October 12, 2005


I'm sure I don't have to catch you up; Bush has nominated Harriet Miers to fill O'Connor's position on the Supreme Court. There's a big divide over whether this was a good move or not. On one side conservatives are feeling let down because Miers isn't the best pick out there. The other side is saying that Miers is the best confirmable pick & to trust Bush's judgment.

Hugh Hewitt is coming down hard on the pro-Miers side. Not too surprising since he - well let's be honest. I like Hugh. He's probably the most entertaining talk show host out there. But he's not a conservative. He's center-right & Republican but he's not a conservative. He'll back Bush not just because he has an "R" beside his name but because he probably agrees with most of what Bush does. So Hugh defending Bush's choice is not surprising.

What is surprising is he done & whipped out the 2nd amendment to support his support of Bush's support for Miers.

Via Alphecca I've found that TIME has a snippet of something Miers wrote in 1992 after a mass murder involving a firearm:

"The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs."

It's also been pointed out that she has or had a handgun.

Hugh makes a big deal of this, & surprisingly enough even said that if she got things right on the 2nd amendment that everything else would be easy.

I'm not as optimistic.

She said that bearing arms was a "precious liberty". She said that as she listed a few other Rights & possible Rights ("freedom of liberties"???). But that's all she said.

It's simply not that impressive by itself. Or rather it's not that impressive without elaborating on it in light of the other circumstances.

Another argument that Hugh makes is that Miers has front line experience in the Global War on Terror. He implies that some deference would be given to the executive office & perhaps congress in such matters.

Now if we role with that (assuming Hugh is correct in his assessment & I'm correct in reading it as him implying there'd be some deference afforded) it's entirely reasonable that Miers will have Bush's view (or one close to it) on the 2nd amendment.

& Bush's view? It's not good.

Via Ashcroft the Bush administration said that the 2nd amendment conferred an individual Right, subject to reasonable government restrictions. That qualifier is important. Now that statement is in theory much better than say the collectivist view (that the 2nd amendment just means that state militias can't be disarmed by the feds) but in practical application it's the same damned thing.

If a ban on semi-automatic rifles is instituted under the guise of reasonable government regulation how is that any different in justifying it by saying that no one has an individual Right to such instruments? Sure; the theory is different but the effect would be the same.

So given her statement & assuming she's not too far from Bush I don't see this as being a net gain. She might rule that the 2nd concerns an individual Right, but I've seen nothing to show me that she'd not buy into some "reasonable restriction" or "compelling government interest" exception.

Additionally she was in the White House while Bush was prosecuting his mini-war against gun owners, otherwise know as Project Exile/SafeStreets/SafeNeighborhoods. I assume this means that she doesn't object to the vigorous enforcement of the unconstitutional gun laws on the books right now.

Keeping with the "approval by silence" theme Bush called the Minute Man Project a bunch of vigilantes. He was in favor of renewing the "assault weapons" ban. He was approving of McCain's bill to shut down gun shows. He opposed the armed pilots program & still the TSA makes it burdensome to meet the qualifications. He still has not rescinded Clinton's executive order prohibiting firearms in National Parks.

So if we are to believe that Bush thinks she's going to decide cases in a way he thinks is favorable & we further assume that Hugh's statements mean she'll be sympathetic to the Executive branch then she's not that good a pick for gun owners. Unless you like to have an individual Right to own flintlock rifles.

So it's very possible that while saying that the 2nd amendment is about an individual Right she will give her approval to all sorts of gun control laws under the "reasonable restrictions" guise.

Hugh had on a fellow today who heads up Concealed Carry Reform Now - a Minnesota pro-CCW group. He has a site called Have Gun Will Vote that seems to be pro-Miers because of the assumption that she'll be a strong RKBA advocate. I just don't see anything to back that assumption.

CCRN seems to be focused mainly (though not exclusively) on getting a CCW law in Minnesota. & I'll grant that's better than not wanting anyone to carry at all, but it falls far short of what I consider the minimum - which is not to have to beg permission or pay for said permission to carry concealed or openly. I'll grant that I'm a purist on this but I do tend to look at pro-CCW advocates as missing the point a bit. I'll also grant that a lot of folks support CCW because A: it's better than a prohibition B: it's politically feasible & C: it's allegedly a step towards permittless carry or D: all of the previous. All that is to say that their endorsement of her (or at least the one person of that group who is pulling for her) isn't that telling. If they views CCW as a means to an end then they might have a little more credibility than if they viewed CCW as the ultimate goal. Now if GOA endorsed her then perhaps I'd think I missed something, but a pro-CCW group who in all probability has access to the same info that I do isn't persuasive. Nothing against CCRN or its members.

I can almost hear the chorus now, "But she's a gun owner!!!".

