I affirm this message

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

New Zealand PM, who looks like a promising young star, took the affirmation route. Our own "affirmation" option was largely put in place for those who did believe in God, but per Jesus, were wary of oaths. "Oath" implies "so help me God," so that is a bit redundant.

Court of Appeals En Banc Grants Teen Right To Abortion

Elections have consequences. Down the road, the judges Trump appointed and more easily are confirmed without a filibuster rule will come into play.  The status of the "blue slip" rule is in the air at the moment.  A major reason the cloture rule for executive appointments was blocked was because of the lengths it was taken against Obama, including simply because Republicans didn't want to fill D.C. Court judges. A majority of Democratic appointments are there now.  Key ruling today.

(Policy also is affected, even if slashing ACA and a few other big picture things have yet to occur.  As the Dodgers were in the midst of beating the Astros, Pence cast the tie breaker to overturn a bank regulation, using a fast track system that avoids the possibility of filibusters.  It gets less play, but many regulations have been handled in this fashion. On some level, that's fair, though bad policy. You control both branches of Congress, you get to overturn executive regulations. Elections and all that.)

I cited the case of a seventeen year old undocumented girl blocked from having an abortion.  A loss in the panel (an unlucky draw) was overturned today by an en banc 6-3 Democratic appointments (another did not take part because her husband is involved in the ACLU).  The opinion was a brief order with a strong concurrence by the judge who dissented in the original panel, Judge Millett, who was one of the Obama appointees only there because cloture rules changed to allow a majority vote. 

The attorneys general of 14 states filed a brief arguing the administration’s policy of blocking abortions for undocumented minors undermines the rights of states to establish consent requirements. Texas attorney general Ken Paxton, along with eight other state attorneys general, have meanwhile argued undocumented immigrants “do not have a right to abortion on demand.”

This is a notable tidbit.  Democratic AGs have repeatedly joined in to target Trump Administration policy in litigation even at this early date (travel ban, ACA litigation and this are just a taste).  On basic federalism grounds, it is understandable for states to not want the federal government to interfere with their abortion law, even if power over foreigners provides an opening. See also, DOMA. The girl met state parental judicial bypass procedures.  Texas' interests in blocking her is unclear.  There was the crude "anchor baby" allegations.  Is there some sort of fear of a big influx for abortions?

The Administration big picture, even to the degree of targeting contraceptive use that has been found to be significant in reducing abortions, has taken a conservative path in the area of reproductive liberty. But, they granted for the sake of argument that the teen here had a right to choose an abortion. She could voluntary deport (during oral argument, it came out her home country doesn't allow abortion), which would mean forfeiting her ability to seek the right to stay, particularly as far as the evidence suggests the situation she left was pretty bad [see Millett].  Or, the angle the author of the primary dissent pushed, she might be able to get a sponsor. But, it has been over a month. There is no grand reason to think she will get one that soon.  And, every moment she is pregnant is a burden, besides the fact her time is running out being mid-second trimester.

One conservative judge explicitly said she was upset that the Trump Administration did not argue the girl did not have a right to choose an abortion. She wanted to hold just that, leaving open some medical emergency exception.  A rather gratutious activist approach.  The girl is a "person" protected by the Fifth Amendment. A person without significant connection to this country very well lacks certain rights pursuant to somewhat unclear case law.  But, the right to basic control over one's person would seem to be a basic right indeed.  Looking at facts favorable to her -- we are not talking about some adult to be sent back to Canada or something -- particularly does not make this a great case to reach out on this issue.

This is not about giving a whole panoply of rights to an undocumented person, even if you are concerned about it being bad policy to give rights to those here illegally.  The other dissent was most upset that his approach to give the feds until the end of the month to find a sponsor (if one is not found? what then? how long will this really take?  who knows).  If she was not in federal custody, remember, the Texas law found she warranted a bypass.  She has an guardian ad litem.  Has already waited over a month. Again, this isn't a great case on the facts to do this. Millett again makes the case well.  She serves the RBG role. There is some bad blood there, if you note the tone.

