rnk35 asked me overnight what my opinion was on D.C. vs Heller. Good timing; if I hadn't been asked an easy one, I might have been too lazy to write anything tonight. For those of you who don't know, that's the Supreme Court case this last week that (in all too common fashion these days) completely overturned the previous Supreme Court interpretation of the 2nd ("Right to Bear Arms") Amendment to the US Constitution while pretending to be completely compatible with it. (See the always-brilliant Dahlia Lithwick, "Was It Ever Miller Time?," Slate.com, 6/26/08.) The relevant back story, as documented in almost every worthwhile history on the subject, is that during the writing of the Bill of Rights they engaged in that classic bit of parliamentary hand-waving that you sometimes have to do to get a majority to pass anything: write an ambiguous piece of legislation that both sides can think means what they want it to mean. In this case, it was an argument over whether the US would grant unlimited gun ownership rights to every individual citizen, or just to the various state militias, what we now call the National Guard. Half the Founding Fathers said they would only approve it if it restricted gun ownership to the militias; half threatened to veto it if it restricted gun ownership at all; the resulting legislative compromise muddled the issue to this very day.

So, what's my opinion? I honestly don't care. No, let me make this really clear. Not only do I not care, I think less of you if you care a whole lot about the 2nd Amendment. This has got to be the most mind-bogglingly stupid thing we've ever argued about as a nation.

First of all, I don't care what you think the US Constitution says, and I don't care what laws you pass: if you think you can disarm the American people, you're an idiot. The closest thing I can come up with to a plausible estimate of how many firearms there are in the US is about 192 million, including about 65 million pistols. (Jeremy Travis, "Guns in America," National Institute of Justice, 1997.) I cheerfully invite you to imagine any way, in any way at all consistent with the 4th Amendment, that you could forcibly collect all 200 million or so guns there already are in here. And the government that spends billions of dollars a year to keep however many hundreds of tons of drugs from entering the country and fails, the government that devotes thousands of agents to trying to prevent umpty thousand illegal immigrants per year from entering the country and fails, isn't going to have any better luck stopping gun runners from importing and illegally selling as many handguns per year as the American people want. Period. So, the American people are armed. And they always will be armed. Get over it.

Secondly, if you think that any law, whether pro-gun or anti-gun, has ever had any effect on crime rates in America, you're at best ill-informed. Study after study after study has shown, to the contrary, that if you compare two jurisdictions of equivalent demographics, one with strict gun control laws and one with no gun control laws (or even, as is true in a couple of places, mandatory gun-ownership laws), there is no net difference. None.

And you know what that makes this whole debate? An absolute and total waste of everybody's time. We donate tens of millions of dollars a year to pro-gun and anti-gun lobbying groups, who spend that money on TV ads, who use that money to influence legislators if they can, and who spend millions of dollars every couple of years on stupid pointless Supreme Court cases like D.C. vs Heller, and for what? You would literally not notice the difference, no matter which side won. So no, I really don't care a whole heck of a lot which way the Supreme Court ruled on individual gun ownership. I have a very faint prejudice against banning anything, so to the faint extent I do care, I'm happy with it. But you know what? They could have ruled the other way and it wouldn't have bothered me one tiny bit. No, again, I'm understating the case: they could have ruled the other way and it still would have qualified, in my opinion, as the least important thing the Supreme Court did all year. I just wish we could bloody well settle the issue, get all the dim-witted or narrow-minded "single issue voters" who only care how a politician votes on guns to care about anything that would actually affect the country instead, and that both sides would just shut the heck up about the stupid guns.

You know that stuff I wrote about how anything resembling a functioning democracy, anything resembling a free country, needs a fair and impartial independent meritocratic tenured judicial system, needs citizens to give that system the benefit of the doubt? I had my own belief in that rather substantially challenged by a news story on Monday: Mark Sherman, "Supreme Court says states can demand photo ID for voting," Associated Press, 4/28/08. Given that even the 6-judge majority wasn't able to find a single case of documented fraud in all of Indiana history that would have been prevented by this law? Given that even the 6-judge majority admitted that the Republican majority in the Indiana state legislature passed this law for partisan advantage, to make it harder for Democrats to win, that their allegedly neutral justification for this law was just a fig leaf? Given the largely hostile tone they adopted towards this law back when this case was argued in front of them? This hit me hard.

