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Supreme Court: Second Amendment Applies To States

[ 31 ] June 28, 2010 |

The Supreme Court today held that the Second Amendment — as recently redefined in D.C. v. Heller — applies to the states and not just the federal government, which will almost certainly result in a gun ban in Chicago being nullified. This was inevitable as soon as Heller was decided, so the only suspense with today’s ruling was with respect to 1)the size of the majority and 2)what rationale they would use to “incorporate” the Second Amendment. It turns out that the case was decided with the same 5-4 lineup as Heller, and the Court chose to incorporate the 2nd Amendment through the due process clause of the 14th Amendment rather than the privileges and immunities clause.

To briefly explain what’s at stake here, the Supreme Court in the 1873 Slaughterhouse Cases essentially eviscerated the recently enacted 14th Amendment, and in particular gave the privileges and immunities clause an implausibly narrow meaning. (As one of the dissenters noted, if the 14th Amendment meant what a bare majority of the Court claimed, “it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage.”) And while the due process clause has been revived in the 20th century — first as a vehicle for now-discredited property rights opinions, and then as a means of incorporating most of the Bill of Rights and protecting unenumerated rights in cases such as Roe v. Wade and Lawrence v. Texas — the privileges and immunities clause has remained an empty shell, protecting only a narrow set of pre-Civil War rights such as the right to travel. The case today was seen by some litigators as a chance to revive the privileges and immunities clause, but not surprisingly the Court didn’t take the bait. Four members of the Court’s majority, through Alito, relied on straightforward due process incorporation. Thomas, however, did urge a revival of the privileges and immunities, but stood alone. Scalia, conversely, concurred to explain why in this case tradition trumped original intent (which, to me, is another data point for my belief that whatever the conventional wisdom Thomas is a more principled and substantively interesting justice than Scalia.)

Leaving aside the rationale, I think that the outcome of the case is unexceptionable; if there’s a problem with the outcome, it’s with Heller itself. On a literal level, Stevens is right to argue in his dissent that according to the standard the Court theoretically applies to determine whether a right is incorporated against the states — which is to ask whether the right in question is “implicit in the concept of ordered liberty” — the 2nd Amendment probably wouldn’t apply. But I can’t endorse the logic, or Breyer’s similar argument that the 2nd Amendment is not “fundamental to the American scheme of justice.” Here, I have to admit that Scalia has the dissenters dead to rights: the arguments prove too much. It is true that plenty of functioning liberal democracies allow draconian regulation of firearms, and that the status of the Second Amendment remains the subject of a substantial ongoing dispute. The problem is that exactly the same thing can be said about virtually of all the specific criminal procedure guarantees that were incorporated against the states throughout the 20th century — lots of liberal democracies do without them, and there was no true consensus at the time of their incorporation that they were fundamental rights. Since I believe that these criminal procedure guarantees should have been incorporated, I can’t disagree with the majority today, and I don’t think that the dissenters did themselves much credit here. I’m leery (if cautiously optimistic) about the policy impact of today’s ruling, but based on the standards of incorporation the Court has actually been applying for many decades, the Second Amendment clearly qualifies.

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The Page 99 Test

[ 6 ] June 28, 2010 |

Ford Madox Ford once wrote: “Open the book to page ninety-nine and read, and the quality of the whole will be revealed to you.” Apparently there is an entire blog based on testing this concept as a way of introducing literature.

The Page 99 Test blog has an excerpt from pg 99 of my new book Forgetting Children Born of War on their site today, with some commentary I wrote up for them. Turns out it works reasonably well for my book, with a few qualifications. Read more…

More Weigel

[ 7 ] June 28, 2010 |

I think Tom Scocca wins the thread:

So Weigel was disrespectful to conservatives. What is a conservative? Apparently a conservative is someone who believes that Pat Buchanan’s professional Jew-baiting is not anti-Semitism, who admires Newt Gingrich as a shy and retiring statesman, and who is completely unfamiliar with the basic history of the Republican Party and the conservative movement. And a conservative is someone who believes that no one should say anything, even in private, that might hurt his or her conservative feelings.

How one would be respectful toward such a creature, I can’t really imagine. The Washington Post, however, sees that a vital mission.


Opinions! They are a minefield. For instance, if your job were to be an ombudsman—to evaluate reader complaints against a newspaper—and your opinion was that defenders of Pat Buchanan were entitled to be upset at seeing him called an anti-Semite, I would conclude that you were witless and untrustworthy. If your job were to be managing editor of a newspaper, and you said that in making Web hires, you would look for someone who had never expressed a strong opinion even in private, I would conclude that you were either an actual infant or you were so scared of criticism that you would jabber anything at all, even something meaningless and dishonest, if you thought it would make your critics go away.


