Thursday, June 26, 2008

follow up

Head here for a nice, well written and lawyerly parsing of the Heller opinion. For detail, I don't think you can do better than that.

Another nice and relatively short (and accurate, in my view) digest at Volokh Conspiracy and authored by Dale Carpenter here.

Heller decision

This morning the Supreme Court released its opinion in the case of D.C. v. Heller, which I've discussed a bit before. At issue was whether the District of Columbia's ban on privately held pistols and strict limitation on long guns and the manner in which long guns are stored violated the Second Amendment of the Constitution. I'm sure the legal and gun blogs will be full of this for the rest of the day and a while. In any event, did the Court find an individual right protected by the Second Amendment?

Shortly, by a 5-4 vote of the Supreme Court, the answer is "yes". You can find the opinion (unfortunately, right now only in the form of a 157 page pdf) here.

Lots of good, chewy stuff in the majority opinion (authored by Justice Scalia)for those who have been following Second Amendment scholarship for a while. Much historical and grammatical review. For example, the majority first notes that the initial clause of the Amendment ("A well regulated militia, being necessary to the security of a free state,")is a prefatory clause and does not limit or expand the operative clause ("the right of the people to keep and bear arms, shall not be infringed."). Hurrah for logic and the hope that the pernicious-but-silly argument that the Second Amendment protects only the right of the states to arm militias has seen its end. Lower courts have been writing "the people" out of this section of the Constitution for too long.

No, wait. Based upon the dissent, the argument is not over and that idea still has legs. From Justice Scalia's footnote (footnote 3) on this section: "JUSTICE STEVENS says that we violate the general rule that every clause in a statute must have effect. But where the text of a clause itself indicates that it does not have operative effect, such as the "whereas" clauses in federal legislation or the Constitution's preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues."

Amazing how some arguments and sentiments come up again and again. From the majority opinion (slip op. at 18) referring to the early American edition of Blackstone's Commentaries (pretty much the most important early legal compendium and commentary) which came out in 1803 "...Americans understood the 'right of self-preservation' as permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury'". Of course (and not in the opinion) today the same sentiment is common and popularly phrased as "when seconds count, the police are only minutes away."

Bad news:
with respect to U.S. v. Miller, the last case (circa 1937) when the Supreme Court considered a constitutional challenge to a firearms law. First, at page 49, the majority notes that "Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons." At page 52-53, the majority concludes that Miller's "ordinary military equipment" language (which was where that opinion concluded that short-barreled shotguns were not protected by the right to keep and bear arms, as they did not constitute ordinary military equipment such that the militia might use) must be read with the understanding that, when called to militia service, citizens brought with them arms in common use at the time for lawful purposes such as self defense. The majority concludes "[w]e therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law abiding citizens for lawful purposes, such as short barreled shotguns."
This interpretation is repeated and expanded a bit on page 55 of the slip opinion. I'd look for the statement to be heavily relied upon in future court decisions regarding restrictions on the type of weapons which can be possessed. In this effort to preserve the Miller case, the majority's opinion is disappointingly circular and ahistorical. As to the first, the law bans short-barreled shotguns, then a court relies upon the fact that short barreled shotguns are not typically possessed by law abiding citizens to conclude that the law is ok. As to the second, Ithaca Auto & Burglar? H&R Handy-gun? (To clarify for those who don't follow or understand the links, I refer to two moderately popular short-barreled shotguns manufactured expressly for personal defense and rendered illegal by the National Firearms Act of 1935.)

Apart from the very important recognition (by the majority only) that the Second Amendment preserves a historical right, I find the meat of the policy portion of the decision and the guarantee of years of future litigation here- from the majority opinion, page 54: "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose....Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

On the other hand, when examining the actual DC law at issue, the majority rejects the "rational basis" test. (Slip op. at 56). Further, there is some nice language that ought to lead to reconsideration of statutes in places like Morton Grove. From p. 57-58 "Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid." and "We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional."

In an earlier post (also linked above) I mentioned professor Lawrence Tribe's suggestion that the individual right to keep and bear arms would not prohibit banning arms in certain locales, such as urban areas. Interestingly, this comes up in the Heller decision and dissent. In his dissent (there are two) Justice Breyer proposes that an interest balancing test be used to determine whether laws unconstitutionally infringe the right to bear arms, suggesting that such a test would allow the D.C. statute. Here is a big quote from the majority opinion that I find generally appealing and that I also find the perfect answer to the proposition in Tribe's article and Justice Breyer's dissent:

The majority, slip op. at 62-63: "JUSTICE BREYER 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. 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. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

I've read a bit of commentary suggesting that the Court is less adversarial under Chief Justice Roberts, but that is not evident in this opinion. For example, in discussing a construction of "to bear arms" that limits the meaning of the phrase to military service Scalia writes- "The right 'to carry arms in the militia for the purpose of killing game' is worthy of the mad hatter" (Slip op. p. 16).From footnote 14 "Faced with this clear historical usage, JUSTICE STEVENS resorts to the bizarre argument....". Justice Stevens in response, (Slip op., Stevens Dissent at 17) "Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment". Not terribly collegial, but rather strong debate.

