Why the 14th Amendment and the McDonald Ruling Matter

"It depends on what the meaning of the word "is" is."

William Jefferson Clinton, 1998 testimony to the Grand Jury on the question of his relationship to Monica Lewinsky prior to his impeachment

It should not be lost on any of us that the recent Supreme Court decision in McDonald v. Chicago was more than a referendum on our right to bear arms, it was confirmation of the critical importance of the Fourteenth Amendment to the protection of our individual rights. In particular, the Privileges or Immunities Clause and the Due Process Clause.

In short the court held that the Fourteenth Amendment protects our right to bear arms against the State legislation to the contrary. Why is this important?

Consider that the opposing argument--the one that FOUR justices voted to support--argues that the Bill of Rights applies only to our national rights. That is that the Bill of Rights protects Americans against the Federal government usurping the rights protected under the B of R but not against the States. If this were true then the state in which we live could impose laws that deprive of us the rights enumerated in the B of R. Previous court rulings have safeguarded some of the rights against the states, but not all. And it was under the Due Process Clause in the Fourteenth Amendment that the court recently ruled affirmatively for McDonald--that is, against local and state bans of firearms.

More important than the verbal gymnastics the opponents engaged in and FOUR Supreme Court Justices supported in dissenting the Court's opinion is the very clear intention of the original sponsors of the Amendment in 1866 when it was introduced. From the Court's June 28, 2010 Opinion, footnote 9:

Senator Jacob Howard, who spoke on behalf of the Joint Committee of Reconstruction and sponsored the Amendment in the Senate, stated that the Amendment protected all of "the personal rights guarantied and secured by the first eight amendments of the Constitution" (14).

This understanding of the Fourteenth Amendment was widely understood at the time, published extensively and "not a single senator or representative disputed (the incorporationist) understanding" of the Fourteen Amendment during debates. How then could FOUR justices voted against McDonald?

Words matter. The meaning of words matter. If not then nothing matters. Without the veracity of Constitution, the Bill of Rights, the Federalist Papers to guide our understanding, we are at the mercy of the very same arbitrary and capricious actions of the ruling class the Founders rejected when they declared independence from the King of England. Bill Clinton sat before a Grand Jury and dissected the meaning of the word "is." He did this with a straight face. He was impeached by the House of Representatives and disbarred. Yet he is still an influential leader of the Democrat party. If truth doesn't matter. Liberty is just a slippery slide away from extinction.

Our Supreme Court Hanging by a Vote

Yesterday the Supreme Court overturned the previous judgments in McDonald v City of Chicago, a case brought in opposition to Chicago's ban against citizens' possessing handguns. The ruling was cheered by Second Amendment rights advocates and a collective sigh of relief was exhaled by all those who cherish the Constitution and the Bill of Rights.

But there was bad news amidst the good. The ruling was 5-4.

According to the opinion published by the Court yesterday, Mr. McDonald, the petitioner argued that his "right to keep and bear arms is protected by the Privileges or Immunities Clause of the Fourteenth Amendment... and that the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment right."

(The Fourteenth Amendment was ratified in 1868 after the Civil War. The Republicans in Congress submitted the amendment to the States in the aftermath of the war to grant citizenship to all those born or naturalized in the United States (former slaves) and to ensure they received the rights of a citizen. The Amendment declared no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.")

The City of Chicago argued that the Bill of Rights (which includes the Second Amendment) applies to the States, in effect, only under certain, limited circumstances. And their reading of the Fourteenth Amendment is equally as limited when it comes to the Privileges or Immunities Clause. They argue that both the Bill of Rights and the Fourteenth Amendment Privileges or Immunities Clause apply only to the Federal Government or those rights "which owe their existence to the Federal government," not the States.

