Oppression flows from insecurity

The essence of the issue was well stated by Ali A. Mohamed, Al Qaeda spy now in U.S. custody (from an interview on National Geographic Channel documentary):

"Islam without political dominance cannot survive."

It is that belief, and not Islam, that is his true faith, the one he acts on.

One should use the correct names for things. This from Arabic words for Soldiers, Sailors, Airmen and Marines to know and use:

Irhab (eer-HAB) -- Arabic for terrorism, thus enabling us to call the al Qaeda-style killers irhabis, irhabists and irhabiyoun rather than the so-called "jihadis" and "jihadists" and "mujahideen" and "shahideen" they so badly want to be called.

Hirabah (hee-RAH-bah) -- Unholy War and forbidden "war against society" or what we would today call crimes against humanity.

Shaitan and shaitaniyah (shy-TAHN and shy-TAHN-ee-yah) – Islam’s Arabic words for Satan and satanic [example: Osama Abd' al-Shaitan, Osama Slave or Servant of Satan]

You will also sometimes see the word fasad, meaning "mischief", or fasadi, meaning "troublemaker".

One might want to refer to such extremists as "uncivilized barbarians". A word that might be used is metawahesheen - متاواحشين

So depending on our attitude toward what irhabis really believe, one can call it irhabism, harab'ism, shaitanism, or fasadism.

Intolerance is indicative of those who have been taught to identify with a religion, but who don't really believe it, and don't have confidence it can survive or prevail in a competitive marketplace of ideas. It is not the true believers, but the nonbelievers pretending or deceiving themselves that they are believers. That is a problem of social pathology more than of religion proper.

We need to adopt proper labels for the sides in the clash. It is not the various traditional sects, or secularism vs. religious fanaticism. On the one side is constitutionalism, a belief in a rule of law, and particularly in a superior law from which all ordinary laws are derived, which embraces and protects any body of belief that teaches love, tolerance, and civic virtue. Constitutionalism is also a kind of religion, a civic religion as the political philosopher Montesquieu recommended, but a metareligion -- a religion about religions.

It is opposed by what? We have given many names to the opposition to constitutionalism: tyranny, fascism, totalitarianism, hate, intolerance, vice, barbarism, evil. But there is a danger in this, and a weakness that constitutionalists bring into the debate: We must avoid adopting the ways of the opposition, or we become them and they win. We also have the weakness that it is much easier to destroy than to create. Constitutionalism is about creation. But a single madman can destroy it all with the tools of modern technology.

We must gain control over the upbringing of all of our children. If we do not civilize them we will have barbarians in our midst, and civilization will fall.

The National Press Herd

The following are comments on the Feb. 6, 2009, Bill Moyers interview of Jay Rosen and Glenn Greenwald:
______

Humans are herd animals. They try to figure out where their herd is going and then position themselves somewhere in the middle for safety. Leaders seem charismatic only as long as they don't look too much like us, so, unable to agree on a leader from among the herd, people adopt the herd itself as its leader. However, there is no wisdom in numbers. Whenever too many people agree too easily they are probably wrong. The so-called "wisdom of crowds" only appears for specialized questions in selected situations.

The challenge for everyone is to learn how to perceive what herds we have become a part of and to overcome the bounds of herd mentality. "Thinking outside the box" needs to become not just a slogan but a habit -- and not just another orthodoxy.

Jay Rosen and Glenn Greenwald have become involved in their own orthodoxies in focusing on Washington, DC, and the mainstream media. Herd thinking is not just a problem in those areas, but in every level and branch of government, every profession and organization, every religion or school of thought. We have seen it within financial institutions and how it yielded the meltdown. It is especially dangerous in legal practice and the legal profession, where demands for strict constitutional compliance are dismissed out of hand as unrealistic or unworthy of acknowledgment.

It doesn't work to demand of those who are captured by the herd to break out of it and make needed change. We have to open it to disruptive outsiders. The Internet has enabled outsiders to become publishers, journalists, and lobbyists, but we still need to enable outsider intervention in administrative and judicial processes, public and private. The established institutions for that are the trial jury and the grand jury, but we have allowed judicial practice to disable their effectiveness. We will not reform those processes until we enable trial juries to review the legal decisions of the bench by hearing all arguments of law, and enable grand juries to hear complaints from any citizen, investigate any public or private institution or practice, and report on its findings, perhaps with an indictment authorizing a private citizen to prosecute. Citizens must not be denied standing to privately prosecute public rights, or to issue writs of quo warranto to challenge the authority of officials, public or private, to do what they propose to do. The presumption of nonauthority needs to be established as the bedrock of our institutions.

Dynamics of Deliberation

It is sometimes said that the essence of republican government is representation, but that is not correct. Its essence is deliberation. Representation comes when it becomes unwieldy for groups to deliberate directly, either because there are too many deliberants, or they have too much business to decide.

This matter is discussed in my Introduction to Constitutional Conventions: Their Nature, Powers, and Limitations, by Roger Sherman Hoar (1917).

Any scheme of representation must represent a balancing of several conflicting utilities:
1. Representation of diverse interests and expertise so that the body can avoid errors in their decisions.
2. Representation of interest groups in proportion to their numbers, so that distributive decisions can accurately weigh those interests.
3. Allow agendas that allocate enough time to every question for all views to be heard by all members of the body and commented on by all of those who wish to do so.

Experience indicates that there is a practical limit on the size of deliberative bodies, either of primary members or their representatives, if they have much business to decide. This emerges in the ways bodies of more than about 30 members tend to break up into committees of less than 15 members, each of which allows testimony and creates a record that nonmembers can read and comment on, but which otherwise limits the number of active discussants and the time each gets to make their points. Bodies of more than about 400 become extremely unwieldy if they have more than about a dozen questions of some complexity.

The throughput limits of deliberative bodies can be seen in such deliberative bodies as the U.S. Congress or the parliaments of most modern nations. About 20,000 bills are introduced in the U.S. Congress each year. That is more than any of the members can even read, much less deliberate on. As a practical matter only a few of those can survive a filtering process involving staffers and committees, during which what was originally proposed can be and often is substantially altered or even reversed in its intent or effect. Most of the real work and decisionmaking is done by the staffers, often influenced more by their handlers outside Congress than by their nominal supervisors, mainly because of the volume of business.

Some have proposed that to be more representative, representative assemblies need to be made larger. They cite that the original U.S. Constitution had each member of the U.S. House of Representatives represent about 30,000 citizens. That was based on the population of the U.S. in 1787, and when the size of the House became unwieldy, its size was fixed at 435, where it remains to this day, and each member represents about 700,000 persons.

A constituency of 30,000 was originally seen as appropriate in large part because it is infeasible to expect a representative to personally know or listen to more than about 3000 persons, which was about the size of a populous county in 1787, and that only about 3000 out of a population of 30,000 would seek to be heard. (The largest cities, Boston, Philadelphia, and New York, had populations of only about 20,000 each, small towns by today's standards.) Today 3000 is about the population of a voting precinct. Government by town meeting worked when not more than about 300 would show up at a meeting, but was soon abandoned when the numbers greatly exceeded that.

If 3000 persons want to talk to their representative every year, that is about 10 a day. If the representative allocated each one more than about 15 minutes each, or 2.5 hours a day, he wouldn't have time to actually do the work that he would be expected to do. (In the realities of today's permanent political campaign process, each member has to spend most of his time on fundraising and has to leave the deliberation and other work to staffers.)

Congress receives more than 200,000,000 communications a year. That is more than 1000 per member per day. A member of the U.S. House typically gets about 200-500 letters a day from constituents, which can increase to many thousands during peak periods. (Postal letters, since the anthrax attacks, are processed in a way that delays them several weeks.) The average member has 14 staffers, 8 in the Washington office and 6 in the district office. That is barely enough to count the mail, or count positions on a list of issues, much less give consideration to complex content or positions on issues not on the list. Their main job is to serve as gatekeepers on access to their member, which is often strongly influenced by the advantage to their member of getting re-elected if access is granted. Members soon realize that those granted most access are most important to getting re-elected, even if they don't know the details of whether that is based on money donated or voter influence.

