Heller And The Incorporation Doctrine

Until now, I haven't written anything on the Heller/2nd Amendment issue for two reasons: I don't really have a strong opinion on the political question of gun control, and more importantly, since I don't care enough about gun control to do serious research, I've remained ignorant about the constitutional issues involved in this case.

But while reading a debate about Living Constitutionalism and Judicial Restraint (here, here, here, here and more), I came across a post about the Second Amendment and fundamental rights. Deborah N. Pearlstein, whose webpage brands her a constitutional law expert, penned a post on the new Slate legal blog, Convictions. She didn't take a position on the 2nd Amendment question, but was bewildered that everyone talks about the right to bear arms as a fundamental right. Pearlstein correctly pointed out that not all rights protected by the Court are fundamental:

"When I was in law school (and even since), there was an obscure but nonetheless real distinction made between constitutional rights that were "fundamental" and those that were, well, not. Some rights were "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut. Other rights were "new." Teague v. Lane."

This argument struck me as odd and misplaced. The cases Pearlstein alludes to deal with applying the Bill of Rights to the states under the Court's incorporation doctrine. Throughout the last hundred years the Court used the 14th Amendment's Due Process Clause to "incorporate" certain rights in the Bill of Rights into the Due Process Clause, making them applicable to the states (the Bill of Rights originally only applied to the federal government). While the incorporation doctrine has a long and twisted history, the Court incorporated specific rights and deemed them fundamental only when they were "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

So when deciding whether to apply specific rights to the states, the Court used the above test. However, Heller does not involve the doctrine of incorporation. The Constitution clearly grants Congress "exclusive Legislation" over the District in Article I, Section 8, Clause 17. The District of Columbia is a federal entity. The Court has applied specific rights in the Bill of Rights directly to the District without making use of the incorporation doctrine (see Pernell v. Southall Realty applying the 7th Amendment directly).

The District's Brief also made a similar, and very strange, argument in a footnote (Page 38, footnote 9):

"Although this case does not present the question of incorporation, there is no reason to think that a right to possess guns for personal use is a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937)."

The District admits that incorporation does not apply in this case, and yet it expects the Court to apply the incorporation test! Why should the Court do that rather than treat the District as a federal entity?

There are a number of pertinent and debatable question in this case. Does the 2nd Amendment contain an individual right? If it does, does that right only apply to people living in states (the 2nd Amendment's preamble starts "A well regulated Militia, being necessary to the security of a free State....") and not those living in the District? If it does, what standard of review should the Court apply to laws infringing on that right?

Reasonable people can disagree on all these questions (and more). But if an individual right exists, then it is no less fundamental than the right to free speech or the right to be protected from double jeopardy. If the Amendment only protects a collective right, then there is no individual right at all. The right is either fundamental or it does not exist. There is no middle ground like there is by the rights created by the incorporation doctrine.

For Anyone Who Thought It Couldn't Get Any Worse....

The UN, as we all know, is not exactly Israel's friend. And its Human Rights Counsel makes most UN bodies seem like Micronesia. But today they got even worse.

For the last seven years the Human Rights Counsel has had a special position for an investigator of Israel's conduct in the territories. John Dugard, a South African international law scholar, filled that position for the past seven years and was consistently pro-Palestinian.

But he's stepping down and now the UNHRC decided to appoint the unquestionably anti-Israel Richard Falk. If anyone thought this body had any relevance, this appointment should dispel that notion.

Should We Always Learn Torah? The Lesson of Mordechai

See this post by mevaseretzion. He argues that one can increase his own spirituality illicitly by not doing the right thing at the time. Even if another mitzva has more "value" and would push the person to a higher spiritual value, sometimes that person must forgo the added spirituality by doing something else which is necessary. This is one lesson of Mordechai's political tenure.

I agree with mevaseretzion. The truth is mevaseretzion's distinction is similar to the obligation to do mitzvos despite the fact that Torah is of greater importance.

There is a mitzva to shake a Lulav. But if Talmud Torah has the greatest value, then why should we pause Torah learning to fulfill the mitzva of Lulav? Isn't the most reasonable course of action to do the mitzva that is the most valuable? I'm sure there are all types of answers to this question, but the most obvious point is that we sometimes are required to act in ways that run contrary to our obligation to do the most valuable mitzva. Even though by learning Torah instead of shaking Lulav we would be making the best use of our time (by doing the more valuable mitzva), G-d does not want us to do what is most valuable, but rather to do what he commanded.

