The Despicable Demorats

I have never voted Republoscum and vowed that I never would; but what the Demorats are doing is so despicable I cannot see that I have a choice.

Let the premise be clear: the Demorats do not represent ordinary Americans, whether the poor, the working poor or the distressed middle-class. The Rats as much as the Scum represent the corporate oligarchy and its coterie of vassals and hangers-on. As the British labour leader, Tony Benn, put it decades ago: “America is a One Party State; just have two of them.”

The Demorats have utterly failed to deliver on any of their so-called progressive promises. In 1992, the Demorats rejected trade-unionism in favour of free-trade, gutting welfare, and law n' order. In 2008, vowing an end to a “long night of darkness,” the Demorats flooded banks with money, continued neo-con wars, and hung the middle-class out to dry. In 2016, they rejected what they disparaged as the progressive agenda in favour of something the BitchWitch called “incremental progressivism” -- in plain English: “chicken feed.” Again, in 2020, the Demorats and the country's Liberal Establishment, led by the Slime-of-Record, left no stone unturned in order to defeat Bernie Sanders; in other-words to suppress a popular groundswell that, on the issues advocated, commanded 60% to 70% approval nation wide. And “no stone” included endorsing a woman who had crash-landed in her home state's primary and a lead candidate who was so prone to walking in circles and gumbling gaffes that he was kept out of sight in the basement. At least Benjamin Harrison had the decency to run from his front porch.

Once again, the Demorats employed their “What-you-see-is-not-the-real-me” tactic. Somehow, Joe Biden, the college varsity football player who got himself declared 4F on account of asthma, and who, throughout his career, had been pro-bank and pro-war, was peddled as Union Man Joe -- a gruff n' tumble guy who would push large chunks of the progressive agenda through Congrease.

Well... (as if it were not fully foreseeable) Bernie's My Friend Joe strategy proved as successful as Wile E. Coyote's running into a wall. (In fact, it was so foreseeable one can be excused from wondering if Bernie wasn't pogey bait for millenials all along.)

Instead of putting bread on the table for working Americans, the Demorats have offered their usual cornucopia of “cultural,” “social,” and “civil rights” issues -- all of which have the primary benefit of not in any way affecting the portfolios of the party's donor class. Even Blacks were getting tired of the game, seeing as five decades of Overcoming Promises had produced, at most, a mouse. So the Demorats went in pursuit of new issues. Suddenly transphoria issues blazed into the firmament. Concededly, public their-room access and teaching sexual-orientation alternatives to six year olds migh be of transcendental importance to the country's 0.3% transgender community, but it is of no practical benefit to the rest of us. Not with inflation raging at an official 8.5%.

Ah, but it is of great use to both the Demorats and the Republoscum. For while cultural issues are of no tangible, material, benefit to people, they have this near magickle power to get people riled up and make people forget their actual grievances. As James Madison put it,

So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. Fed. Paper No. 10.

Poor Madison! He never thought that he was writing a political manual for our two major parties. A pox on them both.

But the Demorats havetaken the matter a step further - a step which requires me to speak truth to subversion. This far, and no more!

As I have commented on before, in pursuit of their Woke Agenda, the Demorats have launched an assault on the First Amendment, getting their henchlings in Social Media to flag and block speech that is “violent,” “racist,” “sexist,” subjectively “offensive” “false” and “misleading.” These were always the rallying cries of censors and the favourite bugaboos of tyrants. Nothing more need be said.

Not content with eviscerating the First Amendment the Demorats are now going after the Second. The rallying cry in this crusade is to put an end to something called “gun violence.” The term, like most labels-of-convenience, is prejudicial to clear thinking. The term implies that guns=violence, or better yet, guns=death. But what is really at issue is violent acts committed by humans armed with guns. Why don't the Gun Prohibitionists speak of “human violence”? Because to do so would -- God forbid! -- point to the true cause at issue; and if it's anything the Demorats hate it's true causes.

With that caveat in mind, let us examine how much violence committed with guns there is. According to Pew Research, in 2002 45,222 people died from gun-related injuries. Of these, 54% were suicides (24,292), while 43% were murders (19,384) In 2020, handguns were involved in 59% of the 13,620 U.S. "gun murders and non-negligent manslaughters." Switching between "gun" and "firearm" murders does not make for clarity, but the Pew report is unequivocaly clear that: "Rifles – including so-called assault weapons – were involved in 3% of firearm murders." Using the 19,384 number that stacks up to 581 deaths. (The Gun Violence Archive, calculates 518.)

Right off the bat, these Pew Research statistics, betray what an utter canard the hysterical campaign against military assault!!!! rifles. They, and their “high capacity” magazines are responsible for at most 581 deaths; and actually less given that not all rifles are "military assault style" guns. Of course while any death is sad, and while the occasional mass shooting event presents a horrible spectacle, policy decisions are based on gross phenomena, on major trends. From a statistical and policy point of view “MILITARY STYLE ASSAULT RIFLE VIOLENCE!!” is a non-existence category.

Aristotle wrote that the role of spectacle in drama was to use suspend judgement; to dull the mind the shock or awe. The same is true in politics.

Getting the mind back into gear, the real issue is (and always has been) hand-guns. Of course, the Demorats don't want the issue framed in that way, because to outlaw hand-guns would unequestionably void the Second Amendment. So instead, they shift gears and complain about “high capacity magazines.”

Once again, let us examine the statistics. How many bullets does it take to blow one's own brain out? Answer: “high capacity magazines” are not at issue in 54% of all gun-relate deaths.

Of the 43% of gun-related murders, how many involved the use of “high capacity magazines.” Typically, “high capacity magazines” are those which hold 20-30 rounds. But with a few rare exceptions, most pistols sold in the United States come equipped with magazines that hold between 10 and 17 rounds. Those holding 10 rounds are generally compact or subcompact models. Recent anti-gun legislation has defined a high capacity magazine as one holding more than 10 rounds. Thus, the question that has to be asked is: how many of the 43% gun-related murders have entailed the use of more than 10 rounds?

Or: how many times did you shoot your wife?

I have not found an answer. Common sense tells me that most single-person murders do not require ten or more rounds, presuming the shooter can shoot straight. One has to imagine the types of scenarious in which homicides occur: deliberated murder of a person, heated spousal quarrels, drunken fooling around, liquor store robberies and car-jackings. Most of these can be, and most likely are, accomplished with under 10 rounds. The situation in which the perpetrator will even be carrying an extra magazine in his pocket is most likely gang-related “missions.”

All of which brings us to the last question: how many shootings are mass murders anyway? The standard defintion for some years was: four or more victims. Needless to say, Gun Prohibitionists, have wratcheted the number down to three. The FBI defines “active shooter incidents,” as “one or more individuals actively engaged in killing or attempting to kill people in a populated area.” Using the FBI’s definition, 38 people – excluding the shooters – died in such incidents in 2020.

Wikipedia contains a list of mass shootings in the United States since 1949. Since year 2000, the vast majority of these “mass” shootings have involved under 10 deaths per incident. Where more have been involved, there were usually other circumstances which painted a more nuanced picture.

For example: in 2002, 17 people are listed as being killed in the so-call D.C. Sniper Attacks. However, the attacks occurred over a ten month period. In the 1987 Flight 1771 killing, 43 persons are listed as being killed; three shot the cockpit, the rest when the plane crashed. Also in 1987, the Dover Arkansas mass shooting involved eight shot by pistol, seven by strangulation and one by drowning. Turning away from creative statistics, a perousal of these incidents show that, on average, most of these mass shootings involved between 3 and 7 victims of shooting.

Thus, to conclude, the prohibition of 10+ magazines is solution in search of a problem. Of course, any “gun violence” is a problem, but there is not a gun-violence problem in the United States. Not when contrasted with the 38,824 vehicle deaths or the 71,238 deaths in 2021 from fentanyl and the 32,856 deaths from meth. In terms of policies one might think there are more important priorities than banning an “assault style” weapon that is used in 1% of gun deaths (452). To be sure, possession of fentanyl or meth is already outlawed but that only serves to show that outlawing things doesn't work.

But the prohibitionist mentality is implaccable. The alcohol prohibitionists would not be deterred until they effected a constitutional amendment and eo instante created the mob, interstate crime and gun violence such as never before had been seen. Gee thanks. But at least Carry Nation (or her successors-in-rage) bothered with an amendment. The Gun Prohibitionists prefer the snake-in-the-grass. They are trying to eviscerate the Second Amendment with a thousand “reasonable regulations.”

There is nothing reasonable about them at all. One call all but hear them cackling with glee as they scribble out section after section after paragraph, after sub-paragraph, after item, after item, of pre-requisites, prohibitions, limitations, fees requirements. They are proceeding thus because they know that they cannot repeal the Second Amendment at the ballot box; and so they proceed by stealth and back of hand. It is despicable in its cunning and dishonesty.