Numerous proposals have been made to make at least the U.S. House of Representatives more "representative". Some have addressed the ways election districts are drawn. The Voting Rights Act tries to legislate against "dilution" of "majority minority" districts, which is becoming mathematically impossible but is politically untouchable. Some have argued for a proxy system, others for sortition, which is the only method anyone has found to dispel the undue influence of special interests discussed in public choice theory. On theoretical and practical grounds some form of most of these has more merit than increasing the sizes of deliberative assemblies.

The NRA and the Beltway Mentality

Much has been written criticizing the NRA for becoming captured by the "Beltway mentality" surrounding the U.S. Capitol, and I tend to agree with the criticism, but it is useful to try to understand how this mentality arises. Essentially, it arises when busy decisionmakers decide how to allocate their time and attention, and decide it is not worth spending time talking to anyone unless one or the other side is likely to be persuaded to change his position. In particular, elected officials are generally only interested in talking to constituents who might change how they vote. It is not worth the time to talk to people who are determined to either vote for one or against. The same is true of fellow members for votes on measures before Congress. His fellow members don't call Rep. Ron Paul or return his calls because they know how he is going to vote on everything and nothing they can say is likely to change that. They also don't expect anything he might say, however wise it might be, is going to change their positions or the way they are going to vote.

This presents a problem for a lobbying organization who represents single-issue voters. They are in DC to persuade members of Congress and other decisionmakers, and they can't do that if no one will talk to them. But they won't talk to them unless they are willing and able to persuade their supporters to vote differently than they would otherwise. Most members of Congress either know they have the support of pro-RKBA voters or that they don't. There is therefore no reason for them to talk to a pro-RKBA organization like the NRA. The only reason would be for a member to throw the NRA a bone if they will agree to ask their members not to vote against that congressman for doing so, and that will only happen if the congressman is persuaded that the NRA-ILA can persuade enough of its members not to vote against the congressman if he does that. That is how we get those favorable ratings for anti-gun congressmen that so irritate gun rights advocates. It is the price we pay for getting an occasional vote switch from a congressman that can make a difference in a close contest. Of course we can ignore the NRA-ILA on that and vote against the congressman anyway. That is what I have always done, although I vote for the Libertarian candidate if there is one.

What is more problematic is when the NRA takes a public position supporting something adverse to the RKBA, or perhaps to some other provisions of the Constitution. They do it to get some concession on another point they think is more important, on balance. That is the way the game of politics is played in Washington, DC. Go along to get along. The Art of Compromise. The problem is that for most members of Congress the Constitution is just another policy position to be compromised like any other. To demand the Constitution be excepted from that is to stand outside the herd and that means the herd won't talk to you. The desire to have powerful people talk to you is a powerful corrupting influence. That is how the Elites control the media, not just by owning them or buying advertising from them, but by denying access to those who don't cooperate. Without access it is difficult for a reporter to get a story, so he or she plays the game to stay in the game.

This problem is not just at the higher levels of decisionmaking. It dominates at all levels, and not just in the public sector. Large private organizations have the same problem, and when organizations are too interconnected or play the same strategies, they begin to function like a single large monopoly. A market can operate among organizations but not within them. When organizations become too large, too well-connected, or too many adopt the same strategy, they overwhelm the corrective influence of the marketplace and we get crashes. But it all begins with refusing to communicate with others when one doesn't expect to persuade or be persuaded, and thus do the Cassandras get ignored until it is too late.

The problem is characteristic of any system whose principal operating components have a restricted information throughput. The bottlenecks of verbal and written communication and cognitive capacity among human beings limits the decision rates attainable by any system composed of them. Many of the critical systems in our lives are possible only because computers have enabled us to remove humans from impeding information and decision flows. Much fast breaking decisionmaking would be impossible for systems consisting only of humans, no matter how skilled they might be. The U.S. Congress today provides a case study of a system that is being tasked with having to process more information than it can, and that is a potentially catastrophic situation.

References:
Richard Janow, A Fundamental Limit on Productivity in Organizations: Collaborative Entropy Costs, NJ Institute of Technology, May 31, 2008. Link.

Mortgage-backed security model is infirm

It should now be clear the mortgage-backed security (MBS) model is fundamentally infirm, and only undoing it will suffice, but that will be a major undertaking and has serious implications for the entire financial sector, which is going to have to get used to not being able to raise unlimited capital using smoke and mirrors.

The only effective way to sort out this mess is to separate out each mortgage note and evaluate and manage each separately. The problem is the loss of information and control that has come from first bundling mortgage notes into securities, then selling shares of the bundles in further bundles, without conveying the details of each note and the collateral that secures it.

The result of this layered bundling is that it becomes difficult to credit payments to each note, work out delinquencies with the debtors, or execute foreclosures if that becomes necessary. It is not just failures to pay that is resulting in foreclosures, but failures to credit payments made, and having service agents go out of business leaving a question of whether there are uncredited payments, and whether payments received but not credited should be considered unsecured claims of the debtor or the mortgage holder.

Most of this debacle could have been avoided had courts not allowed foreclosures without presenting the original signed note instrument in court, and required the one owner and holder of it to personally appear in court to testify. The practice of accepting "affidavits of ownership" in lieu of the physical original note paved the way for the entire catastrophe.

If local lending institutions need to raise capital to make more loans, their proper solution is to continue to be the owner, holder, collector, and manager of each note, and sell stock in their institution, or at least in bundles they retain, not selling the notes, bundled or otherwise. It has never made sense to trade in bundles containing assets that come and go as they are paid off or not. What is the value of a bundle containing paid-off notes? Or of another consisting entirely of foreclosed properties being torn apart by vandals?

There is a problem with how it can be done, constitutionally, without violating the Contracts Clause (and the Tenth Amendment, since the Contracts Clause is only a restriction on the states). I have proposed creating jurisdictions for federal Art. III or bankruptcy courts to challenge foreclosures if the original signed note, a complete record of payments received by the servicing agent, and the owner and holder of the note (not just his attorney) be required to personally testify in court (for a corporation that would be a senior official). That would require disaggregation of all those MBS, if not as securities then as transparent administrative processes that could enable evaluation not just of bundles but of each component of them, in nearly real time.

The federal jurisdictions need not overburden the federal courts, as I would expect it to impose similar judicial reform in state courts, something that has already begun.

I do not, as a libertarian, favor regulatory interventions in the sense of administrative agents directing the actions of people, setting standards, or requiring them to report on their activities. The Nondelegation Doctrine needs to be revived, not further buried. However, it would be appropriate to use grand juries to investigate the inner workings of organizations too large or well-connected to be allowed to fail. Their role would not be to enforce rules written (and probably misconceived) from the last bubble burst, but to uncover things like conflicts of interest and actions between managers and their principals. Grand juries can keep trade secrets while making things transparent that must be known for investors to make rational decisions. Unbound by specific rules, grand juries could freely seek out dysfunctions that can arise from clever managers evading any rules that bureaucrats or legislators can devise, and prick emerging bubbles that regulators are likely to be discouraged from doing.

It is worth studying the history of money and finance, going back to John Law. This kind of thing has happened before. It is what led the U.S. Founders to require in the Constitution that only gold or silver coin be legal tender (on state territory). We can question today whether gold or silver are still suited for backing currency, but it should not just be the "full faith and credit" of national governments and their ability to withdraw enough currency from circulation through taxation to offset the amount they print to pay their bills. Perhaps the world should go to backing by something like kilowatt-hours of energy or its equivalent. But not by credit instruments whose value essentially depends on continued economic growth, which will eventually falter, bringing down all or most national currencies.

Biden Clueless on Constitution

In the Vice-Presidential Debate October 2, Sen. Joseph Biden continued a pattern I have observed over the years he has been in public office: He seems unable to mention the Constitution without getting it wrong. His mentions of it during this debate was no exception. Let's examine some of his statements:

... in an Obama-Biden administration, there will be absolutely no distinction from a constitutional standpoint or a legal standpoint between a same-sex and a heterosexual couple.

