You Are What You Eat, or Read

I recall a story about about a missionary speaking to a First Nation convert. The exchange concerned the convert’s challenge to living a holy life in his new found faith. “It is like two dogs warring inside me.” “Which dog wins?” “The one I feed the most.” I find this to be an adequate analogy that applies to many more aspects of life. I had a recent spat of blogs which were rather political in nature. Big surprise, I am a Political Science graduate student who hopes to teach in at the collegiate level. I should be a bit of a political animal. I recognized early on, a certain measure of tact necessary for someone of my beliefs and faith needed to remain hireable for such a position in the coming years. Invariably, I’m sure there are opinions expressed in several of my past blogs that might disqualify me from a public institution. That is if such organizations intend on judging people based on their faith, or worse their thoughts from their young adulthood.

I think back to my personal statement on my school application, looking back at my childhood I was almost destined to be a political animal. From car rides listening to talk radio or the constant news on TV, I recalled even as a child having an acute understanding to politics. Needless to say, I do not wish to hijack this blog into some political outlet. My page view counts would certainly advocate such a move, but that was not the purpose of this blog.

The purpose of the blog when it was started and again when it was restarted was to chronicle my adventures and thoughts. As a young man out on his own, stationed in Europe, blogging was a helpful outlet. When I finally got around to moving my blogs to a better hosting medium, I had not yet intended to write again. I have lived in a robust community that frequently challenges my heart and mind in the ways a community ought. It was when I started reading a number of friends’ blogs that I was reminded of the healthy process of observation and self-examination necessary to blog. I have also found this is an opportunity to practice my writing style.

I have spent and will continue to spend the coming years as a full time college student. I easily spend at least an hour each day following major news. This wasn’t a new development. When I was overseas, I devoured news. The ability to attach the necessity of “being in the know” to my graduate work is a convenient intersection. I have recognized a grand failure of my intellectual appetite. I have not read much of any fiction since my elementary days. Even when I did read fiction it was Clancy, Crichton, and the sort. I never learned how to imagine things necessary for fantasy works. It was always fictional stories based in the world I was familiar. I have been seeped in structured writing. The military writing styles were a welcomed tightening of facts that I was already accustomed. The preferred model of writing was to be as clear and concise as possible. When I returned to college it was a noticeable struggle to meet page requirements because I was so used to writing in the briefest manner possible. I still recognize that writing style in my academic writings, but in doing so I also note an oversimplified writing style.

This is where I have to reach out. Reading others who are more expressive in their writings have shown me a beauty in writing which I would like to build. I’m not yet in the place that I can start to chisel through the fictional works I should’ve read as a child. Then again, all those books I should read, I have watched the movies. This subversive act has negated the need of my imagination drawing something from a blank pallet. In the words of one friend, my imagination is broken. If I do not have a movie or TV show to reference when I read fiction I only see stick figures. Despite any descriptions by the author, such details are forgotten while I try to figure out other details, such as “why should I read this?” and “what is happening?” I see this most clearly when reading the Song of Ice and Fire wiki pages. I look into details fans have extricated from the book's text and the references they provide for such conclusions. There is no doubt I would have missed such subtle descriptive references.
There is also the problem of my present reading appetite. Given my present stage as a 2nd year grad student, I am still overwhelmed with dry prose, concise facts, and persuasive arguments (if I’m lucky, otherwise it is sad propaganda attempts.) In some respects I almost accept the role of being a bit of a political tithe. This was the approach Benjamin Franklin’s parents had to his education. He was supposed to be the minister amongst his nine siblings from the same mother. Am I the citizen who is willing to jump on the bitter sword of political knowledge in order to be the informed one among the masses? If so, democracy has some serious challenges before it.

How do I conclude then? Thank you for your readership despite my vanilla writing style. Hopefully, as I read more and write more blogs this style might be as expressive as it aims to be informative.

The 2nd Amendment Does Not Apply...

