Commentary From the Mile High City

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Joshua Sharf

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June 26, 2008


The Supreme Court today ruled on the Heller case. (Key quotes here.)

The Court reaffirmed that the 2nd Amendment protects an individual, not a collective right, and has been pointed out, the textual basis for this is as close to metaphysical certainty as words will allow. In doing so, it struck down bans on handguns, and made it clear that individuals may have access to these weapons in their homes for personal defense. To that extent, this was an important win for the human right of self-defense, even if the immediate effects will be minimal. (Why that right ends at your front door is another question, but let's be grateful for small favors.)

Here's what my friend Dave Kopel had to say about it:

The Supreme Court’s decision upholding the Second Amendment, and striking down the District of Columbia’s handgun ban and the ban on the use of any firearm for self-defense in the home, is solidly reasoned. Although the case leaves ample room for moderate gun control laws, the case casts doubt on the continuing validity of a variety of other gun prohibitions.

I'm much less sanguine than he is about the inevitable regulator rulings. The Kennedy case earlier this week showed that, in the words of Mark Levin, the Court sees itself sitting as an ongoing Constitutional Convention (a notion first popularized by Woodrow Wilson). We will find it making case-by-case judgments about the wisdom of this restriction or that. My guess is that the majority got as broad protection as it could in this case, and that we're liable to see Justice Kennedy supporting all sorts of regulations that have the potential to do for gun rights what McCain-Feingold did for political speech.

June 26, 2007

Signing Statement Statement

Do the Denver Post editorial writers even read the stuff they're commenting on?

A recent GAO report has them in high dudgeon about presidential signing statements, those usually-harmless-but-occasionally-informative comments on what a president thinks about the laws he's signing into being. Never mind that the legal portion of this discussion took place last year, with many liberals siding with the President.

More important is the Posts misleading report on what the GAO actually said.

"While the GAO studied only a small sample of provisions that Bush had objected to in signing statements in fiscal year 2006, it found that 30 percent of the time those provisions were not followed according to law." In fact, the GAO carefully selected 19 cases to cover a variety of different classes on objections. This is a sample so small as to be statistically meaningless.

"...those provisions were not followed according to law."In six cases, the law was not "executed as written," a completely different matter from "not followed according to law," since in the absence of a definitive court ruling, the Post cannot rightly claim that the law wasn't being followed. For example, the President is clearly under no obligation to enforce a provision contrary to the Constitution. And if he did, we'd certainly see a Post editorial about it. As soon as Dick Durban called a press conference to complain.

"House Judiciary Committee chairman John Conyers, D-Mich., and Sen. Robert Byrd, D-W.V., have wisely called for a more extensive review of bill provisions that Bush has objected to in these signing statements." Well, except that the GAO report was itself in response to a request from these two, a fact the Post conveniently omits. The GAO could have come back with a clean bill of health, and Conyers and Byrd would likely have interpreted the absence of evidence as anything but evidence of absence.

As important are two GAO comments the Post omits entirely:

  • "Although we found the agencies did not execute the provisions as enacted, we cannot conclude that agency noncompliance was the result of the President’s signing statements." (Emphasis added. Commentary superfluous.)
  • The GAO concludes that courts almost never cite signing statements as authoritative. This is similar to their spurning of legislative history as a source of authority, and indicates a willingness to overrule presidents on this sort of thing when they like.

    But this isn't really a converative vs. liberal issue, anyway, although the Post only seems to have problems with the current President exercising his judgment. As in the GAO report, it lumps together Presidents Reagan, George H.W. Bush, and Clinton, without mentioning that Clinton issued statements at a 50% greater clip than Reagan. Go to that UCSB link, and you'll find plenty of Clinton signing statements that challenge or interpret sections of the law in question.

    Stuart Buck has analyzed a 1986 memo by Samuel Alito defending the practice, and the Post seems not to have noticed Walter Dellinger's 1983 memo reaching the same conclusion for the Clinton Justice Department.

    In fact, the "constitutional mess" the Post worries about is inherent in Constitution itself, in the separation of powers, and thus has been going on since at least 1787. The Post would - at least for the duration of this presidency - make the executive the only branch without the power to interpret the Constitution, or laws according to it. This comes uncomfortably close to the fears address in Lincoln's First Inaugural:

    I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

    Dan Haley - a genuine good guy - is the new editorial page editor for the paper. He's conservative, which means this job must often make him feel like one of those travelers to distant lands who is captured, brought to the king, and made to serve out the rest of his life as court physician and chief advisor. You know, Joseph. Or The Last King of Scotland.

  • October 30, 2006

    Property Rights

    The Taylor Ranch controversy is one of those nasty points of intersection between economics, politics, and the judiciary. In 2002, the Colorado Supreme Court ruled that a series of landowners who border the Taylor Ranch had the right to continue doing what they had been doing for about 150 years, namely, freeloading off the Taylor Ranch resources. We had the chance to interview Dick Johnston, author of The Taylor Ranch War, which follows the 40-year (!) series of lawsuits required to resolve this issue.

    In essence, the court ruled that the communal rules of the original Mexican land grant from the 1830s and 1840s overrode the American notion of exclusive use.

    It hadn't occurred to me before, but is it possible that communal property right could be an answer to the question, "Why is Mexico so poor?"

    June 16, 2006

    Don't Blame Marbury

    At least not according to the Claremont Institute.


    Power, Faith, and Fantasy

    Six Days of War

    An Army of Davids

    Learning to Read Midrash

    Size Matters

    Deals From Hell

    A War Like No Other


    A Civil War

    Supreme Command

    The (Mis)Behavior of Markets

    The Wisdom of Crowds

    Inventing Money

    When Genius Failed

    Blink: The Power of Thinking Without Thinking

    Back in Action : An American Soldier's Story of Courage, Faith and Fortitude

    How Would You Move Mt. Fuji?

    Good to Great

    Built to Last

    Financial Fine Print

    The Day the Universe Changed


    The Multiple Identities of the Middle-East

    The Case for Democracy

    A Better War: The Unexamined Victories and Final Tragedy of America's Last Years in Vietnam

    The Italians

    Zakhor: Jewish History and Jewish Memory

    Beyond the Verse: Talmudic Readings and Lectures

    Reading Levinas/Reading Talmud