Senator Ken Cuccinelli’s Analysis of the U.S. Supremes Gun Rights Decision

Bearing Drift (here) has already posted this email from Senator Ken Cuccinelli, but I think it is worth giving as many people as possible a chance to read it.  If you check Senator Ken Cuccinelli website, you will see he is well qualified to offer an opinion (see here).

 

Dear Fellow Republican: 

I told you I’d get you my review of the Heller case the day after it came out, but the opinion was 157 pages long, so it took a bit longer than I thought! 

For those who love history, as I do, and are committed to the Constitution (including the 2nd Amendment), as I am, Justice Scalia’s majority opinion in the Heller case is a must-read.  You do not have to be a lawyer to appreciate most of what he has to say and how he says it.  There is much history to be learned in his opinion, and of course, I appreciate the conclusion.  First, I will talk about the opinion, then I will address political observations about where this leaves us. 

Heller

First, a bit about Justice Scalia.  I know that lots of folks are skeptical of Harvard Law School grads (like Gov. Kaine), but Justice Scalia is an HLS grad.  He is also considered one of the most conservative Justices on the Supreme Court and the main proponent of a textualist or strict constructionist method for interpreting the Constitution.  In his opinions, he aims to look at how the Founders understood the text of the Constitution when it was written, hence all of the history in the opinion.  His is an approach that I appreciate and agree with, whatever it may mean to particular outcomes in particular cases. 

Second, because the decision is 5-4, with no concurring opinions, there is no confusion as to the Court’s holding.  Sometimes in these really controversial cases you end up with a plurality opinion, a concurring opinion, and dissents.  This can create confusion as to which opinion controls.  That will not be the case here.  But, because the Justices were so closely divided, it is unclear how future challenges to gun laws will be decided.  More on this point in my political commentary below 

Third, the opinion is narrow.  Many Supreme Court observers have noted that under the leadership of Chief Justice Roberts, the Supreme Court has taken to issuing more narrow opinions.  That is certainly the case with Heller.  They only decide the question that Heller presented. Therefore, the concise holding in the case (found on p. 64 of the slip opinion) is “the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”  

Fourth, the opinion does leave open some room for gun control, such as limiting concealed carry or the carrying of firearms in schools or government buildings.  But, I believe that the Court’s discussion of these limits is dicta.  The scope of Constitutional limitations on Second Amendment rights will have to be determined by future cases. Justice Scalia says as much on p. 63 of the slip opinion, “Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible.  But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynold v. United States, 98 U.S. 145 (1879), our first in-depth Free Exercise Clause case, left that area of law in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.”  So, we don’t know how the Court would rule on many gun control laws, but it seems that we shall see in the coming years.  I also address this in my political commentary below. 

Fifth, not only does the opinion recognize an individual right in the Second Amendment, but it finds that this right pre-existed the Constitution.  I think that this is significant.  In fact, Justice Scalia quotes Blackstone for the proposition that the “right of resistance and self preservation” is a natural right.  For those that read the opinion, you’ll find this on pages 19 and 20 of the slip opinion.  The fact that our nation was founded on natural law principles is often forgotten (or ignored) and the significance of this fact is (or should be) enormous.

Think of the critical sentence of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  Each of the underlined portions demonstrates the use of a natural law rationale in the founding of our nation.  The natural law is where the rights in the 1st, 2nd, and 4th Amendments to the Constitution come from (not to exclude others, but these are the ones mentioned by Scalia in Heller).  That’s why the 2nd Amendment language does not refer to establishing a right, it only says that the right to bear arms “shall not be infringed.”  This structure is used because the founding fathers knew that the right to keep and bear arms already existed as a matter of natural law and as a right of Englishmen as well.

In my humble opinion, there should be a greater emphasis on this source of law in rulings on Constitutional matters. 

Sixth, as to the types of weapons that can be restricted under the Second Amendment, p. 53 of the slip opinion offers the best insight into the standard that the Court would use in evaluating specific weapons restrictions.  Justice Scalia writes, “We therefore read Miller (the last 2nd Amendment case, from 1939, it was about sawed-off shotguns) to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” 

In conclusion, I believe that the opinion is a solid victory.  There will clearly be future cases that will flesh out the specifics of the Second Amendment, and this leads to my political comments. 

The Impact of Heller

First and foremost, the gunnies are now in the boat with the pro-lifers when it comes to judges.  And that will not change for the foreseeable future. 