Today the 9th Circuit Court of Appeals finally delivered their opinion* to Puerta v. County of San Diego. This is the rehearing of the original case that ruled 2-1 to strike down the restrictive means of issuing concealed carry permits. Anyone familiar with the proud reputation of the 9th Circuit Court of Appeals this judgement is of no surprise. The only surprise was the delinquency of the judgement. After a short summary of laws that brought us here, I will summarize the majority decision and highlight significant arguments in the dissents.

Concealed carry permits (CCW) or Concealed Handgun Licenses (CHL) are available in all 50 states. In 42 of the 50 states the law requires any resident who is legally eligible to possess or own a firearm who applies and completes the process to get a CCW/CHL, this is known as Shall Issue. In other parts of the nation with growing frequency, states are passing Constitutional Carry which allows a person to carry a concealed handgun without a permit. The remaining 8 states practice, May Issue, that is for whatever reason, a person may be denied a concealed carry permit or in some of these states a firearm permit. New Jersey Second Amendment Society has an interesting undercover series on YouTube.

Taken from USA Carry

California is one of the eight states which are May Issue. As it stands, the issuance is based on the individual policy of each county’s sheriff. The sticking point in order to get a CCW is the “good cause” and “good moral character.” The point of this case was Yolo and San Diego counties had stringent understandings of “good cause.”

Both counties define “good cause” as requiring a particular need. San Diego County defines “good cause” as “a set of circumstances that distinguish[es] the applicant from the mainstream and causes him or her to be placed in harm’s way.” Similarly, Yolo County’s written policy requires “valid” reasons for requesting a license. Importantly, under both policies a general desire for self protection and protection of family does not constitute “good cause.” (pg. 68)

The majority opinion narrowly addresses if the 2nd Amendment applies to protect concealed carry. The vast majority of the opinion’s argument approaches this issue from a historical legal analysis that is rather thorough. I would question why the Court looked to the restrictions of serfs and colonists under the King as positive examples showing the “reasonability” of such carry restrictions. There are also 19th century case examples in which numerous localities banned concealed carry to also include bladed weapons. Within the narrow scope of the case and question, the majority does a fair shake…

Except one thing. None of the other states who are may issue have also banned unloaded and loaded open carry statewide. The primary reasons the 3-judge panel struck down the “good cause” requirement the first time was precisely because California banned open carry in populated areas. Here are some quotes from the dissents to elaborate the weakness of the majority opinion.

The majority sets up and knocks down an elaborate straw argument by answering only a narrow question—whether the Second Amendment protects a right to carry concealed firearms in public… Indeed, the majority’s lengthy historical analysis fails to appreciate that many of its cited cases either presumed a right to openly carry a firearm in public or relied on a pre-Heller interpretation of the Second Amendment. (pg. 60)

The Second Amendment guarantees “the right of the people to keep and bear Arms.” U.S. Const. amend. II. Heller held that the Second Amendment conferred an individual right to keep and bear arms for self-defense. Indeed, Heller adopted Justice Ginsburg’s definition of “carries a firearm” to mean “wear, bear, or carry... upon the person or in the clothing or in a pocket, for the purpose... of being armed and ready for offensive or defensive action in a case of conflict with another person.” (pg. 61)

Heller defined the right to bear arms as the right to be “armed and ready for offensive or defensive action in a case of conflict with another person.” (pg. 70)

The counties and California have chipped away at the Plaintiff's’ right to bear arms by enacting first a concealed weapons licensing scheme that is tantamount to a complete ban on concealed weapons, and then by enacting an open carry ban. Constitutional rights would become meaningless if states could obliterate them by enacting incrementally more burdensome restrictions while arguing that a reviewing court must evaluate each restriction by itself when determining its constitutionality. (pgs. 75-76)

The majority’s holding—that California must accommodate the right to bear arms in public through open carry—is unsupported by Supreme Court precedent and contrary to federalism principles. The Supreme Court has never dictated how states must accommodate a right to bear arms. (pg. 77, emphasis added)

However, the County Defendants and California have failed to provide sufficient evidence showing that there is a reasonable fit between the challenged laws and these two objectives… This distinction is important

because the County Defendants and California have not provided any evidence, let alone substantial evidence, specifically showing that preventing law-abiding citizens, trained in the use of firearms, from carrying concealed firearms helps increase public safety and reduces gun

Violence… There is simply no evidence in the record showing that establishing a licensing regime that allows trained law abiding citizens to carry concealed firearms in public results in an increase in gun violence. (pgs 82-83)

*This is the link of my reviewed text. If you want a blank version of the opinion here you go. The key to my highlights are yellow

SB1146, Are Religious Colleges Under Attack?

