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Tilting at Windmills

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July 9, 2008
By: Kevin Drum

OBAMA AND ABORTION....Dana Goldstein is unhappy that Barack Obama isn't talking more about abortion rights in his stump speech:

It's fantastic that Obama is talking about pay equality and the disproportionate way in which poverty and inequality affect women. And if elected, he'll make Supreme Court appointments that will limit the further erosion of abortion rights at the federal level. But Obama is just not using his progressive reproductive justice platform as a talking point, which does raise questions about how he will prioritize those issues if elected.

I don't really get this. Does anyone seriously think that Obama is anything other than solidly pro-choice and will continue to promote strong reproductive health policies once he's in office? His voting record is essentially perfect, he has good stands on all the issues that matter to the largest number of women (Plan B, abstinence-only education, contraception, parental notification, foreign aid, etc. etc.), and there's little question that he'll nominate Supreme Court justices who support Roe v. Wade.

I know that Obama is under the abortion microscope right now thanks to his "mental distress" comment last week, but if anything, this episode demonstrates that there's really no percentage for him in making abortion central to his campaign: the downside from even small divergences from pro-choice orthodoxy is huge, while the upside from loudly confirming his pro-choice bona fides is small. Like it or not, it's politically very savvy to make equal pay his signature gender issue while simultaneously trying to keep a lid on culture war stuff.

Kevin Drum 2:41 PM Permalink | Trackbacks | Comments (50)

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Yeah. And he's not opposing school vouchers, either.

He doesn't have to.

Legal abortion, with some limitations particularly on late term abortions, is a mainstream position now. This is not a fighting issue.
.

Posted by: Grand Moff Texan on July 9, 2008 at 2:53 PM | PERMALINK

I want to hear what his position is on Quemoy and Matsu.

Posted by: howie on July 9, 2008 at 3:03 PM | PERMALINK

I share Kevin's take on this issue. While I enjoy Ms. Goldstein's writing at TAPPED (and in the American Prospect), I think her post may be symptomatic of a youthful dedication to purity of rhetoric. Or something like that. Whatever the case, it irritates me that we on the left so readily argue about niggly shit like that, even though we know we're all on the same page.

Posted by: Everett on July 9, 2008 at 3:06 PM | PERMALINK

In my fantasy world, it wouldn't be an issue at the Federal level at all. It would be a state issue, and the pro-choice and pro-life extremes and large silent majority in the middle could duke it out at a state-by-state level.

In your fantasy world, each state should be able to decide whether it's okay to murder children? Did you happen to write V for Vendetta?

Posted by: Al on July 9, 2008 at 3:07 PM | PERMALINK

The time between the end of the primaries and the conventions usually gets frustrating like this, right? The candidates just try to keep in the news and the media just try to find something different to say and the 1000s of little constituencies try to play on this with silly "pay attention to me" issues that really don't do much to attract the voters who are undecided.


Posted by: Anonymous on July 9, 2008 at 3:08 PM | PERMALINK

"Dana Goldstein is unhappy that Barack Obama isn't talking more about abortion rights in his stump speech"

Yup. Why doesn't Obama talk more about how women who need abortions are just "feeling blue", sweetie?

Kevin's continual pimping for the most conservative Democratic nominee since Jimmy Carter is just peachy, sweetie.

Kevin doesn't want to vote him off the island. Issues are for losers.

Posted by: Petey on July 9, 2008 at 3:08 PM | PERMALINK

"I don't really get this. Does anyone seriously think that Obama is anything other than solidly pro-choice.......?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Go to any number of sites today and read a recap of Obama's past statements regarding the new FISA law. He at various times was blatantly unambiguous regarding his refusal to go along with telecom immunity. He promised a committment to support a filibuster, along with a promised refusal to vote for cloture. To paraphrase you;

"I don't really get this. Does anyone seriously think that Obama is anything other than solidly against the new FISA bill.......?

Ummm, I thought I knew where he stood. Next stop, reversal of Roe V. Wade. Flip. Flop.

Posted by: steve duncan on July 9, 2008 at 3:12 PM | PERMALINK

In Jasper's fantasy world, whether or not the colored folks and the gals are allowed to vote won't be a federal issue at all. Let the states decide.

