Late Afternoon Links

Sasse Christmas 2015Just a few links for this late Tuesday afternoon…

  • The Donald is coming to Council Bluffs’ Mid America Center next Tuesday, 12/29! Click here to get free tickets (though it’s not clear if you actually need them). Doors open at 4:30pm for the 6:30pm event.
  • Senator Ben Sasse gets top billing from the New York Times for his Christmas card. (Is that a Husker shirt on the cat?)
  • A very nice critique by NRO’s Charles Cooke of CBS Sports broadcaster Doug Gottlieb, who seems to think the Bill of Rights (and that pesky 2nd Amendment) aren’t REALLY a part of the Constitution. And a brief, clear discussion on how the Bill of Rights came to be and why.

More tomorrow!

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  1. repenting lawyer says:

    Sweeper, if anti federalists wanted clarity they must be very disappointed. The 2nd Amendment has been reread by the Robert’s Court in a 5-4 holding which treats it as free standing when it is arguably aimed at limiting the regulation of the militia under powers Congress already have, which would make it irrelevant to the States. Establishment Clause cases are a mess and Thomas has a very idiosyncratic interpretation of his own, Free Exercise is hardly transparent, Court changed its approach by narrowing and now ACA birth control cases are being decided under a statute that reinstitute old test but only as a statutory limitation on Congress. Free Speech and Free Press rather assume already known rights but who knows what they were 9th seems assume a natural rights theory of other rights but even Douglas did not go there. Doubt you could sell Patrick Henry on the idea money is speech. Clarity is in eye of beholder, and one person’s clarity is another’s misconstruction. History might eliminate some arguable meanings, but mostly is a plaything for lawyers not trained in history who create law office history. But then some still debate merit of the Legal Tender Case, while American reject dollar coins.

    • Anonymous says:


      In a 5-4 vote the Kennedy Court found in the 14th Amndment a right to same sex marriage in every state that was unthinkable at common law and was prohibited by the constitutions of many states.

      • repenting lawyer says:

        Anonymous, A common law of marriage, though it was cannon law of the Church of England, which is why its practitioners were at Doctors’ Commons, but that is a quibble. What we are given by the Constitution is not clarity but debate, which is why I am no particular fan of judicial activism, but activism we have in spades under the pretense of mere reading. As long as that is the game, I am much more content with same sex marriage case than a lot of others.

    • Professor,
      I get that nearly any decision can be changed on the differentiation of, “but that was decided on a Tuesday. TODAY is Wednesday.”
      But Gottleib wasn’t arguing the merits of the 2nd Amendment — simply whether an “amendment is really part of the constitution.” Think anyone, especially a sports reporter, would ever try to make that argument regarding the 13th Amendment?
      Nonetheless, the article gives a nice history of the Bill of Rights.

      • repenting lawyer says:

        Sweeper, Agree about note from NR, just being old and grumpy. Never surprised by odd ideas people have about Constitution.

      • repenting lawyer says:

        GK, The militia is what was abolished by the National Guard Act. They were State based under Federal standards. Members enrolled and trained on a regular basis and then dealt with military matters like Indian wars or fed service in time of war. Failure to join was a regular complain, though in theory all males of certain ages should.

      • Joe Bob says:

        The U.S. Code says:

        (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

        (b) The classes of the militia are–
        (1) the organized militia, which consists of the National Guard and the Naval Militia; and
        (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

        10 U.S.C. 311

      • repenting lawyer says:

        JoeBob, the unorganized militia is a meaningless bow to history. The Guard is the replacement. Do you go to the drive in or was that another guy?

      • The Grundle King says:


        If the unorganized militia is a “meaningless bow to history”, then why was I required to register for Selective Service, lest I be told “No” should I request access to much of the vast array of government benefits my tax dollars pay for?

    • Anonymous says:

      LUV your examples, repenting lawyer. Haven’t had so much fun here at L St. since your arrived. Lots believe lots ‘O nonsense about the Constitution. But you clean it all up.

      • repenting lawyer says:

        Trundle King, You question was about militia in 2nd Amendment. The meaninglessness of unorganized militia is that when extra forces are needed we use the draft, have since the Civil War. Selective service registration when the draft is operative is enforced by jail usually at the failure to report stage.
        Incidentally even fans of a living Constitution would not use a 1903 statute to define militia in 2nd Am.

      • The Grundle King says:

        I would be willing to chalk up the whole ‘Trundle King’ to a typo, seeing as the keys are right next to each other…but I’m more inclined to believe that it was an intentional swipe out of pure immaturity (because words are important for lawyers, wouldn’t you agree?).

        Now, on to your comment. I asked you what the militia is, and you responded that it no longer exists. I contend that it does exist yet today…though perhaps in a different form as what existed at the time our founding fathers. Regardless, the militia are those among us who are able-bodied enough to serve in combat, but who are not enrolled in the standing military. That encompasses a whole lot of people.