Biola Pressroom released this letter to Biolans and Biola supporters. According to this list there are 12 Religious Colleges and Universities which could lose Cal Grant funding if SB1146 becomes law. The original text of the bill has been recently changed to only provide the religious exemption to schools not affiliated with a denomination.

This bill would limit the religious exemption from the Equity in Higher Education Act to certain educational programs and activities of a postsecondary educational institution that is controlled by a religious organization….The bill would make the provisions of the Equity in Higher Education Act severable… This chapter shall not apply to educational programs or activities offered by an educational institution that is controlled by a religious organization to prepare students to become ministers of the religion, to enter upon some other vocation of the religion, or to teach theological subjects pertaining to the religion, if the application of this chapter would not be consistent with the religious tenets of that organization.

Between the 12 listed institutions just over 21,000 students may be directly impacted. Take Biola and Azusa Pacific for example, these two schools are easily the largest on the list of affected schools if this bill becomes law. If 68% and 74% of the students from Biola and APU respectively graduate with borrowed funds, it is reasonable to believe most of them receive funds from Cal Grant. For the sake of argument suppose only half actually get Cal Grant, but without it they would not be able to attend. Can any institution survive a decline of 34-39% of their students? Because there is no date found in the text and this amends an already active law, this is assess if the law is signed this summer the changes will go into effect this coming Fall.

Between the original text (see the red strikethrough) this appears to be a state response following the apparent lead by the Department of Education. In my blog from earlier today I pointed to a helpful article by a Harvard Law Professor on the Title IX bind where schools are forced to accommodate LGBT students while simultaneously sexually offending other students. By all accounts if this bill becomes a law, we will have a new version of Bob Jones v. United States (1983). Instead of racially motivated restrictive admission policies that cost the school federal student aid, it will be discriminatory policies against the LGBT community. Although the text of the bill at current has struck through that text, to me, this only means better lawyers have made alterations to target religious institutions progressively. If the original text remained there would have been active support from our Roman Catholic brethren. If the whole of the religious community does not come together to mobilize their supporters I very easily see this bill being like a poem from a German pastor during WWII.

First they came for the communists, and I did not speak out - because I was not a communist; Then they came for the socialists, and I did not speak out - because I was not a socialist; Then they came for the trade unionists, and I did not speak out - because I was not a trade unionist;

Then they came for the Jews, and I did not speak out - because I was not a Jew; Then they came for me - and there was no one left to speak out for me.

Allegedly the author of the bill claimed this was not to target religious institutions but, based on the amended text, who was this supposed to affect? This bill only affects religious institutions. Did Senator Lara, a Los Angeles native and member of the LGBT community, have in mind that California debt was too much and college aid was fiscally important? I think it is fair that the original text of the bill does not target religious institutions specifically but it would still greatly impact them. It is the duty of a legislator to consider the effects of all parties involved, not just their particular interest group.

When I analyzed the original text, I found it to be a clear violation of the Lemon Test, brought to you by Lemon v. Kurtzman (1971). The Lemon Test has three parts which must be acceptable in order for a law to be constitutional and nondiscriminatory towards an establishment of religion. These criteria are:

1. "the statute must have a secular legislative purpose"
2. "its principal or primary effect must be one that neither advances nor inhibits religion"
3. "the statute must not foster "an excessive government entanglement with religion.””

Based on these three criteria I am having trouble seeing any of these passing muster.

