The liberal ninth circuit just ruled it was incorporated, and now the 7th circuit -- on a panel including two of the federal bench's most conservative (and most brilliant) judges, Posner and Easterbrook -- rules it isn't.

They base their decision on federalism, and are reluctant, it seems, to extend another limit on federal power to the states. Which is a fair concern -- but all the other amendments have been so imposed on state action (pretty much), so deciding this one amendment is where federalism makes its last (and only) stand seems odd. They conclude...

That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule.... Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

Here's an odd passage:

Suppose a state were to decide that people cornered in their homes must surrender rather than fight back—in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens....

That hypothetical is intended to illustrate a legislative decision a state may make -- it may, the 7th circuit finds, completely make the right of self-defense illegal. And, possessing that right, then, the state must be free of the shackling of a federal amendment. I suppose that's an effort at something arguably strict-constructionist, because the Constitution doesn't mention the right to self-defense, but rather the right to serve in a militia. And so, I guess, only the expressly mentioned right is in fact a right.

Arguably.

I wouldn't argue it myself.

The Supreme Court now must take up the question, as there is a bona-fide circuit split on a major constitutional question.

Their conclusion -- "How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals" -- suggests this ruling is more about their belief as to the proper scope of appellate review than a ruling on the merits. They seem to be saying that perhaps the Second Amendment should be incorporated, but as mere Court of Appeals judges, they don't have that right. Only the Supreme Court does.

I would hope that a wise Latina will come, more often than not, to a better decision on this question than a white male would.

Thanks to Thomas.

Ah, Precedent: This isn't a big mystery, as The Hammer points out.

What I read elsewhere is that there is a 1886 SC precedent that the lower courts can't overturn, so as a matter of law, they have to "pass the buck". The writer I read, I think through Drudge, said this opens the door for the current court to look at the precedent case and possibly overturn it, creating a clearer current law.

Right, there was an 1886 Supreme Court decision rejecting the applicability of the Second Amendment to the states. (Sotomayor relied upon that in dismissing a 2nd A claim that came before her.)

Now, it is a fundamental rule that lower courts do not overturn the precedents of higher courts (generally), so Posner and Easterbrook really do seem to be saying, "We don't have the power to do this; only the Supreme Court does."

The Ninth Circuit, I guess, felt as if they could overturn/ignore/distinguish the old precedent because Heller, while not directly speaking to this issue, pretty clearly pointed in its direction. Thus the Ninth Amendment concluded the Supreme Court would overturn the precedent the moment they had the chance, so why stand on ceremony?

So explained, the decision doesn't seem to mean much at all, except that Posner and Easterbrook, being conservatives, have a great deal of respect for self-imposed limits on judicial power. And those self-imposed limits are very important, because the liberal theory of judicial power is pretty much without limit at all, except for whatever internal limits the judges agree to restrain themselves with.

All they're doing is laying out the reasons the Supreme Court could re-affirm its precedent, and deferring to those hypothetical reasons.

Posted by: Ace at 01:29 PM | Comments (7)
Post contains 810 words, total size 5 kb.

Down-page, Drew calls her response a "non sequitur," which it is. It fails to address the comment in any way.

For Politico, of course, this non sequitur is an "explanation" that ends the controversy.

Correction: My page header for this link says "Reuters," but it appears they plucked it from Politico. So they're both pushing the lie, but it's more fair to say it's Politco that's responsible for it.

I await Politico's clarification as to how, precisely, this "explains" or "clarifies" the remark. We now have a multiplicity of "explanations" -- Obama says she didn't mean what she said; she herself says she did; Paul Krugman says it was some kind of a joke, like "Knock knock. Who's there? A wise Latina who is physiologically superior to you in deciding court cases." -- and no one is "explaining" or "clarifying" anything.

Judge Sonia Sotomayor attempted to clarify her controversial remark Tuesday that a "wise Latina woman" could reach a "better" decision than a white male, telling Judiciary Chairman Pat Leahy that "ultimately" and "completely" a judge should follow the law.

