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Podcast for 29 Jun 08 (Updated with Transcript)
Posted by: Dale Franks on Sunday, June 29, 2008

In this podcast, Bruce McQuain and Dale Franks discuss the Heller decision.


The direct link to the podcast is here.

The intro and outro music is Vena Cava by 50 Foot Wave, and is available for free download here.

As a reminder, if you are an iTunes user, don't forget to subscribe to the QandO podcast, Observations, through iTunes. For those of you who don't have iTunes, you can subscribe at Podcast Alley. And, of course, for you newsreader subscriber types, our podcast RSS Feed is here. For podcasts from 2005 and 2006, they can be access through the RSS Archive Feed.

UPDATE [Bryan]: Updated with link-enhanced transcript. Prank call and all.


DALE: This is Observations, the podcast of the QandO Online Magazine. Welcome back to the podcast; I'm Dale Franks. As Always, it is a pleasure to bring the podcast to you. Bruce McQuain is with me; hello, Bruce.

MCQ: Hello Dale.

DALE: I'm really kind of torqued off, because I don't know what I did, I don't know what I hit, I don't know what happened, but five seconds before the podcast began, everything went haywire on my machine. I lost stereo, went back to mono. I have no idea what I changed or what got changed, but I am extremely torqued off at this point.

MCQ: Yeah, and it's not going to do you a bit of good. [Laughs]

DALE: No, it's not. I love it when stuff happens right at the very start of the podcast; then you're kinda screwed for the whole 30 minutes. We will have to do our best just to soldier on through here.

MCQ: Yeah, Murphy's Law of Podcasting.

DALE: What?

MCQ: Murphy's Law of Podcasting, right?

DALE: Yeah, absolutely.

MCQ: If it can go wrong, it will go wrong in the last five seconds.

DALE: Yeah, exactly, and now I'm getting feedback from the phone, so everything is working wonderfully now; I'm very happy with the way things are turning out. Well, let's go back over this week, I think there's only really one big story to talk about, and that's the decision in the Supreme Court in D.C. v. Heller. We learned two things: four Justices of the Supreme Court think that if there is an individual right to keep and bear arms, they have no clue what that right consists of, and we have learned that based on Heller and based on the child rapist death penalty decision, that now that Sandra Day O'Connor is gone, Anthony Kennedy is King of the United States.

MCQ: That's right, and as you said, the way the Supreme Court goes depends entirely on whether Anthony Kennedy had a good breakfast or not.

DALE: Exactly.

MCQ: I mean, that's just—that's scary stuff. And especially how he's landed on some things. I mean it's kind of scary because I haven't figured out the guy yet. I have absolutely no clue where he's going to come down out there.

DALE: Well, y'know, theoretically he's a conservative, but if he is a conservative, he is kind of an odd conservative, you have to say that at least.

MCQ: Well, I absolutely agree. And I'm almost of the opinion that in fact it does depend on what he had for breakfast, because some of the things I'm seeing now—and I'm thinking specifically now of the child rape thing—just do not track with where I see him come down on something like Heller. I mean, it's an odd sequence of cases, and he's come down on—he has not been consistent as far as I'm concerned.

DALE: Well the really wierd thing about the — and I can't even remember the name of the case in the child rape case — but the really wierd thing about that was, several years ago the Supreme Court handed down a ruling that really restricted the use of the death penalty in just about anything but murder cases, and because of that ruling, many states have taken their death penalty statutes for many other crimes off the books, and so, in general, in many states now—in most states now—murder tends to be the only capital crime that's left; murder and, I suppose at the federal level, treason. So that was a revolution in state laws led by the Supreme Court. And then in this week's decision, Justice Kennedy comes back and says, "You know, it's clear that over the last ten or fifteen years or so, there has been a move away from using the death penalty for anything other than murder cases, so there's an emerging punblic consensus." Well, yeah, it's an emerging public consensus that you mandated a decade ago.

