Updated: Justice Stephen Breyer's View of the 2nd Amendment

Here is a 13-minute, Fox News Sunday interview with US Supreme Court Justice Stephen Breyer. Justice Breyer is promoting his latest book. Such interviews are rare and Breyer discusses his view of the proper method of Constitution interpretation. Breyer's defense of his dissent from Heller is classic. He begins by claiming that Madison was compelled to included the 2nd Amendment in 1789--after the Constitution was already ratified--because his opponents would call up the state militias and nationalize them. Next he claims that the majority of historians support his view. The intellectual dishonesty of the man is chilling. This is a must see.







If you think his claims regarding Madison's objectives for the 2nd Amendment are accurate, please read 'Why DC's Gun Law is Unconstitutional'

02/24/2011 Update:  David Young’s outstanding rebuttal above provides a high level review of the critical events during the ratification of the Bill of Rights, but it is of necessity somewhat short on specific references. I therefore thought to do some of my own research into the specific issue of Madison’s intent when he introduced the Bill of Rights in the first Congress. Based on Young’s clues, I easily found a supporting source. In ‘The Bill of Rights: A Documentary History, Volume II’, (Bernard Schwartz, 1971, Chelsea House,) beginning on page 764, Schwartz writes that

[During the Virginia State Ratifying Convention, on June 25, 1788, after the Federalists had defeated Patrick Henry’s effort to require modifications and amendments before ratification, the delegates voted to ratify and recommend amendments after the fact.] The next day, a committee was appointed to prepare and report such amendments as by them shall be deemed necessary, to be recommended. Both [George] Mason and [Patrick] Henry were placed on the drafting committee (along with [James] Madison, [John] Marshall, and [George] Wythe) and were able to secure the origin Henry proposals, though only by way of recommendation for subsequent amendments. On June 27, the committee reported a proposed federal Declaration or Bill of Rights of 20 articles to be added to the Constitution, as well as 20 other amendments to the constitutional text. The Convention agreed to the committee report, and enjoined “it upon their representatives [Madison, of course, was one] in Congress to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the foregoing alterations and provisions.”

(page 842) The 17th item of Virginia’s  proposed ‘federal Declaration of Bill of Rights’  is

17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper , natural, and safe defense of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

 It clearly indicates an individual right. In addition, it is highly unlikely to me that Madison—who sat on the drafting committee—would allow such a clear declaration to be included in the committee report if he was against it. It is also inconceivable to me that Madison’s sole concern in proposing the Bill of Rights was in regard to threats of militia nationalization, given that he had specific guidance from the convention  ‘to exert all [his] influence, and use all reasonable and legal methods, to obtain a ratification of the foregoing alterations and provisions’ which included a clear individual right to keep and bear arms.

Florida's High Speed Rail: The case of California

California's High Speed Rail (HSR) is in trouble. Since we are about to embark on our own HSR project here in Florida, a good question for Floridians to ask is 'are there any lessons that can be drawn for the proposed Tampa-Orlando HSR?' Several recent studies seem to indicate that there are.

The California project is for a HSR line from San Francisco to Los Angeles. In 2008, California voters approved a $9 billion bond issue which was based on an estimated cost of $33 billion. The $33 billion was based on a business plan that was release in November 2008 by the California High Speed Rail Authority. A few months earlier, in September 2008 the Reason Foundation had released ‘The California High Speed Rail Proposal: A Due Diligence Report.’

The Reason study identified at least two major deficiencies in the numbers that were given to the voters: Estimated construction costs and ridership projections. Reason estimated construction costs at $65-81 billion. Likewise it concluded that the CHSRA ridership numbers were wildly over estimated: Reason's numbers were over 60% below the figures of the CHSRA. If Reason was right, the cost to California taxpayers would more than double for initial construction alone. Ridership projections would not come even close to paying for the ongoing operations and maintenance (O&M) costs. The Reason estimates were based on comparisons to real-world completed or ongoing HSR projects around the world. If they were correct, California taxpayers would, of course, be stuck with the bills not just for up-front construction overruns, but the O&M costs for years to come. (The US Defense Department routinely uses 70% as the O&M portion of the 'lifetime' cost of any generic project.) According to the Reason study

 'Any failure to meet the Rail Authority's lofty ridership projections would force ticket-price increases, further cutting ridership, or require taxpayer subsidies to cover the financial shortfall, adding to future budget deficits. The due diligence report finds "the San Francisco-Los Angeles line alone by 2030 would suffer annual financial losses of up to $4.17 billion." '

 After the ballot issue passed, a skeptical California legislature demanded a more in-depth cost analysis. In December 2009 the newly released CHSRA business plan raised the estimated construction costs to $43 billion and required higher fares.