Posted by: thersites on July 9, 2008 at 3:19 PM | PERMALINK

This is a tired old canard, besides they dont care anything about the life after its born. Its hypocrisy^2

Can you imagine a guy singing bomb bomb bomb bomb and saying hes pro-life?

Ooo wait..,nevermind, thats happened.

Posted by: on July 9, 2008 at 3:19 PM | PERMALINK

As GMT says, legal abortion with some late-term limitations is the mainstream. This issue is no longer being fought in the court of opinion; we're fighting in the Supreme Court, and Obama is not going to appoint a Roe-overturning justice. He just isn't. (Steve Duncan, get a grip. Obama's actions on FISA are unforgivable, but to go from there to "Next stop, reversal of Roe v. Wade" is just histrionics.)

I wasn't wild about the mental distress comment, but it didn't make me start second-guessing all of Obama's pro-choice credentials. Nor did it throw the Planned Parenthood Action Fund, which has just given Obama only its second presidential endorsement ever.

The only people I've personally come across (I haven't read Goldstein yet, so this doesn't apply to her) making the argument that Obama should be talking more about abortion are Clinton supporters looking to bitch about Obama's alleged male insensitivity. Sorry, but when someone takes the mental distress comment and extrapolates from that that "Obama clearly doesn't give a damn about women's issues," as some idiot did at another blog, most people quite rightly stop listening.

Posted by: shortstop on July 9, 2008 at 3:23 PM | PERMALINK

In your fantasy world, each state should be able to decide whether it's okay to murder children? Did you happen to write V for Vendetta? -AL

Heres a typical hypocrite. Doesnt care about how many children are maimed or murdered by bombs, bullets or mines nor does he want his money spent on things for those children after they are born - like SCHIP. That V should be tacked onto your monicker VAL

Posted by: on July 9, 2008 at 3:25 PM | PERMALINK

Does anyone seriously think that Obama is anything other than solidly pro-choice and will continue to promote strong reproductive health policies once he's in office?

Apparently, they do. I haven't gotten any explanation other than, "But he's not vetted!" for this belief, but it seems pretty firm with the people who hold it.

Posted by: Mnemosyne on July 9, 2008 at 3:25 PM | PERMALINK

In Jasper's fantasy world, whether or not the colored folks and the gals are allowed to vote won't be a federal issue at all. Let the states decide.

Posted by: thersites on July 9, 2008 at 3:19 PM |

Yes thersites, the states did have the right to decide whether or not to let "colored folks and gals" vote until that power was taken away from them because of the ratification of the 14th, 15th and 19th Amendments to the U.S. Constitution.

Has there a similar Amendment added to the Constitution that takes away a state's right to regulate abortion as they see fit? Nope, it was just the personal views of seven members of the Supreme Court, who for the first time in 1972, "discovered" a woman's right to choose that was somehow overlooked by all previous courts in the 200 years of the Constitution's existence.

Posted by: Chicounsel on July 9, 2008 at 3:48 PM | PERMALINK

I don't think someone who hedges their words regarding women's rights is solidly pro-choice. If he said that he was solidly pro-choice than I would believe him, but he hasn't - instead he tries to placate evangelicals by throwing words here or there to appease them. You know what, Mr. Obama? Please me. Not the other side. You may not have my vote either and mine's probably easier to get than a republican's.

Posted by: Julene on July 9, 2008 at 3:55 PM | PERMALINK

Chico,

Thank you for pointing out my stupidity.

Actually I wasn't making a legal argument, but just making the point that leaving decisions regarding basic human rights up to the states doesn't lead to a good result.

I'll leave it to the lawyers to fight over whether a constitutional amendment is necessary to protect a woman's right to choose, or if Roe v. Wade suffices. But some things can't be left up to the states.

Posted by: thersites on July 9, 2008 at 4:08 PM | PERMALINK

I'm all for the Republicans putting abortion rights front and center this election. I want to hear McCain speechifying, preferably on a regular basis and especially at the Convention, on how he opposes women having the right to choose and how he thinks Roe v Wade should be overturned. That's a winner of an issue for him.

That will solidify his lead over Obama among female voters! Except that he's already behind Obama with women.

Posted by: cowalker on July 9, 2008 at 4:14 PM | PERMALINK

There's a seventh-season episode of "The West Wing" where Josh and Lou tell younger Santos campaign workers that they shouldn't respond to a politically motivate abortion incident out of Texas because it won't win them any additional votes but only encourage others to vote against them. I was thinking of this as I was reading Kathy G's complaints about Obama not having a clue what he was talking about when it comes to abortion politics. However valid her complaints are, Obama's definitely right to make equal pay, rather than abortion, his signature gender issue.

