Tuesday, April 21, 2009

Second Amendment extended - Ninth Circuit ruling

Second Amendment extended. By Lyle Denniston
SCOTUS blog, Monday, April 20th, 2009 3:21 pm

The Constitution’s protection of an individual right to have guns for personal use restricts the powers of state and local government as much as it does those of the federal government, the Ninth Circuit Court ruled Monday. The opinion by the three-judge panel can be found here. This is the first ruling by a federal appeals court to extend the Second Amendment to the state and local level. Several cases on the same issue are now awaiting a ruling by the Seventh Circuit Court.

Ruling on an issue that is certain to reach the Supreme Court, the Circuit Court concluded “that the right to keep and bear arms” as a personal right has become a part of the Constitution as it applies to the states through the Fourteenth Amendment’s due process clause.

That right, it said, “is ‘deeply rooted in this Nation’s history and tradition.’ Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the ‘true palladium of liberty.’

“Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”

But, following the lead of the Supreme Court’s decision last June in District of Columbia v. Heller, finding a personal right in the Second Amendment for the first time, the Circuit Court concluded that the right as interpreted by the Justices is limited to “armed self-defense” in the home.

Thus, the Circuit Court refused to strike down an Alameda County ordinance that makes it a crime to bring onto county property a gun or ammunition, or to possess them on that property. A county supervisor who sponsored the ordinance cited “a rash of gun violence” in an apparent reference to the school shootings in the late 1990s, including the one at Columbine High School in Littleton, Colo.

The Alameda ordinance, the Circuit Court said, does not involve the kind of armed self-defense that the Supreme Court had in mind in Heller. “It regulates gun possession in public places that are County property,” it concluded.

The ordinance had been challenged by Russell and Sallie Nordye, who operate a business that promotes gun shows in California. They contended that the Alameda County ordinance burdens their Second Amendment right because it makes it more difficult to buy guns.

Before the gun ordinance was adopted, gun shows had been staged at the Alameda County fairgrounds, drawing up to 4,000 people. The Nordykes said that some county officials wanted to drive gunshows out of the county, and that is what led to the ordinance’s enactment.

The Circuit Court, however, said the ordinance “does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it. The ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise.”

Finally, it said, banning guns from municipal property “fits within the exception from the Second Amendment for ’sensitive places’ that Heller recognized,” the Circuit Court said.

The Court also rejected a First Amendment challenge to the ordinance, based on the Nordykes’ claim that the local law was designed to silence those who promote gun rights. “The language of the ordinance,” the Court said, “suggests that gun violence, not gun culture, motivated its passage.”

It also rejected a claim of discriminatory application of the law, because of some exceptions the county wrote into its ordinance.

The ruling was written by Circuit Judge Diarmuid F. O’Scannlain and joined by Circuit Judge Arthur L. Alarcon. Circuit Judge Ronald M. Gould joined the opinion, but also wrote separately to discuss the doctrine of incorporating rights selectively to apply to state and local government.

Obama's Gitmo

Obama's Gitmo. By William McGurn
WSJ, Apr 21, 2009

Helen Thomas: Why is the president blocking habeas corpus from prisoners at Bagram? I thought he taught constitutional law. And these prisoners have been there . . .
Robert Gibbs: You're incorrect that he taught on constitutional law.

You know we live in interesting times when Helen Thomas is going after Barack Obama. Miss Thomas was asking the White House press secretary last week why detainees at Bagram Air Base in Afghanistan should not have the same right to challenge their detention in federal court that last year's Supreme Court ruling in Boumediene v. Bush gave to Guantanamo's detainees. All Mr. Gibbs could do was interrupt and correct the doyenne of the White House press corps about Mr. Obama's class as a law professor.

The precipitate cause of Miss Thomas's question was a ruling earlier this month by federal district Judge John Bates. Judge Bates says that last year's Supreme Court ruling on Gitmo does apply to Bagram. The administration has appealed, saying that giving detainees such rights could lead to protracted litigation, disclosure of intelligence secrets and harm to American security. The wonderful irony is that, at least on the logic, everyone is right.