When I got into the story, I was expecting "Bush v Gore II: Bush Harder," yet another 5:4 vote by which the Republican judges sided with the Republicans. And I could already feel myself getting pinched in a tight place, pinched by my own insistence, a while back, that there are still enough safeguards in place to prevent dishonest and/or ignorant and/or partisan hacks from getting a majority on any appellate court bench in America. But then I went over to SCOTUSblog, which unsurprisingly has some excellent coverage of this, and saw that maybe, just maybe, my faith in the universe and in the robustness of American democracy was not entirely misplaced. Because the actual vote was 6-3, the actual official ruling has some interesting implications, and I think maybe there's a coincidence that even the analysts at SCOTUSblog haven't noticed. First, some links to the SCOTUSblog.com coverage, all dated 4/28/08:

• Lyle Denniston, "Court rejects voter ID challenge; no new grants," their main news story,
  
• Ben Winograd, "From Election Law Blog: Initial Thoughts on the Supreme Court’s Decision in Crawford," by a lawyer who filed an amicus brief against the Indiana voter ID law, and
  
• Jason Harrow, "More on Crawford: The Court Steps Back From Electoral Refereeing," by a lawyer who filed an amicus brief in favor of the Indiana voter ID law.

Because, as a few of the news stories and editorials I've seen elsewhere have also picked up, this is actually a much more complicated ruling than usual. Unless they're unanimous, Supreme Court rulings are always divided into two sections: the ruling majority opinion, and the complaining losers' dissents. But what we have in this case is three entirely conflicting opinions, each with three votes. Three judges, unsurprisingly led by Scalia (who never saw an attack on any minority other than Catholics that he didn't like), think that anywhere that Republicans are the majority, then as long as Republicans can come up with even a fig leaf of an excuse to disenfranchise Democrats, that's their right as the (permanent) majority; suck it, losers. Three judges, led by David Souter, flatly oppose disenfranchising any voters without first meeting a very high standard of proof. And three judges, including the Chief Justice, basically voted to throw the case out of the Supreme Court ... for now. Ordinarily, a 3:3:3 split means the Court doesn't hand down its ruling, yet, but somehow, behind the scenes, somebody managed to glue together a 6 vote majority by persuading the latter group that since they agreed with the hardcore Republican group about the merits of thiss particular case, that constituted a majority.

And if you look at the official ruling, its defense of this law is pretty tepid. Because what's really going on here, the side that really won (of the three sides), is the side that's on the winning side of a very long argument that's been going on these last couple of years about an entirely unrelated point of constitutional law: namely, the role of the Supreme Court in what are called facial challenges. A facial challenge is one in which someone argues that even though they can't show any one person who's been hurt yet by a law or other government action, and can't even show one actual plaintiff who will be hurt by it, they can still challenge the constitutionality of the law in front of the Supreme Court by arguing that the law is so blatantly awful on the face of it (the "face" in "facial challenge") that it must be struck down, preemptively, to protect the U.S. Constitution. What's going on here, pretty much all of the analysts from both sides agree, is that this is just the latest in a series of rulings, this year, in which the Supreme Court is sending a clear message: they want to get completely out of the business of hearing facial challenges. The three-vote ruling majority (by virtue of the 3-vote non-binding concurrence) as much as says, in the ruling, show us even one voter who's been improperly disenfranchised by this law, bring us a case in which that person has first been harmed by a voter ID law, then proven in a lower court that they've been harmed, and then that person will have the legal standing to challenge the constitutionality of these laws. Until then? They're saying "get out of our ... well, get out of our face," not to make too awful a pun out of it, I hope.

Which brings me to an interesting observation of my own. Note the timing of this ruling: one week, to the day, before the Indiana primary. One week from today, there will be Indiana voters who will have to vote by provisional ballot, then at their own expense travel to the nearest county seat sometime in the next 1 to 10 days and file an affidavit confirming that it was them who cast their ballot. (What, exactly, this proves, escapes me; anybody who impersonates a voter once will quite cheerfully do it twice, won't they? But that, apparently, is irrelevant to this one case, to Crawford v Marion County, IN.) And since there's an existing case, brought up in the footnotes of Crawford, that reminds us that even a $1.50 non-discriminatory poll tax was struck down as an improper burden on the right to vote, if it takes them more than 2/3rds of a gallon of gas to drive the round-trip, then they'll have standing to challenge this law. And isn't it an amazing coincidence that they issued this ruling in time for this new, non-facial challenge to be filed with respect to an election in which the Republicans can not actually benefit from any disenfranchisement that happens? Bet your bottom dollar that the Indiana Civil Liberties Union will be on the ground, next Tuesday, looking for that one victimized legitimate voter. And if nobody changes their votes between this case and that case, then the voter ID laws will be struck down, permanently, by the same bipartisan 6-3 majority, while allowing the Court to make its little political point about how much it hates having to decide facial challenges.