The fact of the matter is that under the Constitution we should be granted -- same-sex couples should be able to have visitation rights in the hospitals, joint ownership of property, life insurance policies, et cetera. That's only fair.

It's what the Constitution calls for. And so we do support it. We do support making sure that committed couples in a same-sex marriage are guaranteed the same constitutional benefits as it relates to their property rights, their rights of visitation, their rights to insurance, their rights of ownership as heterosexual couples do.

He seems to be vaguely referring to the Equal Protection Clause of the 14th Amendment, but that amendment does not address governmental benefits to couples, whether same-sex or opposite-sex. That is a state matter. Constitutionally, there are not supposed to be any federal benefits, one way or another.

Vice President Cheney has been the most dangerous vice president we've had probably in American history. The idea he doesn't realize that Article I of the Constitution defines the role of the vice president of the United States, that's the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that.

And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there's a tie vote. The Constitution is explicit.

The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress.

The constitutional provisions on the Vice-President are in Article I, Section 3, Clauses 4-6. Here is what it says:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

It also provides, in Article II Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Senator Biden is incorrect. The Vice-President may preside over the Senate at any time it is in session, not just to break a tie. One would think that in 35 years in the Senate he would have noticed that the Vice-President has sometimes presided there.

It is interesting to note that there is a flaw in the Constitution here, in that it permits the Vice-President to preside over his own impeachment trial. One suspects he would be under some pressure not to do that.

Gov. Palin does not yet seem to be highly knowledgeable about the Constitution, but at least she hasn't gotten anything about it wrong.

Considering that Sen. Biden has taught constitutional law in a law school, one has to be concerned about how well his students learned the subject, and even more about what he might do if he ever ascended to the presidency.

Obama to Palin: 'Don't Mock the Constitution'

It is encouraging to see contenders introducing the issue of constitutional compliance into the campaign. However, none of them appear to yet have a firm grasp on the subject, including the two, Obama and Biden, who taught constitutional law in law schools.

The Founders did not, in general, use dictionary definitions of their terms. Dictionaries as we know them today were only just beginning to be written, and meanings of words were acquired by doing a lot of reading of works in which the words were used, and their meaning extracted by context, but seldom if ever defined.

It is therefore not surprising that Founder James Wilson, attempting to come up with a definition of "piracy", proposed "robbery and depredation on the high seas". However, from a more thorough examination of actual usages of the term, we can get something like this:

Piracy is a warlike act committed by a non-state actor, either a foreign actor against this country, or a domestic actor against another country.

But this covers what we are today calling "terrorism", and the Constitution, Art. I Sec. 8 Cl. 10, "The Congress shall have Power ... To define and punish Piracies and Felonies committed on the high Seas...", and we have a well-developed body of law on piracy.

We can then also see that the Constitution covers all possibilities, partitioning the set of warlike actions into those committed by state or non-state actors, those within the country by a domestic non-state actor (treason), and those committed between nations by a non-state actor (piracy).

That also makes a warlike act committed by an official without a declaration of war or letters of marque and reprisal an act of piracy.

From Sarah who? to Sarah wow! in one day

I predict history will conclude the Election of 2008 was decided when Obama unwisely chose Biden as his running mate and McCain brilliantly chose Palin. There are few more revealing tests of a candidate's judgment than his personnel choices, and for a presidential candidate the main such choice is the vice-presidential candidate.

Palin has much to learn on constitutional construction, but she is a quick study and we can work on trying to get her to attend to that.

I am not yet prepared to vote Republican myself, partly because there is still a need to move public policy in a constitutionalist direction and there is no better way to do that than by having the Libertarian Party get a lot of votes, but also because I vote in Texas which is safely Republican, so a Libertarian vote here will help libertarians, such as our friends in the Republican Liberty Caucus, take control of the Texas Republican Party, and even move the Texas Democratic Party our way.

Palin is being groomed as an eventual president, and while we might like a president to be a constitutional scholar of world repute, it is more important to be an inspiring leader, choose good advisers, and make appropriate nominations to the Supreme Court.

Sarah Palin may have an "ordinary" middle-class background and chosen lifestyle (until her selection for VP Friday), but she obviously has a natural talent for leadership and good judgment that is worth more than years in public office. That talent has now brought her to the center of power, and as she learns and grows, she will be doing things that are well beyond the capabilities of ordinary people. We can hope that she will not be corrupted by power the way so many others have, and I suspect she won't be. Whether that will cripple her prospects for ascending to the presidency, because the Establishment doesn't like people they can't corrupt, will remain to be seen.

During the weeks until the election, and afterwards if her ticket wins, she will be coached in policy issues to prepare her for campaigning and debate. We can hope that part of that will be on constitutional compliance. Now if she will break away from the Republican Convention to speak to the Campaign for Liberty rally nearby, she can solidify hopes for her as an emerging libertarian constitutionalist. We can speculate whether one of the factors causing McCain to pick her may not have been the growing strength of the Libertarian Party in the polls. If so, then the Libertarians will have moved public policy in their direction before the election even takes place.

The most encouraging sign that Palin may be a constitutionalist, or at least one in an early stage of development, is this quote:

[The Alaska Constitution is] my bible in governing. I try to keep it so simple by reading the thing and believing in it and living it. It's providential. Some of the crafters of the Constitution are still alive. They're my mentors, my advisers. I get to meet with these folks and ask, 'What did you mean by this?' And it makes so much sense.

• Interview by Dimitri Vassilaros for the Pittsburgh Review-Tribune, conducted July 12, 2007, published July 16, 2007

As several have noted, I think we see the first female president, and it is likely the lineup in 2012 will be Palin/Jindal, which will be as close to a libertarian, if not constitutionalist, dream ticket as we are likely to see in this generation.

Now if we can just get more libertarian constitutionalists elected to Congress....

Columnist Robert Novak: What is "Constitutional Compliance"?

Columnist Robert Novak was one of the two keynote speakers, along with former U.S. Rep. Barry Goldwater, Jr., at the evening dinner of the Austin conference of the Americans for Prosperity, Friday, July 18, the first of a two-day Defending the American Dream conference at the Renaissance Hotel.

After concluding his talk, he opened the floor for questions, and recognized Jon Roland, of the Constitution Society, who asked, "What will it take to make constitutional compliance the leading issue in these campaigns?"

Novak stumbled for a few seconds, then said (paraphrasing somewhat), "What do you mean by "constitutional compliance"? It may be difficult to make it an issue if [someone like me] has to ask what it means."

Roland then explained that the Constitution is presently being substantially violated, and that we need to return to compliance with it as originally understood.

Then Novak seemed to catch on somewhat that Roland was raising the issues being raised by Ron Paul. He said "I love Ron Paul, but not as a candidate for president. I want him to stay right where he is." He then went on to comment that we need the Federal Reserve.

After the meeting broke up, Roland handed Novak a card for the Constitution Society and invited him to visit its site to find out what "constitutional compliance" means. Novak laughed and said he would.

For someone in Novak's position to fail to even recognize the phrase "constitutional compliance" is revealing about the state of our civic culture and awareness of opinion leaders at the top of it. He is at the confluence of information flows on civic topics of all kinds. I have gotten similar deer-in-the-headlights reactions from congressmen and other decisionmakers.

I urge all recipients of this message to flood decisionmakers and opinion leaders with messages that use the phrase "constitutional compliance", that explain how the Constitution is being violated, what has to be done to bring officials into compliance, and the importance of doing that. Pick your own favorite areas of noncompliance.

I realize it may seem incredible to most people that such people don't even recognize the concept when they are confronted with it. We need to realize that those of us who are determined to bring this country back into compliance are a subculture that has not yet reached key countrymen with even the language of our concerns, much less the concepts. We have to make sure they can't escape being confronted with them, or having to answer questions about them.

