Tenth Amendment Challenge Presses

Gun Rights: The Tenth Amendment Version

The BATFE is sending letters to gun dealers in Montana and Tennessee stating that it will ignore state laws on intra-state manufactured firearms. The legislatures of these states passed these laws to remind Congress that the Constitution only allows the Federal government to regulate "interstate" commerce, and because the Tenth Amendment reserves non-delegated powers to the states, or to the people.

There's been quite a bit written about this, and I think everyone was expecting the Federal government to simply assert its dominance in this way. I doubt the change of administrations has made any difference here; it's more a question of real power, which all recent administrations (and all Federal bureaucracies) have liked to gather to themselves. It was always a question of how the states would respond, or whether private citizens like gun dealers would force the issue themselves.

So take this post, then, not as a warning of some new tyranny; but just an announcement that the next step in the dance has occurred.

New Year's Cartoons

Cartoons for the New Year:

The Geek with a .45 was celebrating an apparent Looney Toons marathon held today in honor of the new year. I missed it, lacking television of any sort, but his enjoyment of the thing reminded me of an example of the beauty that sometimes can arise from needless duplication. Consider the strange case of "Rhapsody Rabbit" versus "The Cat Concerto."

The same year Warner Bros. released Rhapsody Rabbit, MGM produced a very similar Tom and Jerry cartoon called The Cat Concerto, which features Tom being distracted by Jerry while playing in a concert. Most of the gags are identical to both cartoons, and they used the same music that was played. The Cat Concerto won an Academy Award for Best Animated Short Film.

Both MGM and Warner Bros. accused each other of plagiarism, after both films were shown in the 1947 Academy Awards Ceremony. Technicolor was accused of sending a print of either cartoon to a competing studio, who then plagiarized their rival's work. This remains uncertain even today, though Rhapsody Rabbit has an earlier MPAA copyright number and release date. The massive similarities could be coincidental. The animators at Warner Bros. and MGM were experienced in making cartoons, and it could be likely that they all thought of similar concepts and expanded them, not knowing that similar situations resulted in each cartoon.
Judge for yourselves.

You might also be forgiven for thinking that Bugs Bunny's tongue-out performance was a clever mockery of The Devil Himself; but you'd be wrong. Jerry Lee Lewis cut his first demo record in 1954, eight years after this cartoon was filmed. Bugs Bunny got there first.

Dark Hypocrisy, etc.

Dark Hypocrisy, etc.

Today's installation in 'finding the dark hypocrisy at the heart of Middle America' is on Starbucks.

It brought us exotic places and sounds, exposed us to an underground in the safety of a cushy seat: teaching us about places where our coffee came from, and new music and literary voices. It tried to be our cultural guide and helped us feel good about our environmental footprint through its green campaigns and aid to farmers, even if Starbucks did little and we did nothing but buy coffee. It did so consciously, purposefully manipulating our desires, hopes and aspirations, all the while making us feel good about ordering up a venti soy latte.

But, we also knew, on some level, that it was all a delusion we actively participated in. “Starbucks worked as a simulacrum,” Simon writes, “it stamped out the real essence of the original idea of the coffee house and, through proliferation and endless insistence, became itself the real thing for many bobo and creative types.” Even as we believed we were being individuals, demonstrating our sense of style, we were just following the javaman’s master plan.
Good lord, people.

Why do you have to believe that there is some 'dark hypocrisy' about this? Starbucks is selling you a product: coffee. It has many competitors, so it tries to find a niche for itself. It offers what it claims is premium coffee, at a premium price. It offers you the chance to 'upgrade' your purchase by allowing you to buy 'fair trade' coffee. Some people want to do that, so they find themselves with a niche market, and they make a good living. Meanwhile, you buy the coffee (and, perhaps, the good feelings) you want.

What's the hypocrisy? Starbucks is making you a fair offer; you're free to accept or reject it.

I went into a Starbucks not long ago, while I was up in D.C. The fellow behind the bar was carefully projecting his gayness to everyone, and carefully taking their orders for very fancy and sophisticated styles of coffee, using the pseudo-Italian terms that the franchise prefers.

As soon as I stepped up, he looked at my cowboy hat and asked very pleasantly, "Small, medium or large?" I thought that was good service: pretense for those who want to buy pretense, strong black coffee for those who only wanted that.

Death Passes By

Death Passes By:

The news this morning is worth celebrating. 2009 ends with the lowest level of casualties among our servicemen and women in Iraq, and December ends with none killed there in combat at all.

I remember when the Surge was being considered, a lot of people opposed to it demanded to know if you could define what "victory" would even look like. Well, I suspect it looks something like this.