The concurrence also focuses on replying to the alleged facilitation the government is trying to avoid. This almost makes Hobby Lobby look good, including no payment and actual details where the girl and third parties do all the work. The feds currently -- their advocate didn't want to firmly say so -- apparently would let an undocumented adult in detention, non-criminal, to have an abortion too.  Finally, note the facts amount to the same situation as a prisoner, which the feds admit would have a right to have access to an abortion.  The voluntary deportation and sponsor maybe being available are phantom options.  In effect, the government is selectively burdening a minor's constitutional right over her own body because of a difference over morals.* 

The last I read, the teen's lawyers noted that there is a process that has to be followed with the lower court judge and maybe another waiting period (has to be tied to her individual doctor) before she can have an abortion. The Administration can seek Supreme Court review and you would think they have at least three votes. The hope is that at least taking all the facts into consideration that five justices will not grant a stay or worse.

We shall see.

[Somewhat surprisingly, she was able to have an abortion today, apparently the counseling session still good.  But, she is but one person.  The anti-choice policies continue and without a firm "no" from SCOTUS, they might even try to do this again, perhaps in another circuit. Note the caption includes the words "and others similarly situated," so it is unclear to me that the case is truly moot now that the girl had an abortion. Given that, perhaps, they decided to lose the battle in hope of long term winning the war, perhaps with Kennedy no longer around when it comes back.]

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* We basically saw this in the sexual orientation area as well and in both cases a Deputy Assistant AG has already been involved.  It's charming actually -- I personally have engaged with this guy on blogs, including Dorf on Law where he ridiculed the right to same sex marriage in the usual confused strident sarcastic fashion. 

New Mets Manager & Other Sports News

Item. After a last second (wasn't easy: took an untimed down after a penalty) exciting finish, a lot of bad football games, including the Jets blowing a 14 point lead and then the game (instead of carefully ending regulation). The Sick of the turnovers and shit -- "good enough to win" not enough; two of them were more the other team losing. Change QBs. Giants simply didn't score (one TD). Astros appeared to have blown it, but they won the last two. Yanks still had a great year, going further than expected with multiple stays of execution late.

The Trump Administration’s Power Over a Pregnant Girl

This is offensive. An undocumented teen wanted to have an abortion at the end of September and was able to meet the burdens of Texas abortion law to do so. But, the federal government is blocking her, in the usual biased anti-choice ways. This already pushed things into the second trimester and a chickenshit ruling by two conservatives (see dissent) could make it even harder. And, she's running out of time generally. This is tyranny.

Antifa: The Anti-Fascist Handbook Book by Mark Bray

I read the introduction, early 20th Century history and skimmed the rest of the subject book, the Antifa in the news, including involved in white supremacist protests.  It's a helpful book, including to obtained their p.o.v. (the author was involved in the Wall St. protests and is sympathetic with their cause, suggesting his rich first person sources), but it's a trudge to read. I took down a few notes, including regarding definitions that made me think of a certain person and political cause in particular.

Richard Paxton (definition of fascism):

a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victimhood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion. 

 (“rejects any universal value other than the success of chosen people in a Darwinian struggle of primacy”) [experience of faith, charismatic movement]  Nazism: mix of militarism, traditionalism, hyper-masculinity, antisemitism, and anti-Marxism set within a social Darwinist framework of national and racial struggle / far-right thought.

Historical lessons

• Fascist Revolutions Have Never Succeeded On Own / Fascists Gained Power Legally.
• To Varying degrees, many inter-war anti-fascists didn’t take fascists seriously enough; saw them as traditional counterrevolutionary politics; saw light too late.
• Socialist/Communist leaders for various reasons saw light slower than rank-and-file, often for ideological (divisions) / organizational (tactics) reasons.
• Fascism steals from left strategy, imagery and culture.
• It doesn’t take that many fascists to make fascism. 

Anti-Fascist As Anti-Free Speech 

1.  How Free Is Free Speech? – Sympathy to restrictions, private spaces, limits for undocumented/prisoners/others, unequal “market” power.
2.  Different in kind only – ends leads to more net speech, opposition to fascists as compelling interest, non-government actions/speech v. speech.
3.  Negative results exaggerated – slippery slope, those likely to benefit from libertarian approach favor one side, fascists threaten basic liberties (including in university).

