Why did liberals give the Second Amendment away?

Unfortunately, most liberals are wusses. They let conservatives interpret and own the Second Amendment. So when Scalia made up the individual right to own firearms for the purpose of self-defense (an outstanding example of true judicial activism), liberals had only milquetoast counter-arguments. When Elena Kagan faces the Senate Judiciary Committee, she will make a generic statement that she supports the Second Amendment, without challenging Scalia's interpretation. Democratic politicians do it all the time, even if they really do not believe in any of the reasoning in Heller.

That makes liberals look like an unprincipled bunch, cherry-picking the Constitution. In fact, they are stupidly squandering the opportunity to take the high ground in every respect.

Scalia's interpretation makes no sense. There can't be a right to own all weapons - I bet Scalia would not support Heller's right to keep nuclear bombs in his home - so where do you draw the line? If handguns must be allowed, can bazookas be banned? Probably, but that is just as arbitrary as saying that swords must be allowed, but guns can be banned. There is no principled way to determine the limits of this "right".

By contrast, the interpretation that makes complete sense is that the Second Amendment guarantees the right to serve in the military. That is what "to bear arms" means. People don't "bear arms" when they go hunting; that is not, and never has been, the idiomatic use of that phrase. This interpretation fits well in the context. It makes the "well-regulated militia" reference relevant, and the right recognized by the amendment meaningfully curbs a practice that was common in the 18th century, to limit military service (or officer ranks) to upper classes.

This interpretation was politically meaningful in the 18th century, and it is politically meaningful now. It makes it unconstitutional to deny the right of military service to homosexuals. (That it is currently denied only to those homosexuals who do not hide their sexual orientation does not change anything. A whole class of citizens is excluded, it's just that the government is limited in the ways it can ascertain membership in that class.)

Why is no politician using this argument? Where are the liberal jurists or law professors arguing for this view? I googled gay military "second amendment" and the top hit that combined the terms in this sense (and the sixth hit overall - the top five were not relevant) was a comment on a blog. Kudos to ober from albany ny for comment #9 here:

The second amendment of the US Constitution says "A well regulated militia, being necessary to the security of a free state, the right to keep and bear arms shall not be infringed." If this is true, that we have a right to bear arms, then how can the government stop its citizens from joining the military? It seems to me that gays have a right to join the club. And the second amendment guarantees a person's right to join the military. If the military is not open to all of the country's people, then that might allow factions to gain control of it. A country whose military is dominated by one group may turn on the others: Can tyranny be far behind?

That's right. Notice the inanity of the reply by one Capt, USMCR:

There is no right to join the military. There's a duty to serve, but not a right to serve. If you can't see well enough to shoot - is it a civil rights issue? Should we tell the Marine Corps that the policy/slogan "every Marine is a rifleman" is a civil-rights violation? The right to bear arms, n the other hand, belongs to all citizens, whether members of the military or not. The 2nd amendment's militia isn't the military - it's a hypothetical draft of every able-bodied man - assumed to have acquired competence with a rifle on his own in the woods. I just hope that my legally blind neighbor sticks to knives and baseball bats.

That's just silly. Freedom of expression does not mean that an illiterate person is entitled to have an op-ed published in New York Times. Marriage and reproductive rights do not mean that the most repulsive guy in the world can force some woman to marry him and bear his children. And equality of rights in education does not mean that those who cannot pass first grade are entitled to finish college. Of course competence is required, but exclusion of a whole class unrelated to ability is clearly forbidden in all analogous situations.

The Constitution Commandeth: Thou Shalt Not Call Creationism "Superstitious Nonsense"!

I woke up from blogging hibernation because another Bush-appointed judge decided that we've always been at war with Eastasia.

As Orwell said, freedom is the freedom to say that two plus two make four. If a teacher is not allowed to say that creationism is "religious, superstitious nonsense", then we are in deep trouble. And, as of last Friday, a teacher is not allowed to say that, at least not in the Central District of California.

Briefly, James Corbett, a high school history teacher and adviser for the student newspaper, was found liable for Establishment Clause violation because of the comment he made in reference to John Peloza, a biology teacher who has been fighting (and suing) the school district for his "right" to teach creationism in his science class.