This logic applied to Mordechai. Rather than learn Torah full-time, he became part of the government, which was imperative to the well-being of the Jewish people. The most valuable mitzva would have been to learn Torah, so he did not maximize his time if we look at the situation purely based on the value of the mitzvos. But our obligation to follow G-d's command and not determine our own value calculus. He makes that decision, not us.

Why Facts Don't Matter

A poll published in today's NY Times states that 84% of Palestinians support the Mercaz massacre. 64% support shooting rockets at towns and cities in the Negev.

That is a very scary number. But the number itself won't affect how people will view the Palestinians. The Left will just use this poll as evidence that we need a political solution and the longer we wait, the more angrier the Palestinians will get and the chances of an Intifada breaking out will only get higher. The Right will point to this poll as a reason to suspend negotiations, because how can we negotiate with people who overwhelmingly support mass murder of civilians?

All data regarding to the Israeli-Palestinian conflict are processed through these frameworks. One side believes that the Palestinians are essentially like us and would cease violence if they saw a real light at the end of the tunnel. They only support violence because they are helpless and feel as if they have no other choice. Give them a state and freedom and the majority will live in peace with Israel. The other side denies that the Palestinians are basically like us westerners and claim there is no evidence the Palestinians will ever want peace. The Palestinian refusal to make real peace could be based on genetics, the nature of Islam, or just some nationalistic ideology that promotes irredentism.

Obviously the policy preferences of these groups reflect these assumptions. The first group supports the peace process no matter what and will never allow violence to stop peace talks. That is because peace talks are the antidote to violence. While some groups in Palestinian society benefit from the status quo, they will be marginalized once the peace process is completed because majority of Palestinians will no longer support their cause. The other side sees negotiations as futile at best and suicidal at worst. The Palestinian ideology does not allow for peace and the peace process will only facilitate their ultimate goal, which is the destruction of Israel.

This poll will only strengthen the beliefs of both sides. the first group will argue that we need to push the process faster, because once we have something in place in the West Bank, the Palestinians in Gaza will reject Hamas. The other side claims that negotiations with a people who support murder is idiotic.

Either way new facts aren't going to change anyone's views.

As an aside, the pollster Khalil Shikaki was almost killed a few years ago by Palestinians for reporting his findings that the vast majority of Palestinians would not choose to return to Israel if they had a right of return.

Even Gedolim Fall Prey To The Availability Heuristic

The Availability Heuristic is psychological phenomenon in which people base their opinions on certain events that are fresh in their minds, while ignoring other events that offer contradictory evidence against their beliefs. For example, many baseball fans believe that certain players are clutch hitters, guys who come up big when it counts. In reality, such players are non-existent.

A good example is Mark Lemke. Anyone who grew up watching baseball in the mid-90s knows exactly who I am talking about. Lemke was the second baseman on the Braves dynasty teams that won pretty much all the NL East division titles in the 90s. Lemke's career numbers were well below average, according to conventional and advanced metrics. His career OPS+ was 71 and his EQA was .230. His career batting average and OPS were .246 and .641 respectively.

But Lemke was known as a clutch postseason player. Even Hall of Fame greats are drinking the koolaid:

"Chicago Cubs right-hander Greg Maddux says Lemke is the best clutch hitter he's seen, and Giants outfielder Barry Bonds says Lemke turned into Babe Ruth during October."

Babe Ruth? That's high praise coming from a guy who actually hit like Babe Ruth in one postseason. I'd expect Lemke's post-season numbers to be substantially better than his career stats.

But they aren't. While Lemke's postseason OPS was .688 (a solid 47 points higher than his career OPS) the real Babe Ruth's playoff SLG was .744 almost 60 points higher than Lemke's OPS. Even the greatest choker in the history of the world has a playoff OPS of .844, which is more than 150 points higher than Lemke. Something tells me there were tougher outs in the postseason than Mark Lemke.

So why does everyone think Lemke was so great in the postseason? Because he had a number of big games:

"[I]t's the 1991 World Series against the Twins that's stamped in everyone's mind.
Lemke's RBI single won Game 3 for the Braves, and he scored the game-winning run in Game 4. Then he hit two triples in Game 5 and finished with a .417 average, even though he started the series 1-for-7."

Lemke had a big series and suddenly everyone think he was a dominant postseason force. They remember the series when he hit .417, but not the two series when he batted .167. They can recall his dominant 1996 NLCS in which he slugged .630, but not his awful 1995 NLCS when he slugged only .167. It's human nature to have certain events stand out and to forget the other less memorable events.

