Somewhere in the universe people live on a planet where a single mention that in some sense a right to bear arms for militia service is held collectively means that I “subscribed to the collective rights interpretation.”  Unfortunately, Earth is not such a planet, and I make no claim that the Second Amendment protects a “collective” right, whether or not I agree that such a right implies a corresponding individual one.  Instead I claim that the Second Amendment protects from infringement the power of States to arm their militias, and therefore militia members cannot be disarmed by Federal law or neglect.  This protection was the intent of the Founders, not a right to civilian use of firearms for self defense–which they believed the State could regulate.

After responding to my first Heller post with spurious claims about intellectual power, Mike gets around to offering three somewhat substantive comments which use quotes from five court cases to support his view that the Second Amendment protects an individual right of some kind.  Though he never specifies the nature of this right, I presume he means an individual right to possess and carry firearms for civilian purposes such as self-defense and hunting.  Even though this discussion does not address the central claim of this post–that the majority opinion in Heller does not show that the “writers of the Constitution” intended to protect such a right–I will address Mike’s points.

Mike’s first somewhat substantive comment begins with an assertion that his assumptions are obviously correct, and he claims as “evidence” little more than his reading of a particular quote with contestable meanings.  It is not clear why Mikes claim that Taney’s inclusion of “to keep and carry arms wherever they went” in his list of citizenship rights “makes it quite clear that the 2^nd Amendment is an INDIVIDUAL RIGHT” has the meaning he says it does, since he offers no analysis In support.

I think Mike’s reading stretches the language, which in fact says nothing at all about the meaning of the Second Amendment.  Nothing at all in Taney’s decision implies that the Second Amendment—which he never mentions and does not analyze—protects an individual right to civilian use of firearms for self-defense.  He implies that citizens hold a “right to keep and carry arms” wherever they go but says nothing about the meaning of “keep and carry arms.”  It is therefore not “quite clear” from this that the Amendment protects an individual right to arms outside militia service, even though one other Court [PDF] finds therein a “personal” Second Amendment right a hundred and fifty years later.

Mike turns next to US v. Cruikshank and wrings from the phrase “for lawful purpose” a self-defense right. This is so, Mike says, because self-defense was lawful.  But the Court here does not say that individuals have a right to keep and bear arms for lawful general purposes—the Court is simply describing the indictment–it is not making a substantive ruling on the meaning of the Second Amendment.  The Court quashes the indictment without any examination of what lawful purposes the Second Amendment protects, ruling that the Constitution does not constrain private citizens or States.  This opinion simply does not say what Mike thinks it does.

He fares no better with Presser v. Illinois (which Mike misnames).  With no analysis or logical discussion, Mike simply quotes the Court using “the People” and asserts that this refers to individuals—even though the purpose cited by the Court in the very quote Mike pulls is not self defense but to preclude States from depriving “the United States of their rightful resource for maintaining the public security.”  The Court here does not say that individuals have a right to civilian use of firearms—only that the States cannot disarm citizens upon whom the Federal Government depends for national security.  Mike’s second Presser quote doesn’t help, since it gives no purpose for limiting the power of the States with respect to firearms, and he gives no reason to believe that the Court meant to protect civilian use.  He simply publishes the quote and asserts his preferred meaning.

Finally, Mike asserts that the majority in US v. Miller “emphatically supports an individual rights view” but offers no quote to support this claim.  Miller, in fact, noted the “obvious purpose” of the Second Amendment: “assuring the continuation and effectiveness of such forces” as the Federal Government organized into a militia—not to protect an individual right to civilian use of firearms.  Here Mike simply gets it wrong.

Mike’s final effort at substantive discussion begins with a claim gun “rights” supporters love to make: that the Founders excluded protection of an individual right to self-defense because such a right is so self-evident that no one could imagine a need to protect it.  He also correctly, if repetitively, asserts that that “armed groups cannot form if individuals who would form it are disarmed.”  Of course they cannot, but this itself does not imply an individual right to firearms for other purposes—only that militia members cannot be denied their service weapons.

None of the “evidence,” and even less his analysis, supports his claim.  Only two of the cases Mike cites here directly addressed the Second Amendment, and the reached contradictory conclusions.  The others touch it only peripherally, and none examine its meaning, even if they imply universal application.  Showing an individual right in the Second Amendment will require other evidence.  Bring on the Federalist Papers!

