To Richard Dawkins

Dear Richard,

In The God Delusion you refute every reasoned argument that has been made for the existence of God, including creationism and intelligent design.

However, I find two weak points in your argumentation: first in your discussion of the improbability of our universe, and second in your discussion of the emergence of consciousness. Here I will only talk about the first of these.

Darwinians have demonstrated convincingly that once life (i.e. organic chemistry) got started on Earth, there is no need for God to explain any of the life forms that have since emerged (excepting consciousness, if this is considered to be a form of life). But how improbable was it that organic chemistry got started on Earth? Your answer is: yes, it was exceedingly improbable that organic chemistry got started on Earth. However, we know that our universe contains billions of billions of billions of planets where organic chemistry had a chance to get started, and so it is not at all improbable that it was able to get started on a few or even many of them, even though the number of successful life-forming planets is an infinitesimal fraction of the total. "Anthropic" thinking tends to object, "Given that unsuccessful planets outnumber successful ones by a factor of billions of billions, isn't it wildly improbable that we are lucky enough to find ourselves living on one of the vanishingly few successful ones?" Your answer is, "No. It is a necessity that, if we found ourselves living anywhere, it would have to be on one of the vanishingly few successful life-forming planets. The existence of a few of these is not at all improbable. You and I couldn't exist anywhere else. Given that we do, it had to happen here."

So far, so good. But you realize that the questions and answers can't stop here. The high probability that organic chemistry would have to get started somewhere in our universe is the result of the way our universe is made up.  But contemporary physics now understands that the makeup of our universe is itself wildly improbable. That's because its survival for more than a few attoseconds (the time it takes for light to travel the length of three hydrogen atoms) after the Big Bang was only possible because the values of several fundamental constants -- e.g. the strong force binding the components of the atomic nucleus -- happened to be just so. Had any of the values been every so slightly different, the universe as we know it would never have unfolded. There wouldn't have been all these billions of billions of planets, and no organic chemistry.

You then argue that we can resolve the problem of the improbability of the universe in the same way that we resolved the problem of the improbability of organic chemistry getting started on Earth -- by getting beyond anthropic thinking. If our universe is one of many, many, many universes out there in time and space (the multiverse theory), it is not at all improbable that a universe with the values for the fundamental constants that allowed our universe to thrive would sooner or later have popped into existence.

But here is the rub: the argument that a successful life-forming planet is not at all improbable rests on the provable proposition -- based on observation through telescopes --  that there are many, many, many planets in this universe. But the proposition that there are many, many, many universes besides our own rests on no observations at all. Furthermore, there is no conceivable observation that could prove it to be false. Because it is not "falsifiable," the multiverse theory fails the fundamental test that any theory must pass if it is to be accepted as scientific. Indeed, the only thing that can be said in favor of the multiverse theory is that if it is false, and ours is the only universe that ever has been or ever will be, then ours is a miraculous universe. Since science cannot accept the miraculous, science must accept the theory of the multiverse, even though it will never be able to produce any observable evidence for it.

Here you are trying to dispose of the argument that the multiverse hypothesis is no less improbable than the God hypothesis:

"If we are going to permit the extravagence of a multiverse, so the argument runs, we might as well be hung for a sheep as for a lamb and allow a God. Aren't they both equally unparsimonious ad hoc hypotheses, and equally unsatisfactory? People who think that have not had their consciousness raised by natural selection. The key difference between the genuinely extravagent God hypothesis and the apparently extravagant multiverse hypothesis is one of statistical improbability. The multiverse, for all it is extravagant, is simple. God, or any intelligent, decision-taking calculating agent, would have to be highly improbable in the very same statistical sense as the entities he is supposed to explain. The multiverse may seem extravagent in sheer number of universes. But if each of those universes is simple in its fundamental laws, we are still not postulating anything highly improbable. The very opposite has to be said of any kind of intelligence."

But you confuse probability with plausability. There is no way to estimate the statistical probability of the existence of a second universe, or any number of additional universes. And of course there is no way to estimate the statistical probability that our universe is miraculous. So you cannot argue that the multiverse is statistically more probable than the miraculous universe. The most you can argue is that it is more plausible, and here is one good argument in your favour: we know that one universe exists, so why shouldn't there might be two or more? But science has never been able to confirm the existence of even a one miracle, so why should our universe be the first?

While this is the strongest argument you can make, it is hardly a knockout. Many will answer your questions as to why our universe should be the first miracle with the question, "Why not?" And your best reply will be, "because the multiverse seems more plausible to science."

From the Supreme Leader to the President Elect: Congratulations

An Open Letter from the Supreme Leader to the President Elect

Ali Hoseyni Khāmene’i, Supreme Leader of the Iranian Revolution

to

Barack Obama, President-elect of the United States of America

Dear Senator Obama,

Congratulations on your victory in the presidential election. During the campaign you said that if elected, you would talk with the Iranian leadership without preconditions. I hope you will follow through on this campaign promise. To set the agenda, here is what I believe we should talk about, including some things on which we will have to agree to disagree, and some things on which we can agree.

1. Satan and Evil

The leaders of both of our countries have been guilty of demonizing the other. Let's talk about how to stop it.

Beginning with our revolution in 1978, Iranian leaders have found it useful to whip up domestic political support by branding America as the Great Satan. President Bush, for the same reason, found it useful to brand Iran as a member of the Axis of Evil. But please understand this: although our current president, Mahmoud Ahmadinejad, is given to rhetorical excesses neither he nor Ayatollah Khomeini whose Farsi words he was merely repeating verbatim, has ever said anything that can be accurately translated into English as "Israel will be wiped off the map." This is a mis-translation (apparently by the New York Times). If you don't believe me, please ask Hooman Majd, the Iranian-American who has been the simultaneous Farsi-to English translator for several Iranian presidential speeches at the UN, including those of Ahmadinejad. During Majd's interview with Terry Gross on her Fresh Air radio show of September 25, 2008, Majd says that a more accurate English translation of Khomeini's words is "Israel will vanish from the pages of time."

2. Israel, Hamas and Hezbollah

Also please understand this: the UN's 1947 decision to partition Palestine and create the state of Israel is seen by Iranians and most other people in the Middle East as a profound injustice -- a morally indefensible attempt by Europe, Russia and the USA to expiate their guilt over the Holocaust not at their own expense, but at the expense of the Palestinian people. The people of the Middle East, including the Iranian people, believe that Israel was the illegitimate creation of outside powers, and has no right to exist. And because we believe this, we hope and expect that it will eventually vanish from the pages of time.

The question of Israel's legitimacy is one on which the American and Iranian people will have to agree to disagree. However, we can agree that this question should not be resolved by force. Iran has given military support to Hezbollah and Hamas -- enemies of Israel. America has given military support to Israel -- enemies of Hamas and Hezbollah. By arming our respective allies, neither of us is contributing to a solution. This should stop, and we should talk about how to stop it. And neither of us should require the other to accept our position on the legitimacy of a Jewish state in Palestine as a pre-condition of starting these talks.

3. Iraq

In Iraq we share some common objectives: first, the withdrawal of American troops as quickly as possible without reversing the progress that has been made in recent months towards security and political reconciliation. In the longer term, we share the objective of seeing Iraq evolve into a state that is at peace with itself and its neighbours.

However, Iranians and Americans do not agree on the political culture that Iraq should embrace. While you and we agree that nations should be governed by law, you believe that the laws should be decided by the people, whereas Iranians believe that the laws have been given to us by the Almighty and cannot be altered or undone by the will of the people. This is another thing on which Americans and Iranians must agree to disagree.

As for Iraq, however, we can agree that the decision between these two legal and political cultures should be not be imposed by either Iran or America, but should be decided by the Iraqis themselves. If Iraqis decide for an Islamic state, America must accept this. The same applies to Iran in case Iraq decides for democracy. Our talks should lead to an agreement on how to make this happen. And neither of us should require the other to accept our position on the role of democracy in Iraq as a pre-condition for starting these talks.

4. Nuclear Weapons and Nuclear Power

The acquisition of nuclear weapons is prohibited by the laws of the Almighty as we understand them, and by the treaty law of nations who, like Iran, are signatories to the Nuclear Non-Proliferation Treaty. For these reasons, Iran has no intention of acquiring nuclear weapons. The objectives of Iran's current nuclear program are civilian, not military, and we are prepared to prove it.