Posted by: Brian on July 9, 2008 at 4:16 PM | PERMALINK

obama will SELL OUT abortion rights, just like he will sell out Social Security. He is just another corporate shill like pelosi and reid.

If you think he stands for anything liberal or progressive, you are listening to his empty rhetoric and are blind to his actions.

He sold us and the US Constitution (which he proclaims to be an "expert on") out. He will sell out women's rights too if that is what his masters ask.

Dr. Martin Luther King must be rolling in his grave to know that the first African American presidential nominee sold out the 4th Ammendment, giving all future administrations to right to spy on law-abiding, honorable Americans.

We have laws protecting the 4th Ammendment because of the way the government abused the constitutional rights of Americans like Dr. King.

Obama does not stand for anything at all - it's all empty rhetoric, what a disgrace.

Posted by: on July 9, 2008 at 4:17 PM | PERMALINK

Jasper,
See my answer to Chico.
Also, whether or not there was solidarity between various voting rights movements is actually irrelevant to my point which, again, is not a legalistic point but a moral one.

I'm well aware that women's suffrage was once a state issue, by the way. Else why would I have used it as an example?

Posted by: thersites on July 9, 2008 at 4:18 PM | PERMALINK

I disagree with Kevin when he says that there is no percentage for Obama to make abortion an issue.

More people are pro-choice than pro-life. Frankly, Obama's pandering to the evangies this week regarding late term abortion has given me pause. I am certain that a number of women are also listening more closely. Does he really want to lose the woman's vote? He is certainly showing disdain for us lowly creatures.

It's not that a pro-choice person would vote for McCain. There is always the choice of sitting it out or writing another candidate in.

Posted by: optical weenie on July 9, 2008 at 4:20 PM | PERMALINK

optical weenie, you've never been an Obama supporter so don't give us this 'showing disdain for us lowly creatures' nonsense. His position on abortion has remained the same. I don't see any pandering to religious what nots this week on the abortion issue.

Posted by: GOD on July 9, 2008 at 4:26 PM | PERMALINK

Dear God,
Should I get down on my knees to pray?

Obama was not my first choice in the primary. He has won it however. I have been trying very hard to get behind "the movement". But frankly he is making it tough for me.

So God, if you don't like it that I am uncomfortable with some of his newly stated positions, then tough shit. This is a democracy. You don't get to control my vote.

Posted by: optical weenie on July 9, 2008 at 4:37 PM | PERMALINK

Who could have predicted that optical weenie would write in Clinton? Man, nobody saw that coming.

Yes, Obama is pandering to the evangelists, who are so notoriously easy to please that they're not even buying McCain's fervent professions of pure anti-choice sentiment and are threatening to stage a floor fight over the GOP platform. Who knew that all it took to get them on your side was sharing the opinion of a majority of Americans on very late-term restrictions while constantly reiterating your support for Roe v. Wade, expanded contraceptive access and education, and virtually every other reproductive right? Next up: Obama wins over nation's worst homophobes by pointing out that he's not married to a man.

I can't believe that on a day this trainwreck of a FISA bill passed with Obama's help, people are actually somberly discussing whether this guy's solidly pro-choice record is suspect. For the love of Pete.

Posted by: shortstop on July 9, 2008 at 4:37 PM | PERMALINK

Gals being allowed to vote WAS a state issue! In fact, many states made that change back in the 19th century.

No they didn't. Only three of forty-five states allowed women to vote by 1900. That is not "many" by any interpretation.

As to whether that's the "proper way to do it," consider that it only took seventy years from the official beginning of the suffrage movement in the U.S. -- and trials and hunger strikes and protests and mass arrests before women received the right fundamental to voting to shape their own destiny.

Posted by: trex on July 9, 2008 at 4:43 PM | PERMALINK

Man, Andy Borowitz once again hits the nail on the head:

"Liberal Bloggers Accuse Obama of Trying to Win Election"

http://www.borowitzreport.com/archive_rpt.asp?rec=6894

Posted by: Bob on July 9, 2008 at 4:53 PM | PERMALINK

I'm still snickering that Jasper thinks that no state had legalized abortion before Roe v Wade. There were more states with legal abortion before Roe than there were states that allowed women to vote before the 19th Amendment passed.