She may very well be. Then again she might have gotten rid of her handgun by now. After all in D.C. handguns are strictly prohibited & not eve a member of the President's staff would violate that law would they? /sarcasm

Let me list a few other gun owners; Sarah Brady. Barbara Boxer. DiFi. Schumer (at least probably, since I've heard he does possess a concealed carry permit). Should I continue? Owning a gun does not mean that you're pro-gun. It just means you're pro-you-having-a-gun. I can never recall if it was Boxer or DiFi that held one of those elusive California concealed handgun permits, though I’m leaning towards Difi. But the point is neither one of them could be counted as a gun owners friends just because they scored a license. (& getting a CCW permit in Cali is atrociously hard - much harder than it is back here in America.)

So from what I've seen I'm not particularly impressed with Miers. It's not that I'm disappointed with her credentials or anything it's just that I've seen nothing so far ot indicate that she'd be pro-gun or even pro-constitution. There is some inference that she'd be pro-executive-office which is troubling, but nothing concrete enough to be damning as of yet. Now some of her past campaign contributions do not thrill me at all. But I'm open enough to hear her before I start throwing a whole bunch of stones.

So to sum up what I think is the Absolutist pro-gunners view she seems to talk in the right way but she hasn't said anything special or even solid on the RKBA yet. All we have is one statement & a report that she has owned & may still own a firearm. It's simply not enough to get behind her on. I certainly don't entertain the speculation that with her & Roberts there'd be 4 pro-gun votes on SCOTUS with a possible 5th from an unsuspected source. I have no idea how Roberts will vote, let alone Miers. Roberts looks more promising than Miers does at this point but either or both of them could fall into the "individual Right subject to reasonable regulation/compelling government interest" camp.

Now for the general political take; Bush really screwed up with this one. Ya see one of the main reasons I heard to support Bush despite his wanting the "assault weapons" ban being renewed & all his other mistakes was that he'd appoint judges who respected the Constitution. Roberts? Okay I can somewhat see how someone would view him as a decent pick, but Miers? It's not that I think judges alone should be considered - hell I think SCOTUS would get things right more often if there was a "no lawyers allowed" rule for nominations. But there were many other fine confirmable picks out there. More to the point Kozinski of the 9th circuit or Janice Rogers Brown would have stood a chance & been better choices all around. Hell, I'd have done a better job at satisfying Bush's conservative base & I use a pseudonym!

So a lot of folks feel very betrayed by Bush over this one. & I don't blame them. But part of that betrayed feeling isn't Bush's fault - ya see a lot of folks keep confusing Republican & Conservative. One is not always reflective of the other. I used to get upset at the NRA when they'd do something bone headed that'd create more gun control. But now I don't get upset because I understand that the NRA isn't a pro-gun group (it's more of a pro-shooting sports/industry group, but that's another matter altogether). Once folks begin to see that having an "R" beside the name doesn't mean what it used to they'll get over their hurt feelings.

But until then (& it may take a while) Bush's conservative base feels left hanging high & dry.

Hugh has said the next nominee is when Bush will put someone they can be proud of up front in there. But Hugh thinks Gonzales would be a good pick (Gonzales was for the "assault weapons" ban because he has a relative that's a cop).

Hugh did hint around at something that is worth mentioning again, mainly cause I don't think he grasps the point entirely. Hugh said that if they get the second amendment right everything else in the constitution is easy. Course I'd differ as the 2nd seems fairly simple to me while other parts are a little more ambiguous, but he hints at a truth that I don't think he realizes: how a person views the 2nd amendment is an important litmus test.

It's quite simple - if a candidate does not trust me to own & carry my guns then why the hell should I trust him to exercise any sort of authority? & what is there to make me think he'll respect any of my other Rights if he wants to take away the last ditch method I have of defending them?

& I have to throw this in - the lovely, talented & accurate miss Annika makes a very, very important point about which way trust should flow regarding the Oval Office. There have been a lot of admonitions to trust the president & his judgment. That, possibly more than anything else separates the Republican view from the Conservative - the former are willing to trust the government like its a good thing while the latter are inclined to view government as a necessary evil & be skeptical of it.

Bush could have & should have picked a candidate that better satisfied his conservative base. But he didn't & there's little chance of him withdrawing her. All that's really left at this point is to wait for the confirmation hearings & see what kind of mess we may or may not be in.

Let me say this again - her pro-gun street cred is not as satisfying as Hugh Hewitt (& some others) would think, but then again we really don't know that much about her, except by implication. It is very possible she could be a good friend to gun owners & constitutionalists; then again she could be a nightmare for us all. She has a lot of ground to cover & the proper view of any nominee should be a skeptical rather than an optimistic one. But the main focus of displeasure is not Miers, but Bush who picked someone with questionable (but not damning) credentials rather than going for a solid conservative who would take the constitution at face value.