This sort of thing might achieve the object of desire but it does so at the price of destroying law. Law, we might well remember, is simply a form of speech. It requires a certain good faith. Or as Thucydides said, “simplicity of speech is the mark of a noble man.” Just as speech is destroyed by sophistry and by the perversion of meaning, so too law is destroyed by devices such as are being employed by the Gun Prohibitionists. They should be forwarned. For if we are turned from a nation of law into a nation of mere devices then we are undone.

In the name of equal contempt, I am constrained to say that the Republoscum gerrymandering devices are also depicable. The difference is that what the Demorat Gun Prohibitionists are doing goes one step further and targets what the Framers felt was important enough to be enshrined as the second most fundamental of all rights, and they are doing so by means of vicious technicalities the sole purpose of which is to make compliance with the law impossible. Think about that: make compliance with the law impossible.

For shame.

Had the Demorats delivered on their vaunted promise of social welfare and economic equality, one might at least feel that the price was worth the basket of fish. But they failed at even that. Throughout history, most dictators have taken away freedom but given bread. Not them. It is a stark choice indeed between two parties each of which is comprised of narcissistic, millionaire pricks who whore themselves out to a plutocratic oligarchy and who do absolutely nothing for the average working person. But when one of those wretched parties takes after two of the three most fundamental rights in our constitution, my choice is clear.

Ortrud of Albany connives again.

Speaking to an adoring crowd of anti-speed activists, Governor Ortrud of Albany made it clear that she would not accept a Supreme Court ruling for an answer. “We are ready for 'em” she said.

“There is no rational reason for people to posses and drive fast cars,” Governor Ortrud said. “It is an absolute fact that the faster a car goes the more likely it is to be involved in an accident and the more likely the accident will be FATAL ... to INNOCENT people, children and cats crossing the street”

Ortrud continued: “No person needs to drive more than 25 miles per hour. Our Founding Persons never envisioned VEHICLES OF MASS DESTRUCTION that could travel over even 10 mph. When they authorized Congress to regulate interstate commerce they never imagined sixteen wheelers carreening destructively down the road at 70 mph.

“A High Speed Capacity ASSAULT VEHICLE in the hands of oversexed teenage boys and frustrated menopausal women represents a CLEAR AND PRESENT DANGER to society, she said. “Only police, firemen and ambulance drivers need High Speed Capacity Assault Vehicles. Everyone else can either walk, bike or drive low voltage e-carts.”

To achieve these laudable goals and evidently relishing her own cleverness, Ortrud of Albany proposed a laundry list of licensing requirements that would make it burdensome to the point of impossibility to qualify for an open road HSCV permit. Among these requirements were

“an in person interview,
“household member contact information
“social media viewing information...”

WHOOOA!!! “social media viewing information”? What kind of information? That you have a Facebook account? Well, that's nice but that doesn't tell you much, just about everyone has some kind of social media account. What the bill obviously seeks is the content of those accounts: who your friends are, what topics have interested you, what feelings or opinions you have expressed on various topics.

Don't Turn Around -- The Kommisar's in Town.

To be free is to be free from surveillance. Anything less is a prison. Apart from the grotesque and outrageous violation of all truly liberal norms, this requirement is paradigmatic of tyrannical absurdity. By what standard shall social media “information” be evaluated? What specific kinds of things should a license examiner look for and how should he factor them in with other criteria?

Given the number of feelings, the number of attitudes, the number of opinions people have about the number of things it is possible to have opinions, attitudes and feelings about, such criteria would necessarily be infinite. Any possible “list” of “red flags” to focus on would still be as thick as a telephone book.

Nor is it simply a question of quantity. Words, emotions, opinions are not just numbers. They are qualitative things and these are always subject to nuance and context. And supposing the “nuance” is grasped, how then is it to be connected to the causal likelihood of any supposed conduct?

The whole foundation of this sort of legislation is an illusory falsehood: the idea that we can predict aberrational behaviour. We cannot because by definition the behaviour deviates from norms; i.e. from that which is predictable. So we are left with the small beer of “correlations” and “associations.” As Mark Twain said, “there are lies, damned lies and statistics.”

Even assuming the veracity of the damned lies, rights accrue to individuals not to abstractions. Not only that, but the whole of our legal system is based on the assumption of free choice. It is for that reason that we do not bar poor people from entering stores based on the statistic that “shoplifting has been associated with lower socio-economic status.” Nor, until now, have we banned people from buying High-speed Capacity Vehicles on the ground that their Facebook page showed an “inappropriate” or “troubling” interest in race cars and bungi chord jumping.

Thus, the very kernel of Ortrud's licensing process is pure, undiluted arbitrariness, leaving it up to the examiner whether he or she or they likes your “in person appearance,” your “attitudes,” your opinions, your sarcasm, your likes and disklikes.

Ortrud of Albany enjoying her Legislative Triumph

“A tyrant knows no law but her own caprice.” (Voltaire.) What Ortrud's caprice ignores is that privacy is a fundamental constitutional right. It is axiomatic that the exercise of one constitutional right cannot be conditioned on giving up another. You know, as in “we'll give you a jury trial, alright; so long as you give up your right not to testify.”

The hypocrisy of so-called liberals on this score is nauseating. We have no doubt that Governor Ortrud is of the “my body my choice” persuasion. We would be astonished if she felt anything less than that a woman's right to “dispose” of her fetus should not be “limited” or “conditioned” by intrusive consent and consultation requirements or waiting periods. Aha... but when it comes to something she doesn't like, then the reverse is the case. Shameless.

Ortrud's Plot to ensnare Lohengrin in an electric go-cart deserves to ignominiously fail.

Peelousy's Lust

Nancy Peelousy, the chocolate bon-bon queen, is hell bent on stopping off in Tawain during her mid-summer tour of the Orient, despite Pentagon and White House urgings that she can the visit. But what does Peelousy care if it sets off a heightened stand-off between China and the United States -- a China that, thanks to the neo-liberal ghouls in Washington, supplies so much of what the U.S. needs?

Is she insane? Is she stupid? She may corrupt, morally bankrupt and deluded with self-importance but stupid, not.

So why is she willing to heighten tensions between China and the U.S. -- between a China that could always declare another Covid lockdown on her main port of overseas export?

The ever sagacious BBC opines that Peelousy just has always had a penchant for "poking" China in the eye. You know like her other penchant for designer chocolates which she publicly delighted in consuming as people lined up at food banks for miles two years ago.

Despicable as Peelousy is from every angle viewed she is not going to Taiwan just to poke Xi Jinping. She is going to Taiwan to poke Xi Jinping in order to gain votes.

You see, weighing in at 247,000 residents San Francisco's Chinese population accounts for near 30% of the city's total population. And the Chinese are very politically active. The community is not as staunchly opposed to the mainland government as it was 20 years ago. The nationalist flag is not as ubiquitous in Chinatown as it once was. But San Francisco's Chinese community remains a pro-Taiwan bastion.

No. Peelousy is not stupid. Along with her lust for chocolate, her lust for money, her greatest lust is her boney clutch on power, and for that over-riding obsession she is willing to risk confrontation with the one kid on the block that can seriously kick our ass.

Arma Virumque (synopsis)

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 Supreme Court's decision in New York State Rifle Assoc. v. Bruen, has reopened old wounds and calcified opinions regarding the Second Amendment's right to keep and bear arms. The entrenchment can be summarized by saying that gun rights advocates point to the word people insisting that the amendment guarantees a personal right; to which the gun control advocates reply by pointing to the word militia, insisting that the right to bear arms is only guaranteed within the context of serving in the militia.

The amendment unmistakably conjoins two distinct concepts and the argument is not satisfactorily resolved by wrangling over grammar or the text of the amendment in the abstract. As a result, the protagonists seek to interpret the amendment within the context of legal precedents and end up arguing over those texts as well. There are two fronts in this regard: (1) legal precedents after ratification of the Bill of Rights in 1791, showing how the amendment has been understood, and (2) legal precedents prior to 1791, casting light on how the Framers understood and thought about the question of Men and Arms in society.

It is in this way, judges and legal commentators in the 21st century have ended up wrangling over an English law enacted in 1328 known the Statute of Northampton. Needless to say, the battle lines were predictable. The statute, which was still in effect in the 18th century on both sides of the Atlantic, prohibited “riding about with arms to the terror of the people.” Right advocates argue that the statute presupposed a right carry arms and only prohibited their misuse. Control advocates argue that the statue was a blanket prohibition against carrying arms in public or at least “dangerous and unusual ones,” this latter phrase being used in 18th century commentaries on the statute.

As I explain, the gun-rights advocates win the day. The Norman-French, in which the statute was originally written, uses the word chivaucher which means to ride about raiding and pillaging - which is what the phrase “to the terror of the people” was meant to convey.

As I further explain, English and American statutes following the Statute of Northampton did impose “time and place” limits on the use of arms but there was no general prohibition on private ownership or carrying. On the contrary, since Saxon times there was an expectation that free men would have and be versed in the use of arms; and various statutes, such as the Assize of Arms (1181), the Statute of Winchester (1285) and later Tudor legislation, required freemen to have and practice the use of arms by which was meant weapons of war.