Unfortunately, in the America of Dick Cheney, John Bolton and Norman Podhoretz, it is a foregone conclusion that the purpose purpose of Iran's nuclear program is military. This is not a something these people are willing to decide on the basis of objective evidence and analysis. It is to be decided on the basis of conviction, using such arguments as "Iran is an inherently aggressive nation" (although we have not invaded a neighbour except in retaliation since 1739); or "Why would Iran want to use nuclear energy for power generation given its ample reserves of oil and gas?" (The answer, of course, is that because nuclear electricity is so much cheaper, it is highly inefficient to make electricity with oil and gas and forego the earnings these fuels could realize in the international market. For exactly this reason, the United Kingdom and Russia have been generating nuclear electricity for years.); or "Russia is willing to supply all of the reactor fuel Iran requires." (as if Russia can be considered a reliable, no-strings-attached supplier of energy to anyone).

There is a simple, objective way to test whether a nuclear program is civilian or military. So long as uranium enrichment does not exceed 3.5%, the program is civilian. Once enrichment rises above 3.5%, the program can only be military because reactor fuel requires only 3.5%, and there is no civilian application for more highly-enriched uranium.

These facts provide the basis for an agreement that will allow us to prove (or you to disprove) objectively that our nuclear program is peaceful. In his speech before the UN General Assembly in September 2005, President Ahmadinejad invited America and other nations with expertise in civilian nuclear power to form a consortium to enrich uranium in Iran to supply fuel to Iran's planned nuclear power-plants. Were Iran's enrichment program carried out within such a consortium, the level of enrichment would be entirely transparent. Iran would also agree to intrusive IAEA inspections throughout the country to provide assurance that no nuclear fuel cycle activities were taking place other than by the consortium.

Cheney, Bolton and Podhoretz will scoff thus at this idea: "So you want us to help you get your enrichment centrifuges running smoothly and then, when you are ready, throw us out, raise the enrichment level from 3.5% to 90%, and build a bomb?" But guess what? We are getting our centrifuges to run smoothly without your help. Those of your experts who have expressed skepticism on this have consistently been proven wrong, and the IAEA has attested to this. This is not about what Iran is able to do without American help. It is about proving that our program is peaceful. We hope that in Barack Obama's America, objective tests will replace speculation, suspicion and prejudice on this issue. Let's talk about how we can prove to you that our intentions are peaceful. And please do not require us to suspend enrichment as a pre-condition for starting these talks.

To Omar al-Bashir: Go Away Or We'll Take Away Your Oil

Nicholas Kristof's excellent eight point plan for throttling Omar al-Bashir's criminally inhumane regime in Khartoum should include two further points. The tenth point has been articulated by Mark Helprin, who argues that that it would be relatively easy for American and allied air power to crush al-Bashir’s army, and starve the militias he has enlisted to do his work in Darfur, Abyei and the south. Helprin says, “Violating sovereignty is a matter of immense consequence and gravity. Then again, so is genocide.”

However, there is a ninth point that should be tried before Helprin's tenth: an international coalition should take control of Sudan's oil industry. Keeping Sudan's oil off the market will cripple the al-Bashir regime's ability to terrorize its people, and deprive it of the oxygen it needs to stay in power. When al-Bashir is gone, control of Sudan's oil industry will give the international community tools to oversee Sudanese national reconciliation that are lacking if the policy is simply to rain destruction on al-Bashir's military infrastructure from the air. As we learned in Iraq, after shock and awe, then what? 

Oil and Money in Sudan

Control of Sudan's oil wealth is of course an end in itself for al-Bashir’s regime. But second, the oil industry provides the regime with the means to fund the payroll for the military and para-military forces (Janjaweed, etc.) who carry out operations against its citizens, and to purchase the sophisticated military hardware (from China) to support these operations. Third, because the Khartoum government and the international oil companies who produce Sudan's oil have no intention of sharing the wealth with the indigenous population where it is produced, security of production can only be assured by deporting the indigenous population, a policy which al-Bashir has forcibly implemented on a large scale.  And fourth, although oil has not yet been discovered in Darfur, exploration licenses have been awarded in Janub Darfur, and the industry is optimistic about Darfur's potential. Khartoum and Janjaweed are not slaughtering people in Darfur for  reasons of ideology. 

Sudan's oil industry is truly the root of all of the nation's evils. 

Between 1999 and today, Sudan’s oil production has risen from zero to over 600 thousand barrels per day.  The market value of this at current prices is around $20 billion annually, of which $11-12 billion pours into the coffers of the state under production-sharing agreements with China's CNPC, India's ONGC and Malaysia's Petronas. Over 90% of these revenues derive from oil exports, which account for over 95% of the country's export revenue. The remaining $8-9 billion of market value annually, net of costs (operating, transportation, and recovery of acquisition costs and capital expenditure), is profit whch the four owners of the producing fields divide up according to their ownership shares: CNPC (46%), Petronas (32%), ONGC (25%), and the Sudanese state oil company Sudapet (6%).  

Under the 2005 Comprehensive Peace Agreement that ended the 21-year civil war between the Khartoum government and Sudan's southern provinces, now represented by the Government of South Sudan (GoSS) based in Juba, a revenue-sharing agreement was reached whereby the Khartoum government would receive 50% of revenues from production in the southern states, and retain 100% of revenues from production in the northern states.  Between 60 and 80% of Sudan's oil production is in areas under the jurisdiction of GoSS (depending on whether the disputed region of Abyei is counted as falling under the jurisdiction of GoSS or Khartoum), which would entitle GoSS to 30-40% of the state's oil revenue.

Taking Control of Sudan's Oil Industry

The terminal at Port Sudan on the Red Sea is the only means by which Sudanese oil can be exported. A naval blockade of the port would therefore be a fairly easy way for the international community to shut down Sudanese exports. The hard problems for implementing a strategy of taking control of Sudan's oil are diplomatic, economic, commercial and humanitarian. Fortunately there are reasonably good (but not perfect) solutions for all of these problems. And before we balk at the imperfections, we should bear in mind that a regime that slaughters its own people is a perfect problem.

The diplomatic and commercial problems are closely linked, since the state-owned oil companies of China, India and Malaysia own 94% of Sudan's oil industry. To achieve a diplomatic consensus behind the takeover strategy, it will be necessary to protect the commercial interests of CNPC, ONGC and Petronas. The economic problem is that  removing 500,000 barrels per day of Sudanese exports from the world market overnight could have seriously negative price consequences in the chronically tight world oil market. 

There is a way to address these problems:

1. A coalition of willing and able governments (for obvious reasons, the UN Security Council is probably not the most appropriate forum in which to try to organize this) would issue a formal request to CNPC, ONGC, Petronas and all other oil off-takers at Port Sudan to suspend exports until the government in Khartoum accepts terms laid down by the coalition (see below) or is replaced by one that will.

2. At the same time, OECD member governments would offer a time swap (oil today for oil tomorrow) to the Sudanese exporters, who would agree not to lift oil at Port Sudan, but instead to take delivery of equivalent amounts from OECD member countries' government-owned stockpiles.  Strategic stocks controlled by the governments of OECD member countries currently hold a little over 1.5 billion barrels of crude oil and products, enough to replace Sudan oil produciton for over eight years. The exporters would have the obligation to re-supply this oil to the OECD strategic stockpiles once Sudanese production is resumed, on terms that would include compensation for the exporters' lost time-value-of money.

3. Coalition governments would provide enforceable guarantees to CNPC, ONGC and Petronas that once Sudanese production is resumed, the companies' current license and commercial positions in Sudan would be preserved or, if not, the companies would be fully indemnified for losses by the coalition governments.

4. If less than 100% of Sudanese oil exporters accept these terms, coalition governments will impose a naval blockade on Port Sudan to ensure complete cessation of oil exports from the country.

The Bad Reason Why This is a Not a Good Idea

Critics of this proposal will argue that government-owned strategic stocks should only be used for the purpose for which they were acquired: to mitigate the consequences of a major world oil supply disruption. In the most likely (but highly unlikely) disruption event -- the shut-down of the Strait of Hormuz -- these 1.5 billion barrels would replace the lost production for around 90 days.  