In 2010, the California legislature again required an updated business plan by February 2011, which has since been delayed. On February 4, 2011,  Californians Advocating Responsible Rail Design (CARRD)--a group which describes itself as citizens who

 'value transparency, accountability and oversight and believe local communities should be partners in designing transportation projects. We work to ensure that the public's interests are upheld and that all facets of the California High Speed Rail project follow both the spirit and letter of the law.'

 released a statement which indicated that 'Our analysis, based solely on official and publicly available Authority documents, determines the current project costs are approximately $65 billion.' The CARRD construction estimate aligns with the bottom end of the 2008 Reason Foundation estimate. The ridership estimates have not yet been addressed by any other outside agencies, but since according to the Reason Foundation the estimate is so egregious that

'It appears that the CHSRA 2030 ridership projections are absurdly high—so much so that they could well rank among the most unrealistic projections produced for a major transport project anywhere in the world. Under a passenger-mile per route-mile standard, the CHSRA is projecting higher passenger use of the California system than is found on the Japanese and French HSR networks despite the fact that these countries have conditions that are far more favorable to the use of HSR.'

 It is therefore highly likely that those estimates, too, will be 'revised.'

On January 11th 2011, the Reason Foundation released a study of the Tampa-Orlando HSR project. By far, it is a much smaller project. The official estimated costs for initial construction are $2.7 billion, of which Federal taxpayers will pay $2.4 billion. Beyond that, day-to-day operations and maintenance--as well as any construction cost overruns--will be paid for by Florida taxpayers. The Reason study identified for the Florida HSR project the same two areas--initial construction costs and ridership--as areas of risk:

 1. Capital Cost Escalation: If construction cost projections prove overly optimistic, costs could increase substantially from the current estimates. The state of Florida would be responsible for virtually all of any such increase. This report estimates that the cost to Florida taxpayers could be $3 billion more than currently projected.

2. Operating Subsidy Liability: If ridership and revenue projections prove overly optimistic, it could become necessary for the state to provide an annual operating subsidy for the service. A state operating subsidy could also be necessitated by operating costs that are greater than projected. This risk could easily run into the hundreds of millions of dollars per year.

 When Reason directly compared the construction costs of the California and Florida projects, adjusting for variations and using the figures from the 2009 CHSRA estimate of approximately $43 billion, it found 'the California project to be 111 percent more costly per mile than the Tampa to Orlando project ($67.8 million per mile compared to the projected $32.1 million per mile in Florida). This difference could indicate that the capital cost projection for the Tampa to Orlando high-speed rail project is exceedingly optimistic.' If California per mile cost is applied to the Tampa-Orlando project, the overall construction cost would rise to $5.7 billion--raising the cost to Florida taxpayers from approximately $300 million to $3.3 billion. And if Florida cancels the project after construction begins--say because of massive cost overruns--Floridians could be required to repay the Federal grants: $2.4 billion.

In general, the ongoing operations and maintenance costs are harder to predict, but the major element which determines if a project pays for itself is ridership. If actual revenue from passenger fares equal or exceed operations and maintenance costs no taxpayer subsidies will be needed. Ridership however is driven by the attractiveness of HSR as an alternative to other means of transportation. The Reason study determined that travel by the Tampa-Orlando HSR will take longer and cost more than travel by car, making it much less attractive to travelers and jeopardizing the ridership projections of the Florida Rail Enterprise. Given that historically ‘projected ridership on passenger rail projects averaged 65 percent above actual patronage,’ Reason estimated that Florida taxpayers could be faced with a bill for

‘operating losses of approximately $300 million in its first 10 years of operation (2015 through 2024). The system would not produce a profit for its first 23 years of operation (2015 through 2037), with accumulated losses of approximately $575 million.’

California is charging ahead with its HSR project since getting the bulk of Federal funding from the cancelled projects in Ohio and Wisconsin. Only time will tell, but given that historically construction costs have been massively underestimated and projected ridership has been massively overestimated—combined with the potential Federal bill of $2.4 billion if we choose to cancel the project due to significant cost increases—Floridians might want to ask Governor Scott to follow the lead of Ohio and Wisconsin and tell the Federal Government, ‘Thanks, but no thanks.’

Signs: alBraradei and the National Association for Change

This is post two in my effort to trace the roots of all those professionally produced signs in the 'spontaneous' US demonstrations supporting ‘true democracy' and 'social justice' in Egypt. If you haven't seen the original post, go here (it's short.)
To sum up the story so far, I was able to find three organizations, ANSWER Coalition (AC), International Action Center (IAC), and the Egyptian Association for Change (EAC) which is part of Mohamed ElBaradei’s National Association for Change (NAC) that produced signs for the first US demonstrations. You can read about the radical and Marxist ties for AC and IAC here and here.
The EAC presents a different issue since it is both logical and understandable that it would support the recent uprising in Egypt. Its website uses no Marxist/Progressive code language; it freely admits its loose affiliation with the NAC, as well as its support for the seven points of reform that the NAC espouses (see translation below). To dig a bit deeper, I looked at alBaradei’s National Association for Change which is an Egyptian/international organization.