Such laws were obviously framed with military and policing purposes in mind; however, gun control advocates make the anachronistic mistake of projecting. the structure and practice of today's military reserve on to English and Colonial militias of old. Men did not get issued arms only upon joining the militia, rather the “militia” was called up and assembled from men who were already indivi-dually armed. Often times, the militia “self-assembled” and just as often “self-disbanded.” Obviously, over the course of 900 years there were variations in both technology and practice. For example, it is clear that by the late 17th century, if not before, local authorities kept stores of powder, ammunition, weapons, and engines of war. Nevertheless, the operative concept was of a society comprised of men who were both armed for their self-defence, responsible for public safety and obliged to come to the defence of the realm.

That much said, the debate over statues requires us to ask a preliminary question; namely, what are we about when we “look to the law” for an answer? What is the purpose of looking backward before moving forward? Does past experience have anything to say to us given the radical technical and social changes of the past 200 years?

One answer is that we should do what we have always done and therefore all we need to do is look to the those relevant texts which tell what was allowed and what was not. The other answer is that none of this is relevant to the present day and we need be guided only be our own best assesssment of what is just and expedient. This latter view was adopted by Justice Bryer in his dissent, in New York Rifle, in which he stated:

“In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms.”

Although framed in terms of deference to State prerogative (aka “states rights”), there can be little doubt that Breyer's view is that states ought to be allowed to do what he thinks is necessary. In my view, Justice Breyer's opinion is untenable; it is destructive of the very concept of law. What he was saying, in effect, is that the law will mean what he wants it to mean. In that case, why bother with written law at all? “Just ask Bryer.”

Bryer's dictum ought to give us serious pause. In 1934, an influential German legal scholar postulated,

“We do not determine what National Socialism is according to a pre-existing concept of the constitutional state, but rather the reverse; the constitutional state is determined according to National Socialism. ... Every interpretation must be an interpretation according to National Socialism.” (Carl Schmidt, “Nationalsocialismus under Rechstaat,” Juristiche Wochenschaft 63 (1934), pp. 713, 716; cited in Ingo Müller, Hitler's Justice, Harvard University Press, (1991), p. 71.)

Of course, to be very clear, Justice Bryer was not a Nazi. But what is at issue here is the peril of a particular legal methodology. Objectively viewed, National Socialism was simply a set of adopted social, economic, and political policies; and, so condsidered, Schmidt's formulation could be restated as: “We do not determine our [social policies] in accordance with a pre-existing concept of the constituion, but rather the reverse; the meaning of the constitution is determined according to [our chosen policy].”

In American legal parlance making a text mean what you want it to say is known as “outcome determination” and what it basically means is that the law does not act as a constraint or guide but simply serves as store of verbiage with which to gussy up desire.

The balance between law and expediency was the fulcrum of the debate between Justice Bryer and Justice Scalia who repeatedly criticised his colleague for reading his own preferences into the law, and thereby doing violence to words or at least to plain and straightforward thinking. The danger of a method which is, at bottom, one of desire is that expediencies can veer off in any direction precisely because they do not admit of textual constraint. One may agree with the outcome, in this case gun-control, but what of the day when someone else desires to read another outcome into the law?

Scalia has been unfairly caricatured as espousing a theory of “original intent” pursuant to which the name of the game is to figure out what the drafters of a law or a constitution were intending. Such a motivation-oriented approach was clearly rejected by Scalia. “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.”

Thus, whereas Bryer's approach is sociologically driven by present day utilitarian considerations, Scalia's was guided by a sociological understanding of how words were used in the past and what their reference points were.

In my view, Scalia's approach is the better of the two, but it is still incomplete. Statutes and constitutional provisions must also be historically contextualized by which I mean that they must be understood in terms of how they reflect a nation's experience. This is what Justice Holmes meant when he said that the life of the Common Law was not logic but experience.

Legal texts of course tell us what the official practice was with respect to any given subject matter. But legal texts also are sociological evidence of a peoples' custom and usage in dealing with particular problems as they arose. It is by balancing textual meaning with historical events and the development of custom and usage that we are able to allow the experience of our forebearers to speak to us and offer us guidance, if not always mandates, as to how we should best proceed apace. It is with this in mind, that I have undertaken this brief and inadquate review of English law and history prior to the adoption of the U.S. Constitution.

In the Western tradition, an individual's ability to bear arms has always been deemed essential to his survival, protection and independence. This was so universally accepted that early English law felt no need to belabour the obvious. Instead the law, from time to time, imposed prohibitions against the misuse of arms. At the same time medieval English law imposed duties on the citizenry to be armed with designated weapons of war, to train themselves in their use, and to be on call for both local policing and national defence. In 1688, when England became a liberal constitutional monarchy, the expectation and obligation to keep and bear arms was reformulated as an individual right. At the same time, that right was now explicitly associated with the ability of the people in their primordial sovereignty to guard against subversion and resist tyranny.

In drafting the Constitution and the Bill of Rights, the Framers were drawing upon a thousand years of English statutes and experiences. From and after the Norman Conquest in 1066 the near consistent theme of English history is one of baronial (and at times peasant) resistance to government over-reach. This is what Magna Carta, due process, and constitutional monarchy were all about. In search of a rooted justification for their revolt, the Colonists went back into the recesses of medieval history. Above all they returned to Lord Coke's brash finger wagging at James I that the monarch was subject to none “but God and the Law” -- the verbal salvo that initiated the English Civil War and ended with the Glorious Revolution. The Colonists were completely correct in regarding their revolution as being in the best of English tradition.

Contrary to prevalent myth, the U.S. Constitution was not a product of the Enlightenment. It may have been buttressed by 18th century political philosophy -- by the ideas of Locke and Montesquieu -- but the structure itself was steeped in medievalisms. And just as a cathedral is not comprehended by looking at this arch or that column but by intuiting the vaulted space enclosed, so too the Bill of Rights is not a collection of legal provisions that can be understood in and of themselves as isolated objects. What matters is the space that together they shape and enclose.

The dry ink on the Bill of Rights is animated with the sound and clamour of history, of real people “great and small,” doing things small and great, in conflict and in cooperation. If there is a singular theme that coalesces out of this experience it is the idea that the best check on government over-rule was routine, popular participation in the ordinary affairs of government

The rights of speech and assembly, the right to bear arms and the right to trial by a jury of ordinary citizens are a triad of rights that were meant to insure popular control over the affairs of government. It is true, that the right to bear arms is “related” to the participation in the militia; it is also the handmaiden of the obligation to render jury service.

So when it is asked what good is served by “looking to the past,” my answer is: a lot. I am not hearkening to the “spirit of the law” in some vague and romantic sense, like Justice Bryer decked out in flower-garments. The Framers were pragmatic men, dealing with practical problems and trying to bring order out of looming chaos. In doing so, they had the experience of Athens and Rome before their eyes, and this made them distrustful of direct democracy. But they also had their experience as Englishmen at their backs and this made them appreciate the importance of individual rights and popular input. The Constitution was their attempt to strike a social and political balance between the one and the many, between liberty and order, between chaos and oppression. The Constitution is not just a mechanism but represents, in broad strokes a social vision. I do not say it is Holy Writ; I say only that it is worth letting it speak to us.

In reading their wants into the Bill of Rights both sides of the present debate mistake the tree for the forest. The Second Amendment is not a guarantee of mere personal rights. Nor is it a guarantee of an optional right to join the militia. It is both an individual right and its corresponding obligation. What the amendment points to is not just a right to bear arms, and not just a prerogative to of the state to maintain militia's but an expectation that ordinary citizens will be actively involved in maintaining order and in the defence of country. It presupposes a citizen's army and a citizen's police force; and it reflected a deep rooted fear of their opposites: a standing professional police force and army. Rather than seeking to suppress weapons, familiarization and training in their use ought to be extended coupled with programs to incorporate the citizenry into policing their own communities.

It is a mistake to say that Founders could not have anticpated fully or semi automatic assault rfiles, or that they never envisioned New York subways. These are superficialities. As shall be seen they understood perfectly well the problem of weapons of war in crowded spaces. It is equally misfocused to think that the Framer's only wanted to enshrine an individual right. They enshrined an individual right within a social context in which the individual was socially responsible.

It is argued that constitutional experience is all very well and good but that expecting ordinary citizens to police their own communities in vast post-industrial mega cities is a unrealistic. Similarly the idea of a citizen army is outdated in a military environment that requires a year or more of training just to achieve basic proficiency. These tasks, it is said, are best left to professionals.

The same argument has been made, by Justice Bryer in fact, regarding the jury. Best not to tax it with too much; better to leave technical evidentiary and sentencing issues to the “discretion” of professional judges. Better to carefully tailor its independence with “instructions” aimed at “insuring” a “just” result. To this Justice Scalia replied that a "just" result is the one the Framers envisioned: a verdict reached by ordinary men who were not agents of the state.

The Bill of Rights was also a Bill of Expectations that the country would be able to fill that space enclosed by the Constitution with active participation in the triad of politics, justice and defence. What is unconstitutional is our alienated, fragmented, increasingly lumpen society almost devoid of civic capacity.

