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Dissent and Concurrence

Henderson the Bush I appointment. Gratitude enrichment. Newt is primed. Gasoline volleys. More hot terrible times. Hedge funds honored. Rudy and the single issue. Plus more.

3.14.07

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STATE OF CONFUSION
Re: Robert VerBruggen's Locating Gun Rights:

Robert VerBruggen writes, "In a footnote, [dissenting judge and GHWB appointee, gee thanks dad] Henderson even noted United States v. Verdugo-Urquidez, a case that ruled the term 'the people' meant 'a class of persons who are part of a national community' and specifically mentioned the Second Amendment. To this she responded that as the Tenth Amendment relegates some rights to the States, and not to the District, so does the Second."

But Mr. VerBruggen fails to note that the majority on page 50 in Parker directly rebutted Henderson as follows "Our dissenting colleague --in order to give a meaning to 'the people' in the Second Amendment consistent with her interpretation -- analogizes to 'the people' in the Tenth Amendment. Dissent at 5 n.5. Contrary to her suggestion, however, the Tenth Amendment does not limit 'the people' to state citizens. Rather, the Tenth Amendment reserves powers to 'the States respectively, or to the people.' The dissent provides no case holding that 'the people,' as used in the Tenth Amendment, are distinct from 'the people' referred to elsewhere in the Bill of Rights. The one case relied upon, Lee v. Flintkote, 593 F.2d 1275, 1278 n.14 (D.C. Cir. 1979), is inapposite. That case merely contrasts the District, on the one hand, with the states, on the other; the meaning of 'the people' as used in the Tenth Amendment was not at issue. Indeed, Verdugo-Urquidez, 494 U.S. at 265, directly contradicts the dissent's reading of 'the people' in the Tenth Amendment, just as it contradicts the restrictive reading of 'the people' in the Second."

And if that doesn't bring a smile to your lips, take a gander at the majority's footnote on page 55:

"Of course, the District's virtual ban on handgun ownership is not based on any militia purpose. It is justified solely as a measure to protect public safety. As amici point out, and as D.C. judges are well aware, the black market for handguns in the District is so strong that handguns are readily
available (probably at little premium) to criminals. It is asserted, therefore, that the D.C. gun control laws irrationally prevent only law abiding citizens from owning handguns."

If I understand the process correctly, D.C authorities will appeal first to D.C. Court of Appeals en banc. Then it will proceed to the Supremes.

Parker is a terrific decision, worth reading in its entirety (well, perhaps not Henderson's incredibly tortured dissent). There may still be hope.
-- Frank Natoli
Newton, New Jersey

In his piece on the recent Parker decision, Robert VerBruggen observes: "The ruling makes no issue of the fact Miller and Layton were not militia members. Rather, Miller and Layton failed to prove a militia might use a sawed-off shotgun."

My readings on the Miller decision indicate that, before the case could be heard, both men skipped bail, disappeared, and eventually were found dead. The case for militia utility of a short-barreled shotgun (called a "trench gun" by doughboys in WWI) wasn't proven because it wasn't argued. The solicitor general, in effect, got a free shot and won by default.

But the Miller case was actually a victory, of sorts, for Second Amendment advocates: the Court issued a writ of certiorari allowing Miller and Layton--as *individuals*--to plead their case, based upon the Second Amendment. Were it only a "collective" right, the writ would've been denied, because the two men would've lacked "standing".
Even Laurence Tribe (albeit reluctantly) has conceded this point---when he switched from the "collective" side to the "individual" side.
-- David Gonzalez
Wheeling, Illinois

HAPPY THANKSGIVING
Re: Ben Stein's Gratitude Is Wealth:

"Gratitude for what you have right now. Gratitude especially for what you have now that so many people would die for, gratitude for what you have now that won't last. That's what makes you rich quick. And no tax at all. That's the secret. As to the money... Stop thinking about it for this morning and just tell your wife you love her."

Ain't it the truth!