Individual Rights View of the Second Amendment

Rather than searching for evidence of courts taking an individual rights view, it might make more sense to seek evidence from near the Founding of anyone taking the "collective rights" view. I confidently predict you will find none, because it was first introduced in the late 20th century to rationalize gun control, and would have been thought bizarre by the Founders, for whom all rights were inherently individual. For them, rights, which would be called "immunities" by the framers of the 14th Amendment, were restrictions on the power of officials to act against individuals. ("Privileges" were created by government, by contrast to "immunities", which preceded government.) Even something like voting (a privilege), which can only meaningfully be exercised on a collective occasion, is still individual, not collective.

It is not likely to be productive, after an issue has been misframed by partisans, to seek historical evidence of it being otherwise framed in the past, because anyone can always invent some new way to misframe an issue that previous generations would never have thought of and would produce no evidence on the matter one way or another.

This is perhaps negatively illustrated by the absence of attempts to exhaustively list ("enumerate") all rights ("privileges and immunities"), an effort which Justice Bushrod Washington found to be "more tedious than difficult" in Corfield v. Coryell (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823) , before making an effort to broadly list a few of them. Even the state ratifying conventions in their proposed amendments did not attempt to list them exhaustively. I have tried to do that in Presumption of Nonauthority and Unenumerated Rights. It can be done by proceeding from a higher level of abstraction and then working down to more specific levels, but people in the Founding Era were more accustomed to thinking in terms of more specific rights arising from particular disputes, without getting around to abstracting them systematically. We have made some philosophic progress in 232 years.

The Case against Thierry & Nugent for Libels and Contempt of Court illustrates something else: the original standard of due process according to which issues of law were supposed to be argued in the presence of the jury. See Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573.

The term "states' rights" is a somewhat misleading abbreviation of "powers reserved to the states or to the people" from the Tenth Amendment, but even so it refers to the individual right not to have the central government exercise undelegated powers against either a state government or its citizens. We sometimes forget that the original idea was that individuals could privately prosecute a public right in court without having to have been personally injured first, a right that was not formally abridged until Frothingham v. Mellon, 262 U.S. 447 (1923). See "The Metaphor of Standing and the Problem of Self-Governance", by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.

The key point, as I have often stated, is that militia is primarily defense activity and only secondarily those engaged in it, as was common usage of many words in that era, and that there is no minimum number of those who may engage in it. An individual is always and at all times at least a militia of one. But 18th century English is a foreign language with respect to 20th century English.

The word "militia" is a polyseme, with multiple related meanings, either at the same time or depending on context. It is a type in which a noun meaning "those engaged in the activity" is derived from the noun meaning "activity" without losing the original meaning.

There is an important distinction between the legal duty to respond to an official call-up, enforced by penalties such as fines or imprisonment, and the social duty to defend the community. The two kinds of duty, the first deriving from the constitution of government, the second from the constitution of society, define two different subsets of the population, which I call the mandatory militia and the general militia, using the term to refer to those engaged in defense activity. The first is a proper subset of the second. People in the Founding Era often loosely used the same word to sometimes refer to the first, sometimes to the second.

However, there is a social duty to respond to a not necessarily official call-up that is enforceable by exclusion from protection or ejection from the community. As a duty, militia is the duty that defines the social contract, and as such precedes government. The authority to issue a call-up is a threat, and the duty comes with awareness of that threat, no matter who might become aware.

As discussed in "The Jury and Consensus Government in Mid-Eighteenth-Century America", William E. Nelson, communities in the 18th century were managed by juries and militia (and a jury was seen as a kind of specialized militia), with little government other than perhaps one part-time sheriff and judge. Militia was often called up not just for defense, law enforcement, or disaster response, but to perform community services such as repairing roads and bridges, erecting schools and town meeting halls, etc. These things were seen as defense activities. One was asked to care for those with smallpox because the disease was a defense threat. (And it is interesting that the understanding of disease as caused by an infectious agent was widespread long before Pasteur.) In an age when everyone was needed for defense, it made sense to make sure everyone could make a living and provide for his family. Care for the elderly was care for veterans who had done their part when they were younger.

DC v. Heller: Mixed Bag

DC v. Heller is an important win for the right to keep and bear arms. It's holdings are narrow: that two provisions of the DC statute, one banning possession of handguns, and the other requiring long guns to be kept in a non-functional state, are unconstitutional. The majority decision, by Justice Antonin Scalia, based that holding on the finding that the Second Amendment protects a pre-existing individual right to keep and bear arms apart from participation in militia. Much of his opinion consists of an etymological and historical analysis of the words in the Second Amendment. It seems likely that this decision will at least settle the issues of whether the right is individual, and whether participation in state-organized militia is necessary to assert the right.

The problem with this opinion is in the dicta that indicate the Court would accept as reasonable restrictions on the exercise of the right that could render it meaningless in too many situations. It is possible that these dicta are concessions that Justices Scalia, Roberts, Alito, and Thomas felt they had to make to win the swing vote of Justice Kennedy. However, it would have been better to omit them, since they are dicta and thus not necessary to reach the decision.

One thing missing from the decision is a holding on the level of scrutiny to be applied to any restrictions. Heller had moved for scrict scrutiny, which would bar most of the restrictions, federal, state, and local, that are presently enacted. The Court, as indicated by Justice Roberts, did not decide on the motion since it was not necessary to reach the decision on the DC statute.

In what follows I will be examining the points made in some detail, and expect to revise and extend this article over the days ahead, so readers may want to revisit it from time to time to get the latest version.

Troubling indications of what restrictions might be held reasonable

While in oral argument Justice Scalia indicated that only restrictions at the time the amendment was adopted might be reasonable, in this opinion he went far beyond that.

The only restrictions that existed at the time of ratification included:

1. Local militia commanders, but not state governments, could require militia participants to declare the numbers and kinds of weapons each could bring to a muster. There were no serial numbers in that era, but it is not too much of a stretch to require serial numbers for the limited purpose of making sure weapons could be returned to their owners if they got misplaced during operations.
2. Local militia commanders, but not state governments, could require militia participants to sign a roster and thus disclose their names.
3. Local militia commanders, but not state governments, could require militia participants to drill and practice with their weapons unloaded to prevent accidental discharges.
4. Local militia commanders, but not state governments, could require militia participants to use one kind of weapon in an operation rather than another, as best suited for the mission of each.

But then Scalia mentions that states began to assert a power to prohibit the carrying of concealed firearms without a license, and that such a restriction might be reasonable. However, it was not a restriction that appeared prior to about 1840, so does not meet the standard he stated in oral argument. It does indicate, however, that application to the states under the 14th Amendment is contemplated, since there are no federal concealed carry statutes.

Misreading of Miller

Although the decision in U.S. v. Miller, 307 U.S. 174 (1939), was not examined in depth, what was said about it missed what it was about.

The National Firearms Act (NFA) was a tax statute. The government was asserting a power to make it a crime to possess an object on which a tax had not been paid (unconstitutional), while refusing to accept payment of the tax if it were tendered (voiding the obligation). The Court had to decide whether the weapon in question was tax-exempt, as militia firearms were under the precedent of the Militia Act of 1792. It couldn't just find that anything useful for militia was tax-exempt, because almost anything can be used in militia under some scenario. The Court wanted a closer connection to militia than, say, a pair of combat boots or a canteen. Otherwise it would be creating a precedent that could be used to find all taxes void on everything.

About the only thing in the opinion that offers hope of incorporation under the 14th Amendment is Footnote 23:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

But that is a slim reed.

Fatal concessions in DC v. Heller?

The oral argument yesterday in DC v. Heller, the Second Amendment case before the U.S. Supreme Court, involved what I regard, and have regarded in the brief as well, as fatal concessions, even if Heller wins a complete affirmation of the DC Circuit decision to hold the DC ordinance totally unconstitutional. The most important came during this exchange during the argument made by Alan Gura, representing respondant Heller:

JUSTICE STEVENS: Let me ask a question are you, in effect, reading the amendment to say that the right shall not be unreasonably infringed instead of shall not be infringed?

MR. GURA: There is that inherent aspect to every right in the Constitution.

JUSTICE STEVENS: So we can -- consistent with your view, we can simply read this: "It shall not be reasonably infringed"?

