"How many of you all believe that there is a movement to take away the Second Amendment?"

Democratic Senator Joe Manchin asked a group of his supporters back home in West Virginia.

About half the hands in the room went up.

Despite his best attempts to reassure them — “I see no movement, no talk, no bills, no nothing” — they remained skeptical. “We give up our rights one piece at a time,” a banker named Charlie Houck told the senator.

That's the anecdote that leads off the NYT article "Democrats in Senate Confront Doubts at Home on Gun Laws." The article ends:

During the lunch, Mr. Manchin shared a recent conversation he had with Vice President Joseph R. Biden Jr., the Obama administration’s point person on gun control.

“I said, ‘Mr. Vice President, with all due respect, I don’t know how many people who truly believe that you would fight to protect their rights.’ ”

The senator added, “That’s what we’re dealing with.”

How are we to think about rights? It's good for politicians to hear the deeply engrained American attitude: We give up our rights one piece at a time. There's a long tradition — predating the Bill of Rights — of thinking like that. Here's James Madison in 1785:

[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it.

The issue there was not guns but the use of tax money to pay for teachers of religion. In the paragraph quoted above, Madison went on to say that citizens should object to the requirement of paying even "three pence" to support a religion because a government that extracts even that trifle may go on to coerce religious conformity. The small things are not small. The small things are where the people still have the capacity to fight authoritarian government.

Democrats know this. They are part of this American culture of deeply engrained belief in constitutional rights. What is different to the Democrats is that they don't believe that the right to keep and bear arms is a constitutional right. They think the Supreme Court misinterpreted the Second Amendment when it found a constitutional right. District of Columbia v. Heller was a 5 to 4 decision, and the 5 are the 5 Justices, still on the Court, whom the Democratic Senators would love to have a chance to replace.

The NYT portrays the folks back home in West Virginia as misinformed, troublesome, and hysterical. That’s what we’re dealing with.

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Does lifting the combat ban for women make it easier or harder to reintroduce the military draft?

Here's a story explaining the new policy change and why it was done.

In the military, serving in combat positions like the infantry remains crucial to career advancement. Women have long said that by not recognizing their real service, the military has unfairly held them back.

No mention of the draft. When I first saw this story, I assumed it meant that it would be much more difficult, in the future, to bring back the draft. I cannot believe that the people would accept forcing women into combat. But now I'm thinking that removing this barrier makes it easier to restore the draft, because women won't really be forced into combat. With neutrally designed physical tests, no woman will be forced. These tests, keyed to what strong men can do, will exclude all but the most fit and motivated woman.

You don't need discrimination against women to filter out all the non-volunteers. And it will be more acceptable to Americans to force men and women into an institution that renounces any formal, express policy of sex discrimination. A male-only draft would raise objections, and a draft that includes women, but puts them in back up positions should be a problem both for women, because they are subordinated, and to men, because they are, because of their sex, more likely to be put in life-threatening positions.

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I've been thinking about this problem quite a bit over the years as I teach the old Supreme Court case Rostker v. Goldberg, which involved a challenge to the requirement, introduced in 1980, that males register for the draft. The draft itself had ended in 1973, but President Carter thought we should be prepared for the possibility of a draft. He wanted to include both women and men, but Congress made it male only, which was challenged as unconstitutional sex discrimination. The fact that only men would be used in combat was the basis for upholding the discrimination:

In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them.

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40 years ago today, the Supreme Court issued its opinion in Roe v. Wade.

Justice Blackmun wrote:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however... the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment.... or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.... These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty"...  are included in this guarantee of personal privacy....

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Was the state's interest in protecting the unborn child sufficient to permit some regulation? The answer was yes, but not before the "viability" of the unborn. As to whether the killing of that pre-viable entity ought to be seen as the killing of a human being, justifying rescue by the state, the Court refused "to endorse any theory that life, as we recognize it, begins before live birth," since "those trained in... medicine, philosophy, and theology are unable to arrive at any consensus."

Pre-viability, the decision whether to continue with a pregnancy would rest with the woman within whose body the mysterious process was taking place, and it would not be the role of the state to make that decision for her, no matter how firmly the majority of the people believe they have solved the mystery and they know that what she is doing is murdering a child.

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Sotomayor, the college years.

One slide in a long, narrated slideshow at NPR.com. I picked that one out because it's so different from the others and from every other photo I've ever seen of Sotomayor. NPR did the article to go with Justice Sotomayor's new autobiography, "My Beloved World."

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"How likely is it Antonin Scalia will die in the next four years?"

Asks Slate jauntily, offering what it calls "The Supreme Court Justice Death Calculator."

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"I haven't been a black conservative since 1995..."

Glenn Loury talks about people he's known for 40 years who won't say hello, who won't look him in the eye because he USED TO BE a black conservative. USED TO BE! John McWhorter talks about those who think "it would be wrong to even print my name. They think of me as Satan. And that's just how it's been."



Much later in the diavlog, Loury and McWhorter weigh in on the affirmative action case that's pending in the Supreme Court. "Would you think it was a good thing if the Supreme Court outlawed racial preferences as we knew them?" McWhorter takes the "not nuanced" position that racial preferences should be proclaimed "obsolete." (Loury disagrees.)

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"But what 'borking' really amounted to was holding the nominee’s vigorously expressed views up to the light for public inspection."

Says Linda Greenhouse:

In five days of testimony, then-Judge Bork – a former professor of mine whom I liked and respected – had every opportunity to make his case. His ideas were fully aired and considered. By a vote of 58 to 42, the senators, having heard from their constituents, concluded that his constricted constitutional vision, locked into the supposed “original intention” of the framers, was not what the country needed or wanted....

... Robert Bork couldn’t accept the legitimacy of his defeat.... Judge Bork was hardly unique in his sense of entitlement, but it ran so deep that it prevented him from understanding the obvious dynamic of what happened. Because he had been nominated to fill the “swing seat” vacated by Justice Lewis F. Powell Jr., a moderate conservative whose retirement left nearly every issue of constitutional moment hanging in the balance, his nomination became a public referendum on whether the court should move decisively to the right or stay basically the same. The status quo won out.

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