2nd Amendment Ruling in District of Columbia v. Heller
I will come right out and say it that the Court got this right. The traditional theory to explain gun control in light of the 2nd Amendment is that the right is a collective right given form through state militias (or what we might call today, the State Guard). I've been searching for words to help describe why I feel this just didn't cut it for me, because it runs counter to the usual liberal song and dance that, in general, I subscribe to. Thankfully, I found those words today in an OpEd by Eugene Robinson.
I've never been able to understand why the Founders would stick a collective right into the middle of the greatest charter of individual rights and freedoms ever written -- and give it such pride of place -- the No. 2 position, right behind such bedrock freedoms as speech and religion.Makes you think... what if the 4th Amendment (restrictions against unlawful search and seizure) had been interpreted as a collective right... or Freedom of Speech? I may not agree with the 2nd Amendment, but it's on the books and it deserves the same constitutional force as all the other amendments.
Obama Campaign Pledges
There are three at issue... a commitment to stay in the Public Campaign Finance program, a commitment to engage in a different kind of politics vis-a-vis the general election, and a commitment to filibuster any FISA amendments that included retroactive immunity for telcoms. I give a thumbs up to getting out of public financing. Obama is raising tons of money across the spectrum of donors and he should continue to do so. The Republicans have fought dirty in the past and I see no reason to believe 2008 will be any different. I give a thumbs down to the Obama campaign's refusal to engage in Town Hall meetings with John McCain. I don't care if they are McCain's best format... they are formats where you have actual discussion and are tons better than traditional debates found in previous Presidential elections. And as for FISA... well, I suppose that's politics and everyone can changes their mind sometimes, which brings us to...
Telecommunications Immunity in FISA
I've thought long and hard about this since it became apparent that immunity for the telecommunication company's involvement in the Bush Administration surveillance program was all but a sure thing. For a long time, I was really upset. I even watched most of Sen. Dodd's floor speech where he railed against the decent from the Rule of Law into the Rule of Man. In theory, I agree... but in politics, I think theory must give way to the practical.
So I asked myself to try a little thought experiment... what would I do if I was an executive of a major telecommunications company? Lets assume I'm your standard executive whose primary concern is the financial well-being of my company, it's shortly after September 11th and representatives of the President of the United States shows up in my office saying "for the good of the country, we need your help." I, of course, ask the question any good executive worried about the financial well-being of my company would ask, "what are the legal implications?" to which the representatives say, "the President has authorized this under his Article II powers to defend the country as Commander & Chief." What, realistically, is the chance that my follow up is going to be, "you know, I think we should go to Congress and get explicit approval" or "how about we draft up a brief and ask the Courts to weigh in?" No, I think the most realistic response is going to be, "if you provide my company with a legal document from the President authorizing this activity, then we will provide assistance." To do otherwise is to tempt the wrath of the President and the ire of the American people just after the largest terrorist attack in the country's history.
Now, of course, I don't agree with the President or his advisers. The program itself goes too far and the President lacks the authority to authorize the violation of the law. But there are specifically delineated tools at the disposal of the Congress and the American people to restrain, and if necessary remove, the President for such violations of the law. The telcoms, in my view, are less-than-innocent bystanders in this case. Did they break the law? Probably, yes. Did they do so under what amounts to duress under Presidential order? Seems like, yes. Is the one who we should be going after sitting in the Oval Office? Absolutely, yes. Which is why the immunity provision in the FISA amendments is actually a sort of poetic justice. Every time one of the telcoms gets a suit against them dropped, they must produce documented proof, in open court, that the President specifically authorized the activity in question... every time the public will hear, the President told us to break the law. Whether or not that leads to any legal ramifications for the suits against the government, I'm unsure. But I think in the political/historical context, it will mean a lot to have the world hear, over and over again, that the Rule of Law was put aside because the President said so.
So now we will turn to the proper tools, whether that is individual suits against the government or political actions by the Congress, is up to those who wield those tools. But I think these sorts of approaches go after the true villains of the piece and are preferred over attacking the middlemen.