I am wary of the last set of arguments, especially if some degree of violence (including something like throwing urine at white supremacists, as reported recently) is involved. Something like heckling and so forth to make white supremacists unable to give a speech is different, though the university is a special case, but am not convinced normal principles should be exempted here. I also don't think we in America are at the brown shirt period, where the actions is more understandable. This is not to say that the comparison is completely lacking in truth.

The basic sentiment is that some people, some speech and protest is beyond the pale and private groups at least have the moral authority to shut them down. I'm not as convinced that net this approach works that well, in part because there is some truth to the de facto (at least) restrictions of free speech that are cited in the book (see #2)  that would only be worsened if there is a general idea that if something is so bad that you can silence it beyond thinks like libel or the like. In certain places, left leaning speech will be in practice hard to come by, like now it is a tough call to be an open atheist and be a public servant in much of the country.  So, yes, fascists in practice threaten the liberty of people. Net will this approach help?

The "punch a Nazi" deal annoyed me -- you do not punch people, even those who promote horrible ideologies.  But. Charlottesville does show some libertarian free speech approach with no strings at all has its issues too.  This is more than time, place and manner regarding the location of a march.  It is more than showing up ready and willing to stop abuses by racists.  More than heckling and the like.  Though that is all part of it. That extra, and sometimes a bit less than it, is what I'm concerned about.

Some lessons, including knowing your enemy, not dividing your allies and so forth still can be learned about in the book.  The history and what it teaches also. And, the rest, well to the degree I'm wary, it is good to understand their point of view and mindset.  If Voltaire did not say his famous alleged comment on free speech, it still could have been a paraphrase of his sentiment.  One I still firmly believe.  This does not mean the sentiment of racists must be taken as legitimate, truly open to debate.  This does require a certain level of shunning of Antifa levels, huh?

How far do we go there?  I don't know.

Persons Day / Living Tree Constitutionalism

Linda Greenhouse had a good article a few years ago (tempus fugit) about "Persons' Day" and living constitutionalism or shall we say "living tree" constitutionalism. RBG might be celebrating. Meanwhile, as the new travel ban starts to be struck down by the courts, the fear is now applied to green card holders in the military. Tree rot.

SCOTUS Update

Most notable case in today's orders probably one involving email storage/4A in 21st Century potential. SCOTUS continues to avoid taking a case involving GITMO/military tribunals and they continue to have problems. Death penalty case sent back per recent case; three liberals (see generally) would take another. Gorsuch (and two others) send message "we want a Chevron case" in typical annoying Gorsuch fashion. Orals at end of month.

Latest In Trump Screwing Us Over

Trump signed two executive orders (one more immediate than the other but subject to litigation) aiming to screw ACA, taking those "take care" responsibilities seriously. Promoted theocracy. And, tried to screw [take: Iran is making that difficult & like the chickenshit he really is, Trump isn't doing all he can or what some say he is; but he is still trying to screw it over somehow] the Iran deal. Just what immediately comes to mind.

Baseball Update

Eagles (with Giants out, the best division alternative, I guess) won a close one vs. another playoff hopeful. And, the Cubs survived a 9-8 game with a little of everything. So, it's Cubs v. Dodgers (swept) and Yanks (down 0-2) vs. Astros (in four). TBH, Yanks exciting, but still rooting for Astros (figure either can win). Dodgers too dominant of late to root for much, but a Cubs repeat is blah too. Indians great season ended badly; Dusty Baker loses again.

More: Astros/Dodgers World Series closer with each up 2-0, Verlander's complete game 2-1 win most impressive. Jets started the game vs. Pats that way, the offense disappeared & with about forty seconds left (after Pats missed a FG) gave the ball up, which of course led to the Pats to tie it 14-14. End, with a controversial non-score tossed in was expected. Giants dominated Broncos Sunday Night. Other big news was Aaron Rodgers will be out long term.

Robert Pruett Executed

This year might be a low in executions, but Robert Pruett [video includes family members of deceased; they split on support of his execution at the time of taping] is one of them after the final appeals had no dissents. He had claimed his innocence and there very well might be some reasonable doubt. He was convicted of killing a prison guard; he had a 99 prison term at 15 for involvement (unclear but didn't kill him) of a murder committed by his father. Even this "easy case" has a lot of gray, including the basically doomed nature of his life.

