Monthly Archives: June 2008

Hypocrites defend traditional marriage

The oft-proposed, always-failed Federal Marriage Amendment is back in the form of Senate Joint Resolution 43, introduced on June 25:


2d Session

S. J. RES. 43

Proposing an amendment to the Constitution of the United States relating to marriage.


June 25, 2008

Mr. WICKER (for himself, Mr. VITTER, Mr. CRAIG, Mr. ROBERTS, Mr. INHOFE, Mr. BROWNBACK, Mr. ALLARD, Mr. THUNE, and Mr. SHELBY) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary


Proposing an amendment to the Constitution of the United States relating to marriage.

    Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission by the Congress:

`Article —

    `Section 1. This article may be cited as the `Marriage Protection Amendment’.
    `Section 2. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.’.

Note that our intrepid defenders of traditional man-and-woman, weiner-in-cooter marriage include an admitted whore fucker and reputed diaper fetishist — David Vitter (R-LA) — and (at least) one real, live, self-loathing homosexual — Larry “A Clumsy and Unremarkable Fuck” Craig (R-ID). With friends like that, does traditional marriage really need enemies?

H/T – SquareState

Lawyers, Guns and Money X

District of Columbia v. Heller

As expected, the Supreme Court ruled yesterday that: (1) the Second Amendment to the U.S. Constitution protects an individual right to keep and bear firearms, a right unrelated to militia service, and to use firearms for traditionally lawful activities including self-defense; and (2) District of Columbia handgun legislation, which effectively bans handguns by prohibiting the carrying of an unregistered firearm while prohibiting registration of handguns, violates the Second Amendment. The vote was 5-4, with Scalia, Roberts, Kennedy, Thomas and Alito in the majority.

The Court rightly poo-pooed the notion that the Second Amendment is limited in scope to weapons of the sort existing when the Constitution was ratified. However, it appeared to limit its holding to “bearable” (carryable) arms, which presumably means that there’s no constitutional right to keep and bear a Cold War surplus Typhoon class nuclear missile sub or an A-10 Warthog strike aircraft.

The decision leaves a number of important questions unanswered. First, is the right at issue sufficiently fundamental to be binding on state and local governments by operation of the Due Process Clause of the Fourteenth Amendment? The Court didn’t need to decide that issue here, but the nearly reverential language Justice Scalia used strongly suggests an affirmative answer.

Second, what level of judicial scrutiny applies to firearms regulations? The Court notes that the “the right secured by the Second Amendment is not unlimited.” The Court disclaimed any intent 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.” That, however, leaves the scrutiny question open. If the right at issue is “fundamental,” strict scrutiny presumptively applies and a firearm regulation will fail unless the government proves that the regulation is necessary to advance a compelling state interest. It’s pretty easy to construct a hypothetical under which a state law banning felons from possessing guns would fail that test on an as-applied basis.

The dissenters (Stevens, Souter, Ginsburg and Breyer) divvied up the work. Justice Stevens asserts that the Second Amendment “protects the right to keep and bear arms for certain military purposes, but . . . it does not curtail the Legislature‚Äôs power to regulate the nonmilitary use and ownership of weapons”, including self-defense purposes. (The mountain of vitriol that Scalia heaps on Stevens is perhaps the best indication of the strength of Stevens’ dissent.) Justice Breyer argues that, even if the majority’s view of the amendment’s scope is correct, the D.C. laws at issue are constitutional because they’re consistent with firearms restrictions in effect at the time of the nation’s founding.

We can now expect a shitstorm of new Second Amendment litigation, a shitstorm that Heller rendered inevitable.

Jack Balkin nicely sums things up here:

Boumediene reflected the public’s increasing disgust with the Bush Administration’s detention policies. In Heller, the Court changed existing law dramatically to adopt a new interpretation of the Second Amendment that is actually fairly close to the center of public opinion. It struck down one of the most restrictive gun control laws in the country and it recognized Americans’ right to use handguns to defend their home.

Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans’ minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.

Like Lawrence v. Texas, Heller is another example of how the Supreme Court exercises judicial review in response to successful social and political mobilizations, regardless of what individual Justices understand themselves to be doing. The only difference is that in Heller, it is conservatives who have successfully changed public opinion, a change that has now become reflected in Supreme Court opinions.

Welcome to the living Constitution, Justice Scalia. We couldn’t have done it without you.

The notion that there’s anything “originalist” about Heller is indeed more that a little preposterous.

