IS KAEPERNICK RIGHT?

Colin Kaepernick is free to do whatever he wants during the national anthem.  If he wants to assume yoga poses and salute the flag with a middle finger instead of an entire hand, that is his legal right.  But his employer, the 49ers, is free to penalize him however it wants, subject to the terms of his employment contract.  That is their legal right.  Free country, free speech, free markets.  Employers cannot fire you for being black, brown, yellow, female, Jewish, gay, or old, but they most certainly can fire you for violating the terms of your contract.  End of legal discussion.

On the merits, the Kaepernick protest does not appear to signal anger against the NFL (which employs more black players than white ones) or his team.  Apparently Mr. Kaepernick’s disdain for the national-anthem ritual is intended to signal that he is not proud of his country, because he does not like the way black people are treated here. Remind you of anyone?

Is America sufficiently flawed to merit this kind of insult?  That is a matter of opinion, but there is an irresistible temptation to say, OK, what other country on earth would come closer to satisfying you?  And if there is such a country, why are you still here?  If your plan is to stay here and fix America, the only part of your plan that makes any sense is your pledge to donate a million dollars to community organizations, though it might be more impressive if you paid the money today – and if it turned out that Acorn is not your model of a community organization.  Have you considered that you could honor your nation while working to improve it?

If Kaepernick’s behavior inspires similar protests by other professional athletes, it will pose a dilemma for the various leagues and associations that set the rules for player contracts and standards of conduct.  Will sports become yet another part of our culture in which participants and fans will be required to take sides, that we will become even further divided on matters of social mores or political correctness?

 

A Revolutionary Approach to the Second Amendment

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

So reads the Second Amendment, which is a hot political topic.  What does that sentence mean?  Let’s begin with the meaning of the first thirteen words, referred to in Justice Scalia’s majority opinion in the famous Heller case as the “prefatory clause.” (As distinct from the rest of the sentence, which Scalia referred to as the “operative clause.”)   What is a Militia?  Why recite the necessity of a Militia? What’s up with the first comma?   What is the meaning of “the security of a free State?”  What is the meaning of “keep and bear arms?” (It is translated by Scalia as “have weapons.)   Does the prefatory wording establish the sole purpose for which arms may be kept and borne, or does it mean,  “Here is the primary purpose, but not the only purpose, for which arms may be kept and borne?”

The essence of the Scalia opinion is that the prefatory clause is a reason, perhaps even the principal reason, for establishing the right to keep and bear arms, but it is not the sole reason. Per Scalia, once the Framers had granted the right to keep and bear arms, it would have been senseless for them to go on to say, By the way, we did not mean that literally, we meant that arms may only be kept or borne for “the security of a free state.” Would the Framers have been comfortable allowing the States to ban the bearing of arms for the defense and protection of a citizen’s family from an armed attacker or for hunting for one’s dinner?

The essence of the dissents to the Scalia opinion is that the prefatory clause should be read as a limitation of the scope of the objective clause.  They read the sentence to mean that we are entitled to maintain an armed force to defend ourselves in case we are threatened or attacked by an enemy, but that is the only purpose for which arms may be kept or borne.

This writer acknowledges that the majority opinion makes more sense to him, as a matter of grammar and syntax and logic, than the dissents, but that is not the point of this essay.  The point is to address the meanings of certain other words or phrases of the amendment: “militia,” and “the security of a free state.”

Militia.  Both Scalia and the dissenters seem to think of a militia as an armed force established by a governmental unit – such as our colonial militias (which eventually matured into state militias), or a standing force of the federal government (the regular army, navy, etc) or a state (the national guards).  But “militia” can have more meanings than those given it by the Court. Here is another common meaning, from a popular dictionary: “a military force that engages in rebel or terrorist activities, typically in opposition to a regular army.”

The security of a free state.  No one, neither the majority nor the dissenters, pays much attention to the phrase, “the security of a free State.”  They all appear to take it to mean, national defense  – i.e.,  a defense against foreign countries that might go to war against the United States (a free state).  It does not appear that the Court felt it had any reason to think about a Militia like the Colonial militias, formed in order to resist a denial of their freedoms by their own government (the British Crown) – a resistance for the purpose of restoring “the security of a free state.” No Justice paid any attention to the possibility that “state” was being used by the Framers in the sense of the primary definition of the word: “the particular condition that someone or something is in at a specific time,” as distinct from its secondary definition, “a nation or territory considered as an organized political community under one government.”