Scalia and the Contraceptive Mandate

Scalia has been called out by some for having a too weak view of the Establishment Clause, but many were not fans of his stance on free exercise either after Oregon v. Smith. There the Court held that a neutral general law (e.g., a ban on peyote use) is constitutional even if it burdened religious exercise.  The opinion summarized the case law (cites abridged):

The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such." Sherbert v. Verner. The government may not compel affirmation of religious belief, see Torcaso v. Watkins, punish the expression of religious doctrines it believes to be false, United States v. Ballard, impose special disabilities on the basis of religious views or religious status, see McDaniel v. Paty; Fowler v. Rhode Island; cf. Larson v. Valente, or lend its power to one or the other side in controversies over religious authority or dogma, see Presbyterian Church v. Hull Church; Kedroff v. St. Nicholas Cathedral; Serbian Eastern Orthodox Diocese v. Milivojevich.

A later case touching upon the last matter gave constitutional weight to a "ministerial" exemption, a sort of religious association right of autonomy.  The first case was in effect limited to its facts -- "system of individual exemptions" (there unemployment benefits) would require religious belief to be included.  This case involved just that, and might have been limited, but since illegal conduct was at stake, a wider approach was taken.

As compared to benefits already determined by weighing individual needs, an exemption would allow one "to become a law unto himself." A person's religious beliefs cannot "contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."  U.S. v. Lee, involving Social Security taxes, was cited with approval to fit into this principle, including a slippery slope where exemptions would have no stopping point.

Congress didn't like the ruling and passed RFRA, which was partially held unconstitutional as applied to state action because it was not necessary to enforce the Fourteenth Amendment.  Stevens by himself also flagged an Establishment Clause problem since it was such a grand special benefit to religion alone, which would logically mean it is a problem even if applied to federal action. But, I don't know of him bringing that up again, perhaps since the questions presented in later cases never came up. A more limited case involving prisons is the only case where it arguably might.

Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases. The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of those concrete cases.

Scalia defended his opinion from attack in a separate opinion. Hobby Lobby was such a "concrete case."  Like U.S. v. Lee, it was an employment regulation involving social welfare regulation and taxation.  It did not merely involve an individual exemption since it directly affected third parties (employees), religious institutions, a specific religion being targeted or a burden on the freedom of belief.  Line drawing in practice will be very difficult, if done neutrally (and per basic rules) not done in a way to burden third parties (voluntary exemptions are acceptable per Smith).  These problems have been raised by Hobby Lobby critics.

RFRA can be said to be a legislative accommodation as compared to a judicially required rule.  But, at a certain breadth, the problems still arise.  They suggest the limits of RFRA, religious liberty not the only thing out there.  And, RFRA's broad exemptions also put a lot of power in the hands of the courts, which have to determine if burdens are serious enough or interests compelling enough to override that and if there are alternative means. Such complicated judicial duties, even when neutral rules are in place, determining the "business of evaluating the relative merits of differing religious claims"  was seen as "not within the judicial ken."  Some broad acceptance of religious beliefs, however, has its own problems, especially with the open-ended RFRA exemptions.

Scalia would be an appropriate person to weigh such concerns, a conservative who is respected for honoring religious liberty in various other contexts.  I'm wary of the limited reach of the Smith rule, especially when applied  to individual religious practice as compared to more public regulations involving third parties.  But, the open-ended rule where neutral laws that clash with religious belief must meet heightened scrutiny very well will cause problems given its breadth, especially if evenly applied to lots of competing views.  I respect Scalia's approach, including it going against a stereotypical view of his beliefs.

An even-handed approach would make Hobby Lobby a hard case in the very least, but Scalia silently went along.  It is not surprising that he would not be as concerned about the sexual equality and privacy claims that arise, probably voting with the dissent in Griswold v. Connecticut.  All the same, the discretion given to judges might give him pause, even if he thought the majority was right that the text of RFRA commanded the result.  A separate opinion would have been useful.

OTOH, maybe the text did not (or should not, in part because of constitutional concerns) and his own concerns help us see why. After all, RFRA "restored" the situation to the earlier cases that he cited in that opinion. The new legislation made general laws alone not adequate, accommodations required there too, but the other concerns were part of the old order too.

(The application of RFRA to for-profit corporations also is dubious, but is not directly raised by Scalia's two opinions, so I'll let it lie.)