The Wall Street Journal editorial page beat all the others to the punch, and finally came up with the real, legitimate, compelling argument why the Senate should not confirm Harriet Miers' appointment to the US Supreme Court. Read this: Randy Barnett, "Cronyism: Alexander Hamilton wouldn't approve of Harriet Miers," Wall Street Journal, October 4th, 2005. (Read it soon-ish, too, because stuff on the WSJ's free OpinionJournal.com website doesn't always stick around for long.) OK, I'll give you the meat of it, which more or less starts with this quote from Alexander Hamilton, the primary author of the US Constitution. (You want "original intent of the framers"? Get more "original intent" than this, I dare you to try.)

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure." Alexander Hamilton, The Federalist Papers, #76.

The entire legitimacy of the US government depends on a balancing act. Ever since the compromise was hammered out in 1803, one of the primary defenses of the Republic has been the belief, illusionary or not, that there is a branch of the federal government that is meritocratic rather than populist or insider-appointed, one where virtually all sides to any ongoing political debates get a veto over each others' nominees, that can be counted on to be an impartial referee to our hardest legal and philosophical problems.

Harriet Miers is where she is now, let alone nominated for the US Supreme Court, not because of her qualifications but because the President trusts her, 100%. The only thing that's wrong with that is that the reason he trusts her 100% is that she has been his family's personal lawyer since the President was a child. In that time, she has shown absolute, unwavering personal loyalty to the Bush family, including the breathtaking remark she once made that George W. Bush is the smartest man she's ever met.

Now, ask yourself this rhetorical question: how many times, already, in the last 5 years, has the fate of the Bush Administration hung on a Supreme Court ruling? Bush v. Gore, the habeus corpus petitions of the shoe bomber and the detainees at Guantanamo, and the long-running Freedom of Information Act lawsuit over the records of the Vice President's energy-policy task force all come readily to mind. When the rest of us take a case to the Supreme Court, our lawyer only gets to file paperwork and then get one brief session of oral arguments. How much easier would it be, personally, for the President, if his personal attorney got to be there 24x7, able to lobby the other 8 justices personally on the Presiden't behalf all day long, having access to their law clerks, and present at all deliberations? The last fig leaf of impartiality would be gone.

(Personally, I don't think she's even the real candidate. I think she's a straw man, set up there to be knocked down, so that Alberto Gonzales or whoever else gets nominated next looks great by comparison. I don't think she'll even make it out of committee, and wouldn't bet money either way on her even getting an actual formal Senate Judiciary Committee hearing. I about half expect the nomination to be withdrawn.)

A couple of months ago, there was an interesting 3-way dispute between the Army, a grieving mother, and one of the Internet email services, I forget if it was AOL or Yahoo or whatever. What it basically came down to was that her son had died in Iraq. The family wanted to be able to read his email, because it was all that they had left of him. As far as the online service was concerned, their terms of service did not allow this; without the permission of the deceased, they could not give anybody access to his private files. The family tried to claim that as his next of kin, they were now the legal owners of the files, and tried to drag the Army into it (if I remember correctly, which I might not) and the courts to try to make the online service bend.

So I've been wondering since then, off and on, why they didn't just ask the deceased? We know that there are well-documented spells and/or technologies for communicating with the dead. There are probably dozens of them, judging by the the long list of ones that we know about: the Curwen Effect, Re-Animation, the Ghoul effect, and the documented ability of many Necronomicon-trained sorcerors to possess the grave worms that have eaten their body and use them to reanimate the skin, just to name four that I can think of right off the top of my head. Sure, those techniques are all very much Forbidden Lore. And yes, the US is signatory to the International Occult Non-Proliferation Treaty; heck, President Coolidge authored the thing. But while US law forbids the use of occult lore derived from pre-human sources by unlicensed individuals, and while the treaty forbids its use by the US military as a weapon of war, as far as I know there's no reason why some licensed thaumaturge inside the US army couldn't have asked the late soldier if his mother could read his email.

Except, of course, that there's a perfectly good 1947 Supreme Court ruling that suggests that the online service wouldn't have to honor that answer: John Doe aka "Henry J. Ford" versus the Estate of Henry J. Ford, or as it's commonly known, "Ford" v Ford. When the reanimated corpse of Henry Ford showed up to contest the reading of the will, the estate counter-sued, asking the probate court to rule that Ford's death certificate was final. "Ford" argued that the law permits withdrawing death certificates in the event that the subject turned out not to be dead after all, such as when the attending physician mistakenly declares the subject legally dead and then they wake up. The probate court demurred, saying it didn't have authority to define death, so the case got kicked all the way up to the US Supreme Court.