The most important reason this ruling is appalling is that it prohibits telling the truth. PZ Myers nails it:

First of all, he told the truth: creationism is religious, it is a product of superstition, and it is nonsense — it doesn't fit any of the evidence we have about the history of the world or life on it. We have to have the right to tell students not only that something is wrong, but that it is stupidly wrong.

And the judge's reasoning is mind-boggling (emphasis mine):

The Court cannot discern a legitimate secular purpose in this statement, even when considered in context. The statement therefore constitutes improper disapproval of religion in violation of the Establishment Clause.

Hello? The context, as described by the judge himself, was Corbett's opposition to Peloza's attempts to teach creationism. Not only is creationism false, but teaching it in public schools - especially in a science class - is illegal. Pointing this out obviously has a secular purpose.

So much for one prong of the Lemon test; the judge sours the next one just as badly:

The Court finds that Corbett’s statement primarily sends a message of disapproval of religion or creationism. As discussed above, Corbett states an unequivocal belief that creationism is “superstitious nonsense.” Corbett could have criticized Peloza for teaching religious views in class without disparaging those views.

This is wrong on several levels. First, it is beyond dispute that, in the context of science, which is what Peloza was supposed to teach, creationism is superstitious nonsense. If it weren't, the fact that it is illegal to teach it would be hugely problematic. If those views did not deserve disparaging, Peloza would be a victim of persecution by the Capistrano Unified School District, the US District Court for the Central District of California (the same one that decided this case) and the Ninth Circuit Court of Appeals. There is a reason creationism is not allowed in the science curriculum.

(And, to preempt the argument that it has nothing to do with truth or falsehood, but only with favoring religion, let me ask if teaching some claim that came from a religion - and, to make the case harder, was denied by another religion - would still be prohibited if the claim turned out to be true. Let's say science discovered that it really was turtles all the way down; would it make any sense to proclaim that teaching that violates the Establishment Clause?)

Furthermore, if so many non-fundamentalist believers and conciliatory non-believers have been trying to convince the public that religion is compatible with evolution, how come disparaging creationism is equated with disparaging religion? Again, I'll outsource this to PZ:

[W]e are being told over and over again that Christianity is not equivalent to creationism. This teacher has specifically said that creationism is nonsense, and this judge has equated a dismissal of a weird anti-scientific belief with making a rude remark about Christianity. So…where are all the Christians rising in outrage at the slander of their faith?

Finally, this suit was not brought by Peloza, but by a student, Chad Farnan. It is a mystery why Farnan should have standing to sue over a disparaging statement one teacher made about another teacher.

Ed Brayton wrote about the decision as well, but he seems terribly confused for a normally staunch free speech proponent. While Ed seems to tepidly agree that the creationism comment did not violate the EC, he also seems to think that some of Corbett's other comments, which the judge found not to have violated the EC, were more problematic:

Again, this is really strained reasoning. If he really wanted to make the nuanced point that the court thinks he was making, he could certainly have done it in a much more scholarly and serious way. Instead, the statement he made was inflammatory and insulting. There just isn't any place for that kind of hostility in a public school classroom.

The way I read it, Ed would have found Corbett liable at least for the "Jesus glasses" comment. That is very disappointing, even more so because he stops at hand-waving and makes no attempt to argue with the Court's actual reasoning. Not surprisingly, a lot of Ed's commenters agree with him, many of them flaunting their ignorance of the facts (e.g., implying that Corbett was a science teacher). I will reproduce my comment here:

Why would the "Jesus glasses" comment be inappropriate? Jesus (if he existed, or other people in his name) promoted a certain set of moral rules that are demonstrably impossible to follow without acting against one's best interest, as the vast majority of Americans understand "one's best interest". It should be a history teacher's duty to explain why a certain group acted against its own interests - at least as it would appear to us. Unless there is evidence that "they were blinded/manipulated by religion" is not a fair explanation, i.e., not one widely accepted by historians, the teacher should be free to teach it.

