Bill Kristol thinks that Sarah Palin could beat Barack Obama in a one-on-one basketball game. One of the more relevant political points made this election year. I congratulate Kristol on sticking to the issues that people care about.

Today, the Supreme Court ruled in favor of an individual right to own guns. The decision overturns two essential components of the DC gun ban: the complete prohibition on handgun ownership, an the requirement that all guns possessed in DC (by individuals, rather than business) be stored in a completely unusable fashion.

The court did not go so far as to extend the Second Amendment to the states, however, as that was not in question. A footnote in the decision suggested that the second amendment right did not necessarily apply to the states, leaving gun bans that might exist beyond Federal jurisdiction intact.

Update: Tom Goldstein seems to think that the SCOTUS would incorporate the Second Amendment against the states.

Update 2: I am going to have to disagree with Mr. Goldstein after reading the footnote referenced above. Quoted here:

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. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government. (Emphasis Added)

While this footnote is not binding precedent, as it is merely an extention of the dicta, it would seem to suggest that at least Justice Scalia believes that the Second Amendment does not apply to the states.

A couple may try to go the independent adoption route, but this route is haphazard and disorganized, and information about babies available for adoption through it is hard to come by. Some states, moreover, have outlawed independent adoptions. 6 It goes without saying that both adoption through an agency and independent adoption favor the wealthy and well connected. The final alternative is the black market, a form of independent adoption. The black market is by definition illegal, 7 and illegality forces price up and quality down and makes prospective buyers uneasy. Long queues, shortages, uncertain quality, a black market — these are the classic symptoms of excess demand, whether in the baby market or the Soviet food market.

67 B.U.L. Rev. 59, 62 (also here)

The above is a quote from a 1987 law review article by Judge Richard Posner, discussing and defending his position on taking a market approach to adoptions. In this article, as well as at least one earlier one, he argues:

The supply of babies for adoption has been dramatically affected by the increase in abortions since the Supreme Court’s decision in Roe v. Wade. 9 The number of reported legal abortions rose from nearly 600,000 in 1972 (before Roe) to almost 1,300,000 in 1983, the last year for which reliable figures are available. 10 Of course, even if abortion were illegal, there would still be many abortions, and of the additional babies born many would be retained by the mother. Nevertheless the supply of babies for adoption would be greater. Because of Roe v. Wade, the state cannot compel a woman determined to have an abortion to have the baby and give it up for adoption, but it does not follow that the woman should not be given incentives to do so. For many women, abortion is a last resort; indeed, most supporters of a right to abortion insist that this is generally the case. Thus, for little more than the maintenance and medical expenses of pregnancy plus any lost earnings, and often for less, many women might be induced to forgo an abortion and give up the baby for adoption. Dr. Landes and I proposed authorizing some adoption agencies, on an experimental basis, to use a part of their adoption fees to pay women contemplating abortion to forgo the abortion, have the baby, and put it up for adoption through the agency.

67 B.U.L. Rev. 59, 63

While Posner goes on to state that he is not calling for the repeal of laws forbidding the sale of babies for adoption, as I am, his argument is not that far off from the ones I have tried to make. I therefore apologize to the Judge for not doing my research prior to my initial post.

Here’s a quick summary of his arguments:

•  Free-market babies would probably cost less than under the current system, and the price would be a fraction of the total cost of raising the child. Perhaps comparable to the medical expense of pregnancy.
• Posner argues that child-abuse laws would prevent any insidious potential of such a market.
• He disagrees with me, arguing that specific-performance should not be a remedy for a breach of contract.
• He expresses an interesting concern about eugenicists who might go into the übermensch-breeding business, and suggests that government ought to regulate against that.
• Detractors of this system often extrapolate from experiences with the illegal market, but a legalized market would operate differently.
• Posner rejects the slippery-slope argument that selling babies would lead to slavery. He compares it to the argument against selling blood, the military draft, and the argument for socialized medicine — arguments that all rely on symbolism more so than logic.
• Though baby selling is illegal, almost half of the states (in 1987) had no specific restrictions on the amount of fees payable for adoption.

One million abortions a year is a serious social problem regardless of where one stands on the underlying ethical issues; so is a flourishing black market in babies combined with a severe shortage in the lawful market.

The tenth amendment is the most ignored of the original ten. Until now. Oklahoma rediscovered that the Tenth Amendment seems to grant exclusive sovereignty to the states over all areas not granted to the federal government within the constitution.

It will be interesting to see what becomes of this. My instinct is that we should not be holding our breath waiting for a showdown between Washington and Oklahoma City. Nonetheless, it is an excellent reminder that federalism was the intent of our founders.

Ross Perot, famous for his prime-time, pie-chart laden infomercials, is back with brand-new charts. Challenging America’s spendthrift ways, Perot argues that enormous deficits caused by entitlement programs are leading America down a path of destruction. 

The United States faces large and growing budget deficits mostly due to an aging population and rising healthcare costs. Unless we solve the problems caused by entitlement spending, there will be little money left to do anything else in the future. Over time, our standard of living, our national security, our standing in the world and the value of our currency could all be threatened. The sooner we confront these issues, the better. This presentation explains the problems.

Ross Perot compiled the work of former comptroller general David Walker and others. Professional wed-designers were hired to create 35 charts, which are explained through narration. Perot does not advocate any particular solutions, but does clearly point to large federal entitlement programs as the culprits of our overspending. 

Perot, who at 78 is older than John McCain, is not getting back into politics. At least not as a candidate. He is instead using one of the tools of his 1992 campaign for president to try and influence the direction of the nation going forward.

