Second Amendment Highlights Big Day at Supreme Court

On Monday, the Supreme Court decided four important cases. Perhaps the most interesting of which was the Second Amendment case of McDonald v. City of Chicago, discussed below. The other cases are also worth understanding.

In Christian Legal Society v. Martinez, the Court ruled that state colleges can limit status for campus groups to those that admit all comers.  Hugh Hewitt argues against the ruling, while Eugene Volokh argues that the Court got this one right.

In Free Enterprise Fund v. Public Co. Accounting Oversight Board, the Court determined that the protection of an accounting board created by Sarbanes-Oxley is unconstitutional. The case dealt with separation of powers. Jonathan Adler and Kevin Russell comment.

There was also an important patent case that was decided. In Bilski v. Kappos, the Court struck down a business method patent without ruling out the potential for patenting business methods. Commentary and summary can be found at Patent Baristas, Patently-O, and Philip Brooks’ Patent Infringement Updates.

As for McDonald v. City of Chicago, this was a major constitutional case on the heels of the Court’s ruling in DC v. Heller. Not only did this case deal with gun ownership rights, but also with the question of whether or not the Second Amendment applies to the states. The Court ruled 5-4 that it does, on the basis of the the Fourteenth Amendment’s Due Process Clause.

The more interesting opinion, perhaps, was that of Justice Thomas, who concurred separately with more than 50 pages. As Ilya Somin notes, the plurality used the Due Process Clause instead of the Privileges or Immunities Clause. Justice Thomas, however, did use the Privileges or Immunities Clause as justification, writing that “the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.”

Justice Thomas uses his opinion to explore the Fourteenth Amendment in some depth, addressing its history and application, and explaining his break from stare decisis in this case. In doing so, he attempts to correct the record on the meaning of the Fourteenth Amendment. Whether you agree or disagree with Justice Thomas, you should find his opinion worth reading and considering.

As for the impact of McDonald, Ilya Somin makes his predictions here.

Scott Brown Rejects Financial Overhaul, Forcing Another Conference

The Senate is looking for 60 votes on the Frank-Dodd financial bill, and Senator Scott Brown is so far not number 60. Senator Brown has sent a letter to Senator Dodd and Congressman Frank rejecting the bill in opposition to its $19 billion bank tax.

In response, Dodd and Frank will reconvene their conference committee, and Dodd says they will remove the bank tax from the legislation. What a difference that extra Republican vote makes.

What Is in Financial Reform Legislation?

Among all the other big news this week was the announcement that the House and Senate agreed on financial reform. That it will be called the Dodd-Frank bill, named after two of the chief proponents of subprime mortgages, is appropriate since it doesn’t seem to correct the subprime problem orchestrated by Fannie and Freddie.

CNNMoney has a summary of what is in the bill, expected to be voted on this week. At 2,000 pages, it’s a safe bet that many in Congress haven’t read the bill and won’t before voting on it. You know what they say about people who fail to learn history’s lessons.

UPDATE: Nicole Gelinas labels the proposal “rotten,” arguing that it would increase risk-taking and the potential for more bailouts.

Are Politics Getting in the Way of Stopping the Oil Spill?

An interesting post at Contentions suggests that the Obama administration is sacrificing opportunities to clean up the oil in favor of political interests:

According to Canada’s Financial Post (h/t Instapundit), the administration turned down an offer from the Dutch to send skimmer boats that are far better and more capable than the ones we have because the water they discharge back into the ocean doesn’t meet the regulatory requirement that it be 99.9985 percent pure. Skimmer boats in a disastrous oil spill, in other words, are subject to a rule intended for bilge pumps.

The administration eventually allowed some of the Dutch equipment to be used, but it didn’t allow the experienced Dutch crews to help. Such a move was likely due at least in part to labor unions that the Democrats want to protect. And the left wonders why Americans don’t want more politics involved in healthcare, energy, banks, etc.

UPDATE: Ed Morrissey reports on the A-Whale oil skimmer, which is also apparently being held up by regulatory hurdles. No, conservatives don’t oppose regulations in general, we just want efficient ones.

House Passes Contentious DISCLOSE Act

This week, the House passed the DISCLOSE Act, arguably in response to the Supreme Court’s decision in the Citizens United campaign finance case. The DISCLOSE Act is a somewhat Orwellian name for legislation that seems to impose restrictions on political speech that favor Democrat-leaning organizations.

You can read the bill here, and I especially suggest NRA members do so, considering the NRA was given an exemption for reportedly agreeing not to oppose the bill.

