Local Elections, Deja Vu

1. Voted in our local election. I spent several hours trying to figure out who was who and who I should vote for. I even read something about each of the unopposed candidates, most of whom were judges. One judge I had an ex parte motion in front of two weeks ago, so that was an easy decision. A few reflections.
1. Dean Worthen (former law school dean) used to say that the way to really get people mad it to tell them what they can and can't do with their property. From that you'd think that local elections would be the most contentious as that is where most property regulation occurs. In reality, though, we pay the least attention to them. There were something like 16 positions for republican delegates on my ballot, but only 2 people ran. Most appellate court judges ran unopposed (although I started to wonder if maybe you can't run against them.) It seems like there really is a lot of room to get involved and get influence in local politics.
2. Voting was particularly hard because I had to familiarize myself with local issues before I could vote meaningfully for the candidates.
3. The best politicians were the most mealy mouthed. I had to read between the lines on their websites to figure out what they really believed in. I say they were the best because it seems like some of the most vapid writing was on the most popular candidate's pages.
4. Non-partisan elections are STUPID! They simply are a way to obfuscate the political leanings of the candidates, which ultimately is all you want to know. I had to find my way to a questionnaire by the two supreme court candidates before finally finding some sort of indication of the judge's political leanings.
5. All my effort to be an informed voter is probably a waste of time. First, its just the primary, and I live in Oregon, so none of these people are likely to be elected. Second, as we know from public choice theory, my vote doesn't actually count.
2. In one of his books (and I think tv news stories) John Stossel argues that government mandating airbags is an unnecessary infringement on our freedom. Apparently if you're shorter than a certain height, an airbag actually increases the risk you will be killed in a car accident. He found a lady who was terrified of this risk, but couldn't legally buy a car without an airbag or deactivate the airbag. Obviously government has run amok!
3.  But then I got to thinking about the Tullock spike. An airbag makes you more likely to survive a crash. That means you are more likely to drive recklessly, and inflict externalities on others. And libertarians also believe in internalizing externalities. So now, I don't know what a libertarian should think about Stossel's example. Or maybe, it just further proves Stossel's point because airbags protect the vast majority of people, increasing their tendency to drive aggressively (but that would make his particular example a bad one).
4. It looks like the days of the federal government being limited to its enumerated powers are enumerated. My guess on why Justice Roberts joining the majority: he's thinking about the other myriads of government programs that could be challenged if he took too hard of a line of the commerce and necessary and proper clauses. This is, I think, just one of those areas where the jurisprudence is bowing to the political realities. Sadly, it looks like these cases were decided 70 years ago with the switch in time that saved nine.
5. I've seen Breyer and Scalia do this or a similar back and forth a couple of times now, but it's always interesting. Breyer's best arguments against originalism:
1. History is not always clear. (Scalia's counter: history is clear in some of the most controversial cases)
2. If we are looking at history, we should have 9 historians on the court.
3. Deriving neutral principles and applying them to today's circumstances is really hard.
6. A gathering backlash against the suns? or a marketing plan working perfectly?
7. Saw the movie De Ja Vue on TV Saturday. If you can buy into the premise, it kind of worked, but that's a big if. It also has one of those really bad, didactic scenes where the characters just blurt out every rule and premise you have to accept to believe the movie. Great movies doesn't do that.

Second Amendment Incorporation

Does the Second Amendment restrict the powers of individual states? Initially, the restrictions on government power in the Bill of Rights only applied to the federal government. For example, the First Amendment begins "Congress shall make no law . . ." indicating that the restrictions in that amendment only apply to the "congress" of the federal government. However, since the adoption of the Fourteenth Amendment, The Supreme Court has gone right by right through the amendments in the Bill of Rights, determining whether or not the right in question should be incorporated against the states. Most of the Bill of Rights, has in fact, been incorporated.

One of the few remaining incorporation questions is whether the Second Amendment should be incorporated against the states. The recent Heller decision, holding that individuals have a right to keep and bear arms for self defense, was taken on appeal from Washington D.C. City ordinance. The Second Amendment clearly applied in that case because D.C. is not chartered by a state, but by the federal government.

If you think that for consistency's sake a court has to incorporate the rights in the Second Amendment, you'd be wrong. While the Ninth Circuit has sort of ruled that the Second Amendment is incorporated, The Second and Seventh Circuits have already rejected incorporation based largely upon precedents, like Presser and Cruikshank. Those cases, however, are not directly on point as there are three methods of incorporation, and those cases deal reject only the first two methods of incorporation. Direct incorporation is rejected because the case Duncan says none of the first eight amendments are binding on the states. Incorporation through the privileges or immunities clause was also rejected in the Slaughterhouse cases.

The last method of incorporation is through the due process clause of the Fourteenth Amendment and is the method by which most of the Bill or Right has been incorporated. This test--a shoot off of substantive due process--asks whether the right is "fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.' "Nordyke v. King, (9th Cir. 2009) (citing Duncan, 391 U.S. at 149 n.14 (emphasis added).) That's a fuzzy standard, but obviously a good argument for incorporation can be made.

How conservative and liberal justices are likely to answer the Second Amendment incorporation question is ironic. Liberals, who always seems ready to find new rights in the constitution, weren't excited about the robust Second Amendment rights created/reaffirmed in Heller. Now, those same liberals, who favor incorporation and top-down federal regulation, are the jurists most likely to vote against incorporating the Second Amendment.

Conservatives face the reverse problem: they are usually seen as supporting states rights, but will be imposing a restriction on the state. But, to be fair "conservatives" (some of whom are originalist) usually believe in following the constitution's requirements, even when it infringes upon state rights. So the question isn't so much policy, but the constitution. The liberals have this same argument, but because they've already incorporate almost every other right, they'd be acting more inconsistent to oppose this rights.

The real problem for the originalist is that he generally does not believe incorporation is constitutionally mandated. Scalia says that he does not believe the incorporation is proper under the Fourteenth Amendment. Still, he accepts incorporation because the cases were decided long ago, and the doctrine is too settled to overturn it now. Still, in order to incorporate the Second Amendment, Scalia will probably have to rely upon substantive due process, a legal doctrine he has long disparaged.

And what should an originalist who is less deferential to precedent, like Thomas, do? As Justice Scalia says, "Clarence Thomas does not believe in stare decisis, period." "Or even setting aside Thomas's views, suppose you're an originalist that does not believe the incorporation is proper but you are faced with the question of whether to incorporate the Second Amendment. Do you follow the incorporation precedents that you believe are wrong and incorporate a right against the states because it is consistent with what has been done before, and open yourself up to criticism that you are abandoning your principles of interpretation for policy reasons? Or do you not incorporate the Second Amendment and leave one of the few rights in the Bill of Rights unincorporated to be faithful to your originalist understanding of the constitution, even though that understanding will never be law?