Leahy, who met privately with Sotomayor on Tuesday, said he usually doesn't discuss what was said in private meetings with Supreme Court nominees.

But given the attacks that have been launched because of her remarks, Sotomayor gave Leahy clearance to give her response to the public.

Sotomayor told Leahy that what she meant is that people have different backgrounds but "there is only one law," and "ultimately and completely" she would follow the law.

This is not an "explanation." It does not address the subject matter of the remark; it instead introduces a new and unrelated (and nicely uncontroversial and well-nigh meaningless) premise that "there is only one law" and that she would follow it.

Wow. Thanks for the reassurance, Sonia!

And as Drew just wrote:

The problem is she said Latina's can reach better decisions than white men, not whether or not there's "one law for one color or another".

Whether there is one law or twelve laws, Sonia Sotomayor remains on record as believing her "physiology" will allow her, more often than not, to come to a superior decision than a white male.

It's pretty amazing that Politico headlines this as an "explanation."

Posted by: Ace at 12:36 PM | Add Comment
Post contains 397 words, total size 3 kb.

The Human Highlight Reel, part 138:

Vice President Joe Biden acknowledged on Tuesday that some waste is inevitable in the spending of a $787 billion economic stimulus package, in a characteristically blunt assessment.

"We know some of this money is going to be wasted," Biden said during a roundtable discussion in New York with business leaders aimed at promoting the two-year stimulus plan.

In accounting parlance, "some" is a term of art, meaning "roughly 80%."

...

President Barack Obama placed Biden in charge of supervising implementation of the stimulus to underscore his promise of strict oversight of the package, which is aimed at creating or saving 3 million to 4 million jobs.

Nice. I love seeing the media continuing to parrot that.

Biden said transparency and accountability are key to the program's success.

"There are going to be mistakes made," said Biden. "Some people are being scammed already."

That bit about "transparency and accountability" is a less-obvious gaffe-by-inappropriate-candor at Obama's expense. Obama does not believe in either, and would rather hate-f*ck a syphilitic wolverine than own up to his mistakes.

Anyone believe that Obama will embrace transparency and accountability, which Sheriff Joe calls "key"? Or will he cover them up?

Posted by: Ace at 12:02 PM | Comments (5)
Post contains 224 words, total size 2 kb.

Issue One: Is $50 Billion the end of the bailout pie? A: No.

“We don’t think that after this next $30 billion, they will need more money,” one administration official said. “But the fact is there are things you don’t know — like when the car market will come back, and how much Toyota and Honda and Volkswagen will benefit from the chaos.”

That official isn't saying 'We gave them $50 billion. If that's not enough they're on their own. Maybe the UAW will even have to take a wage cut.' The official is saying "We gave them fifty billion but if that's not enough to let them compete with Honda then 'they will need more money.'"

Kaus also points out that our memes are wrong on this. If we want to win the issue, we have to stop framing this as bondholders vs. the unions. The general public are not bondholders in GM or Chrysler nor are they members of the UAW. They may have purely intellectual opinions on this, but, not actually having any skin in the game, they're not going to be moved by such debates.

The proper way to phrase it, Kaus advises, the UAW vs. all the other working stiffs who now are forced to subsidize UAW workers' salaries -- and the UAW workers were already making more money than the other working stiffs to begin with.

Byron York wonders if this will be Obama's "tipping point" -- the point at which the unpopularity of his policies actually starts dragging down his personal popularity rating. Thusfar the two have been largely independent of each other.

I'd say the answer to that is "no," and that the tipping point will actually come in six months to a year, as the economy continues to falter.

But note that GM will in fact be Government Motors:

Those numbers might worsen in coming weeks. Obama knows the public doesn't want the government to run GM and Chrysler, which is why he has said hundreds of times that the government has "no interest" in running the automakers. But on Monday, at a White House event to hail the GM bankruptcy, he gave away the game when he said the feds will stay out of running GM "in all but the most fundamental corporate decisions."