The Framers would have been horrified at our standing army and militarized police forces. The latter in particular would have been deemed an insult to honour and a degradation of freedom. What the text, spirit and experience of the Second Amendment call for is a root revamping of how the “security of a free state” is provided for.

Given the imperialist monstrosity the United States has become, it is hard to see how any of our fundamental rights can be maintained in the vivid colours originally imagined. But we might at least rethink where we have come to and try.

©2022, Woodchip Gazette.

[FULL FEATURE]

SUPREME COURT ANNOUNCES "BRIEF LULL" DOCTRINE

Even though he was a publicly employed high school coach; and even though he was at a publicly sponsored school event; and even though the event took place on public school property; COACH KENNEDY'S personal private kneel n' pray during a lull in the game did not violate the Establishment Clause, but came under the protection of the Free Exercise Clause, because he did not offer his prayers during the "scope" of his employment....

OR..

as Alito, J. put it, he offered his prayers "when a brief lull in his duties apparently gave him a few free moments to engage in private activities." So.....lessee here. At five minutes to bell, Ms. Simpleswaithe, answers a little ringtone on her cell phone (to the tune of Guide us, Thou, Oh Great Jehovah) and in her personal lulling capacity, says:

...Oh Lord and Savior Jesus Christ, only Son of God Creator of all things, and Great Guide to us Thy humble, faithful Servants, we thank Thee for this opportunity, following in your footsteps, to guide these young minds entrusted unto us in the ways of knowledge and righteousness, to the glory of Thy Your Holy Name.

AMEN/RRRRRRIIIIIIING.

So, what will follow now is a string of "case-by-case" jurisprudence defining the content and contours of "brief lulls." How brief is brief how lull is lull. And if you think lawyers can't turn this into several volumes of blah blah blah, think again.

As Sotomajor, J., pointed out in her dissent, the majority's opinion was cavalier with the facts. (I'm not sure that was the word she used...) So what were the facts on the ground?

Coach Kennedy made his kneel-and-pray at the end of the game, giving thanks to the Almighty Ruler of the Universe for his team's victory. Let us assume without futher ado that this nonsense qualifies as "religious practice." Far be it from us, etc., etc.. The point is, he did the thing at when the game was over, not at half time, not during a break to change players, not during the pause between national anthem and concession announcements.

Lull 1. n 1. Abatement of noise or violence; momentary calm; subsidence of tumult. (Funk & Wagnalls Standard English Dictionary (1937), New York/London. p. 1472)
Abatement. 1. The act or process of abating; or the state of being abated; decrease, amount of reduction. SYN. decline, decrease, diminish, ebb, lower, mitigate, moderate, reduce, subside. (Id. p. 3.)

(I always use old dictionaries because modern dictionaries take their definitions from the nearest potted out hippie or bro on the block.)

It will be noted that a "lull" is not the same thing as a "break" or a "pause." So it was not as if the kneel n' pray took place while there was a time out for everyone to go get hot dogs or take a pee. The game (which Kennedy was hired to coach) was still on. It was just on at a lesser intensity. But how can that be? The game was over. So what was the "lull" in? If not in the game then what else was left other than "time-on-the-job." But nothing in the opinion indicates that Kennedy's duties were over at that point or that he had clocked out. He was praying on the job pure and simple. But that's not what the majority opinion stated. It said very clearly that "he did not offer his prayers during the scope of his employment."

Without resorting again to Funk & Wagnalls, the word scope has definite, special legal meanings. In the context of employment it can refer either to (a) clock time on the job or (b) the performative duties envisioned in the job (what most people know as their "job description."

If the Court meant "scope" in the second sense, then the opinion would be circular nonsense. It would be tantamount to holding that because Kennedy's prayers were not part of his job description his praying was not within the scope of his job and were OK when done on the job. If this is the case then any government employee can pray loudly anytime because the prayer, after all is not within the "scope" of his job.

Giving all benefit of doubt to the highest judges in the land, they could not have meant scope in this sense. Indeed, the fact that they used the word "during" indicates that they meant "scope" in the sense of clock-time. That is at least something; but the indisputable fact is that coach Kennedy was still on the job. He still had to to shepherd his minions into the locker room, de-brief them, give them pep talks and whatever. There is no indication that Kennedy did not bill and was not paid for the 30 seconds he took to pray. So, indisputably he was praying loudly and ostensibly while on the job; something that was not and could not be within the performative scope of his employ.

So, yes "cavalier." But does it matter? One ripple in the highway of flawless jurisprudence surely does not matter. Actually it doesn't.

The rule of law governing precedents is pretty clear and long established: the holding of a case, the rule it promulgates is "bound by the facts of the case." To give a very simply example. If a decision announces a rule about "animals" -- ("We hold that animals must be..." etc.) -- but the facts show that only a pig was at issue before the court, then the rule of the case is limited to pigs. One can argue that the rule should be extended to horses or goats, but the rule itself is about pigs and pigs alone.

So in this case, the Court decided an abstraction. The majority told us that the kneel-in-pray was not done while on the job. Alito told us that it was done during a lull in the job, by which he obviously tried to insinuate that it was done during a break in the job. Okay. Since the Court says that those are the facts on which it is basing its rule, what's the problem? None. Absolutely none. Can anyone have a problem saying that individuals in public employ can pray while not on the job? Not in my view. On the contrary, I would say that of course they can. Anyone should be allowed to pray on their break. So the case is no big deal.

Except... does the Supreme Court really take up cases that are "no big deal" ? One might think they had better things to do. And indeed, whether they are better or not, they are doing it. This is how it works. It is called laying the groundwork.

This case goes to stacks (of law books) standing for the principle that a public employee can pray during a "lull" or "break" or "off time" in his job. Forget all the other facts. They don't "exist" because the Court ignored them and did not craft or base its ruling on them.

Two years down the road, a case comes before the Court, in which Ms. Simpleswaithe begins the class (after the bell has rung) with the above recited prayer. All breaks are over and the only thing that is scheduled is her instruction in sixth grade grammar. ("Give us Oh Lord, the light to see the difference between a noun-gerund and a participle. Amen.") the present Court will decide that this is permissible. The opinion will read something like this:

"Although in Kennedy, we held no more than that a public employee could pray so long as the prayer was not undertaken during the scope of his duties, the facts of the case showed that the petitioner in that case had only prayed during a lull in his duties but was otherwise still performing work he was hired to do. We see no reason now to draw an artificial distinction between... " etc. etc., blah, blah, blah.

In other words, the facts that they now ignored, will become the "backdrop" for extending the rule at a future date. That's how judges do these things. They've done it like from time immemorial. It's what makes the law such a cavalier profession

Jack, We hardly knew Y'a...

Not by coincidence, I'm sure, but a photograph of Jack Kennedy and his life long friend Lem Billings got posted on my Facebook Feed.

Of course they were just two guys horsing around. But the horsing just as obviously had a sexual inuendo. And what that means is that they were friends who did not let sex come between them.

You see, Lem was gay or, as they would have said back then and being as polite as possible, a "homosexual."

Considering the era and considering that Jack was Roman Catholic, I think it's amazing how enlightened he was and how he did not let the small matter of Lem's orientation preclude all the other things two men can agree on, share and enjoy with one another.

But the thing that drew them most to one another was one another. Lem actually repeated his last year at Choate so that he could graduate in the same class as Jack. After graduating the two took the Grand Tour together.

During the war the two were sent to different theatres but once the war was over Lem was back at Jack's side. He was completely accepted by the Kennedy's and was so much a fixture in the family that Ted Kennedy at first did not realize that Lem wasn't one of his older brothers. Nor did things change when Jack married Jackie. Lem was so much a part of the family circle that he did not even need a pass to the White House where he had his own room.

People inevitably wonder if Jack and Lem might not have had sex. Others state that Lem was asexual. I am not impressed by such agenda-driven inferences. As close as they were in the virility of youth it is not believable that the subject of their respective sexual desires did not come up. And what if they did engage in some sexual "exploration"... so fucking what? What the fuck does it matter?

Jack had no interest in Renaissance art (of that we can be sure) and Lem had no interest in politics (or so we are told). It is impossible to think that Lem was not sexually attracted to Jack. Kennedy was young and good looking; Lem was... well young and male. It is also hard to imagine a womanizer like Jack being sexually interested in guys. But who knows? maybe, for Lem's sake, he gave it a try, whatever "it" might have been. But again, so what? It certainly didn't change Jack's orientation and just goes to show the harmlessness of it all.

What we do know from what is obvious is that they enjoyed and therefore were interested in one another as... as what? as men, as just two guys.

Maybe Jack needed a listener... maybe Lem need to be confided in. Maybe it was simpler than that; maybe they just laughed at the same things. Laughter, the gift of the gods.

Looking at the photo, I'm glad they were friends and I'm glad they were being silly.

My only regret is that the relationship was not talked about or known. Given how Jack was so admired,think of how many gay men would have had their burden of shame and secrecy lifted, if they had only known that their hero did not hate them for what they were.