But this argument is fundamentally flawed of our basic understanding of the Constitution and the Bill of Rights and the Founders intentions. Allow me to quote from Our Documents, 100 Milestone Documents from the National Archives, a book I purchased in the bookstore of the National Archives. Following is the intro to the Bill of Rights:

During the debates on the adoption of the Constitution, its opponents repeatedly charged that the document would open the way to tyranny by the central government. Richard Henry Lee, for one, despaired at the absence of protection of "those essential rights of mankind without which liberty cannot exist...They demanded a "bill of rights," that would specify the immunities of individual citizens (emphasis mine).

The real news here is that FOUR Supreme Court justices voted against McDonald.

The Turn of The Screw

Islamic terrorists hijacked our planes and flew them into the World Trade Center in the name of allah, killing thousands of our colleagues, friends and family and now, almost ten years later a $100 million, fifteen story mosque is poised to be built on the site of Ground Zero in NYC. A measly six hundred feet from where the Tower's once stood. Mayor Bloomberg (New York's three-term mayor) strongly supports the building of the mosque. His reasoning is incoherent. Each time he speaks I see Neville Chamberlain. And we know how that turned out for the British and for the world.

In May of this year, Arizona rancher Robert Krentz, was shot and killed by an illegal alien on his own property. The murder brought to national attention what Arizonan's already knew, the thousands (cumulating to millions) of illegals pouring across our southern borders are not just a national security and economic disaster, they are a potential danger to Arizona citizens. Governor Jan Brewer subsequently signed a bill into law which enforces the current Federal law the Feds aren't enforcing. Our president called the Arizona law "misguided" and the United States Government (joined by the Mexican government) is now suing Arizona. If the Federal government's actions weren't so reckless and frankly, ridiculous, the situation would make great late night comedy. It undoubtedly will anyway--that is until someone else gets killed.

There is a greater connection here it should be noted. Illegal aliens who happened to also be terrorists were responsible for the attacks on 9/11. An illegal alien murdered Mr. Krentz. Murder. Terrorism. Does the motive really matter? The result, as we know, is the same.

Despite an unprecedented level of disapproval Congress continues to pass legislation in the still of the night, increasing the burden of regulation and government invasion into our lives and especially our pocketbooks. The latest financial reform bill is characterized best by the Wall Street Journal:

Chris Dodd and Barney Frank, those Fannie Mae cheerleaders, played the largest role in writing the bill. Congressman Paul Kanjorski even offered a motion to memorialize it as the Dodd-Frank Act. It's as if Tony Hayward of BP were allowed to write new rules on deep water drilling.

The Federal Reserve, which promoted the housing mania and failed utterly in its core mission of monitoring Citigroup, will now have more power to regulate more financial institutions and more ability to dictate the allocation of credit.

View Full Image

Associated Press

Barney Frank (l.) and Chris Dodd

The Treasury, which bailed out institutions willy-nilly without consistent rules, will now lead the Financial Stability Oversight Council that will have the arbitrary power to define which financial companies pose a "systemic risk" and which can be shut down without recourse to bankruptcy. Willy-nilly will now be the law.

And the SEC, which created the credit-ratings oligopoly and missed Bernie Madoff, will get new powers to decide how easy it should be for union pension funds to get their candidates on corporate proxy ballots.

Oh, and Fannie Mae and Freddie Mac? They aren't touched at all, even as they continue to lose billions of taxpayer dollars each quarter.

The foxes are guarding the hen house. And though this drama is rich in irony, complete with the necessary ingredients of mystery and intrigue, corruption and mind-bending injustice, this drama is not fiction. It is our future and grand history mushed into one majestically, tragic plot with a collection of B and C-movie actors turning the screws. On us, the people.

I've read the book and I, for one, don't like the way it turns out.