This opinion was closer than it should have been – 5 to 4.  And the fleshing out of the 2nd Amendment right is going to happen in the coming decades as cases come in following Heller.  When it’s this close, the importance of judges in U.S. Senate elections just became a top priority for another bloc of issue-voters, 2nd Amendment supporters (and foes). 

2nd Amendment supporters – like pro-lifers – only need one thing from prospective judges, namely, a commitment to interpret the Constitution as it was written (i.e., giving it the meaning at the time it was drafted).  We don’t need them to commit to “our” outcomes, unlike the other side. 

The liberals have been making headway in the Courts when they could not do so among the American people via activist judges who re-interpret the Constitution and give it whatever social engineering conclusion they want (e.g., Roe v. Wade).  This is where phrases like “evolving notions of liberty” come from, i.e., a judge declares an “evolution” in a constitutional right and then goes on to redefine the right.  If that’s what judges are going to do, why bother having a written constitution? 

This is going to introduce whole new areas of inquiry for some candidates.  For example, say you have a purportedly pro-2nd Amendment, pro-choice Democrat running for the U.S. Senate.  How does he answer questions about how he will select judges?  Does he say: “I will only pick judges that will uphold Heller and Roe?”  I’ve got news for you, the logic that leads a judge to support Roe would lead that same judge to oppose Heller. assuming such judge stays consistent.  If a judge is going to stay consistent on these issues, i.e., give the Constitution its meaning when drafted, they are going to oppose Roe and support Heller.  So, what does our Dem Senate candidate do?  Commit to picking judges that will answer his specific questions about upholding Heller and Roe the way that Senator wants?  Voters who buy that angle are buying snake oil.  We’ll start to see how some of these folks handle this line of questioning pretty quickly. 

Second, I have been asked if the Heller decision has much impact on Virginia.  The answer is ‘no,’ not yet.  It is the follow-on cases to Heller that may start to impact us in Virginia, though even then, I doubt we’ll see any impact for a long, long time, and thinks would have to go badly wrong for it to change anything under Virginia law.  Any impact in Virginia will likely only come from the impact on Federal laws, most of which look quite safe under Heller.

Third, it is simply fortifying to know that once in a while the Court can get it right.  They messed up the Guantanimo Bay ruling so badly earlier this month it was downright mind boggling (I may come back to this case in a future issue).  Again, I was disappointed that this ruling was only 5-4.  Things are very precarious on this Court and the U.S. Senate is only growing in importance (so be sure you’re helping Jim Gilmore!). 

All of the foregoing being said, the Heller decision is a solid victory.  And we should celebrate, so..

Heller Party!hh 

To celebrate the recognition that the 2nd Amendment does indeed protect the right of each of us – individually – to keep and bear our arms, we’re going to have a Heller-night party in the Richmond area on Saturday, July 19th.  Please set this late-afternoon/evening aside on your calendar.  We’ll get more details to you soon. 

We’ll talk about the ruling itself and its impact.  You’ll also have the chance to spend time with other 2nd Amendment supporters to talk about ‘what’s next.’  Please plan to join us! 

Depending on what kind of sponsorship we can get, this event will cost nothing or nearly nothing (e.g., $5).  If you are willing to sponsor this celebration, please email us at KC4AG@Cuccinelli.com or call us at 703-766-0635.  Also, if you want to come, please RSVP to Mick@Cuccinelli.com (the new campaign manager), and please let us know if you’re willing to volunteer at the event.

We’ll see you there!

If you are interested in joining the celebration, please contact Senator Ken Cuccinelli directly.  

For those of you who like reading legal opinions, here is a link to the District of Columbia v. Heller.

BETTER LATE THAN NEVER

I never cease to be amazed by what people will believe.  So it is with the arguments some people make against energy development.  One of the strangest arguments I have heard against drilling for oil is that we will not see any of the oil from new oil wells for 6 – 10 years.  I do not understand how people can make such an argument with a straight face.  Even if this generation will not enjoy the fruit of our work, that does not mean we should not think of the next.   These very same people claim to be protecting the environment.  Are we protecting the environment only for the present generations? 

I was particularly amazed by these statements by a local blogger.

It’s also quite interesting to note that the Saudis say that the price is being driven up by selfish speculators and a weak US dollar. This view is opposed by the Bush administration, and voiced by Energy Secretary Samuel Bodman, who maintain that it’s supply and demand fundamentals. Which gets back to my previous point, that stations are not running dry, nor will drilling domestically help Americans.