Jack, we hardly knew ya.


©2022, WCG

Frankly Nancy, I don't give a Damn

The New York Slime whines and groans about the threat Trump posed to "our democracy." The only thing honest in this exercise in editorial hysteria is the word "our" because the only thing Trump threatens is the Demorat lock on power, position and privilege.

Let's face it; American elections are a sordid farce. Districts are gerrymandered to entrench incumbents, a busy network of insects-in-the-grass insure ballot stuffing and miscounting at the precinct level and an equally busy network image consultants and professional bribers work to put lipstick on pigs and shove dildoes up swines asses. To top it all off, a federal constitutional system insures that the majority of anything never gets to rule, except in circumstances so exceptional as to amount to a systemic failure (at maintaining deadlock and oligarchy, that is).

Let's take a step further back. Since 1970 the real income of the American worker has flatlined. In fact, in real terms average hourly earnings peaked more than 45 years ago: The $4.03-an-hour rate recorded in January 1973 had the same purchasing power that $23.68 would today. [Link]  Since year 2000 wage increases have remained flat for everyone except the top 10% and some slight rise in the 75th percentile.

A closer look. Between 1947 and 1979, the average real hourly wage grew 2.2 percent per year. From 1979 to the present, average growth fell to 0.7 percent per year. However, that is just the average. For middle wage workers inflation adjusted growth was just .4 percent per year and for low wage workers, 0.2 percent -- a virtual zero. In contrast, real wealth for the top 10 percent has soared. [Link]

In terms of net worth, the picture is even more grim. In 2021, the top 10 percent of Americans held nearly 70 percent of U.S. wealth, up from about 61 percent at the end of 1989. The share held by the next 40 percent fell correspondingly over that period. The bottom 50 percent (roughly sixty-three million families) owned about 2.5 percent of wealth in 2021. 

In terms of income inequality, the U.S. lags behind only Brazil and some shit-hole African countries. It is on par with Mexico. Even Russia has more income equality. And all this is based on government figures which we all know are cooked to make the situation look better than it is.

 

And those are just the metrics. In terms of quality of life America sucks. While the upper 10 percent live lives of professional privilege, sybaritic plenty, technological creature comforts and spiritual narcissism, the vast majority of Americans are undereducated, overweight, stupefied by mass media, drugs or religious insanity and totally bereft of any opportunity for civic participation and social validation. If you doubt my diagnosis: just waddle into any Walmart on pay day.

Every president since Lyndon Johnson has been a creep or a scumbag, and that includes Jimmy Carter with all his goodie do-good Baptist yap about learning to lower our expectations. Oh the humility! Imagine when Lyndon is the best you can remember.

As for the parties: same shit, different icing. It ought to suffice to say that almost every member in Congrease is in the top 1% of wealth-hoarders. Even the newbies who from out of nowhere jumped on the bandwagon are in the top 5%. They don't care about you because they don't suffer as you do.

Let's be honest. How much does anyone care about some bloated-tummy starving baby in some drought stricken fourth world country? You look at the picture, think "Oh that's awful." You say to yourself something ought to done about it, and then go and get your latté at Starbucks. And so it was that when, two years ago, people were lining up for miles at food distribution points, Nancy Peelousi took to the air to talk about her favorite designer chocolates.

The word com-passion means co-suffering. Combat veterans have com-passion. Poor people have com-passion. The rich in Congress do not. Cannot. The Repubs say they care about the average Joe and that the way to help him is to feed the rich. Let the rich be rich! This will somehow help the poor by "creating good paying jops" Whatever jops are. How has that worked? Real unemployment is up and what jops have been created come sans benefits. Whoopee.

The Demorats say they too care about the average Joe and that the way to help him is with government programs. Well that, IMO, is actually true; but what have the Demorats delivered? Zip. Lessee Teddy Kennedy blocked a single payer health care bill back in the 70's because he didn't want Carter to get the credit. Clinton ran on shipping jops out of country and shipping Negroes to prison. His welfare reform was about on par with Britain's penal colonization policy for Australia, aka "freedom through work for scraps."

And then came the Great Magic Obambi with a mouth full of hopey dopey treacle and kitsch which the oh so multi-cultural top ten percent scarfed up like pigs at the trough. It made them feel so good to be able to vote for a minority. A minority whose first act in office was to assure bankers that he had their backs and who then went on to continue unabated Republican neo-con wars and torture programs before pushing through a Republican conceived scam to pad insurance company profits under the guise of "healthcare [sic] reform." Meanwhile the flatline and decline of real wages continued unabated.

And then came Trump whose main purpose in history was to complete the progression and prove just how nauseating, narcissistic, self-serving and corrupt American politicians could be.

And some howI should care about January 6th? Frankly Nancy, I don't give a damn

The New York Slime intones "Our duty, as American citizens, is to participate fully in this [hearing] process, by watching and absorbing the committee’s evidence and considering what it would mean for our democracy if Mr. Trump were to run for president again."

In their inimitably oblivious way, the Slime just dropped their pants. The only difference between Biden and Trump is their choice of kick-back buddy. Trump does the dirty work for one group; Biden for another. Neither group includes you or me. Whose "our" democracy? Not mine.

Both parties -- the hydra heads of corporate capitalism -- have connived to destroy the traditional trade- and industrial working class. To the extent that a working class exists it has been rolled into the military. The remainder has been reduced to a sub-proletariat scrambling to make ends meet in menial, brain dead service sector and clerical jobs.

The Demorats ran on a cornucopia of promises to materially improve the lives of the vast majority of Americans who are not in the privileged upper middle class. They have utterly failed to deliver on any one of those promises. And on top of that they have given us gas-inflation, rent-inflation, food-inflation, drug-inflation, medicare premium inflation, and interest rate inflation at the very time Americans are being forced to live off their credit cards. Now, everyone except the top tier is scrambling.

What the Slime urges us to do is to "absorb" the spectacle of scandal and intrigue that consumed Versailles in its final days, as if these had any significance for the common man.

Frankly, I don't give a damn.

The Nauseating Demorat Act

The latest mass shooting has triggered the Demorats to go into full burst mode demanding an end to gun violence and the outlawing of "automatic-assault-style-type" weapons. Their strategy for November is quite clear: harp on gun violence and a woman's right to fetus flush.

They failed to build back better;
They failed to expand medicare;
They failed to stop pharmaceutical blackmail;
They failed to extend the child tax credit;
They failed to provide student loan relief;
They failed to raise the federal minium wage;

and in adddition to failing on any of their campaign promises,

They have failed to curb inflation;
They have failed to bring down gas prices;
They have failed to provide housing security....

For all their talk about caring for the ordinary working Americans the Demorats have done nothing, nothing, nothing... except dump 40 billion dollars into another war somewhere on the globe. There is always money for war.

A war for which they sanctimoniously tell us we should be happy to tighten our belts.

Elizabeth Warren can "outrage" on the steps of the Supreme Court over a woman's right to choose ; Kamala Harris can quake with emotion as she decries guns that are "designed to kill"....(duh); President Biden can rent his garments "in God's name!" They are the very face of pious hypocrites. The whole damn lot of them.

Decrying the lack of movement on gun control The New York Slime saith

"But as currently structured, Congress is fundamentally unresponsive to the needs of its most vulnerable citizens and has been corrupted by powerful interest groups, allowing those groups to block even modest changes that the vast majority of Americans support."

Oh sing sorrow of sorrows! So only now you discover that "as currently structured" the Senate is the enemy of the people? Where were you when senawhores Mancin and Sinema were blocking legislation that the majority of Americans supported? Where was your voice rising to heaven "in God's name"?

“Sodom and her daughters were arrogant, overfed and unconcerned; they did not help the poor and needy.” Ezekiel (16:49)

"Woe to you, scribes and Pharisees, hypocrites! For you cleanse the outside of the cup and dish, but inside you are full of extortion and self-indulgence. Blind Pharisees, first cleanse the inside of the cup and dish, that the outside of them may be clean also." (Matt 23:25-26.)

You High Priests of Forty Second Street bemoan injustices that cost you nothing to fix; but those injustices that would require you -- yes you -- to part with some of your wealth so that others might have a portion of what you enjoy, on those injustices you are silent except to mumble excuses about political realities....

We despise Republicans. In our view they suffer from a congenital defect that makes them less than human. But the enemy who pretends to be your friend is always worse than the enemy who is honest about where he stands.

The Demorats do nothing for the young, the old or the struggling middle. No less than Republicans they serve only their corporate Johns. Do not think they are one of you. Everyone in Congress is in the top 4 percent of income earners, and will be for life. And that is just on the basis of their $170K salary.

They don't need you and you can't hurt them. If they loose the election, they will still enjoy all their comforts and privileges as they hob nob amongst themselves. The reason to punish the Demorats in November has nothing to do with teaching them a lesson or political change. It is simply a matter of self-respect.

Otherwise, as "currently structured," only an iceberg can correct the ship of state.