Can't Say it Any Better--Obama lacks the L Word

06/23/2010 Obama's Leadership Vacuum More than two years ago, then-presidential candidate Hillary Clinton launched a campaign ad that took direct aim at Senator Barack Obama's inexperience. It painted the picture of a telephone ringing in the White House at 3 a.m. and asked the question, when there is a crisis in the world and your children are safe and asleep, "Who do you want answering the phone?" Now, two years later, there are several crises confronting America, that telephone is ringing, and President Obama isn't quite sure what to do about it. The first crisis is the War in Afghanistan, a lynchpin in the War on Terror and a key to ensuring U.S. security. Gen. Stanley McChrystal, U.S. commander in Afghanistan, reportedlytendered his resignation yesterday following a Rolling Stone article that portrayed him and senior aides on his team as dismissive of top Obama administration officials. Apart for being an embarrassing moment for both President Obama and Gen. McChrystal, the story revealed a larger problem for the president -- festering, internal dissension regarding his administration's Afghanistan strategy. As Politico reports, there are divisions among Defense Secretary Robert Gates, Vice President Biden, Gen. David Petraeus, Richard Holbrooke and others. Those divisions are of Obama's own making, stemming from his lack of leadership and failure to make a firm commitment to victory in Afghanistan. It took the president 10 months to decide on an Afghanistan strategy, he took a middle road in only committing 30,000 additional troops to the mission, many fewer than Gen. McChrystal had requested, and he imposed an artificial timeline for withdrawal that sent mixed signals to the country, the military, our allies and our enemies about America's resolve to win the war. Now, as the president contemplates Gen. McChrystal's potential resignation, it appears he is reaping the bitter harvest of his failure to take decisive action. There's another crisis spewing from deep in the Gulf of Mexico, where the environmental and economic repercussions of the Deepwater Horizon oil spill continue to spread, 64 days later. Even after President Obama addressed the nation on the government's oil spill response, 59 percent of Americans do not believe he has a clear plan for tackling the crisis. Is it any wonder? Yesterday, a federal judge struck down the president’s six-month ban on oil drilling, concluding that plaintiffs likely could show "the Administration acted arbitrarily and capriciously in issuing the moratorium." The ruling followed protests from Louisiana Gov. Bobby Jindal and 19 Gulf lawmakers, including Democrat Rep. Charlie Melancon (LA), who complained that the ban would pile on even more economic hardship to the embattled Gulf region. Despite the ruling, the protests, the economic consequences, and a poll showing that 56 percent of Americans believe offshore drilling is necessary for U.S. energy security, Interior Secretary Ken Salazar says he will issue a new order re-imposing the moratorium on deepwater drilling. The Heritage Foundation's Hans von Spakovsky writes that the ban is just one example of the Obama administration’s oil spill failures: From the unjustified 24-hour ban imposed by the Coast Guard on the barges that were pumping oil out of the water to check on whether they had fire extinguishers and life vests on board to the Army Corps of Engineers' delays in allowing Louisiana to build berms and sand barriers to protect its wetlands, the administration has acted more like the Keystone Cops than a competent and effective government. And then there's the budget. President Obama's administration has been marked by a spend-now, cut-later (or never) mantra that has featured the largest single-year increase in domestic spending since World War II and a trillion-dollar health care plan. Recognizing that all that spending might cause a public relations problem, the president appointed the National Commission on Fiscal Responsibility and Reform to study ways to improve America’s fiscal future. Why make a decision when others can do it for you? Taking a cue from their leader, House Democrats announced yesterday that they won't pass a budget this year. Even though that's never been done in the history of the modern budgetary process, they want to wait until the president's commission issues its report in December before making any moves. Following President Obama's Oval Office address on the oil spill last week, MSNBC commentators Chris Matthews, Keith Olbermann and Howard Fineman, three of the president's most ardent media cheerleaders, roundly criticized the president's speech. Fineman said "Obama should be acting like a 'commander-in-chief.'" Olbermann complained the president "wasn’t specific enough." Matthews observed, "I don’t sense executive command." Each of those observations comes down to one thing: leadership. And these days, the man picking up the White House phone at 3 a.m. doesn't seem to have it. Print | Comments | Forward RECENT ENTRIES ObamaCare Packs Adverse Impacts and Uncertainty for States, Employees, and Businesses Bringing Leviathan to Life: Experts Look at the Implementation of Obamacare Moratorium One of Many Obama Oil Spill Mistakes Congress Agrees on Iran Sanctions Bill Judge Blocks Obama’s Offshore Drilling Moratorium QUICK HITS The Obama administration isshutting down dredging intended to create sand berms that would protect the Louisiana coastline from oil, despite pleas from a local parish president to allow the work to continue. The Mexican government filed a brief in federal court to challenge Arizona's immigration law. Meanwhile, Arizona Democrats facing tough re-election races have urged President Obama not to sue over the law. A "public health watchdog group" issuing McDonald's, claiming that its "Shrek" Happy Meal toys undercut parental authority and lure children into their restaurants, where they are likely to order unhealthy food, leading to childhood obesity. Join the Honorable Jeff Sessions (R-Al.) and former U.S. Attorney General the Honorable Edwin Meese, III, for a teleconference on the upcoming Senate confirmation hearings for Supreme Court nominee Elena Kagan today at 2 p.m. EDT.Click here to sign-up. Today, Heritage Action for America begins a new era in holding Congress accountable. With the launch of astate-of-the-art website, members can create communities of their own to put the heat on lawmakers. Visit today. Share Today's Morning Bell Facebook Myspace Digg Linkdin Twitter

