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Archive for June, 2008

Incorporating the Second Amendment

[ 6 ] June 25, 2008 |

Given the credible assumption that Scalia will be writing the Court’s likely-to-be-a-landmark 2nd Amendment opinion in Heller, Mike O’Shea claims that this is “great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control” but “somewhat ambiguous news — at least in the short term — for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.”

The Court, of course, doesn’t even need to address the question of incorporation to strike down the D.C. Ban, and they may choose to avoid the question. But I would be absolutely shocked if the Court declared that the Second Amendment did not apply against the states. With the rare exception of Thomas (whose questioning of incorporation doctrine seems tied to the particular nature Establishment Clause), no conservative since Harlan left has seriously questioned the application of most of the Bill of Rights to the states. And it is unlikely indeed that Scalia would simultaneously find broad individual right to purchase and posses firearms in the Second Amendment but would simultaneously claim that this right is not “implicit in the concept of ordered liberty.” As O’Shea says, what he wrote in A Matter of Incorporation can easily be explained away as a narrow reference to the Second Amendment as originally understood (i.e. before the Fourteenth Amendment), and that’s what’s going to happen.


Good, If All Too Quixotic

[ 15 ] June 25, 2008 |

Dodd and Feingold to filibuster the House’s awful FISA bill in the Senate. And Reid is co-sponsoring an amendment stripping the bill of the provisions providing retroactive immunity for corporations who illegally violated the privacy of their customers.

I wish I could disagree with Jonathan Zasloff:

Presumably, [Obama] will vote for Harry Reid’s amendment stripping retroactive telecom immunity from the bill. The Republicans will filibuster it. Then Reid, showing the spinelessness that has distinguished his term as Majority Leader, will pull the amendment. Then Dodd and Feingold will try to stop ending debate.

What does Obama do?

If he votes to filibuster, then he looks foolish because just last week he supported the House bill, with a weak statement that was really beneath him. If he does this, then he’s “flip-flopped in four days.” (Not as agile as McCain, of course, but that never matters according to the Beltway press.). But if Obama votes to end debate, then he plays along with Republicans and further infuriates the base (and by the way all those who believe in accountability). Either way, he does not look good.

I suspect he will vote to end debate. And that will leave a very bad taste in the mouths of many Democrats. One might even call it “bitter.”

I actually wouldn’t be surprised if Obama voted against cloture, using the fact that he nominally opposed the retroactive immunity provisions as a justification. The problem is that unless the vote is decisive, such a vote wouldn’t actually matter. The time for Obama to stop the bill would was to persuade the House leadership to prevent it from coming to a vote.

Clash of the Third-Rate

[ 9 ] June 25, 2008 |

Apparently all the Mariners needed was a trip to Shea Stadium, which suddenly turned R.A. Dickey into Phil Niekro. (And it’s hard to even bring up Wright being out of the lineup, given that Tatis was 3-4.)

McCain’s Bottom Line

[ 7 ] June 24, 2008 |

Like Publius, I don’t know why the hell I keep reading Richard Cohen. Probably for the same reason some people cut themselves or compulsively pick their own scabs. But today’s column at least reassures me that if John McCain were president, he will continue “to refuse repatriation as a POW so as to deny his jailors a propaganda coup.” Which is just a different way of saying that Richard Cohen’s Vietnam envy represents John McCain’s primary qualification for the job.

Saletan Follow-Up

[ 23 ] June 24, 2008 |

To add a couple things to Bean’s post below, there’s another glaring flaw with respect to Saletan’s argument here:

One of this country’s greatest achievements is its separation of legality from morality, so that individuals can hold themselves to a higher standard, as they see it, without forcing it on everyone else.

I don’t actually agree with the claim that relatively libertarian social policies represent the “separation of legality from morality”; liberty and the right of consenting adults to arrange their relationships as they see fit are important moral values too. But that aside, Saletan’s point has some merit when it comes to drugstores that refuse to sell condoms; if they want to let other drug stores, gas stations, convenience stores, etc. take the profits I don’t really care. But when it comes to prescription contraceptives, however, that’s a different matter. Saletan’s ode to “the separation of law and morality” omits the obvious fact that some pharmacies in rural areas are in the position to significantly burden the access women have to oral contraceptives because they have been granted a highly profitable state-granted licence. When the state gives pharmacists a monopoly over the distribution of some drugs, it can also place reasonable restrictions on the ability of pharmacists to deny contraceptives to women based on their personal beliefs. If Saletan wants to argue that this isn’t reasonable he can (although I wouldn’t agree), but either way the state is implicated. There’s no “separation of law and morality” when the state places some individuals in the role of gatekeeper.

In addition, to repeat what I’ve said before I also reject the idea that pharmacists who deny oral contraceptives to women are acting on “principle”, unless the principle being applied is “having it all ways.” It would be an act of principle for a pharmacist to resign, or not accept a state-granted licence, because fulfilling their responsibilities would conflict with their moral beliefs. The High Moral Principle involved in wanting to get paid even though you’re not willing to do your job is much less obvious.


[ 0 ] June 24, 2008 |

Not to be mysterious and alarming or anything, but if any of our readers know of a place in Tel Aviv that could be rented for cheap for the month of July, please contact me privately; my e-mail can be found through my profile listing on the left sidebar.


[ 13 ] June 24, 2008 |

Weak, even for him:

But before long, the more honest among the surge opponents will concede that Bush, that supposed dolt, actually got one right. Some brave souls might even concede that if the U.S. had withdrawn in the depths of the chaos, the world would be in worse shape today.