As for the Mark Twain quote, as long as it is a true quote, it ought to be fair game for a teacher to use it. After all, Twain is arguably the greatest American writer ever (certainly the most acclaimed word-wide), and is (hopefully) well-represented on the syllabus of some required courses. Shouldn't students learn that the greatest American writer was an atheist?

But don't take my word for it, go to the source and read the decision.

UPDATE (5/5/09): As usual, Digby gets it.

Police right to wait for sermon to end?

A few corrections and second thoughts about the Rev. Hannibal Lecter:

1. I used the ubiquitous, but wrong, spelling of the infamous name in the title of that post. I should have written "Usama bin Ladin".

2. To avoid misunderstanding: I think the police should generally do their work rationally, and that includes minimizing the possibility of riot or other risk of injury, particularly to innocent bystanders, when making arrests. However, I also feel it is extremely important that all people be equal before the law; therefore, the arrest procedure must not depend on the occupation or social status of the accused. Discrimination based on race, sex, or religion, is particularly pernicious.

3. Testimony in blog comments from former law enforcement officers (in whose identification or words I have no reason not to believe) has convinced me that I was likely wrong in assuming that the police would have behaved differently if the accused had not been a preacher. My tentative conclusion is that I might have overlooked the, let's call it, "man bites dog" bias in news reporting. While there are many reports of police brutality and haste in arresting criminal suspects, the total number of arrests is far greater. It is quite likely that the spectacular raids and high-speed chases we read about are anomalous, and that they make news because they are exceptional.

4. That said, there have also been blog comment testimonies for the opposite view - that theatrical and dangerous arrests are the norm. Incidentally, all those testimonies seem to be about drug-related arrests. That's disturbing. While I can understand that drug arrests present special challenges for gathering evidence (if the police aren't quick, the suspects can get rid of the drug), something is profoundly unjust in a system that, by design, puts suspects of non-violent drug offenses at greater risk of injury during arrest than murder suspects.

5. I think that people who use the "innocent until proven guilty" principle as the main justification for the police waiting until the end of Hopkins' sermon to make the arrest are seriously misunderstanding what that principle means and how it is applied.

What if Osama bin Laden is taping a message when we find him?

Should we let him finish before arresting him?

Apparently, the police in Jackson, AL, think so:

Police allowed Hopkins to finish his sermon before arresting him

WTF!? He is a murderer and (probably serial) child rapist! What is the point of the police waiting? So his holy message wouldn't be lost?

Looks like you can get away with almost anything in the name of religion, and even when you cross all bounds, you still get way more respect than other criminals.

UPDATE: Over at Pharyngula, many commenters think the police did the right thing because (1) Hopkins was not about to flee or commit another crime, and (2) he is only charged with those crimes at this point, not convicted. Those people are completely missing the point. Commenter karen (#31) has it right:

The police wouldn't wait for any other type person to finish his business before arresting him. This is just pandering to the woo.

The procedure for arresting a preacher must be exactly the same as that for arresting anyone else. If it is not, the police is violating the Constitution, specifically the Equal Protection Clause of the 14th Amendment and the Establishment Clause of the 1st Amendment.

UPDATE 2: It gets interesting. A comment by "Doug the Trucker" (#104) challenges my (and PZ's) view in a valid way:

OK, former LEO here.

We try to avoid creating a scene when arresting someone, especially if it in a public place where an arrest might stir up an even larger problem. From the description, Mr. Hopkins was in a controlled area, wasn't planning on fleeing, and was quickly arrested after the sermon. If there had been reason to believe he was armed, or was about to take off and run, then the officers would have moved in for an immediate arrest.

We try to do this for everyone, not just clergy.

If this is factually correct, I am ready to agree that the police did the right thing. But, for now, I find it hard to believe that the police would normally wait when arresting someone for murder.

UPDATE 3: Another police officer says this is standard. Well, I would hope it would be, but how then do we explain numerous accounts of SWAT team drug raids, high-speed chases, and so on?

How about some real support for the troops?

Via PZ Myers, a real vet's story:

A disabled vet has fought far too much already to have to continue to fight with their own government like this when they get home. In this case, it is the soldier who is looking to citizen for help with this fight.

That's just the bottom line. Read the whole thing.