On Free Speech

This is from Justice William Douglas’ dissent in US v Autoworkers [emphasis added]. In the event, his dissent presaged Citizens United.

We deal here with a problem that is fundamental to the electoral process and to the operation of our democratic society. It is whether a union can express its views on the issues of an election and on the merits of the candidates, unrestrained and unfettered by the Congress. The principle at stake is not peculiar to unions. It is applicable as well to associations of manufacturers, retail and wholesale trade groups, consumers’ leagues, farmers’ unions, religious groups and every other association representing a segment of American life and taking an active part in our political campaigns and discussions. It is as important an issue as has come before the Court, for it reaches the very vitals of our system of government.

Under our Constitution it is We The People who are sovereign. The people have the final say. The legislators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important—vitally important—that all channels of communication be open to them during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community.

In United States v CIO, Mr Justice Rutledge spoke of the importance of the First Amendment rights—freedom of expression and freedom of assembly—to the integrity of our elections. “The most complete exercise of those rights,” he said, “is essential to the full, fair and untrammeled operation of the electoral process. To the extent they are curtailed the electorate is deprived of information, knowledge and opinion vital to its function.” …

Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group—labor or corporate. First Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worthy or unworthy.

It would help of Progressives heeded this; the case itself dealt, after all, with a union’s right to speak.

Fat chance. Free speech isn’t for everyone.

h/t The Wall Street Journal

The Second Amendment and a Judge’s Misunderstanding

And a State’s misunderstanding. Fortunately, the Ninth Circuit, that bastion of conservatism, corrected the State’s misapprehension and struck its law regarding a man’s right to carry a firearm outside his home. The Ninth’s dissenter, though, is illuminating, and worrisome.

The situation is this. California is a “may issue” state, meaning that local authorities are allowed to use their discretion in deciding whether to issue a concealed carry permit or license that would authorize a California citizen to carry a firearm outside his home. California is even more restrictive in that “may issue” bit, though; it requires its citizens to satisfy those local authorities that the supplicant applicant has “good cause” for being permitted. That’s the State’s misunderstanding, corrected by the Ninth.

San Diego County residents, including the six plaintiffs in this case, were forced to sue for their licenses because the sheriff’s department, the “local authority” here, routinely—universally—denied licenses because the sheriff could never be satisfied that “good cause” existed. The case made its way to the Ninth with the above victory for the plaintiffs. The majority opinion held, in part, that

One of Heller’s most important lessons is that the Second Amendment “codif[ies] a pre-existing right….”

…a law that destroys (rather than merely burdens) a right central to the Second Amendment must be struck down.

And [citations generally omitted, emphasis in the original]:

We thus disagree with those courts—including the district court in this case—that have taken the view that it is not necessary (and, thus, necessary not) to decide whether carrying a gun in public for the lawful purpose of self-defense is a constitutionally protected activity. Understanding the scope of the right is not just necessary, it is key to our analysis. For if self-defense outside the home is part of the core right to “bear arms” and the California regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-ends scrutiny can justify San Diego County’s policy. See Heller (“The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”).

And [citation omitted, emphasis in the original]:

But the fact that a small group of people [e.g., retired cops, and others suggested in the opinion] have the ability to exercise their right to bear arms does not end our inquiry. Because the Second Amendment “confer[s] an individual right to keep and bear arms,” we must assess whether the California scheme deprives any individual of his constitutional rights. Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”

Certainly, reasonable men can disagree about the degree of burden that’s appropriate (demonstrating a reasonable proficiency with firearms, akin to demonstrating a reasonable proficiency with cars as a prerequisite to being issued a driver’s license, for instance; at the other end of the scale, four states have no licensing requirements at all), but clearly that burden cannot become a barrier, as the appellate court acknowledged.

This is where the dissenter’s misunderstanding comes in. Judge Sidney Thomas argued this:

The Supreme Court has instructed that the core of the Second Amendment is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller…. Carrying concealed weapons in public by definition does not inherently involve defense of hearth and home, so the core of the Second Amendment is not implicated.

But this is a misreading of the Supremes’ opinion as well as of the 2nd Amendment itself. What the Supreme Court said, more fully, in that cite is this:

And whatever else it [the 2nd Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

Plainly, “defense of hearth and home” was offered as an example of what is protected by the 2nd, not an enumeration of the total reach of it. Beyond that, this is the 2nd Amendment:

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.

Not only is “defense of hearth and home” not numbered here, it cannot be: limiting the security of a free State to defense of points of property prevents on its face the ability to see to the security of the State: those arms must be borne where the threats exist (including preemptively)—by the citizens acting individually, as is the duty of every citizen in a free State, as well as collectively through a militia (or today’s professional armed forces)—for when the threat reaches a domicile’s doorstep, the State’s security already is lost.