Stevens begins by making the point that “hundreds of judges” have relied on this view of the Amendment, and that the majority in Heller “fails to offer any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons.” It relies on a “strained reading” of the text of the Amendment and other historic commentaries and constitutional provisions which were “available to the Court when it decided Miller.”  This, he says, should support reliance on precedent to uphold the DC statutes.

Since the majority nevertheless decided to overrule this precedent, Stevens goes on to make two arguments: that the Miller decision is faithful to the text of the Second Amendment, and that the post-ratification commentary on the Amendment shows that it was not intended to limit the power of Congress to regulate civilian use of firearms.

To make the first point, Justice Stevens discusses the clauses of the Amendment in the context of similar provisions in the contemporaneous State Constitutions and Statements of Rights.  The Preamble, he says, identifies “preservation of the militia” as the Amendment’s purpose, explains why militias are important (the security of a free state), and points out that militias must be well-regulated.  These provisions match those in the State versions, highlighting “the importance members of the founding generation attached to the maintenance of State militias” and the widespread fear of standing armies shared by the Founders.

Vermont and Pennsylvania, Stevens points out, included in their proposed amendments specific protections for a right to firearms for personal self defense and hunting along with protection of military uses.  That the Founders knew this, and yet chose to omit similar specific clauses, “confirms that the Framers single-minded focus in crafting the constitutional guarantee ‘to keep and bear arms’ was on military uses of firearms, which they viewed in the context of service in state militias.”  Scalia and the majority get around this, says Stevens, by “finding” its preferred result in the “ambiguous text” of the operative provision first, without regard to the preamble, and then arguing that the prefatory clause does not foreclose its reading.

Stevens continues his textual analysis with a challenge the majority’s argument that “the people” as used in the Second Amendment has the same meaning and protects “the same class of individuals” as in the First and Fourth Amendments.  But this cannot be so, he points out, since the majority itself sees the Amendment as protecting only a subset of the citizenry “significantly narrower” than that protected by the other two: “law-abiding and responsible” citizens.  Unlike the First and Fourth Amendments, then, the Second does not limit the power of government to infringe a universally held individual right in the same way–only that subset of responsible citizens identified in the preamble: those serving in the militia.

Finally, Stevens examines the phrase “to keep and bear arms” in the context of the meanings held at the time of the Founding as most naturally conveying a military one.  First, Stevens notes that the majority “fashioned” its interpretation of the phrase “to keep and bear arms,” which differs from that of the Appeals Court, “out of whole cloth” by rejecting the lower Court’s reading as creating a right to possess arms for “lawful, private purposes,” finding instead a right “to possess and carry weapons in case of confrontation.”  This reading finds no support in the text, Stevens argues, and had the Founders intended to modify “bear arms” to include such a right they could have included qualifying language, and some State Constitutions did.

After completing his challenge to the majority’s  textual reading, Stevens discusses two themes “relevant to our current interpretive task” which ran through the debates on the original Constitutions: fear of a standing army and concern about relying on untrained militias for common national defense.  The proper allocation of military power between the Federal and State governments concerned the Founders, and with the Militia Clauses and Second Amendment they split “the atom of sovereignty” with a compromise.  Simply put, keeping the militias and dividing control over them between the National and State governments did not placate those who feared standing armies, since Article I did not prevent Congress from disarming state militias.  Virginia, North Carolina, and New York responded by proposing Amendments which would protect the militias, where New Hampshire, Massachusetts and Pennsylvania all proposed broader Amendments which less clearly tied firearm possession to service in the militia.  Given these options, Madison’s choice of wording for his proposal suggests that he did not intend to protect a broader right. Stevens:

“Madison’s decision to model the Second Amendment on the distinctly military Virginia proposal is therefore revealing, since it is clear that he considered and rejected formulations that would have unambiguously protected civilian uses of firearms.  When Madison prepared his first draft, and when that draft was debated and modified, it is reasonable to assume that all participants in the drafting process were fully aware of the other formulations that would have protected civilian use and possession of weapons and that their choice to draft the Amendment as they did represented a rejection of those alternative formulations.” (p. 25)

To be sure, some of the men who helped fashion the compromises in the Constitution and the Amendments thereto believed in a personal right to firearms for civilian purposes, presumably including self-defense.  But the compromise ultimately reached regarding control of the militias and firearm possession did not include language protecting these rights, even though those supporting such language proposed and argued for inclusion.  Reading the Second Amendment to do so, then, does not rely on the intent of the Founders as expressed in this compromise.