Whether a similar victory is possible in Afghanistan, given the resources and the timeframe we have available, I cannot say. In Iraq, though, our faith and commitment was rewarded. The Kurdish problem remains a latent one, but much we chose to achieve has been achieved.

Now it must be guarded. That work may not be ours for long, but it will be someone's, if the achievement is to last.

All things achieved and chosen pass,
As the White Horse fades out of the grass[.]

A Merry New Year To You All:

This New Year's carol starts off very pious and proper; and about halfway in, descends into riot. In this way it is just like a good New Year's celebration.


Memento Mori:

As we close the year, Greyhawk reminds us of what has passed.

The only thing needed to really sell the story was a brigade to actually be "shifted" from a planned Iraq rotation. There were plenty available, but the lucky one chosen to earn Obama his headline (and an all too brief bump in American popularity polls) was the 2nd Infantry Division's 5th Stryker Brigade Combat Team.
Like previous Stryker brigades, the 5th Brigade has put dozens of its troops through intensive, 10-month Arabic language training. They were tested in exercises last month....
Those months of training and preparation were scrapped (one example: they don't speak Arabic in Afghanistan) so the phrase "Barack Obama diverts 17,000 soldiers from Iraq to Afghanistan" could appear in newspapers. But while a reduction in force in Iraq as a result of greatly improved conditions there would be both welcome and overdue (and military units go where they're needed), that part of the story was the real "big lie". A mere few days later, the Obama administration would rather quietly announce that "Gen. Odierno will receive a Stryker Brigade to replace the incoming replacement brigade diverted to Afghanistan just a week ago." The 4th Brigade, 2nd Infantry Division was scheduled to deploy to Iraq "several months ahead of the original schedule, Army officials said Monday."

Some comments from those most affected here. But while it was certainly a big story here last year, unlike the news coverage of Obama's "Iraq drawdown" and "diversion of troops from Iraq to Afghanistan", the revelation that it was all actually a complete fraud (and in fact an overall increase in troops in the combat zones) would pass without notice in the American media.


End of year update: Where are they now?...

The 5th is in Afghanistan:

Stryker soldiers say commanders failed them

...In late November, brigade commander Col. Harry Tunnell decided a change had to be made. He replaced Capt. Joel Kassulke, the commander of 1-17's Charlie Company, which had taken 12 of the casualties.

But Kassulke's former soldiers say that not only was he not to blame for the casualties, the 1-17's problems started much, much earlier.

Mismatched training

...The battalion had spent much of the previous two years training for combat, but preparing for the wrong theater -- until February, when it got orders for Afghanistan, 1-17 was scheduled to deploy to Iraq.
Michael Yon has a moving photo essay of their memorial to the soldiers they've lost on this mission.

Greyhawk ends, "Barack Obama is still President of the United States, and recently received the Nobel Peace Prize."

Finally, remember our comrades from the CIA -- that part of the Agency that gets out there, and does what needs to be done. Like the ePRTs from the State Department, regardless of the difficulties of their parent bureaucracy, the ones who 'ride out' are our own kind.

At Last

"At Last"

A young lady I'd not heard of before tonight, named Neko Case, sings here a poem that grabs the attention and holds it for its brief span.

Not bad. "I can say that I've lived here, in honor and danger," but cannot explain life; and at last, go trembling but willingly with death. No, not bad, for a death poem in the Zen tradition. For a country music singer from Alexandria, VA, quite astonishing.

Rose Parade

Rose Parade:

Bthun wanted me to mention that RFDTV will be covering the Rose Parade. They don't cut away from the equine parts of the parade, which is the whole reason to watch the parade for some.

My wife's grandmother used to be a regular ride in the Rose Parade, with a sidesaddle group.

States Take Action

States Take Action on Health Care Reform:

Utah joins the fray:

Utah's attorney general is preparing to joins a lawsuit that challenges the Senate's massive health care reform bill. Utah is one of 10 conservative states prepared to challenge the health care bill.

The reasoning behind the suit goes way beyond the cost of the legislation. The attorneys general, including Utah's Mark Shurtleff, say there are constitutional questions. Even more, they say the so-called Nebraska compromise part of the deal smells of corruption....

[The states] have constitutional questions about mandating state legislatures to enact portions of the bill.

"That's unprecedented. State legislatures can't be mandated by the federal government to do anything," Swallow says.
The Voting Rights Act springs to mind; it mandates that certain (but not all) state legislatures structure their gerrymandering apportionment in certain ways, and then submit them to Federal review. However, that is rooted in clear Constitutional authority: the Constitution itself requires the state to pass laws regarding the handling of elections, and the 14th Amendment imposes the requirement to see that there is equal protection for those who are citizens. Since the states ratified the Constitution and its amendments, this is not the same thing as the Federal government unilaterally assuming the power to order state legislatures to pass certain laws.