Thus the phrase “the necessity to the security of a free state” is ambiguous.  It might refer only to having weapons for defense, for keeping the country free from foreign attack or domination.  But it might also refer to having weapons for offense: (i) in order to “rebel . . . in opposition to a regular army,” as in the case of the American rebellion against the British Crown, in order to establish (or re-establish) a free nation, or (ii) in order to preserve America’s status as a free nation – keeping us in a free condition (a “free state”).

If the Framers meant to refer only to national security, why didn’t they just refer to the security of the state (the United States of America) instead of referring to the security of “a free state?”  Was it one of the intentions of the Framers to ensure that the citizenry would be able to rebel against the American government, to create armed militias (like the original colonial militias) to resist the devolution of the country into an un-free state, such as a state whose government had become authoritarian?

 

 

BETTER RED THAN DEAD?

Here is a distillation of the quixotic anti-Trump, Hillary-by-default campaign being conducted by the puritanical wing of the Republican Party – people like the libertarian think tanks and the editorial writers at The Wall Street Journal, The Weekly Standard, and National Review:

If Trump wins, his ideas will take over the Republican Party, which would be unfortunate.   The best hope of the Republican Party is to combine and distill the best of the ideas of the various factions of the Republican Party.  Granted, four years under Clinton would be awful, and the Supreme Court would be lost to the Left for a generation.  But if republicans are ever to succeed in ending America’s failed experiment with central planning, they need to shift their focus from values (social issues) to principles (economics, national defense) and to undoing the damage inflicted by Obama’s evisceration of Congress, his attacks against the Rule of Law.

To those of us who do not see harakiri as a viable political strategy, it appears that the anti-Trumpists would rather be right than (help elect a flawed republican) be president.

There is some merit to their argument, though it might not have been raised by so many republican leaders if Trump had run a better campaign and his poll numbers had been stronger.  But why would these leaders still be raising it, unless they are dreaming that Trump will abdicate his nominee status and make way for  . . . Mike Pence? Ted Cruz?  Apparently the party leaders are throwing-in the towel on 2016 because they are confident the party will reclaim the White House with a better nominee in 2020.  But is it realistic to imagine that Clinton could be defeated in 2020 by a Republican party that had achieved unity on the critical ideas and picked a less-vulgar nominee?  Could the country pick up the pieces after four more years of our converting into a centrally-planned socialist model, eviscerating Congress, turning the Supreme Court into a kangaroo court, and completing the swap of Israel for Iran as our principal Middle Eastern ally?  Could four years of Trump make Republicans’ task in 2020 more difficult than it would be after four years of Clinton?

Rather than “I would rather be right than president,” the better motto for the behavior of the anti-Trump snobs might be that 1950s standby, “better red than dead,” which meant, better to surrender to the Russian commies (the “reds”) than die in a nasty  battle to resist them.  Update for 2016:  better to accept a corrupt socialist than fight to elect a vulgar capitalist.

Civilization is, by latest calculations, at least 20,000 years old, and it took a gestation period of 18,750 of those years for it to beget the world’s first sizable, liberal, democratic republic based upon individual freedoms and free markets:  the United States.  If you understand what Obama has done to this republic, and if you pay attention to what Mrs. Clinton is promising, you must realize that America’s 240-year-old miracle may be approaching its expiration-date.  Let’s not kid ourselves about republicans taking action in 2020 to turn themselves back into a capitalist nation. The socialist genie is never put back into the bottle; never has been, never will be.   (And please do not suggest that it has been, by Russia or China.) American capitalism is at the precipice of one- and-done.

 

 

The Wall Street Journal Throws In The Towel

This is regarding Bret Stephens’s editorial in the Wall Street Journal issue of August 8, 2016, nominally about Sean Hannity.  Here is  Mr. Stephens’s dream scenario:  “the only hope for a conservative restoration is a blowout Hillary Clinton victory, held in check by a Republican majority in Congress.” Mr. Stephens is apparently hoping that the vulgar Mr. Trump loses, that the Republicans nonetheless end up in control of Congress (not just the House, Congress!), and four years later America awakens from its deep slumber and finally elects a true, conservative, genteel grammarian as our President.  One will spare Mr. Stephens a Trumpian response and settle for this:  the odds on the Stephens dream-scenario are awfully long.  Moreover, Mr. Obama has already schooled us on the irrelevancy of a Republican Congress when it is up against a chief executive run wild.