Stevens concludes with challenges to the majority’s reading of ancillary texts such as the English Bill of Rights, Blackstone, Story, and other commentaries on the Constitution.  The English Bill of Rights, he points out, did not protect a general right to possess weapons, but limited this protection to those of adequate social class, which was in any event subject to regulation by Parliament–hey did not protect a universal individual right.  He argues that the relevant Blackstone instruction comes from his method of textual interpretation, which gives more weight to the preamble.  Further, he points out that a more complete reading of Story suggests that he supported the view that the Amendment protects the right of each State to maintain a well-regulated militia.  The passage quoted by the majority, when read at length, shows Story “tying the significance of the Amendment directly to the paramount importance of the militia,” and contains “not so much as a whisper” that the Second Amendment bore any relation to civilian use of weapons for hunting or individual self defense.  Finally, Stevens points out that the post-Civil War commentaries have little to say about the intent of the men who wrote the Constitution, and at any rate look more like political advocacy than good-faith Constitutional interpretation.

Stevens concludes his dissent by pointing out that the majority has announced a new Constitutional right which changes the “settled understanding” of the Second Amendment as permitting regulation of civilian uses of firearms that do not interfere with preservation of a well-regulated militia.  The majority finds this new right not in new evidence about the intent of the Founders ignored in Miller, but  in a tortured reading of the text of the Amendment and irrelevant commentaries by men who had nothing to do with the compromise reached during the debates on the Constitution.  During these debates, the Founders proposed and debated language which would have protected an individual right to self defense.  That they rejected this language, and settled on text which addressed the central concern they had–fear of standing armies–ultimately shows their intent: to protect only the right to militia service and the power of subordinate States to maintain them.

“Why are you still trying to peddle the hogwash that the Writers of the Constitution didn’t include the idea of self defense as part of the 2nd Amendment?

Did you read the decision in Heller? Did you see the laid out facts, quotes, and historical evidence that shows you are completely wrong??”

Bob goes on to quote a section of Scalia’s opinion citing Georgia and Louisiana Supreme Court decisions from 1846 and 1850 respectively.  He apparently believes that the majority opinion in the Heller case, written by Justice Antonin Scalia, depends on the intent of the “writers of the Constitution” for its analysis and legitimacy.  But the sources cited in Scalia’s opinion show no such thing.  Instead, they depend on interpretations of contemporary dictionaries, State Constitutions, and later interpretations of these documents, along with Scalia’s interpretation of the interpretations.  But let’s take a closer look at the Heller decision as a whole and see which side actually relied on evidence of the Founders’ intent.  In this post, I will look at Scalia’s opinion affirming the judgment of the Court of Appeals; after that I will turn to the dissenting ones.

Scalia begins by analyzing the language of the Amendment itself, starting with the operative clause, and taking its components in sequence.  In so doing he makes several points: First, that “the people” as used elsewhere in the Constitution refers to the benefactors of individual rights protections (e.g., speech and religion), so it must therefore so refer in the Second Amendment.  Second, he cites dictionaries of the time to show that “arms” as defined at the time of the founding referred to non-military weapons, suggesting alternative justifications for protecting firearm ownership beyond militia service.  Similarly, he cites Blackstone and other dictionaries contemporaneous with the Founding to assert that “keep and bear arms” had meanings other than a right to arms for militia service.  Finally, he cites several scholars of English history and law (e.g., St. George Tucker, Rawle, Blackstone) to argue that an individual right to bear arms preexisted the Second Amendment.