Still, there was nothing in this episode that an editor with guts and integrity couldn’t have weathered in 72 hours. Maybe someday Weigel will be lucky enough to work for one.

I can’t add much to that. Alyssa Rosenberg raises an important subsidiary point.

In addition, like Glenn I must admit to being a mite confused about the High Standards of Journamalism we’re being lectured about. If I understand correctly, sending a few nasty emails about conservatives to a private email list is a firable offense. Sending nasty emails kicking a former colleague on the way out, on the other hand, is perfectly consistent with the sacred principles of integritude. And if you publish the latter emails while carefully preserving the anonymity of the gutless emailers, why, you’re just soaking in potty-trained journalistic integrity! If I didn’t know better, I’d think these principles were entirely ad hoc standards that always permit your enemies to be punished and your friends to do whatever they want…

What Exactly is a “Human Security Perspective”?

[ 1 ] June 27, 2010 |

I use that term a lot, and I’ve been realizing that  it’s unclear to many people what that actually means. As Roland Paris pointed out years ago,  the term means different things to different people; in fact my own empirical research suggests as much. So as I think ahead to teaching a course on this subject in the Fall, I thought it might be useful to nail down what the term generally means to me when I use it. My first stab at doing just that is now posted at Current Intelligence.

A teaser:

To me, a “human security perspective” is a set of propositions and analytical assumptions about the relationship between the security sector and the protection of fundamental human rights. It overlaps with and is distinct from both conventional national security thinking and conventional human rights thinking, and it boils down to three propositions that can be applied to any policy situation:

1) Human security is global security as if people instead of states mattered;

2) The security sector is both a threat and an indispensable tool for the protection of human security and

3) The key goal should be to maximize the protection of civilians within the rule of law…

Human security is akin to a foreign policy position I would call “progressive realism.” It puts humans and humanity at the center of the equation, but it does so pragmatically rather than naively. It promotes thinking outside the box while assuming that the wider good may sometimes require uncomfortable tradeoffs. It borrows from just war thinking a prioritization of the most vulnerable groups in society, and a willingness to resort to force only within certain narrow guidelines and with a great degree of restraint. It borrows from globalism a sense that the protection of vulnerable groups everywhere should be the concern of those with the power to assist and protect them – because it is right and also because it is ultimately in our interest. Yet it borrows from political realism an understanding of what it takes to get from here to there, a willingness to see the forest despite the trees, and an understanding of the unavoidable relationship between ethics and power.

Go check out the rest. I would be very interested in feedback.

[cross-posted at Duck of Minerva]

Sunday Book Review: Capitalism With Chinese Characteristics

[ 0 ] June 27, 2010 |

This is the fourth installment of an eight part series on the Patterson School’s Summer Reading List.

  1. Hide and Seek, Charles Duelfer
  2. The Accidental Guerrilla, David Kilcullen
  3. The Limits of Power, Andrew Bacevich
  4. Huang Yasheng, Capitalism with Chinese Characteristics

Yasheng Huang’s Capitalism with Chinese Characteristics amounts to a complete rethinking of the story of China’s post-Mao economic growth. Huang argues that the story of China’s post-Mao economic expansion told most often in the West (state guided investment, state support for FDI, carefully managed deregulation) is fundamentally wrong. According to Huang, the major shift to economic liberalization came in the early 1980s, in the immediate wake of Deng’s consolidation of power. The most important space for the development of entrepreneurial capitalism was rural China. Relaxation of regulations on individual businesses, combined with a surprisingly sophisticated and robust system of finance, allowed rural entrepreneurship to flourish. In turn, this helped produce very high rates of rural economic growth, which inevitably affected urban areas. Urban areas were strictly secondary to the boom, however. Huang presents a reasonably compelling degree of evidence to argue that Chinese GDP growth in the 1980s stemmed from rural productivity, and moreover that this productivity came from much more than a simple increase in agricultural yields.