Start with Judge Bates. The judge is surely correct when he says the detainees brought in to Bagram from outside the country are "virtually identical" to those held at Guantanamo. He's also correct in asserting that the Supreme Court ruled the way it did out of concern "that the Executive could move detainees physically beyond the reach of the Constitution and detain an individual" at Bagram.

But President Obama's appeal is also right. Though most headlines from the past few days have focused on the release of Justice Department memos on CIA interrogation, the president's embrace of the Bush position on Bagram is far more striking. Mr. Gibbs became tongue-tied while trying to explain that stand. But the Justice Department brief is absolutely correct in asserting that "there are many legitimate reasons, having nothing to do with the intent to evade judicial review, why the military might detain an individual in Bagram."

Finally, critics like Miss Thomas also have it right. In a long and thorough post called "Obama and habeas corpus -- then and now," Glenn Greenwald, a former constitutional law litigator who blogs at Salon.com, exposes the gaping contradiction between past Obama rhetoric on the inviolability of the right to habeas corpus and the new Obama reality. He also quotes Mr. Obama's reaction to Boumediene as a "rejection of the Bush administration's attempt to create a legal black hole at Guantanamo."

Manifestly, Mr. Greenwald believes that "black hole" is simply moving to Bagram. "I wish I could be writing paeans celebrating the restoration of the Constitution and the rule of law," he writes. "But these actions -- these contradictions between what he said and what he is doing, the embrace of the very powers that caused so much anger towards Bush/Cheney -- are so blatant, so transparent, so extreme, that the only way to avoid noticing them is to purposely shut your eyes as tightly as possible and resolve that you don't want to see it, or that you're so convinced of his intrinsic Goodness that you'll just believe that even when it seems like he's doing bad things, he must really be doing them for the Good."

How can all these people be right? The answer is that each is responding to a different contradiction raised by the president's Guantanamo policy. In an impassioned 2006 speech on the Senate floor on the right to habeas corpus, Mr. Obama declared, "I do not want to hear that this is a new world and we face a new kind of enemy." During the campaign, his language implied that all we needed to settle the detainee issue once and for all was to shut down Gitmo.

As president, he is finding out that this very much is a new world, that we do face a new enemy, and that the problems posed by Guantanamo have less to do with the place than the people we detain there.

Put simply, the U.S. needs the ability to detain people we know to be dangerous without the evidence that might stand up in a federal criminal court. Because we can't say when this war will end, moreover, we also need to be able to detain them indefinitely. This is what makes the war on terror different, and why our policies will never fit neatly into a legal approach that is either purely criminal or purely military.

The good news is that Mr. Obama is smart enough to know that the relative obscurity of Bagram, not to mention the approval he has received on Guantanamo, enables him to do the right thing here without, as Mr. Greenwald notes, worrying too much that he will be called to account for a substantive about-face.

The bad news is that we seem to have reached the point where our best hope for sensible war policy now depends largely on presidential cynicism.

On Earth Day, environmentalists must not link arms with anti-immigrant forces

On Earth Day, environmentalists must not link arms with anti-immigrant forces. By Eric K. Ward
The Progressive, April 21, 2009

On Earth Day, the environmental movement in the United States must reject bigotry. It should not join hands with anti-immigrant groups.

These groups are trying to infiltrate the environmental movement and coopt its message.

Under innocuous sounding names such as the America’s Leadership Team for Long Range Population-Immigration-Resource Planning, anti-immigrant organizations, many with ties to political extremists, are running full-page ads in progressive magazines such as The Nation, Mother Jones and Harper’s and in newspapers such as the New York Times.

The goal of these anti-immigrant groups is to lure the environmental community into an America First-style immigration policy.

That won’t solve anything, and it denies the increasing economic and environmental interconnectivity of the planet.

Many recent immigrants have come to the United States because the free-market policies that Washington forced on Latin America have backfired. Subsistence farmers couldn’t compete against U.S. agribusiness, and millions had to abandon the countryside. U.S. manufacturers opened up shop and then just as quickly closed up shop, leaving millions more without jobs.