This cognitive flaw manifests itself in a number of other instances. For example, a lot of parents asked their children not to take buses while spending their year in Yeshiva or Seminary in Israel. These parents were influenced by the endless news reports of suicide bombings in Israel during the Intifada. Surely suicide bombings created a real risk, but the risk was greatly overexaggerated. Buses made literally dozens of runs a day and hundreds a week. What were the odds that a person's child would be on the specific bus that was targeted? There was probably a greater risk taking a cab and being killed in a car accident.

It seems even the Gedolim are not immune from these heuristics. Rav Chaim Kanievsky, one the biggest Gedolim in Israel, recently prohibited using Arab labor in Yeshivos. His argument is that we are at war with them and employing them poses a grave risk to Jewish life (he also argued that jobs should be categorically given to Jews over non-Jews if financial feasible).

But does that risk really exist? Surely there is a greater risk in hiring Arabs over Jews in almost all situations, but there is also a greater risk in driving than walking. There is a cost-benefit analysis that must be undertaken here. Is there a serious risk in hiring Arabs, one that is not offset by the benefits?

Israeli Arabs, even the ones in East Jerusalem, have been relatively benign since the start of the Intifada. Sure, there were the riots when the Intifada broke out and there was a terrorist attack carried out by an Israeli-Arab, but overall they have been on the sidelines since the 2000. The Merkaz massacre was committed by an Arab from East Jerusalem, and there have been other instances of terror from his village (and see this article about the favorable response to the murders in his village). But when hiring an Arab living in Israel, the odds are strongly against the employee being a terrorist. There are thousands of Arabs working in Yeshivos and universities who have never been implicated in a terrorist attack (or the planning of such attack), which is the overwhelming majority. Again, it wouldn't shock me if I found out that the students had a better chance of being killed when going on tiyulim.

Decisions need to be made after doing proper research. It doesn't seem like that was done here.

Randy Barnett On The Living Constitution

I've been busy the last few days, so I haven't had much time to blog. Check out Randy Barnett's response to Michael Dorf's essay on Living Constitutionalism. Here's a preview:

"In his article, Dorf is careful to allow some role for precedent to be deemed mistakenly in conflict with the text when such conflicts are "clear." But, as typically practiced, the (selective) use of and adherence to precedent to "trump" an inconvenient original meaning of the text works precisely to substitute the judges meaning for that which was originally enacted. As practiced, therefore, this is "living constitutionalism" in its bad sense.

But Balkin's reconciliation of original meaning and living constitutionalism subtly alters the term "living constitution" to one that should be acceptable to originalists. So too has former Attorney General Ed Meese who initiated the modern debate over originalism with a series of speeches in the 1980s. I once heard Meese say something like this: Only a constitution that is still followed is still alive. A constitution whose terms are ignored because times have changed is a dead constitution."

Also see Lawrence Solum's take on Dorf's article.

Good Point

I haven't written about the concert ban, partly because there is nothing really to say that hasn't been said already.

But this is a great comment on Hirhurim:

"Can some on explain to me why signing this ban did not constitute malbin pnei chaveiro b'rabbim?Why do child molesters get dealt with "behind the scenes" but not people who by all accounts work leshem shamayim and have not done nothing assur, even if their behavior may raise legitimate concerns among the rabbinic leadership?Something is rotten in the state of yiddishkeit."

And of course, why do people who harbor child molestors get to sign the Kol Koreh with the rest of the Gedolim? Something is rotten indeed.

Putting Things Into Perspective

My week-long debate with Chardal over transfer has yet to reach an impasse, but it led me to think about putting the rocket fire in Sderot and the Intifada in perspective. Chardal argues for transfer partly because he believes it will lead to less overall suffering than what will occur without transfer. I argued that transfer will create tremendous amounts of suffering, including for Israelis. Chardal responded,

"What the heck do you think is happening now??? at least then there will be an end in sight and not this impossible situation."

I've encountered this attitude elsewhere, and I while I sympathize, it is wrongheaded.

Let's take a look at how many Israeli civilians have died since 2000. Israel's foreign ministry has a chart that goes until 2006. 1146 Israelis were killed by Palestinian terrorists between 2000 and 2007. That's a total of around 164 Israelis a year. That's an unfortunate number, but let's be realistic.

The U.S. Department of Justice keeps homicide statistics for all the large cities in the US. Anyone who has ever lived in New York City knows that it used to have a much higher murder rate than it does today. Now it is considered one of the safest big cities in the US. So let's compare NYC and Israel.