Turning to the prefatory clause, Scalia argues that “A well-regulated militia being necessary to the security of a free State” does not constrain the operative clause.  He apparently finds it “sensible” that this clause announces the purpose of the Amendment–”to prevent elimination of the militia”–but suggests that the Founders had other purposes in mind that they did not list (p. 26).  This is so, he says, because Congress had the plenary power to organize the militia and therefore say who could serve which would mean that the Amendment protects a right to serve in a militia from which Congress could exclude certain citizens.  If Congress could exclude some citizens from militia service through its authority to organize it, and the right to bear arms depends on militia service, then Congress could effectively disarm some individuals by excluding them from militia service.  The Second Amendment therefore protects an individual right to keep and bear arms, but apparently not a right to militia service–at least not for blacks.  Analogous constraints in State Constitutions, which specifically mention individual self-defense, support this view, he says.

With this argument complete, Scalia turns to post-ratification commentary and post Civil War interpretation of the Amendment for confirmation of this view.  Again citing scholars of law and history (e.g. St. George Tucker, Rawle, Story), as well as State and Federal court decisions, he points out that some agree with his view.  This, he says, shows its correctness.

All of this may or may not make a logical case supporting the holding of the majority.  I could challenge many of these points on simple logic: we have no reason to think that a word such as “people,” which has multiple meanings, could not have appeared in the Constitution in several places with various meanings depending on context.  Indeed, since the Amendment apparently protected firearm ownership only for certain classes at the time (specifically white male property owners, or members of the polity), it is difficult to see contemporary judges seeing the Amendment as protecting an individual right.  We know for example that Virginia and South Carolina banned ownership of firearms by blacks–all of them, not just slaves–as early as 1640, that Louisiana followed suit in 1806, and Florida actually searched the residences of black people to find and confiscate firearms in 1825.  This does not seem like the record of people who find an individual right to own firearms for self-defense in the Second Amendment, and it makes one wonder how judges of the time would have ruled on a challenge to these laws based on a Second Amendment claim.  Scalia does not say why the availability of other meanings shows that the Founders intended to rely on one of the alternatives to a collective military meaning of “keep and bear arms.”  And Stuart attempts to disarm “regions home to his Protestant enemies” (p. 19) in England seems to support Stevens’ claim that the preexisting right to arms belonged to groups, not individuals, and the Amendment protected factional militias, not a right to self defense.

Finally, the Constitution nowhere gives Congress the power to exclude some citizens from militia service under its organizing power, and in fact gives States the power to appoint officers, implying that while Congress could organize the militia as it thought necessary for military effectiveness the states held the power to enlist militia members from whatever pool they pleased.  Indeed, Scalia himself points out that after Congress mandated militia service by all able-bodied white males–which by the way created a positive duty for those so named but did not expressly exclude others–many States codified the exclusion of blacks in their militias.  This suggests that States held the authority to enlist or exclude potential members as they wished, or at least thought they did.  Congress never challenged this on the grounds that it had organizing authority.  And no one,no blacks, no “writers of the Constitution” ever challenged the confiscation of weapons owned by blacks or their exclusion from militia service based on an individual right to own firearms protected by the Second Amendment, suggesting that leaders of the time did not think the Amendment protected such a right.

In any event, none of this supports a view that the majority opinion in Heller shows that the “writers of the Constitution” intended to protect an individual right to keep and bear arms for self defense with the Second Amendment.  Nowhere does Scalia cite Madison or Jefferson, and he relies on the ratification debates in the State legislatures only once.  Scalia never cites papers written by Federalists or Anti-Federalists arguing for or against ratification, nor does he use the notes on the Constitutional Convention itself to support his view.  Indeed, Scalia specifically finds “dubious” Stevens’ reliance on “the drafting history of the Second Amendment, the various proposals in the state  conventions, and the debates in Congress” since the Second Amendment protects a preexisting right, not an attempt to formulate a new one (p. 30).  This may be because he had to manufacture this preexisting right from other sources, since none of the “writers of the Constitution” ever mentioned such a preexisting right, or why the Constitution should protect it.  Given that Scalia himself rejected using the discussions of Constitutional issues by those who wrote it in support of his argument, Bob clearly can find no support from the “writers of the Constitution” for his view, at least not in the majority opinion in Heller.

I don’t find Justice Stevens’ dissent at all dubious, and he at least depends on the Founders to make his case (generally that Madison knew of the State Constitutional protections of a right to self defense, but saw no reason to include it in the Federal Constitution).  Similarly, Breyer’s separate dissent, which accepts for the sake of argument the existence of an individual right but argues that the DC law does not violate it any more than laws contemporary to the Founders’ generation, depends more on the Founders’ views than Scalia.