The Good News Is, We've Been Here Before

The bad news is, it will likely get worse before it gets better.

The parallels between the current economic situation and the economic crisis in the 1930's is remarkable. Also noteworthy is the similarity between the strategies employed by president elect and then president Franklin Delano Roosevelt and Barack Obama.

All of the following examples are cited from Amity Shlaes, The Forgotten Man.

• The routine of targeting class enemies in the name of reform would become Roosevelt's hallmark (Shlaes 133).
• Roosevelt reminded his listeners of the importance of the fact that "our last frontier" had long since been reached...growth would not provide for the poor; only redistribution (135).
• On the matter of Roosevelt's election: Among the most pleased were the Soviet leaders. "Russians Hopeful of 'a New Deal,' ran the headline...from (the) New York Times (140).
• In response to Hoover's appeal to president elect Roosevelt for cooperation on the banking crisis: But Roosevelt was not interested in cooperation. We will never know all of his motives, but it was clear that a crisis now could only strengthen his mandate for action come inauguration in March (142).
• Comments from Tugwell, one of Roosevelt's adviser's on what the new administration's plans were: "Drastically higher income and inheritance taxes," among other sweeping changes (143).
• The country indeed saw Roosevelt as a savior (145).
• After a failed assassination attempt: "I have never in my life seen anything more magnificent than Roosevelt's calm," an investigator wrote later (146).

Hope ran high after Roosevelt's election and inauguration. The market's rallied.

Eventually reality set in.

And you thought THIS economy was bad

Just wait until next year.

The Bush tax cuts are scheduled to sunset on December 31st of 2010. That means, if Congress does nothing--which is their specialty--the highest marginal tax rate will rise to 39.6% from 35%. Taxation of dividend income will rise to 39.6% from 15%. The estate tax rate will shoot up to 55%--55%!--from zero. And then there are the state income taxes and sales taxes and property taxes and energy taxes, bridge tolls, dog licenses, auto license fees, and after all of these taxes don't forget the taxes to be imposed to fund Obamacare and Cap and Trade.

So let's do the math. I earn $1,000 and for the sake of argument let us allow that earning that $1,000 puts me in the top federal bracket. In short, I am rich. I immediately pay Uncle Sam $396, then I pay my portion of social security, state disability tax and state income tax which in California tops out at 11%. So let's be generous and estimate only another $150 in taxes. I will then, take home $454 from my earnings of $1000. Now because I am rich, I put that $454 in trust for my heirs.

Worked to the bone, stressed to the max, I suddenly die and my heirs settle up with Uncle Sam who takes 55% of the $454. They are left with $204 from my earnings of $1000.

Clearly this example is meant to be illustrative. I have not accounted for capital gains nor dividends. But I have also not accounted for taxes paid on capital gains and dividends. Most of the other insidious taxes imposed on Americans each day were also left out of my example.

