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By Kevin D. Williamson — March 17, 2016http://www.nationalreview.com/article/432899/merrick-garland-moderate-activist-too-activist-constitution
Merrick Garland, the appellate judge whom President Barack Obama has nominated to the Supreme Court, is a “moderate.” Of that we are assured by all the best people writing in all the usual venues: USA Today, Politico, the Los Angeles Times.
A moderate what?
The question may be in this instance a purely intellectual one. Garland could be the second coming of Solomon, and Mitch McConnell and his Republican colleagues would be looking to leave him locked up in the Senate basement until after the presidential elections, after which President Cruz might choose a better candidate; President Clinton, a much worse one (which would probably result in the lame-duck Senate working to confirm Garland); or President Trump, the devil knows what. The immediate case against advancing Garland’s nomination has nothing to do with Garland and everything to do with the Senate rousing itself to do its constitutional duty and check President Obama’s executive imperialism with such tools as it has at its disposal.
Carrie Severino and others have argued here that Garland is no judicial moderate, that he is a quiet left-wing activist well disposed to political efforts to undermine the Second Amendment. On that question, I defer judgment to our experts. But there is another question we ought to consider, which is whether there is any such thing as a judicial moderate.
If the expanse of your political imagination is roughly the dimensions of the New York Times, that may seem an absurd question. We hear all the time about “moderates” and “extremists” in the nation’s courts. A great deal of huffing and puffing, which no doubt dishevels the pages of a nearby copy of The Economist, insists upon the virtue and the needfulness of such moderation.
But the fundamental question that we must ask about Supreme Court nominees — all nominees to all benches, in fact — is not one of degree, which is the sort of question that the criterion of “moderateness” would apply. Instead, it is an either/or question: Does the law say what it means and mean what it says, or are judges empowered to graft private notions of justice from their own souls onto the law and the Constitution?
Antonin Scalia understood that this was a yes-or-no proposition, and they hated him for it.
It is a testament to the corruption of the Supreme Court that there is never any question about how any of the so-called liberals on the Court — who are anything but liberal — will vote on any given question. Elena Kagan swore up and down during her confirmation hearings that there was no constitutional right to gay marriage — it was the usual exercise in Democratic taqiyya. But no serious person ever doubted for a second that she would discover one lurking in the penumbras the second she had a lifetime appointment and the power to substitute her own will for the content of the Constitution.
A judge isn’t a little bit of an activist any more than a person suffers from a little bit of cancer. Activism is activism, and cancer is cancer. There are better and worse cancers to have, to be sure, but you either have cancer or you don’t. Which is not to say that there will not be honest disagreements among justices about the meaning of a particular constitutional provision or how a statute should be construed. But the party-line character of the Supreme Court shows us the institution’s true nature: It is, effectively, a super-legislature, not a court. That the party-line character is lopsided, with a few conservatives still using Scalia’s Stupid But Constitutional stamp while the so-called liberals operate as a unit, is of course relevant; but the attention that is paid to the ratio of progressives to conservatives on the Court fails to account for the fact that this should not matter.
It should not matter — if the law were the law. If the law is whatever our black-robed secular clerics say it is, then it does matter what sort of political views justices hold. And if it matters what sort of political views justices hold, then the Supreme Court is not a court, but something else.
Conservatives should not accept an extreme left-wing judicial activist. They should not accept an extreme right-wing judicial activist, if there were such a thing. They should not accept a moderate judicial activist, for the same reason that they would not shoot themselves in the foot with a firearm of moderate caliber. Litmus tests may be in bad odor with our self-proclaimed sophisticates, but here one is very much in order: The law is the law is the law, and it isn’t anything else. Those who believe otherwise do not belong on the Supreme Court any more than moderate phrenologists belong on medical-school faculties or moderate foxes should be assigned guard duty at the henhouse.
If the best that can be said of Garland is that he would do only moderate violence to the Constitution, then that is a complete and whole case against confirming him, or even considering his confirmation.— Kevin D. Williamson is National Review’s roving correspondent.
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Earlier this year, ATF rule 41F was entered into the Federal Register, which significantly changes the transfer of items regulated by the National Firearms Act (NFA) and, perhaps most importantly, several things regarding suppressors.
Rule 41F, which will take effect July 13, is determined to shake things up, but it’s not all bad news. In fact, one of the most significant changes to celebrate with the new rule is the removal of the Chief Law Enforcement Officer (CLEO) sign-off on NFA applications. Previously, applicants for NFA items (suppressors, short-barreled rifles, fully automatic firearms, etc.) were required to obtain a certification from a CLEO. This, many gun owners and advocates argued, allowed officials to arbitrarily deny Americans from owning NFA items.