Then again if one looks to the 7th Court of Appeals Wheaton College v. Burwell (2014). This was Wheaton’s suit against Affordable Care Act (Obamacare) on the same grounds as Little Sisters of the Poor and Hobby Lobby. It should be sadly noted that in the 8-0 judgement more or less in favor of the Little Sisters of the Poor, the Court explicitly said that case was not to be used as a guide to other cases, specifically Wheaton College v. Burwell. In this case, the 7th Circuit Court of Appeals ruled against Wheaton College. The important question following Hobby Lobby’s victory, which many institutions hoped would be answered by Zubik (Little Sisters of the Poor), was if the religious exemption eligibility could be applied to nonprofit institutions. After all, if it could apply to for-profit businesses, why would it not apply to non-profit religious organizations. The primary argument against the Little Sisters of the Poor, was the claim that they were not a religious organization...Let that sink in for a minute.

If SB1146 becomes law, then all the affected institutions should file an immediate suit challenging the constitutionality of the law. In order for it to not go into immediate effect, a judge would have to declare an injunction to prevent the change until the courts processes the challenge. Depending on the sensibilities of the judge it could go one way or another. If the injunction does not occur, then there is a real possibility the schools would go bankrupt before the courts workout the challenges.

This is a state law, therefore the challenge would have to begin at the state courts. It would not be wise to look immediately to the Supreme Court as such a case would likely take at least 4 years to even be submitted to be heard by the Supreme Court. Between this case potentially being a constitutional one and the 7th Circuit Court of Appeals having ruled on this, if the 9th Circuit Court of Appeals ruled in favor of the colleges (if you believe in miracles, such a ruling by that court would definitely qualify) that would bring the probability of the Supreme Court to hear the case up to maybe 5% chance. Oh, being that we don’t know who will be the 9th Justice to replace Justice Scalia, whoever becomes President would most definitely impact this decision. Therefore, if we have a hope in democracy or more importantly that God can intervene, in addition to praying for the affected schools use this link for a form letter to send to your representative.

Update: Here is a response from a far better informed friend concerning my arguments and the claims of the initial letter.

Pardon me if I ignore all normative arguments about the wisdom of the law, the existence of God, and the relative merits of organized religion for a moment, and just talk about the law.

A few minor points: 1) while the bill would narrow the exception only to schools and programs offering training in the ministry specifically, it does not require that the school also be denominational. "Controlled by a religious organization" simply means that the charter of whatever organization controls the school be explicitly religious. That language appears in the Ed Code as it currently exists. 2) the bill has been amended to read that no school which currently receives the Cal Grant will lose Cal Grant eligibility. Therefore, schools like Biola and APU are in no immediate danger on that front.

Now the major point: The Lemon Test is irrelevant. You cannot raise an Establishment Clause claim against government inaction (i.e. the failure to exempt). Also, though I did not read all of the comments and replies previously made, I wanted to address something in the ones I did read: viewpoint neutrality is also irrelevant, since there is no Free Speech claim here. Any constitutional challenge that could be raised to this bill would be under the Free Exercise Clause.

The apposite cases for the Free Exercise Clause are Employment Div. v. Smith (1990) and Locke v. Davey (2004). Smith states that any neutral law of general applicability does not violate the Free Exercise clause, unless the Free Exercise right is combined with some other right (typically in practice this means the right to Freedom of Association). For you court-counters out there, Smith was a 6-3 decision written by the late Justice Scalia, with O'Connor concurring in the judgment, but arguing for the use of the compelling interest test.

In Locke, a pastoral ministries major sued the state of Washington under the Free Exercise clause for withholding a state scholarship which the student was otherwise qualified for. The scholarship program specifically excluded studies in theology. The High Court held, 7-2, that the state of Washington could withhold the scholarship on the basis of the student's religious studies. The Court ruled that states have a "historic and substantial interest" in withholding state funding from religion. Any case involving this bill would be controlled by Locke, and the state's interest in non-discrimination could easily support the state's failure to grant an exemption from its law for programs that are not directly and explicitly theological. Therefore, the bill as it stands is constitutional.