MCQ: Right. And the other thing too, is — y'know, it's funny you mentioned the federal treason law. I wonder if that puts that in jeopardy, since they pretty much said that anything but murder was really not something that should have the death penalty on it. The first thing I thought about when they said that was, "Wow! What about treason? How about Hiss and the boys?" [Chuckle] I mean, all of this, all of the treason cases back a few decades ago, what about them? Would that now, in this evolving bit of morality that we've come up with, would those have been thrown out and these people would be put in prison for life?

DALE: Well that's a fascinating question. The last people that we put to death for treason were Julius and Ethel Rosenberg. So you're going back to the 19-, the early-mid 1950s there. So it's been over 50 years since we put anybody to death for treason. So what is our emerging public consensus now? I honestly don't know what it is, but I guarantee you one thing: I bet Justice Kennedy knows.

MCQ: [Both laughing] You sure? Yeah, I'm not sure he does. And I would love to see that debated and brought out in court, because I think that this particular ruling — and I'm trying to remember the name as well, Bohemie or B- I can't remember, but anyway, Baumer or something like that, anyway, some odd name — I think that puts federal treason death penalty cases in jeopardy.

DALE: Well, if we actually had any, it might.

MCQ: Well, agreed. But I'd love to see, given this case, I would love to see the discussion on that, and how people thing the court would come down on something like that, based on this ruling.

DALE: Well, I suspect though, treason is one of those crimes though, that is very rarely prosecuted, but when it is, and when the federal government prosecutes it, since the Constitution at least implies that the death penalty is a capital—or that treason is a capital crime, you'd have to go through some pretty tortuous mental reasoning to disallow it.

MCQ: Well, okay. I've seen some pretty tortuous mental reasoning on this, why wouldn't that be the case there? [Laughs]

DALE: Well, just read Justice Stevens's dissent in Heller. There's some pretty tortuous reasoning there.

MCQ: That's correct. There you go, the most torturous reasoning... [laughing]

DALE: You know, a good lawyer can argue both sides of any issue.

MCQ: Sure. Absolutely. And he argued both to himself and lost. [Both laugh]

DALE: Well this Heller decision is going to be really interesting, because there was—I don't know, I guess there was a feeling among some people that if the Supreme Court came out and said it's an individual right, that'll kind of put gun restrictions and things like that on the shelf, and I think, as we talked about here on this podcast whenever the Supreme Court granted cert to hear Heller, what I think—what I thought was going to happen did happen. They said, "Yes, there's an inidividual right to bear arms, and there are reasonable restrictions on the times and places for carrying them outside your home." That's pretty much what we got, but I think we actually went a little farther because the decision that Scalia wrote kind of implied — although it didn't directly state it, but it did kind of imply that there was no incorporation of the Second Amendment onto the states, which kind of flies in the face of 20th century jurisprudence in terms of the Fourteenth Amendment. So there's a whole branch of incorporationist legal rulings that really have to be faced, and the first thing that was said by Mayor Daley in Chicago, of course, was, "Ah, well, this doesn't apply to the states so it doesn't affect us, so the handgun ban remains. It only affects the federal government." And so immediately, several pro-gun groups started suits in Chicago, in San Francisco—they have a gun ban there too. This is not the end of anything; Heller is the very beginning of what looks to be a fairly lively business in Second Amendment trials.

MCQ: I agree. One of the things you have to remember is, DC is a federal district, and so obviously, right away, this is something that applies to the federal level. And unless it is incorporated—and that is one of the things that, as you point out came out of this, is not clear at all—then it in fact, it appies only in that area and at that level. And I think Mayor Daley, despite what I think of the man, is right at this point; I don't think it applies to the cities out there or the states, and I also think that the folks that took this to the Supreme Court and got this ruling are right to go after it and see if it does. That's something that has to be settled. So these incorporation things are going to come out soon. And I think you and I discussed it: y'know, one could show up in the Ninth Circuit out in San Francisco, which we are pretty sure we know how it would come out...

DALE: That's a collective rights court.

