Health Care Quickie

The Internet is like a drug -- up late last night reading Ninth Amendment stuff. Anyways, as health care gets closer: as a constitutional right/duty and constitutionality of mandate.

Stupak Is Not Beneficial To True Pro-lifers

TV Watch: Being Erica from last week was pretty good, more focus on her own life "now." Rules of Engagement had its moments, but wasn't as good as last week. Russell's assistant was added to the opening credits. Congrats.

Jesus turned and said to Peter, "Get behind me, Satan! You are a stumbling block to me; you do not have in mind the things of God, but the things of men."

Not that some will be convinced, I don't think the Stupak Amendment is necessary to uphold the existing law as to funding abortions; in fact, I think it will push it the other way. Thus, it is not a reasonable demand. This has been covered by past posts and by others.

So, moving along, it is notable that many self-proclaimed pro-life individuals (in and out of Congress) support a health bill without such a provision. It is doubtful that every one of these wouldn't support Stupak it they had their druthers. But, as with T.R. Reid and others, they realize the perfect is the enemy of the good.* On the whole, the bill would do more to cut abortions and/or for "life" overall than focusing on worrying about $1s somehow going to abortion. The bill even "increases the adoption tax credit and makes it refundable so that lower income families can access the tax credit," part of why a Catholic group defends it.

Stupak on paper is not as myopic as he appears. He has supported efforts to cut down abortions by decreasing the need for them in the past. But, he isn't out there repeatedly underlining that. He is making dubious statements (not only rejected by Noah or Rachel Maddow, but ABC News) on a narrow issue that many "pro-life" members of Congress deem a sideshow to true reform. In the process, he puts a black mark on that movement, a movement that repeatedly is smeared as only caring about life before conception, not after them.

A local notes here that Rep. Stupak has become more conservative as his district has. Another reply suggests that it is proper for him to "vote" the way they want. As I noted above, I don't think -- push come to shove -- that he really is representing their interests even on this one issue. Of course, being a representative means more than that. If his constituents want him to lie or b.s. on this issue, he still doesn't have a "right" to do so. Some have low opinions of conservatives and think that this is all they want. I am not quite willing to do that.

Finally, his motives are of some importance (including to those who have to negotiate) but on some level are of little consequence. The general public and media take him at face value. We cannot try to psychoanalyze each public servant, especially since most are in some way -- quite rightly -- following the public's demands, not some "true feelings." Mayor Bloomberg, who bs-ed about term limits and so forth (and his party line for political reasons), is said to disrespect Sen. Gillibrand for changing her positions on guns since when she represented a conservative upstate district. Others sneered when she seemed to do so on same sex issues.

Oh please. The system encourages representatives and senators (or mayors or presidents) to act somewhat differently depending on whom they represent. The big picture has to be looked at, even if a total plastic public servant is something to worry about at times. So, I'm not going to be concerned about that. I think Sen. Gillibrand is starting off on the right foot overall. She is truly representing her state, including on various liberal issues. She is not just grandstanding in a way that appears to be counterproductive. This is overall, of course.

But, objectively, Stupak doesn't come off that way. Maybe, his electors are satisfied by what he is doing. If so, they are aiming low. Meanwhile, for questionable gain, he has to deal with a primary challenge. Hmm.

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* This ability to compromise includes those who call themselves pro-choice but are willing not to re-fight the battle on the Hyde Amendment, which many strongly oppose. They don't want to move the law past Hyde either. Of course, that side often tends to lean left and has compromised on a lot of other things too.

Film: WMDs and George Hamilton

And Also: Providing one of my duties as a resident, I filled out my census form today. It asked a few questions beyond necessary by express demand in Art. I, but "Who questions the power to do this?"

Green Zone was an imperfect movie but overall has a lot going for it. My problem with it basically was its simplistic plot development -- at some point, including a key moment near the end -- it had a tired standard "good guy vs. everyone else" device. This includes him acting very recklessly (including in ways that were tragic, though the viewer seems to be invited to elide past them) to support what he thinks is right, which at some point starts to get hazy. You might feel good about the film being on the right side ("why we go to war matters!"), but self-satisfaction only takes one so far.