Virtue & Manhood

Throughout this last semester in a Constitutional Law course, we spent a significant amount of time focused on the 1st Amendment. More exactly, once we got past Substantive Due Process, the remaining weeks of class were spent on Freedom of Speech, Freedom of Religion, and Establishment Clause. As we were grinding through the cases it was unavoidable to see progressive change in American values in the 20th century. As the nation pulled away from an exclusively Christian-based set of ethics, sometimes in an effort to oppress fringe religious members and to outright discriminate other religious minorities, we eventually got to the legal space we are now. The three-part test decided in Lemon v. Kurtzman (1970) has been the standard test concerning religious entanglement since its ruling. In the separating of the Church from the State, there has also been a separation of virtue from society. For whatever flaws the secularist might declare about the Christian history of the United States, the clear understanding of American virtue is not likely to be one of them.

Virtue is the popular topic in my school’s political philosophy department. Aristotle’s exposition in Book 5 of the Nicomachean Ethics is a required reading for the topic. The Founders were educated in such ancient theory and steeped in the modern political philosophy that was also shaped by the ancient notion of virtue. Between the ancient thinkers and the sacred texts, virtue was at the very least the second half of the Ten Commandments by the time the nation was founded. In the secularizing of our nation, where has all the virtue gone? Throughout the political and legal writings in the first century of our nation public virtue was often the citation for allowing religion in government. There was an undeniable link between the notion of virtue and the role of religion in the public space. As the decades passed, and for whatever reason one might point to, public religion has fallen out of favor. The prominent place houses of worship once had in the community has been lost. Where or what other institutional structure do people from various demographics regularly gather to learn a particular set of morality? This is one of the better definitions I have heard that describes the loss of civic virtue.

What is worse, what has civic virtue been replaced? If not the State, then nothing. Dennis Prager, a talk radio show host,  frequently points out at this loss of social morality. According to the jurisprudence of the Court, the most sacred right appears to be one’s sexual proclivities. Arguably the next most important rights being declared are self-identity and right of conscience. None of these “rights” were articulated by the Founders, but all of them in the not too distant future may threaten the rights which were articulated by the Founders. Where am I going with this?

The recent issues in the news from bathrooms and gender identity, killing a gorilla to save a child, and now an example of justice not fully served, I think all of these are evidence of our lost virtue. It might be worth noting, the ancient philosophers did not find individual rights to even be a issue worth considering within the dialogue of virtue. The notion of individual rights is exclusively a Western principle which I would argue originates in the Imago Dei described in Genesis. Harvard Law’s Professor Jeannie Suk pointed out a difficult paradox concerning the bathroom issue, particularly concerning Title IX protections in which schools will be caught in no-win situations that may cost them dearly. Likewise the concern of a gorilla over that of a child is a clear example of a morally bankrupt understanding of human life opposed to animal life.

How is the case of the sex crimes committed by Brock Turner an example of lost virtue? Less in the individual act but the occurrences of sex crimes at large and the questionable justice that was the sentence. On a positive note, they have been going down on a national scale but one must also question how many of these crimes are not reported by colleges to proper legal authorities. Unless Mr. Turner appeals the conviction, the punishment leveled against him for his crimes will stand and he cannot be retried for a better punishment due to Double Jeopardy. This case has also challenged the validity of the Court to wage proper justice because the sentence was so satisfying. There has been significant writing across the decades concerning the restraint by which judges rule on certain cases so as to preserve the validity of the Court. As the argument goes, if a wayward judiciary acts as an unelected legislature who has power over the Supreme Law of the Land, it would be the people’s democratic duty to abolish such an institution.

Concerning the event, trial, and aftermath, there have been many heartfelt responses offering God’s grace to Brock Turner and  many articles rebuffing his father’s insensitive comments. Often it seems national news fails to get the most basic understanding of a person’s intrinsic value. It appears with this case was a perfect storm of outrage. Justice appears to have been avoided, and the perpetrator was a white male who was at least perceived to be upper class. It is culturally expected that everyone castigate this individual as much as possible. I find the outrage of this case to be completely founded and if I were a voter in Santa Clara County I would see about recalling Judge Persky. My understanding of grace hopes the victim and the perpetrator might recognize God’s goodness in their lives if not now at some point in the future.