These arguments deserve attention, and I will write about them in a separate post.  For now let me say that Scalia’s opinion does not depend on the Founders’ intent for whatever validity it may have.  In this, at least, Bob gets it wrong.

Her philosophy–essentially an argument for organizing society around individual selfishness–barely carries the intellectual heft of the stoned midnight discussions typical of college sophomores. She spent her life promoting this ideal mostly so she could go around doing as she pleased and hurting everyone she encountered without feeling guilty.

We should all consider enlightened self interest as we make our way through the world, but Rand’s notions of the supremacy of individual rights make no sense unless you live in a world where everyone makes exactly the same claims to justice and these claims never conflict.

She compounds the silliness by claiming the objective truth of this idea–as if the broad range of human social relations she experienced in her lifetime, including societal reaction to her sex life and extramarital affairs, gave her no hint that human values depend on interaction and discourse, not objective truths.

Except perhaps on planet Stoned Sophomore, where both Ayn Rand and John Galt lived.

These guys had a tense night. And give whole new meaning to the words “well regulated militia.”

For nothing.

The usual suspects go nuts. She updates, but changes the subject.

Ya know, ya just gotta love America.

The humor in this line depends on two things about porn: that we stereotype users as perverts, and for that and other reasons few people will admit to using it in public.  This post, at The Thinking Housewife, brought this to mind.

The Housewife, who writes under the name Laura Wood, challenges Steve Moxon’s claim, in The Woman Racket, that pornography may serve a valuable social purpose: satisfying the “insatiable” male desire for novelty sex partners.  I have not read this book, and can therefore not evaluate the larger argument he makes therein: that because people evaluate each other based on mate value, low-status men, not women, are the victims of historical prejudice.  But I’m not sure that men have an innate and insatiable desire for novelty sex partners.  It is in fact pretty clear that not all men do.

That aside, Wood challenges Moxon by arguing that male sexuality should be “controlled and sublimated,” which means that pornography is bad whether or not it leads to adultery, sex crimes, and unhealthy relationships, precisely because of the effect Moxon claims:

“There is a reason for the ninth commandment. Desire for what we cannot, and should not, have is not harmless. If Moxon is correct and pornography actually replaces more harmful activities than we should have seen a noticeable drop in adultery and sexual crime in recent years given the wide availability of pornography on the Internet. There is no evidence of this decline. Pornography does not make a man a potential sex criminal. The sex drive in men is powerful, but male sexuality can be controlled and sublimated. Masturbation has not been deemed illicit in the past simply because people believed it caused blindness.” (Emphases mine.)

Wood is saying that male sexual desire leads to wanting something men should not have, and this in itself is a bad thing.  Males should therefore work to keep their sexuality “sublimated” because simply thinking about sex is antisocial.

Commenter John E. says:

“It seems that Moxon is being influenced to justify pornography use based on its pervasiveness, rather than a universal concept of good and evil. If so many people are using it, it must not be all that bad; in fact, it’s probably good somehow – let me demonstrate… Based on his argument, he does not seem to be able to imagine a society that is not overwhelmed with pornographic images, and despairs of any meaningful resistance. Rather than acknowledging his despair of being able to resist evil, he instead justifies the evil, at least in part, as something good.” (Emphasis in the original.)

Pornography is objectively evil, you see, and therefore bad, whether or not it may actually help some people.

Anyone who has read much of this blog probably knows that I do not believe in objective good and evil.  We have certainly constructed normative frameworks which define what we as a society consider morally “right” and “wrong.”  But variations in the definitions over time and across cultures suggest that these constructed ideas have no natural (or for that matter supernatural) basis.  Even mass murder is evil only because we think of it that way, not because of any objective quality independent of our notions of human value and the justice claims arising from them.  And the fact that we are not born knowing the difference–we have to be socialized not to hurt others or to steal–suggests social, not natural, structure.  Depending on religion for definitions of evil strikes me as especially problematic, given that religious stories of all kinds include mass destruction and murder at the hands of the Almighty.  This suggests that context matters.