Posted by: Mnemosyne on July 9, 2008 at 5:53 PM | PERMALINK

" this episode demonstrates that there's really no percentage for him in making abortion central to his campaign"

Kevin, please.

This episode demostrates that he's willing to a) minimize mental distress (hey wonder if psych coverage will be part of his health care platform?) b) willing to ignore the last 30 years of court precedent and align himself with the Scalia bloc
all in order to c) shove his head up the ass of Christian Fundamentalists.

It's disgusting.

Posted by: smott999 on July 9, 2008 at 5:58 PM | PERMALINK

thersites,

Was not my intent to make you feel stupid with my response, but to simply point out the utter absurdity of those who claim Roe is a legally justifiable decision.

In fact, your example of women voting is the same used by Justice Scalia to point out the difference between his "orginialist" understanding of the Constitution and those who believe that the Constitution is a "living, breathing document" that needs to be updated by judges.

He notes that the passage of the 19th Amendment was at the height of the Progressive Era. As such, he argues that wouldn't it have been a lot easier for those who were in favor of woman suffrage to simply get a majority of the Supreme Court to rule that such laws prohibiting women from voting were now unconstitutional as a violation of the equal protection clause. So why didn't they do it?

Because no legal scholar at the time would have agreed with the argument that it's the job of the Supreme Court to update the meaning of the Constitution by reading into it the personal policy preferences of the justices.

But that view has fallen by the wayside because there are those who believe that the Constitution must evolve with the times. Just as long as it is they who get to decide which way the Constitution evolves. Justice Kennedy's decision in the no death penalty for child rapist case is just the latest example of pure judicial activism. There is nothing in the Constitution itself that limits application of the death penalty to murder. It is simply the justices' personal preference that it does so. And so it now does.

Posted by: Chicounsel on July 9, 2008 at 6:09 PM | PERMALINK

Because no legal scholar at the time would have agreed with the argument that it's the job of the Supreme Court to update the meaning of the Constitution by reading into it the personal policy preferences of the justices.

So I'm assuming you're one of those people who thinks that Brown v Board of Education was also a bad legal decision even though it was enforcing the 13th, 14th and 15th Amendments?

Posted by: Mnemosyne on July 9, 2008 at 6:24 PM | PERMALINK

Barak Obama should encourage all women to abort their unplanned pregnancies and endorse goverment financial assistance for those who cannot afford abortions.

Posted by: e7 on July 9, 2008 at 6:32 PM | PERMALINK

*

Posted by: mhr on July 9, 2008 at 7:24 PM | PERMALINK

He notes that the passage of the 19th Amendment was at the height of the Progressive Era. As such, he argues that wouldn't it have been a lot easier for those who were in favor of woman suffrage to simply get a majority of the Supreme Court to rule that such laws prohibiting women from voting were now unconstitutional as a violation of the equal protection clause. So why didn't they do it?

Oooh, oooh, I know! Because the majority of the Court was still composed of sexist old men, and that even though it was called the Progessive Era, that does not ipso facto mean that all Supreme Court Justices were progressives?

But that view has fallen by the wayside because there are those who believe that the Constitution must evolve with the times.

Hey, I agree with you. That's why I think that the Court's recent decision upholding a personal right to bear automatic weapons and revolvers is deeply misguided -- a true strict constructionist would have realized that such right only applies to cutlasses, rapiers, flintlocks and dueling pistols.

Posted by: Stefan on July 9, 2008 at 7:30 PM | PERMALINK

Progressives, liberals, leftists, conservatives, fascists and Nazis use the political tools available to achieve their goals. Sometimes constitutional amendments are the best choice, sometimes Supreme Court rulings are. The anti-abortion faction in the US originally wanted to use the amendment process to outlaw abortion but found that process almost impossible in these times, so they opted to game the Supreme Court with justices already on record opposing women's reproductive rights. The pro-choice faction did not load the Supreme Court, but instead appealed to the constitutional rights of women to privacy in regards to their reproductive capacity, which that impartial court's majority agreed with. Roe vs. Wade would end up very differently now, if even brought to the court under the present circumstances, so the pro-choice faction would have to choose other political means to allow for lawful abortions, like the constitutional amendment process.