By the time of Ford's death in 1947, worries about forbidden occult lore were really big news. (Of course, all the while Project Paperclip was still sneaking Nazi SS occult scientists into the US and providing them with new identities or white-washing their records inside US-occupied Germany. I don't care how badly the US needed to know what occult capabilities the Soviet Union might theoretically have had, the ends don't justify the means. Those guys inculcated into the US military thaumaturgical culture a tolerance for morally disgusting research on involuntary human subjects that lasted well into the 1960s. Even just talking about Sydney Gottlieb's MK-ULTRA project, the enemy within was more dangerous to Americans on American soil than the entire Communist bloc was. Is it fair to blame the CIA's coddling of Nazi occultists for MK-ULTRA? I think so. But anyway, I digress.) Because fears of foreign occult attacks and sneaky subversive occult subcultures was riding high (and, admittedly, because it was a fascinating legal topic I think), the US Supreme Court certified the case.

Anyway, the Supreme Court wisely turned down "Ford's" contention that a human being isn't really legally dead until both soul and memory are irretrievable, because it would require probate courts to prove a negative before even the simplest will could be executed. In the end, they left it to the state and local courts to establish the facts of death "in accordance with the commonly accepted usage of the term" (Justice Frankfurter, writing for the majority). Of course, that definition was so vague that it's lead to a huge number of subsequent court cases, challenging "re-animation" by every means from mouth-to-mouth to recovery from a coma after artificial life support to several occult technologies. The way the case law looks to me, by and large, if a technology derives from pre-human magical technology in any way instead of from post-Enlightenment technology, if there's even the faintest whiff of the Necronomicon or Cultes de Ghoules about how the person came to be disputing their own time of death, the courts have ruled against the deceased.

So even had some military or law enforcement spell caster been willing to step in to ask the dead soldier if his mom could read his email, I think the case law says that the online service provider wouldn't have been bound to accept that opinion. (Of course, for all I know the real reason that no licensed thaumaturge stepped in is that some of our so-called allies in the War on Terror, like Saudi Arabia, are even twitchier than we are about forbidden lore, so the US military is going out of their way not to remind our Arab partners that we maintain access to that technology.) Of course, I'm just a guy who follows the Supreme Court cases as a hobby, not an actual lawyer, so what do I know? In the meantime, it turned out to be a moot point; the family eventually did what everybody does when they need to retrieve information that a dead person password-locked, including Cantor-Fitzgerald after 9/11: they got together a bunch of friends and family of the deceased and kept making informed guesses until they cracked the password, safe in the knowledge that under the same "Ford" v Ford precedent, nobody was going to be able to come back from the grave to sue them for invasion of privacy.

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P.S. Unless I lose count, this is the seventh of my faux essays from an alternate universe where H.P. Lovecraft's stories were all part of the true history of the 1920s and the 1930s, and as a species the human race learned to deal with them as just one more thing that could go wrong, just like all of the other threats to human existence that we know of in the real world. You can use the "cthulhu" tag to to find the earlier ones, including my out-of-character explanations. Feel free to "play along" in character in the comments to any of these!

The second half of the thing on suicide bombing tactics will have to wait until tomorrow, because in the last 48 hours, I think I've slept less than five, and fitfully at that. It's not primarily the heat that's keeping me awake, I've slept just fine with it somewhat warmer than this. It's the noise. To keep the temperature down in here, I'm running both window air conditioners full blast, plus a couple of fans. That's in a tiny little 3 room apartment. The net effect is that it is substantially louder in here than it's been in any computer room I've ever worked in. As in, I've been wearing 28db earplugs to bed ... and the noise that makes it through is still louder than most normal conversation. We're supposed to get a break in the weather this afternoon, so presumably tomorrow morning I'll be somewhat less scatter-brained. Until then, my apologies.