Some would say that , as protection against the economic consequences of a shut-down of the Strait of Hormuz, a 90-day strategic stock would be about as effective as a sand castle against a tsunami. But whatever protection the strategic stocks offer against the consequences of such a highly unlikely event, why not give up some of this protection temporarily in order to degrade the al-Bashir regime's ability to terrorize its people? If governments were to use strategic stocks to replace Sudan's 500,000/day of exports for two years, and the Strait of Hormuz were then shut down, the remaining strategic stocks would last for 60 days rather than 90. The sand castle would only be two-thirds as tall.

Terms for the Post-Bashir Government

During the period of export suspension, coalition governments should compensate the GoSS for the lost revenue-sharing receipts under the Comprehensive Peace Agreement.  Once al-Bashir or a successor Khartoum government has agreed to the terms specified below, alliance governments would lift the blockade and allow exports to resume. These terms would include the following:

• Alliance governments would establish an interim Oil, Boundary and Budgetary Commission ("OBBC") whose members would be appointed by the alliance governments.

• The Khartoum government would accept the North/South demarcation line specified by the OBBC.

• The GoSS 50% share of revenue from oil production in the South would accrue directly to the GoSS. The Khartoum government's share of revenues from production in both North and South  be paid into a fund controlled and managed by the OBBC.  

• The Khartoum government budget would have to be approved by the OBBC before any funds are released. The OBBC would have sweeping powers to audit all expenditures, and to suspend funding to any ministry found to be using funds other than in accordance with the approved budget. Funding suspended for this reason could be spent by the OBBC as it saw fit.

• The Khartoum government would not alter any of the oil production licensing or other commercial arrangements in place prior to the suspension of production, except with the consent of the OBBC. 

• The terms and conditions of all new licenses for oil exploration or production would have to be approved by the OBBC except in the provinces governed by GoSS.

These terms would give the OBBC powers both to protect the interests of foreign investors in the Sudanese oil industry, and to force the Khartoum government to spend its share of the pie for the benefit of the Sudanese people.

And if it doesn't work? Then by all means, let's proceed to point ten.

Dan Badger

London

April 28, 2008

Candidate Obama to the American People: Commander in Chief

I am pleased to appear before you tonight to explain why I would make a better Commander-in-Chief than than John McCain. To make my case, I will focus on the Middle East, the region that poses the most serious challenges for American and global security.

No Escaping the Past

When asked recently about his support for the Bush administration’s 2002 decision to invade Iraq, Senator McCain said dismissively, "That is in the past." The Senator's implication was that his past judgment on Iraq decisions is irrelevant to this campaign. I disagree. It is not only appropriate to question the Senator's judgment in supporting the fateful 2002 decision, it is essential to do so. Only by comparing the Senator's past judgment on national security issues against mine can the voters decide which of us would exercise better judgment on the challenges the next President will face.

Here is what Senator McCain said on the Senate floor on October 2, 2002:

"Mr. President, I rise today to join Sens. Joseph Lieberman, John Warner, and Evan Bayh in introducing a resolution authorizing our Commander in Chief to do what is necessary to defend the national security of the United States of America from the threat posed by Saddam Hussein.”

"America is at war with terrorists who murdered our people one year ago. We now contemplate carrying the battle to a new front – Iraq – where a tyrant who has the capabilities and the intentions to do us harm is plotting, biding his time until his capabilities give him the means to carry out his ambitions, perhaps through cooperation with terrorists – when confronting him will be much harder and impose a terrible cost.

"We cannot foresee the course or end of this conflict, even though to most of us the threat is abundantly clear, and the course of action we must pursue is apparent."

"As our President has said, Saddam Hussein's Iraq is a grave and gathering danger, a clear threat to American security and the security of our friends in the region."

Here is what I said on the same day:

"But I also know that Saddam poses no imminent and direct threat to the United States, or to his neighbors, that the Iraqi economy is in shambles, that the Iraqi military a fraction of its former strength, and that in concert with the international community he can be contained until, in the way of all petty dictators, he falls away into the dustbin of history. I know that even a successful war against Iraq will require a US occupation of undetermined length, at undetermined cost, with undetermined consequences. I know that an invasion of Iraq without a clear rationale and without strong international support will only fan the flames of the Middle East, and encourage the worst, rather than best, impulses of the Arab world, and strengthen the recruitment arm of Al Qaeda. I am not opposed to all wars. I'm opposed to dumb wars."

My challenge to Senator McCain’s judgment in the fall of 2002 is not the challenge of a Monday morning quarterback. I do not question the Senator's judgment on the basis of what we know now. I question his judgment on the basis of what we knew then and, more importantly, what we knew we did not know.

What We Knew We Did Not Know

Two things should have been clear to anyone with access to US government intelligence on Iraq in the fall of 2002. First, it was clear that there was no credible evidence of any connection between Saddam Hussein's regime and Al-Qaeda's 9/11 attack on America. Yet Senator McCain told the Senate on October 2, 2002 that war in Iraq would be a new battle front in the war on those who perpetrated 9/11.

We now know that the Senator had no evidence to support this statement. In asking the American people to accept his hunch about a connection Saddam Hussein and 9/11, Senator McCain was making the first of two great errors in judgment for which history will hold the Bush Administration and its supporters liable: the conflation of one problem -- al Qaida in Afghanistan and Pakistan -- with a different problem -- Saddam Hussein in Iraq. By leading Americans to believe that these were actually two aspects of the same problem, Senator McCain enabled a war that should not have been fought. And in doing so, he disabled the war that should have been fought, the war in Afghanistan.

The other thing that should have been clear to all in the fall of 2002 was that the American and other intelligence agencies had no reliable information on what was happening inside Saddam Hussein’s regime, especially with respect to weapons of mass destruction. Following Saddam’s ejection of the UN inspections teams at the end of 1998, the world lost its eyes and ears on the ground on Iraq, which had been the only reliable way to gather accurate information about the regime and its weapons programs. From then on, Western intelligence communities were reduced to speculation based on uncorroborated statements and allegations by paid informants.

Here are some questions Senator McCain should answer now, because of their crucial bearing on whether Americans could trust his judgment as Commander in Chief in the future. Given the complete absence intelligence about Saddam's regime and programs, how could Senator McCain possibly have known that Saddam Hussein was a threat of any kind to our national security, let alone a threat of sufficient magnitude to go to war? Was the Senator relying on the misinformed judgments of others, or was he simply playing a hunch?

False Choice

In a speech to the Senate on October 12, 2002, Senator McCain said this: "'The question facing all of us in this body is whether Saddam Hussein's aggressive weapons development, in defiance of the Gulf War cease-fire and a decade of U.N. Security Council resolutions, can stand, when the cost of inaction against this gathering threat could be intolerably high." In so saying, Senator McCain was posing the same false choice as Vice President Cheney when he argued for war saying, "The dangers of inaction exceed the dangers of action."

This false choice between inaction or war was a central rhetorical plank in the administration's case for war in the fall of 2002, and Senator McCain's voice could be heard loud and clear among the members of the chorus. It goes without saying, however, that no thoughtful citizen, public or private, was calling for inaction on Saddam Hussein's regime in October 2002. What thoughtful citizens were calling for, as I did in my own statement on October 2, was a third alternative: containment in concert with the international community.

Here is what Senator McCain said about this option on October 11, 2002:

"The withering under U.N. Security Council auspices of the international inspections regime over the course of a decade, and Iraq's decision to even consider renewed inspections only under threat of force today, make clear that unvarnished faith in the ability of the U.N. Security Council or a new corps of inspectors to disarm Saddam's regime is misplaced."

And in a February 13, 2003 speech, just over a month before the invasion, the Senator reiterated his rejection of containment as a viable alternative to war:

“The threat posed by Saddam Hussein will not diminish until he is removed from power. Disarmament by regime change must be our goal. After one war, twelve years, seventeen Security Council resolutions, various bombing campaigns, the threat of a new war, and the continuing expansion of Saddam’s stockpile of devastating weaponry, placing hope in containment as a means to diminish Iraq’s threat to its neighbors and the world flies in the face of history and ignores the obvious consequences of abdicating to his allies now. Rather than keeping Saddam in a box, an anachronistic attachment to a once effective doctrine actually constrains the United States.

Do Inspections Work?

Let's look at the historical context in which these statements were made.