“Sex on the Internet?,” they all said. “That’ll never make any money.” But computer-geek-turned-entrepreneur Gary Kremen knew an opportunity when he saw it. The year was 1994; domain names were free for the asking, and it would be several years yet before Henry Blodget and hordes of eager NASDAQ day traders would turn the Internet into the Dutch tulip craze of our times. With a quick e-mail to the domain name registrar Network Solutions, Kremen became the proud owner of sex.com. He registered the name to his business, Online Classifieds, and listed himself as the contact.

Kremen v. Cohen, 337 F.3d 1024, 1026 (9th Cir. 2003).

The above is the opening paragraph of a Ninth Circuit opinion authored by now-Chief Judge Alex Kozinski; a favorite among libertarians and good-humored legal scholars alike.

As part of a rotation where appeals court judges are occasionally assigned to criminal trials, Kozinski was slated to preside over the federal obscenity trial of “shock-porn” filmmaker Ira Isaacs. The charges brought are for distributing pornography depicting bestiality, defecation, and probably a myriad other forms of kink (the case was brought after pressure was put on the DoJ by the Fundies).

Before the trial could even get underway, however, a disgruntled lawyer discovered an otherwise-unpublicized website, that happened to belong to the Chief Judge.

Here are the facts as I’ve been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski’s son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.

On that website, Kozinski had posted a number of “questionable” items. These were the sort of things that have landed in many of our inboxes, I am sure. The judge decided to store them on what he thought was a private server. It wasn’t. To top it off, some of the material on the server was sexual in nature, which of course is a tad scandalous considering the nature of the case he was presiding over (though as Eugene Volokh notes: the materials were not really similar to those in the trial)

Nonetheless, in a somewhat unusual move, Kozinski suspended the case and called for an investigation of himself after the news broke. He has since recused himself from the case.

While the lapse in judgment that allowed this to happen is certainly a black mark against the Chief Judge, it is only one tiny black mark in a lengthy career that is otherwise filled with principled judgments, and well-formed opinions.

Alex Kozinski was never the man the government wanted presiding over a trial of this nature. Now, they will not have to worry about that.

Update:

I would like to address some issues that came up in a comment.

The first thing to note, and this was a server that was owned and operated (or at least rented and administered) by Kozinski’s son, Yale. Therefore, it is somewhat of a logical-leap to assume that Kozinski was aware of uninvited visitors downloading from his site when Sanai used up (apparently) the last of his bandwidth. Yale certainly would have noticed the incident, but we have no reason to believe that he had informed his father of the situation.

The Chief Judge was obviously aware that there was no password or other protections on the website, however. We know this because he has reportedly emailed people links to files on that server before. However, while he knew the items were accessible, what he may not have known, was that someone could find them without his assistance.

The main page at alex.kozinski.com gave a short message informing the visitor that the site was empty. One had to type in a specific URL that was not linked to on the site (or anywhere else, as far as he knew), in order to see any of those files. Was it negligent to operate a “private” server in this fashion? Probably. Is it plausible, however, that Kozinski had not considered those files public? Yes.

The key point in all of this, however, is that ultimately, there was a lack of any truly incriminating material on the site, regardless of Kozinski’s intentions. 

Sanai wrote a lengthy criticism of Kozinki’s court. The criticism, although it does not mention it, was targeted at forcing the Ninth Circuit to rehear a particular case en banc, that he had filed (a family dispute). Sanai has irreparably harmed his own reputation, and has maintained an unsuccessful vendetta against Kozinski since that time.

1. John McCain has issues with the Boumediene decision. He claims that our national security depends upon the government’s ability to imprison people indefinitely without charge or trial.
2. Exxon is getting out of the retail gas business, citing the difficulty of turning a profit.
3. Ireland rejected the Lisbon treaty in their recent referendum.
4. Pluto has given a name to a new class of quasi-planets.

Ray Stern of the Phoenix New Times writes about his confrontation with Sheriff Joe Arpaio’s deputies. Apparently he was threatened with a trip to Sheriff Joe’s prison-camp for asking to view Public Records.

Why did they take issue with that? Well, it was because he was requesting to view the same public records that the deputies were looking at.

Arpaio is in the process of investigating the Mayor of Phoenix, who recently expressed his dissent to Arpaio’s regime. The reporter was trying to investigate the extent of Arpaio’s investigation into the Mayor. Curious to see what exactly he had been trying to discover. Was this a legitimate police investigation, narrowly targeted to search for evidence of a crime, or was it a fishing expedition? We may never know.

What is most troubling to me is the level of veneration that Arpaio receives outside of Arizona from some groups for being a “law and order” type. Famous for the harsh conditions of his tent-city, a number of people hold Arpaio in high esteem for being “tough on crime.” What those people may not realize, is that he is just as tough on his critics.

Via: TheAgitator.com

Honestly, what could be more interesting than a chart that purports to display the rates of virginity at Wellesley College, by major. 

Today the US Supreme Court issued a 5-4 decision in the case of Boumediene v. Bush. Justice Kennedy authored the opinion which held that the government may not hold prisoners indefinitely without charges at Guantanamo Bay. The right of Habeas Corpus applies even to “enemy combatants” who are held off-shore on a naval base. 

In Rome, President Bush said, ”We’ll abide by the court’s decision. That doesn’t mean I have to agree with it.”

SCOTUS Blog writes that the Court, “ruled that Congress had not validly taken away habeas rights.  If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.”

Perhaps I just don’t understand the “difficulties” of the situation, but if the government has any cause to hold these prisoners, why can’t they charge them with a crime? Why can’t we set a reasonable schedule to build a case and hold a trial?

The answer is that there is no reason why we can’t. 

For a quick run-down of what happened: Click Here

For a post on concurrences and dissents: Click Here