MCQ: Yeah, exactly, and then one of the other circuits, such as New Orleans or whichever circuit Chicago is in [ed: Seventh Circuit], could come the other way. And that would mean, then, that it would show up again in the Supreme Court, and it is going to force a decision one way or the other on incorporation.

DALE: Yeah, if you have two circuits with two different decisions, the Supreme Court's going to have to resolve the difference in federal jurisprudence.

MCQ: That's correct. And that would be de facto incorporation at that point. And then you can go through a million other scenarios — "Okay, now that they've decided that, how far can they go?" and "What are we talking about when we talk about weapons that citizens can have?" and right on down the line, and "How far can you go in restricting this?" And this could be decades' worth of lawsuits to get this finally all squared away. But to me, the good news is, even if it was 5 to 4, even if it was 5 to 4, it is clear that the Second Amendment was found to be an individual right. Now we just gotta work out the details.

DALE: Yeah well, the devil is in those details, I'm afraid.

MCQ: Oh of course.

DALE: You could still support quite a robust system of licensing, absolute bans on carrying outside the home... I mean, there's a hole in that decision big enough to drive a truck through.

MCQ: Yeah, and especially the way, as we've pointed out, especially the way it was — it was pretty narrow. And especially to whom or to what it applied. So yeah, as I wrote in my first post on this, let the games begin, because that's exactly what this has done, is it has become the Lawyers Employment Act of the next few decades.

DALE: One of the interesting things about the case that struck me—and it has been an interesting thing about this decision for a long time, actually, although it's really only been discussed in law review articles and at the professional level in the legal profession among constitutional lawyers—and that is the issue of, what exactly is it that the 1939 case of U.S. v. Miller actually says? Because it cannot both say what both sides say it says.

MCQ: Right, or the New York Times, yes. I agree.

DALE: It must have a meaning, but no one seems to know exactly what that meaning is. I believe it was Sandy Levinson who, a couple of years ago, said, if you really want to, you can actually read Miller as requiring the people to have access to machine guns and assault rifles and other arms that are in common military use. If you want to just look at the plain language of Miller, it kind of does imply that.

MCQ: Yeah. Well, I think too, both sides — when I was reading a New York Times editorial, I got the impression from the editorial that they thought Miller said a lot more than it ever said, and they were just aghast that 70 years of precedent have been overturned when, in fact, as has been pointed out, Miller was never convicted of anything.

DALE: Well, that brings up an interesting thing in both opinions, both Scalia's opinion and Stevens's dissent. both of them kind of blithely talk about Miller upholding the conviction of Mr. Miller in federal court; in fact, it did no such thing. Miller and, what was it, Frank Miller some guy named Layton, I can't remember his first name off the top of my head [ed: Jack Miller and Frank Layton]— they were under observations by federal liquor revenuers because they thought they had a still, and when they actually did a raid and they found out that they did not, in fact, have a still—they had an old still that probably had not been operational for years and years—they were so upset, the only thing they could find to grab the two guys on was the fact that Miller had a sawed-off shotgun in his possession, and so he was charged under that. When it went into federal court, the federal judge looked at it and said, "No, I don't think so, this doesn't match what I think the National Firearms Act says," so he quashed the indictment in federal court. Miller was brought to the Supreme Court by the US District Attorney, or by the US Attorney rather, who was upset that the indictment had been dropped.

MCQ: Yeah.

DALE: And so, for nine Supreme Court justices, and all their clerks, to look through both of the opinions and miss a very basic fact of the Miller case, which was that there were no convictions of anyone, is a bit surprising to me and actually quite frightening considering that that's the level of legal reasoning where these nine robed lawyers are going to be using to decide what our rights are or are not.

MCQ: Huh. Well I'll tell you what, we actually have two callers tonight, Dale.

DALE: We do.

MCQ: So we might want to — I think I see John...

DALE: Let us start off at the very top. We have two callers, one from the 513 area code. Before we get to that, let us talk to John AGJ. John, you're on the air. John, go ahead. John.

MCQ: John? Okay, that worked well.

DALE: John going once, John going twice, John is back on hold. We may have to try him again later. We have a caller from the 513 area code. Caller, give us your name and go ahead.