Why don’t those calling for more drilling speak more about conservation that would actually help the situation today? My guess, it’s a transparent pander to the oil addicted. Wouldn’t it much more wise to look for a sustainable, long-term solution?  (from here)

Conservation is an instant soluton?  :roll:  What “solution” that would actually work has not been take to court and blocked?

Let’s take a moment to address the hoopla on speculation.  Speculation is a normal market function, but because of low margin requirements, some blame prices rises on speculators (see here and here).  While margins may indeed be too low, the market is self correcting (see here).  Even if low margin requirement allow speculators to temporarily drive price up, the bubble must eventually burst.

Consider what speculators do.   Speculators look into the future and anticipate market demand and supply.  If speculators guess right, they make money.  If they guess wrong, they lose money.  When you buy oil on the margin, and the price drops, you have to make up the difference between the price you bought the oil at and the price you sell it at.  Only an idiot buys oil if they think the price will drop before they can sell it.

Some suggest that speculators are tying up lots of oil.  Really?  Just because speculators buy up oil does not mean producers stop producing.  In fact, higher prices encourage producers to produce (and consumers to conserve).  Higher prices also encourage so-called hoarders to sell before prices drop. 

Unfortunately — and fortunately, there are real reasons to anticipate shortages (see here for example). 

  • Our government has discouraged efforts to produce and refine oil domestically, reducing supply.
  • Demand from Asian nations is expected to continue increasing at a rapid clip.

Oil pollution is a real problem, but we cannot continue to pretend we do not need oil.  Instead, we must make use of new, cleaner drilling technologies. If we let the pretense we do not need oil continue indefinitely, our economy will suffer, and people will go hungry.  The mere fact that we will not experience immediate gratification is just a silly excuse.  Consider the following quote and then the cartoons below (from here).

The best time to plant a tree was twenty years ago. The second best time is today. — Chinese Proverb

Other Views

The Shad Plank tells us about flaring tempers in Congress (here). 

SWAC Girl records similar doings in the General Assembly (here).

Two Conservatives addresses another perverse Democratic Party argument against offshore oil drilling (here).

Delmarva Dealing quotes the no oil today Democrats (here).

Cobalt6 blames high oil prices on speculation (here).

And here is the post at Sun Versus Wind that inspired this one.

 

WHAT DID GOD INTEND?

cross.pngWhen was the Book of Job written?  All we know for certain is that it is ancient, written in a land and during a time when people thought differently about God.  The Book of Job is at least several thousand years ago.  Moses may have written it (here).  Or it may have been written latter during the reign of King Solomon (see here).

The story begins when the angels present themselves before the Lord God.  With the angels comes Satan.  God asks Satan if he knows of His servant Job.  God praises Job, but Satan complains that Job is His good servant only because the Lord has treated him so well.  To prove otherwise, God delivers all that is Job’s into Satan’s hands. 

Satan then proceeds to take from Job his wealth, his servants, and his children.  Left destitute, Job does something surprising.  He falls to his knees and worships God.   

When Job remains loyal to the Lord, the scene repeats itself.  Satan and the angels again present themselves before the Lord God.  God again praises Job.  And Satan complains.

“Skin for skin!” Satan replied. “A man will give all he has for his own life.  But now stretch out your hand and strike his flesh and bones, and he will surely curse you to your face.”  (from here)

In response, the Lord delivers Job over to Satan, demanding only that Satan spare his life.  

So Satan went out from the presence of the LORD and afflicted Job with painful sores from the soles of his feet to the crown of his head.  Then Job took a piece of broken pottery and scraped himself with it as he sat among the ashes.

His wife said to him, “Are you still maintaining your integrity? Curse God and die!”

He replied, “You are talking like a foolish woman. Shall we accept good from God, and not trouble?”   

In all this, Job did not sin in what he said.  (from here)

So it was that the first two chapters of Job left me more in awe of Job than God.  Job remain stubbornly loyal to God, but look what had God had done!  

I continued to read and learned that Job’s three friends visited him.  They cried over him and comforted him.  Then Job began to pity himself and regret the day of his birth, and his friends began to counsel him.   This began a debate.

Job’s friends chastised him.  The fault must be with him.  They asked Job to admit his sin (whatever it might be) and repent.    Job expressed his belief that he had done nothing wrong and his desire to make his case before God.  The debate continued until God intervened.  Job and his three friends humbled themselves before Him.

    Then Job replied to the LORD:

    “I know that you can do all things;
       no purpose of yours can be thwarted.

    You asked, ‘Who is this that obscures my plans without knowledge?’
       Surely I spoke of things I did not understand,
       things too wonderful for me to know.