I read the bill, and I find it difficult to defend with a straight face. It’s pretty obvious what the object of this legislation is. We’ll see whether or not it can pass the Senate and would be considered constitutional.

NYT: Obama Probably Won’t Close Gitmo This Term

Saw this one coming from the beginning. The administration doesn’t want to admit it, and it wants to blame Congress for not allowing detainees to be moved to Illinois:

Stymied by political opposition and focused on competing priorities, the Obama administration has sidelined efforts to close the Guantánamo prison, making it unlikely that President Obama will fulfill his promise to close it before his term ends in 2013.

When the White House acknowledged last year that it would miss Mr. Obama’s initial January 2010 deadline for shutting the prison, it also declared that the detainees would eventually be moved to one in Illinois. But impediments to that plan have mounted in Congress, and the administration is doing little to overcome them.

Even though this was a Friday night news dump, underscoring how the administration didn’t want to admit it, it is welcome news.

House Caves on Medicare Physician Payments

It makes political sense that the House would pass the Medicare doctor payments that the Senate approved, despite Speaker Pelosi’s earlier rejection of that Senate measure.

There are two notes about this story. One, the payments are only good through November. Two, the jobs/stimulus bill to which the payments were originally tied is still failing in the Senate, meaning the Democrats are failing to use the Medicare fix to pass other spending items.

Obama Has More Needed Changes to Make in Afghanistan

When I wrote yesterday that replacing General McChrystal with General Petraeus was the right move, my main justification was the need to keep confidence in the management of the war, and the potential excuse for abandoning the withdrawal timeline. It should be noted, however, that both of those reasons have a lot to do with what I think is realistic based on what we know about Obama.

If I trusted that President Obama could manage the situation with McChrystal and if I thought he would relax his timeline in Afghanistan before it caused too much more damage, I would have concluded that the command change was the wrong move. President Obama, however, is thin-skinned, has shown poor management skills, and seems unlikely to anger his left-wing base with a full commitment to winning in Afghanistan. That is why I contend that the command change was the right decision. But, as I also stated, removing McChrystal is not sufficient.

There are two men who many are calling for to be fired or replaced. One is Ambassador Karl Eikenberry, and the other is the U.S. envoy to Afghanistan, Richard Holbrooke. As Fred Kaplan explains at Slate:

Still, canning McChrystal doesn’t end the dysfunctional disunity that has plagued the war effort for many months. The U.S. ambassador, Gen. Karl Eikenberry, is on record as stating that Afghan President Hamid Karzai is an unsuitable partner for a counterinsurgency campaign. He may be right—he almost certainly is right—but, since counterinsurgency cannot succeed without a suitable partner heading the national government, Eikenberry is in essence disagreeing with the policy. His relations with McChrystal were exacerbated by the fact that the two men are longtime rivals; but those personal animosities clouded a professional tension that is probably untenable. If U.S. policy isn’t going to change, Eikenberry, too, should go.

Richard Holbrooke should be sent packing, as well. He’s the U.S. envoy to Afghanistan and Pakistan, but after he screamed at Karzai at one of their meetings, he’s no longer welcome at the palace in Kabul. (It took a trip by Sen. John Kerry and 300 cups of tea to settle the Afghan president down.) Holbrooke would have been canned a while ago, were it not for special pleading by his immediate boss and longtime friend, Secretary of State Hillary Clinton. But, as Obama said today, “War is bigger than any one man or woman, whether a private, a general, or a president.” He should expand the list to include “a special envoy.”

Consider how President Obama explained his decision on McChrystal:

The conduct represented in the recently published article does not meet the standard that should be set by a commanding general. It undermines the civilian control of the military that is at the core of our democratic system. And it erodes the trust that’s necessary for our team to work together to achieve our objectives in Afghanistan.

…

It is also true that our democracy depends upon institutions that are stronger than individuals. That includes strict adherence to the military chain of command, and respect for civilian control over that chain of command. And that’s why, as Commander-in-Chief, I believe this decision is necessary to hold ourselves accountable to standards that are at the core of our democracy.

Second, I have a responsibility to do what is — whatever is necessary to succeed in Afghanistan, and in our broader effort to disrupt, dismantle, and defeat al Qaeda. I believe that this mission demands unity of effort across our alliance and across my national security team. And I don’t think that we can sustain that unity of effort and achieve our objectives in Afghanistan without making this change. That, too, has guided my decision.

[Emphasis mine]

If President Obama replaces General McChrystal because it undermines “trust” and “unity of effort,” then it would be difficult to explain why Eikenberry and Holbrooke should retain their positions. Not replacing them and not relaxing the withdrawal timeline would undermine any good that comes out of the command change. Therefore, Obama has some obvious steps to take in order to make his move worthwhile.