CALLER: Yes, my name is Myrtle Jean.

DALE: Go ahead. What do you have to say.

[MCQ laughs] CALLER: Is there something funny?

MCQ: Yessir, go ahead.

CALLER: What's the topic?

MCQ: Have you been listening?

CALLER: Well, yes I have, but I just need to know what the topic is.

MCQ: Mm-hmm.

DALE: Okay, well, basically we're talking about the case of DC v Heller and some of the implications of it. Do you have anything to add to that?

CALLER: Oh, you mean the gun ban?

MCQ: Mm-hmm.

CALLER: I think that that was not handled correctly. I agree that everyone should be able to hold a gun. I myself have a couple guns. I get um — P*NIS!

MCQ: Great. Thank you so much.

DALE: All-rightie. [Chuckles]

MCQ: Gol-ly.

DALE: [Chuckling] And p*nis to you too.

MCQ: Yeah, Myrtle Jean ... [laughs]

DALE: And you know, what's really funny, is if you're going to call up and yell what you think is an obscenity, why don't you just say "d*ck" and be done with it? Why would you yell "P*NIS"? "VULVA!" Okay, great, thanks a lot for participating.

MCQ: And hang on 15 minutes to do this. Thank you, Myrtle Jean. Anyway, back to D.C. v. Heller...

DALE: Got a Baba Booey for us, by the way?

MCQ: I'm sorry?

DALE: I said, ya got a Baba Booey for us there, Myrtle?

MCQ: ... a rim-shot? Anyway. Back to D.C. v. Heller. One of the things that got me as I was reading through a New York Times editorial that basically mirrored the dissent, essentially saying this is a collective right. And anything you read on the Bill of Rights, anything you read about it, the first eight amendments especially were there specifically to keep the government at bay, not to keep individuals at bay or the citizens at bay. In fact, that's why the First Congress and the states approved them, to protect the specified rights against invasion by the government. So to me, regardless of how the Second Amendment is worded—and yes, I think you can make an argument that the English isn't the greatest in the world, but if you look at the background of how that Bill of Rights came about, there is no question that at least those first eight were specifically aimed at individuals and individual rights, and to keep the federal government from invading those rights or violating those rights.

DALE: Right, they're limitations to prevent the government from violating pre-existing rights. They do not grant powers to the government; rather, quite the reverse. Oh look, we have another caller from the 540 area code. Caller, go ahead, you're on the air.

CALLER: Yes, this is John, Average Gay Joe, I [inaudible] work, it didn't work.

MCQ: Hey John — well, I was going to tell you, you have a rough one to follow with Myrtle Jean, but anyway... how ya doing?

JOHN: Oh man, I'm doing pretty good, how are you guys?

MCQ: Good, good.

JOHN: [Inaudible] Second Amendment ruling, right?

MCQ: Yes sir, whattaya got to say?

JOHN: I just sent you a quick link [ed: That was an AP link, John!], you probably didn't have a chance to look at it, but it was the news articles coming out now about, with Obama pretty much clinching the nomination, what role is this gonna have, especially if he wins in November, on affirmative action? There goes the rationale behind racial quotas. After all, if a black man can become President of the United States, or at least take the nomination of a major political party, why do we need to have racial quotas mandated by law?

MCQ: I can't argue against that.

JOHN: How's that for a controversial topic at the last minute?

MCQ: Well that's good! No, I agree with you, and that's been—it is. It's going to do a lot of damage to the grievance industry, there's no question about that. I mean, I am of the opinion, and this is just a personal opinion, that that's one of the problems that the Reverend Wright has with what's going on right now, because he's out of business, and so is his whole industry. There, as you point out, there is no rationale at that point, if a man can do what Barack Obama has done, to say, "well gee, we need to set aside some quotas" anymore.

JOHN: Mm-hmm.

MCQ: So, we'll see. I mean, I have no idea how this will work, but I agree with you and I think there will be a big push to see that done away with. I don't think it will be, but I think there'll be a push.