A little known fact of the Obamacare Law (among many other unpleasant surprises in the fine print you can be sure) is a 3.8% tax to be imposed when you sell your home--most people's greatest or only asset. 3.8% to Uncle Sam right off the bat. So how will that tax impact those who are involved in distress sales, who are underwater on their homes?

Any way you cut it, the picture is grim. If people have the choice, as most small businesses or the self-employed do, to accelerate earnings into this year to avoid next year's draconian tax increases, they will do so without a second thought. This will most certainly cause the economy to contract next year "unexpectedly." And once the cap gains tax increase and the dividend increase and the home sale tax are implemented expect liquidity to evaporate from the marketplace. Both the stock market and real estate market.

And you thought things were grim now. Just wait until you see with the Obama Brain Trust has in store for you next year.

For the whole story read Dr. Arthur Laffer's editorial in the WSJ: Tax Hikes and the 2011 Economic Collapse. June 6th.

American Exceptionalism--A History of Defending Choice

"In politics, the names of things are more important than what they are."

Gustave Le Bon

Gustave Le Bon was a French social psychologist whose speciality was the study of crowd psychology. So powerful were his theories that Adolf Hitler and Benito Mussolini studied his work. These political leaders understood that controlling the psychology of the masses was critical to their acquisition and maintenance of power.

Le Bon articulated what most politicians understand instinctively. It's all about the messaging. If we call a horrendous $787 billion dollar spending bill a Stimulus bill, people will be, if not happy, mollified. If we set out to Reform health care, the task moves out of the political and into the noble. Reform implies there is a problem and it will be fixed.

Which brings me to Choice. Choice represents everything great about America. We have heretofore lived in a land where liberty is honored and cherished. We can choose where we live, what we study, what occupation or business venture we want to pursue, who we vote for, what car we drive, in short, Americans are given the freedom to choose.

So why is it then that the pro-Choice movement with all their empathy for a women's right to choose, demonstrates absolutely no regard for the human life under discussion. Where else in our society do we argue for one person's rights without even the slightest consideration for an other's? Animals have rights. Criminals have rights. Terrorists now have rights. Why is it that the human life conceived by and carried by a woman has no rights?

The only way this argument has become palatable is because the destruction of an innocent life is not called Murder, it is called Choice.

But words mean something and I have become increasingly troubled by the willingness of many to ignore the true meaning of the word Choice while repeating the politicized meaning, the mantra if you will: "Choice? Yes, I am for Choice, absolutely. Choice is good."

Good for whom I wonder?

The Genius Terrible

Throughout Mr. Obama's run for the presidency and after his election we heard it oft repeated that he has a great intellect, that he is, perhaps, the smartest man ever to occupy the Oval Office. The pundits and media repeated the statement so frequently it became a "fact." Despite the actual fact there is no evidence to support the claim. Mr. Obama's transcripts and college records are sealed.

Sealed and shielded from public scrutiny. This genius of a president has made sure his records are buried. How this is done, I have no clue. It must take a great deal of complicity.

George Bush on the other hand was a bumbling idiot. For crying out loud, he got C's at Yale. What a moron.

And yet...

This president has repeatedly lied to the American people, repeatedly employed economic policies that have tripled our debt in his short tenure, increased unemployment catastrophically and full-stopped growth--all in one fell swoop. He forced through a health care bill with shady tactics and against a large majority of Americans further increasing our debt. He has exacerbated each crisis and then pointed his ever wagging finger in our faces and told us to put air in our tires or eat less salt or use less energy. Less. No. No more. Our best days are behind us. That is the legacy of this administration.

So who is the moron? We will let history decide. But I'll tell you this much. At least George Bush had the good sense and class to cut out the golf after 9/11 while this president parties and hits the links for almost two months as our fellow citizens in the Gulf drown in oil.

Can you say, "Let them eat cake," Mr. Obama?

It's Not Different This Time, Mr. Obama et al...