But the right to “keep and bear Arms” is an individual right, as well as the collective right of the individuals’ militia, as the Supreme Court also has acknowledged, and for much the same reason. If the individual citizen cannot “keep and bear Arms” nearly anywhere he may choose to go, then he cannot see to his own security (not only his own defense). And if the individual is not secure, then the aggregation of them that is a “free State” cannot be secure.

But the matter goes beyond even that. What is “security?” It’s far more than merely self-defense. Pedantically, the first definition of “security” in Johnson’s Dictionary, contemporaneous with the writing and ratification—by the people of the United States—of our Constitution, is “freedom from fear.” We have to go all the way to the third definition (of five) to get to “Protection; defence [sic].”

And it is exactly that. Any infringement of this right, any limit a Court might presume to place on this Amendment, can only reduce that freedom from fear. Fear comes from many sources, not only from an immediate attack on one’s person. Fear also comes from limitations on individual responsibilities, it also comes from limitations on individual liberty, it also comes from sources only tenuously, if at all, related to politics or general society.

This makes the permissible purposes for carrying firearms very broad, indeed, deliberately vaguely put in the Amendment, and beyond the ability of government to prescribe; they are not limited to “hunting,” or to “personal defense,” or to…. For a government—any branch of it—to determine what permissible purposes may be is to enumerate what can only be a subset of the 2nd Amendment’s range of purposes, and that is a very dangerous determination.

Unfortunately, the Ninth’s majority judges also seem to misunderstand the reach of the 2nd Amendment, focusing as they do on the “purpose” of self-defense, but they got to the correct immediate decision, at least.

The Ninth’s decision can be read here. The Supreme Court’s Heller decision can be read here.

Equal Outcomes

Because, moral equivalence.

Navi Pillay, outgoing (her six-year term is up) UN High Commissioner for Human Rights had this to say the other day:

[B]y putting and firing rockets within both heavily populated areas both sides were violating international law and therefore committing war crimes.

“Locating rockets within schools and hospitals, or even launching these rockets from densely populated areas are violations of international humanitarian law,” said Ms. Pillay, referring to Hamas, but added that doesn’t “absolve” Israel from disregarding the same law.

Because Israel is violating “international humanitarian law” by defending itself against these terrorists.

No, Israel, instead, must simply lie back and enjoy the fireworks—the terrorists have, in the eyes of this UN person, inured themselves against any more serious response than opprobrium for their terrorism by the simple expedient of using children and civilians as shields.

Never mind that such protections simply increase, drastically, the value of these hostages, and it makes it all the more likely that terrorists will use them and increase their usage.

This UN person went on:

[She] criticized the US for financing Israel’s Iron Dome air defense system at the same time that residents in Gaza were under bombardment.

“No such protection has been provided to Gazans against the shelling[.]”

Because the terrorists must have the same defenses, or the Israelis must be denied the full capacity of their own defenses.

Never mind, again, that the Israelis wouldn’t be “shelling Gazans” if the Palestinian Authority terrorists weren’t shooting from among those Gazans. Never mind the larger case that the Israelis wouldn’t be shelling anything, if the PA terrorists weren’t engaged in their attacks on Israel.

A Precious Union

The Metropolitan Opera singers union resumed contract talks on Monday after a two-month hiatus, but union officials said they had little hope of reaching an agreement before a threatened lockout.

And no wonder, with such an awesome sense of entitlement.

“He doesn’t want to help us maintain our instruments,” said chorus member Jean Braham, commenting on the effect [Met General Manager Peter] Gelb’s proposed high-deductible health plan could have on singers’ voices and bodies.

“We are the artists,” Ms Braham said, her voice cracking. “We are the product. The fact that he accepts no responsibility and no accountability is just incredible to me.”

They are your instruments, Ms Braham, not the Met’s. Like any worker, your tools are your own responsibility. And, no, you are not the product. Get over yourself. The entertainment that the Met produces—blending your tools with those of the major singers, those of your company’s dancers, those of the orchestra, those of your company’s stage managers, and the acoustics of the opera house stage and setting are the product.

What’s incredible to me is that your sense of entitlement has become so ingrained that you view all of this as your natural right. How precious can a union worker get?

The Progressive Second Economic Bill of Rights

Here they are, via CatholicVote.org.

1. We believe that Wall Street needs stronger rules and tougher enforcement, and we’re willing to fight for it.

Because We Know Better than you. A free market can’t possibly be as good as government; we citizens acting on our own imperatives in that free market just aren’t smart enough to act without Big Government oversight.