Not to make Wood responsible for her commenters’ views, but one named Stephen clearly makes this a religious question by associating sex with transcendence, and therefore God:

“Because sex is about transcendence, it is necessarily about openness: to the other person involved, to the potential for a new life, but also to the gift of love that comes from God. And love must be personal and focused on another, or else it is nothing but self-indulgence. Pornography, by separating the pleasure of sex from any relationship with a real person, turns what should be an open act into a self-centered act utterly devoid of openness to transcendence. Pornography perverts what has the potential of being a transcendent experience into a mockery of the divine. “

This at least gives a reason for thinking about pornography as evil: it mocks God by limiting the transcendent nature of sexual activity, whatever that means.  Since mockery requires intent, and I don’t imagine many men who use porn do so in an effort to make fun of a deity, this makes for a weak argument.  I would also point out that humans have had sex and reproduced long before the current notions of God existed, meaning they did so without opening themselves to God’s love.  But Stephen reveals his real meaning when he characterizes sex without another person as self-indulgent,  and reveals the real reason for his distaste: someone is having fun in a way that does not involve God or other people.  Making yourself happy for its own sake is bad.

I would challenge both Moxon and Wood on these grounds: pornography in neither good nor evil in any objective sense.  While it probably helps some men (and women) by enhancing their sex lives in some way, it also hurts a lot of people, including the children discussed in the post and comments.  We should therefor regulate it, as we do many other things, in ways that maximize healthy use of these materials (e. g., prohibitions on using children to make them).  This is not about good or evil–or even about whether particular individuals can include porn in a healthy sex life–but about how to fit pornography into our socially constructed normative frameworks about sex, religion, self-indulgence, and pleasure.  Some people think that sex is about touching God and fulfilling his purpose; others think of it as a pleasurable activity for people who find each other attractive and want to take ownership of their bodies and their happiness.  The latter group may be able to use pornography to enhance this experience.  That others find this distasteful means that it does not fit their normative preference–but does not make it evil.

This of course leaves several things unclear.  First, it is not clear what specific government actions might lead to insurrection.  Presumably, potential causes include percieved rights violations, particularly attacks on gun rights.  Excessive taxation might also create popular support for armed rebellion in the US, or declaration of martial law would trigger revolt.  Among certain parts of the population, even cultural change could cause unrest, or broad legalization of abortion.  But potential insurrectionists say nothing about how they define any of this, or why exactly their justice clam should privilege against government institutions in a democratic society responding to the general population.  In any event, actual real life attacks on civil liberties related to fighting terrorism has not generated a response from these people, which suggests that their real concern isn’t oppressive government policies, but government policies they don’t like.  When they cannot get what they want through the political process, they claim rights violations and threaten insurrection.  Since it appears that only government action against certain sub groups (e.g. gun owners) would trigger revolution, and infringement on the rights of other tribes has not inflamed the passions of most Second Amendment supporters, these people look more like sore losers than freedom lovers.

Insurrectionist rhetoric raises a second question: what goals might contemporary revolutionaries seek to achieve, and on what conditions, besides an armed citizenry,  would success depend?

Say for example Congress passed much more restrictive weapons regulations, and even mandated confiscation of certain types of firearms.  However unlikely this would be today, shifts in demographics (e.g. further shift from a rural to an urban population) and social norms about guns (which I predict), could create a large enough constituency for stronger government restrictions on firearm ownership.  This could happen in the context of crime (or terrorism–imagine small al Qaeda bands shooting up shopping malls) control and include restrictions on hand guns or automatic weapons (to home use, for example), or an effort to reduce the number of weapons in circulation, and require owners to surrender all but a certain number or type of gun.  Congress might first act to repeal the Second Amendment, or amend it to make either an individual or collective right to bear arms more clear.  In any event, this could not happen without some consensus among the general population, since without it elected officials would expect and receive rebuke at the polls soon thereafter.

Would gun owners reject the power of Congress to amend the Constitution in this way, despite the clear intent of the Founders, based on a natural right to self defense?  Should their political efforts (courts, elections) prove unsuccessful, what revolutionary goals would they seek to achieve?  Overturned elections?  Revision of the court system?  A new Constitution?  Do they expect the Americans who supported this policy, won at the ballot box and in the political system, and like the result to roll over and surrender their policy victory  at the brandishing of weapons?

