blow against rule of law.

With cries of jubilation and accusations of bigotry and hatred on the one side, and weeping and gnashing of teeth and condemnation of the sins of others from the other side, Obergefell has aroused the passions of many. This decision, like Roe v. Wade, was based on feelings and opinions, not law. Marriage is not mentioned in the Constitution at all; if the people wish to regulate marriage, then laws should be passed to do so. Having five justices rule by decree, whether the majority of the citizens agree or not, is antithetical to democratic government.

The underlying problem with the same sex marriage debate is that we are not all talking about the same thing. There are two definitions, or aspects, of marriage in play. First we have the religious aspect . Marriage, as a religious institution, was established by God (“For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh.”– Ephesians 5:31). Pretty straightforward, and as long as marriage remains a religious rite, then religion should make the rules (or in the case of Christians, follow the rules given by God as spelled out in the Bible).

Then there is the legal aspect of marriage. Government has intervened, and we are required to have a license to be “legally” married. Our tax rate is partly determined by our marital status. Health care decisions, employment benefits, and succession are determined by marital status. I can completely understand wanting those benefits legally. A civil partnership between two people (or more—believe me, that is coming) that establishes these benefits seems completely fair. If you want to have such a civil arrangement with your gay partner and call it marriage, go for it.

What Obergefell should not do, however, is force churches, or their members, to recognize or participate in such arrangements. The majority opinion was pretty vague about protecting religious rights. The First Amendment protects our right to the free exercise of religion. For me, and many Christians, that means we strive to live our daily lives according to our religious beliefs, and requiring us to not only tolerate non-Biblical activities, but agree and participate in them, is infringing on that right.

One more thing…it distresses me to see disagreement labeled as hatred or bigotry. The angry voices coming from both sides are not helpful. As Jesus said, “A new commandment I give to you, that you love one another, even as I have loved you, that you also love one another.”—John 13:34

I know that there are some people, dear to me, who will disagree with some of my thoughts, and that is okay– I will still love you unconditionally. Let us treat each other with kindness and respect.

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Do our rights as humans come from God, or from man?

Some of the signers of the Constitution believed that a Bill of Rights was unnecessary; they thought that it was “self-evident” that we are “…endowed by [our] Creator with certain unalienable Rights”. The Bill of Rights was ratified in order to insure that the government created by the Constitution could not infringe upon those Rights, not to grant them.

The government was established to protect those Rights, not to grant them. Remember, any rights granted by government can be taken away by government.

I have recently seen statements that healthcare, education, and even broadband internet service were human rights; the Founders would have been astounded.

Matt Lewis weighs in:

This might sound like a pedantic point to make, but nearly all of our political discord comes down to fundamental differences in our worldviews. Two very good people can start out with two very different philosophies of life and inevitably come to two very different conclusions on a nearly innumerable amount of problems. Sometimes the consequences are profound. And that’s the case here. Rejection of this foundational principle of God-given law would inexorably lead someone to come to vastly different conclusions about any number of things compared to someone like me who embraces this premise. When liberals and conservatives differ over whether or not the state has the right to usurp this or that right, dig deep enough, and you will often find the root of the disagreement lies here.

I believe very strongly that our rights come from God. And I believe nearly as strongly that the implications of believing that our right to life, liberty, and the pursuit of happiness are granted by the state are potentially catastrophic. Ideas have consequences, and while some might see quibbling over such esoteric and grandiose ideas to be a waste of time, the truth is that where one comes down on such fundamental questions will likely predetermine where one comes down on a wide range of modern-day “hot-button” issues. When you consider how much of the current political debate hinges on fights about individual liberty and the size and scope of government, this makes sense.

Set aside religion and consider this: If our fundamental rights are merely granted by the state, then they can be taken away by the state. What is more, the state would have no moral compunction not to rob us of our rights. The state is not particularly moral or special or better than people. The state is people. If they don’t have some larger, higher moral code that guides them, then assumptions about what constitutes the “good” are, at least to some degree, arbitrary. Absent an immutable standard, why wouldn’t the law of the jungle rule? In nature, predators prey on the weak. Can we honestly convince ourselves that people are better than that? Some are, sure. But many are not.