If Mr. Stephens imagines that there will be a viable nation left, after 4 years of a more-corrupt version of the Obama regime and the filling of one or more Supreme Court vacancies with Ruth Ginsburg clones, he is having a tantrum, not an epiphany.  Every day it becomes more clear that he, along with most of his colleagues at the Journal, would rather the Republican candidate be right than President.  William Buckley and Ronald Reagan would be laughing.  Every day it also becomes more clear that the Democrats’ control of the press, the entertainment industry, the academy, and all other conventional means of communication with voters, is so complete, and their use of it so cleverly manipulative, that it is hard to believe any other Republican candidate would have had a chance.  If Rubio, Cruz, Bush, Kasich, Christie, and the rest of the field wilted in the course of merely trying to defeat Trump, how would any of them have had a better chance of beating both the media and the Clintons?

 

THE USGA BLOWS IT AGAIN

Just when we were starting to forget the incompetence of the USGA in causing the Dustin Johnson fiasco at the men’s U.S. Open, the blue-blazer boys provided an unforgettable reminder of it, by ruining the women’s U.S. Open.  As in the men’s Open, the USGA took way too long to make the call on an alleged rules-violation, and then compounded their error by botching the timing of the notifications to the players.

The infraction in the women’s Open, a grounding of her club in a bunker by Anna Nordqvist (for which the penalty is 2 strokes), occurred during the three-hole playoff, midway through the second of the three playoff holes (#17).  But the USGA did not make its decision on the penalty until later.  The players were not notified of the infraction until each had hit her second shot on the third playoff hole (the par-5 18th).   Sounds innocent enough, fair and equal, but the timing of the notifications had a decidedly unfair and unequal impact upon the players.

The timing meant that the penalized player, Ms. Nordqvist, who has sufficient length to have reached the 18th green in two, had to play her second shot, had to make her critical strategic decision – to go for broke or lay-up – before she knew the pertinent facts, before she knew that reaching the green in two had become the only possible way for her to avoid defeat.  She elected to lay-up, which would have been a prudent strategy had she not sustained the penalty but certainly would not have been her strategy had she been aware of having been penalized.  By laying-up, Ms. Nordqvist was unwittingly forfeiting her only opportunity to overcome the deficit that had resulted from the penalty. On the other hand, her opponent, Ms. Lang, had neither the ball position nor the power to try to reach the green in two, so her ignorance of the real score did not affect her decision to lay-up on her second shot.  In fact, Ms. Lang, by being told of the penalty before having to play her third shot, was allowed to forget about pin-seeking and hit a super-safe approach shot that would allow her to win with even a bogey.  In effect, the USGA handed the tournament to Ms. Nordqvist.

Clearly, the USGA botched the whole thing.  Had they made a prompt decision, the players could have re-set their strategies much earlier, perhaps as early as the middle of the second playoff hole, taking into account the penalty.  But even if it had been impossible to make the call that early, they still owed it to the players (especially Ms. Nordqvist) to make the call at a good time, one that minimized any prejudice based upon the length of the delay.  In other words, make the call before the tee shots on 18, or make it after the tee shots but before the second shots, or wait until both players were done with the three holes.  The single worst way to notify the players was to announce the call at a time when the announcement would harm one player while helping the other.  In their clumsiness, the USGA gave an unfair advantage to Ms. Lang, tainting her accomplishment.

Is there any reason why Major League Baseball and NFL Football are able to review the videos and make the call within no more than a few minutes, while pro golf takes forever?  Granted, some golf violations are not spotted until later, but why not a mandated time limit on reviews, even a limit on the time within which an infraction can be called?  Football and baseball have wisely decided that it is more important to maintain the pace of play and keep everyone up-to-date on controversial calls, than it is that the calls always be perfect.  Somehow, they find the money to deploy enough officials and sufficient technology to minimize their mistakes.  Would that golf were as well-run as baseball and football.