DALE: On the other hand, if he loses, it's a great argument for the fact that we are still a horrifically racist country because we refused to elect a black man president and therefore, all these things need to continue.

MCQ: Well, y'know, especially the fact that this should have been a lock, a walk-away victory, a walk-off home run for the Democrats this year. And if they lose, what else can they blame it on but racism? I mean, think about that.

DALE: Yeah well, the thing to blame it on, of course, is the fact that Mr. Obama espouses an ideology that a majority of the country doesn't agree with

MCQ: Oh, there you go being logical and rational again.

JOHN: Well, actually, if you go to your post you made earlier about what Wesley Clark's comments, it just shows that Mr. Obama is untested and untried.

MCQ: Agreed.

JOHN: I mean, a junior senator with one year's experience before running for the highest office in the land? You can stack McCain's resume against his any day.

MCQ: That's right.

JOHN: And I'm not a huge fan of McCain, but if I have to choose between the two...

MCQ: Join the club; we're not, either. But yeah, Clark's comments were just off the wall. I mean, first I'm not a Wesley Clark fan, as I've made clear many times in blog posts, and today just put the exclamation point behind that. That was just crass, what Wesley Clark said, and the fact is, if his experience isn't good enough, then where does "community organizer" come in on that list? [All laugh] Come on... the guy has nothin'. But your point is right: if McCain is untested and untried, what's that make Obama?

JOHN: Yeah.

DALE: Well John, we appreciate the call. We appreciate you weighing in with us.

JOHN: [You guys have ?] a great podcast.

MCQ: Hey, and thanks for letting me rant. [All laugh]

JOHN: No problem. Keep up the good work.

MCQ: See ya.

JOHN: Take care.

DALE: The interesting thing about all of this stuff with the Supreme Court—and this is, I think, one of the things that I kind of tossed out as a throw-away comment—but, if you have nine people who can determine what your rights are, what you may and may not do, whether you call them a Supreme Court or you call them a junta or whatever else you call them, they are in fact the true rulers of the country, not the people, who are supposed to be sovereign.

MCQ: Yeah, and in fact, you're not dealing in rights, you're dealing in privileges, and it's whatever they decide those privileges are this day, and it goes right back to your point about Kennedy's breakfast, y'know?

DALE: Yeah.

MCQ: And that's a terrible thing to say, but that's kinda the shape we're in right now. And you and I discussed this earlier about McCain-Feingold: we have everybody sort of either abrogating their responsibility or taking more than is there. when Bush said, "well, y'know, this is unconstitutional but I'm going to sign it," as far as I'm concerned, he abrogated his responsibility. His responsibility is to veto legislation that he thinks is not good legislation. Whether it's constitutional or unconstitutional — that's the job of the Supreme Court. You don't pass it and say, I think it's a lousy law, but I'm going to let the Supreme Court deal with it. You veto it because it's a lousy law. And the reason we have McCain-Feingold today is because he didn't do his job. Then we have the Supreme Court overreaching, as it did when it sandbagged the administration about Gitmo.

DALE: Well, not just the administration, it was the Congress of the United States that they sandbagged.

MCQ: Well, that's right, the Congress and the administration, but they sandbagged them and said, "Well, here's what you need to do" and then, when they did it, said, "Ah, that didn't work, that's unconstitutional" and made law. So, that's not their job. So this is what we have going on, this dynamic, and it is a very very dangerous thing that we have going on in both areas.

DALE: And I don't know how you change it. I don't know how you change —

MCQ: That's what I was going to say, I don't know how you fix it.

DALE: You have 200 years of this experience where the Court says what law is, and that works fine as long as the Court is going to operate in this rarefied academic atmosphere, they're going to throw their political beliefs aside and they're just going to look back, "Okay, what does the text of the law say?" And if they can't figure out what the text says, then what did they think it meant when they passed it? That's about really your only—and of course, that second one is a pretty hard thing to find out a lot of times—but those are really your only guides. Once your guide becomes, "What do I think the law should be?" or "What is our emerging consensus about our rights?", I think you're getting into very, very dangerous ground there. But actually—

MCQ: [Inaudible] getting into opinion, now.