More, perhaps, later.

Monday, June 16, 2008

Sans pictures

One of the things that I enjoy about knocking around the woods, water, or desert is that if you pay close attention or spend enough time, you'll almost always see something new. A corollary to that truism is that if you don't have the camera along, more remarkable sights will present themselves.

Yesterday, we headed up a very nearby mountain for a bit of a hike at altitude and to give the dog a chance to splash in the little creek. Since the plan was for no more than a short duration hike, an hour or two, in an area which sees a lot of traffic, on a weekend, I didn't pack much in the way of gear. I almost didn't bring my daypack and I didn't load a lot of the little things that regularly ride in there- parachute cord, a bit of duct tape, the headlamp, matches, firestarter, etc.. Instead, I threw in a couple of water bottles, a fleece sweater, a rain jacket and a first aid kit. Some of that was just for weight.

During the walk I was frustrated in that I also forgot to throw in the little digital camera that makes almost all my outdoor trips now. Several new-to-me wildflowers begged identification (and I had left the flower guide at home, too) and some of the views were really nice and would have provided blog-fodder. Later, I was to regret leaving the camera a bit more, as I lost the chance at some photos from a rescue.

We were driving back down the canyon and passed a nearby village's Volunteer Fire Department's ambulance in a turn out by a trail head. They were pulling out gear and assembling a wheel under a Stokes litter. There were only four people at the ambulance and they looked to be in a bit of a hurry. I mentioned to A that we ought to see if everything was ok, so we stopped. In response to "You all need any help?" the answer was "Probably." I was a bit surprised.

Turns out, they were just responding to a call about a fellow who had suffered a myocardial event some distance up the trail. Hot day, high altitude, and some steep slopes can be a tough combination, I'm sure.

I dumped the little bit of stuff out of my day pack and we grabbed ends of the litter and started down the trail with it. Concerned for the patient, a couple of the EMTs took a defibrillator, some iv packs, and bit of other gear and went on up to his location. A, one of the volunteer firefighters and I hauled the litter well in their wake, pausing as terrain and breath required to drink water and rest a bit. Shortly, we were passed by a paramedic and then joined by another volunteer fireman, then a local search & rescue volunteer. The last pitch up to the rim the patient was located just under was quite steep (really glad he wasn't on top of the rim), but more hands made a difference and soon we were there. Just after that, a Forest Service law enforcement officer arrived and then another search & rescue volunteer. We retreated a bit down the hill to stay out of the way and then helped the FS officer move some brush and downed limbs to clear out an area they were considering for use as a lift-off spot as an alternative to hauling the litter and patient down that steep stretch to get to an open flat where the in-bound helicopter could land.

By the time we were done with that, others had the patient on the litter and moved him the few yards to that gap in the trees and the search & rescue folks were really starting to come in (one of them turned out to be a guy I've chatted with at the last few RMEF banquets, always surprising where you run into folks). The person coordinating the rescue and the helicopter pilot made the call to winch the patient to the aircraft from that gap, perhaps out of concern with the lack of lift due to the low humidity, warm air, lack of breeze, and altitude as well as to avoid moving him further than necessary in the litter. Since more bodies were not going to be needed to handle the litter all the way back down the trail, the volunteer fire department leader decided to clear some unnecessary gear and people from the area so we grabbed some of the equipment he indicated and headed back out. On the way out we passed a couple more Forest Service folks inbound, chainsaw and Pulaski in hand and on their way to clear the pick-up area a bit more, perhaps to remove a couple of standing dead trees.

A mile or so on, we could look back and see the National Guard Blackhawk helicopter hover, drop gear, drop a crewman, then circle, only to come back a few minutes later to pick up the patient and crew member. At the trailhead, more volunteers, a communications trailer, and the state police were on hand. Our bit done, we gave the fire department their bags of gear and drove on down the hill to a late dinner.

The whole experience was pretty thought provoking. First, a mile-and-a-half can be a terribly long way under the wrong circumstances. Hauling that gentleman out on the litter would have been really wearing and pretty darned slow, likely finishing close to dark. This even though most of the trail is what I would have considered a good one (the tread was 1.5 feet wide and well beaten) with quite a bit of maintenance done on it and only two blowdowns. It would have been slow and hard on the patient even given that a bunch of those search and rescue folks looked pretty gnarly and in-shape. Not that in-shape, I was blowing from pulling half the litter with only forty pounds or so of gear on it.

Second, my daypack goes with me always, now. I was feeling silly taking it on what was more a walk than a "hike" to my mind, but I was really glad I had it- to loan to one of the EMTs to put medical equipment in so they could scoot up the trail to the patient and then to carry out a bunch of rope (which fortunately wasn't needed) webbing, defibrillator and other gear back out. For that matter, a little bag is going to live in my daypack and that bag is going to have some basic stuff- p-cord, marking tape, headlamp, duct tape, and some other odds and ends. I carry all that stuff in my hunting pack, but I don't want to shuffle stuff around and leave some out. I'd rather have it always to hand. We were just talking about first aid kits and I realized I need to go through, replenish, and replace some expired meds in a couple of mine. Now I have a bit more incentive.