MR. GURA: Well, yes, Your Honor, to some extent, except the word "unreasonable" is the one that troubles us, because we don't know what this unreasonable standard looks like.

JUSTICE SCALIA: You wouldn't put it that way. You would just say it is not being infringed if reasonable limitations are being placed upon it.

MR. GURA: That's another way to look at it, Your Honor. Certainly --

CHIEF JUSTICE ROBERTS: -- you would define reasonable in light of the restrictions that existed at the time the amendment was adopted.

MR. GURA: Those restrictions.

The problem with this concession is that it opens the door to the legislative violation of rights if the violation is "reasonable", shifting the question from a binary, either-or decision, to a slippery slope that can render all our rights protections meaningless. As may be seen in my previous article on this case, I argued that this would become the central issue in the case, and it was important to proactively define in the briefs what is and what is not "reasonable", rather than letting the opposition define it. Alan Gura, and for that matter, the supporting amici curiae, failed to do that. They might still win this case in a narrow decision, but at the cost of allowing an opinion that will cripple future cases that need to broaden Second Amendment jurisprudence. Lawyers have an unfortunate tendency to focus on winning their present cases at the cost of the cases to come. The opposition has put us in this position by pursuing a longer-term strategy, and we need to do that as well.

Another flaw was in allowing the opposition to frame the issue by not addressing the definition of militia. The term militia had more than one meaning, either at the same time or depending on context:

a. Defense activity (the original Latin meaning, and the leading Founders were Latin-literate).
b. Those engaged in defense activity (a common idiom of the era).
c. Those with a potential of engaging in defense activity.
d. Those who have a moral duty to respond to a militia call-up.
e. Those who have a legal duty to respond to militia call-up (with penalties for failing to do so).

The Second Amendment uses the term in the sense of (a) or (b). During the oral argument the participants were using the term in the sense of (c), (d), or (e), and as a plural or collective noun rather than as an activity that can involve a single individual as well as many of them. This can also be seen in the exchange about the distinction between "self" defense and "common" defense, forgetting that in law the plural contains the singular so that common defense includes self defense and self defense is part of common defense.

The word "militia" is a polyseme, with multiple related meanings, either at the same time or depending on context. It is also a type of noun called an actronym in which the word for an activity acquired the meaning of those engaged in it. It is most often used by the Founders as an outiseme, a polyseme with at least two meanings at the same time, the basic meaning of "defense activity" and a secondary meaning of those who engage in the activity or are obligated to do so.

Gura also left unchallenged the point made by Justice Alito that the power delegated to Congress in Art. I Sec. 8 Cl. 15 and 16 to regulate militia was "plenary", so that the power to organize the militia could include the power to disband it. Gura did briefly dispute this, but should have anticipated it in his brief with the argument that no delegations of power are plenary, because there are only certain directions in which power may be exercised that are constitutional.

The brief endorsed by the White House, which conflicted with that of the Solicitor General, Paul Clement, made the beginning of a good point by drawing an analogy to the preemptive power to regulate the time, place, and manner of congressional elections (except the place of senate elections). But it failed to go on to make the point that it is only constitutional to regulate elections to make them more convenient, fair, and accurate. It is no more constitutional for Congress to prescribe the disbanding of militia than it would be to cancel elections (especially if they didn't go the way Congress wants).

There are several important distinctions that cannot be overemphasized. They are very basic, and one might expect trained, professional lawyers to make them in the normal course of their profession. It is alarming to see members of the U.S. Supreme Court and lawyers arguing before them failing to make them.

The first such distinction is the proper meaning of the term constitutional right. In the U.S. Constitution this means an immunity, that is, a right against the exercise of a power by government officials, what is sometimes called a "negative right" by some commentators. To be such an immunity, it must not be legislatively disabled or restricted. The exercise of an immunity may be disabled or restricted by judicial due process, to resolve a conflict among parties, or if it is proved in court that if not disabled or restricted there will be harm to the subject or to others, or as punishment for a crime defined by a constitutional criminal statute. But that is not the same as a legislative disablement or restriction, which would be a constitutionally prohibited bill of attainder. See my article, Public Safety or Bills of Attainder?

Now it may happen that the exercise of some power happens, incidentally, to put a burden on the exercise of a right. This most often occurs with the exercise of a taxing power. The question then becomes whether the burden is undue, or excessive. For example, a court may reasonably find that it is not an undue burden on the right to a free press to impose the same 7% sales tax on the sale of newspapers or newsprint that is imposed on almost all other commodities. However, a 100% tax just on newsprint, especially that sold to a disfavored newspaper, would indeed be an undue burden. But that is not the same as a direct or indirect legislative restriction, regulation or prohibition of the exercise of a right, such as by doing what was done in the district of Columbia, by passing a criminal ordinance requiring firearms to be registered, then, beginning in 1976, refusing to accept further registrations.

Also confused in the oral argument was the question of what is the authority for any legislative restriction or regulation. Would it be the exercise of a municipal police power, of the alleged power of Congress under the Commerce Clause as extended by modern (incorrect) interpretations of the Necessary and Proper Clause, or of the Militia Clauses of Art. I Sec. 8 Cl. 15 and 16 and Article II. It should be clear that with militia involved, whether active and organized or not, the power of Congress and the derivative authority of the District of Columbia, considered as akin to a state, that power is limited to the Militia Clauses. That means that while the U.S. or DC government may require citizens not in a called-up status to keep certain weapons and equipment, they may only regulate or restrict such weapons or equipment for persons in a called-up status, and it would be unconstitutional to keep everyone, or some disfavored group, in a called-up status indefinitely as a way to authorize the regulation or restriction.

Another point of confusion was in discussion of United States v. Miller, 307 U.S. 174 (1939), in which the discussants took from it that the weapons that could not be properly prohibited were those that were in common use by the people (when not in called-up status), rather than, as the opinion states, suitable for militia use, which is quite a different thing. The issue in the case was whether the weapon in question could be taxed, because if it was suitable for militia use, it would be properly tax exempt, on the grounds that a tax on it would be an undue burden on the exercise of a right. Neglected in that case was the question of whether it was constitutional to make it a criminal offense to possess something on which a tax had not been paid, which, given the limited delegations of powers in the U.S. Constitution, is itself unconstitutional. But that point was not argued in that case, perhaps in part because the party, Miller, was dead, and no one appeared to represent him in court. That fact makes the entire case infirm. The Court did signal that it had to make the distinction between items suitable for militia use and those that are not because if everything was suitable for militia then nothing could be taxed. However, since almost any working item might potentially be used for militia in some scenario, the real distinction that has to be made is whether that item was so used for some significant period of time, or would be likely used for militia at least some of the time. The issue arises because while the materiel of regular military forces are normally acquired through a formal acquisition process, in which the items are clearly identified, with purchasing being tax exempt, for irregular forces where militia materiel is acquired informally by individuals, the taxability of each item becomes ambiguous.

Apparently, the respondants were trying to avoid arousing fears that their legal position might threaten restrictions on the possession of such things as fully-automatic firearms, armor-piercing ammunition, rocket-propelled grenades, or plastic handguns, or possession of firearms by various classes of persons administrative deemed to be "dangerous" (see my article above), which were not issues in this case anyway. The members of the U.S. Supreme Court seemed to want to explore that area, and none of the litigants seemed as prepared for that as they should have been. It is difficult to tell a justice of the Supreme Court that his question is not on point to an issue in the case, but that should have been done. What should not have been done was to concede that there were weapons suitable for militia that could nevertheless be prohibited as not protected by the Second Amendment. The remedies for misuse of such weapons are to organize and train people as militia, and if someone is not fit to have or use one responsibly, to disable his right in an individual due process proceeding.

Another annoying error made in reporting on this case is to treat the word "General" as a title or rank of the Solicitor General, Paul Clement. It is not a title or rank. It is just a way to distinguish the official as not a "Special" solicitor. Similarly, the term "Attorney General" only means the person holds a general power of attorney, instead of only a special power of attorney, and it is similarly incorrect to call an attorney general by the title "General". The proper term of address is only "Mister".