The 21st Amendment was ratified through state conventions, not state legislatures, which were considered too conservative to count on passage. With the times the way they are, with conservative and reactionary state legislatures and courts, state conventions may make a comeback.

Posted by: Brojo on July 9, 2008 at 9:38 PM | PERMALINK

Actually, Al, it is in the real world, not in just someone's fantasy world, where each state decides whether it's OK to murder children. Each one has decided it isn't, best I know. But each decides for itself.

Posted by: Marc on July 9, 2008 at 9:38 PM | PERMALINK

Perhaps one of the legal geniuses on here can explain to us plebes how Roe is a hackish bit of policy-preferencing by a judicial tyranny, but Alden v. Maine, which invented an entire new clause to the 11th Amendment out of whole cloth is a principled "originalist" decision based on the plain language and original understanding of that Amendment. You can't, of course, mostly anyone who claims to be a principled originalist is full of shit. Exhibit number one: the most remarkable coincidence of "principled" orginalists' policy preferences and their stated understanding of the Founder's original intent.

Posted by: Everett on July 9, 2008 at 9:59 PM | PERMALINK

A smart tactic in this crazy election season is to stay away from polarizing issues. Notice how McSame doesn't really give his position on anything and it doesn't make it to CNN. Reagan did it and it works. Just be the nice guy, my friends, and let your background imply that you will be a strong leader. If you keep bringing up reproductive medicine, sexuality and marriage, you will be targeted and your voters more narrowed.

Posted by: Dr. D. on July 10, 2008 at 9:00 AM | PERMALINK

There's a process for making changes to the Enumerated Rights

I get tired of these enemies of liberty who think the only rights we have are those expressly listed in the Constitution. That's exactly why many of the founders opposed enacting a Bill of Rights, out of concern that ignorant people would make exactly that argument.

We have a whole universe of rights not mentioned in the Constitution. The Constitution represents the people conferring limited powers on the government, not the government conferring limited rights on the people. "Everything not explicitly permitted is forbidden" is not a principle of American Constitutional Law.

Is it too much to ask that people making public comments on issues like this have a basic familiarity with the principles on which this country was founded?

Posted by: rea on July 10, 2008 at 9:38 AM | PERMALINK

No. If they'd meant that they would have specifically listed the arms it would have applied to. They didn't, they said "arms"... which IS a word that can denote a larger set of things than were the case in 1789.

Yes, in 2008. But they weren't writing in 2008, they were writing in 1789, and in 1789 "arms" meant rapiers, cutlasses, flintlocks, blunderbusses, dueling pistols, etc. Surely a strict constructionist would see that? I abhor this sort of relativistic textual deconstruction and judicial activism!

They didn't, they said "arms"... which IS a word that can denote a larger set of things than were the case in 1789.

As with, for example, the word "marriage", so it can now denote gay as well as mixed-gender marriage?

Posted by: Stefan on July 10, 2008 at 10:13 AM | PERMALINK

I get tired of these enemies of liberty who think the only rights we have are those expressly listed in the Constitution. That's exactly why many of the founders opposed enacting a Bill of Rights, out of concern that ignorant people would make exactly that argument. We have a whole universe of rights not mentioned in the Constitution. The Constitution represents the people conferring limited powers on the government, not the government conferring limited rights on the people. "Everything not explicitly permitted is forbidden" is not a principle of American Constitutional Law. Is it too much to ask that people making public comments on issues like this have a basic familiarity with the principles on which this country was founded?

They seem to be especially ignorant of the Ninth Amendment, which states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Posted by: Stefan on July 10, 2008 at 10:47 AM | PERMALINK

That's why I think that the Court's recent decision upholding a personal right to bear automatic weapons and revolvers is deeply misguided

Are you joking, lying, or just clueless? Did you perhaps mean "semi-automatic weapons"? The DC ban didn't even address automatic weapons because they're already nearly impossible for civilians to own under federal law, and have been for decades. Not only has this not been challenged in court, Scalia explicitly wrote in his opinion that there is nothing preventing laws banning machine guns, even under the individual-rights doctrine that was at the heart of the decision. This also suggests that there's nothing unconstitutional about assault weapons bans, at least from the point of view of this Court. (Please also keep in mind that the DC ban didn't just outlaw handguns, it effectively disarmed citizens in their own homes, regardless of what kind of gun was involved.) Scalia may be a crazy asshole but he's not stupid - I think he recognized how many people would react to the opinion and therefore went out of his way to minimize the policy implications of his ruling.