It is likewise understandable that Dr. alBaradei's NAC would support him. AlBaradei has presented himself to Egypt and the world as the alternative to Mubarak for well over a year. He has pointed out that changes to current Egyptian election laws must be implemented before he could even run for election. In light of the fact that there is no viable opposition party in Egypt--and that Mubarak and his puppet 'National Democratic Party' have done everything to include amending the Egyptian Constitution to insure that there is no opposition--an Egyptian of alBaradei's international standing may be the only hope that Egypt has at this point.
A lot has been made of  the fact that alBaradei has had a longstanding discourse with the Moslem Brotherhood. For a person who has been essentially out of the country for nearly 30 years--with political ambitions in Egypt--it to be expected that he would 'cozy up' to the only influential political force in Egypt not aligned with Mubarak. At one time (2005), the Moslem Brotherhood held about 17% of the seats in the Egyptian Parliament. That is, until Mubarak decided they were getting too powerful. And considering the stated goals of the Moslem Brotherhood, Mubarak’s action might have been justifiable.
The Ikhwaan (the brothers), as the Moslem Brotherhood is named in Arabic, in an international organization of Islamists/Salafists which was founded in 1928 in Egypt. Many of the Islamic organizations throughout the world today are simply fronts which present a civilized face--that includes here in the United States--but few experts doubt their objective remains an Islamic Caliphate based on Sharia'a law.  The Council for American-Islamic Relations (CAIR) has deep ties to Hamas, a well know Moslem Brotherhood group. In Egypt, the Moslem Brotherhood provides huge amounts of public aide directly to those who need it most. It is a proven method to gain grassroots support and has been used all over the Middle East, most recently by Hezbollah in Lebanon. The Moslem Brotherhood pioneered this method of coalition building at the grassroots level. So, although it us understandable that alBaradei would approach the only organized, politically powerful group in Egypt besides Mubarak's NDP, it is still cause for concern.
alBaradei's National Association for Change was established to build local and international support (coalitions) and leverage the internet and social networking. It is an international organization, and alBaradei's announcement on its Arabic-only homepage lays out its background and goals (this is my 'gist' translation only. I probably made numerous mistakes as it has been nearly 14 years since I even so much as looked at Arabic. A screen shot of the original homepage is below) :

Statement by Dr alBaradei, "Together We Will Change":
In the light of my meetings with all the various Egyptian political affiliations, religious men and women, and representatives of the general society and the young, I was touched by an almost unanimous need for change in Egypt. There was broad agreement on the need to unite all the voices calling for change under a National Association. They requested I be in the forefront and stand with them to ensure that the general framework of the association represents the whole range of calls for change.The main objective of the association is working to reach a political system based on true democracy and social justice. The first step on this road is to ensure basic guarantees for free and fair elections, whether legislative or presidential, elections which include all Egyptians and where there is equal opportunity for all. This will provide the safeguards and procedures which have been demanded by a broad spectrum of Egyptian society for many years, particularly:
1. End the state of emergency.
2. To enable the Egyptian judiciary to supervise the full electoral process as a whole.
3. Control of the election by local and international civil society organizations.
4. To provide equal opportunity/access in/to the media for all candidates, especially in presidential elections.
5. To enable Egyptians abroad to exercise their right to vote in embassies and consulates.
6. To ensure the right to stand in the presidential election without arbitrary restrictions in line with Egypt's obligations under the International Convention for Civil and Political Rights, and to limit the right to run for the presidency to two terms.
7. Elections by national number.
In order to attain some of these procedures and safeguards to amend articles 76, 77 and 88 of the Constitution as soon as possible.
I would like to emphasize in this regard that the doors of the "National Assembly for Change" are open to all Egyptians inside and outside Egypt who agree with the need to change starting with the achievement of the safeguards and procedures described, to calling special elections, to a new constitution that guarantees every Egyptian has the right to a dignified life, to beginning a comprehensive program of social and economic reform so that in the end it is the people who are the ultimate rulers.
Indeed, because the main goals of this association is not limited to changing the rules of running for president, or even who would run in the election; but because it is a quest to change the overall system by mobilizing popular support in a peaceful manner, that I have chosen Dr. Hassan Nafia, Professor of Political Science at Cairo University, to be the overall coordinator of the association. "Together We Will Change"

With the exception of the references to 'true democracy and social justice' there is little in this statement and these goals with which one could argue. And the goal of 'true democracy' in the case of Egypt--a titular democracy at best--is realistic and laudable goal. But as the day-to-day leader tends to define an organization, I looked into Dr. Hassan Nafia (Nafea). Nafia appears to be politically active and a somewhat old-school Arab Nationalist who cares about his country. He has expressed mildly pro-Syrian/anti-American sentiments about the rule of the democratic Syrian despot Bashar Assad, but has also irritated the anti-government forces in Sudan. If you want to get a better feel for him, he was interviewed by al-Jazeera in February 2010 regarding alBaradei. The whole video is easily worth watching. There is an article in an Egyptian newspaper, also from February 2010, on the 'activists' welcoming alBaradei at Cairo airport. Please notice two things; how little harassment there appears to be of these political activists who are blatantly showing their allegiance to alBaradei over a year ago; and please also notice how professional the signs are?