But, the viewer can also see the problem with this approach. This possibility, which in some way might be part of the point, helps save the film from some criticism.* As noted by a news clip at the link, the film also has various real vets serving as extras and military personnel. This suggests that the film is deemed by people (including an advocate who has popped up on Maddow et. al., who has a cameo at a military briefing in the film) that matter as an fairly accurate portrayal of events. No matter that a disclaimer notes that it wasn't based on any one in particular, comparisons to Judith Miller et. al. purely coincidental.

And, it does make some serious points on WMDs and on our role in the Iraq War as a whole. Two Iraqis have key moments in the film, something some critics of The Hurt Locker for lacking such a local voice might find appealing. It does this as part of an exciting thriller, its movie aspects acceptable up to a point as dramatic license in telling a deeper truth. I still think the film got a bit much toward the end, less believable, even if aspects of that part of the film hit home.

Meanwhile, I recently saw another 2009 film (the year still was not great, but did miss a few pretty good films the first time around) on DVD, My One and Only. Narrated by a teen who will become George Hamilton, it concerns an odyssey by a wife played by Renée Zellweger, who takes a cross-country trip with her two teenage sons to try to find a husband to replace the one she just found cheating on her. Finding a husband she feels she deserves repeatedly is hard, though she tries to keep her spirits up and sense of decorum in place. It is a good character piece, one of those smaller films that make watching film enjoyable.

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* SPOILER: Matt Damon's character breaches orders and recklessly takes a few of his men into danger, leading to others (including a special forces agent we are led to dislike) to their deaths when the meet-up goes bad. But, his justification for going there ultimately comes off as lame when he tries to explain it to an Iraqi who is helping him.

The film does not seem to invite us to be too upset that U.S. military personnel were killed by his reckless actions -- it ends with him leaking the news that there appears to be no WMDs and how the U.S. government selectively took the word of someone who said there was. Really, he should be up for court martial. But, the viewer can also see what happened. How he acted recklessly in pursuit of the truth.

The Proposal

This was cited as an example of Academy Award winner Sandra Bullock focusing more on commerce than art, but actually it was rather good. Again, standard fare can be done right. Well put together and some serious undercurrents. Pleasant DVD commentary.

God and Guns

And Also: Interesting article on the NYC mayor clashing with our junior senator. Reflects that there are different sorts of public officials; it is not necessarily bad a senator votes differently than a local representative. In fact, isn't that kind of how is meant to be?

Two more lower court rulings for the wolves.

[1] The Ninth Circuit upheld the use of "under God" in the Pledge of Allegiance, agreeing schoolchildren in effect are "coerced" to say the Pledge, but the addition of "under God" is just some historical recognition (this is why children affirm we live under a God -- to honor what our founding fathers believed is true) in some patriotic exercise that isn't really religious, so that's acceptable given the ability to opt out while fellow classmates treat you as a loser because of your faith (or lack thereof). This took about 60 pages.

The dissent by the liberal lion of the circuit, one that is so long that it has table of contents, disagrees. He suggests that something added to reaffirm that we "must look to God for divine leadership," has schoolchildren reaffirm something various religious believers don't agree with, is clearly unconstitutional in this context, and it is "most extreme sophistry" to deny it. He also points out that "under God" being added has to be treated separately, just as the Supremes did in another case where the dissent suggested doing so would cause "under God" to fall.

He tosses in a citation of Palin (duly noted, thus one footnote will be a bigger concern of some than the dissent overall) and reminds people what judicial empathy, a "quality that is most desirable in, even if frequently absent from, today’s federal judges at all levels of the judicial system," means. And, adds in a few cites of the writer of the original Pledge and two of his family members noting he would have opposed the addition.* This took about 130 pages.

[2] Meanwhile, the Massachusetts Supreme Judicial Court upheld a trigger lock law and a requirement to obtain a license before carrying a firearm. It noted, not waiting a few months for the Supreme Court to decide the question, in part that as of now, the Second Amendment does not apply to the states. Both rulings were fairly short, one longer given other matters.