A last thought - Hugh posts today that her 2nd amendment credentials are unchallengeable. Yesterday Hugh said that Miers was "the strongest pro-Second Amendment nominee is forty years". Hugh admitted on his show yesterday that he's not a 2nd amendment guy. I kinda figured that out when I was chastising him for the errors in fact & conclusion about Bush's support of the "assault weapons" ban & his take on "self help". So it's not surprising that he would view Miers in the light he does regarding the 2nd amendment. It's a predictable response to the facts he has before him & his inclination to support Bush. It's also wrong. I'd say that Thomas is probably the strongest 2nd amendment supporter there is, followed by Scalia. After that it's debatable but Miers making one statement in 1992 followed by her having owned a gun is not enough to offset the silence on the issue, especially considering her work for a president who disregards the 2nd amendment & her financial support of candidates who seem to completely ignore the 2nd amendment. She could (as in "anything is possible") turn out to be a strong supporter of the 2nd amendment, but there's no way to know that given her record. It's more probable that she'll view the 2nd amendment as an individual Right subject to reasonable government restrictions but again that's speculation (even though it's more credible speculation than any other view). So she is not inarguably the strongest 2nd amendment supporter to have been nominated in the last 40 years to SCOTUS. It’s very arguable that Roberts has a better grasp of the 2nd amendment, but nothing is conclusive. At least not nearly as conclusive as I would like it to be.

I've offered (via e-mail & blog posts) to do whatever it is I can to help Hugh understand the Absolutist or at least pro-gun side of life. I mean the side that isn't happy with the NRA's support of questionable policies & gun control. The side that sees "shall not be infringed" & thinks it should be applied that way. The side that realizes the Right to Arms wasn't enumerated so duck hunting could be enjoyed throughout the generations. The offer is still open. & I'm sure that many of the fine folks on my blogroll (which is still a bit skewered because of the template issue I'm still having) would be happy to do the same. It's just a question of whether or not Hugh really wants to understand the 2nd amendment crowd, or if he's satisfied with thinking the NRA is the end all-be all of our side.

Posted by Publicola at October 12, 2005 03:25 PM | TrackBack

every time you bring up Hugh, you always say: "He's probably the most entertaining talk show host out there." lol, it reminds me of those dudes in the original Manchurian Candidate saying: "Raymond Shaw is the kindest, bravest, warmest, most wonderful human being I've ever known in my life."

Posted by: annika at October 12, 2005 07:25 PM

I think Mier's is a fine example of the broken system The conservatives make bad picks, and the democrats hate her for all the wrong reasons.

Posted by: gunner at October 12, 2005 08:44 PM

Well, you've hit the nail on the head with Hugh but didn't quite follow through. The issue with both Bush and Hewitt is that they are conservative Republicans, not republican Conservatives. For both of them, party comes before principle.

It's annoying for a lot of people who mistakenly believed that Bush had solid conservative credentials. He doesn't. He's a generally conservative guy, but it's by nature, not because he's deeply considered the issues and decided that a conservative philosophy is a more valid approach. Smart he may be, but intellectual he's not.

The people who are the most upset are the ones who have spent the time to consider the issues and arrived at their conservatism through reasoned examination of their beliefs.

Of course, I'm slinging conservative around like it has a fixed immutable meaning here, but I hope you get the idea.

Posted by: T at October 13, 2005 10:14 AM

Just a qucik clarification on CCRN:

CCRN was almost solely responsible for the actual PASSAGE of the Personal Protection Act (PPA) in Minnesota, both the first time, as well as the second (following it's being voided by more-than-somewhat-prejudiced judge). As a holder of a MN permit to carry, I greatly appreciated their actions on my behalf.

Minnesotans can now actually exercise our right to carry instruments of self-defense, rather than having it be a rarely-granted priviledge for the wealthy or politically well-connected. Minnesota has now joined the ranks of the other 38 states that have a variant of the "shall-issue" type of CCW law, rather than our old "sheriff's discrimation" rule.

Sorry to pick a nit.

Posted by: blackwing1 at October 13, 2005 11:09 AM

To counter nit pick:

You have to pay a bribe & beg permission to carry. That is not the eercise of a Right, that is the enjoyment of a privilege. The only two states where the Right to carry concealed or openly is recognized is Vermont & Alaska. Everyone else treats it as a privilege to be granted by government. In some states it's easier to get permission, but it's still permission.

Look at it this way - if you had to get a license in order to attend the church of yor choice, could you really say it was the exercise of a Right?

In most cases (not all) shall issue CCW laws are better than may issue, & both are preferable to having concealed carry prohibited, but I cringe whenever I see anyone try to convince themselves or anyone else that it's a Right when you have to await government's permission.

Posted by: Publicola at October 13, 2005 03:44 PM
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