Freespace

Justice Breyer’s jurisprudence and Heller

My favorite part of Heller is Justice Scalia’s devastating critique of Justice Breyer’s approach—a critique that is really valid against Breyer’s entire jurisprudence as articulated in his book Active Liberty:

Justice Breyer moves on to make a broad jurisprudential point: He...proposes, explicitly at least, none of the traditionally expressed levels [of scrutiny] (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests....” [He] arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew.

For more criticism of Breyer’s vague and judge-empowering “interest-based” approach, see my article, The Wolves And The Sheep of Constitutional Law and my friend Damien Schiff’s article Purposivism And The “Reasonable Legislator”: A Review Essay of Justice Stephen Breyer’s Active Liberty, 33 Wm. Mitchell L. Rev. 1081 (2007).

The Volokh Conspiracy's big day

Congratulations to the folks at The Volokh Conspiracy. Among the scholars whose works are cited in Heller today are Eugene Volokh (pp. 3, 11, 24), Randy Barnett (pp. 14, 22) and former VC guest bloggers Clayton Cramer (p. 15) and Charles Lane (p. 47 and p. 39 of Stevens' dissent).

Another subtle weakening of Slaughterhouse

Check out footnote 23 of the Heller opinion today, which (very gently) casts some doubt on the continuing validity of Cruikshank with regard to incorporation. Cruikshank was one of the first cases to follow the anti-incorporationist Slaughterhouse decision. The Court's aspersion against Cruikshank is another indication of the growing consensus that the Slaughterhouse Cases were wrongly decided.

Everyone's fault but yours

Never one to pass up the opportunity to file a frivolous lawsuit, Jerry Brown's suing Countrywide for offering people loans. Some of the people who took those loans were not responsible, you see. And evidently that's Countrywide's fault.

California smokin'

The smoke laying over northern California due to the many fires is worse than I think I've ever seen. Now we know what the nuclear war will look like. Here's a picture from Placerville, about 15 minutes from my home.

That's no ordinary rabbit!

Oh, it's just a harmless little bunny!

This video, perhaps the greatest animal video of all time, is courtesy of NoodleFood.

Another Supreme Court anniversary

In addition to being the three year anniversary of Kelo, today is also the five year anniversary of Grutter v. Bollinger, which means of course that it's only 20 more years until racial discrimination diversity is suddenly no longer a legitimate state interest!

The new phrenology

Larry Arnhart rightly takes issue with a recent New York Times article purporting to analyze the brains of potential voters for their responses to McCain and Obama. This is absolute nonsense, and it's getting very old very fast. As Arnhart correctly notes,

Here are some of the difficulties that contribute to the brain imaging fallacy.

1. Functional neuroimaging is not a direct measure of neuronal activity because it measures only indirect surrogates--particularly, the flow of oxygenated blood.

2. The interpretation of these brain scans depends on elaborate theoretical assumptions about the relationships between blood flow and neural activity.

3. Many different kinds of brain activity can produce the same fMRI signal.

4. No two brains are alike in their structure or functioning, and therefore brain scans require an averaging procedure.

5. Interpreting these brain scans assumes that mental activity can be decomposed into distinct parts corresponding to distinct parts of the brain, although the interconnectedness of brain activity make this unlikely to be completely true.

6. Although the sensory and motor activities of the brain do seem to be clearly localized in identifiable parts of the brain, it is much more speculative to assign the higher cognitive activities to particular parts of the brain.

7. Although brain scans and neuroscience generally show clearly that the brain supports mental activity, this does not show how the brain does this.

8. Since the mind is an emergent property of the brain, the mind depends on, but is not simply reducible to the brain; and this gap is most evident in the contrast between our subjective experience of consciousness and the objective study of the brain in neuroscience. There will always be a gap between our scientific observation of brains at work and our introspective knowledge that comes from our first-hand experience.

(Emphasis mine.) I would add that in any area like this, and particularly a very young scientific technique, the interpretation of the results is terribly prone to biases on the part of the interpreters. Taking this stuff as if it were scientific proof of anything is ludicrous, and it just has to stop.

The loss of a voice for freedom and reason

The great George Carlin has died. He will be profoundly missed by those who cherish reason, freedom, tolerance, and a good laugh.

In which I praise a Christian conservative World Net Daily writer

Jack Cashill’s What’s The Matter with California is an outstanding analysis of the cultural politics in this state. It’s well written, carefully researched, and uninhibited by the taboos that—as Cashill himself demonstrates—handicap serious discussions of our political and social problems. It has its shortcomings, which I’ll get to in a moment, but for the most part, Cashill’s book is convincing and insightful about our problems, and in particular the breakup of family structure and in morality that has laid literal waste to many of California’s communities—as well as the refusal of the state’s intellectual classes to face up to this enormous problem.