The Assault Rifle Shibboleth

Needless to say, the latest mass shooting, (in a Texas elementary school), has triggered the usual fire burst of demands and denials over gun rights and gun control, the debate in auto-mode over abortion being temporarily pushed to the side. The arena of American politics is like a Roman circus of mad dogs who are thrown bones of contention at whim by a bored emperor. Nothing changes. The dogs simply like to go at it.

Of course, gun control activists (which is most of the Demorat Party) were quick to call for an "assault weapons" ban, even though from the confused and sparse reports of the incident it was never very clear what kind of weapon the 18 year old killer used. That didn't stop St. Jacinda the Mournful, (New Zealands Prime Minister), from telling a cheering crowd of Harvard grads that it was time to ban "semi-automatic style weapons."

I can't stand it when people are more interested in scoring Agenda Points than first ascertaining what the facts of any situation are.

I still am not sure what weapon this guy used. You would think someone would say: he was "carrying" a ... blah blah blah -- not that he had "purchased" a blah blah blah two days before. There's a difference.... Duh. Why leave it at a dangling inference when a simple statement of fact will do?

But assuming he was carring an "AR-15 Assault Rifle" .... so fucking what? A Basic Wiki....

"The ArmaLite AR-15 is a select-fire,gas-operated, air-cooled, magazine-fed rifle manufactured in the United States between 1959 and 1964. It was "designed by American gun manufacturer ArmaLite" but later sold to Colt "which "marketed the redesigned rifle to various military services around the world" including "the US military which designated it as the M16."

So... "AR" does NOT mean "assault rifle." It is the name of a manufacturer and stands for "Armalite Rifle."

OK... but it is true that the AR-15/M16 was (and is) what the American military classifies as an "assault rifle" whether made by Armalite or Colt. However, whether a firearm is or is not an assuault rifle does not depend on its nifty and ominous looking silhouette. Pictures of an AR-15 rifle are basically useless, except for harumscarum propaganda purposes.

The qualification of a weapon as an "assault rifle" depends on various defined factors or capacities, including size of bullet and range of fire. For present purposes, what matters is a little switch on the left side of the chamber. A little switch that can have two or three settings: (1) safe (2) semi-auto and (3) full auto.

 
(1) means the rifle will not fire; (2) means it will fire one round per one squeeze of the trigger; (3) means it will fire as many rounds as are in the clip so long as your finger holds down the trigger. (Some have an alternative known as "burst mode" which limits auto-fire to two or three rounds per trigger pull.)

Now, one shot per one squeeze doesn't sound very "automatic." In fact, it sounds rather "manual." The "automatic" in "semi-automatic" does not refer to automatic firing but automatic chambering. The round will automatically be spring loaded into the chamber without having to be leveraged in by pulling a bolt.

The term "assault rifle" itself is more an accident of history than a description of the weapon's use. The standard theory is that the term was a translation of the German sturmgewehr or "storm weapon" which was designed to provide a shorter barrel and more agile firing range than the then standard issue rifle. That in turn got translated into the Hollywood Taktik of charging at the enemy while letting loose a continous discharge of fire from a rifle held at the hip.

Although it may be something soldiers like to argue about, I think it is fair to say that the main purpose of full auto-mode in a rifle is to provide suppressive fire; that is, to make the enemy hunker down under a hail of bullets, although it can obviously also be used for either offensive or defensive mass-kills albeit with less continuous lethality than a belt fed machine gun.

In all events, what makes for a military application is less the "style" of the gun and more the automatic rate of fire; or to be ultra precise: the automatic chambering and firing of rounds.

Again Wiki: "Colt [has] continued to use the AR-15 trademark for its line of semi-automatic-only rifles marketed to civilian and law-enforcement customers, known as Colt AR-15." Semi-automatic.

In other words, what Agenda Activists are calling an "assault rifle" is actually a "one squeeze, one shot" weapon.... just like an semi-automatic 9mm handgun or a .22 carbine.

So the idea that this or any other gunman could go into a classroom and "spray the place with bullets...mowing down victims" under a rain of lead is pure bullshit.

Why is this important? Because when the firing capacity of the weapon is properly understood it basically makes no difference whether the shooter was armed with an "assault rifle" or a 9mm handgun. And if it makes no difference then either you outlaw both or outlaw neither.

Now it is possible to modify a semi-auto into a full auto but it takes a professional gunsmith to do it and even then the results can be problematic. Simple fact is that almost all so-called "assault rifles" in civilian hands are semi-auto (one squeeze/one shot) only.

It is also true that assault rifles are made for use with intermediate calibre cartridges (e.g. 5.56x45mm) which are designed specifically to kill people. But so too are 9mm rounds; and, at the end of the day, any number of different weapons and bullets will kill human beings with comparable effectiveness in non-battlefield situations.

What people like Sweinstein or Saint Jacinda want to outlaw is a dramatic idea they have in mind; in other words a shibboleth.

Now, in this case, it is turning out that the shooter was barricaded inside the classroom for one hour. No one has been very clear about this either; but it appears that during that one hour he picked off the 20 victims one by one. The impression I get...(and it's an impression because everyone is running for cover and being as vague as possible) is that he was"inter-changing" with the cops and at unspecified intervals shooting hostages.

Of course, that's a nightmare, especially if you are a kid waiting your turn. But horrible as it likely was, it has nothing to do with "assault rifles" and a lot to do with an insane kid and cops who were either cowards or racistly indifferent to the situation at hand.

None of this is to deny that the United States suffers from an affliction of violence. But instruments lack agency. The term "gun violence" is one of those verbal flash bangs that actually mean nothing. What is at issue is aberrational behavior, and the question that has to be asked is why is the USA so aberrant? We might as well ask why it is so out-of-shape, ignorant, belligerent, lacking in social cohesion but full self-righteousness and religious insanity ... etc. etc.

Americans are peculiarly inept at grasping fundamental or systemic causes. This is probably the real reason why Marx finds so few takers on these shores. For Alexis de Tocqueville the root cause was America's fetish of individuality. Americans, he wrote, are disconnected in time and place. The chain of generations linked to the land is broken and so too the bond of obligation not only to others but to those who have gone and to those who will come. Americans "owe nothing to any man, they expect nothing from any man; they acquire the habit of always considering themselves as standing alone, and they are apt to imagine that their whole destiny is in their own hands. ... Thus not only does democracy make every man forget his ancestors,... it throws him back forever upon himself alone and threatens in the end to confine him entirely within the solitude of his own heart.” (Democracy in America, ch. 2)

We have quoted this before because we think that it was and remains one of the most fundamental observations that can be made about this country. Indeed solitude is one of the great themes of our painters, poets, cinematographers and singers. We are almost perversely proud of the fact.

But what is a "jungle" if not a place where the individual is thrown back on himself? We are a place so lacking in a culture of obligation and responsiblity that we are a jungle and foremost an economic jungle. Thus, if we want to end "human violence" we have to promote economic security and social purpose; that is, to recapture some of the linkages de Tocqueville referenced.

But of course liberals don't really want to do anything about laying strong, cohesive social foundations. That would cost them money. They are no better than conservatives. Both sides would rather substitute junk issues for issues of substance (again, read "money"). And so it is that one side wants to flood the square with unwanted babies while the other side wants to ban guns to stop violence and censor speech to stop "hate" (aka anything they don't like).

Not surprisingly, Saint Jacinda's commencement address at Harvard covered every single cultural and identity issue on the Woke Liberal's Smorgasbord, ending, of course, with a rousing call for "[t]he impact that we each have as individuals." Not a word, to this crowd of future elites, assured in their privilege, about economic injustice. Beware the evils of "disinformation" and "hate" she cried; but not a word about war, inflation or a preferential option for the poor. Tellingly, what brought the Harvard crowd to its cheering feet, was Ardern's clarion call for "banning semi-automatic military style weapons [cheers] and the decriminaliztion of abortion [louder cheers]." Of course, the Dumbocrats will make these two demands their main talking points and loose in November.  Not that it matters.

All I can say is that when guns are outlawed only cops will have guns.

Premature Delivery

A first draft of the forthcoming U.S. Supreme Court decision on abortion was leaked to the press yesterday. To my knowledge, this kind of full bore leak has never happened in the Court's history. The first conclusion one can draw is that the Court is not “respectfully divided.” It is not even “vehemently divided.” It is at war with itself. The same irredentist divisiveness that has gripped the country has taken hold of the Court.

We have said before that the Court is a political institution, albeit not in the way that term is usually meant. Briefly, whereas Congress is political on the basis of number, the Court is political on the basis of quality -- in particular, the quality of words and their compelling or restraining force. Justices have positions on social and political questions, but they agree to submit their desired outcomes to what the text of tradition and precedent will bear.

The thrust of the criticism of Roe v. Wade and Planned Parenthood v. Casey, was that the desired outcome (a constitutional right to abort) could not be read out of our traditions and precedents as a nation. That being the case, a non-constitutional right to abort had to be urged and obtained through the politics of number.

In order to understand the criticism, it is necessary to grasp the basic nature of our constitutional system.