It is true, as Senator McCain said, that the inspections regime imposed on Saddam Hussein by the Security Council following his 1991 defeat in the Gulf War withered during the course of the decade. As Saddam engaged in an increasingly defiant cat-and-mouse game with the inspectors, the political will of the Council weakened. Other agendas prevailed, perhaps because member states no longer took Saddam Hussein seriously as a threat to regional security.

The crucial fact, however, is that during the period from 1991-1998, when UN inspectors were active on the ground in Iraq, and notwithstanding Saddam's cat-and-mouse game, the inspectors successfully tracked down and destroyed every vestige of the WMD program that Saddam had been pursuing prior to his invasion of Kuwait in 1990.

Then came 9/11. One of the things that day changed most dramatically was the political will of the Security Council, first in its immediate and unanimous support for the invasion of Afghanistan to oust the Taliban, and a year later in its unanimous support for Resolution 1441. This resolution demanded that Saddam Hussein comply fully with all previous Security Council resolutions, and grant unrestricted access to all suspected WMD sites to a UN inspections team headed by Hans Blix, or face "serious consequences."

Blix's team returned to Iraq on November 27, 2002, and on February 14, February 24 and March 7, 2003, Blix reported that he had found no evidence of any active WMD program in Iraq.

At this moment, Senator McCain and the administration committed the second major error of judgment for which history will hold them accountable. Having rejected "unvarnished faith" in UN inspections as misplaced, Senator McCain sided with the administration in opposing the international community's consensus that Blix's conclusions should be endorsed, that his work should continue, and that "serious consequences" should not be imposed unless and until Blix found evidence that Saddam Hussein's WMD program was indeed alive and threatening.

I ask the voters to ask themselves and Senator McCain these questions: given the demonstrated success of UN inspections in detecting and eliminating Saddam's WMD program in 1991-98, even in the face of systematic efforts by Saddam to hobble the inspectors, why would we not have confidence in Hans Blix in 2003 when Saddam was being far more cooperative? What are we to make of Senator McCain's evocation on February 13, 2003 of "the continuing expansion of Saddam’s stockpile of devastating weaponry"? What are we to make of his contention that "placing hope in containment as a means to diminish Iraq’s threat to its neighbors and the world flies in the face of history"?

Here is what I make of these statements. Senator McCain has been proven wrong not only in hindsight. He was also wrong in February 2003 without the benefit of hindsight. At that time the efficacy of UN inspections in Iraq had been proven. By 1998, UNSCOM inspections had been so successful in identifying and eliminating Saddam's WMD programs that he decided to push UNSCOM out. Containment had worked well so long as the Security Council showed resolve, and had failed only when resolve had withered. In February 2003, Security Council resolve was stronger than ever, and there was every reason to believe that containment would succeed.

Tragically, at this moment Senator McCain and the Bush administration chose to turn their backs on the policy of containment based on inspections, rejected the resolve of the international community to support this policy, gave Hans Blix 48 hours to leave Iraq, gave Saddam Hussein 48 hours to resign, and then invaded the country. Senator McCain's final pre-invasion statement, on March 19, 2003, included these words:

"I believe the President of the United States has done everything necessary and has exercised every option short of war, which has led us to the point we are today. I believe that, obviously, we will remove a threat to America's national security because we will find there are still massive amounts of weapons of mass destruction in Iraq."

My final question to Senator McCain on this issue is this: do you still maintain that on March 19, 2003, the President of the United States had exercised every option short of war?

How Many Troops Does it Take to Win?

Senator McCain's judgment in the past on the question of troop levels must also be challenged. Senator McCain credits himself with being an early critic of the administration for failing to put enough troops on the ground in Iraq. The record shows, however, that Senator's criticism did not come early enough. For example, he said not a word when General Eric Shinseki testified before him on February 25, 2003 that the Pentagon's plan to invade Iraq with only 100,000 troops was short by a factor of three or four. Not until eight months later, as the insurgency was gathering strength, did Senator McCain begin to call for higher troop levels.

On October 2, 2002 I said, "the invasion of Iraq would be a war of undetermined length, undetermined cost, and undetermined consequences." These uncertainties didn't bother Senator McCain very much as he urged the nation to go to war, just as they didn't bother President Bush, Vice President Cheney, or Secretary of Defense Rumsfeld. But if General Shinseki had been testifying before me, I would have asked this: "How confident are you that, if we invade with 400,000 rather 100,000 troops, we will succeed in stabilizing Iraq within the 3-6 months time the administration expects?" And if General Shinseki had answered this question with the candor and intelligence he is credited with, he would have replied, "I really have no idea. As a student of military history, I only know that the phrase 'military planning' is an oxymoron after the first 90 minutes of any armed conflict."

The Mind of the Hob-Goblin

I would now like to say something about my own past positions on Iraq.

Writing in the April 2008 issue of Commentary, a former Bush White House aide argues that my position on the Iraq war has been inconsistent. The writer points out correctly that, although I had opposed the war in the fall of 2002, by July 2004 I was saying that I was aligned with the President in opposing calls to bring the troops home.

When I read the Commentary article, I understood for the first time the true meaning of the phrase "consistency is the hob-goblin of small minds." The author of the article apparently believes that if you were opposed to the invasion in 2002 because you foresaw really bad consequences, then you are inconsistent if you do not continue to demand immediate withdrawal every day after the invasion, even if you realize the consequences of this could be disastrous. If, having opposed the invasion in the first place, it was inconsistent for me to oppose precipitous withdrawal 16 months later, then fine, call me inconsistent. But I call it common sense. The consistency that the Commentary writer seems to see as a virtue -- come what may, never change your thinking, and never change course -- is in reality merely the stupidity of the small mind.

By October 2006, after 43 months of war, there was no sign that the Iraqi political class were going to take responsibility for saving their country from failure. There was no sign that the billions of dollars Americans were borrowing and spending was having any positive impact on Iraq's shattered social and political infrastructure, and no sign that sectarian bloodletting would end until the sects had finished the job of separation and cleansing. As a result, I had decided by October 2006 that the Administration's vision of a stable, democratic, inclusive Iraq would remain a fantasy for the foreseeable future. And so my position changed again. I decided it was time to leave.

According to the Commentary writer, this was another flip-flop, further evidence that I really don't know what I think about Iraq and never have, that I decide my positions only by reading the polls. There is of course a better explanation for why I decided in October 2006 that it was no longer wise to stay the course in Iraq. Unlike Senator McCain and the Bush White House, frozen in their "stay the course" mentality, I saw proof in the prolonged failure of the Iraqi politicians that, whether or not additional troops might improve the security situation somewhat, a surge would do nothing to remedy Iraq's political failure or the social and economic failure it has produced.

And there was the question of cost. I do not accept Senator McCain's "whatever the cost" view of America's military engagement in Iraq. Responsible public policy-makers do not ignore costs. Since we surged in March 2007, 763 Americans have died, 5000 American troops have had their lives shattered by crippling injuries, the US Treasury has borrowed $150 billion more to fund the effort. And no serious economist thinks these accounts reckon with half or even a quarter of the true future cost to the American taxpayer of what has been done during the last 12 months.

I therefore decided that the cost to America -- 3 dead soldiers and $400 million every day -- was no longer worth paying. Commentary may call this inconsistent, but I call it smart. Commentary may call it consistent to stay the course, regardless of costs, regardless of facts, but I call it stupid.

Has the Surge Worked?

In April of 2008, Senator McCain and other administration supporters claim that the surge has succeeded, and that this proves that the Senator was right and I was wrong when he supported and I opposed the surge when it was debated in Congress in January 2007.

In that debate, Senator McCain and other supporters made the case that more troops would reduce the level of violence, and that reduced violence would lead to political and social reconciliation, economic rejuvenation, and save Iraq from failure.

What has been the result? In the post-surge stalemate, violent attacks by militias and insurgents have dropped by about two-thirds, and now remained at the level that prevailed in 2004-5. Of course, the drop must also be attributed to the US military having put 80,000 Sunni insurgents on the payroll, Moqtada al-Sadr's cease-fire, and the fact that after four and half years of ethnic cleansing, very few mixed neighborhoods are left in Iraq.

