Free association

This is going to be an occasional series of notes to help me fix half formed thoughts, and nail down concepts that sound pretty good inside my head.

The inaugural one is this:

A well regulated Militia, being necessary to the security of a free State

What are the necessary and proper 10th amendment rights retained by the people that are implied by this clause of the 2nd amendment? 

The anti-gunners never ask this question and I've never seen the pro-gun side ask this either. Is there any literature on this subject? 

A Republican Form of Government

Every two years, the federal government certifies that the 50 states have an acceptable form of government. This sounds odder than it is. Article 4 Section 4 obliges the federal government to guarantee "to every State in this Union a Republican Form of Government". Luther v Borden, a case over the Dorr rebellion in Rhode Island established that this guarantee is non-justiciable, that the Supreme Court cannot intervene.

This guarantee is what was used to overthrow the elected governments of the Confederate states after the civil war and put the Army in charge under Reconstruction. With the passage of the 14th amendment, the equal protection clause of that amendment became the dominant way for the federal government to control states who strayed too far from american ideals. Yet this dependence on the 14th amendment is convenience, not any sort of overthrow of the clause.

These days the interesting theoretical question about this clause is whether there is any sort of government that does not violate equal protection but does constitute a violation of the republican form of government guarantee. It seems clear that it is. The establishment of a system that made the votes of the people essentially worthless would seem such a trigger but only if the situation became intolerable enough to provoke rebellion.

The interesting practical question is whether there is a threat that could actually trigger it. The most likely big issue seems to me to be government pensions swallowing up governments. Past a certain point, government ceases to be anything meaningful beyond cutting transfer payment checks. The will of the people is functionally nullified. For this to actually become an issue, only the Congress could step in either by simply not recognizing the validity of a state's federal representatives or by more involved legislation like the reconstruction act of 1867.

Indian Reports

Are the native american tribal nations still "in a state of pupilage"? That was the term used to describe the relations between the USA and the Indian nations in Cherokee Nation v State of Georgia. If they are in a state of pupilage, we're not doing a very good job of it. If they are not in a state of pupilage, there is an entire legacy infrastructure of legacy paternalistic arrangements that the US government maintains that needs to be dismantled. That infrastructure is making the indians both dependent and poor.

We can't have it both ways and both not take seriously the responsibility of this pupilage and maintain a useless and too often counterproductive paternalist infrastructure. That's not just stupid, it's evil.

My personal preference would be to normalize indian lands and grant them more powers to run their own affairs with the responsibility of living with the consequences if they foul up, just like the rest of us. But that's a conversation that we all should be having, but we aren't.

Another one for the stack of reports for Citizen Intelligence.

HT: Instapundit

Debt Bondage

Debt bondage or debt peonage or indentured servitude is a form of paying off debts banned by the US Constitution. Unfortunately for us all, the US political class seems to have figured a way around that bit of the 14th amendment to impose it intergenerationally.

We're awakening and discovering we've sold our children (and if we're young enough to still be alive when it all comes crashing down ourselves) into a form of debt bondage. In short, we're slow motion selling ourselves into slavery and politicians are asking for our votes in order to change the details of our upcoming bondage.

What are we trying to stop with the 3rd amendment?

The third amendment, viewed one way, is the most successful amendment in the bill of rights. It's so clear that there is hardly any jurisprudence surrounding it, it gets violated so infrequently. Or does it? We'd hardly know because we don't have a clear idea what is the problem with quartering troops. Is it that the troops were present within our homes absent any permission from the homeowner? Or is it that quartered troops didn't pay for their forcibly acquired lodgings? Was the ancillary risk of having to be on your guard lest you be seen in your own home violating the law? Was it a combination of all of the above and in that case how many of the elements need be present to trigger a third amendment case?

If the government does not quarter troops but civilian bureaucrats, does that eliminate any third amendment problems? What if the troops are robotic? What if the troops are software agents? What if the troops are somebody else's software agents?