"I finished with some pitiful iron shots and went into the clubhouse. The halls were empty. The average age of the members at this club is 72 and many are older. How many men and women walk along these halls every day, I thought, with memories of long-time wives or husbands who are now on the other side? How many of them walk down this hall and then go home alone to a solitary meal and an afternoon and night of watching TV alone, with only memories of when they had a wife or husband or kids that watched TV with them?"

I was 28, my husband had been deployed to Panama back in August. I buried him in March. I existed, like the older members of that golf club, not fully alive and not quite dead, almost numb to the world about me, memories to comfort me. We did not have a LONG marriage, barely 5 years and 10 months and no children living. I was supposed to be undergoing testing why I kept having miscarriages at the 2-month point. Not attending to paperwork related to my husband's death. We were going to take leave and travel together to see family and spend some alone time. I saw family, all of them, and I was spending time alone with Him.

Speed up life, it's nearly 20 years later. I have "children of my heart" that I fuss and worry over, two dogs that adore me and cannot bear to be separated from me and a husband that I think "hung the moon" and he believes I "hung the stars."

Life is good, and my heart over flows with gratitude for each day, each moment, each "I love you." I am twice blest beyond imagination, and my soul rejoices. No riches on this Earth can compare to all 6 of us in one room at one time together -- it was easier when the kids were small and we had only one dog to all fit on the same couch. I richer than my dreams. Bill Gates and John Kerry can have the large houses and their entourages, I'm richer!
-- Sandra Dent

THE NEWT HATERS
Re: Paul Chesser's Confessing to Weakness:

I found Mr. Chesser's article to be very insightful, as well as beautifully written. As I read it, it occurred to me that of the major political figures on the landscape Newt Gingrich might be the best suited to carry on Regan's legacy.

Gingrich's shortcomings in his personal life are substantial and, as noted, he has confessed to "weakness." He now needs to take the next step, sincerely confess to having sinned and ask for forgiveness.

If he does that he should then run for the Republican nomination for president. But he should do so with his eyes wide open. To the MSM he will be the reddest of red meat; to the leftist loonies he will appear the embodiment of all they hate: Halliburton, the U.S. military, ExxonMobil, and Focus on the Family all rolled into one incarnate target of their disingenuous schemes and their white-hot rage. Their treatment of him will make Cindy Sheehan appear reasonable by comparison; it will evoke images of 200,000 Persians attacking 300 Spartans. And, like the Spartans he will shield other conservatives from attack. The MSM won't have time to come after them as all their energy will be focused on bringing down President Gingrich.

Nevertheless, perhaps he (and we conservatives) is up for it. Consider: with evidence of genuine repentance he will win the social conservatives' vote. Insofar as I know his record on spending is reasonable and as such he should appeal to fiscal conservatives. He is articulate and is very capable of defending his position. And just how much of an issue would Hillary's camp (should she win the nomination) care to make of personal sexual sins, anyway?

If he were to run and win, Gingrich might become the most hated man of modern time. But considering whence the hatred would emanate that would only prove we've chosen the right man for the job. He's been verbally attacked a lot already. He should consider that his preparation for what lies ahead and forge on. That's my $.02 worth, at least.
-- R. Trotter
Arlington, Virginia

INVISIBLE HANDS
Re; Doug Bandow's MAThe Never Ending Energy Conspiracy:

According to Ted Balaker and Sam Staley, who wrote the book The Road More Traveled, the cost of gasoline when measured in terms of hours worked is going down.

On page 60 they state: "At the beginning of the twentieth century, the average American had to work about thirty five minutes to earn enough money to buy a gallon of gas. By the end of the century, the average American only had to work six minutes."

When the conspiracy gets the cost down to zero, we can afford to be socialist.
-- Danny L. Newton
Cookeville, Tennessee

Funny, isn't it, how no one from the Left said much when gasoline prices didn't skyrocket after November's elections?