Brock Turner has already experienced mercy. He was convicted of three felony counts of sexual assault. His sentence was 6 months in prison and 3 years probation. He was convicted of violating California Penal Code 220 and two counts of violating 289. A violation of 220 “shall be punished by imprisonment in the state prison for two, four, or six years.” For each violation of 289 “shall be punished by imprisonment in the state prison for three, six, or eight years.” One’s basic math skills then say his punishment should have been 8-22 years in prison according to the Penal Code. I originally intended on providing the actual text of the penal code but even those were more graphic than I wish to appear on my blogs. The letter of the victim to her perpetrator was even more graphic and difficult to read.

This event is not representative of manhood across the nation. The universal public outrage might be a sign that all is not yet lost. Then again, until civil discourse might occur about masculinity in the United States the state of men might not have a reason to be optimistic. I would argue that manhood cannot be well defined without a clear understanding of public virtue.

President Obama's Town Hall and Gun Rights

Okay, in light of the tragedy at UCLA this last week the President’s Town Hall clip responding to the gun control issue has been making its rounds again. I’ll address each claim. I am not trying to shut down the conversation with a wall of text. I only hope to inform people unaware of the state of gun rights in California and in politics. I would be more than happy to address any particular point in more depth.

Democrats are not “hell bent on taking away folks guns.”

Not according to some places where Democrats speak freely. There are some bold Democrats who will propose outright confiscation. What I have yet to see are any gun control/safety advocates speak against such measures to prove they do not support confiscation. For all I know there are many “gun safety” advocates who approach their goals over time.

Gun Violence Restraining Order was passed after the Isla Vista Rampage. The original text allowed any person to make a claim against another to have their weapons confiscated. The law that passed only allowed family members to make such a claim. AB 2607 is currently on route to the governor’s desk to expand the list of people who can make the claim to include: employers/employees and teachers. Given the state of Civil Discourse in society does anyone seriously think this addition would not be abused?

There are several new gun laws also at the governor's desk to be signed that require gun owners to turn in certain types of previously legal firearms and their accessories. Here is a list of all the gun laws headed to the governor’s desk this year. It might be worth noting the only anti-gun law that didn’t make it through the CA legislature was a ban on all semiautomatic firearms.

More guns have been sold since he’s been president, ever.

This is true. This is due to the rallying cry Democrats start after every mass shooting to put forward gun control. Anytime something people want that is threatened to be banned is believed to be banned, there is a surge. Most calibers have been reasonable to find at their pre-surge prices the .22 Long Rifle rimfire cartridge has gone from about $.02/ea to $.12/ea. Yes, a 6x price per round increase, this is my conservative estimate of what one can find in bulk online sales. If we are talking regular price retail, then it is closer to $.16/ea.

He has never proposed confiscation.

Following the Umpqua killings President Obama lauded the Australian model. Australia required by law many lawful gun owners to turn in their firearms. This endorsement was not an isolated incident. Democrats have frequently lauded the policies in the UK and Australia as positive policies.

We should treat guns like cars.

The President described how seatbelt laws, airbags, DUI crackdown, road design, and the ability to study the events lead to reduced auto deaths. The President wanted to approach gun deaths like public health.

This is a common comparison. Except that every driver’s training class begins to remind us potential drivers that driving is a privilege. If one believes what the Supreme Court said in 2008, then gun ownership is a fundamental right, not a privilege. A more appropriate issue to compare public safety and gun rights would be other fundamental rights such as: speech, religion, assembly, association, unreasonable searches and seizures, self incrimination, etc. See Incorporation of the Bill of Rights for a better list.

Suspected terrorists can buy guns, compares to no fly list.

The President looks at the no fly list a an effective tool, there have been numerous problems with the administration of such a thing. The ACLU has a pretty clear position on watchlists. This at least is a better comparison to driving cars, as the right to freely move between the states is a fundamental right. Then again, this only questions the legitimacy of watchlists in general. If a person has not been charged with a crime or been adjudicated through Due Process, should a fundamental right be lost? The most telling of the President’s response. By his language, he does not think of the 2nd Amendment as an incorporated fundamental right. There is a long history with President’s disagreeing with the Court and he is fine to do so, but he ought to be forthright about such positions.