UPDATE: This WaPo column by Jackson Diehl is along the lines of my thinking. Obama is ultimately to blame, fairly or unfairly, for the internal problems that may be undermining our efforts in Afghanistan. I just don’t believe, however, that Obama could have handled the situation as it was without a change. To avoid “reward[ing] those in the administration who have been trying to undermine [McChrystal],” Obama needs to remove Eikenberry and Holbrooke as well.

UPDATE 2: Ed Morrissey posts on an apparent leak that Defense Secretary Gates was initially opposed to removing McChrystal, and then later acquiesced to Obama “as it became clear the White House didn’t feel same way and the issue was not going to fade”. If true, then I guess my opinion is in line with Gates’.

Afghanistan Command Change Is the Right Move

I have to agree with the editors of National Review that General McChrystal is not the problem, and I hoped that President Obama would offer McChrystal every opportunity to stay in command. When Obama announced, however, that McChrystal will be replaced by General David Petraeus, I concluded that this was the right move.

There are two main reasons, I think, that make this the best option in what was a difficult situation for Obama. First, Obama needed to avoid the perception that he had lost control of the war. Allowing such a perception would undermine our credibility, making it difficult to win a counterinsurgency that relies on us being the strong horse in Afghanistan, and it would weaken Obama’s presidency. While it is true that Obama’s team is thin-skinned, the need to keep a strong image in this war is legitimate.

The other reason that Obama may have made this move, and one that I would support, is that he may be angling to allow himself a way out of his withdrawal timeline. Considering Obama has not prematurely withdrawn from Iraq and has not closed Gitmo as he promised he would, there is a good reason to believe he will not leave Afghanistan too early either. A major change of command could provide Obama with some cushion if he decides to loosen the timeline. If Petraeus begins pushing against that timeline, or even asking for more troops, Obama would have an excuse to disappoint his anti-war base. With Senator McCain saying Republicans will use the Petraeus confirmation hearing to question the timeline, that discussion could heat up.

Those two reasons and a few others are why I think the positives outweigh the negatives of this decision. It helps that Petraeus has a reputation of success with his counterinsurgency efforts in Iraq. His selection may minimize concern for and lack of confidence in the mission, both of which may have been building with the perceived disagreement between Obama and McChrystal (which goes back before the Rolling Stone article to last year’s debate on the Afghanistan strategy). Petraeus also has experience with the Afghanistan and Pakistan leaderships, which is one source of concern about removing McChrystal.

That said, it’s necessary to point out the irony of putting Petraeus directly in charge of the Afghanistan counterinsurgency. Remember 2007?

What about that “General Betray Us” ad?

The resolution condemning the ad was sponsored by conservative Republican John Cornyn of Texas. Voting against it were Democratic presidential hopefuls Sen. Hillary Rodham Clinton of New York and Christopher Dodd of Connecticut.

Sen. Barack Obama of Illinois, another contender for the Democratic nomination, did not vote, although he voted minutes earlier for an alternative resolution by Sen. Barbara Boxer, D-Calif. That resolution condemned the MoveOn ad as an “unwarranted personal attack,” but also condemned political attack ads that questioned the patriotism of Sen. John Kerry, D-Mass., and former Sen. Max Cleland, D-Ga., both Vietnam veterans.

Despite all the history, there is reason to believe that Petraeus can lead a successful effort. Where perhaps General McChyrstal was not great at the political game, General Petraeus is (and those 2007 hearings show that). Obama may find that Petraeus is better at politics than he is, and that might actually help in the long run if that skill enables Petraeus to handle the internal problems that Obama’s administration clearly has.

All that said, it should be reiterated that McChrystal was not the problem. The administration needs to make some other personnel changes in relation to this war, and Obama needs to at least let up on his withdrawal timeline.

UPDATE: Thomas P.M. Barnett also thinks that the appointment of Petraeus could mean the end of the strict withdrawal timeline. Charles Krauthammer believes that timeline is hamstringing the effort.

Federal Judge Lifts Drilling Ban

The Obama administration will seek a stay on the ruling pending appeal, but the ruling is rather embarrassing for the federal government. Considering the experts did not endorse a ban on existing drilling, however, the moratorium was a silly move that was clearly based on politics.

The logic used by the judge is the same many must have been considering since the ban: How does a failure of one rig suggest significant enough risk in all other similar rigs to shut them down? When you also consider the economic implications of the moratorium, it seems like the reaction was disproportionate to the risk. That is not to say, however, that the risk is not significant in other rigs, but without the evidence, it is difficult to make that case.