Anti-government rhetoric has increased dramatically since Reagan claimed that “government is the problem.”  With tea party partisans and gun rights advocates challenging the legitimacy of government, these are not academic questions.  Large numbers of Americans challenge the legitimacy not only of government, but of the political system we use to set policy and act collectively.

I submit that threatening violent insurrection in the face of political defeat is in fact a treasonous threat to overthrow the legitimately constituted government, and this itself justifies confiscation of firearms.

The core point in this rambling mess is that “unlimited democracy,” whatever that is, gives too many citizens the power to vote perks for themselves, and support “counterproductive” policies (read: policies Dominic Hobson doesn’t like).  For Hobson, unlimited Democracy is a “plague” which he wants to attack at its “moral foundation,” the “political equality of the citizen.”

This is a direct, and treasonous, attack on our Constitutional framework.  Hobson, Durden, and Roissy would relate political equality with property on the grounds that only those with a stake in society should have voting and other political rights.  This raises some interesting questions, such as how to define property, but the foundation of this argument is that only the successful (or the lucky) should have political power, as if they haven’t most of it already.

These selfish men only want to protect their wealth, and for all their talk about markets they don’t really want to compete with others for money.  They want to organize a political system that allows them to construct markets to their liking, whatever it means to others.  This is treason, pure and simple.

My God, what a ridiculous sentence.  What does this even mean?

Gill v. Office of Personnel Management:

In the wake of DOMA, it is only sexual orientation that differentiates a married couple
entitled to federal marriage-based benefits from one not so entitled. And this court can conceive
of no way in which such a difference might be relevant to the provision of the benefits at issue.
By premising eligibility for these benefits on marital status in the first instance, the federal
government signals to this court that the relevant distinction to be drawn is between married
individuals and unmarried individuals. To further divide the class of married individuals into those
with spouses of the same sex and those with spouses of the opposite sex is to create a distinction
without meaning. And where, as here, “there is no reason to believe that the disadvantaged class
is different, in relevant respects” from a similarly situated class, this court may conclude that it is
only irrational prejudice that motivates the challenged classification.149 As irrational prejudice
plainly never constitutes a legitimate government interest, this court must hold that Section 3 of
DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth
Amendment to the United States Constitution. (Emphasis mine.)

Here the Judge rightly concluded that same-sex marriage has no effect on heterosexual marriage, and therefore the Government has no rational basis for classifying marriage other than the historical method: reliance on the states for definition.

Massachusetts v. Health and Human Services:

This court has determined that it is clearly within the authority of the Commonwealth
to recognize same-sex marriages among its residents, and to afford those individuals in same-sex
marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital
status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the
firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that
reason, the statute is invalid.

Massachusetts sued to force the Federal Government to recognize the same-sex married couples married in that state for purposes of Medicare, Medicaid, and spousal burial by the Veteran’s Administration.  Since the Constitution gives Congress no power to regulate marriage, and the Federal Government has historically accepted the definitions of marriage constructed by states (including during the age of anti-miscegenation laws), the court found Section 3 of DOMA in violation of the Tenth Amendment.

Jack Balkin (Balkinization) and Dale Carpenter (The Volokh Conspiracy) analyze the decisions much more effectively than I ever could.  But it raises questions about Congressional power that may confound some conservatives.

Congress either has the power to define marriage in this way, or it doesn’t.  Since the Constitution says nothing on the subject, such a power if it exists must rest in broader interpretation of the Commerce Clause or some other general power.  This could force conservatives into competing talking points, as they simultaneously argue that Congress has no power to regulate health care by mandating coverage, but may regulate marriage by defining it for the States.

Last night I heard Maggie Gallagher on the local Christian radio station complaining that the Obama Justice Department intentionally made a weak argument in defense of the law, forcing the judge to rule as he did because DOJ did not use the arguments Congress used to support original passage of the law (Professor Carpenter covers this).  She further suggested that the Obama Administration might refuse to appeal the decision, letting it stand, and called on traditionalists to agitate against the judge, the decision, the Obama Justice Department, and gay marriage.

Ms. Gallagher should certainly argue for her preferred policy choices.  But her rhetoric supports the judges observation that her opposition to marriage for homosexuals has more to do with “irrational prejudice” than with protecting Christian traditions–which they are of course free to continue, however this turns out.