I've seen a number of people make the same claim, and I have the feeling I'm going to be correcting people a lot.

We have a whole universe of rights not mentioned in the Constitution. The Constitution represents the people conferring limited powers on the government, not the government conferring limited rights on the people.

I couldn't agree more, but modern-day American liberals are very selective in their respect for this idea. (The more closely aligned with the Democratic party, the more selective.) Compared to the Republicans, of course, this is pretty trivial, but I've met very few people of any viewpoint who really believe and agree with what you wrote.

Posted by: Nat on July 10, 2008 at 11:00 AM | PERMALINK

Are you joking, lying, or just clueless?

I was joking. I was pretending agreement with an absurd premise in order to hightlight its absurdity by carrying it to its logical conclusion. Without full success, I see.....

Posted by: Stefan on July 10, 2008 at 11:15 AM | PERMALINK

I'm still snickering that Jasper thinks that no state had legalized abortion before Roe v Wade.

Abortion was illegal in every state only from 1967 to 1969.

Two years.
.

Posted by: Grand Moff Texan on July 10, 2008 at 11:30 AM | PERMALINK

Are you seriously positing that:
a) the Founders presumed no further progress would be made in the technology of war and armaments... ever?

Who's to say what they presumed? That's why, as a strict constructionist, I try not to delve into what the Founders may or may not have thought, but look to the plain meaning of their words as they were understood in 1789. If you can show me some evidence that the Founders intended for us specifically to be given the right to carry a .357 Magnum Model MK 19 single-action Desert Eagle with a laser scope, or that there was any precedent for owning such a weapon in medieval English common law, please present it, because if you can't you're just grasping at straws....

Despite the kool-aid, the reason a definition of marriage as between a man and a woman wasn't written down anywhere* before the '70s is because the concept was --to borrow from DailyKos-- "batshit crazy."

Are you seriously positing that the Founders presumed no further progress would be made in how humans arranged their social relations... ever?

Posted by: Stefan on July 10, 2008 at 2:10 PM | PERMALINK

All arguments that rely on “Original Intent”, “Original Meaning”, or “What the founding fathers would have wanted”, are at best a fools errand of ignoring the actual text that was passed and ratified in the approved manner in favor of the mind reading skills of a judge.

Most often they are just blatant attempts to ignore the law to arrive at a favored outcome.

So, I wont argue 18th century usage in either in favor or against any position on the 2nd amendment.
But to set the record straight…..

Yes, in 2008. But they weren't writing in 2008, they were writing in 1789, and in 1789 "arms" meant rapiers, cutlasses, flintlocks, blunderbusses, dueling pistols, etc. Surely a strict constructionist would see that? I abhor this sort of relativistic textual deconstruction and judicial activism!

Not even all of those are “arms”. Arms are sharp bits of metal that you stab or cut people with.

18th century musket drill goes..
Rest your …….. Firelock
Order your ……Firelock
Fix Bayonets!
Order your ……… Arms

What changed? You turned you musket into a short pike, the purpose of the lock, stock and barrel is now to be a handle so that you can stick a foot of trefoils shaped steel into some Frenchman’s or Spaniard’s belly.
Musket balls may kill more of the enemy, but the bayonet is what wins the battle, whether you actually get to use it or the enemy runs away.

While I’m on a rant…...
“Bearing Arms” didn’t mean just schlepping weapons around any old way. It means standing straight with your heels touching and your feet at a 45 degree angle, both arms straight at your sides, with the pike or musket/bayonet but in your right hand and leaning on your right shoulder.
It is the position from which all musket or pike drill starts

Oh, and “guns” are large tubes of iron or bronze weighing several tons mounted on wooden carriages that fire cast iron balls from 3 to 68 pounds at fortress walls, not pistols

Posted by: jeff452 on July 10, 2008 at 7:07 PM | PERMALINK

Did anyone seriously claim that a Colt Revolver did not fall into the category of "arms"? No. Never. (Handgun bans even didn't claim that.)

seems that I just claimed that very thig

Posted by: on July 10, 2008 at 7:19 PM | PERMALINK

sorry, that was me

Posted by: jeff452 on July 10, 2008 at 7:21 PM | PERMALINK

What about gay marriage? I'll leave it with the MN Sup. Ct. ruling in Baker(1970):

Yeah, somehow I don't think a Minnesota (?)Supreme Court ruling in 1970 is exactly the devastating last word on the subject you suppose it is. If you try real hard, I'm sure you can find some cases rather more on point that have been decided in the last, say, 38 years.....