Without an absolute law that transcends the whims of man, the very concept of “rights” metastasizes into a definition having more to do with the current and often capricious preference of the majority. Oppressed minorities have long found comfort (and, in fact, seized the moral high ground) by pointing out that there is a greater law, a universal sense of right and wrong, that transcends the will of the majority.

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On public prayer

Yesterday the Supreme Court upheld a ruling allowing the town of Greece, NY, to open city council meetings with prayer. In an article on National Review Online, Kevin D. Williamson discusses the common sense approach of the majority of the Court, as well as the phenomenon of “evangelical atheism.”

The vandals have lost one at the Supreme Court. The psalmist surely did not have Anthony Kennedy in mind when he proclaimed “Let the daughters of Judah rejoice because of thy judgments,” but the trumpets should sound any and every time Madalyn Murray O’Hair’s grubby little cult suffers a political defeat.

The case was Town of Greece, N.Y. v. Susan Galloway et al., and the question was whether the town fathers of a Rochester suburb you’ve never heard of were doing violence to the Bill of Rights by allowing citizens and clergymen to lead prayers before meetings of the town board.

The plaintiffs in the case were Susan Galloway, a Jewish woman who describes her history of activism as beginning with a refusal to sing Christmas carols as a junior-high student, and Linda Stevens, a retired public-school functionary and atheist who served in the august position of president of the Greater Rochester Chapter of the National Organization for Women and as vice president of Americans United for Separation of Church and State. Ms. Stevens complained that the overwhelmingly Christian character of the locals’ prayers made her feel like she would “stick out,” and so, naturally enough, she filed a lawsuit, apparently immune to the irony that her response to what she perceived as a situation encouraging conformity through social pressure was to seek federal action mandating conformity at gunpoint.

Justice Clarence Thomas’ opinion relied on very plain reading of the Constitution’s Establishment Clause:

Justice Clarence Thomas, who has done the people of this country a magnificent service over the years by restraining his imagination and boring us all to death with the letter of the law, noted in his concurrence that the First Amendment is a constraint upon Congress, not upon the township of Greece, N.Y.; that it explicitly permits not only the encouragement of religious belief but the actual establishment of churches at the state and local level; that the men who wrote the First Amendment and who fought in the Revolution did not seem to believe that the Bill of Rights was in conflict with Massachusetts’s deciding to have an established Congregationalist church or with Pennsylvania’s choosing not to establish any church, in deference to the nonconforming sensibilities of its Quaker-dominated public culture, but rather that the First Amendment ensured that the federal government was bound to permit either outcome; and, finally, that even if the “no establishment” rule were to be applied to Greece, N.Y., permitting the offering of prayers before a board meeting is not the same thing as establishing a church. An established church is a government-supported ministry paid for by tax dollars, not a social convention that makes the local NOW president feel like she sticks out, which experience with that organization suggests she very well may under many diverse circumstances.

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It is time for some de-escalation on both sides

The federal Bureau of Land Management has surrounded the Clark County ranch of Cliven Bundy with armed officers, helicopters and four-wheel drive vehicles. Last week, they began seizing cattle found grazing on adjacent federal lands in violation of a law meant to protect an endangered desert tortoise.

Since 1993, Bundy has been battling the agency, as well as the National Park Service, the Center for Biological Diversity and the courts, to graze his cattle on 150 square miles of Gold Butte scrub land in the Lake Mead National Recreation Area. He stopped paying his grazing fees back then, saying he “fired” the Bureau of Land Management as land manager.

I am in agreement with the notion that the federal government should not be owning most of the western land now being managed by the BLM. I also agree that the current operation to remove Mr. Bundy’s cattle from BLM land is overkill, and risks another episode like Ruby Ridge or Waco/Branch Davidians. And denying grazing rights to protect the desert tortoise is foolish.

Mr. Bundy, however, legally doesn’t have a leg to stand on. He basically says that the law does not apply to him. Under current law, the government owns the land. The BLM has every right to remove cattle from land it has determined should be ungrazed.