Huang argues that earlier scholars have missed out on a significant portion of this explosion of rural entrepreneurship because they have misunderstood the private nature of most TVEs (town and village enterprises), and because some legal restrictions were misinterpreted. Huang argues that TVEs, for example, were overwhelmingly owned by private parties rather than the public sector in the 1980s. TVE refers to a location for a firm, rather than to its ownership status. Similarly, Huang argues that some legal restrictions on the size of firms were either never enforced or have been improperly understood by Westerners. For example, rural firms in the 1980s regularly exceeded seven employees without any state retribution. Key to the success of rural firms was the lifting of regulation, the availability of finance, and a state policy of “directional liberalism.” Huang uses directional liberalism to describe the idea of an economy that lacks many key features of liberal capitalism, but is nevertheless moving in that direction with sufficient speed to reassure investors that they’ll be able to keep their gains. Although the PRC in the early 1980s didn’t resemble a Friedman-esque capitalist wonderland (and lacked rule of law and democratic institutions to protect private property), entrepreneurs were sufficiently convinced by the shift in rhetoric between Mao and Deng that the future would be more, rather than less, economically open. This all changed after Tiananmen.

The second crucial part of Huang’s story is that the 1990s are as misunderstood as the 1980s. Rather than come from rural, domestic entrepreneurship, economic growth in the 1990s came from state investment in urban industry and heavy introduction of FDI (foreign direct investment). China’s economy was restructured to absorb these massive doses of FDI, which primarily benefited urban areas. Rural areas were heavily taxed by the state to support urban investment, and some regulations were re-instated. Without a central commitment to directional liberalism, the local state itself became predatory on rural enterprise. This change came about through the conjunction of ideological conflict and factional politics. Tiananmen resulted in the ouster of Zhao Ziyang, the most reliably pro-reform member of the inner circle of the CCP. Other members of Zhao’s faction were discredited. The older, more rural oriented elite of the CCP had been dying off in any case, and post-Tiananmen were replaced in large part by officials from Shanghai. Shanghai had remained relatively quiet during the Beijing disturbances, which impressed a CCP inner circle shaken by the demonstrations. Jiang Zemin and Zhu Rongji would become the primary elite drivers of PRC economic policy, and steered the PRC in an urban-oriented direction. The big, glittering corporations that emerged during this period legally resided, for the most part, in Hong Kong, where they could rely on both finance and legal protection.

This had two primary effects. In rural areas, growth stagnated, private industry withered, and the social safety net (frayed during the 1980s) in many areas collapsed. Urban areas, particularly Shanghai, saw spectacular growth of a sort. Unfortunately, this growth was not evenly shared, and did not benefit small Chinese entrepreneurs. Shanghai became a “world class city,” but with a hollow core. Huang argues that Shanghai is a Potemkin city; it has been built on a combination of FDI and money looted from rural China. Meanwhile, China’s gini coefficient (measure of inequality) skyrocketed, rural health and literacy declined, and local officials declared open season on rural entrepreneurs. Western economists and analysts missed out on this because of the apparent glittering reality of Shanghai (which, Huang notes, severely underperforms other urban centers on many key metrics), and because of the lack of good statistical evidence on the situation in rural China.

Huang argues that the situation changed again after Hu Jintao replaced Jiang Zemin at the top of the CCP. Without the “Shanghai clique” in power, state investment was directed in a more fair and efficient manner. The state again turned “directionally liberal”, supporting some degree of rural and urban entrepreneurship. Some key indicators on Chinese rural productivity have begun to turn around, although the loss of dip in rural health and literacy will have long term effects. Urban areas also remain productive, although Shanghai lags in many indicators of private industry and innovation. Huang is not given to extreme pessimism about the future of the Chinese economy, although he does believe that India is more likely than China to maintain high growth. India has a robust private sector that does not depend on FDI, and has better developed legal institutions, according to Huang.

This story is not radically different than that presented by Minxin Pei (whom Huang cites), although there are a couple of key distinctions. First, Huang rejects the idea that China adopted a “gradualist” approach to economic change.  The reforms of the early 1980s represented a radical and consequential shift in CCP economic policy, a shift that was altered (although not precisely reversed) following Tiananmen.  Second, Huang is less certain that the PRC will inevitably become more predatory on the Chinese economy, and that economic stagnation will thus invariably result.  Huang takes “directional liberalism” seriously, and it’s possible for the CCP to pursue liberal economic reforms, at least for a period.  Moreover, the lower levels of the party and state take cues (if not necessarily orders) from central authority, meaning that predation will be limited given a commitment to economic liberalism in Beijing.

Huang’s argument allows for indefinite continued high growth in China, although this growth is dependent on the quality of central leadership.  I wonder, however, whether the Jiang period exposed severe, long term disjunction between the political and economic system.  If such an interregnum happened once, it could happen again; Chinese entrepreneurs would be well advised to take care, even if directional liberalism currently prevails.  Moreover, increasing political openness doesn’t necessarily require a continued commitment to directional economic liberalism.