Heart Attacks, Coronary Bypass Surgery and Telco Immunity

Yes, it’s been a long time since the last entry. This time, though, I have a much more interesting excuse than the standard “too much work” and “not enough interest” bill of fare. No, really. Check it out.

Poor genetics and decades of ruinous living caught up with me on May 28, 2008 when I had a heart attack on the way to work. It obviously wasn’t The Big One a la the late great Tim Russert; it was more your myocardial infarction of the slow-burn variety (slow enough that the event actually lasted the better part of two days.)

Thanks to my coworkers and the Denver Paramedics, I made it to Porter Adventist Hospital. The dedicated pros at that fine institution saw to it that the heart attack wasn’t fatal and got me ready for Phase Two of the job. It was a pretty big undertaking, seeing as how all five of the arteries that fed blood to the muscle tissue of my heart were totally fucking FUBAR. Enter cardiothoracic surgeon Dr. Bradley Hofer, who performed successful quintuple coronary artery bypass surgery on May 30. Mad, mad props to Dr. Hofer for doing such magnificent work.

I truly can’t say enough about the nurses and other support staff at Porter Hospital’s coronary intensive care facility. I was quite the wreck when I came to after surgery, but those superb people had me well enough to go home on June 4. Special thanks to Douglas, Michael, Gloria and Mira. If you absolutely must have a heart attack in the Denver, CO area, I highly recommend doing so in the vicinity of Porter Hospital.

The biggest thanks of all go to Lisa, the love of my life. Her absolute devotion throughout all this has been nothing short of breathtaking. Can’t imagine what a miserable old bastard like me ever did to warrant the love of someone like Lisa, but I’ll sure as hell take it. I love you, baby.

Things seem to be going well so far. I’m spending the days walking around the neighborhood and catching up on tons of lost sleep. I’ve had post-discharge visits with both the surgeon and my cardiologist (that still sounds strange as hell — “my cardiologist”) and they’re pleased with the progress to date. It’ll be a long road, primarily on account of the horrible shit they have to do in order to get at your heart in the first place, but so far, so good.

And, of course, there will be lifestyle changes. No more 80+ hour work weeks, for one thing. That would sound delightful to most, but my fellow workoholics know it’s easier said than done. No more pork fat sammiches with gravy fries and pork fat soda, either. I’m gonna miss that. What I’m not missing very much at all is the two-pack-per-day cigarette addiction that’s dogged me for the past thirty-seven or so years. I keep waiting for the other shoe to drop, but so far things are good on the not-smoking front.

I’m not sure when — or even whether — I’ll return to blogging on a halfway regular basis. I may have some kind of epiphany that compels me to do something else with my free time. Or not. It’s impossible to say at this point. One way or the other, I’m focused on trying to get well right now, so it’ll be awhile before I return to this insignificant little backwater of the intart00bs regularly.

In news that actually means something in the grand scheme of things, the U.S. House of Representatives overwhelmingly passed a “compromise” bill that not only expands the federal government’s power to spy on “terrorism” suspects but also retroactively immunizes telecommunications companies from civil liability for their flagrant violations of the Foreign Intelligence Surveillance Act, the Electronic Communications Privacy Act of 1986 , the Communications Act of 1934, the Stored Communications Act as amended by the USA PATRIOT Act, etc., etc. by rolling over and giving protected information to the Bush Administration on request. The new legislation, if it passes the Senate, will moot a number of “state secrets privilege” cases currently pending in federal courts, two of which were discussed here.

Among the many Democrats voting for the bill was my own Congress critter, Rep. Mark Udall (D-CO). As my one or two regular readers know, Udall is giving up a safe seat in the House to run for a seat in the U.S. Senate that Wayne Allard is vacating. When I first heard about that development, I was pretty damned happy. Udall’s amassed a pretty substantial progressive voting record during his ten years in the House.

But then came Udall’s rather cowardly refusal to support articles of impeachment against Cheney and Bush. The refusal was bad enough, but the mealy-mouthed justification for the refusal (“Well, gee whillackers, I don’t know what ‘high crimes and misdemeanors’ means”) was absolutely inexcusable.

And now Rep. Udall supports what amounts to complete capitulation to the Bush administration on matters that go straight to the core of freedom and democracy. Well, fuck that.

Udall’s opponent in the Senate race is a monstrously evil Republican jagoff by the name of Bob Schaffer. I’d sooner power-wash my own testicles with battery acid than vote for Schaffer, but I can’t in good conscience vote for Udall either. As of now, I won’t be casting a vote for U.S. Senator come November. Anyone care to tell me why I’m wrong?