That, by the way, is seven constitutional challenges by my reckoning:

1) Is it constitutional for the Federal government to require US citizens to purchase a product as a condition of existence? (General question: where is the authority?)

2) Is it constitutional for the Federal government to override the religious objections of doctors and nurses by forcing them to provide abortion coverage if they are Catholic or otherwise objectors? (First Amendment, freedom of religion.)

3) Is it constitutional for the Federal government to override the religious objections of citizens by forcing them to materially support abortions by paying into a mandatory fund that will be uesd to provide them? (First Amendment, freedom of religion.)

4) Is it constitutional for the Federal government to impose the religious objections of Rep. Stupak and others on women by allowing the banning of abortion coverage? (First Amendment, freedom of conscience.)

5) Is it constitutional for the Federal government to rewrite the insurance industry's practices in such a comprehensive way, without providing just compensation for their existing investments, and a fair profit margin? (Fifth Amendment, seizure without recompense; see Prof. Epstein's paper.)

6) Is it constitutional for the Federal government to override what appears to be a clear statement by the Tenth Amendment that this is an area left to the states? (Tenth Amendment, powers not delegated.)

7) Is it constitutional for the Federal government to dictate to state legislatures what laws they will pass? (General, where is the authority?)

I'd add an additional one: is it constitutional for the Federal government to adjudicate such a dispute in Federal courts? The constitution created both the State and Federal governments, with separate spheres of authority. The 14th Amendment broadened the Federal authority to a very great degree, and brought state laws within the scope of Federal courts. However, I don't see that it likewise made the Federal courts the proper place to answer questions about where Federal power ends and State power begins.

That is a question that neither sphere of government could expect to examine dispassionately. It seems to me to be an issue that is meant to be resolved not in court, but with the democratic mechanisms. The Federal government has a clear interest in the disposition of the power structure, as do the State governments. The People are the only ones who should be making these choices.

That implies a need to answer the question through the amendment process, or the Constitutional convention process. Those move through the democratic mechanisms, in order to return the question to the People and seek a clear, new authority. No other settlement should be considered valid, I would think, given the clear conflict of interest that the court would have.

Bendigo Shafter

Grim's Hall Book Club: Bendigo Shafter

Several of you have suggested to me over the years that we do a book club, like we used to do the movie club. I think I've come across the right book for that, if enough of you are willing to commit to the project.

The initial book is Louis L'amour's Bendigo Shafter. You can probably get it from your library sytem; if not, it is available from Amazon both used and new for a reasonable price. (Grim's Hall is not an Amazon affiliate; I merely wanted to simplify your obtaining the book.)

The book is a Western adventure of the type L'amour loved to write, but it is also the fullest explanation of his ideas about how a young man should be educated. Too, it includes a number of passages that make clear his ideas about the good life, right ethics, and politics.

My idea is that we'd start with this rather pleasant read, and then follow it up by reading at least the best of the books he has his young hero read. I am thinking we could get some of you to lead the discussion on books that you are personally well-prepared to discuss: for example, Eric might lead the discussion on Plutarch, and Major Joel Leggett might take the discussion on Blackstone. That way, even if everyone can't read every book, we'd all benefit from the project.

Most of the subsequent books should be available online, as well as through libraries, which will keep the cost of participating in the club to a minimum. I think it would be illuminating.

Who would like to participate?

Security and Travel

Security and Travel:

John Derbyshire remarks that the future of commercial airline travel does not appear bright:

If, as seems likely, we are in an arms race between, on one side, crazy jihadis fired up with visions of paradise, and on the other, bored airport-security personnel on minimum wage, it looks inevitable that sooner or later the jihadis will score one. What's to be done?

• Stop issuing visas to citizens of Muslim countires? No, the jihadis are all over. This next batch is British-born.
Cops fear that 25 British-born Muslims are plotting to bomb Western airliners. The fanatics, in five groups, are now training at secret terror camps in Yemen … The British extremists in Yemen are in their early 20s and from Bradford, Luton and Leytonstone, East London. They are due to return to the UK early in 2010 and will then await Internet instructions from al-Qaeda on when to strike.
• Stop issuing visas to Muslims? Identified how? By name? What about this guy?

• Trust the feddle gubmint to maintain efficient databases on terror suspects? Ha ha ha ha ha!

• Trust the Department of Homeland Security to keep one step ahead of jihadi ingenuity? Woo-hoo hoo hoo!

• Vanquish evil at its source? Okay, how's that going? Not so well.