In any event, in post-surge Iraq an average of one American solider is dying every day, while around eight soldiers are suffering life-shattering disabilities. Politically, socially and economically, Iraq remains a failed state, with no meaningful difference between pre-and post-surge Iraq in any domain of the lives of the Iraqi people. The benefits from improved security which Senator McCain and the other surge supporters told us to expect have simply not materialized.

These facts leave me wondering why the administration and Senator McCain maintain that the surge has worked. If the surge was merely meant to reduce the level of sectarian and insurgent attacks and American casualties to the 2005 level, well OK, I guess you could say it has worked. But this is not the definition of success that Senator McCain asserted in pushing for the surge. That definition included the broader goal of rehabilitating Iraq so that it could no longer be described as a failed state. And by every measure I can think of, over a year after the surge began, Iraq remains a failed state. In January 2007 I argued that the surge would bring the Iraqis no closer to the political and social reconciliation without which Iraq will remain a failed state, and that Americans should not be asked to die and borrow more billions of dollars while waiting for the Iraqi political class to overcome its failure. The record shows that I was right, and Senator McCain was wrong.

What Now?

The picture of consistently flawed judgment and blinkered mind-set that emerges from this review of Senator McCain's record on Iraq is not irrelevant to this campaign. The voters should bear this record in mind in deciding whether to accept Senator McCain's claim that, because he has more years of experience than me in foreign and national security policy-making, as commander in chief he would be more likely to make the right choices on what to do now in Iraq.

Today Senator McCain says that it would be a betrayal of the Iraqi people for America to withdraw before defeating the insurgents. I strongly disagree.

The Bush administration's decision to invade Iraq and remove Saddam Hussein from power was a colossal error of mis-judgment on the part of those responsible for protecting the best interests of the American people. However, this decision was potentially a gift of enormous magnitude for the Iraqi people. In an effort to make good on this potential, over five years America has suffered 4000 dead soldiers, tens of thousands soldiers disabled in combat, and has taken out a $1 trillion mortgage which its children will have to pay off. All of this has been in a principled effort to make Iraq something other than the failed state presided over by Saddam Hussein.

Tragically, America's gift of removing Saddam Hussein, and our aspirations and those of the Iraqi people for a new Iraq based on tolerance, democracy, the rule of law and human rights have been betrayed by Iraq's political class. Responsibility for the failure of Iraq and betrayal of its people has passed from Saddam Hussein to the al-Sistanis, the al-Malikis, the al-Hakims, the al-Sadrs, the al-Hashimis, the Barzanis, the Chalabis, and the other Iraqi politicians who are incapable of putting country before tribe, clan or sect.

So this is why I disagree with Senator McCain. America can and should leave Iraq now with its head held high. Despite enormous American sacrifices, Iraq is a failed state that has been betrayed by its political classes. But to call American withdrawal a betrayal by America is completely misplaced, and just plain wrong.

al Qaida in Iraq: What is Wrong With This Picture?

Senator McCain characterizes my proposal to withdraw American troops from Iraq by the end of 2009 as a proposal for "surrender" in the war on terror. He believes that Iraq is the front line in this war, and that American withdrawal would be a victory for al-Qaida and other extremists. In Senator McCain's vision, an emboldened al Qaida would use training camps in Iraq to launch terrorist attacks against America and Europe. In the picture he sees, there would be a surge in sectarian violence following the withdrawal of American troops, prompting Iraq's neighbours to intervene, and igniting war throughout the region.

What is wrong with this picture? Just as Senator McCain's past vision in Iraq was blinkered and flawed, so is his vision for the future. To understand what is wrong with the picture as seen by Senator McCain, let's begin with his analysis of al Qaida.

Early in this campaign I said that if Al Qaida were to use Iraq as a base for training terrorists to attack the USA or other countries, as president I would take military action to eliminate the threat. In response, Senator McCain made a frivolous remark, suggesting that I may not be aware that Al Qaida is already in Iraq. The subject of Al Qaida deserves a more serious and reasoned debate in this campaign. I will open that here, and I challenge Senator McCain to respond to what I have to say on this subject.

As Senator McCain is aware, the organization that calls itself Al Qaida in Iraq, or Al Qaida in Mesopotamia, consists of Iraqi insurgents led by non-Iraqi Islamic extremists. Its objectives are to kill American soldiers in Iraq and drive American forces from the country, to foment sectarian violence so as to prevent the emergence of a stable democracy, and to establish instead a theocracy based on the most extreme version of Islamic law . The organization pays homage to Osama bin Laden, but it takes orders from no-one other than its own leadership in Iraq. It did not exist before the USA invaded, but arose in reaction to the invasion.

Senator McCain is not aware, apparently, that al Qaida's adherents are Sunni, making this organization a natural enemy of Iran. The Senator has repeatedly stated that Iran is training al-Qaida in Iraq, without offering a shred of supporting evidence, and in defiance of the unanimous opinion of every serious student of the contemporary Middle East, all of whom understand that Shiite Iran is not training and would not train al Sunni al Qaida in Iraq.

Why would the Senator persist in asserting what everyone else knows to be false? The answer is that when the possible threats to our national security are being debated, Senator McCain is not all that interested in facts or analysis. He would prefer to make policy based on his hunches, because he believes he knows evil when he sees it. This was Senator McCain's mind-set in the Iraq debate in the fall of 2002, and it remains his mind-set today.

So what would the withdrawal of American troops mean for al Qaida in Iraq? The same thing that turning off the oxygen means for fire. The only thing that al Qaida in Iraq offers the Sunni insurgency is support in their fight to eject American troops from the country. Once the Americans are gone, the Sunni insurgency would no longer have any use for al Qaida, especially its non-Iraqi leadership. Sickened by al Qaida's methods, the Sunni insurgents began to become disaffected with al Qaida in the summer of 2007. Following an American withdrawal, this disaffection will quickly turn to total rejection. The Iraqis who joined al Qaida in order to drive Americans out of Iraq will not move to training camps in Anbar province to plot terrorist attacks against London and New York. They will turn their attention to what is and always has been their more fundamental struggle since the day Saddam Hussein was overthrown -- the civil war against the Shiites.

Senator McCain cannot understand this. He thinks that if we withdraw our troops before having destroyed al Qaida in Iraq -- what he calls "surrender" -- this will be a victory for al Qaida in Iraq, and victory will make al Qaida stronger. The Senator does not understand that such a "victory," if that is what you want to call it, will make al Qaida weaker.

Another False Choice

Unfortunately, it is likely that the Sunni-Shiite civil war in Iraq will continue after our troops are withdrawn, as will the equally brutal wars between the different Shiite factions. For how long and at what level of intensity these wars will continue is and will always be the responsibility of the Iraqi politicians who, up to now, have shown no will to resolve their conflicts. Unlike Senator McCain, I do not think it is any longer the responsibility of American soldiers and taxpayers to pay the price for this failure.

Another thing that is wrong with Senator McCain's picture of what will happen if American troops are withdrawn before defeating the insurgency is this. The Senator believes that without American troops to keep the peace, Turkey will invade Kurdish Iraq, Saudi Arabia will invade Shiite Iraq, and Iran will invade Sunni Iraq. The region will be engulfed in war, oil supplies will be massively disrupted, wrecking the world economy.

So, to avoid this doomsday scenario, Senator McCain thinks it wiser, every day for the indefinite future and for the years to come if need be, to spend one American soldier's life, to shatter 10 other soldiers' lives with debilitating physical injures and 175 with enduring mental illness, and to borrow $400 million that future generations of Americans will have to repay. Every day.

The Senator's doomsday scenario is another example of his bad habit of thinking about international security issues in terms of false choices.

Let's start with Turkey and Saudia Arabia -- two close allies to whom America supplies massive amounts of weapons. I would suggest to Senator McCain that that there is another and better way to dissuade these two allies from invading Iraq than to pay the price of maintaining 140,000 American troops in Iraq. It is to tell these allies to keep their armies out of Iraq, or else live to regret the consequences for their relationship with America.

If Senator McCain doesn't believe Turkey's political and military leaders will take guidance from America on this, he wasn't watching what happened at the Turkish border with Kurdish Iraq over the winter of 2007-8. As for Saudi Arabia, the Senator ought to realize that the Saudi's simply don't have armed forces capable of offensive action in Iraq, even if the Kingdom were foolish enough to want to invade.