Now, the new rule only mandates applicants to notify CLEO’s instead.
“For the first time in 82 years, local law enforcement will no longer have de facto veto power over any NFA applications,” said Knox Williams, President and Executive Director of the American Suppressor Association. “While their inclusion in the process made sense in 1934, before background checks, or even computers existed, the removal of this antiquated measure from the NFA process is a major victory for the suppressor and NFA communities.”
Rule 41F is not all rainbows and cherries, however; it does include several frustrating changes that could impact you. For example, the ATF itself estimates that NFA wait times could double once the rule change goes into effect. This is due mostly to the rule change around fingerprinting for trusts and corporations. Yes, two fingerprint cards, as well as a passport photo of each person listed on a trust, are going to be required going forward after July 13, 2016 each time you want to purchase a NFA item under the Trust.
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Daniel Xu +
Namibia’s Ministry of Environment and Tourism recently made its stance on hunting very clear when it announced that it officially opposed any kind of hunting ban in the country. Minister of Environment and Tourism, Pohamba Shifeta, said that about 5,000 hunters visit the country annually. These hunters are instrumental in providing the necessary funds to protect conserved land such as game reserves, national parks, and communal conservancies. It is estimated that about 44 percent of Namibia’s total land area is made up of land under some form of conservation.
“Since Independence, Namibia has adopted legislations and policies aimed at promoting wildlife as a sustainable form of land use,” Shifeta told the . “As a result of such efforts the wildlife populations have increased drastically and distribution range has expanded inside and outside national parks. Innovative policies and legislations underpin the conservation of wildlife in Namibia.”
There has been a recent upswing in calls for hunting bans in African nations. This became especially noticeable after the killing of Cecil, a famous black-maned lion in Zimbabwe, by American hunter Walter Palmer. Although the Zimbabwe government later cleared Palmer of all charges, the controversy generated by the hunt was enough to cause to ban the transport of hunting trophies. Activists also urged government officials across Africa to close their borders to hunters.
However, officials say that these activists fail to acknowledge the beneficial impact that hunters can have. Visiting hunters not only provide a economic impact, but they also provide the much-needed funds to manage national parks, pay wardens’ wages, and to protect the very animals they hunt.
Last month, one of Zimbabwe’s largest wildlife reserves announced that it is seeking to up to 200 lions after a decline in hunters. As the park is in the same country where Cecil was harvested, it generated some discussion on not only the long-term benefits of having hunters, but short-term benefits as well. Benefits such as managing game animals. For reserves like the Bubye Valley Conservancy, culling animals with hired sharpshooters or wardens would mean the loss of funds. Funds that could go towards maintaining the reserve or protecting the lions from poachers. In the end, the reserve clarified that it will mostly likely donate the lions to another reserve, but is having difficulty finding homes for all its surplus lions.
“I wish we could give about 200 of our lions away to ease the overpopulation,” Blondie Leathem, the conservancy’s general manager, told the . “If anyone knows of a suitable habitat for them where they will not land up in human conflict, or in wildlife areas where they will not be beaten up because of existing prides, please let us know and help us raise the money to move them.”
Historically, the lion population in the reserve was managed partially by hunters, many of which stopped coming to Zimbabwe following the Cecil controversy. Namibia’s hunting industry has also experienced controversy of its own. In 2014, American hunter Corey Knowlton paid $350,000 for a rare permit to hunt black rhinos. The Namibian government offers five black rhino hunts each year, and they are generally regarded as among the world’s rarest hunting opportunities. Funds raised from the rhino hunts not only go back into rhino conservation, but overflow into other projects as well.
“Cabinet directed the Ministry of Environment and Tourism to actively campaign against any attempt to ban or restrict hunting and the export of wildlife products from Namibia,” Tweya said.
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ELD-X and ELD Match Bullets Just Announced from Hornady Manufacturing! Through the use of Doppler technology, Hornady Manufacturing stumbled upon a very subtle anomaly with their bullets at high velocities. Through this discovery, they birthed two new bullets that will ensure the satisfaction of shooters, and hunters the world over. Introducing the ELD-X (Extremely Low Drag - eXpanded) and the ELD Match Bullets from Hornady. Read on below for more info, technical specs, and a great video from Hornady about their amazing discovery, and how it was put to great use.
ELD-X and Hunting:
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For several reasons I felt compelled to read Joe Bell’s article, Thoughts on Fair-Chase Bowhunting, http://pope-young.org/comm/article_details.asp?uid=F95B5128-3B16-4239-8FD0-A23EED172325I aspire to be a student and practitioner of Fair Chase and ethical hunting. I write, lecture and consult on hunting and shooting ethics; and, coincidentally, I am learning to shoot and hunt with a crossbow. Given the article’s title and the prestige of the Pope and Young Club, I figured I could learn something about how bow hunting relates to Fair Chase. I share my thoughts about Mr. Bell’s article and my respectful disagreement with his arguments and conclusions.