At the place where I work a few days weekly, I'm a conservative among liberals to ultra-liberals. There I've heard people say they hated the president and watched them flush as they said it. Heard'em say he's evil. Yada, yada, yada. In the runup to the election, as a surrogate of his, I guess, I once caught flak for the rising prices.

Even had a fellow on the street in my home town chew my ear when I dared asked if he knew anything about energy pricing and markets or global economics. Nope, it was that @$#%! Bush and his $#@%! cronies who were responsible, the fella spit and spewed.

Gotta admit: I really saw not just ignorance in some, but genuine hatred in most all. And a real unwillingness to believe anything other than a conspiracy was afoot.
-- C. Kenna Amos
Princeton, West Virginia

CRUNCHING THE NUMBERS
Re: Ben Stein's Terribly Exciting and Reader Mail's Inequality Assurance:

It's all unbearably true. I attended Presbyterian College and have worked in a church since. The reality is heartbreaking. It's also crazy that the whole entire lifestyle in the Carolinas has changed because of this. For us, textiles is our history. My dad worked in textiles for many years, on the sales end. He saw how those who worked in the mills were treated-- they had health insurance for their entire families, they worked long, hard hours -- but they were paid. They made a living.

Now, my dad is a financial advisor for Edward Jones (his second career started at age 50). He spends much of his time trying to get IRA's set up for those baby boomers and those who bring their pensions in after the next mill closes. It's sick. And what about Wal-Mart? We've hated that store in my family for quite a few years... why? My dad saw from the inside how they treated their customers.

The thing is, the consumer will do anything to buy something at a lower price... how sad. They don't realize how many people they've put out of jobs. And those workers who lost their jobs in textiles have to settle for these part-time positions at stores like Wal-Mart where they don't have benefits. I call our country SICK. It's beyond the government. It lies in the hearts of the people. "I want, want, want, want..." and "me, me, me, myself and I" the hell with everyone else. The underlying cause? Consumerism and Materialism. Thanks for allowing someone to put the truth out there!
-- Holly L. Hartsoe

In "Terribly Exciting" Ben Stein writes about hedge funds:

"The new part of this phenomenon is that it is based on a demonstrably false premise: that these entities can consistently outperform wide stock indexes."

This is not true. Many hedge funds have the goal to provide returns that are not related to traditional investments. The goal isn't to outperform stock indexes, but to perform differently. This helps investors have more stable returns over time -- even when the market goes sideways, the hedge fund returns can go up.

He then follows up:

"The main effect is to siphon money from productive enterprise into financial manipulation. Or, to put it another way, to siphon money from Main Street to Greenwich or Wall Street."

Many of the investors in hedge funds are pension funds that will support teachers and other government workers when they retire. So you can see that there are actual benefits to hedge funds that will positively impact a large number of Americans by increasing and stabilizing their future retirement funds.

Thank you.
-- Brian Stube

I just read Ben Stein's latest article entitled "Terribly Exciting," and while I am completely sympathetic to his views and the realities he talks about, I still haven't gotten an answer to the question that's been burning in my mind since college (only a few years back): "So what do we do?" From my perch in the metro Washington, D.C corridor, I see Stein's vision of what's new, hot and exciting (or terrible) everyday -- lots of apathetic "yuppie" types who would much rather discuss M&A or their latest expensive impulse purchase than try to change the status quo for the lady that cleans their apartment or the guy that bags their groceries. It seems like we're on a course where the American middle class will cease to exist in the near future. So what do we do?
-- Abid Chaudhry

I typically disagree with the editorial stance of the Spectator and with Ben Stein, though I have respect for both organizations.

However, Ben Stein's latest article, "Terribly Exciting" was without a doubt a very well written article on the real state of the economy for low and middle income earners.