It didn't take any parsing to realize that in Obama's vision, the government will let GM management handle the small stuff, but when something really, really matters, the new owner -- the United States government -- will do the deciding.
During a telephone briefing with reporters the night before Obama's speech, a senior administration official made the point even more explicitly. "The government will not interfere with or exert control over day-to-day company operations," the official said. "As a shareholder, the government will limit what it votes on to core governance issues, particularly the selection of the company's board of directors; major corporate events or transactions."

The bottom line: No government interference with the automakers, unless it involves a "fundamental corporate decision," or the selection of the companies' boards, or a "major corporate event" or some important transaction. Obama has placed a giant asterisk next to his pledge not to run GM and Chrysler.

Does anyone believe that the government will be able to run GM better than its executives did? Granted, GM's executives didn't do a very good job. But the government will be worse. While the executives were cowed by the UAW, Obama's confederacy of dunces actively courts them.

And whereas the executives made their decisions based on what the public actually wanted in a car, Obama's brigade of retards will make decisions based on what they believe the public should want in a car.

This doesn't work, of course. If GM could just impose its ideas of what the public should want in a car, they wouldn't be in bankruptcy, as all their models would be selling like hotcakes. (The public should want these cars, after all.)

In addition, Government Motors will be playing not to its own strengths but to the strengths of its competitors. SUVs have been one of the few profitable types of cars because labor costs for such cars are relatively low compared to the price of the vehicle; for such cars, then, the high costs the UAW imposed on each car they made were a smaller fraction of the vehicles' total costs, and thus more hidden and more palatable.

Government Motors is gong to try to beat the Japanese and Koreans at their own game in smaller, lighter, more gas-efficient cars -- where labor costs are a bigger part of the total cost. (Less steel and other material costs in such vehicles means that labor is a greater fraction of overall cost.) So Obama will continue pandering to the UAW while focusing on those cars where the UAW's outsized demands make American cars even less competitive.

Eh, no problem: Obama will begin talking up the number of automobile sales he's "created or saved" with his bailout. Sure, GM's sales will tank, but you know what? Obama has secret data proving that even fewer cars would have been sold without his brilliant intervention.

Posted by: Ace at 11:43 AM | Add Comment
Post contains 896 words, total size 6 kb.

We need a fourth category: Lies, damnable lies, and statistics don't cover it anymore.

It's now lies, damnable lies, statistics, and complete bullshit made-up fakey-fantasy numbers the media uncritically offers as "statistics."

After nearly twenty years in Washington I thought I've seen every trick ever conceived, but the White House claims of "jobs saved" attributed to the stimulus bill is unrivaled. What causes the jaw to drop is not just the breathtaking deception of the claim, but the gullibility of the Washington press corps to continue reporting it.

News stories from President Obama's event last week hailing the 100-day mark since the stimulus was passed typically repeated the assertion that the stimulus has already "created or saved 150,00 jobs." ("And that's just the beginning," the President crowed.)

Here's an important note to my friends in the news media: the White House has absolutely no earthly clue how many job losses have been prevented because of the stimulus bill. None. Not Christina Romer. Not Jared Bernstein. Not Austen Goolsbee.

Each of these distinguished economists would have failed Statistics 101 for making such a laughable claim. But we see them now repeating these assertions to reporters who have seemingly abandoned all skepticism.

Forget that only a trickle of stimulus spending has yet made its way into the real economy. Set aside your views on whether or not the stimulus has any job-saving or -creating impact. And leave for another day the White House's failing to account for changing macroeconomic conditions and seasonal adjustments.

There is only one necessary data point to make the "jobs-saved" claim: an accurate measure of expected employment levels in the future. That baseline data is critical to measure what the employment level would be in the absence of the stimulus. Unfortunately for the White House, they cannot possibly know that measurement within any degree of confidence -- and they know it.

The media is also demonstrating intellectual incuriosity by failing to ask why no other president in the history of the US has offered up this strange metric in the past. Surely presidents facing a lot of job losses would have liked to have been able to offer a competing measurement of how many jobs they'd "saved."

How come no one has before?