I cannot divine Mr. Bell’s mind and soul but I can study the words he actually wrote and what he did not write and then draw conclusions from them. His title includes the phrase Fair Chase, which is a noble concept. I looked forward to seeing how Mr. Bell discussed it. The Pope and Young website has a definition of Fair Chase: http://pope-young.org/fairchase/default.aspThe definition is curious because it defines what Fair Chase is not rather than what it is. Example: “The term “Fair Chase” shall not include the taking of animals under the following conditions:…..” The definition ends with the even more curious and vague rule: “Any other condition considered by the Board of Directors as unacceptable.” Not much guidance there.
Mr. Bell begins his statement with definitions of three of his most important terms: he defines a “bow” and an “archer” and a “bowhunter.” These terms are the foundation for his arguments and conclusions.
“To begin with, the Club defines a bow as a hand-held, hand-drawn device, in which you pull the bowstring back using your body's strength. This is where the energy comes from to propel the arrow forward. We believe anyone that uses such a tool is an archer and therefore a bowhunter when pursuing game.”
Mr. Bell writes: “This is why the Pope and Young Club does not accept a crossbow as a real archery tool. For this reason, we are against them for use in archery-only hunting seasons.”
On the surface, Mr. Bell gives the appearance of weaving Fair Chase principles and ethics into his arguments. His motive is obvious: his arguments and conclusions will gain credibility and moral justification if he can successfully draw upon Fair Chase and ethics to support them. However, Mr. Bell does not show why Fair Chase principles or ethics supports his definitions. He just says so.
Mr. Bell writes: “But lines must be drawn, and the "bow" is a great place to make it clear cut. Again, it must be hand held, hand drawn, so your body takes up the power of the bow's force in order to propel the arrow forward.” He doesn’t say why a line must be drawn. He doesn’t explain why, based on ethics and Fair Chase, anyone would care or should care if a line is drawn. He does not provide an explanation based on ethics as to why a line must be drawn. Again, he just says so.
Mr. Bell’s policy recommendation is limited: “Are we against the person using the crossbow? No, absolutely not. This is foolishness. We are simply against the "tool" for use during archery-designated seasons.”
Does Mr. Bell make a case based on ethics and Fair Chase principles for restricting the crossbow? I don’t think so.
Mr. Bell doesn’t offer evidence or show which Fair Chase principles support his conclusion that it is more ethical to ban crossbow hunting from archery-designated seasons. Mr. Bell simply says it is so. More specifically, Mr. Bell offers no evidence that the “hand-held” bow is in any way more ethical or more consistent with Fair Chase principles than the crossbow.
No references are made to arrow speed, accuracy, range, power or other variables that might provide an ethical basis for distinguishing crossbows from hand-held ones. Mr. Bell has a bias against crossbows, which is fine, although he writes that the use of any kind of bow is up to the subjective sense of the individual hunter. But his bias is not supported by facts or ethics or Fair Chase principles.
Mr. Bell writes: “This is why the Pope and Young Club does not accept a crossbow as a real archery tool.” Okay, fine. He is entitled to his opinion; but he is not entitled to make up or ignore facts or twist the meaning of Fair Chase or ethics to support his opinion. Mr. Bell’s subjective definition of a ‘real archery tool’ has nothing to do with Fair Chase or ethics, and, in fact, he doesn’t try to show that it does.
Mr. Bell has a bias against crossbows “Because it severs the line between what is archery and what is not.” It is easy, of course, for Mr. Bell to reach his conclusion because he defined the terms of bow and archer in such a way that no other conclusion is possible. His conclusion is not grounded in ethics but in manipulating definitions.
Mr. Bell wants the moral authority gained by saying his arguments are supported by the Fair Chase doctrine but he never shows how any of its principles apply to any of his arguments or definitions. He simply writes Fair Chase as if the words alone stops all debate. He does not show why or how a vertical bow is consistent with Fair Chase and a crossbow is not. By itself, whether an animal is taken with a hand held bow or with a slice of month-old pizza has nothing to do with Fair Chase.
I try to understand and do justice to Bell’s arguments and then write accurately about my understanding. To do otherwise would be unethical, as if I, as a lawyer, misstated to a judge the facts or holding of a legal case. It may well be that, in Mr. Bell’s words, “it’s the practice of Fair Chase and high-ethical standards that keeps all Pope and Young Club members branded as one.” But he doesn’t show how ‘real archers’ advance these goals better than crossbow hunters.