Just so that this isn't a totally content-free post, how many of you were waiting for me to comment on Judge John Roberts? Well, you can probably stop waiting. I don't see any reason to bother. The time to worry about who Bush would nominate for the Supreme Court was last November, not now. The whole country knew, going into the last election, that at least one and probably two Supreme Court justices were going to retire between 2004 and 2008. They also knew that Bush's party was going to have a majority in the Senate. That means that whether they agreed with who Bush was going to pick or they didn't agree, a solid majority chose to accept whoever Bush wanted to name to the Supreme Court in order to not have to be governed by John Kerry during the War on Terror. If you don't like that fact, the time to have done something about it was last October and November. If you did and it wasn't enough, you'll just have to live with it. If you didn't, you're not entitled to complain now. If you voted for or campaigned for Bush last time, then no matter what your reason, you either did it knowing what kind of Supreme Court justices his administration was going to nominate in which case you're not entitled to complain because you chose this, or you're an imbecile, in which case who cares what you think?

If I cared, I'd be more concerned about his membership in the Federalist Society than about any of the few court opinions he wrote as an appeals court judge or any of the mind numbingly evil legal opinions he authored for the Bush administration. But, it's water under the bridge now. He's not scary enough to successfully Bork, so he's probably in. Moot point. Go back to beating on the Plame Affair, like everybody else. That Bush, who promised never to flip-flop, rather blatantly has flip-flopped is current news. The lengths to which Rove was willing to endanger this country in order to silence critics of the Iraq War are current news. It's not too late to care about those, and something may actually be able to be done about it.

Of course I was disappointed in yesterday's 6-3 decision of the US Supreme Court (in 03-1454 Gonzalez v Raich et al) that the federal Controlled Substances Act over-rules California's Compassionate (Marijuana) Use Act of 1996. What's more, I never ever ever again in my life want to hear Justice Scalia rant about "activist judges" cherry-picking the facts of a case to reach a pre-ordained conclusion, because here (just as in my other two least favorite decisions in my lifetime, Oregon v Smith and Bush v Gore) that is exactly what he and the other 5 judges in the majority have done. Their ruling in this case is completely inconsistent with the facts of the case, with each of those judge's own history of rulings, and with any plain-language reading of the US Constitution. But that wasn't what made me thump my head against the desk in hopes of blotting it all out. Here's the first thing that did me in:

Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, and concerns about diversion into illicit channels, the Court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the [Controlled Substances Act].

What makes that incredibly, insanely, mind bogglingly dishonest is the fact that almost every single arrest so far in these cases has involved busting growers. That's right. Six justices of the US Supreme Court sat there and said, with their bare faces hanging out, that DEA agents who are looking right at the plants, still in their hydroponic containers or in the ground, can't tell where the plants are grown. ("Umm, officer? Could it be that they were grown right in front of you?") And in fact, they admit that in the opinion itself, under the summary of the history of the facts of the case:

Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as “John Does,” to provide her with locally grown marijuana at no charge. ... On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson’s home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants.

But that just softened me up for the real blow. I was watching the evening news on the local NBC affiliate, and one of the quotes they ran with this story was of some politician saying, "Marijuana is no more a medicine than crack or heroin." And that, my friends, is when I started beating my head against the desk. Why? Because both cocaine and heroin are legal to prescribe under certain circumstances. If you don't know that, you're not competent to have an opinion on this case. Sit down and shut up.

And of course, it only gets worse. I didn't get around to starting reading the whole full text of the decision (linked above) until right before I was going to start this journal entry, and I admit I only got about halfway through it. But in the summary, they address the question that most fascinated me. The whole constitutionality of the Controlled Substances Act relates to the fact that by definition, prescription drugs are compact and easy to transport across state lines, so the country needs uniform control laws. For those of you who didn't pay attention in class, or who aren't from the US, they had to argue it that way all the way back at the beginning, because the US Constitution specifically says that Congress can't get involved in criminal law cases unless there is an inter-state component; otherwise, it's up to the local states. So given that the statute only permits people to grow their own marijuana for medical reasons, or to obtain it only from local growers, where's the interstate commerce authority here?

The ruling pins the whole justification for their decision on a 1942 Supreme Court decision in a food rationing case, Wickard v Filburn. I'd never heard of it. But when I understood the reasoning in Wickard v Filburn, I broke out in maniacal laughter. In Wickard, the Court was asked to rule on whether or not some farmer was violating the food rationing laws by keeping food that he grew for himself. The court ruled that every purchase in a market has effects on the whole national and global market, so if a product is sold in more than one state, every use or purchase has interstate effects. How? By reducing demand. If he grows and eats his own wheat, he's reducing the demand for wheat. Do you see the funny here? Justice Stevens (for the majority) is saying that Congress has federal authority to stop them because by growing their own marijuana for free or consuming locally grown marijuana they were given for free, Angel Raich and Diane Monson are reducing the nation-wide market for marijuana. And Lord Knows, We Wouldn't Want That Now, Would We?