From my viewpoint all the briefs of the parties and amici were deficient in various ways. I find the arguments shallow, lacking in a deep, philosophic understanding of the issues, as well as failing to anticipate the course of future litigation. It will mean more work for the lawyers, and a continuing ability of the gun rights organizations to recruit members and solicit donations, but it does not move us to where we need to be. Gura, the respondant's team, and supporting amici were too willing to concede many ways that firearms might be "reasonably" restricted, ignoring the fact that there is no constitutional authority to do so even if the Second Amendment allowed it, which it does not.

Ron Paul 2008 Campaign Postmortem

As a veteran of many election campaigns and movements, going back to 1960, and as having spoken to a lot of voters in this campaign season, I have a somewhat different take on the Ron Paul campaign than Sean Scallon does.

Although there are still many voters who have never heard of Ron Paul and his message, there are also many who haven't heard much about the other candidates, either. I find that polling in single digits was not the result of not enough people knowing. This is best indicated by the results in his own congressional district, where 70% of Republicans voted to return him to Congress, but only 12% voted to nominate him as the Republican presidential candidate, not enough to pass the 20% threshold for getting delegates. Those results don't come from not knowing, or even accepting, him or his message. Voters in his district know him fairly well. They like and trust him, and more people vote for him for that than agree with his positions, most of which they don't understand and prefer to trust him to think about.

The 5% of the vote he got in the Republican primary in Texas, normalized by multiplying by .6 to project it to the results that might be expected in a general election, yields 3%. That is the same percentage I received in the 2006 election when I was the Libertarian candidate for Texas Attorney General, and I got and spent far less money and had far fewer campaign workers. In other words, when it came to the final test, we both only got a hard core of libertarian voters who are more concerned about sending a message to policymakers to move toward libertarian constitutionalist positions than they are about nominating a candidate that they think can win in the general election. They perceive that, even if they are ready for a president who takes such positions, most of the rest of the country is not. It is not unlike the perception that the country is not ready for a black or female or Muslim or gay or openly agnostic president, even though oneself might be ready. Their perception is that the country is more ready for any of those than it is for a libertarian constitutionalist president.

I do not find any serious deficiencies in the efforts of the many campaign volunteers, other than there not being enough of them. I have been involved in campaigns in almost every election during the last 48 years and this was without doubt the best organized, most effective, and most enthusiastic I have seen. Everyone involved should be proud of his or her contributions to the effort, and I commend them all.

But we were up against a mindset we could not overcome: voters just did not perceive Ron Paul as someone who could win the general election, or, even if he won, be allowed by the Establishment to govern. I find that only about 10-15% of Republican voters tend to agree with his libertarian constitutionalist positions on domestic issues, and less than half of those agree with his strongly non-interventionist foreign policy positions. While he attracted many volunteers who opposed the Iraq war and foreign intervention, most of the voters with those views preferred to vote in the Democratic primaries or caucuses, largely out of habit and their herd affiliations.

There was also the problem of there being too many candidates competing for the same libertarian constitutionalist voters, especially, toward the end, Mike Huckabee. If the Establishment wanted to defeat our movement, they could not have found a better way to do it than by loading the field with multiple candidates to divide and conquer. If Brownback, Hunter, Tancredo, Huckabee, and Thomson had just stayed out of the race Paul might have gotten as much as 20% of the vote, not enough to win, but enough to shift the policy direction of this country toward libertarian constitutionalism. The Republican voters were gullible enough to fall for that.

The movement has its work cut out for it. Don't get discouraged by that. It took 200 years to get into this predicament and it may take a few generations, or perhaps a major catastrophe, to get us out of it. We are about changing the civic culture of a country, without the benefit of most parents or schools helping to transmit the traditions and habits of thought that founded it. As my grandfather, who used to teach in a one-room schoolhouse, predicted, we have become a nation of historyless adolescents, and growing out of that fast usually takes a lot of pain.

Now the movement needs to shift to electing libertarian constitutionalists to lower offices. It was never realistic to think that electing a president could change anything without first electing like-minded people to every other level and branch of government. Without the rest of the building, beginning with the foundation, the weathervane to be put on top will just lie in the ground, never showing which way the wind is blowing.

I am a candidate for the Texas Libertarian Party nomination for U.S. Senator. There are other such candidates, perhaps even a few within the Republican and Democratic parties, but mostly not. If you want to move the civic culture in the right direction, that will mostly mean supporting or becoming Libertarian candidates.

Let us challenge the voters to vote for the Constitution, because any vote not for the Constitution is a vote against it, and that means a vote for most Republicans or Democrats. Make it clear that to vote against the Constitution is to vote for letting government spy on you, destroy your reputation, assault you, imprison you, take all your property, kill you, molest your family, and force you to dishonor yourself, with no recourse but violence and none to come to your aid. If that's what you want, then volunteer for it, but don't vote for having that done to the rest of us.

The Genomic Contract

The concept of the social contract (or compact, as some prefer), developed by such political philosophers as John Locke and Jean-Jacques Rousseau, heavily influenced the Founders. It describes a society as the result of a kind of unwritten contract among its adult members to cooperate and not prey on one another, who pool their powers and jointly decide to delegate some of those powers to agents who function as a government.

In 1976 Richard Dawkins wrote The Selfish Gene, in which he developed the concept that the fundamental unit selected for fitness in biological evolution is not the individual but the gene, and that it is a success strategy for genes to have their organisms sacrifice themselves to insure the survival not just of their own progeny, but of the genes they share with their relatives. This view of genetic evolution explains the advantage of individuals uniting in societies, because it is the society, more than the individual, that enables the survival of the genes shared by its members.

If we carry forward this gene-centric model of evolution, however, we see that it is not really "the gene" that is the fundamental unit. Genes mutate, and the mutations, if they make the organism more fit, tend to survive and yield "progeny" that are descended from them, but not the same. So it makes more sense to describe the fundamental unit not as a gene but as a genetic line of descent.

However, genes do not survive or propagate in isolation, any more than individual organisms do. It therefore makes sense to describe a genome as a kind of society of genes, united by a kind of contract, analogous to the social contract, which we may call the genomic contract. As a society, instances of genes cooperate to propagate the survival of a few copies of themselves, or mutated descendants. In multicellular organisms, especially those that reproduce sexually, most cells are nonreproductive and do not act to insure the survival of direct copies of their own genes, but the genes of cells differentiated to function as reproductive cells, in much the way that social species of organisms do.

Looking at genomes as societies of genes united by a genomic contract is not just a philosophic exercise. It can help us understand how genes are organized into genomes, how they adopt specialized roles, how they sacrifice themselves for the benefit of others, and even how they make collective "decisions". We may even be able to identify persistent transactions among them. We may be able to apply variations on economic, political, and anthropological models to help us understand them. We can speak of games with genes as players, and apply the methods of game theory.

This is only an introduction to the use of this concept. It is hoped that others will pick up on it and develop it further.

Arguments needed in D.C. v. Heller

The granting of certiorari by the U.S. Supreme court in D.C. v. Heller provides the first great opportunity we have had to get a decision on interpretation of the Second Amendment. Already a host of parties are preparing to file amicus briefs in the case, threatening to drown out two important arguments that need to be made and that it does not yet appear will be made by any of the amici:

1. The primary original meaning of "militia", from the Latin, is military service, or, because it includes law enforcement and disaster response, defense activity, and only secondarily those engaged in it, or the subset of those who may be required to engage in that that activity. It is a common idiom in English of the founding era to use the same word for an activity and those engaged in it. Understood in this way, the word is not a plural form, and a single individual, engaged in defense activity, is engaged in militia.

2. The only regulation that is "reasonable" is regulation that enhances the effectiveness of militia.

The lost meaning of "militia"

The right to keep and bear arms (RKBA) is asserted in the Second Amendment with the preamble of militia being a primary purpose of that right:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Previous attempts to get around the right to keep and bear arms has been to subject firearms to taxes. This was the issue in United States v. Miller, 307 U.S. 174 (1939) [HTML] which took the approach that if the firearm in question had had a militia use, it would not have been taxable, and therefore it would not have been illegal to possess it without having paid the tax. While one could question the constitutionality of making it a crime to possess something on which a tax has not been paid, we can understand the concern of the Court that if one cannot make a distinction between militia-related items that are tax exempt and non-militia-related items that are not, then, since almost anything could conceivably be used for militia under some circumstances, nothing would be taxable.