    “You said, ‘Listen now, and I will speak;
       I will question you,
       and you shall answer me.’

    My ears had heard of you
       but now my eyes have seen you.

    Therefore I despise myself
       and repent in dust and ashes.” (from here)

What did God intend?   In the end, I finished the story awed by God. Even with the God’s eye view that allows us to watch God hold court with his angels, we cannot know His mind.  We can only gain small insights here and there. 

Why did God deliver Job into Satans hands?  In his notes on the Bible, John Wesley observed the following.

It seems strange, that, God should give Satan such a permission as this. But he did it for his own glory, for the honour of Job, for the explanation of providence, and the encouragement of his afflicted people in all ages.  (from here).

God honored Job by causing him to suffer immensely?  Such is a curious thought and one that left me shocked.  When we look upon each other, we honor those with wealth and power.  Are those the people we should honor?  It was when Job was penniless that God honored him.   After God had finished honoring him, God restored to Job all the trappings of honor.

Was Job a real person?  Perhaps.  What is certain is that Job asked a question we have all been known to ask:  why me?  And so Job suffered unaware of the pride that the Lord took in him.

THE JOY OF DEADLOCK

No man’s life, liberty, or property are safe while the legislature is in session. — Gideon J. Tucker

To find money to spend on transportation infrastructure, Governor Tim Kaine called a Special Session of the General Assembly.  What is the governor’s plan to resolve the so-called transportation funding crisis?  Taxes, taxes and more taxes.  Fortunately, thus far the General Assembly has not passed anything.  In fact, with its usual originality, the news media is lamenting that the General Assembly is “gridlocked” (see here and here for examples).  The Winchester Star, on the other hand, simply said “Gov. Timothy M. Kaine’s proposal has zero chance of success” (see here).  Plain prose can be so refreshing.

Here is how the happy taxer sees the situation.

Kaine, a Democrat, chose not to include a gas tax increase in the plan he introduced last month, saying at time that there was little legislative support for such an increase while gas prices are hitting $4 a gallon.

The governor, during a news conference Thursday, declined to endorse a gas tax increase, but suggested he might be willing to live with one if it’s part of a transportation package that provides ample money to maintain roads across Virginia and build new ones in Hampton Roads and Northern Virginia.

“You’re not going to see me veto a bill that meets those objectives,” Kaine said.

The odds of the gas tax increase reaching Kaine’s desk are tiny, however. House GOP leaders strongly oppose raising that levy or any other general tax. (from here)

Unfortunately, Republicans still have not learned their lesson.  They too, want taxes, just not in their backyard.

The measure – proposed by Del. Phil Hamilton, R-Newport News – proposes no statewide tax increase or new roads revenues for Virginians outside of Hampton Roads and Northern Virginia.

The bill, HB6055, would allow Hampton Roads local governments to raise about $50 million a year by imposing additional $20 fees on vehicle registration and inspections, and a 2 percent tax on car rentals.

The measure also would allow the region to capture up to $250 million a year in future new tax revenues that might come from a growth in business at the Hampton Roads port if roads are improved.

The measure is likely to be opposed by rural legislators, who also are looking for road money, and by Senate Democrats, who are insisting on a combination of regional and statewide tax increases. (from here)

This special session designed to find new ways to tax us is now in recess.  The General Assembly will resume its search for new taxes on July 9.   Only you can stop them.  As Delegate Bob Marshall made clear in this email to his constituents, there are good alternatives to allowing these people to raid our wallets.

Delegate Bob Marshall’s Transportation Measures:
2008 Special General Assembly Session

Whether or not you will pay higher state or local taxes for transportation will depend upon what you do or fail to do in the next few days and weeks!

The Virginia General Assembly meets June 23, 2008 in a special session to consider various bills to address transportation.  The length of the session is yet to be determined.

Governor Tim Kaine and Senate Democrats in the Virginia General Assembly have different plans to increase your taxes for transportation purposes.  House Republican leaders want to give local governments in Northern Virginia and Hampton Roads the authority to increase local taxes for transportation purposes.

Below are my measures to help commuters and travelers by investigating alternate fuels, increasing program efficiency to free up transportation funds, and constructing road and mass transit with tolls and user fees.  None of these measures increase taxes.  In fact, if all of the Wilder Commission efficiency measures could be implemented, at least $1.1 Billion could be saved, almost exactly the amount of tax revenue Governor Kaines proposes to raise.