It’s not as deliberately cinematic — or as shamefully priapic — as Bush’s landing on the Abraham Lincoln, but the growing archive of congratulatory pro-surge arguments amounts to a prolonged and equally mendacious “Mission Accomplished” cry. I can’t speak for all the strawmen that Brooks has assembled here, but the most sensible objections to The New Way Forward have not, in fact, been set to rest. As everyone knows, the purpose of the surge was not simply to reduce violence, but to enable political reconciliation, facilitate the development of an Iraqi state than can provide basic services, and further enable Iraqi forces to take up the burden of their own security. The just-released GAO report (.pdf) attests in the gentlest possible terms, pointing out that progress along these lines has been vastly overstated and that the “revised” US strategy in Iraq has failed to articulate a “post-surge” vision. (See Steven Simon’s recent Foreign Affairs piece for a related critique.) That is, one of the major flaws in the original invasion — a failure to plan for the invasion’s aftermath — is being duplicated with respect to the surge. Brooks, like others, desperately want to believe that the Bush administration has salvaged itself while no one was paying attention. But before long, the more honest among the surge proponents will concede that they, like Bush, have pretty much been repeating themselves for years.

More on Hoyt and MoDo

[ 5 ] June 24, 2008 |

What Digby said. Especially this:

These negative “feminine” stereotypes not only perpetuate noxious myths about female and gay leadership abilities in the culture at large, they consistently favor the right wing authoritarian philosophy. Dowd always says she’s speaking truth to power, but her obsession with “playing with gender” actually serves power very, very well. She and her editors may be so dazzled by puerile cutsiness like “Obama is like an anorexic starlet,” to even know that she’s being partisan, but that doesn’t mean she isn’t. It plays perfectly into the way Republicans have run elections since Reagan. If she and her editors don’t know she’s doing this then they are too stupid to be working for the paper of record.

…and what Amanda said.

The Brits: More Puritanical Even Than Us?

The Guardian is reporting that Heinz has been forced to pull this television ad in response to viewer complaints.

From the Guardian:

The Heinz Deli Mayo ad has been pulled after less than a week on air after viewers complained to the Advertising Standards Authority that it was “offensive” and “inappropriate to see two men kissing”.

Other complaints include that the ad was “unsuitable to be seen by children” and that it raised the difficult problem of parents having to discuss the issue of same-sex relationships with younger viewers.


Avoiding College Athletic Peonage

[ 50 ] June 24, 2008 |

Although I assume not enough players will go to make a significant dent in the system, like Matt I would hope that some aspiring basketball players will choose to go to Europe and actually get compensated for their services rather than be grossly exploited by the NCAA. The system in which everyone is allowed to profit as much as they can from college athletics except the players whose skills actually create the market is bad enough. But the collaboration of the NBA and NFL makes it even worse; at least players who are ready should have options to play at another professional level, including the league itself. (I’m still amazed by sportswriters who not only defend the NBA’s new restrictions on high school players being drafted but claim it’s actually in the interest of the athletes.) The exploitation of baseball players in college is far less severe, not only because the teams are not as profitable but because players have a viable professional option.

Ah, Saletan

I should just stop reading him and lump him with MoDo.

But alas. I have not.

In this installment, Saletan takes on pharmacists who refuse to dispense oral contraception (nevermind emergency contraception — this is just about basic birth control). And guess what? He thinks those feminist legal arguments are just plain silly and that it’s not a big deal if a woman has to go to several different pharmacies just to get her birth control. Verbatim Saletan (note: not shorter):

First: “Walling off” women’s health care? Beware dramatic metaphors from lawyers. There is no wall. You bring your scrip to the pharmacy, and the guy at the counter says, “Sorry, we don’t stock contraceptives.” That’s annoying and, in my view, stupid. But nobody’s walling you in. Your burden consists of finding another pharmacy.
Second: Why Viagra and not contraception? Because some pro-lifers view hormonal contraception as potentially lethal. I don’t share their anxiety about this theoretical risk to an early embryo, particularly when the alternative, in the event of pregnancy, is a high likelihood of fetal killing. But you can’t blow off the argument by assuming that contraception should be covered because it’s more important than Viagra. The whole point of the argument is that you’re looking at it backward: The fact that contraception is more consequential than Viagra is a reason to be more wary, not less, of distributing it.

And it goes on. And on.

But here’s the part that I find most head-scratch-inducing:

But I wouldn’t force pharmacies to sell birth control if they don’t want to. In particular, I dread Charo’s suggestion that providers should be compelled to offer “legal” drugs. One of this country’s greatest achievements is its separation of legality from morality, so that individuals can hold themselves to a higher standard, as they see it, without forcing it on everyone else. This is the principle many pro-lifers have rejected as they press for abortion bans to “teach” the immorality of killing fetuses. Happily, some have shifted their energy from attacking abortion clinics to setting up “alternative” pregnancy centers. It’s a shift from violence and harassment to exhortation and, at worst, deceit.

Right. So apparently separating the moral from the governmental means – to Saletan – that we should allow our laws to give in to morality rather than saying that people’s morality must be subjugated to individual liberty where the exercise of their morality affects the rights of another person. Saletan totally misses the point. The pharmacists ARE forcing their morality on other people. Not everyone, but women. I guess to Saletan that constituency is just not important enough.


[ 11 ] June 23, 2008 |

Still on the air and still a bigot, apparently.

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