        Not that any of that matters, though. After all, the 2nd Amendment says the right of “the people” to keep and bear arms shall not be infringed. It does not say “the militia”, “the military”, or “the government”. I just wonder what twisted thought process leads a person to believe that the 2nd Amendment is the only amendment in the Bill of Rights that grants power to the federal government, rather than protecting the natural rights of the people and/or reserving power for the states.

      • repenting lawyer says:

        Grundle King, No slight was intended. The computer did it. Congress is granted power to regulate militia in original Constitution. The 2nd ,Amendment limits that power on the traditional reading to prevent total disarming of organized militia not to create personal rights. My problem is with SCOTUS suddenly adopted the alternate reading only recently instead leaving issue to political process. A natural right to guns is undoubtedly a successor to the natural right to clubs of the cave men and evolves as weapons evolve in our living Constitution.
        I have aged out of the unorganized militia, but I still think you are confusing it with the draft.

      • The Grundle King says:

        And what is the draft? It’s little more than the way that Congress organizes the unorganized militia. For if the unorganized militia tries to organize independently, they’re put on a terror watch list and condemned by the masses as being anti-government at best, and treasonous at worst.

      • repenting lawyer says:

        Grundle King, Slight problem under your theory, traditional militia, 2nd Amendment, was a collection of State entities that could be called into federal service, your notion of unorganized militia as a protodraft, even if correct, is a federal entity. Congratulation to 1903 Congress which knew about terror watch lists.

      • The Grundle King says:

        You certainly display your chops as a lawyer well…”militia” means only what existed at the time of the implementation of Bill of Rights. Similarly, does “arms” also mean only what existed at the time the Bill of Rights was implemented? In this modern era, a “militia” (were it to exist) could only consist of men armed with muskets…correct? Heaven knows that the Kentucky long rifle is just far too deadly to allow in hands of the common man. And no bayonets…lest they be labeled ‘assault muskets’.

        Focus on the minutiae, ignore the bigger picture…the founding fathers believed in an armed populace for the purposes of defending America from foreign enemies, and from domestic tyranny. That’s not my opinion, that’s from their own words.

      • repenting lawyer says:

        Grundel King, National Guard and Reserve are armed with modern weapons, and Guard has bravely served in long MidEastern War. Founders believed in armed population, probably through well organized militia of the time with State provided weapons, though 2nd Amendment is no model of clarity and its history isn’t either. Given the tendency of the militia to disappear, though it did well against Spain, we are much better off with our standing army, “They are regulars by God,” a British Commander noted during the War of 1812. At New Orleans in a defensive posture militia did well, their problem was they were not good at attack. It was that history that led to the Guard.

      • The Grundle King says:

        The National Guard is in no way ‘militia’, as they effectively function as yet another branch of the standing military.

      • repenting lawyer says:

        GrundleKing, That is my point there is no well regulated militia any more, though a few States may have State Militias. The unorganized militia is not well regulated and is Federal, draftees in waiting on your theory.Thank you for your agreement.

  2. Anonymous says:

    Doug Gottlieb got run out of Notre Dame for credit card theft and when he played for Oklahoma State against Creighton, the Creighton students rode him the whole game. It was one of his worst games ever. To make matters worse, his dad was at the game as a former Eddie Sutton assistant.

  3. Bluejay says:

    Polygamy by 2020.

    We must accommodate all of those refugees from Syria.

    Islam will dominate the world. The crazy thing? We could be free on our dependence on them for oil but the Greens and Jane Kleeb won’t allow it.

    And what is the Muslim equivalent to Creighton? And can that school play basketball?


  4. Politician of the Year says:

    The politician of the year should go to John Sieler. Who else could pull off a red sweater vest in the middle of summer?

  5. Bluejay says:

    Sparkles and RL:

    What does the law review literature say about polygamy?

    Love is love so is there anything wrong with Muslim love?

    Is two a magic number?

    Will ISIS cut off Scalia’s head if he dissents?

    Merry Christmas!

    • repenting lawyer says:

      Blue Jay, There is a case in fed ct in Utah challenging criminal law against polygamy, whose adoption was a condition to Utah joining the Union. Most polygamy in US is from Mormon groups who use the welfare system to support the multiple families. Few Muslims anywhere practice polygamy, it is too expensive. Truth is in America we practice serial polygamy and 2 has stopped being a magic number.
      Merry Christmas back at you.

      • repenting lawyer says:

        Christmas Eve Anonymous, Thought Clinton emasculated welfare, not sure how AZ Mormon fundamentalist operated, think they moved to Canada.

  6. Pol of the year says:

    It has to be McCollister. He was able to dress and talk like a Repulican well after Halloween. What a great costume.

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