Therefore, it is not enough to establish the individual RKBA if we do not address the way Congress has been trying to do an end-run around it using its taxing power and the precedent of Wickard v. Filburn supporting criminal penalties for activities that have a 'substantial effect" on interestate commerce, under an expansive interpretation of the Necessary and Proper Clause to assert the power to not only "carry into execution" the expressed powers, but to do whatever might be convenient to try to attain the purposes for which a regulation of commerce might be enacted.

To make the proper determination of what is and what is not "militia-related" we therefore have to understand the original meaning of "militia", and do so better than most scholars have done heretofore.

Some confusion arises from the English idiom, which goes back to Anglo-Saxon and got carried over to the adoption of foreign words, of using the same word for an activity and for those engaged in it, with the meaning as activity originally being primary, but slipping into more frequent use of the word in its secondary sense of those engaged in it.

The term "militia" is derived from Latin roots:

• miles /miːles/ : soldier^[2]
• -itia /iːtia/ : a state, activity, quality or condition of being^[3][4]
• militia /mil:iːtia/: Military service^[5]

In English, the usage of "militia" to refer to those engaged in the activity dates back to at least 1590 when it was recorded in a book by Sir John Smythe, Certain Discourses Military with the meanings: a military force; a body of soldiers and military affairs; a body of military discipline^[6]

The original meaning of the Latin word is "military activity", or, since the ancient Romans had the same people fight crime or respond to disasters, "defense activity". In the idiom of English during the 18th century, the same word would often be used for an activity and for those who engage in it, so "militia" could mean either defense activity or those who engage in it, whether as individuals or in concert with others.^[7]

Most of the leading Founding Fathers were Latin-literate, so they would have known the original Latin meaning, and used it when they read or wrote in Latin or used a Latin word in English discourse.^[8][9]

The reason this distinction is important is because if the word means only those engaged in the activity, and is always plural, then militia can only consist of two or more persons, and never just one. However, understood as an activity, then is it clear that one individual can engage in militia, and it follows that self-defense is a militia call-up issued to oneself, to which oneself responds, to enforce the law. When all self-defense is cast into an act of law enforcement, then the legal framework is transformed into what the militia concept requires.

This meaning also comes up in discussing other countries with a militia tradition, especially Switzerland, which the Founders viewed as a model for the kind of militia system they wanted to establish. The militia clauses of the Swiss Federal Constitution are contained in Art. 59, where it is referred to as "military service" (English), "Militärdienst" (German), "service militaire" (French), "servizio militare" (Italian), "servetsch militar" (Romansch), and translated into "servicio militar" (Spanish and Portuguese), all synonyms for "militia" in Latin.

The key thing to understand is that "militia" is not a plural "group", with the implication of "two more more". We can see in the writings and speeches of the Founders that they often used the word prepended with an article, “a” or “the”, to refer to those engaged in the activity, but at other times they use it without the article. Modern readers are likely to understand that as using the word as its own plural, but the plural of militia is militiae, and if the Latin-literate Founders had meant it that way, they would have said militiae. They were, in that usage, meaning the activity, and sometimes, blending both meanings at the same time.

The meaning of the word is discussed in more detail in Militia v. Inimicitia.

What kind of "regulation" of militia is "reasonable"?

It won't be a victory for the original meaning of the Second Amendment if the holding of the Court is that the right to keep and bear arms is individual if it also holds that it is subject to "reasonable regulation" and that exception allows all the restrictions that are presently enacted.

Clearly, the concept of militia does contemplate regulation beyond the "self-regulation" that would satisfy the stipulation that militia be "well regulated". We have in U.S. Const. Art. I Sec. 15 and 16:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

While militiamen are in called-up status, they are subject to miltia discipline, under which they can be directed what weapons to use and for what purposes. When not in called-up status, they can be required to keep certain kinds of weapons, ready for call-up. See the Militia Act of 1792. Although it may not be obvious to some, it would be unconstitutional to get around the RKBA by keeping the entire population in a permanent called-up status. Call-ups are supposed to endure only as long as an imminent threat exists for which only militia can meet it.

To understand what kind of regulation is reasonable for persons not in called-up status we can use the analogy to the preemptive authority to regulate the time, place and manner of congressional elections, it is unconstitutional to do so in a way that would make elections less fair, convenient, or accurate. Similarly, it is unconstitutional to regulate militia in ways that make them less effective in performing their functions "to execute the Laws of the Union, suppress Insurrections and repel Invasions", or at the state or local level, to respond to disasters. People may be required to be armed, but not forbidden to be armed, without a specific due process proceeding to disable the exercise of the right on proof the individual is a treat to himself or others, with a right to a jury.

Suppose, for example, Congress passed legislation to restrict all voting to a 1-second timeframe for all contests, or required that all polling places be on the moon, or that choices be limited to one or a few candidates approved by a government agency that screens out dissidents. Contrary to Justice Marshall in Gibbons v. Ogden, delegations of power to Congress are not "plenary" as to the "specified objects" of the delegation, but are constitutionally constrained to be reasonable and for constitutionally legitimate purposes. Restrictions like those listed above would be an abuse of discretion on the part of Congress. The only constitutionally legitimate ways that militia may be regulated is in ways that enable those engaged in militia to protect public safety, not in ways intended to protect public safety by disabling militia from doing so.

What is not reasonble or constitutional is prosecuting people on an administrative determination that they are "dangerous", even if there was a conviction of a "felony". without disablement of the RKBA being an explicit part of the sentence. See Public Safety or Bills of Attainder? — Written Jun. 14, 2000. Published in University of West Los Angeles Law Review, Vol. 34, 2002.

A case could be made for the constitutionality of regulating the quality of firearms, in much the way the U.S. DoD regulates the quality of the firearms it purchases for its own use, but not for prohibiting weapons that "do not have a sporting purpose". Militia is not about hunting. even thoug hunting may be a way to maintain militia skills.

The idiom of using the same word for an antivity and those engaged in it

There are many other examples of this idiom. From the Century Dictionary, the precursor of the Oxford English Dictionary, we have the following:

assembly (a-sem'bli), n.; pl. assemblies. [ME and OF assemblee] 1. The act of assembling, or the state of being assembled or gathered together. 2. A company of persons gathered together in the same place, and usually for the same purpose, whether religious, political, educational, or social; an assemblage.

congregation (king-gre-ga'shon), n. [F. congregation] 1. the act of congregating; aggregation. 2. Any collection or assemblage of persons or things.

delegation (del-e-ga'shon), n. [F. delegation] 1. A sending or deputing; the act of putting in commission, or investing with authority to act for another; the appointment of a delegate. 2. A person or body of persons deputed to act for another or for others....

ministry (min'is-tri), n.; pl. ministries. [F. ministere] 1. The act of ministering; the rendering of service; ministration. 2. The state of ministering or serving; agency; instrumentality. 3. The office or function of a minister, civil or ecclesiastical; the state of being a minister, in any sense; the discharge of a mionisterial office.... 4. The general or a particular body of ministers of religion; the ministerial or clerical class; the clergy or priesthood. 5. The body of ministers of state in a country; the heads of departments collectively; the executive administration.... 6. A ministerial department of government; the organization of functionaries administering a branch of public afffairs; a minister and his subordinates collectively....

hunt (hunt), n. 1. The act of seeking for or chasing game or other wild animals for the purpose of catching or killing them; a pursuit; a chase. 2. A pack of hounds engaged in the chase. 3. An association of huntsmen...

police (po-les'), n. [F. police] 1. Public order; the regulation of a country or district with reference to the maintenance of order.... 2. An organized civil force for maintaining order, preventing and detecting crime, and enforcing the laws; the body of men by whom the municipal laws and regulations of a city, incorporated town or borough, or rural district are enforced. 3. In the United States Army, the act or process of policing.