Surely, at some point, George Bush "saved" some jobs (when he wasn't actually creating them -- as jobs were created just about every month of his tenure). Anyone care to estimate the media's reaction at a hypothetical George Bush assertion that he had "saved" x number of jobs in a month?

Hell, the media won't even credit him for having saved lives, there having been no terrorist attacks on American soil after 9/11. They suggest that probably there weren't any terrorist attacks planned, so no lives could have been saved.

Well, there is some evidence for Al Qaeda's continuing plotting and no evidence at all for Obama's "saved" jobs.

Posted by: Ace at 10:35 AM | Add Comment
Post contains 524 words, total size 3 kb.

I just sent an email to Dave and Slu about this. I'm glad someone besides a couple of blogger types is noticing.

"The stories of two very different lives with similar fates crossed through the media's hands yesterday - both equally important but one lacked the proper attention. The death of 67-year old George Tiller was unacceptable, but equally disgusting was another death that police believe was politically and religiously motivated as well.

William Long died yesterday. The 23-year old Army Recruiter was gunned down by a fanatic; another fellow soldier was wounded in the ambush. The soldiers had just completed their basic training and were talking to potential recruits, just as my son, Track, once did.

Whatever titles we give these murderers, both deserve our attention. Violence like that is no way to solve a political dispute nor a religious one. And the fanatics on all sides do great disservice when they confuse dissention with rage and death."

Governor Sarah Palin

As of 3:15pm EDT there's still no statement on the White House website about the death of a US soldier by a Muslim terrorist. Contrast that to the rapidity with which the Obama administration had something to say about the Tiller murder.

There's nothing on Andrew Sullivan's website nor did Keith Olbermann manage to take a second away from blaming Fox for Tiller's death to mention Private Long or Private Ezeagwula.

I guess we know what their priorities are.

Damn good thing we managed to keep Palin away from the Vice Presidency.

Posted by: DrewM at 10:17 AM | Comments (1)
Post contains 290 words, total size 2 kb.

Above the post update:

MSNBC took down the original article I linked to and has replaced it with this one. The new post changes the context of the "None whatsoever" quote.

Leahy told reporters he's usually reluctant to discuss his private conversations with the press, but got clearance from Sotomayor to talk about her answer to the question, which has sparked controversy.

"I asked her if she had any problem with me referring to her answer. And she said, 'None whatsoever," Leahy told reporters.

Leahy said her answer to the Latina statement was this: "What she said was, of course, one's life experience shapes who you are. But ultimately and completely -- she used those words -- ultimately and completely as a judge you follow the law. There's not one law for one race or another. There's not one law for one color or another."

This is still a bit of a non-sequitor. The problem is she said Latina's can reach better decisions than white men, not whether or not there's "one law for one color or another".

That idea should be explored during the confirmation hearing.

As for MSNBC.com, mistakes happen but trying to hide them with no acknowledgment is pretty crappy. It is however par for the course for an organization that employs Keith Olbermann.

I didn't screen grab the original MSNBC post but I did grab the Google News search. You can see them here.

Original Post

Well, this certainly is getting interesting.

In a news conference moments ago with Senate Judiciary Committee Chairman Pat Leahy (D-VT), he told reporters that he asked Supreme Court nominee Sonia Sotomayor whether she had any problems with her statement about a Latina woman reaching better conclusions than a white male.

"She said, 'None whatsoever,'" Leahy recounted to reporters. "What she said was of course one's life experience shapes who you are. But ultimately and completely -- she used those words -- ultimately and completely as a judge, you follow the law."

This will likely come as news to Obama.

President Barack Obama on Friday personally sought to deflect criticism of Supreme Court nominee Sonia Sotomayor, who finds herself under intensifying scrutiny for saying in 2001 that a female Hispanic judge would often reach a better decision than a white male judge. "I'm sure she would have restated it," Obama flatly told NBC News, without indicating how he knew that.

This is the great thing about judicial nominees, they aren't political pros and yet they are suddenly thrown into one of the most political processes our country has. She didn't take the hint Obama and Gibbs offered about toning down this remark. Hopefully she will be just as candid in her confirmation hearing.