The state constitution "recognizes no individual right to keep and bear arms." Though not bothering to note that Heller left open the legitimacy of licensing, one of the two cases decided (accessible here) did note that the Massachusetts law was different from the one struck down in Heller since it (MA) allows guns in the home for self-defense if a suitable trigger lock was attached. It does disagree with Heller dicta on the meaning of Massachusetts Constitution.

And, for some media commentary.

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* In part:

Bellamy’s great-granddaughter later echoed this sentiment, stating that her “great-grandfather . . . . [was a] deeply religious man, [but] He intended the pledge to be a unifying statement for [our] children. By adding the phrase ‘under God’ to the Pledge of Allegiance in 1954, Congress . . . . divided our nation further rather than uniting its citizens.”

The majority opinion disagreed:

The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded and for which we continue to strive: one Nation under God--the Founding Fathers' belief that the people of this nation are endowed by their Creator.

Of course, some of "we" don't strive the ideal that we are a nation under God. Unlike striving for a "republic" (e.g., majority doesn't always rule, courts overrule certain laws they pass), the state favoring an religious ideal and having public schoolchildren recite it, is a constitutional no no. The whole point of establishment is that something specifically religious as compared to something else becomes particularly "patriotic." Thus, citation of the Pledge as some patriotic act only worsens the addition of a specifically sectarian tenet.

Health Tyranny In Action?

Noah, on the health bill beat, notes that the tax for not having insurance (under $700 under Obama's plan) will not be collected for a few years, and no criminal penalties or property liens will be used to collect. The horror! Yet again, pays to actually read the bill.

Finding Our Way Again: The Return of the Ancient Practices

I received this book via the Book Sneeze program for free but these views are purely my own.

As with other authors of the books I received, each who is well known among the initiated, I am not familiar with Brian McLaren's work. Amazon tells me that he "Brian D. McLaren is an author, speaker, pastor, and networker among innovative Christian leaders, thinkers, and activist." His innovative style led one clerical review to call this a "dangerous book!" Some were upset that he appeared to be too supportive of Jewish and Islam practice, finding some common ground between the religions, and not appropriately defending Christianity. I find that sort of thing a tad bit silly (but recognize different faiths can be quite passionate about that sort of thing) because each of these religions do have common ground. This very book about "ancient practices" underlines the point. To cite another review:

Some of the practices, he explains, are contemplative (reading, Sabbath, or prayer), others are communal (hospitality, singing, or confession), and still others missional (caring for the sick, helping the poor).

These are not uniquely "Christian" acts and I appreciate those who can find some common ground. The author here also provides a service to the reader by ending chapters with "spiritual exercises," which provides a sort of "workbook" flavor to the work. But, of course, you can skip over that if you like. Still, since the reader is likely reading this work to learn and contemplate the religious faith in question, it is a good idea.

The book is an introduction to an "ancient practices" series and I see it has some stylic points of other entries. This includes boxes that provide key lessons and use of personal experiences to teach. But, it also includes references and analysis of biblical passages. Since I felt another volume of this series did not do enough of that sort of thing, that's a net positive. It also provides a quick but informative look at history. The book also is a quick read and should appeal to the average reader. It is a comfortable paperback that you can skim through and make notes/underline when appropriate.

Some disagree with some of his interpretations. That's not really a reason not to read the book. Challenging beliefs is a good thing. To be honest, the book did not really keep my interest. I will give it "three stars" for a good attempt, but I'm getting the idea that I don't really appreciate the style of this series. But, for those who do, this is worth a look.

The Love Letter

And Also: A few times, I took a brief break from Slate fray work. I'm due for another, I think. Still won't use that new comment system -- no formatting, threading or general area to post stuff, just articles to attach comments.

Caught the rerun of this old (1998) Hallmark film recently and enjoyed it. Based loosely on a short story [spoilers covering both], it tells of a love story through time that doesn't quite all work out the way you might think. No great surprises, but not just predictable. Leads are also good. I wanted to borrow it from the library to show to someone, but darn if the copy was not on the shelf as promised by the computer.

Still, the main branch of the Manhattan library system does have a broad selection of DVDs (fewer videocassettes), if not all shelved correctly, particularly television shows. For instance, I was able to get the full first season of Rules of Engagement (but seven episodes), which was mostly amusing. I also saw a copy of another blast from the past, Once and Again, which began in 1999. No, Sela Ward was not just in Sisters. I also got out the fairly amusing British show, The Vicar of Dibley.

I saw it once or twice on PBS; notice how there are only a few episodes over all, but stretched over a decade.

The Abortion Myth

And Also: I realize the NYT Sunday edition went up (one reason I don't buy it myself), but did not realize that the daily copy is $2. Shows how long since I bought one, I guess. The main stuff is free (for now) online, after all.

Now and then, get an interesting hit on my blog, like one of this post from Charles Darwin University, Australia. I'm glad, since it was one of my better posts; a taste:

An argument was made that life in prison was crueler than execution because the former consists of spending life in a hellhole. Since it is equitable to execute those sentenced for intentional murder, this suggests that capital punishment is more humane than such an alternative. ... This has surface appeal, but is wrongheaded on many counts.

The author of the third book added to my side panel, the abortion one, also has an Australian connection. It was an interesting book that argued that choosing an abortion is ultimately understood by the woman as a moral choice of what it means to be a good mother. The people she interviewed, on both sides, did find her mentor's (Peter Singer) hypothetical solution satisfactory on this front -- an artificial womb. It would in effect be trusting something that was the woman's responsibility, even if it was just to stop the process by an abortion.

I found the short book a bit to reductionist ("the" bottom line was argued to be this basic question, when a person's stance on abortion is a combination of various things), but the basic point is improtant. That is, we cannot just focus on legal matters, and even the issue of "viability" will not solve matters, especially in the future. Ultimately, an important moral question is at stake, and the alleged "value voters" anti-abortion choice side has no monopoly. To quote Justice Douglas' pre-Roe opinion on the point:

"There remains the moral issue of abortion as murder. We submit that this is insoluble, a matter of religious philosophy and religious principle, and not a matter of fact. We suggest that those who believe abortion is murder need not avail themselves of it. On the other hand, we do not believe that such conviction should limit the freedom of those not bound by identical religious conviction. Although the moral issue hangs like a threatening cloud over any open discussion of abortion, the moral issues are not all one-sided. The psychoanalyst Erik Erikson stated the other side well when he suggested that 'The most deadly of all possible sins is the mutilation of a child's spirit.' There can be nothing more destructive to a child's spirit than being unwanted, and there are few things more disruptive to a woman's spirit than being forced without love or need into motherhood."

The full title is a bit misleading: The Abortion Myth: Feminism, Morality, and the Hard Choices Women Make by Leslie Cannold. But, especially if you want to skip the introduction and appendix stuff, it's a good quick examination of the subject -- under 140 pages. Quotes from real people (at first, I thought there would be more, but there is also much analysis) from both sides also adds to the mix. Finally, interesting perspective of the British and Australian situation, which at least in 2000 left (and seems to still appear to leave) much more to the doctor's discretion.*

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* The author notes that dislike of doing the messy work of abortions, not moral disapproval alone, seems to be a major reason why many health care providers refuse to do second trimester abortions. She notes that it is in effect their duty to provide health care, even if they rather not. Also, "health" here is understood to include such things as affect on the family or being able as a whole to handle another child.

Back Again

When it first came on, Rules of Engagement was a comfortable comedy on at the right time. It's new 8:30 time slot is not as useful overall, but last night's episode was pretty amusing. More please.

Numbers

Interesting discussing on teacher training here that led me to an interesting discussion on imaginary numbers. The basic idea, showing the value of math in reasoning things out, is that certain mathematical equations require the square root of -1 ("i").

Beyond Silence

The director of Nowhere in Africa also is behind this smaller but still very good film. It concerns struggles between a hearing child and her deaf parents, including as she learns the clarinet. As noted here, the movie shifts gears some, but I think it holds together.

One More Into The Breach: "Health" and Abortion

And Also: Rep. Stupak has voiced support for 95/10, but I'm really to blame since I had to do an Internet search to determine this. He should be shouting it from the rooftops, every time underlining its importance, since in the end it matters a lot more to those against abortion than his amendment.

Noah tries to convince that the Senate health care bill does not "fund" abortions. This in the face of Rep. Stupak threatening to block it if additional language is put in to selectively target abortions. Why this is a bad idea is suggested here (as usual, nothing to worry about -- only the poor will suffer, they are too small of a group to worry about) but maybe it would help if he spent his time being as enthusiastic spokesperson for one of those 95/10 prevent the need for abortion bills.

There really isn't likely to be a way to make the bill pure enough to totally segregate funds to please some people. These same people assure us we can segregate funds when funding religious organizations. The law doesn't allow to directly fund religious practice, but we can fund religious institutions if they run non-religious things like soup kitchens or abstinence programs, even though money is always somewhat fungible. This they selectively support.

But, I know how these things go, and some Solomon-like solution hopefully can be arranged. All the same, let us not ignore the basic injustice of the current system. Matters of health are not covered for selective reasons of morality. Welfare benefits are provided, even if people choose to use them in a way that furthers their particular religious and moral beliefs. But, a certain medical procedure, one with direct connection to the health of girls and women, is singled out. The only exceptions concern life, rape and incest. Risks to health per se, no.

Roe v. Wade underlined what is at stake here:

The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

How "elective"* are some of these choices? We make many health choices that are in no way compelled to save our lives. I'm not exactly sure why rape suddenly should by itself be a special unique character in the area of health regulation. Not saying it should not be included. Clearly, psychological health in particular is involved. But, more is involved, matters not really health involved alone at all. OTOH, if another child will tax someone's health (a teenager's pregnancy might be an exception, statutory rape often involved by definition), it would not be covered. The Supreme Court has in fact held in Harris v. McCrae that "medically necessary" abortions need not be covered under the Hyde Amendment.

Why? Because some people think abortion is immoral. The attenuated "funding" at issue here takes this to a certain ridiculous extreme, but let's talk about generally. Why is this fair? Why should health care decisions rely on the moral beliefs of some? Many think it is immoral to have a child in various cases. We need to fund childbirth, however, all the same in various cases. We are not only burdening the individual health choices of women, but selectively favoring the religious beliefs of certain groups. This is both bad policy and blatantly unconstitutional.

I understand it is not seen that way, though taking things as far as Stupak wants might be a close question (not saying the Roberts Court would agree). This doesn't change the basic injustice.

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* This op-ed is a mixed bag, but suggests why some are worried about the Stupak Amendment. Some of the comments underline how "elective" (and comparisons to Viagra or breast implants) is to be blunt stupid. Also, it surely isn't a monetary thing -- as Noah notes, the Senate bill does some fancy footwork to avoid the fact that childbirth in fact costs a lot more money.

Coffee and Dying

More on the Coffee Party:

“We’re not the opposite of the Tea Party,” Ms. Park, 41, said. “We’re a different model of civic participation, but in the end we may want some of the same things.”

The Tea Party argues for stripping the federal government of many of its roles, and that if government has to be involved, it should be mostly state governments.

“The way I see it,” Ms. Park said, “our government is diseased, but you don’t abandon it because it’s ill. It’s the only body we have to address collective problems. You can’t bound government according to state borders when companies don’t do that, air doesn’t. It just doesn’t fit with the world.”

Still, she said, “we’ve got to send a message to people in Washington that you have to learn how to work together, you have to learn how to talk about these issues without acting like you’re in an ultimate fighting session.”

Candles on Bay Street by K. C. McKinnon concerns a small town vet who finds out his first love (who now makes candles) is dying of cancer. The first part (a life up to the narrator's 30s and how she affected it in miniature) is the best. Somewhere near the halfway mark, it becomes a somewhat drawn out road to the inevitable, the poetic musings getting a bit thick. It isn't a long book, but it comes off as too long.

I first found out about it because it was made into a Hallmark movie, though I never saw the whole thing, which in fact complicates a few things. The need for padding underlines the thinness of the novel's plot at times. As with Legally Blonde and a few other books, this is one of the times when the film version actually comes off as somewhat better. One of these days, I will see how the movie version ends up. It was well acted at any rate with the main roles fitting the characters, including Alicia Silverstone in the lead.

Latest Being Erica

With an exception to a new assistant at work, the episode didn't address recent plot developments. But, it was pretty good, a step in the future providing a bit more back story about her fellow therapy mate. Not great, including the lesson, but a comfortable watch.

What Is Truly At Stake

It is true that we should look past the governor in the current controversy and remember what this is truly about -- the well being of someone who appears to have been a victim of domestic violence. Not just politics or CYA. Is that too much to ask?

Mets Won

Grapefruit League or not, I'll take it.

People Waited Overnight For This?

Pretty disjointed oral argument; why even use up time that could be used otherwise (e.g., dealing with the actual law) if no one (even those not a fan of substantive due process) really took the p/i argument seriously? Only real question is the scope of the opinions.

And Also

Accord as to the Uighurs ruling today. Thanks, Mr. Ford. I think Gillibrand works and a credible primary opponent should actually help her. But, Ford isn't one, so I'm glad he's not running.

Gun Oral Argument Preview

And Also: Loving Anabelle was on Logo over the weekend. See this review. I'm with those who don't like the ending (including as a matter of personal dynamics of the characters), especially these days.

[Some editing done after first posting; still rough probably, but will leave it there, I hope. It also is patently arbitrary not to immediately release audio on this important case, particularly given the popular interest and the unlikelihood the advocates will really act much differently. A transcript of the oral argument will be available on the Supreme Court's website, but that's simply not the same. Maybe, like noted here, a re-enactment would be useful in cases of this sort.]

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. ... Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms.

-- District of Columbia v. Heller

McDonald v. City of Chicago will be up for oral argument tomorrow to determine:

Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

The result, except perhaps as to privileges or immunities (and that too -- expect some concurring opinion from Thomas), is not really in doubt. Heller repeatedly hints that ownership of firearms is a fundamental right that should be incorporated no less than any other right from in the Bill of Rights. Its discussion of the importance of firearms after the Civil War underlines that this is not akin to the grand jury, the only other right (the Third Amendment in effect applied in Griswold) not incorporated. The comment that the question has not yet been decided is mostly gratuitous and already debatable.

Some argue that federalism might make incorporation different. U.S. v. Lopez, the gun-free school case, suggests that at least some justices might give more discretion (at least in some areas of regulation) to the states here. See also, Printz v. United States (state involvement in enforcing Brady Bill). But, see Justice Thomas' concurrence there (citing a few liberal leaning scholars) a "personal" right. The conservatives, unlike some in the past, have not generally (Thomas' suggestion that the Establishment Clause is a federalism mechanism is an exception that in effect proves the rule) supported a two-tier federal/state approach in this area.

Heller after all involved a local ordinance, but though D.C. tried to raise the point during oral argument, no justice really focused on the point. This is so even though the dissent in the lower court relied expressly on the fact that no one size fits all national law was at stake that would limit state discretion, but one specifically applied to D.C. Would the justices really act differently pursuant to another local ordinance from a state? Someone can reason that they could, but this does not really convince me that they will.

The Supreme Court does allow some state discretion as shown by the test for obscenity, which relies on local community standards in certain respects. State discretion is particularly allowed for juries. Not only may the states not use grand juries even for "infamous crimes" (see Fifth Amendment) but states, and only states, can allow non-unanimous juries to convict. Note that the standard is weaker here, but still some floor is in place. For instance, the Supreme Court set a floor of six people for state criminal juries and juries that small do have to be unanimous.

There is some flexibility in these cases that the sharp debate by Scalia and Stevens in Heller tends to mask. This is on some level unfortunate and it would be appreciated if a Justice Kennedy type opinion* is forthcoming. It might be expecting too much, but a simplistic 5-4 ruling on all grounds in this case would be unfortunate and tiresome. Liberal commentators and leading Democratic political figures (including presidential candidates) accept that there is some personal right to own a firearm. We can debate if this includes the right to own a handgun in certain areas or not. But, can we not agree on a basic point that personal ownership is a sensible approach there?

On this, the dissent by Breyer in Heller was preferred, even if it was too weak as to protection of a fundamental right. Focus on broad and greatly debated interpretations of original understanding brings forth little light in the end and should be avoided if possible. At one point in Heller, a common sense approach is used to define the contours of the term "arms," to wit:

It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.

The concurring opinions in Griswold also take a somewhat similar approach in defining "liberty," which is ultimately the main concern of tomorrow's argument. As Justice Goldberg (with an assist from his law clerk, Stephen Breyer) noted:

"Liberty" also "gains content from the emanations of . . . specific [constitutional] guarantees," and "from experience with the requirements of a free society."

Experience and state practice in particular (state constitutions are repeatedly cited by scholars of the Ninth Amendment [and perhaps "privileges or immunities"] as a means to determine "retained rights") has led to a general understanding that "ordered liberty" includes a right to own firearms, particularly in the home. [see Heller and the dissent here] By the time of the Fourteenth Amendment, the Second Amendment was generally understood to have a personal touch. Events after the Civil War underlines its importance for blacks in particular (though other threatened groups continue to see its value), adding to the original understanding that personal gun ownership was one of the protections secured by the Fourteenth Amendment. And, a "Douglas approach" would suggest other (via "emanations" or whatever) amendments (such as protection of the home pursuant to the Fourth) reaffirm the principle. The spirit at least includes protecting the home with firearms, even as society changed and arguably made the issue more complicated in various ways.

A living history approach does as well. Cruikshank is telling. It arose out of a federal prosecution of an infamous massacre in which the rights of blacks to assemble and carry firearms in particular were threatened. This reflected the post-Reconstruction Era in which state and individual threats to blacks and black ownership of weapons for self-defense was rampant. State inaction (and often involvement) repeatedly threatened the safety of blacks and a realistic security of their basic liberties. The Supreme Court rejected an approach in which federal power could be used to protect such liberties (recognized as such, but not covered by the amendment) unless the state directly violated them, and even then only if a small number of national privileges or immunities were at issue. Or, a clear violation of equal protection, defined rather narrowly.

The Supreme Court, with justices who selectively honor the first Justice Harlan's approach in other cases (cf. Civil Rights Cases [still good law] and Plessy v. Ferguson [not]), still retains a segment of this dubious approach (section II), one which ignores what was accepted by Congress and the executive (and a few judges) at the time until the period of reform passed. But, over time and influenced by the stream of history, it rejected the idea that the Bill of Rights as a whole was not among the "liberties" protected by the Fourteenth Amendment as applied to the states. Meanwhile, even in the face of modern police forces and national guard arrangements, the public generally accepted law abiding people have a right to own guns. The debate generally focused upon the terms of regulation.

So, citations to "pre-incorporation" cases are rather misleading, since as noted in Heller, they also apply to First Amendment protections. Protections in place in various ways even when many people oppose them. Thus, there has to be a reason to selectively not apply the principles of 20th Century jurisprudence to the Second Amendment. The Third is obscure but still should apply when applicable, grand juries would apply a "one size fits all" rule that would overturn modern criminal practice (this might also apply to the Seventh Amendment as to civil cases, but due process secures basic protections in both cases all the same), but most states have some state protection of a right to own firearms. This recalls the segregation context:

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.

It might be thinkable, but is it constitutionally reasonable for states to have a different rule across the board here? A few outliers don't stop the Court from setting a firm rule when the Eighth Amendment is at stake. Why here? Likewise, as with that amendment, specific applications apply general principles with an eye to common practice. The decision here is somewhat harder, but the sound result is still not too complicated.**

Well, that is open to debate, obviously.

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* See, e.g., this case setting forth a basic principle that also applies here:

In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring).

Such an approach used here just might get at least six votes. Dare to dream.

** When the basic principles involved are so open to debate, see also abortion, dealing with specific applications are that much harder. This is why it's useful to have a basic settled broad principle, so we can focus on the specific regulations at hand. Heller also underlines that Supreme Court cases don't just deal with specific facts, but general principles to apply in later cases. Thus, it was not necessarily illegitimately "activist" for it to deal with other matters, such as areas of legitimate regulation.