If you agree with my proposals below, please contact your state senator and delegate and urge them to support one or more of my measures.  Click below to learn how to contact your state representatives: http://conview.state.va.us/whosmy.nsf/main?openform

Contact me at delegatebobmarshall@hotmail.com if you have any questions.

I do not have bill numbers and specific language yet, but the bill numbers should be assigned by June 24th. .  They will be available at: http://leg1.state.va.us/cgi-bin/legp504.exe?083+mbr+H57C.

State Government Efficiency (money saved to go for transportation):

In 2002, the Wilder Commission recommended selling certain state assets, merging or reorganizing state agencies, and changing procurement practices to produce billions of dollars in savings. (In 2002, the savings was $750,000,000 annually; in 2008 savings would be $1.1 Billion).  Governor Wilder told me last summer that most of the recommendations were not implemented by either Governor Mark Warner or Governor Tim Kaine.  I have introduced several bills and joint resolutions that implement the Wilder reforms.  Any money saved or generated would be spent on transportation projects and maintenance.

Also, I have introduced a bill that creates permanent agency oversight commissions consisting of legislators, agency personnel, and citizens who will review agency operations for cost savings, duplication, and sale of capital assets.  Any money saved or generated would be spent on transportation projects and maintenance.

Road/Mass Transit Projects – Using Tolls/User fees — NOT tax increases:
$4.11 Billion Statewide Revenue Bond Projects to be repaid with easy-pass or cash tolls and portions of fares:  

Northern Virginia: 
Mass Transit:  $300 million capital expenditures for new Metro Subway rail cars and repair of existing track/stations;   $290 million Virginia Railway Express extension from Manassas to Haymarket, additional track, six locomotives and 36 double-decker, 80-passenger rail cars..
Roads:  $300 million to widen I-66 from Gainesville past Haymarket, and construct bypass  from I-66 to US Rt. 29 in Fauquier with easy-pass toll; $570 million for Tri-County Parkway between Prince William, Fairfax and Loudoun using the Comprehensive Plan Alignment.

Hampton Roads:
$2 Billion to construct four new lanes on I-64 Hampton Roads Bridge Tunnel (Congestion Relief)

Shenandoah Valley:
$550 Million for I-81 improvements for tractor trailers.  (Only trucks stopping at weigh stations would pay tolls.)

Southwest Virginia: 
$100 million to construct 20 mile four lane segment of Rt. 460 from west of Grundy to Kentucky line (460 is four lanes in Kentucky).

Tractor Tailor Road Damage and Repair Fees:  Requires the Department of Transportation, the Commonwealth Transportation Board and the Commissioner of Transportation to calculate the fees needed to cover the costs of maintaining Virginia Roads from use and damage from overweight trucks. Trucks will be required to stop at weigh stations.  Fees will be based on the truck weight, number of axles and miles driven.

Additional Non-Tax Transportation Measures:

Rescind Ethanol Mandate:  General Assembly to request the US Environmental Protection Agency to suspend the current Ethanol gasoline additive mandate authorized by federal law.  Ethanol decreases gas mileage and increases food prices.  My joint resolution does not need the Governor’s signature.  It is only presented and voted on by the House of Delegates and the State Senate.  (Gov. Kaine opposes lifting the EPA ethanol mandate.)

Biofuel:  General Assembly to study and identify all sources of methane gas in Virginia (animal feed lots, municipal waste treatment plants, and land fills) to develop alternate commercially available fuel sources for cars/trucks.  Other countries and some states are transforming waste to energy.

Four Day Work Week-Flex Time:  Requires the governor to implement, wherever practical, a voluntary four 10 hours work days (or five-day, 40 hour flex time) for state employees, to reduce fuel consumption and take cars off roads.

Naming Rights:   Allows the Commonwealth Transportation Board to accept cash or in-kind payments in exchange for naming rights of transportation projects (roads, bridges, traffic circles, access roads, etc.)

Transportation Lock Box:   Amendment to the Virginia Constitution prohibiting the shifting of dedicated transportation taxes/fees to non transportation uses, except that money may be diverted for up to three years and paid back to the Transportation trust fund with interest.   The $317 million in transportation funds diverted in 2002 by Gov. Warner and the state senate has not all been paid back.  I have worked more than 10 years for this proposal. 

Please contact your state delegate and senator if interested in supporting these bills. With your help, some or all of these measures could become law and improve transportation without tax increases.  Thanks very much.

Sincerely,

Delegate Bob Marshall

Cross-posted here at Bloggers 4 Bob Marshall 4 Speaker.  Check out the other great posts.