The Great Satan

That leaves Iran. I have already pointed out Senator McCain's inability to think clearly about Iran as shown by his contention that Shiite Iran is training Sunni al-Qaida in Iraq. And the Senator also believes that the early withdrawal of American troops from Iraq will allow Iran to broaden and deepen its influence in the region, an eventuality so threatening to America that the Senator believes it is worth paying the cost of maintaining 140,000 troops in Iraq indefinitely to prevent it.

Well, I have news for Senator McCain: Iran's influence in Iraq is already about as broad and deep as could be. As a result of America's invasion, Saddam Hussein's Sunni regime was replaced by a regime made up of three or four Iraqi Shiite factions, each of which has closer ties to Shiite Iran than to Sunni Iraq. The idea that Iran would have anything further to gain by sending its army into Iraq is simply nonsense.

But Senator McCain cannot shake the idea of Iran as an invader nation from his mind any more than he can shake from his mind the idea that Iran is training al Qaida. Why not? The answer is that Senator McCain is possessed with the idea that Iran is the Great Satan. In the picture he sees, America needs to maintain a military presence in Iraq to dissuade Iran from adventuring forth in the region to threaten Israel and/or the oil-rich Arab states of the region.

To see what is wrong with this picture, ask yourself this question: which of the following states has sent its troops across a neighbor's border without provocation within the last 50 years: Iran, Iraq, Jordan, Syria, or Egypt. The answer is all except Iran, who has not sent troops across a neighbour's border for hundreds of years, except when attacked first by Saddam Hussein.

Now ask Senator McCain this question: why are we so afraid of unprovoked Iranian aggression that we believe it is necessary for Americans to die and borrow billions to maintain troops in Iraq? Is this not an another example of the fear-mongering with which this Administration stampeded America to war against Iraq?

Senator McCain's answer is that we must fear Iran and presume its intentions to be aggressive because its leaders have vowed to wipe Israel off the map, and are pursuing nuclear weapons. To which I say that without a single American soldier in Iraq, America and Israel have about ten times as much military muscle as is required to dissuade Iran from any attempt to wipe Israel off the map militarily. If the Senator believes Americans should pay the cost of indefinite occupation of Iraq to achieve further deterrence of an Iranian invasion of Israel, then his ability to weigh costs and benefits in the realm of national security is seriously impaired

False Choices All Over Again

As for Iran's alleged nuclear weapons ambitions, once again Senator McCain indulges his bad habit of posing false choices on national security questions. The picture as seen by Senator McCain is this: "The only thing worse than military action against Iran is a nuclear-armed Iran." What is wrong with this picture? Does it remind you of "The dangers of inaction exceed the dangers of action"? In case you have forgotten, this was Dick Cheney in the fall of 2002. What is wrong with both pictures is that they pose a false choice between two really bad options, as if no better option existed.

The better option in 2002 that Cheney hoped you would not notice was to continue the information-gathering activities of Hans Blix's inspections team in Iraq. If Senator McCain had advocated this policy in preference to a policy of war in 2002, we would know today that Saddam Hussein was not a threat, 4000 brave Americans would not have been lost, 12,000 brave Americans would not have had their lives shattered by crippling injuries, $1 trillion would have been available for other priorities, including the fight against al Qaida in Afghanistan, and American moral leadership would still be recognized around the world.

And there is a better option today than war or a nuclear-armed Iran. It is to accept Iran's proposal for an international consortium to enrich uranium for nuclear reactor fuel at a facility to be built in Iran. Let me explain why.

Before 2003, IAEA inspectors were allowed only limited access to Iran's facilities. Iran was carrying out many parts of its nuclear program in secret, including uranium enrichment and there appears to be evidence of work on warhead design as well. In 2003, Iran confessed that it been carrying out nuclear research & development in secret, agreed to stop, and agreed to give the IAEA unlimited inspection rights to verify this. Between 2003 and 2006, the IAEA was able to verify that no non-peaceful activities were in progress.

At this point the Bush administration stubbornly refused to believe that the IAEA knew what it was talking about, and adopted instead a policy of confrontation and demonization, which was and still is firmly supported by Senator McCain. In what the administration referred to as "diplomacy," they told Iran that America would agree to talk with Iran about its uranium enrichment program if Iran would first and unconditionally concede all American demands to shut it down. At the same time, the administration pulled out all the stops in pressing the Security Council to impose sanctions on Iran.

As of result of this misguided policy, Iran withdrew permission for the IAEA to conduct unrestricted inspections at the end of 2006. The latest National Intelligence Estimate confirms that administration was wrong and the IAEA was right about the accuracy of IAEA findings during the 2003-6 period of unrestricted inspection. But as a consequence of the administration policy, we have blinded ourselves, and can now only speculate on what is going on with Iran's nuclear program. We no longer know with any certainty whether we can trust Iran's assertions that it seeks only peaceful uses of nuclear technology.

What strikes me here is the similarity between the blinkered strategic thinking that led America to invade Iraq in March 2003 and the blinkered strategic thinking that leads Senator McCain to say, "The only thing worse than military action against Iran is a nuclear-armed Iran." Is there not a better option? Of course there is.

Having blinded ourselves in this way, clearly the right policy now is one that will restore our vision. And the policy that will accomplish this is to accept Iran's proposal for uranium enrichment by an international consortium in Iran.

If Senator McCain joins the critics of this proposal, as I expect he will, he will say that this is a bad idea because it would give Iran know-how that can be used for a weapons program. He will say that as soon as Iran's technicians have mastered this know-how the regime will repudiate the deal and throw the consortium out. But he would be wrong, and here's why.

The IAEA and all independent experts in this field will tell Senator McCain that Iran has already mastered the know-how to make weapons-grade uranium if they decide to do so. The problems Iranian technicians are now working to solve are simply those that will allow Iran to enrich faster, whether for civilian use, or for weapons. The proposed consortium would therefore offer Iran no "break-through" or "break-out" nuclear know-how that it does not already possess.

To be clear, implementation of the enrichment consortium proposal will have to be carefully conditioned to assure that we know for certain if and when Iran decides to cross the line between reactor fuel production to weapons fuel production. This is a clear and bright line that the IAEA will have absolutely no difficulty in policing so long as Iran respects the rules which must be laid down. And the minute the IAEA has reason to believe the clear, bright line has been crossed, it will blow the whistle.

Until this whistle blows, the international community can be certain that Iran is not making nuclear weapons. If and when this whistle does blow, the international community will have uncontestable proof that Iran is making nuclear weapons, and can act accordingly. If weapons are what Iran wants, this policy will force Iran to abandon the deniability in which the misguided policy of the Bush administration, fully supported by Senator McCain, allows it to hide.

In closing, I would like to say this to the American people: in deciding whether to vote for me or Senator McCain to be the next President of the United States, one of the most important questions you must ask yourselves is which of us is better suited to be Commander in Chief, which of us will be better able to evaluate real or potential threats to our national security, and which of us will make better choices to manage those threats. I leave you with this question: given Senator McCain's record of misunderstanding the threat to America, choosing to make policy based on hunch rather than information, framing the issues in terms of false choices, and showing total disregard for cost and downside risk in weighing alternatives, do you really believe Senator McCain is the better man for the job of Commander in Chief?

I hope not.

Dan Badger

London

April 2, 2008

To Judges Silberman and Griffith: The Law is an Ass

To: Judges Silberman and Griffith

From: Dan Badger

Subject: Shelley Parker et al v. District of Columbia

I have read your decision in Shelley Parker et al v. District of Columbia, and I am appalled. The jurisprudence you present in this opinion does not pass the laugh test. The acrobatics to which you resort in struggling to justify your position on the politically-charged issue of the right to bear arms are beyond belief. I have therefore awarded this opinion a failing grade of "E" (for entrepreneur). Here's why.

The case presents the court with a simple question: whether the twenty-seven words of 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.") protect only a collective right -- for people to keep and bear arms for purposes of membership in a state militia -- or also an individual right -- for people to keep and bear arms to shoot rabbits.

Rather than decide the case on a strict, narrow and collective reading of the twenty-seven words in front of your noses, you inform us that since you can conceive of slightly clearer language in which the framers might have said that the Second Amendment right is a only collective right, they must have meant that it is not.