Travel Ban Update

The Supreme Court, as expected, vacated one travel ban opinion and likely will soon another when the old ban expires there too. This was barely explained in a paragraph order. Sotomayor would have dismissed it as improvidently granted, which would have kept the lower court opinion in place. She didn't say why. smh. So the challenge clock resets.

Columbus Day

And Also: I caught up on The Orville via video on demand. Overall, enjoyed the series.  There are a few jokes and references that remind you that the guy from The Family Guy (yes, he also plays the captain) is behind this, but it is basically largely a straight sci-fi series. Some good ideas: the young officer thrusted in command subplot was handed nicely. The single sex race with a female baby had a few rough patches; overall good episode though. The Rudolph the Red Nosed Reindeer reference amusing and fitting.

Today, following second Monday rules, is Canadian Thanksgiving.

More controversially, it is also Columbus Day.  Other than being a day to honor origins (though not so much as a moment of regret), it is also a somewhat poorly chosen Italian heritage day.  St. Joseph's Day not being enough in that respect.  There is a push to call it "Indigenous Peoples Day" or some such term.  It is useful to note that everyone was at some point a newcomer here. The "Native Americans" just came a long time ago.  They crossed the land bridge and over a span of centuries populated the Americas.

Others want to call it "Genocide Day."  A person on that thread said they were glad there is an America, but not supportive of how we got here in a variety of ways. I replied:

Generally speaking, over history, civilizations were messy & major powers crowded out others in nasty ways. I think some examples of Native Americans doing that (Aztecs?) might be found too. The issue here for me would be having a holiday that honors a fictional view of someone who isn't worth honoring much at all.

Anyway, the level taken here -- including enslaving -- wasn't even necessary for U.S. to exist. Military action, disease, alcohol and pushing them into smaller and smaller areas likely would have happened in some fashion given the state of 19th Century affairs. Some at the time didn't like the extent it was taken. And, it was possible to have the U.S. we have today with more respect for Native American interests.

Today we surely can bemoan how things gone & realize we can't remake the past while fully understanding it. The lessons will do us well for the future.

I guess if looked at in the right point of view, Columbus Day can work.  An American holiday with such a mixed message would be a tad novel. Also, when you name a day for someone, it is generally to honor them.  As many note, Columbus (even among explorers in general) left something to be desired. Amerigo Vespucci might even be a better subject, including as someone for Italians to honor.  But, this date isn't really just about "Indigenous People" and is a tad selective for that purpose. Such a day should honor all sides there, not just a tragic day in their history.

The Italians might want to find another patron though.* 

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* Another group, perhaps not: "So, based on confused information and a mixed of drive of money/Christian rhetoric, he blundered into the "West Indies" and while there f-ed things up. He is a man of the Trump/Pence era, maybe." [Another comment.]

The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives

Two chapters in particular were eye glazing regarding the complicated economic wrongdoing at issue, but as a whole, this was a pretty readable account that suggests the complications involved here. Online, I have seen people on the left angry at the lack of prosecutions (not quite absolutely so) and felt somewhat sympathetic about the pressures involved. But, the book helps point out to the problems, even if some on the right in the electorate are rather hypocritical with their concerns (TRUMP is who you pick? the book provides a positive look at various Republicans in the Justice Department, but big picture, Tea Party Republicans in Congress etc. don't seem to be Bernie Sanders fighters for justice here). No pictures!

Sports Update

Jets have another game where they survive because the other team gave the game way, so let's be careful about that 3-2 record. Giants (my kingdom for a win!) find a way to lose, plus lose key players to injuries. Red Sox and Yanks live another day, Yanks finally getting an ace start (1-0 win, seven scoreless). Pence acts like a Trump clown. Arizona hits, Dodgers hit much more. Cubs blow game in 8th; next time bring closer in to seal deal!

[some things come up again and again]

"Trump Opens Door for End of Birth Control Benefit"

Update: Linda Greenhouse's discussion of the new regulations states that the Hobby Lobby workaround option is not present. It also notes something else I have seen addressed -- the application to "moral" objections is not a legitimate application of the law (the "R" in RFRA is "religious" even if some states have broad "conscience" exemptions) and it was not put in place using the right procedure (this impatience was also seen in the travel ban cases). See also here. I think it will be tweaked (see travel ban though that case suggests maybe not too much) especially given the presence of litigation, which has already started. 