It’s unfair to blame immigrants who came to the United States because they couldn’t eke out a living at home due to Washington’s policies.

What’s more, climate change is going to cause more people to emigrate from southern countries and from low-lying coastal areas, which will become all but uninhabitable.

These immigrants aren’t the cause of the environmental crisis. They are merely an effect of it, and they should not be blamed.

On Earth Day of all days, the environmental movement can’t let anti-immigrant groups divert us into a narrow ideological cause that reflects neither realism nor inclusiveness.

And environmental organizations cannot afford to remain silent in the face of a few anti-immigrant leaders who attempt to speak on their behalf.

Instead, as environmentalists, on Earth Day and every day, we should uphold a vision of sustainability characterized by cooperation, opportunity and equity.

Will Global Warming Make Future Generations Worse Off?

Will Global Warming Make Future Generations Worse Off? (No, according to realistic analysis). By Indur Goklany
Master Resource, April 20, 2009

Some people argue that we are morally obliged to reduce greenhouse gases aggressively because otherwise the world’s current development path would be unsustainable, and our descendants will be worse off than we are.

But will a warmer world be unsustainable, and leave our descendants worse off?

I have examined these claims out to the year 2200, using the IPCC’s own assumptions regarding future economic development and results generated by the Stern Review on the economics of climate change. Note that both the IPCC and Stern are viewed quite favorably by proponents of drastic GHG reductions (see, e.g., here).

The first figure (see [here]) shows for both developing and industrialized countries, the GDP per capita — an approximate measure of welfare per capita — used in the IPCC’s emissions scenarios in the absence of any climate change in 1990 (the base year used to develop the IPCC’s emission scenarios) and 2100.

For 2100, the figure shows the GDP per capita assumed in each of four representative IPCC scenarios used in the Stern Review. These scenarios are arranged with the warmest (A1FI) scenario on the left and the coolest (B1) on the right. Below each set of bars, the figure indicates the IPCC’s designation for that scenario (A1FI, A2, B1 and B2) and the corresponding projected increase in average global temperature from 1990 to 2085 (which ranges from 2.1–4.0°C).
This figure shows that, per the IPCC, in the absence of climate change, GDP per capita would grow between 11- and 67-fold for developing countries, and between 3- and 8-fold for industrialized countries. [Some people have complained that these GDPs per capita are implausibly high. If that’s the case then the IPCC’s estimates of climate change are also implausibly high, since these GDPs per capita are used to drive the IPCC’s emissions and climate change scenarios.]

Although the IPCC did not provide any estimates for 2200, the Stern Review assumed an annual growth rate of 1.3 percent after 2100 (Stern Review, Box 6.3). In my calculations below I will assume a more modest growth rate. Specifically, I assume that GDP per capita would double between 2100 and 2200, which is equivalent to an annual increase of 0.7 percent. This is also conservative in light of historical experience: GDP per capita quintupled between 1900 and 2000 (per Maddison 2003).

But climate change might reduce future welfare per capita. Stern famously estimated that unmitigated climate change would reduce welfare by an amount equivalent to a reduction in consumption per capita of 5-20 percent “now and forever” if one accounts for market impacts, non-market (that is, health and environmental) impacts, and the risk of catastrophe. He also raised the spectre that under the warmest (A1FI) scenario, the 95th percentile of the welfare losses due to climate change could rise from 7.5 percent in 2100 to 35.2 percent in 2200.

For the sake of argument and extreme caution, I will assume that the loss in welfare due to uncontrolled climate change under the warmest scenario (A1FI) will indeed equal Stern’s 95th percentile estimate of 35.2 percent. I make this assumption despite the fact that one can’t be too skeptical of centuries-long projections based not only on uncertain climate models but equally uncertain socioeconomic and technological trends. To quote from a paper commissioned by the Stern Review: “changes in socioeconomic systems cannot be projected semi-realistically for more than 5–10 years at a time.” [Emphasis added.] Second, the Review itself emphasizes “strongly” that the numbers should not “be taken too literally.” No less important, many notable economists have even disputed the Stern Review’s more modest 5-20% estimate for losses as overblown (e.g., Yale’s William Nordhaus and Hamburg’s Richard Tol). [The IPCC itself uses 5 percent as the upper limit.]