Sometime in the next 30 years, the third amendment is likely to be revitalized by some bureaucratic overreach of one type or another. It would be helpful if we clarified the third amendment before that happens.

comment box revolutionaries

Over at ChicagoBoyz, where I cross post, the commentariat is talking revolution. It's nonsense, of course because we are nowhere near ready. I can tell because the people are heavily armed and we aren't undergoing a spate of assassinations of our political class. This sort of talk is a warning sign, but still a pretty early one on the road to Civil War II.

But we're far enough along on the path that I worry. I worry about someone from either side doing something stupid and being too few degrees separated from the nonsense. I worry about the small but not zero chance that things change in a hurry.

We have deep wells of civic bonds but they are straining and if they ever snap, it will be worse than the Yugoslav wars.

Will Republicans honor Obama's lawless suspensions of the law?

Charles Krauthammer's column today decries Obama's lawlessness. He understandably doesn't lay out the one sure cure for it, prosecution. I don't mean Obama. He's politically untouchable. I mean everybody else who goes along with it. I mean file suit, and seek civil damages of $1 from every private party who went along with President Obama's lawlessness. The principle that the President doesn't just get to make stuff up as the law of the land has to be enforced.

The political problem with this solution is obvious, fearing prosecution or persecution if they resist, private parties are reluctant to defy a sitting president. If they give in, they fear retribution from the other party so they support the party that coerced them into illegality, strengthening and lengthening its turn in power.

The underlying principle that lawlessness will not be tolerated has to be reestablished somehow. Impeachment has failed to be a barrier for Obama. If we're not to slide into an uglier, third world style of politics, we have to establish new barriers that actually will work.

HT: Instapundit

Voter fraud via Obamacare?

While the tone is a bit over the top, this PJMedia article on Motor Voter provisions in Obamacare raise some troubling questions. Under no circumstances should we ever bypass established fraud checks. It's especially troubling if the federal government instructs the state to bypass fraud checks.

If this is actually happening, this is a great big warning sign. Normally, you would just raise your eyebrow and move on, giving the administration the benefit of the doubt. President Obama already blew through that with his electoral campaign practice of bypassing donation fraud checks on foreign addresses. He already had his second chance and blew it. This is at least round three on the issue of election fraud.

So how do you address the issue and figure out if it is real? The web sites will eventually get fixed and create a flood of records. The clock is ticking. The first step is probably to call your state's Secretary of State office and sort out if the article has its facts straight.

A good cure for hypotension

Guaranteed to cure your low blood pressure problem, I give you the Checkpoint USA Youtube channel. A collection of border stop videos miles away from the border, interspersed with occasional beatings when regular people get too assertive in defending their rights.

Our current immigration policy is so far from right it's not even wrong.

HT: Instapundit

Boehnor should not honor Obama's lawlessness

President Obama's veto threat of the Upton bill to legally do what he is trying to do by illegal means, delay the individual mandate, has firmly established a sad fact. The United States has a lawless president. Impeachment would be a three ring circus and unlikely to be worth the effort. President Obama has indeed not let a crisis go to waste and is trying to legitimize presidential lawlessness by picking a test case where the he is doing lawlessly what the Congress wishes to do lawfully. It's a threat of precedent, not a present threat to the lives and health of anyone today.

A more appropriate response than impeachment would be to wake up America that there is an important and symbolic issue at stake. Speaker Boehner can do this simply by denying the President an honor. He can deny President Obama the use of the House chamber for the State of the Union address. A currently substanceless threat to our legal tradition is responded to by a substanceless slap of rebuke. Let the President write his address and let it be read from the well by a clerk.

The idea that the President has so dishonored his office that he no longer can enter the House is a powerful image that alerts the people to a problem but does not stop us from carrying on with the serious task of government. Impeachment should not be our first resort. Who wants President Biden? This measure also has the advantage that it plays to Boehner's strengths and requires no approval from anyone else. He can take this decision unilaterally. He should.

Cross posted: Chicago Boyz