According to the Foreign Ministry's chart, the worst year of the Intifada was 2002. That year 451 Israelis were killed by Palestinian terror. Since it is simplistic to account for only terrorism and not regular homocide, let's add up the two to determine the total number of Israeli civilians killed illicitly by others in 2002. This chart lists the total murders in Israel over time, but it does not have the numbers for 2002. Since in 03 the number was 206, let's assume 199 people were murdered in 02. That makes the total number of murders from terrorism and regular homocide 650. Moreover, 328 Israeli soldiers were killed in battle with Palestinian terrorists from 2000-05. Since I don't have more exact numbers, we can apportion roughly based on how many Israeli civilians were killed each year. So let's assume 150 soldiers were killed in 2002, 100 in 2003, and the rest in 2000, 2001, 2004 and 2005. Israel's population in 2006 was 7,116,700 but let's only use the Jewish population for this study, which is 5,394,400. Since I can't find more exact numbers for all the years, we'll use that number from the year 2000 and on.

If we use these numbers, the total number of deaths from terrorism, homicide and war per 100,000 people in Israel in 2002 was 14.8. Let's take NY in the same year. Population: 8,008,288, homicides: 587 for a homicide rate per 100,000 of 7.3. So Israel was definitely less safe than NY at the same time.

But what about other years? Let's take NYC during the Guiliani era. In 1995, a year when I took the subways from YU through Harlem and Washington Heights all the time, NYC's population was 7,332,564 and 1177 people were killed. The rate was 16.1 murdered per 100,000. So one had a greater chance of being murdered in NYC in 1995 than one did in Israel during its single worse year since Oslo.

2003 was also a bad year in Israel. About 516 people were murdered, including 210 in terror attacks, which is 9.6 per 100,000. NY had 597 murders. which is 7.5 per 100,000. So one was more likely to be murdered in Israel during the height of the Intifada than in NYC. By 2004, however, NYC was a more dangerous place, with 7.1 murders per 100,000 to 6.1 in Israel (if we assume 40 soldiers were killed that year). The numbers in Israel have gone down substantially since 04, with only 30 people killed in Palestinian terror attack in 2006. If we overestimate the number of homicides at 200, that means 230 were murdered for a rate of 4.3 per 100,000. That is substantially less than the rate in NYC right now.

Even if we take into account the second Lebanon War, and presume 200 homicides occurred in Israel in 2006, Israel's death per 100,000 is only 7.3, which is actually lower than the rate in NY in 2002 (7.32) and 2003 (7.5) and only slightly higher than NY in 2004 (7.1).

My point is not that Israelis have a great life. Surely Sderot is a horrible situation, but it is important to point out that less than 10 people have been killed by rockets there since Hamas started firing rockets at Israel in 2005. That is less than the number of people murdered in NYC in a little more than week in 2007, and less than the number of New Yorkers murdered in two days in 1990.

Israel has an obligation to stop the rockets, it is shortsighted to claim that Israel's situation is untenable. The Yom Kippur War lasted for 21 days, and 2700 soldiers lost their lives. Real wars wreak much more havoc on Israel than anything we've seen since the first Lebanon War. Ideas like transfer might decrease the number killed in terrorist attacks but they increase the chances of actual war. Let's try to remember that before calling for radical "solutions."

Woman in Saudi Arabia Has To Pay For Divorce

CNN has the story. Basically an abused woman was forced to pay her husband in order to receive a divorce.

Is this story just different in kind or different in degree from the extortion men use against their wives to give them a Get?

But That Is Minor....

Brian Leiter, who is a brilliant philosopher of law but on the crazy far-left end of the spectrum politically, links to a speech by Noam Chomsky:

"I haven't posted a link to one of Chomsky's items in awhile, but this one is particularly interesting (though he, incorrectly, describes the U.S. invasion of Afghanistan as a war of aggression, which it was not under international law--but that is minor)."

Chomsky's views about the lawful and moral use of force are not trivial when assessing whether his points on foreign policy are accurate. Perhaps Chomsky's understanding of our invasion of Afghanistan are not relevant to this particular speech, but his ideology colors his analysis on all foreign and domestic policy issues. Chomsky is a virulent foe of Israel's right to defend itself, partly because practically no use of force is ever acceptable. If someone believes that US' operations against the Taliban is a war of aggression, he is so removed from reality that I'm not sure we can take anything he says seriously. And Chomsky has a long, long list of transgressions.

I wonder if Leiter would be so forgiving if a right-wing professor so blantantly mischaracterized one of Leiter's preferred policies. I doubt it.