Huang hints at, but doesn’t fully develop, an argument that center-left economists have been insufficiently wary of the traditional story of state-led Chinese capitalist development.  There may be some truth to this, although I suspect that right wing economists have been too accepting of the idea that FDI was the primary driver in Chinese economic growth.  Huang does demonstrate sufficiently that the model of the early 1980s produced less inequality, more economic growth, and altogether greater human welfare than the model adopted in the 1990s.

Capitalism with Chinese Characteristics is valuable both for China specialists and for those more generally interested in economic development.  The writing isn’t always crisp, but he presents a truckload of compelling data in support of his thesis.  He’s also forthright about the holes in his evidence, which is appropriate given the role that absence of evidence plays in his account.

Stuart Scheingold

[ 4 ] June 27, 2010 |

This is a very, very sad day.

It can be daunting to meet people you admire through their work. I never got around to doing a “10 books that influenced me the most” list when that meme went around earlier this year, but there was never any question about what would top the list. Scheingold’s marvelous book The Politics of Rights, first published in 1974 and more relevant than ever, was a crucial reason not only for choosing to attend the University of Washington for grad school but for choosing law and courts as a scholarly specialty in the first place.  Even in years when I don’t teach it, I have to read it; I never fail to learn something, to notice another insight that illuminates something I’d missed or causes me to look at a puzzle in a new way.  But, as most of us learned the hard way, outstanding professional achievement doesn’t necessarily have anything to do with being a good person; I’m sure almost all of us have had experiences where we’d just as soon have not met someone whose work we admired.

With Stu (I’m going to drop the formality because one of the few things that could make him visibly angry was for one of his students to call him “Professor Scheingold,” which is instructive in itself) the personal and professional qualities were happily correlated. Indeed, despite scholarship whose quality, breadth, and influence was remarkable and, for an incoming graduate student, intimidating — including pioneering studies of comparative law, analyses of the politics of crime whose prescience still amazes, cutting-edge work on cause lawyering — he was a genuinely modest and kind man, intellectually and academic rigorous without the slightest hint of pretension or arrogance. He was a model as both an advisor and friend, and he and Lee were a model marriage as well.   His physical and intellectual energy were always remarkable.  His erudition was not limited to his scholarly interests — he took great pleasure and interest in a good walk, good food, good wine, and often not-that-good Seattle Mariners baseball. And yet his scholarly passions continued, because he cared about the work, not status. Well into his “retirement” and even after his tragic illness first struck, he continued to publish terrific work that explored new territory rather than reiterating old themes.  And his legacy will live on it UW for many decades; it’s not coincidence that so many of the legal scholars at UW have striven to replicate both his scholarly excellence and his personal fairness and warmth and collegiality.

He was a great scholar and a great man, and I feel much poorer today. R.I.P.

Now is an Opportune Time to Leave England for a Couple Months

[ 14 ] June 27, 2010 |

Germany 4 – 1 England.

Yes, Lampard’s goal, had it been correctly ruled a goal, should have made it 2-2.  Which is exactly where the 1966 final stood before Geoff Hurst’s non-goal was allowed.  In ten years of living in Europe, the only people who have argued that Hurst’s goal was legitimate have oddly been English.  England went on to win 1966 4-2 so the third goal didn’t matter, which is the feeble argument I have made to the odd German friend just for kicks, and they always correctly point out that once that goal was “scored”, West Germany had to take chances, thus creating the opportunity for the fourth England goal.

Had the Lampard goal stood, would the dynamics of the match changed, as in 1966?  Highly unlikely.  England were abysmal.  However, FIFA should drag their sorry asses into the 1990s, and bring in goal line technology.  This wouldn’t have made the match change, England saw to that, but it makes the sport itself look amateur.

Me, I’m happily transferring my allegiance the Dutch.  As I said on facebook earlier today in my shitty Dutch that never transcended mediocrity even when I lived there: “Nu de USA hebben verloren, time voor “Plan B”: Ga Oranje! Kijk uit wereld.”

SCOTUS: Teaching Terrorists to Negotiate Peacefully = Abetting Terrorism

[ 12 ] June 26, 2010 |

I haven’t had much time this week to comment on this extremely troubling Supreme Court ruling, and I still don’t. Let me quickly refer readers however to a helpful NYTimes editorial summary from earlier this week, and to a round-up of some useful commentary.

The basic contours of the case, according to the Times:

The case arose after an American human rights group, the Humanitarian Law Project, challenged the law prohibiting “material support” to terror groups, which was defined in the 2001 Patriot Act to include “expert advice or assistance.” The law project wanted to provide advice to two terrorist groups on how to peacefully resolve their disputes and work with the United Nations. The two groups — the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’ Party — have violent histories and their presence on the State Department’s official list of terrorist groups is not in dispute.