“It’s a statement for freedom and liberty and the Constitution.” Bundy, a descendant of Mormons who settled in Bunkerville more than 140 years ago, claims an inherent right to graze the area and casts the conflict as a states’ rights issue. He said he doesn’t recognize federal authority on land that he insists belongs to Nevada.

Mr. Bundy, however, legally doesn’t have a leg to stand on. Under current law, the federal government owns the land. The BLM has every right to remove cattle from land it has determined should be ungrazed.

It is time for both sides to back down. Both Gov. Brian Sandoval and Sen. Dean Heller have condemned the BLS for what they characterize as heavy-handed actions involving Bundy and other Silver State residents. That is all well and good, but the answer is to change the law, as I agree it should be.

Conservatives and libertarians have been calling for action against Lois Lerner and Atty. Gen. Eric Holder, who have been held in defiance of Congress, yet defending this man’s defiance of legal court orders.

Let’s all just back down and cool off; the stakes have now become too high, and neither side will benefit from further escalation.

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UPDATE–corekted my typing/spelling in the title

Not safe to display American flag in American high school?

Via The Volokh Conspiracy, now at The Washington Post.

On May 5, 2010, a group of students were told by the administration at Live Oaks High School in California that they could not wear shirts displaying the US flag; they were told to remove the shirts, turn them inside out, or go home, for their own safety. Apparently there were other students at the school who were offended by the American flag on Cinco de Mayo. Indeed, there had been an incident the previous year involving threatened violence against students displaying the American flag, and the 2010 group were later threatened by text message and telephone.

A lawsuit against the school district ensued, and yesterday the 9th Circuit Court of Appeals upheld the school’s decision to forbid wearing the US flag on Cinco de Mayo (Dariano v. Morgan Hill Unified School Dist. .

The court points out that the rights of students in public high schools are limited — under the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist. (1969), student speech could be restricted if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from the speech. And on the facts of this case, the court concludes, there was reason to think that the wearing of the T-shirts would lead to disruption.

From the Court’s decision:
Here, both the specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real. We hold that school officials, namely Rodriguez[the school’s assistant principal], did not act unconstitutionally, under either the First Amendment or Article I, § 2(a) of the California Constitution, in asking students to turn their shirts inside out, remove them, or leave school for the day with an excused absence in order to prevent substantial disruption or violence at school.

Professor Volokh:
This is a classic “heckler’s veto” — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. “Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech. But under Tinker‘s “forecast substantial disruption” test, such a heckler’s veto is indeed allowed.

Yet even if the judges are right, the situation in the school seems very bad. Somehow, we’ve reached the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech). Something is badly wrong, whether such an incident happens on May 5 or any other day.
And this is especially so because behavior that gets rewarded gets repeated.

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Why we spy

Max Boot at Commentary discusses the latest news about the Snowden leaks implicating the NSA in spying on our allies, particularly Germany, Brazil, and Mexico.

Folks, this is what the NSA is supposed to do. They spy on us, we spy on them. This is not a malicious act,and every government knows that other governments are doing it. What is different is that it is being publicly discussed, and folks like Angela Merkel must appear angry that the United States is listening in to their conversations.

This is not news, folks. I strongly disagree with our government accessing domestic telephone records or listening in without a duly authorized warrant. I fully expect, though, that if I make an international call, it will be recorded by the NSA. This is what we pay them to do.

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A Fourth Amendment violation

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I saw this early this morning at Daily Caller. “A veteran Washington D.C. investigative journalist says the Department of Homeland Security confiscated a stack of her confidential files during a raid of her home in August — leading her to fear that a number of her sources inside the federal government have now been exposed.

In an interview with The Daily Caller, journalist Audrey Hudson revealed that the Department of Homeland Security and Maryland State Police were involved in a predawn raid of her Shady Side, Md. home on Aug. 6. Hudson is a former Washington Times reporter and current freelance reporter.”

Apparently her husband was convicted of resisting arrest in 1986(!), so the Department of Homeland Security and Maryland State Police raided their home with a warrant to search and seize firearms. During this raid, agents seized and removed from her home files and handwritten notes from her work.

Hudson had written articles critical of the Air Marshal’s Service, a part of DHS. The seized papers included names of her confidential sources inside the government. She states that none of the seized papers were classified, and were not obtained illegally.