I think that Mr. Stein and I would disagree on what solutions should be taken in order to solve this problem -- he being a conservative, I being a liberal -- but I'm very glad to see that Mr. Stein and the Spectator do indeed acknowledge and correctly diagnose the problem. Far too often, conservatives, (or those who claim to be?) do not see the current economic situation as a problem.
-- Brian Boyko

I never thought I'd be sending a letter in support of Ben Stein the warmonger; however, in this case I think everything he says is correct. Obviously there are lots of numbers that you can tweak to fit your agenda -- all sides habitually do this -- but clearly our health care system is a problem. We are well on the path to bankrupting the nation with staggering health care costs, and this is for service that on the national level is probably no better than what you would find in the so-called socialist countries that most of your readers despise. Sometimes someone has to stand up and say that all the utopian thinkers cheering for free markets and endless wealth need their heads examined. I agree with Ben that most of the people who become fabulously wealthy these days do not add anything of material value to the economy. Human nature is attuned to short-term adaptability, which is not to say that when the next major economic downturn occurs everyone will wonder why they voted in an administration favoring tax cuts for the rich when they might have voted in an administration interested in everyone's well-being. FDR is going to look pretty darn good one of these days.
-- Abe Grossman
Pleasantville, New York

Yeah, Ben Stein!!! Astute as usual.
-- Roz Hudson

NONE OF THE ABOVE
Re: W. James Antle III's Are Pro-Lifers Ready for Rudy? and the "Single Issues" letters in Reader Mail's Inequality Assurance :

So I take it that both Mr. Heafey and John Derbyshire assume Rudy Giuliani comes equipped with a pair of stainless steel conjoins. Let's see, when our hero was caught dripping his finger into another honey pot, who was it that got kicked out of the "people's mansion"? An elected official for whom a house has been provided by the citizenry lets himself get thrown out by someone who was elected by no one. Apparently our hero goes a little soft when he's caught with his body amour down around his ankles.

While Giuliani has proven to be a mayor truly worthy of his office (OK, cheating on your spouse while in a highly visible public office does indicate a certain lack of prudence), someone still has to make the case that shrewd local political abilities necessarily translates well to the national level. Does anyone seriously contend that a president is just a great, big mayor? It is not at all clear that a great mayor will be a good president. There is at least the possibility that Giuliani could be promoted beyond his level of competence.

Overall, we should have just a little skepticism when a candidate promotes himself as a tough guy.

I do not know about Mr. Heafey but Mr. Derbyshire is not an assuring authority. He is an atheist who at best has an uneasy peace with religion in general and Christianity in particular. He deserves a great deal of respect because he is forthright and honest about his unbelief. Still he sees Christianity as utterly illogical. Derbyshire is a mathematician drawn to the hard sciences who prides himself on his rationality but is clearly out of his depth when he is confronted with anything outside philosophical materialism. More importantly, Mr. Derbyshire on occasion makes it a point of informing his readers that he is not "pro-life." As such, he represents a particular "school" in the big house of conservatism. When, however, it comes to "life issues" and their influence of party politics, Derbyshire is neither persuasive nor convincing. Again, it can be of little surprise when those who have little sympathy with the pro-life cause do not put it at the top of the Republican agenda.

Let's get real here. We have a long way to go before the first primary vote and an even longer journey to the convention. A LOT can and will happen during the future ahead. There is no point in foreclosing our decisions now. There is still a lot to be seen as our candidates face the public again and again during the campaign. We all know political fortunes can rise and fall over night. Maybe it will turn out the Rudy is our best man. Who knows what will happen a year from now? Just accept it as a "given" that Rudy's victory at the national convention will come at a cost to the Republican Party. There is no use in arguing that it shouldn't. Perhaps it will be well worth the price. We'll just have to see.
-- Mike Dooley

I think the kerfuffle over abortion, AND immigration, AND amnesty for illegal aliens, AND civil unions, AND gun control, AND other issues ad nauseam illustrates the obvious: it is time for every ballot for every elected office in the country have a mandatory "NONE OF THE ABOVE" option. Only then will the idiot politicians realize that they are in office to represent their constituents, not to just get re-elected.
-- C.D. Lueders
Melbourne, Florida

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