Rather than decide the case on a strict, narrow and collective reading of the twenty-seven words in front of your noses, you decide to lift individual words (e.g. "the people," or "bear arms") from the sentence, find other sentences in common usage in the late 18th and early 19th century in which they had different meanings, and conclude (QED!) that these words must have those different meanings in the Second Amendment.

Rather than decide the case on a strict, narrow and collective reading of the twenty-seven words in front of your noses, you decided to scour the historical landscape for "pre-existing" ideas which, you tell us, must inform the meaning of these twenty-seven words.

Rather than decide the case on a strict, narrow and collective reading of the twenty-seven words in front of your noses, you tell us that the first thirteen were inserted by the framers merely as a "for instance," and therefore may safely be ignored so that you can get on with your determination to find an individual right somewhere among the twenty-seven.

Rather than decide the case on a strict, narrow and collective reading of the twenty-seven words in front of your noses, you tell us that since 18 of the other 19 amendments comprising the Bill of Rights confer individual rights, the Second Amendment must, too, even though a plain reading of the twenty-seven words tells us otherwise.

Finally, rather than decide the case on a strict, narrow and collective reading of the twenty-seven words in front of your noses, you found it useful, in your entrepreneurial zeal, to wander on for paragraphs with such blather as "The Federalists who dominated the First Congress offered the Second Amendment's preamble to palliate Anti-federalist concerns about the continued existence of the popular militia." That this sort of American History 210 discourse, written by recently-graduated law clerks, card-carrying members of the Federalist Society, should be allowed to find its way into an opinion of the United States Court of Appeals on one of the must important public policy issues of our era is -- asinine.

Judges who in this way favour advocacy over jurisprudence and entrepreneurial jurisprudence over a strict, narrow and collective reading of the words in front of your noses are guilty of dereliction of duty. If this is not an impeachable offense, it shold be Shame, shame, shame on you judges Silberman and Griffith.

Enough ad hominem. Now for ad rem.

Page 14, first full paragraph: the court finds it passing strange that the framers, if they had meant to confer only a collective right, would not have said so in a sentence whose syntax was more explicit, such as "Congress shall make no law disarming state militias." The court returns to this line of argument in the second paragraph on page 36: "If the competent drafters of the 2nd amendment had meant the right to be limited to the protection of state militias, it is hard to imagine they would have chosen the language they did." Here is the reasoning: although the syntax of the sentence makes it reasonably clear that the right expressed is qualified by reference to militias, since different syntax could have made this clearer, this cannot have been what the framers had in mind. I have a theory as to why the court's imagination cannot grasp why the framers used prefatory-operative syntax to state what is reasonably obvious to readers even after 200 years, but this is a political theory, and has no place in an analysis of the court's jurisprudence in this case.

Nor is it very difficult to turn the court's argument on its head. If the competent drafters of the 2nd amendment had not meant the right to be limited to the protection of state militias, it is hard to imagine they would have chosen to include the prefatory clause. What conceivable motive would have led them to include a prefatory clause whose meaning was irrelevant to the operative clause? The best that the Parker court can do in answering this question is to tell us that "it was quite common for prefatory language to state a principle of good government that was narrower than the operative language that was used to achieve it." (page 36, first paragraph). If true, this merely illustrates the folly of arguments based on the notion that "if that is what they meant, they would have said something different from what they did say."

Page 14, second paragraph: the court finds that the assertion that the 2nd amendment confers only a collective right is an assertion of "militant federalism." Wow! This is militancy redefined. To me and the District of Columbia it simply means that the framers didn't want the Feds to think they could disband state militias.

Page 14, last sentence of second paragraph: the court finds that scholars who seek to occupy a middle ground between the individual and collective right models to be "entrepreneurial." Does not the court find itself to be entrepreneurial in divining that, since the framers could have adopted more straightforward syntax in asserting a collective right, they could not have been asserting a collective right?

Page 18, third paragraph: the court finds that the most important word in determining whether the 2nd amendment right is an individual one is the word "people." Wait a minute! In determining whether the 2nd amendment sentence confers an individual right, the collective meaning of all twenty-seven words is far more important than the most important single one of the twenty-seven words. Why would the court focus on the meaning of the single most important word rather than the entirety of the sentence? Something is up.

Sure enough. Here's what is up. The court looks for its "single most important word" in other provisions of the constitution, provisions where the qualifying prefatory clause of the 2nd amendment is absent. Since in those other provisions "people" pretty clearly means individuals, it must refer also unqualifiedly to individuals in the 2nd amendment, notwithstanding the prefatory clause! Voila!

In deciding whether the 2nd amendment confers an individual right or only a collective right, anyone who is not an ass would rearrange the syntax of the 2nd amendment sentence so that it read as follows "Because a well-regulated Militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed." Then, any court that is not an ass would decide that if a state decides to prohibit an individual from bearing arms where such prohibition is neither necessary to nor impinges on the state's ability to maintain a well-regulated militia, the state has every right to do so.

Page 20, first paragraph: the court finds that the cited Supreme Court language makes it unlikely that the Supreme Court views the 2nd amendment right as only collective. Why? The Supreme Court language refers to classes of persons who are part of or can be considered to be part of a national community. By what reasoning does the Court of Appeals find that this Supreme Court language belies the view that the 2nd amendment right is not collective?

Page 20, second paragraph, first two words ("In sum"): If that's the sum, then this court is pathetic, and (QED) the law is an ass.

Page 20, last paragraph: the court finds that, since an individual right to bear arms existed before the Constitution was written, and since the Constitution says the "the right to bear arms shall not be infringed," the Constitution must be protecting the pre-constitutional individual right. But why, if that is what the framers intended, did they qualify the operative clause by the prefatory clause? Or looking at this from another perspective, why should the court be so entrepreneurial as to decide that the framers gave a hoot about the struggle with the Stuart Monarchs in late 17th century England? If the framers did, why didn't they say so when they wrote the 2nd amendment? If they didn't, why does the court think it can base its decision on such enterpreneurial reasoning as this: "to determine what interests this pre-existing right protected, we look to the law, private purposes for which people of the time owned and used arms."

This is strict-construction jurisprudence taken to the power of minus 2. Not only does this court refuse to speculate on what the framers might have intended if they knew what we know today, this court tells us to disregard the plain meaning of what the framers wrote when they wrote it, including the explicit prefatory qualifier relating to militias, and instead to divine the meaning of the 2nd amendment sentence by reference to ideas that were floating about in the 18th century juridisphere before the 2nd amendment was drafted.

Page 23, second paragraph: the court finds that, notwithstanding the prefatory clause, the meaning of the 2nd amendment can only be divined by looking at the Bill of Rights as a whole. No reason is given for ignoring the particular in favour of the general. This paragraph then makes the following remarkable statement: "The collective right advocates ask us to imagine that the First Congress situated a sui generis states' right among a catalogue of cherished individual liberties without comment." Without comment? What about the prefatory clause? Is this not a "comment" of the most profound significance? In this same paragraph, the court declares that "we should read any supposed ambiguities in the Second Amendment in light of its context," and the court's favoured "context" for this is "every other provision of the Bill of Rights, excepting the Tenth."

The court's entrepreneurial reasoning here degrades the intellect of the founders. The court treats the Bill of Rights as a "catalogue" into which the founders tossed a collection of concerns about protecting individuals and states against the feds. The court reasons that since 18 of the other 19 entries in the catalogue deal with individual rights, this catalogue entry must also, even though the framers chose to include in it a clause stating plainly their concern to protect a right of "the people" as members of a collective. The court finds that we should disregard what the plain meaning of framers words as written in this amendment, and assume they couldn't have meant anything different here than what they meant in 18 of the other 19.

Page 24, second and third paragraphs: the court finds it wrong to interpret the phrase "bear arms" as an exclusively military construction, because "it would hardly have been unusual for a writer at the time (or now) to have said that, after an attack on a house by thieves, the men set out to find them "bearing arms." OK. So what? At the risk of sounding like a broken record, has the court not noticed that the 2nd amendment reference to a right to "bear arms" includes a prefatory clause referring to the raising of a militia? Is it not entrepreneurial for the court to decide that because it was not unusual in the late 18th and early 19th centuries for the phrase "to bear arms" to be used in connection with individuals, or because the dissenting delegates at the Pennsylvania ratification convention declared the the people have the right to bear arms for the purpose of killing game, the framers must have had an individual right in mind in drafting the 2nd amendment, notwithstanding the prefatory clause?