Other such words include service, movement, wedding, viking, aggregation, march, and court.

The word "militia" is a polyseme, with multiple related meanings, either at the same time or depending on context. It is a type in which a noun meaning "those engaged in the activity" is derived from the noun meaning "activity" without losing the original meaning.

How to achieve energy independence

Whenever the subject of excessive dependence on oil imports comes up, someone always calls for achieving energy independence, but then the discussion gets diverted into such remedies as energy conservation, wind farms, geothermal and ocean thermal sources, ground-based photovoltaic arrays, biofuels, coal, ocean deposits of methyl hydrate, and, of course, the big ones -- nuclear or fusion reactors.

However, there are problems will all of those. No reasonable amount of conservation is going to keep our economy going if energy supplies are cut off. Wind farms, and geothermal and ocean thermal sources, can help in some places, but one can't depend on them as a replacement for fossil fuels. Ground-based photovoltaic systems are still somewhat expensive, although the cost is coming down. Biofuels turn out to cost more energy and other resources than they save, at least if corn is used instead of sugar cane or switchgrass. Coal and methyl hydrate will just accelerate the global warming problem. Nuclear presents the problems of waste disposal and proliferation, and fusion reactors don't work yet.

The one alternative that is seldom mentioned is space solar power: putting photovoltaic arrays in orbit and beaming the power to receiving antennas on the Earth. It is not a new idea. It is estimated that about 40 satellites in geosynchronous orbit could meet the needs for energy of the entire world, and it it was the United States who puts them up and operates them, we would be the energy exporters to the world instead of importers. Once in operation, it is estimated the cost of energy from them would be less than half the cost from other sources, and that it could pay off the investment to put up the system in less than a decade. It requires little new technology, other than ways to bring down the costs for vary large systems. It has much support from leading engineers and scientists, including a team within NASA. And nations like Japan are moving ahead to do it without waiting for us.

So why aren't we doing it? The answer, as usual, is politics. The alternative is opposed by the proponents of nuclear power, who keep making the argument that Earth-to-orbit lift costs are too high, when the proposal has long been to use materials mined from the Moon or an asteroid rather than lifted from Earth. The real problem for them is that such a proposal doesn't make them a lot of money. It would be creating an industrial system in space that they would not control and from which they could not profit.

And of course, they don't hesitate to raise other objections:
1. It is too "Buck Rogers". Silly argument, considering what we have done in the last 50 years, but they make it.
2. It would be vulnerable to attack by space weapons. And oil tankers, refineries, pipelines, and nuclear power plants aren't?
3. It would be vulnerable to space radiation and coronal mass ejections. They can be hardened against that, as we already do with communications satellites.
4. They could become platforms for death rays. Yes, but all the more reason that we put them up instead of someone else.
5. The power beams would disrupt migrating wildlife. The heating effect would be less than sunbeams through clouds, negligible.
6. The satellites would brighten the night sky, impairing ground-based astronomy. But we could move the telescopes out into space, even putting them on the solar power satellites.
7. The space aliens might object. Okay, this is for humor. But since the satellites would support the effort to defend the Earth from impacts with asteroids and comets, one suspects the aliens wouldn't object to us doing that.

Check out some of these links:
Space Studies Institute http://ssi.org/
Sunsat Energy Council http://www.sunsat.org/
NASA
http://grin.hq.nasa.gov/ABSTRACTS/GPN-2003-00108.html
http://www.hq.nasa.gov/office/legaff/solar.html
http://science.nasa.gov/headlines/y2001/ast23mar_1.htm
http://space-power.grc.nasa.gov/ppo/projects/sdp/
Solar Power Satellites http://www.freemars.org/history/sps.html
Wikipedia articles
http://en.wikipedia.org/wiki/Solar_power_satellite
http://en.wikipedia.org/wiki/Microwave_power_transmission
http://en.wikipedia.org/wiki/Future_energy_development
Space.com
http://www.space.com/businesstechnology/technology/solar_power_sats_011017-1.html
http://www.space.com/businesstechnology/technology/space_solar_000908.html
http://www.space.com/businesstechnology/technology/solar_power_satellite_000421.html
Space Daily http://www.spacedaily.com/news/ssp-01a.html
Reinventing the Solar Power Satellite http://gltrs.grc.nasa.gov/cgi-bin/GLTRS/browse.pl?2004/TM-2004-212743.html
Solar Power Satellite Place http://tech.groups.yahoo.com/group/solarpowersatelliteplace/
Space Solar Power Library http://www.nss.org/settlement/ssp/library/index.htm
Space Based Weather Control http://www.borderlands.com/spacewea.htm
Resources for the Future http://www.rff.org/rff/News/Releases/2000/Satellite-Solar-Power-Faces-Considerable-Economic-Challenges.cfm
Access to Energy http://www.accesstoenergy.com/view/atearchive/s76a4466.htm
Lift Elevators to Space http://www.liftport.com/forums/index.php?topic=619.0
MSNBC http://cosmiclog.msnbc.msn.com/archive/2007/09/07/350320.aspx

What you can do is spread this message with the suggestion that everyone write to their favorite media urging them to provide more coverage of this alternative. The time for replacement of fossil fuels is already very late.

Thoughts on Iraq

The last two elections were not referenda on Iraq, because they were not framed as a change in direction toward any particular policy alternative, not even immediate withdrawal. There was and is dissatisfaction, but no clear alternatives offered other than "to do something" differently. That can cause people to vote against incumbents, but it doesn't count as a referendum in any meaningful sense.
Yes, with the advantage of hindsight, we should have done certain things differently, including perhaps not going in at all, but it is important to understand what we missed, and when I say "we", I mean almost all of us, because most of us who had much of an opinion did think it seemed like a good idea at the time to get rid of Saddam. (A few of us opposed going in without a constitutional declaration of war, but the odds are that Congress would have voted for one.)
One of the things we didn't miss was the now common view that the people of Iraq are not ready for republican self government. The fact is that 94% of the Iraqi people of all sects are no less ready to govern themselves in peace than most of the people in every other country. They might not have enough sense to vote for "seculars" instead of for "sectarians", but that was something they could eventually have learned. No, what we missed, and it is important, was that remaining 6%.
Or to put it another way, Saddam did indeed have weapons of mass destruction, just not the kind we were looking for. They were that 6%, who Saddam had reduced to a state of barbarism that he very likely calculated would destroy the country when he was no longer around to keep them under restraint. What is happening in Iraq now followed our deposing of him, but would have happened anyway when he eventually died. We were destined to go in to clean up the situation, sooner or later. We just moved up the date by invading.
What perhaps we most missed is the fact that it only takes a small minority of determined barbarians to destroy a civilized society, and it doesn't matter how civilized the rest of the society might be. It is easier to destroy than to create, and no society is really ready to withstand that kind of destructive force. It is worse than most natural disasters. Historically, most societies that have faced similar internal barbarism have either descended into brutal despotism, the barbarians usually becoming the despots, or the barbarians were wiped out, usually along with a lot more innocents. Some of these "burnouts" have reduced the populations of countries by as much as 90%, and destroyed the entire civilized infrastructure.
The trouble is that most Westerners don't really understand bad guys like Saddam. He was expertly playing a "Samson" or "apres moi" gambit. He made Iraq a monument to himself that would self-destruct when he was gone, and trigger a chain of events he expected, with some good reason, would sweep the Middle East, deny oil from that region to the world, trigger a world war for oil and other resources, and bring down the industrialized nations and Western Civilization. We can argue that it would not get that far, but that it was what he tried to set up to happen is all too plausible.

So when it comes to considering our options, let us remember the answer Chinese Premier Chou En-Lai gave to the question, sometimes reported as being asked by Henry Kissinger, "What were the consequences of the French Revolution?" He is reported to have replied, "It's too soon to tell." We won't know whether there is anything else we could do or how it might turn out. History is not a game like chess where we can evaluate the state of the game at any given point. We are flying blind, and while we can try to do the right things, we can never be sure we may not be doing the wrong things, whatever we do.