Third (and somewhat counter to the first point) it is pretty amazing to me that within an hour or two of a call, emergency help and trained medical aid was on hand for the patient. While the location was a long way from wilderness, it also wasn't a street corner and the guy was being treated in very little time and was on a helicopter to the hospital in just a couple of hours. Search & rescue volunteers were really pouring in, too. Cell phones and GPS systems are making the world smaller in some interesting ways.

Last- yeah, the camera goes with me, so I can ID flowers and hopefully take a bit of video of the next time a Guard pilot holds his helicopter rock-steady over a ridge while winching someone aboard.

"New Mexico is mellow, people there they treat you fine"-Townes Van Zandt, "White Freightliner Blues".

Thursday, June 12, 2008

Down the Rio

So, last weekend was our tenth whitewater trip in the last eleven years. We headed down the Taos Box with these guys, going in at the Little Arsenic Trail and taking out at the Taos Junction Bridge. This is a good year for water in the Southwest, a dry spring offset by a good winter and cool temperatures that spread out the runoff.

Going in at the BLM trail mentioned above means you get to run the La Junta Rapid, where the Red River has dumped a few thousand years' worth of debris into the Rio Grande, almost first off. It is a fun, splashy Class IV with a couple of moves you have to make. John, our guide, directed us through it with aplomb.

The first time down this canyon, the river was running around 2200 cfs, as opposed to the 3200 this year. The higher flow flattened out some of the drops in this pool/drop river, but made the standing waves all the higher. Good fun! The NM Dept. of Game and Fish has reintroduced bighorn sheep to the canyon and we were graced with an ewe standing riverside. A clout shot with a decent camera, the little disposable waterproof model we carried was not up to the task, sadly. We'll just have to remember that, and the Golden Eagle landing on its nest, and the unused peregrine nest, and crashing through the six-foot standing waves.

We had camped out the night before the trip, finding one of what must be the last non-fee Forest Service campgrounds (picnic tables & a pit toilet) available in the southwest. Miraculously, we also had it all to ourselves. Bacon wrapped nilgai fillets, some good red wine and a big green salad led to a nice slumber next to the thrashing creek. Normally, the creek would chuckle, but it was at about 2x regular flow with runoff, though clear and fishable. Small, though, so it doesn't roar absent a flood, which hasn't happened this year. Nice to sleep by running water in any event. On the trip with the rafting company, Far Flung, we slept by the river the next night, too.

Morning rising was nearly mandated by a couple of busy canyon wrens right up the slope.

The next day was mostly rapids and passed all to quickly. With only three of us in the boat besides the guide, we were able to bop all over the river at the price of a bit of deep digging on the paddles.

Here's guide John, having turned the boat around for a bit of paddle and a look-see in a more quiet stretch:

All great fun and just the taste of white water we were looking for!

Tuesday, June 10, 2008

Pithy, yet accurate

Michael Blowhard quote from an otherwise unrelated post:

"I'm reminding myself of an argument I make when friends try to put down or dismiss blogging and other kinds of online fun. A friend might say, for instance, 'Show me the blog posting that's the equivalent of the best literature.' My response: You're missing the point. Blogging is a different (if perhaps related) activity than the traditional "literary" thing is. It isn't about exposing yourself to self-contained bits of "the best." It's about taking part, perhaps in the modest sense of surfing around under your own power, perhaps in the more ambitious sense of writing comments or of running a regularly-published blog."

Tuesday, June 03, 2008

pickin' chicken

This last weekend some friends and I engaged in a bit of an experiment. I bought 2 chickens from three different sources- 2 fresh, local, grass raised birds, 2 bird raised on organic grain, also fresh, but not local, and 2 birds from the grocery store, the least-expensive I could find. I cut the backbones out of the birds (and reserved those for stock) and then flattened them out on a cutting board, rubbing each with a mixture of salt, black pepper, and smoked paprika. Then I grilled them over a slow charcoal fire with some water-soaked mesquite chunks. The different birds were identified by kitchen twine around the drumstick and the guests were subjected to a blind taste test of the breast meat. Each of the eight of us ranked each piece of meat from 1 to 3, so the best possible score for a bird was eight, worst 24, and total points available 48. The grocery store bird scored a 13, the organic, grain-raised bird a 17, and the grass-raised bird an 18.

I would in no way call this a definitive test, as the birds were pretty highly flavored by the smoke and spices. For that matter, two of us knew which sample was which. It was still interesting. Grilling on the bone like that is one of my favorite ways to cook a chicken and I think I achieved comparable levels of done-ness. I thought that the grass-fed bird and the grocery store birds were closest in flavor and better than the organic grain-fed bird. As one guest pointed out, the mass-market bird was probably injected with a bunch of brine and other things to add juice and flavor and that might well be why it did best.

Photos are omitted because I got busy and forgot to take any. There goes my career as food-blogger. For that matter, as a liberal arts major with no real pretensions to actual, well, science, I'll take this short experiment as grounds to reach a conclusion: while there are lots of good reasons to buy local, organic, and/or grass fed chickens, taste is probably not the definitive one.