Primitive-Like and Legacy
Another part of Mr. Bell’s bias against crossbows is that they are not ‘primitive-like.’ He writes: “we owe it to them and our sport to protect this legacy, which is to keep the sport primitive-like and as challenging as possible...to keep bowhunting a full-body shooting engagement.”
Several issues leap out. First, ‘primitive-like’ is a suspiciously flexible term that defies precise meaning. Thus, like tofu, you can make ‘primitive-like’ into anything you want. Second, defining the modern compound bow as primitive-like defies reason. Made of space-age materials such as carbon, titanium and specialized steel alloys, deriving great mechanical advantages from pulley systems, boasting luminous sight sticks, range finders and release triggers and machined to stunning tolerances, these bows are marvels of modern technology and precision. They are as primitive as a Porsche.
Third, Mr. Bell’s reference to ‘legacy’ is unhelpful. Legacy is a morally neutral concept. Some legacies are good; some not so terrific. Slavery comes to mind. Mr. Bell limits legacy to one factor: the mechanical action of how a string is drawn. Again, fine, but he fails to show how such a legacy in any manner advances Fair Chase and ethical hunting. Appealing to legacy without explaining why the legacy is virtuous is not a persuasive argument. Moreover, I would bet a substantial sum that the animal cares not a whit how the arrow was released.
When evaluating Mr. Bell’s arguments, another factor deserves attention. I have volunteered on hunts with many severely disabled persons and persons not disabled but afflicted with upper-body injuries. They cannot draw a compound bow. They might be able to shoot a crossbow. Is Mr. Bell going to look into the eyes, for example, of the fourteen-year old I accompanied on a pronghorn hunt (rifle hunt) last year, a boy with no legs and two withered arms, and lecture to him that he can never be worthy of the title ‘archer’ or ‘bowhunter’? That he can never hunt according to Fair Chase principles because, at best, he can only use a crossbow? I hope not. But if so, the key question is: what benefit is derived from that argument?
Why Are We Dividing Ourselves?
I read and re-read Mr. Bell’s article, and several questions kept haunting me. Why did he write it? What was he trying accomplish that deserved to be accomplished? Why start the equivalent of an Animal House movie cafeteria food fight among hunters using different bow platforms for the trivial goal of eliminating some of them from the archery-designated season?
Hunters of every platform face real problems, problems that threaten every kind of hunting. We live in perilous times. If interest rates creep up, if the welfare state continues to consume the economy like a metastasizing cancer, if the economy contracts a little, the billions of dollars for hunting and conservation raised through Pittman-Robinson taxes will dissipate like smoke from a campfire. When photos appear showing an animal with an arrow through its head or neck, thereby creating the equivalent of Cecil the Elk or Bear or Deer or whatever, the Great White shark of viral social media won’t distinguish how bows were held or how the arrow was drawn. When hunting is ended and the animals are dead from starvation and poaching and so forth, it really won’t matter which bow platform you liked and disliked.
Much of the world has gone insane, and viciously insane, feasting on reptilian predatory opportunism. Turning bowhunters against each other strikes me as self-destructive and void of logic and reason. I’d much prefer we hunters focus on meaningful issues. Let us develop strategies for fighting anti-hunters that buzz drones over the animals and who on social media threaten injury and death to hunters and their families.
Let us absorb the fact that we are one Supreme Court Justice away from perhaps losing the individual right to own or possess a firearm. “What’s that got to do with me?” some bowhunters might ask. Well, consider that Scotland is now enforcing its Air Weapons and Licensing Act, https://www.nraila.org/articles/20160304/scotland-sets-july-deadline-for-airgun-licensing
requiring registration and permits to possess an airgun. Is there any rational basis to believe this could not happen to bows?
I never met Joe Bell. Pope and Young is an honorable organization. I believe Mr. Bell is passionately dedicated to preserving and advancing bow hunting. But, in this instance, whatever compels him, he allowed passion to dominate reason, and generally nothing good comes from such a dynamic. I conclude Mr. Bell did not make his case. He did not persuade that the crossbow restrictions are justified by Fair Chase or ethics. We cannot afford to fracture the hunting population, bow hunting included. The stakes are too high. We need to pull together, not create division, especially when there is no moral or factual reason to divide us.
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In the spirit of Steve Hayward’s occasional blasts from the past, I offer these words that have been going around in my head over the past week:
Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites, — in proportion as their love of justice is above their rapacity, — in proportion as their soundness and sobriety of understanding is above their vanity and presumption, — in proportion as they are more disposed to listen to the counsels of the wise and good, in preference to the flattery of knaves. Society cannot exist, unless a controlling power upon will and appetite be placed somewhere; and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters.