Could McDonald v. Chicago Be Narrowed?

McDonald is an example of what you can call a voting paradox. Why? Because despite the fact that Chicago won on both its arguments, it still lost the case. Won on both it’s arguments? Has Sebastian lost his mind? Well, yes, a long time ago, but let me explain. Chicago argued that the Second Amendment was not applicable to the states because of the Privileges or Immunities clause. It won that argument 8-1. It also argued that it was not applicable via the Due Process clause either. It won that argument 5-4. But it still lose the case because Thomas concurred in judgement. The Supreme Court, in the case of Marks v. US created a rule to attempt to deal with plurality decisions. David Cohen, over at The Faculty Lounge, gives us some analysis of McDonald and the Marks rule, and determined it can’t apply to the decision. Interesting. I’m not sure I fully understand what the implications are, but interesting.

Dry Ice Bomb a DD?

Something doesn’t smell right:

The mother of a 14-year-old boy accused of making bombs out of dry ice appeared in court Tuesday. The woman, 39, is charged with possession of a destructive device and child abuse. She was arrested over the weekend and released on her own recognizance.

Wait a minute, since when is a dry ice bomb a destructive device? But sure enough, look at Nebraska law and it defines it as:

Any explosive, incendiary, chemical or biological poison, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, (F) booby trap, (G) Molotov cocktail, (H) bottle bomb, (I) vessel or container intentionally caused to rupture or mechanically explode by expanding pressure from any gas, acid, dry ice, or other chemical mixture, or (J) any similar device, the primary or common purpose of which is to explode and to be used as a weapon against any person or property; or any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subdivision (7)(a)(i) of this section from which a destructive device may be readily assembled.

So it would seem if you pick up some dry ice for your freezer in Nebraska, you better not have any bottles or sealable containers! But there is a section that would get most people out of trouble:

(b) The term destructive device does not include (i) any device which is neither designed nor redesigned for use as a weapon to be used against person or property, (ii) any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line-throwing, safety, or similar device, (iii) surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to 10 U.S.C. 4684(2), 4685, or 4686, as such sections existed on March 7, 2006, (iv) any other device which the Nebraska State Patrol finds is not likely to be used as a weapon or is an antique, or (v) any other device possessed under circumstances negating an intent that the device be used as a weapon against any person or property;

But it’s interesting that the Nebraska Unicameral considers a dry ice bomb, normally a prank device, to be the equivalent of heavy artillery or weapons of mass destruction legally.

NRA Announces Opposition to Kagan

You can find the letter to Leahy here, but here’s the meat:

Any individual who does not believe that the Second Amendment guarantees a fundamental right and who does not respect our God-given right of self-defense should not serve on any court, much less receive a lifetime appointment to the highest court in the land. Justice Sotomayor’s blatant reversal on this critical issue requires that we look beyond statements made during confirmation hearings and examine a nominee’s entire body of work. Unfortunately, Ms. Kagan’s record on the Second Amendment gives us no confidence that if confirmed to the Court, she will faithfully defend the fundamental, individual right to keep and bear arms of law-abiding Americans.

For these reasons, the National Rifle Association has no choice but to oppose the confirmation of Solicitor General Elena Kagan to the U.S. Supreme Court. Given the importance of this issue, this vote will be considered in NRA’s future candidate evaluations.

So they are opposed, and it’s going to be graded. No doubt the haters are going to take credit for forcing NRA’s hand — to do what they did not want to do. Their valiant efforts have clearly gotten NRA to fold on their plan to merely let Kagan slip on through. Because they hate the Second Amendment, you know.

Second Guessing the Pros

There are an awful lot of folks out there questioning NRA’s position on the Kagan nomination, believing that they need to be up front and aggressive in going after her. I agree with them that Kagan is going to be a disaster for gun rights, and for the Constitution in general. I also don’t find the position to be implausible or irrational. I won’t tell you there haven’t been moves by NRA that haven’t puzzled me, and I disagreed with, but I have very seldom second guessed their strategy in public. Why? Because I am not about to second guess professional lobbyists, any more than I would call up my insurance company, and offer them actuarial advise, or call up an orthopedic surgeon and suggest he’s been doing knee replacements wrong all these years.

I would not go so far as to say Chris Cox is a Vulcan chess master, but I understand what the author is trying to convey here, and agree with it. All of us, with the exception of my readers who are professional lobbyists (you know who you are), are operating at a very significant information deficit relative to the people who spend a large amount of time on the Hill communicating with lawmakers and congressional staff. Even though many more of us know the basic rules of this game, and have a pretty good idea how it is played, without that full time engagement we simply do not have enough information.

So how do we know the professionals can be trusted? Well, you can’t. All you can really go by is track record. But if there’s an interest group who has a better track record on their issue than NRA, especially in this Congress, I’d really like to know who they are. Do they make mistakes? Sure. This is a game such that no one has perfect information, so outcomes can never be completely deterministic. But the people who are playing the game are in a far better position to be able to call the right moves than those outside of it observing. That’s largely why you’ll hardly ever hear me say NRA should zig when it looks like they are getting ready to zag. What I typically do is try to explain plausible rational for a zag based on what I know about the game, or what information I might have on the move. And there has been a few times I’ve thought they should zig, thought they would zag, explained that rationale, and they ended up zigging. None of us are working with perfect information, especially commentators like me.

That’s not to say there’s anything wrong with armchair lobbying. Many of us watch this because, like some people love football, we enjoy the game. Even if, like football, we don’t always enjoy the results. But it is difficult for me to understand how folks can believe, often with what seems like a burning passion, that NRA is certainly wrong, and is making a move that is sure to destroy our gun rights. I don’t think there’s one single reason that explains it. But I do notice that some have a tendency to believe that NRA’s role is to affirm their core beliefs. They would be up shouting before Congress if they had the opportunity, so they expect NRA to do the same on their behalf, since NRA does have the opportunity. They are not people who enjoy the game, and may even resent the game. They probably don’t even want to accept that it is a game. But that’s what politics is — because it’s the art of people getting along with each other and running a society without resorting to another, more serious variant of the game, which I think we all can agree is least desirable (though we certainly have an element who fantasize about it, in my opinion without a serious consideration of its horrors or consequences). I can understand completely why people hate politics, and don’t like having their lives screwed with. But that’s, for better or worse, the system we have, and it’s better than the alternatives. If you get frustrated, throw your hands up, and stop playing, you lose — the other team won’t give up.

I can see the point of those who say NRA needs to be more aggressive. But I’m going to trust the people who are regularly on the Hill and have a lot more information than we do about the best way to proceed. If they advise patience, I’m going to be patient. Truth is, I don’t think there’s any way we’re derailing Kagan, regardless of how NRA moves. Nominees are very seldom rejected, and nominees getting derailed by the President’s own party when that party had an overwhelming majority in Congress is absolutely unheard of. Elections have consequences folks, and for the people who said John McCain wasn’t good enough, and sat out 2008, I really don’t want to hear any complaints.