Posted by: Stefan on July 10, 2008 at 7:41 PM | PERMALINK

America is a common-law based system, Erie(1938) and Louisiana notwithstanding, which means there's the entire history of pre-1776 English precedent to draw from when looking at the most fundamental concepts of society. If something is so self-evident as to not even be required to be explicitly stated until a few decades ago (that concept wasn't even polled about until relatively recently), I'd say that falls into that category.
If you can show me that the Founders intended all along for "homesexual marriage" to exist, or that there was any precedent for it dating back to 1215 or 1066, fine. Otherwise you're just grasping at straws.

Under current law, can a man who has had his testes removed (due to cancer or some industrial accident) legally marry a women?
If so when was the law changed?
‘cause I got news for ya, there are reams of 18th cen case law saying that a castrated man cannot legally marry, he cannot be charged with adultery if he sleeps with your wife either

Marriage laws were about one thing and one thing only. Inheritance of farm land.

(Oh, and to any libertarians who think that in the beginning of this country a man could dispose of his property as he saw fit, guess again
100% of your property goes to your oldest son. It was illegal to split it up and very difficult to bypass your oldest son to choose a different heir)
The “definition of marriage” in 1790 was not “between one man and one woman” it was between a landowner and the daughter of another landowner of the same class, religion , race, who could both produce an heir and the with approval of both families
We never changed the marriage statutes to allow castrati to marry, nor were there constitutional amendments.
In 1950 it didn’t matter legally if you were of different religions, social class, or if you were capable of having kids, or if any competing heirs objected. And in civilized parts of the country, it didn’t matter if you were of different races.
Why should there be a bigger hurdle for same sex marriage then for all the other changes since 1790

Posted by: jeff452 on July 10, 2008 at 7:51 PM | PERMALINK

Ummm, I thought I knew where he stood. Next stop, reversal of Roe V. Wade. Flip. Flop.
Posted by: steve duncan on July 9, 2008 at 3:12 PM | PERMALINK

Well, Steve, you're way ahead of me. I don't know who the Mocha Messiah is and I don't know where he stands on almost any issue of real substance. Stupidly, that's what I had hoped the primaries would reveal. Now I just hope we find out before he moves into 1600 Pennsylvania Ave.

But of course, I'm not alone. Even "moderate" Kevin Drum famously wrote here, "now that the primaries are over I'm looking forward to finding out what Obama stands for." This after mooning over Obama like a 13 year old school girl at a Jonas Brothers concert for weeks.

The guy has no accomplishments, no record, and if you ask details on his positions, you must be a Hillary shill (the cunt!) or voting for McCain (McSame!) Get used to it.

Posted by: Pat on July 10, 2008 at 10:07 PM | PERMALINK

"Arms" is a CLASS of things, not an exhaustive list in and of itself. Things can be added to that class without there being a change in either the definition of the class or the language around the denotation of it.

Who gets to decide what can be added to the class?
Judges?
Any judge? Even one of those dred "lib'ral activist judges" or just Scalia?

Or should we use "common sense" (which means “whatever I agree with”)

Since you have added projectile weapons to the class of “Arms” which meant pointy bits of ironmongery like pikes, swords, halberds and such in 1790, I presume that you wouldn’t object if some judge ruled just about anything as an “Arm” and therefore protected by the 2nd amendment

Don’t like fireworks bans? Just call them arms
Don’t like drug laws? Just call them arms

Of course this would violate Original intent/meaning
But then again so does adding pistols to the class of “arms” and your fine with that.

This is why I say that:

All arguments that rely on “Original Intent”, “Original Meaning”, or “What the founding fathers would have wanted”, are at best a fools errand of ignoring the actual text that was passed and ratified in the approved manner in favor of the mind reading skills of a judge.
Most often they are just blatant attempts to ignore the law to arrive at a favored outcome

Posted by: jeff452 on July 10, 2008 at 10:16 PM | PERMALINK
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