But though the law project was actually trying to reduce the violence of the two groups, the court’s opinion, written by Chief Justice John Roberts Jr. on behalf of five other justices, said that did not matter and ruled the project’s efforts illegal. Even peaceful assistance to a terror group can further terrorism, the chief justice wrote, in part by lending them legitimacy and allowing them to pretend to be negotiating while plotting violence.

I tend to agree with Gonzalo Lira, if not about the US’ current status as a “facist police state,” then certainly about the fact that the real issues here are less about free speech and more about expanding the state’s ability to repress.

Let me also point out that legal/constitutional issues aside, this judgment is extraordinarily near-sighted from a human security perspective. It is hard to see how the protection of civilian life could be served by denying human rights and humanitarian law groups the right to disseminate their norms, tactics and principles of non-violent conflict resolution to groups (be they states or non-states) that have previously engaged or retain the capacity to engage in violence.

Here is more useful reading on the topic from those better versed in the law than I: from Opinio Juris, Legal Ethics Forum, and Volokh Conspiracy.

What’s the Point of Having a Nuke if No One Knows You Have It?

[ 7 ] June 26, 2010 |

This is pretty awesome. Playing as Argentina, I was caught only during the testing stage for my advanced plutonium device (presumably, I was testing near the FalklandsMalvinas). I did take a long and expensive route, however.

Via ArmsControlWonk.

USA v Ghana

[ 11 ] June 26, 2010 |

19:30 (BST), 14:30 (EDT), 11:30 (PDT).

The US MNT plays in its first knock-out match in the World Cup since the glorious 2-0 victory over Mexico in 2002 (UPDATE: forgetting, of course, the match against Germany in the QF in ’02, which I continue to happily do).  These two sides have a deep and stirring history that the media can not stop talking about . . . 1966, 1970, 1972, 1990, 1996 . . . where did it all go wrong? . . . no, wait, that’s England v Germany.  Ghana and the USA have met exactly once, the final group match of 2006, in which Ghana won 2-1 on a sketchy penalty call at the end of the first half.

Ghana don’t score goals.  Indeed, in 13 internationals in 2010, they’ve scored more than one goal once: a 5-2 victory over the mighty Burkina Faso.  Both goals they’ve scored during this tournament were penalties by Rennes forward Asamoah Gyan.  Given that the Guardian projects them to come out in a defensive-minded 4-1-4-1 for this match, and are without Michael Essien during this tournament, expect more of the same.  However, don’t underestimate Ghana; they’re a strong, physical side that will press American players and disrupt any passing set up play.  The US will have to rely on its pace to find space on counter attack.

It looks as though Bradley will make two changes from the side that beat Algeria on Wednesday: Gooch returns in central defence, and Findley partners Altidore up front.

While I’d love to discuss the bracket we’re in and its relative placid ease, I can’t.  I expect Uruguay to get past South Korea, to face the winner of USA v Ghana.  I underestimated Ghana in my predictions back in December (I saw them finishing last in their group), and won’t do so again.

Side note: Asamoah Gyan and US Captain Carlos Bocanegra are teammates at French 1st Division side Stade Rennais.

UPDATE (and this one I did miss): Ghana right back John Paintsil and Clint Dempsey are teammates at Fulham.

Friday Cat Blogging

[ 3 ] June 26, 2010 |

Courtesy of ICanHasCheezburger.

LGM World Cup Challenge Update

[ 0 ] June 25, 2010 |

After group play it’s still anyone’s game, except for those who did really badly during group play:

1 Better Legs on SofasB. Mizelle 24 24 99.6
2 AlSuA. Berry 23 23 98.8
2 timeagan101 1T. Eagan 23 23 98.8
2 Great Russian DinosaursM. Jeffery 23 23 98.8
5 Eccentripity 1E. Cerevic 22 22 97.0
5 greller49 1A. Greller 22 22 97.0
5 The HypnotoadD. Raskin 22 22 97.0
5 bobby lenarduzzid. loveland 22 22 97.0
5 QAS410 1, 22 22 97.0
5 tnpsc 1v. las vegas 22 22 97.0
5 bourbon renewalh. hjklhljkh 22 22 97.0
5 brokenax16 1D. Collins 22 22 97.0
5 Europa05 1m. allen 22 22 97.0

I’m sitting at 21 points, tied for 14th, which is much, much better than I had any reason to expect. Will be cheering hard for USA in tomorrow’s W.E.B. Du Bois Memorial Bowl.