Certainly, a case can be made for tougher enforcement of existing law. However, we have enough such laws and rules; we don’t need more. Indeed, enforcement would get much simpler were the extraneous laws and rules—vis., Dodd-Frank’s rules regarding who is allowed to extend credit, and the requirements that must be met independently of the terms freely agreed by the participants to the contract—rescinded.

2. We believe in science, and that means that we have a responsibility to protect this Earth.

Really? Is that why basic tenets of science are violated through suppression of scientific journals that publish papers that dispute, if not refute, the “settled science” of climate change? Is that why climate models are protected from peer review? Is that why data are outright falsified?

3. We believe that the Internet shouldn’t be rigged to benefit big corporations, and that means real net neutrality.

No need for a free market here, either. Progressives know what’s “fair,” Progressives know what “neutrality” is. No one else need comment.

4. We believe that no one should work full-time and still live in poverty, and that means raising the minimum wage.

5. We believe that fast-food workers deserve a livable wage, and that means that when they take to the picket line, we are proud to fight alongside them.

Both 4 and 5 together…. Never mind that minimum wage law, that invention of FDR, originally was written explicitly on racist grounds so that white, northern union workers wouldn’t get priced out of jobs by black workers heading north to find work. Never mind that those who most need the jobs today—teenagers (especially black teenagers in the inner cities) just starting out, adults (mostly black single mothers) working the minimum wage job as a second source of income, working poor married couples taking the minimum wage job as a second source of income—now will be priced out of those jobs. Never mind that other jobs will go over to automation. Never mind that minimum wage jobs have a disparate impact on minority workers. Those jobs will be lost, as the CBO already has noted. Lost jobs get increased poverty which gets more government handouts which gets…votes.

6. We believe that students are entitled to get an education without being crushed by debt.

That would be nice, and work-study arrangements already are available, so are merit-based scholarships. Government subsidies of colleges and universities—both outright subsidies and those masquerading as “research grants” of one sort or another as well as outright grants to students—contribute heavily to the high and rising tuition prices. Cutting those subsidies would go a long way to alleviating the cost to the student. On the other hand, Progressives have yet to explain why a taxpayer in bankrupt Illinois with a child in college should contribute his tax money to mitigating the college expenses of a taxpayer in bankrupt California whose child also is in college.

7. We believe that after a lifetime of work, people are entitled to retire with dignity, and that means protecting Social Security, Medicare, and pensions.

Pick one; the two are mutually exclusive. “Protecting” means raising taxes. Increased taxes means less money in the private sector with which to run businesses, create jobs, have money to spend—which turns the cycle of running businesses, creating jobs, having money to spend anew. Moreover, there’s no dignity in living one’s own retirement by taking money away from someone else’s currently working child.

Certainly, after a lifetime of work, people should be able to retire with dignity. But that means people should be putting money aside for their own future retirement, not giving their money to someone else who’s retired now. That requires privatizing Social Security and Medicare. That requires letting bankrupt pension plans stay failed within the existing Federal pension insurance law, and moving employees onto defined contribution plans (á la 401(k)s). People with skin in the retirement game, people responsible for their own futures, will do a far better job of managing their money than the Federal government, empirically, has done.

8. We believe—I can’t believe I have to say this in 2014—we believe in equal pay for equal work.

9. We believe that equal means equal, and that’s true in marriage, it’s true in the workplace, it’s true in all of America.

These also mean actually equal work. Time off for child raising, for instance, whether taken by a man or a woman, is time not working. It’s also time, nearly universally, not staying current on the work requirements and techniques, not accruing experience in the work, etc. Paying these folks a wage numerically equal to others who’ve not taken that time off most assuredly is not equal pay.

10. We believe that immigration has made this country strong and vibrant, and that means reform.

Of course. But what the Progressives elide here is that “reform” to them means open, uncontrolled borders with, as Attorney General Eric Holder demanded, a “civil and human right” to enter our country illegally and without consequence. But with grave harm to what it means to be a nation.

11. And we believe that corporations are not people, that women have a right to their bodies. We will overturn Hobby Lobby and we will fight for it. We will fight for it!

These are two separate items. Corporations aren’t people—OK. In that case, I assume Progressives are fine with having to get sales approvals from each of the several tens of thousands of individual owners of General Electric in order to buy one of their washing machines. More to the point, as even Progressives are wont to say (when it’s convenient to them), it’s the law of the land. Moreover, it’s settled law. Corporations are people; the courts have long ruled so.

Finally, of course women have a right to their bodies. What they don’t have is a right to OPM for paying for their contraceptives. What they don’t have is a right to overrule the religious beliefs of others in order to force those others pay for women’s stuff.