As a “federated republic,” original sovereignty rested with the several states, which granted certain specified power to an over-arching federal government. The idea was that the federal government would handle the “big stuff” involving all states together or foreign powers. All the rest -- the ordinary stuff of life -- was left to the states. The Constitution was no more than the organizational chart for running the federal government.

As such, the Constitution contained no grant or enumeration of individual rights, the vindication of which was left to the states. James Madison was not at ease with this and insisted on asserting a Bill of Rights. In the English tradition, a bill of rights is a reservation against the monarch and it was Hamilton's position that it was absurd for the People to reserve rights against themselves. Madison's more pragmatic position prevailed.

But that pragmatism also highlights the limitation of the Bill of Rights; namely, that it was never intended to be an exhaustive enumeration of individual rights and reservations. It was a list of “the big stuff” that we wanted to make sure applied to the federal government. And what was that big stuff?

Analysis of the Bill, shows that it enumerates three substantive rights: the right to freedom of speech, conscience and assembly; the right to keep and bear arms and the right not to suffer cruel and unusual punishment. The remaining rights are basically procedural pre-requisites imposed on government, viz: the government can search and seize, but a warrant based on probable cause is required; the government can throw you in prison, but only after a jury trial and with representation of counsel; and so on. These rights are sometimes expressed as negatives and sometimes as positives. The semantic implications of the difference, which lawyers fuss over, are not pertinent here. The point is simply to take a step back to grasp the fundamental nature and limitation of the Bill of Rights. It was intended as a “big stuff” limitation on the federal government and, originally, was not even viewed as binding on the states.

As the nation became more complex and interconnected, the federal government was called upon to solve more problems and deal with more issues and controversies. This included adjusting the balance of rights and obligations between citizens, between them and various artificial persons, and between them and their governments. To what was the Court to look, to resolve these issues?

The Court proceeded (unevenly) on two distinct tracks. The first track concerned whether the Bill of Rights should be read as applying to the States. The second track concerned where to “discover” rights when these were not even listed in the Bill of Rights or Constitution at all.

After the Civil War, Congress enacted the Fourteenth Amendment which applied Equal Protection and Due Process restrictions on the States -- mostly for the purpose of preventing discrimination against the freed slaves. Thus, as to the first track, the Court ultimately held that the Bill of Rights was “incorporated” into the Due Process Clause of the Fourteenth Amendment and thus was binding on the States. For example: In 1927 the Court held that the First Amendment applied to the States, through the Fourteenth's Due Process Clause, and that therefore a municipal code could not prohibit Jehovah's Witnesses from banging on your door.

The Incorporation Doctrine was obviously of no help where the asserted right was not listed in the Bill of Rights at all. In this situation the Court looked to the Due Process Clause of the Fifth Amendment which provided, among other things, that no one could “be deprived of life, liberty, or property” without due process of law. The Court held that this clause created an individual “liberty interest”.

That's nice. But what were the contours of this “liberty”? Was that word simply a funnel for the Court to read into the law whatever it wanted? Did it allow issues to be decided by judicial caprice? According to the Court, the resolution of any particular issue depended on whether the asserted right in question is “implicit in the concept of ordered liberty" or “fundamental to the shared values of a civilized social order” or “deeply rooted" in American history and tradition.

It would be cat's paw for a court to simply declare that a given right is “implicit” or “fundamental” and the Court has at times done exactly that, covering up a personal choice with a lot of high-sounding (or, at times, sociological) verbiage. The “deeply rooted” formula, however, provided a more objective standard in so far as “custom and usage” and past legislative practice are ascertainable facts. Under this standard, a right is “fundamental” or “implicit” if it has been recognized de facto in the Common Law, in our own legislative tradition and in the customary understanding or practice of society.

From a judicial point of view, this “rooted” approach makes the most sense and also dovetails with the vague Ninth Amendment which “reserved” unspecified rights “not mentioned” in the Bill of Rights. It makes sense to look to custom and practice to figure out what those reserved rights were understood to refer to.

The judicial (not theological or social) conflict over abortion all but leaps from this background. There was no way a right to abort could be read from a “rooted” Common Law or social tradition. Roe made a passing attempt to do so, but the Court's heart was not really in it.

Instead Roe reverted to the “concept of ordered liberty” approach. One variant of this formula is to look at what is “implicit” in various provisions of the Constitution and then to assess if these “implicit” concepts “intersect” so as to beget a right which was lurking in gestation out of sight all along.

Thus, Roe relied on an inferred “privacy” right that arose from and was implicit in the “intersection” of the Fifth and Fourth Amendments. For example, the Fourth Amendment protects a person's “papers and effects” from arbitrary seizure. Justice Brandeis accordingly concluded that “The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life.” (Olmstead v. United States.) This latent principle of privacy was later used to prohibit various state intrusions into the privacy of marital and personal life, as for example, by prohibiting the use of condoms. (Griswold v. Connecticut.) Building on this approach, Roe held that abortion was included in a personal right of “privacy” which was, in turn, equated with “autonomy.”

Justice Alito's leaked majority opinion, ridicules the “intersectional” approach and finds no “deeply rooted” recognized right to abort in the American or Common Law legal tradition. He thus reverses Roe on the ground that the right conferred cannot faithfully be read out of the Constitution. The matter, highly contentious as it is, should be decided democratically in state legislatures by the numbers.

In my opinion, Alito is on solid ground in so far as the opinion is based on “rooted analysis.” The fact that abortions have been committed from time immemorial does not equate with their being approved or legally recognized.

The issue here is not whether a legislature could look to either de facto or juridical practices in other times and places, the question is whether the Supreme Court can do so under its brief to interpret American law. It defies the historical evidence to rule that abortion is deeply rooted in this nation's legal or even social usage. If that were the case, Roe would not have been needed in the first place.

I am less comfortable with Alito's disparagement of Roe's “intersectional” analysis. Of course, it hasn't helped matters that, in explaining this analysis, various justices have resorted to speaking of “emanations” from or “penumbras” of the Fourth and Fifth and Fourteenth Amendments, making constitutional law sound like an exercise in neo-platonism or witchcraft. Furthermore, as stated, the “concept of ordered liberty” formula is on its face too vague and opened ended to be a true formula for anything. But none of that means that the rubric was merely a rhetorical cover for personal opinion. It is entirely reasonable to look for concepts or "principles" that are presupposed by or implicit in constitutional provisions. The object of the Fourth Amendment is not “papers” or “effects,” it is a person's privacy rights in those things. There would be no need for the Fourth Amendment's restraint on state action if the individual had no privacy to exert over the “papers and effects” .... if his home were merely a place within a barracks.

The concept of privacy, though never explicitly stated, permeates the entire Bill of Rights. What is the “right of conscience” if not the right to keep, adhere (and if one so desires) to change one's private thoughts? What is the right against self-incrimination if not the right to keep one's knowledge to one's self. Of course, it has been argued that privacy (and its correlative, property) derive from the natural law. But the more pertinent point is that the Constitution recognizes it whether natural or merely customary. That a woman (as well as a man) has a privacy interest with respect to her own body seems to me to be implicit in the Constitution. Judges often emanate rhetorically inflated dicta such as “long established concepts of ordered liberty” but that does not mean that the analysis or thinking behind the pompous verbiage was not reasoned or valid. Sometimes it actually might be and, in this case, it was.

The problem with Roe has always been that it went too far. On the facts before it, all it had to do was strike the Texas law at issue on the ground that it had gone too far and did not take into account a woman's “legitimate privacy interests.” Had the Court left it at that and other issues for another day the decision would not have created the storm that it did. Instead, the Court embarked on outright legislation setting up an intricate trimestral scheme based on nothing in the Constitution or legal precedents. As Alito's opinion notes, Justice Ginzburg herself stated “Roe... halted a political process that was moving in a reform direction and therefore, I believe, prolonged divisiveness and deferred stable settlement of the issue.”

Ginzburg's appraisal fell somewhat short in that it failed to appreciate that the “divisiveness” went far beyond the single issue of abortion. Roe represented a critical step in perpetuating an ego-centric entitlements culture which has torn the United States apart. To understand the trajectory, we have to take a step back in time.

Prior to the French Revolution, the customs and laws of almost all societies were governed by a specific ideal of how the social animal should conduct himself and by what ideals he ought to be inspired. “Individuality” (the word did not exist until de Tocqueville coined it) was thought of in terms of how much one person excelled at living up to society's values. How much, for example, a man was like Achilles. The idea of choosing your own way, your own ideal, your own happiness was an American conception, which drank from the well of the Reformation.

To note this dichotomy is not to say that eccentricities and “breaking the mold” did not exist in Greek, Roman, Medieval or European societies. Nor is to say that, in the United States, social pressures, reflecting generally held ideals and prejudices, do not exist or do not induce conformity in conduct. Nothing is ever wholly one thing or the other; but differences in degree and emphasis also always exist.

Of all the societies in the West, the United States was the most purely liberal. It was governed by the Robinsonnade not only in economics but in culture as well. After describing the individual's lack of historical, generational, and locational connection or obligation, De Tocqueville put it this way: American democracy “throws him back forever upon himself alone and threatens in the end to confine him entirely within the solitude of his own heart.”