During the twenty or so years I invested money for large corporations and wealthy individuals, the pundits would frequently look at some piece of economic data or a particular company's earnings and declare doomsday claiming, "it's different this time." In the early 1990's, an influential economist friend of mine made a widely received and compelling argument that America's best days were behind it and the most we could expect was 1-2% growth in perpetuity. He was upbeat though his prognosis was glum. What more could we expect? We'd had a good run.

A few short years later the economy re-accelerated into strong growth and productivity increased dramatically. The stock market followed suit and continued the bull market ignited by the Reagan tax cuts in the 1980's.

What my economist friend viewed as a permanent problem was solved in the capital markets in ways that he could not have predicted at that time. The Reagan tax cuts continued to fuel private sector growth. Innovation and investment were rewarded. Money that had been poured into the no-growth public sector was freed up to create jobs in the private sector. The economic growth that temporarily stalled in the early 90's causing the experts to predict America's decline, was merely a pause in one of longest periods of prosperity in modern American history. Private industry was regrouping, recalibrating and on the verge of another surge in growth. Technology had improved productivity so dramatically the downturn was merely a breather before another strong acceleration.

In short: It wasn't different this time. America, when left to her own devices, should never be counted out.

President Obama is fond of predicting our decline. He uses words like unsustainable and redistribution and fair share. He does not speak of growth or innovation. Rather, he shares a philosophy, long since proven wrong, that was espoused by Franklin Delano Roosevelt in a speech he gave in San Francisco in 1932 when he declared, " our last frontier" had long since been reached. It was time for the "princes of property," the wealthy, to share their resources. Growth would not provide for the poor; only redistribution could (Shlaes 135).

Like FDR, Obama who has no experience building or growing anything other than government, cannot believe in the private sector. Cannot acknowledge that American ingenuity has always, and when left unfettered will again, solve problems and create wealth.

Our last frontier was not reached in 1932 nor has it been reached today. Make no mistake, Obama's economic policies have and will continue to inflict great damage. But that great American spirit will eventually dig us out and set us on the right track again.

The Co-opting of Greed

The little history I was taught in grade school characterized Franklin Delano Roosevelt as a benign, fatherly figure sitting in his wheelchair, snuggled under a lap rug and in his familiar, folksy voice speaking confidentially to his fellow citizens during his famous fireside chats. As close to royal rule as America ever came, four terms--12 years and 82 days--Roosevelt, instead of leading America through a difficult time, politicized it. And many, who study history and economics would argue, prolonged the suffering of the American people.

Yet the image stands.

In fact, Roosevelt, in his effort to seek election to the presidency in 1933 created a theme of Americans as the forgotten man. The average American oppressed by the wealthy elite. Enter class demagoguery into the political process. FDR argued that he (government) would defend the "forgotten man at the bottom of the economic pyramid" (Shlaes, 128). A member of the wealthy class from birth, Roosevelt had no compunction about demonizing the very class he was a member of. So vicious were his attacks, fellow democrat Al Smith, whose family was so poor he had to drop of out school at 14 years of age, denounced Roosevelt saying, "We seem to seek negative victory rather than affirmative victory. I will take off my coat and fight to the end against any candidate who persists in any demagogic appeal to the masses of the working people of this country to destroy themselves by setting class against class and rich against poor (128).

Yet, beyond the demagoguery, there was another problem. Roosevelt co-opted the quote about the "forgotten man." The statement was made by William Graham Sumner of Yale University in 1883 to characterize the man who worked and paid and was never considered, not the man who took from others' labor via government handouts.

"I call him the Forgotten Man. Perhaps the appellation is not strictly correct. He is the man who never is thought of...

He works, he votes, generally he prays--but he always pays..."

We are told by the current administration the rich are greedy. But I ask you, how would you characterize a man who takes without earning? Who assumes a right to others' property through the money laundering machine of government? Where is greed in working hard and keeping the fruit of your labor? No, to me the "rich" are industrious, hard-working people and the greedy are those in government who steal their labor to reallocate it to those who can't or won't work. They do this not because they are altruistic but because doing so increases their power. They are the greedy.

And hard working Americans are the The Forgotten Men and Women of the 21st century.