[For details on the methodology used to estimate welfare losses for the other scenarios check out my paper, Discounting the Future, in the latest issue of Regulation magazine. ]

The figure [here] shows the net welfare per capita in 2100 and 2200 after adjusting GDP per capita in the absence of climate change downward to account for welfare losses due to uncontrolled climate change per the Stern Review’s 95th percentile estimate. To put the numbers in this figure into context, in 2006, GDP per capita for industrialized countries was $19,300; the United States, $30,100; and developing countries, $1,500.

Note that net welfare per capita in 2200 is underestimated for each scenario because the GDPs per capita in the absence of climate change were underestimated while welfare losses due to climate change were overestimated.

This figure shows that notwithstanding gross inflation of the adverse impacts of uncontrolled climate change:

· Under each scenario, for both developing and industrialized countries, net welfare increases from 1990 to 2100, and from 2100 to 2200. Thus Nobelist Robert Solow’s (1993) criterion for sustainable development — namely, that current generations should “endow [future generations] with whatever it takes to achieve a standard of living at least as good as our own” — should be easily met. In other words, if the world’s current developmental path is unsustainable, it won’t be because of climate change.

· Well-being in both 2100 and 2200 should, in the aggregate, be highest for the richest-but-warmest (A1FI) scenario and lowest for the poorest (A2) scenario, again regardless of climate change. That is the richest-but-warmest world is to be preferred over poorer-but-cooler worlds. Thus, if humanity could choose between the four IPCC scenarios, for the next several decades it should choose to realize the richest-but-warmest (A1FI) world. In other words, in order to improve net welfare, governments should be striving to push their countries on the path of higher wealth rather than lower carbon. So why are the world’s governments trying to negotiate a deal in Copenhagen later this year that would make their populations poorer and reduce their welfare?

· Net welfare per capita in both developing and industrialized countries should be much higher in 2100 than in 1990, and higher still in 2200, notwithstanding any climate change or which scenario one picks. That is, regardless of the circumstance, future generations, particularly in today’s developing countries, will be better off than current generations. Thus the premise underlying the argument that we are morally obliged to control emissions now to ensure that future generations won’t be worse off isn’t supported by the Stern Review’s own analysis.


In fact, the above raises the question whether it is moral to require today’s poorer generations to spend their scarce resource on anthropogenic GHG-induced global warming — a problem that may or may not be faced by future, far wealthier, and technologically better endowed generations — instead of the more urgent, real problems that plague current generations and will continue to plague future generations as well.

Conservative views: The Uighurs and the 'Torture' Memos

The Uighurs and the 'Torture' Memos, by Jed Babbin
Human Events, Apr 20, 2009

White House lawyers are refusing to accept the findings of an inter-agency committee that the Uighur Chinese Muslims held at Guantanamo Bay are too dangerous to release inside the U.S., according to Pentagon sources familiar with the action.

This action -- coupled with the release of previously top secret legal opinions on harsh interrogation methods -- demonstrates the Obama administration’s willingness to ignore reality.

President Obama’s decision to close the terrorist detention facility (known as “Gitmo” to the military) was made despite Bush administration determinations that there were no realistic alternatives to it.

Gitmo holds three classes of terrorist detainees: first, those that are held for prosecution of terrorist acts such as Khalid Sheik Muhammed; second, those who cannot be prosecuted and will be released or transferred to another country for trial or incarceration; and third, those who cannot be prosecuted (because the information against them is intelligence information inadmissible in court) but who pose such a danger that they cannot be released.

The last category encompasses a large number of the Gitmo detainees. The Supreme Court has held -- in the Hamdan decision -- that “administrative detention” is permissible in time of war.