Page 21, last paragraph: the court finds that an individual right to bear arms existed prior to the writing of the 2nd Amendment, and the 2nd Amendment must therefore preserve this pre-existing right. The fact that the 2nd amendment says nothing about preservation of a pre-existing right doesn't stop this court from feeling free to interpret the twenty-seven words according to its own lights. The court finds that what the amendment "really" means is, "The states shall not infringe on the pre-existing right of individuals to keep and bear arms."

Page 27, first paragraph: this is a truly alarming paragraph. The court finds that, because three sitting members of the Supreme Court have understood "bear arms" as used in the 2nd amendment to have a meaning beyond soldiering, the operative clause of the 2nd amendment has a private meaning. This court does not inspect the reasoning of the three sitting justices in the other cases. This court finds it enough to note the opinions of these justices in those other cases, and cites the fact of their findings rather than any reasoning therein as a reason for deciding the case before it.

Page 27, second paragraph: the court finds it risible that the meaning of the word "keep" should not be analysed separately from the words "and bear arms" to which it is connected in the 2nd amendment because the plaintiff in the case elsewhere argues that "every word must have its due force and appropriate meaning."

First, the court should not evaluate the risibility of an argument on the basis of its consistency with other arguments made by the same party. The court should only find an argument to be risible if it is. The fact that one argument is inconsistent with another doesn't make it risible. It makes it inconsistent.

More to the point, the plaintiff has merely said that every word should have its due force and appropriate meaning. The plaintiff has not said that the due force and appropriate meaning of every word should be evaluated without reference to the context of the sentence in which is uses. It is only this court that believes that each word of the 2nd amendment should be accorded "an independent significance," without stating why. But I have my suspicions.

Page 33, first paragraph; the court finds that the current congressional definition of the "Militia" accords with the definition embodied in the Second Militia Act of 1792. This is hard to credit. The current congressional definition, according to the Court, is all able-bodied male citizens between the age of 17 and 45 even if they are not members of the Nation Guard or Naval Militia. In other words, private citizens. The Second Militia Act definition, as reported by the court, refers explicitly to enrollment by the captain or commanding officer of a company, who shall notify the citizen that he has been enrolled. Remarkably, the court goes on to find that "there was no organizational condition precedent to the existence of the 'Militia' as defined in the Second Militia act," and that the Second Militia act definition of "militia" refers only to "raw material." The court does not explain why it finds that there could have been enrollment by captains or commanding officers who notify citizens of their enrollment without some sort of organization, or why it finds that the "Militia" under the 2nd amendment is therefore includes the entire "raw material" of "a large segment of the population." Here the court finds by fiat. And entrepreneurial fiat at that. No reasoning whatsoever is presented to support this finding, on which the rest of the court's reasoning then rests. And what are we to make of the court's statement in the following paragraph that "we quite agree that the militia was a collective body designed to act in concert." While this statement is not risible, it is certainly inconsistent.

Page 35, second paragraph: the court finds that "the popular nature of the militia is consistent with an individual right to keep and bear arms." So what? The question is not whether the popular nature of the militia in the late 18th century was consistent with the right to bear arms. The question is whether the framers meant to protect an individual right to bear arms where this was not associated with the formation of the militia. Does the court believe that the defendant in this case has the burden to prove that an individual right to keep and bear arms is inconsistent with the popular nature of the militia in the late 18th century? Please explain.

This paragraph concludes with another remarkable sentence: "Preserving an individual right was the best way to ensure that the militia could serve when called." On the face of it, this is false. The best way to ensure that the militia could serve when called was to enroll the men between the age of 17 and 45 and require them to have arms ready to hand for use in an organized militia to fight an organized enemy. This is the right that the 2nd amendment protected. On the face of it, this has nothing to do with preserving an individual right to keep weapons to defend himself in his home against an intruder or to kill rabbits. Entrepreneurial legal theories about how the role that militias played in the late 18th century are today played by private citizens in their own homes have no place in the rulings of an intelligent court.

Page 35, last paragraph, last sentence: "It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it. We think the 2nd amendment was similarly structured." Here the court proclaims openly its entrepreneurial approach to deciding this case. The prefatory clause is not to be read as restricting the ambit of the operative clause. It merely opens the door to broader interpretations. All broader interpretations are allowed, including the individual-right interpretation. The prefatory clause merely states explicitly one interpretation (the collective right) among many that the framers may have had in mind. Go for it!

And by the way, was it not equally or more common for prefatory language to state a principle that was not intended to be narrower than the operative principle that followed, but rather intended to limit the applicability of the operative principle to the purposes declared in the prefatory principle? It is nice to hear that the court thinks the 2nd amendment is not such a case, but it would have been good to hear why.

Page 36, second paragraph: the court finds that if the framers had only meant to protect a collective right, they would have written, "Because a well-regulated Militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed." Because this is not what they meant, because they meant to protect an invididual right as well, they wrote something different. They wrote, ""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."

Page 38, first paragraph: the court finds in the absence of references to the operative clause in the recorded debates of the First Congress a "likely indication" that the framers had in mind in an individual guarantee. This of course can only be accomplished by sliding under the door of this opinion a burden of proof on defendants to show why the prefatory clause should not be ignored in interpreting the operative clause. Since the legislative history is silent, that history cannot help to meet this burden. Therefore the court can findd that the absence of legislative history supports its view that the prefatory clause can be ignored. If course, if the burden of proof lay with the court to show why the prefatory clause should be ignored, the absence of legislative history would be of no use to them. Such jurisprudential leger-demain is -- asinine.

Page 39, first paragraph: the court finds that, because the catologue of protected rights cited in Dred includes the operative clause of the 2nd amendment without mentioning the prefatory clause, the Dred case "expresses the view, albeit in passing, that the the Second Amendment contains a personal right." What wizardry! How can the omission of the prefatory clause "in passing" be construed as the expression of a view that it should be ignored in interpeting the amendment? The Dred case was not concerned with the meaning of the right expressed in the Second Amendment. It was merely catologuing "in passing" the Bill of Rights protections. This paragraph also deserves the grade of E (for entrepreneur).

Page 41, first paragraph: the court finds the Robinson "tends to cut against any version of the collective right argument" on the basis that "the individual nature of the permitted regulation [regulation prohibiting carrying concealed weapons] suggests that the underlying right, too, concerned personal ownership of firearms." Perhaps, or perhaps not. Perhaps the Robinson court recognized full well that the second Amendment protected no individual right, and was merely asserting as well the state's right to regulate the conduct of a militia member who wanted to carry concealed weapons. Either way, does this kind of speculation deserve to be given any weight whatsoever in an opinion analysing the meaning of the Second Amendment right?

Page 41, second paragraph and following: the court finds that Miller "implicitly" assumes the individual-right interpretation of the 2nd amendment. In the second paragraph on page 42, the court tells us that the Miller opinion "is most significant for what it omits." If your jurisprudential-entrepreneur-entering-the-room alarm detection system is not ringing loudly before you even finished reading this sentence, you need to get your alarm system checked. The government put forward a two-pronged case in Miller. The Supreme Court's decision was silent on the prong arguing that the right is not individual, basing its decision instead on the prong relating to the type of weapon in question. In the second paragraph on page 43, the Parker court tells us that if the Miller court had intended to endorse the first prong, it would have done so. And, since the Miller court is silent on the first prong, the Parker court finds the Miller court "implicitly" rejected the first prong!

Page 45, second paragraph: Parker court finds that, because the militia the framers had in mind consisted exclusively of private individuals, "attempting to draw a distinction between the use of Arms for private purposes and the use of Arms for militia purposes would have been an extremely silly exercise on the part of the First Congress..." Further, the court "does not see how one could believe that the First Congress, when crafting the Second Amendment, would have engaged in drawing such a foolish and impractical distinction...."

The logic in this reasoning is hard to find. Militias were comprised of private individuals. The framers wanted to protect the ability of individuals to bear arms so that they could participate in the militias. They wrote the Second Amendment saying so. The framers were not drawing distinctions, foolish or otherwise. They were simply saying that individuals had the right to bear arms because this was necessary for raising militias. They were utterly silent on the question as to whether individuals have right to bear arms for the purpose of shooting rabbits.