As usual, keeping track of all of this is confusing.  The whole special rights for religious objections, with the courts trying to figure out the nuances, continues to be taken to dubious lengths. When RFRA applied to the states, Scalia spoke of the problems. But, suddenly he went along without comment when it was applied to federal practice. The problems behind his concerns (back to the Oregon v. Smith case) have not disappeared so it is unfortunate he did not at least write a concurring opinion to address the sentiments of the person in the previous link and others like her. 

This expanded discussion still leads me wondering exactly the scope of the move. Note particularly reference to an upcoming release of regulations that are over one hundred pages long.

The Hobby Lobby decision, to retain Kennedy's vote, assumed that the contraceptive mandate was a compelling state interest and that the opt out demanded did not burden female employees (as a tweet notes, the mandate concerns not just women, there are two parents involved). This is dubious in practice, but does depend on the actual regulations, what the employer has to do and the coverage still available.  So, e.g., Zubik v. Burwell was punted by the Supreme Court.  Just what employers could be required to do here does not seem to have been fully clarified.

The usual concern for supporters of the benefit here is the burden on health and particularly women's health.  So, there is a basic choice being made to what is a proper benefit (part of an insurance package one pays for to be clear, it is not "free") -- with some libertarian pushback -- and debates with a sex/gender component (use of birth control seen as "slutty" etc.).  But, as with the same sex marriage debate, there is also a special use of religious and conscience (a more open-ended thing) arguments.  

Hobby Lobby was problematic as the dissent spells out. Employers have a certain obligation to provide benefits to employees and do other things that might in some fashion conflict with the owner's beliefs. Selectively focusing on contraceptives has a certain sectarian character here. Look at the essential benefits package. Various ones possibly might conflict with religious beliefs. Certain surgery that might threaten a fetus. Use of pro-GLBTQ therapy. Certain usages of drugs.  And so on.  Many of these things maybe won't seem likely to come up. Vaccination is one area that belies that. But, anyway, that is not how religious freedom works. Religious liberty includes rights for small groups.

Finally, I find it helpful to look at this from the other end. Health insurance provides individual workers a better ability to make life choices that reflect their own personal conscience. This is a sound approach -- Planned Parenthood v. Casey, e.g., specifically noted abortion is a choice that has a special conscientious component, one the Constitution leaves largely to an individual to choose among various options.  Like is the case for the right to counsel, this right often is severely burdened if one lacks the means to freely make it.  Denial here has much more direct effects than the indirect involvement of employers akin to them paying people who then use the money in ways employers dislike.

Employment based insurance in fact is a type of compensation in the current system.  Again, if this is a problem, there is a slippery slope. In the past, minimum wage was seen as unnatural, there a just wage that grows out of the nature of things, having a religious component.  In U.S. v. Lee, social security benefits was not seen as a violation of the free exercise rights of Amish. As with the idea that IUDs and certain birth control pills are "murder" because of a minimal possibility that they might interfere with implantation (something current science appears to factually reject anyhow), at some point you are going to stretch things too far to work.

And, this is even more the case if we recognize a true understanding of religious liberty, which will include government regulation. For instance, doubtful that those who support these changes disagree with protection of religious liberty found in civil rights law, including employees having rights to pray and so forth at workplaces.  What this amounts to is a selective view of religious liberty, one that breaks both parts of the 1A provsiion. See Harris v. McRae, where both establishment and free exercise arguments were raised, if imho not adequately honored.  The pro-abortion rights aspect of this warrants more attention.

Finally, some argue that my concerns miss the point -- the free exercise benefits of the contraceptive mandate lack the same state action concern as government regulations that burden religious practice.  Various replies. First, as explained, the public marketplace is not a "private" zone and more regulations are appropriate there.  Second, there is a selective nature to the exceptions here enforced by governmental action as well as government benefits like funding only certain pregnancy related choices based on certain moral beliefs. All are "health" related, thus the usage of the blog label. And, government regulations in various ways appropriately advance personal interests, including religious freedom. The strength of the interest there matters.