DALE: Yeah, but absent some sort of constitutional change that either limits the ability of justices to do that kind of adjudicating, or to find some sort of method where Congress can overturn a Supreme Court ruling with which they disagree—we do, after all, have a government of Congressional supremacy—I don't know where you go. And quite frankly, the idea that Congress could, even with a two-thirds or three-quarters majority, overrule the Supreme Court, there are certainly plenty of problems with that. Now you're back into whatever the political branch thinks your rights should be; I'm not sure it's better to have 535 Congressmen deciding that than it is to have nine judges do it.

MCQ: Yeah, I know, and essentially what we have going on in the Supreme Court when you see justices talking about emerging morality and emerging consensus and that type thing is, you have the living Constitution side, and you havce the strict interpretationist side battling each other. And unfortunately, Kennedy comes—sometimes thinks it's a living document, and sometimes thinks he should strictly interpret the thing. And that's what's driving everybody crazy right now.

DALE: Yeah, because—and that's one of the real dangers when it comes to the law, because if there is not some sort of objective meaning that you can count on, then how do you know on a day-to-day basis whether what you're doing is a crime? How do you know whether it is a civil offense? How do you know whether you are or are not authorized to do anything if, at any given moment, the composition of the Supreme Court or the feelings of one justice can turn one way or another? That takes away one of the strongest things about the rule of law, which is the predictability of it, the fact that you know what the law says, and it can be followed.

MCQ: Yeah, and that no one is going to interpret it differently. That this is the law, this is the way it works, this is what's going to happen. It's defined, you know what it is, there's no question about it. But as you point out, when we get into this rarefied atmosphere of the Supreme Court and we have people talking about emerging reality, that's all opinion, that's just opinion. I mean, it has nothing to do with the stated law. But he's going to change it, and that's terrifying. That gets back to the point of, who in the hell knows who's doing what right or wrong at that point? Because it is then up to whatever that particular justice who has the swing vote decides in the proper thing that day, instead of actually sticking by the letter of the law and interpreting the Constitution as it's supposed to be interpreted.

DALE: Well I'll tell you one of the things that has been fascinating, though, as you look at some of these rulings, is the fact that both sides of practically every issue, if it comes before the Supreme Court, no matter what the Supreme Court rules, the side that loses will always take up the same cry: "This is judicial activism."

MCQ: Yes indeed.

DALE: Y'know, it's amazing, if the Right has been successful in any one thing, it has been to make "judicial activism" the buzzword for legal affairs.

MCQ: And that is exactly what happened after Heller. We heard all about these activist judges who overturned 70 years of precedent, ignoring the fact that that 70 years of precedent had apparently overturned the individual right of the Second Amendment for a couple hundred years. So as far as I was concerned, they actually got us back to the proper point, and now we'll get to play the games that we've been talking about.

DALE: Well, I have to say, looking at a lot of the statements that were made, I do have to say it has been amusing at the very least to see just the sheer level of ire that this thing has provoked.

MCQ: I've enjoyed every minute of it.

DALE: Yeah. So have I, actually, I have to admit it. [Both chuckle] Well Bruce, it's always a pleasure. We will talk to you again next week.

MCQ: You bet.

DALE: You've been listening to Observations, the podcast of the QandO Online Magazine. Observations is produced and co-hosted by Bruce McQuain. Sound engineering and co-hosting done by me, Dale Franks. Hope you've enjoyed this edition of the podcast. We'll be back again next week with yet another one; we hope that you're listening then. In the meantime, have a great week everybody. We'll talk to you again next week. Until then, so long.
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Previous Comments to this Post 

Wait a sec, I could have said "penis" or "vulva"?!? Dammit guys, you really need to let your audience know these things... Wow. I missed most of that woman’s call while scrambling for my cell (damn headphones!) but just listened to it. Interesting audience you have. Howard Stern would be proud. ;-)

Keep up the good work guys.
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