After Obama’s promise to close Gitmo, the White House ordered an inter-agency review of the status of all the detainees, apparently believing that many of those held would be quickly determined releasable. The committee -- comprised of all the national security agencies -- was tasked to start with what the Obama administration believed to be the easiest case: that of the seventeen Uighurs, Chinese Muslims who were captured at an al-Queda training camp.

The Uighurs sued for release under the Supreme Court’s Boumediene decision, which gave Gitmo prisoners the Constitutional right to habeas corpus. Last October, a federal court ordered their release into the United States, but an appeals court overturned the decision, saying the right to make that determination rested entirely with the president. Since then, Attorney General Eric Holder has said that some of the Gitmo inmates may be released into the United States.

That, apparently, is what the White House plans for the Uighurs and others.

Reviewing the Uighurs detention, the inter-agency panel found that they weren’t the ignorant, innocent goatherds the White House believed them to be. The committee determined they were too dangerous to release because they were members of the ETIM terrorist group, the “East Turkistan Islamic Movement,” and because their presence at the al-Queda training camp was no accident. There is now no ETIM terrorist cell in the United States: there will be one if these Uighurs are released into the United States.

According to Defense Department sources, the White House legal office has told the inter-agency review group to re-do their findings to come up with the opposite answer.

The White House already came up with the opposite answer in declassifying and releasing the so-called “torture memos,” the previously top-secret legal opinions which found, under the law as it was written at the time, that interrogation techniques which ranged from the mildest to the toughest -- from open-fingered face slapping to waterboarding -- were permitted under the law.

The legal opinions were correct. Under the law in 2002, threats and mild physical abuse -- which were not likely to cause lasting psychological harm -- were legal. Waterboarding, the harshest technique which triggers the autonomic reaction of the sense of drowning, was deemed legal because of extensive experience in training pilots and special operations troops who didn’t experience lasting harm.

But now, having released the details of the techniques, the Obama administration -- through Director of National Intelligence Dennis Blair -- has said that none of these techniques will be used again. Coupled with the publication of the Army’s guide to interrogation of prisoners, al-Queda and all other terrorists now know what to expect if captured by Americans. And, as they have in the past, they can use this knowledge to train to resist the techniques we can use.

White House chief of staff Rahm Emanuel excused the release of the memos because, he said Sunday, that information about the techniques revealed was already public and that they have been banned. Which begs the question of how successful interrogations can ever again be performed.

The Obama administration’s action has given terrorists what may be a decisive advantage. If a detainee knows what to expect, his confidence cannot be shaken. He cannot be forced out of his comfort zone into doubt. And he can withhold information that may be critical to saving American lives.

President Obama and Attorney General Holder have embarked on a course that denies our intelligence agencies and military forces the ability to gather intelligence needed to interdict and prevent future terrorist attacks. Releasing the Uighurs into the United States as free men creates a specific terrorist threat within our borders.

The administration is now under pressure to constrain the NSA’s terrorist surveillance program -- what the media and liberal pressure groups insist on calling “warrentless wiretapping” -- because it allegedly gathered more information from more sources than it was supposed to do in the last few months.

The heated debate over the Foreign Intelligence Surveillance Act -- the law under which that program functions -- resulted in a new law that provides specific and effective protections of American civil liberties that are Constitutionally sufficient. If President Obama continues his current course, he will go farther in limiting how this program functions.

In his dissent in the Boumediene case, Justice Scalia said that it gave the power to detain enemy combatants to the branch of government that had the least expertise in national security, the courts. He added that the decision would probably cost American lives.Scalia was correct on the latter point, but the advent of the Obama administration makes the former at least questionable. How many more advantages is President Obama willing to grant our enemies?

Mr. Babbin is the editor of Human Events and HumanEvents.com. He served as a deputy undersecretary of defense in President George H.W. Bush's administration. He is the author of "In the Words of our Enemies"(Regnery,2007) and (with Edward Timperlake) of "Showdown: Why China Wants War with the United States" (Regnery, 2006) and "Inside the Asylum: Why the UN and Old Europe are Worse than You Think" (Regnery, 2004). E-mail him at jbabbin@eaglepub.com.