Posted by: DrewM at 08:38 AM | Comments (1)
Post contains 476 words, total size 3 kb.

In fact, they seem pretty dead set against it. Who knew?

Americans are overwhelmingly opposed to closing the detention center for suspected terrorists at Guantanamo Bay and moving some of the detainees to prisons on U.S. soil, a USA TODAY/Gallup Poll finds.

By more than 2-1, those surveyed say Guantanamo shouldn't be closed. By more than 3-1, they oppose moving some of the accused terrorists housed there to prisons in their own states.

The findings underscore the difficult task President Obama faces in convincing those at home that he should follow through on his campaign promise to close the prison in Cuba, especially in the absence of a plan of where the prisoners would go.

In many parts of the world, however, Gitmo has become a symbol of U.S. arrogance and abuse, and Obama has cited its closure as a way to lay the foundation for better relations. He is scheduled to deliver a major address aimed at the Muslim world on Thursday from Cairo.

Here's my pet peeve....how exactly did Gitmo " become a symbol of U.S. arrogance and abuse"? Maybe it had something to do with all the screeching from people on the left like Obama, Andrew Sullivan and the rest. Gitmo wasn't self-discrediting, it took the work of people opposed to the US taking strong measures to defend itself in the wake of 9/11.

The newest lefty talking point is the General Petraeus wants to close Gitmo and said that we have violated the Geneva Conventions in some unspecified way.

Andy McCarthy takes a look at the General's statements and walks through why there's not much there there.

Posted by: DrewM at 07:48 AM | Add Comment
Post contains 299 words, total size 2 kb.

It's not much and it's pretty well spread out.

Search teams scouring the Atlantic Ocean for the Air France jet which came down in a storm yesterday have found debris from an aircraft, including a plane seat.

The Brazilian air force said they had discovered the debris and oil and kerosene slick 650km (400 miles) northeast of the Fernando do Noronha archipelago in the area where the jet is thought to have crashed.

It could not immediately be confirmed that the debris was from Air France flight AF 447, which had 228 passengers and crew aboard, said Jorge Amaral, an air force spokesman. He added that officials needed "a piece that might have a serial number, some sort of identification" to be sure that it came from the missing airliner.

Just horrible.

No one seems to be ruling out terrorism but early speculation is focusing on the weather the plane encountered.

Posted by: DrewM at 07:22 AM | Comments (3)
Post contains 173 words, total size 1 kb.

(Thought I might slip this over the transom and run away really fast)

Remember how during the 8 years of the Age of W we were subjected to a barrage of near-daily polls telling us exactly how much America was hated around the world? Typically these polls were taken in nations with Muslim majorities, but primarily in the Middle East and East Africa, or the more socialistic nations of Western Europe (or "Old Europe" as it was sometimes called by Darth Rumsfeld).

Remember? Pissed you off didn't it? No one ever asked us American knuckle-draggers what we thought about those same countries (or if they did it was usually some kind of novelty poll about France, as if that were an actual nation and stuff).

But now, as Pres. Obama prepares to head off to the Middle East, CNN has blessed us with a poll headlined Few Americans Have a Good View of the Muslim World.

"WASHINGTON (CNN) -- Shortly before President Obama departs for a trip to the Middle East, a new national poll suggests that one in five Americans has a favorable view of Muslim countries."

"That view compares with 46 percent of the people questioned in a CNN/Opinion Research Corp. survey who say they have an unfavorable opinion of Muslim countries. That's up 5 percentage points from 2002, when 41 percent indicated that they had an unfavorable view."

Well, at least CNN tried to accentuate the positive in the first line. What does it all mean? I dunno'...you'll sort it out in the comments. Yet looking at some of the later statements in the story, I smell the foundation being laid for a fresh new narrative as the Healer in Chief goes forth into the lands of the heathens.

So go ahead and give us your best take on what the narrative will be.

Posted by: Open Blog at 06:41 AM | Add Comment
Post contains 315 words, total size 2 kb.