It seems to me that the future of commercial air travel is not bright. The business is already part-militarized; and military protocols don't mix well with commerce. A rash of successful terrorist bombings could kill off the whole industry.
The military actually handles this whole business of trans-Atlantic flights much better. I've taken military-chartered aircraft across the pond several times, and I'm always impressed with how well it compares to civilian flying. The military protocols make it much easier to do thorough security checks, smoothly and efficiently.

Too, the military prefers that you keep your rifle with you; and permits any knife under three inches in length as well. Since we still teach pugil stick fighting in the services, every one of those rifles remains a powerful weapon even without ammunition. I'd like to see the jihadi who could hijack a SAMS flight.

The TSA's personnel are less impressive than the military's; and its mindset is purely reactive. This latest nonsense about not having reading material in your lap during the last hour of the flight, for example -- the Christmas bombing was supposed to happen during the last hour of the flight, 'So obviously we need to lock that down!'

Yet the 9/11 hijackings, please recall, were designed to happen during the first hour of flight, when the planes would still be full of fuel. That was what made the planes such explosive and powerful weapons, capable of taking down skyscrapers. By focusing your eye on the last bombing, you've forgotten the first one. By obsessing about this latest threat, you've created a new opening for an attack based on the more dangerous model. They're in your OODA loop, as Ymar likes to say.

This time, that wasn't enough. The very thing that saved this last flight was jihadi inventiveness -- their very innovative bombing design didn't work, as prototypes often do not when first tried under field conditions. Their adaptiveness both allowed them to get the bomb on the plane, but was the source of the bomb's failure. This isn't the first time this problem has arisen for them, and it won't be the last.

We've got some good tools to apply to the problem -- our counterterror intelligence efforts had this guy's number, for example, if only someone had listened to them.

Meanwhile, why not take the train? At 217 MPH, you could link Atlanta to Boston in five hours; six, if you include a few minutes for stops in each Charlotte, Greensboro, Richmond, D.C., Philadelphia, NYC, and then Boston itself. We'd get a lot more out of such a line than China will out of its train: if you built it robustly enough, it could handle a substantial amount of the day-to-day business travel in America. If you're looking for a jobs program in a difficult economy, I can think of worse ones; unlike most government spending, we'd be getting something tangible out of it.

Meanwhile, train cars can be stronger than a plane's body, and can be made smaller: you can contain a bomb with one, I mean to say, segmenting the maximum amount of damage a single bomb can do. It's not a good answer for trans-Atlantic flights, but you could redirect a substantial amount of our national air travel onto high-speed rails, while foiling terrorist designs and benefitting the manufacturing and labor sectors of our economy at the same time.

May God Defend the Right

May God Defend the Right:

Trial by combat pit a miracle of God each time, by invoking his aid in bringing about a just settlement to a case decided by wager of battle. Surely the mullahs would join such a prayer today, would they not?

This is the point at which the entire Bush-and-Clinton administration strategy for Iran is coming to a head: to pressure the regime while offering at least rhetorical support to those Iranian people who seek democracy in their hearts. The current administration wanted a different strategy, of engagement with the regime; and therefore, has chosen to allow the regime to isolate the people we once encouraged.

There is little we can do but pray, as the levers of power belong to those who have set that course. We must abide the result of the prayer, and the wager it represents.

Ashura, by the way, is the day of mourning for the martyrdom of Ali, who stands at the fountainhead of Shi'a Islam. Modern men, born centuries after the battle in which Ali was killed, cut and whip themselves to shed their blood in sorrow for the fact that 'we were not there to defend you.'

Mark that well. It may be we will one day wish that we had been there, now, when it mattered.

Arctic Explorers - Reminder

Arctic Explorers and a Reminder -

I see that this week's WSJ "five best" is about books on Arctic Explorers. The fifth is by Roald Amundsen, the Norwegian explorer who was also the first to the South Pole.

Some years ago, I read The Last Place on Earth, a parallel biography of Amundsen and the English explorer Robert Falcon Scott. This account points very strongly to this conclusion: Amundsen spent his whole life preparing for his explorations, from his youthful cross-country skiing through an extended sojourn among the Eskimos through several Arctic voyages. Scott, by contrast, was ill-prepared, inefficient, and egotistical (thinking Amundsen should refrain from seeking the Pole because it was somehow "his"), and as you know his expedition all died (amongst other things, Amundsen managed to keep his dog teams for the entire journey; Scott brought ponies, who were all killed for food, and sent his dogs back long before the trip was over, hauling gear by human muscle). Yet Scott has been an inspiration to many - even to Ralph Vaughan Williams, whose Sinfonia Antarctica started as the score to Scott of the Antarctic - and was buried under stirring words from Tennyson: "To strive, to seek, to find, and not to yield."

In exploration as in warfare, there is something to be said for the fanatic, who will perform prodigious feats of endurance and bravery. But it is the professional who wins, and brings his men home alive.