Jun 27, 2008

Bang Bang!

I expected the SCOTUS would strike down DC's ban on handguns, but I wasn't sure if they would do it on very narrow grounds with something approaching unanimity, or with a sweeping interpretation of the Second Amendment in a 5-4 decision. The pessimists have it - the right wing decided to pursue its own agenda and carve in stone its side of the controversial issue, even though it could only do it with the slightest possible majority. Regardless of the quality of arguments, this stubborn approach is one further step in undermining the reputation of the Court.

The opinion has 64 pages and the dissents another 90, so it will take me a while to read through it, and I'll comment on it as I go. Here is the first instance of the typical Scalia sacrifice of logic for rhetoric (pp. 6-7):
What is more, in all six other provisions of the Constitution that mention "the people," the term unambiguously refers to all members of the political community, not an unspecified subset. (...) This contrasts markedly with the phrase "the militia" in the prefatory clause. As we will describe below, the "militia" in colonial America consisted of a subset of "the people"---those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to "keep and bear arms" in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as "the people."

There are two logical problems with this statement. First, Scalia is ignoring plausible alternative readings that avoid this purported tension, and second, his insistence on "a subset" is tenuous.

If the Second Amendment is read to guarantee a right to "keep and bear arms" for militia-related purposes, and that right belongs to "the people", then it also implies the right of "the people" to serve in the militia. In other words, it prevents a permanent segmentation of the society into an armed military class and a disarmed one. That couldn't have been a trivial issue in 18th century, so this is at least a plausible reading of the amendment, and one which uses the terms "the people" and "militia" in a fully compatible way.

Also, being "male, able bodied, and within a certain age range" is hardly a restrictive set of conditions. The political community of the time included only men, and of course only adult men, so exclusion of women or underage men is already implied in "the people" as Scalia defines the term. We thus only need to consider the significance of the exclusion of old and disabled men for the distinction between "the people" and "militia" as its subset. But a musket was not of much use to many a disabled man (particularly if the disability had to do with upper extremities or teeth), and an older but healthy man, although not required to serve in the militia, wasn't necessarily forbidden from doing so. Therefore, Scalia's distinction is meaningless.

And yes, he tries to justify it in the next several pages, but his arguments just get more and more strained, culminating with a false analogy on p. 13, where he writes that (because of how he parses the idiom "to bear arms") using the phrase "to keep and bear arms" to imply a military context would be like saying "he filled and kicked the bucket" to mean "he filled the bucket and died". He calls that grotesque, which it is, but mainly because of his own mangling of the relations between words.

Jun 2, 2008

What Exactly Is Wrong With Hillary Clinton

Normally, Digby is one of the most perceptive and astute bloggers around, but her recent writings are becoming uncritical toward Hillary Clinton, and this new one is just plain wrong in many ways.
I'm hearing and reading a lot today about how the Clinton supporters are going to ruin the party with their obstinate refusal to acknowledge that Obama has won and threats to vote for McCain. I think everyone needs to take a breath.

The fact is that this campaign is a photo finish. There has never been a primary where it's come even close to a tie before. Someone had to win and it's going to be Obama and it's going to be seen as legitimate, mostly because the primaries ran their course (for which everyone should actually be grateful.) But to think that a race this close could end with an instantaneous round of kumbaaya among the loser's most passionate supporters is probably a little naive. It's not human nature. (And if Clinton had been the one to win with this narrow lead, you can be sure the other side would be threatening to stay home or vote for McCain too. See this article from just before the Indiana primary if you don't believe me.)
In the article Digby links to, there is not a single example of an Obama supporter threatening to vote for McCain. There isn't even a speculation that some might do or contemplate that. Sorry, Digby, the article doesn't support your thesis.

Very few people are criticizing Clinton for remaining in the race until the end of the primaries. In fact, some Obama supporters, notably kos, consider it a good thing because primary campaigns help build state party infrastructure. That view is probably correct: continuation of contested primaries is helping the eventual winner, other things being equal.

The problem with Clinton is not in her persistence, but in the tactics she has been using since she became the underdog. She has chosen an all-out attack on her current opponent, and to hell with honesty, consistency and dignity. We could call it the Underdog's Gambit and it makes sense in the final election round, when a win is a win and a loss is a loss, period. But in the primaries one has to think ahead to the general election, and has to consider that the next-best thing to winning is losing to the eventual November winner. And with the issues like foreign policy, health care and Supreme Court nominations critically depending on the party - much more so than the person - winning the Presidency, the "next-best thing" should be valued even higher this year than usually.

I have no problem with Clinton trying to win the majority of delegates, even though that has not been realistic for quite a while. But she knows very well it isn't realistic, so her recent efforts have been aimed at delegitimizing the process, perhaps with the idea that she could then prevail, rules notwithstanding, in the name of "justice" or some other rhetorically convenient concept. Her insistence on the "popular vote" (and factually false claim that she is winning it) and frequent allusions to the 2000 presidential election are despicably dishonest efforts to delegitimize the Democratic Party delegate-selection process. Many of her surrogates' statements at the Rules & Bylaws Committee meeting Saturday matched typical Republican rhetoric in blatant disregard for truth and logic, and were so much more malicious because they were useless for achieving the objective of getting a favorable ruling. The real purpose of ridiculous statements about hijacking the process or disrespecting the will of the voters was to set the tone for an incessant chant to follow about how Clinton was wronged and robbed not just by Obama (who couldn't do it anyway), but by the Democratic Party leadership.

She sure picked the wrong time to assert that her own party is trying to steal an election. I wonder if she has considered what it would mean for her own chances in November if she were to somehow prevail at the convention using this argument. Those tactics are hurting the party no matter who the nominee is.

In addition, her insistence on "electability" is hurting Obama if he becomes the nominee, which is practically certain. Although her reasoning is bogus, and her claims subjective at best, there is some risk that this could become a self-fulfilling prophecy: if you repeat often enough that a candidate is not electable, some people may be influenced by that and their views of the candidate can become less favorable. If anything, the mantra has more power coming from a prominent politician of the candidate's own party.

Clinton's campaigning to the last primary is fine. Her hunt for superdelegates until there is a clear majority is fine. Even after Obama has a majority of delegates, it wouldn't be improper - although it might look desperate - for Clinton to contact Obama's superdelegates once more and ask them to reconsider their allegiance. But if they don't change their minds quickly, Clinton needs to stop fighting and support Obama without any reservations. She should do that no later than the end of June.

And most of all, she needs to stop implying that her own party's delegate-selection process is illegitimate, and she needs to stop trying to turn voters' emotions against Obama. And she should stop those things immediately.