"The Second Amendment Is Not a Relevant Part of This Story"

The title is from this essay for which I provided a few comments, including quoting from the Heller case where the Supreme Court recognized a constitutional right to own firearms for individual defense but left open various types of regulations.  "The Second Amendment" is basically a trope referencing some strong right to keep and bear arms that makes regulation difficult. For some, regulation should be a limited exception, each one warranting a red flag, even if allowed. It is telling that the NRA is open to some regulation of "bump stocks" that were used in the latest massacre.

(I have kneejerk opposition to limits on First Amendment liberties, but over time, extremism led  me to constantly note that there are limits. If there, surely there are limits on more dangerous guns, especially if the 2A itself is understood to cover limited ground while a more general liberty to own and use firearms is a general "liberty" that is not singled out for concern. But, that ship seems to have sailed.)

I was doing my laundry when I heard about the Las Vegas shooting that currently has over fifty dead and many many more injured. It lead to the usual stuff, including "not the time" comments, references to Australia (involving a ban of certain weapons and obtaining those own that probably would be complicated here both culturally and constitutionally ... though would be interesting to read about that) and so on. There are ways to go, including a concerted to address gaps in the background system, which in itself very well probably saved life and limb.  A Democratic senator from Connecticut (Newtown) correctly noted that it is left to pressure from the people to push for change. Ditto I'd add actual gun owners, lots of whom are perfectly fine with regulations.  Note the bipartisan nature of Australia.

Massacres of the sort like Las Vegas are a small part of attacks though the scope remain notable both as to number and affected parties. Suicides, accidents and violent crimes generally (and drugs being illegal is a factor here) affect innocents and generally are unfortunate.  But, killing a bunch of school children or concert goers is a special level of (to use a word that caused issues) terror and large scale loss of life.  And, means to limit illegal gun use generally will affect all cases though some can focus on specifics such as cutting down on suicides. Finally, it is simply normal for major tragedies to get one talking or maybe to lead to change. This includes in one's personal life.  So, if this helps there, it's good.

A final thought -- sometimes it is noted that a true shift will only occur when guns, or at least certain types of guns, are treated like smoking. Smoking is now in a core way unsavory.  In the 1980s, during Scalia's nomination hearings, one can see him smoking a pipe. A basic thing like ending smoking on flights is a major thing.  I personally would hope more of that was present regarding hunting.  A basic thing here is use of guns in fiction, including the basic ending where the bad person is shot dead.

[A comment originally attached to the subject essay, in part in response to an earlier reference to Saul Cornell.]

I read various accounts on the 2A, from different angles, and Saul Cornell's book [which American historian & dissent evangelist John Fea recently endorsed] was a good part of the story. I take his approach is that there is the 2A with the militia component & a separate common law right to own a firearm for self-defense. Cornell also wrote various articles that were interesting as well.

I don't think John Paul Stevens' dissent is fully convincing but on original understanding grounds as to the 2A it does have serious bite. But, I'm not an originalist. By my understanding, there was a growing understanding that the common law right was deemed a constitutional liberty. This might have been recognized enough by 1868 for there to be a fairly strong originalist claim on 14A grounds.

Liberties are not absolute. Various writers have showed the historical evidence (for those who rest on that) of the legitimacy of a range of regulations. Heller made a list of regulations assumed acceptable. It spends very little time actually examining the specific regulations at issue [handguns are in common use and there are logical reasons for this], a chunk of that section used to refute Breyer's historical evidence and general approach.

I actually agree with the core idea that there is an individual right to own a firearm though it's tougher to say there is a constitutional right to a handgun in a home in a crowded urban area. The law didn't ban all guns. As to handguns, perhaps the law was overbroad [e.g., a right to own a firearm exists; even handguns; but handguns need to be inoperable in a secure location, yes in part to protect children who repeatedly are injured in gun accidents]

Breyer found a way (refuted by the majority) to read a self-defense exception in the law. The problem with the trigger lock provision is unclear unless there is some absolute right on a moment's notice to be able to shoot a handgun. During the oral argument, Walter Dellinger noted that it is pretty easy if you know how to open it to disengage the lock. There are loads of limits on 1A liberties that in such and such a case is more burdensome taking a minute or less to open a trigger lock specifically on one type of gun in a crowded urban high crime area.