A seasoned old-style newspaper man I knew once said that if you wanted to understand America all you had to do was remember the song I'm goin' down the road feelin' bad Lord, Lord; goin' down the road feelin' bad. Goin' down the road feelin' bad Lord, Lord; an' I ain't gonna be treated this away.

Ain't gonna be treated....

  In the United States the concept that most infuses the individual's self conception is the Constitution itself. Each person conceives him or herself as a social unit (aka citizen) possessing certain rights. Except for taxes and the draft, obligations are voluntary.

The Famers considered it sufficient to enumerate certain basic or essential political rights that applied to everyone. In the inimitable words of Anatole France: The Law in its majesty forbids rich and poor alike from sleeping under bridges. (Or gives them the right to do so.)

However, as society became more interconnected and complex, the courts were called upon to adjust a plethora of rights and respective obligations between parties, with each case bearing a flexible general application to other cases similarly so situated in the future. Although the term has not been used until now, these could be called “situational rights” -- the rights a person had in a given relationship or circumstance. Most of what law does is adjust these situational rights.

Things changed with the Fourteenth Amendment which was designed to rectify political and economic disabilization of freed slaves. The Court did not pass the Fourteenth Amendment. It was passed by the Copperhead Congress and the state legislatures. However, a century later, that same congress and those same state legislatures were refusing to do anything to rectify de jure discrimination against Negroes. Discrimination against them was “deeply rooted” in the nation's custom, usage and legislation.

As is well known, at this point the Supreme Court stepped in and handed down Brown v. Board of Education mandating primary school integration. Thereafter, a reluctant Congress enacted the 1964 and 1965 civil rights acts. All of these Acts and decisions created a set and jurisprudence of class rights -- what ultimately came to known as “entitlements” for a “cognized group.”

Purists (like myself) protested. While it might sound nice to prohibit discrimination on the basis of race, religion, sex or national origin, the legislation all but invited self-vindication on the basis of race, religion, sex and ethnicity. The concept of universally applicable equal rights got lost in the particularity of their application. The Austro-Hungarian Empire had done precisely the same thing a century before, creating a complex of German, Hungarian, Serbian (and why not Czech? or Croatian?) “national rights.” How did that work out for ya?

America's peculiar and disgraceful history with African Americans all but necessitated treating them as a cognized group in need of remedial and prophylactic legal protection. The universal formulation -- everyone shall be treated equally under law -- had been tried and had failed. There was no denying that. A prohibition on discrimination against a specific group was manifestly necessary. However, the manner of handling that particular situation did not warrant being turned into a general practice or rule -- which unfortunately is exactly what happened.

Feminists leading the way, everyone started jumping on the entitlement bandwagon. Worse yet, in order to make the case that one was entitled one had to fit the Negro Paradigm of having been discriminated and hence victimized. The Supreme Court became the Mama Bird dropping bits of worm into the gaping mouths of squawking chics. And the chics certainly did squawk.

“All politics is personal” became the emblem of the feminist movement. But that is hardly a self-evident truth. One might as well say that all personhood is political. Alas, the concept of defining and realizing one's self through a social ideal of being and obligation was trampled under by the hordes of wanna-be cognized groups stampeding toward the Court.

Never once did activist women or, for that matter, gay activists, entertain the idea that maybe their status as women or men imposed reproductive obligations on them. This counter-view was not simply a religious one. In Rome, a man was not deemed a citizen until he had married and sired children. Such contrary views were wiped away by the notion that a man can simply “choose” to define himself as a her or that a woman has an absolute right to do whatever she wants with her body.

That latter assertion may be what was desired but it was simply not true. People do not have a right to pollute themselves with drugs. Men are or were obligated to do military service. These social obligation may be based on moral or utilitarian considerations, but they do exist. No one has an absolute right to anything because no one exists ab-solus.

Roe itself did not create an unqualified right to abortion. But much of the women's rhetoric around the issue was extremist and uncompromising. When asked when a fetus became a person, Senator Barbara Boxer replied “when you decide to take it home.” Not only was that statement an absurdity, it was calculated to be uncompromising and enraging to the other side of the issue.

That kind of stance left open the inference that “in control of her body” a woman could “choose” to smoke, get drunk, and do drugs during her pregnancy because it was “her body” and “her decision” and the government had no business interfering because, after all, “it” was just gunk. On the other hand, if one conceded that the state could mandate some sort of fiduciary duty to the fetus, then the gunk acquired legal personality.

The other side on the issue was equally extremist, as in the Catholic Church's insistence that in situations of medical triage the mother should choose to die rather kill the human life in her womb. As a result, both sides became entrenched in extreme uncompromising positions, greased with double talk about “pre-born children” (which begs the question) or “reproductive rights” meaning fetus flushing which is hardly reproductive).

My regret over Roe is that it did not move our conceptions of rights and obligations beyond the level of autonomous entitlements; of the “my right to _____.” As de Tocqueville put it, Americans believe

“.... they owe nothing to any man, they expect nothing from any man; they acquire the habit of always considering themselves as standing alone, and they are apt to imagine that their whole destiny is in their own hands.

This is not, in my view, a wholesome concept of society or of law. Autonomy and society are opposites. When society is conceptualized as a collection of “individual rights” it becomes fragmented into intransigent (and ultimately hostile) demands and refusals, which is no society at all.

America began at the extreme end of liberalism. Rather than rectify that by moving toward a more shared and corporate concept of “living together,” it has only fallen into the rabbit hole of its original extremism. In the end one has to ask whether Americans like each other at all. I suspect not; we've become a society of recriminations.

In no small measure, the adversarial quality of American society is a reflection of its constant recourse to the courts to resolve contentions which are better resolved through compromise and consensus in the legislative and public arena. It is the nature of suits-at-law that they reflect antagonistic positions. It is also in their nature that the end result is that one side wins and the other looses. It is the rare human being who contents himself with his loss. And so, one ends up goin' down the road feelin' bad Lord, Lord...

The constant resort to courts is, in part, the result of our "right-based" political culture. How many times can people be heard to say, "I have a right to..." or "It's his right..." By a kind of social instinct we frame the issue as a right to have what we want, say or do what we want and to do so without responsibility to anyone.

The other reason for the over use of courts is the fact that our legislative system is broken. In fact, it was designed to be broken -- to achieve as little as possible (other than forking money over to big fish). As a result of Madison's system of political deadlock, necessary adaptations and changes could not be got from Congress. Congressional refusal to do a damn thing about segregation except keep it in place forced advocates of change to appeal to the courts, using various "rights-based" arguments (mostly founded on the Fourteenth Amendment).

The idea that became prevalent in the 50's, 60's and 70's was that law could be used as "a tool for social change" and that lawyers could act as cutting edge reformists. It was a fairly absurd expectation if one bears in mind the fundamentally (and necessarily) conservative nature of law. Worse still, law got reduced to an outcome-determinative hodge-podge of stretched inferences, word-twisting, sociological assumptions -- in short, to a kind of legal advertising or sloganeering. It was not that the intended results were somehow bad, it was that the reasoning was typically atrocious; and, in law unlike politics, reasoning is everything. Whereas in the 19th century law had been overly formalistic, in the 20th it became overly pragmatic. Even in cases which could have been decided on a strict principle, courts resorted to sociological venting. Roe stood out as the tip of an iceberg of dubious methodology.

So what to do? After 50 years of entrenching positions, there is no reasonable chance that the controversy can be solved by discussion or argument. By the same token, there is no chance that in the half of states that have a “pro-life” majority there will be a swing to the other side. The “pro-choice” side will simply have to accept that they only have a choice in half of the states. The call to “move the fight to the state legislatures” is really just a call for more anger and recrimination on an issue that has reached a stalemate.

Nor will it be of use to attempt to “broaden” the individual choice crusade by pandering to fears that gays, transgender-spirits, and other minorities “are next.” Society may indeed be divided on these other “identity” issues. Neither Fundamentalists nor traditional Catholics are going to budge on homosexuality any more than on abortion. But, as Alito pointed out, all these other “liberty interest” cases do not involve the taking of what is arguably a human life. Abortion is sui generis.

Even if these other cultural/identity issues were in the same basket as abortion, it is pointless to argue over them anymore. The argument has no grounding in practicalities. They are theoretical bones of contention, no more. Americans seem to like bones of contention. A hundred and fifty years after the Civil War we still like to debate whether we were a federation or a union, whether slavery or tariffs was the issue, whether.... and whether.... It is all just a stylized dance with no end or answer in sight.

My only recommendation is that all groups step back, put their “autonomy demands” on hold, and then gather around to rethink what it means to be a social animal and how we want to realize our corporate nature. It is a mistake to think that the whole of anything is the made-up result of individual buidling blocks. It is rather the concept and nature of the whole that dictate how, where and what blocks are used. If we rethink what it means to be an American, what we can each and all expect from our country and what we owe to it, we will eventually come around to solving what it means to be a man or woman within that broader context and what rights or obligations are entailed.

Fat chance that will happen.