The Supreme Court should have sent this case back to the lower court to apply the facts to their new constitutional standard. The activism (not a bad word inherently) shown here is telling. The 2A itself is not the problem. It is the "2A" -- a certain cultural understanding, specifically in certain groups, since again I think evidence shows that popular gun rights might be, basic regulations are as well.

Example: Malcolm Nance, a familiar cable news talking head, noted he owns various guns. But, his guns aren't locked and loaded at his bedside. They are in safe storage. I question if he would have a problem with a law requiring trigger locks.

Baseball Update

I seriously thought there was a chance Twins, with a good starter, could win. They went ahead by three and the starter was out before the end of the 1st! But, their starter gave it right back! It was 4-4 soon but then the Yanks pen just shut them down. Rockies went down 6-0 and clawed back to one back twice, but their relievers, including their closer, kept on giving up runs. Meanwhile, Mets make various personnel changes, except for the GM!

UN Anti-Death Penalty Resolution & It's Discontents

ETA: Supreme Court vacates 11CA injunction (arising from lethal protocol issues) with three justices publicly dissenting. [There is some debate how one should count the six, so it is not clear Kagan agreed one way or the other.] Neither side explains their competing votes regarding someone's life being deprived.  This is unjust and violates open government. Plus, it is an opaque way to oversee lower courts, here selectively (somehow) told they are wrong. A serious non-capital case also should not be so treated.

US votes against UN resolution condemning gay sex death penalty, joining Iraq and Saudi Arabia: America one of 13 countries on Human Rights Council to oppose historic vote.

This Is Why The US Voted Against A UN Resolution Condemning The Death Penalty For LGBT People: It wasn't just about the provision protecting LGBT people from being killed via the death penalty. The US just really likes the death penalty.

Above is the headlines for two articles on a UN Human Rights Council Resolution that the second article summarizes in the article:

Would encourage member states to apply a moratorium to the use of the death penalty, noting in its preamble the way that it can be unfairly applied to women, the disabled, along racial divides, and against people engaged in "consensual same-sex relations.

The resolution is a 14 part affair that is carefully scripted in UN-ese with words like recalling, reaffirming, taking note, mindful etc. used in different cases.  The resolution is broad in scope, covering things like access to consular assistance for foreign nationals, various discriminatory applications, condemning usage for things like blasphemy etc. It leaves open states that still have the death penalty a chance to sign on, but clearly finds it overall problematic.

It's understandable that the U.S. did not sign on though I really don't think it had to do that. And, various provisions of the resolution allows articles that suggest the U.S. is gratuitously not signing on something that is promoted as a first to include LGBT relationships (see the Buzzfeed article).  The Obama Administration didn't have to deal with that last point, but abstained, officially noting the death penalty was legal.  An unfortunate stance, if one that to me does seem less gratutious.

The first headline* also follows a common understanding: the U.S. is an outlier in respect to the death penalty, having unpleasant company along with a few miscreants including some conservative Muslim country.  But, we do later find out that full list of noes: "The 13 states to oppose the resolution were Botswana, Burundi, Egypt, Ethiopia, Bangladesh, China, India, Iraq, Japan, Qatar, Saudi Arabia, the US and the United Arab Emirates."  Well, China is a usual miscreant fellow traveler.  India is somewhat interesting.  But, Japan?  Huh.

Japan from my experience is not given much attention when discussing the death penalty and the general assumption I bet is that it along with Western Europe does not have one (or uses it sparingly). This would be false. Over one hundred people were executed since 1990, in a nation with less than 40% of the U.S. population. Now, even factoring in the population difference, that is significantly less than the U.S. in that time span.  Nonetheless, it is a significant number that would particularly stand out if you look at the numbers of execution outside of the South.  India executed around twenty people in that time period, thirteen in 1995.

Japan probably deserves more attention in this area. Overall, I think the coverage of this resolution is somewhat misleading and incomplete in certain articles.  This is not surprising but underlines that news should be taken with a grain of salt, especially headline/tweet summaries.

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* The second article notes at one point: "The US was one of the 13 votes against, alongside Iraq, Qatar, Saudi Arabia, and the United Arab Emirates, a point that led LGBT groups in particular to immediately respond, calling out the US Ambassador to the UN Nikki Haley in particular for her stance." Nikki Haley is an Indian-American.  But, who are the rest of the 13?