I really enjoy Garmin’s Christmas adverts. They’re clever and make me want to buy a Garmin. I already have a Garmin, though, and I love it. I’m taking it on my trip to Italy. Which reminds me I need to buy the maps for Italy for it before I go. Enjoy!

It’s that time of year again. So it’s snowing here at WoPSR.net and the Magic Special Buy Me Stuff for Christmas Happy Funtime Wow Wishlist Hat™ is back. I also moved the links from the right side to the left side and added a Flickr widget to the right side. It shows the latest three photos I’ve uploaded to Flickr. Clicking one will open it in a lightbox. If you click on the heading, “Flickr”, it will take you to the Flickr page, which has a full gallery. You can eventually get to my actual factual Flickr page on Flickr’s servers by clicking on images in the gallery.

I’ve set up a Flickr account because I need a safe place to store all the hundreds and hundreds of photos I’m going to take this Christmas. I am going to Italy for two weeks: December 19th through January 1st. I will visit Rome, Florence and Venice, with day trips to Vatican City, Pompeii, Orvieto, Pisa, San Gimignano, Assisi, Siena, and Maranello, where the Galleria Ferrari is. I will be doing all the classic touristy stuff — climbing the Duomo at the Florence Cathedral, visiting the Sistine Chapel, touring the Roman Catacombs, posing like an idiot in front of the Leaning Tower of Pisa (here are some examples), and riding in a Venetian gondola. Except in winter. At Christmastime. Which is not the tourist season (excluding Catholics who like to go to Vatican City around that time of year).

I’ll be taking along with me my new spiffy Christmas present to myself: a nicely equipped DSLR package:

• Body: Nikon D90
• Wide Zoom: AF-S DX Nikkor 18-55mm f/3.5-5.6G VR
• Telephoto Zoom: AF-S DX 55-200mm f/4-5.6G ED-IF VR
• Fisheye: AF DX Fisheye Nikkor 10.5mm f/2.8G ED
• Sticks: Manfrotto 055XPROB
• Panorama Head: Nodal Ninja 3 MkII w/RD3L 6-8-30 Rotator & EZ Leveler II
• Geotagger: di-GPS Mini 3L-SD90

You will notice the fisheye and the panorama head in there. I plan to make some lovely panoramic photos of the very best things to see in Italy. I will be using PTGui Pro to make the panoramas. I probably won’t make them until I get back, though, because they require quite a bit of processing. If you see one in the Flickr, consider yourself very lucky.

(For the petty tyrants at the FTC, I didn’t get anything for free. I paid full price for everything myself. Anything good or bad I have to say about any products mentioned here should be taken as the remarks of an ordinary consumer, not of a paid reviewer.)

I will probably review some or all of the camera stuff when I get back, after I see how well it performs.

Pisa Photos (I didn’t take those photographs):

1. Starts with a Bang » A Free-Fall Follow-Up
2. All Things Kendall + Carolina » Tradition!
3. Starts with a Bang » How Stable are Skyscrapers?
4. Royal Navy » RFA Cardigan Bay » A Group Visit to the Leaning Tower of Pisa

Remarks of Sen. Goldwater on the Limited Test Ban Treaty before the U.S. Senate, September 19, 1963.

Mr. President, after reviewing the remarks made in this Chamber, and the testimony regarding the proposed limited nuclear test ban treaty, I am impressed by three arguments–one in its favor, two in opposition.

In favor of it, after all is said and done, is a hope, usually described as a faint glimmer, that this may be the first step toward easing tension in the world. It is difficult, if not impossible, to argue with a hope. It is an emotional thing; and in its soft and gentle glow, arguments appear harsh. The more fragile an illusion, the more rude must seem the attempts to shatter it.

I have warned, and will continue to warn, that nuclear weapons are not the cause of tension in this world; that if all were to disappear magically overnight, the tension would remain, so long as world communism remains dedicated to aggression and obsessed by its irrational vision of man as a mere cog in the machine of history.

But hope heeds only itself. How does one remind hope that, hitherto, on-site inspection has been the qualification of our trust of any arms control scheme? How does one remind hope that the technology of remote detection still has not developed fully to a point where it can replace such inspection? Or how does one tell hope, sprung from fear, that fallout is less a present threat than smog and fumes of everyday life? If we say these things, hope–revulsed–shrinks from our harsh words. One who says these things stands alone, a sad, somber, and unwelcome guest in a house of celebrants.

We are, apparently, well past arguing with hope. The future will shatter the hope and will sober the celebrants. But we must wait.

For my part, and the part of the other few who must heed other voices in their conscience, there is only the time now to say why we will vote, as we must, to oppose approval of this treaty. I perceive two reasons, basically; and I have based my decisions upon one.

First, there is the reason that this treaty is a political ambush, baited by the necessity of the Soviet to ease the many pressures upon its tyranny. This has been discussed on this floor. The argument impresses me; and I share, with those who have made it, bewilderment at why freedom is aided by putting salve on the wounds of tyranny. But that is not the argument which, alone, moves me to vote as I must and as I will.

I will vote “no,” because of how I read history and perceive the future. I see in our history, in this nuclear age, that what peace we have had has been possible because of our strength. I see in our history the clear course of Soviet aggressions and breaches of the peace: They have poured through gaps in our strength. They have been stopped when those gaps are closed or were precluded when our guard remained high.

I see no change in the future until or unless the objectives of communism, not merely their weapons, change. And not even hope has spoken to us so far of a change in those objectives. Rather, all say that the objectives remain unchanged. But hope, it seems, can hear that truth and still proceed, whistling past the graveyard of experience.

Thus, if strength is the shield of peace and weakness the way to war and defeat, it is the impact upon our strength that concerns me most.

What is that impact? have we not heard assurance after assurance that our strength will be upheld under this treaty? We have, indeed.

But assurances are not facts, promises are not performances and I do not feel that freedom’s strength, in a time of freedom’s peril, can be armored by either. Such strength is a matter of here and now, not of “if and when.” Real hope must be founded upon real strength.

There is a catalog that has been laid before us of the price in strength we will pay under this treaty. Have we seen a similar catalog of a Soviet price? Hope may see such a catalog; reality does not.

The major heading of this catalog of America’s price, America’s strength, is that the treaty, perhaps gently but nonetheless firmly, closes the door of knowledge.

Now the Senate must pardon me for speaking of real weapons in the real world. As I have said, the words sound harsh in the glow of hope. Truth often does.

There has been work underway in our laboratories toward the design, development and test of a device with a yield of 80 to 100 megatons. Now the door will close on that, if this treaty is ratified. Does it close on similar knowledge for the Soviets? We only know that they have tested–tested, mind you, not just conjectured–devices with yields approaching that range, and we have not, and we will not under this treaty.

[Editor's note: Tsar Bomba, the largest nuclear device ever detonated, with a yield of 50 megatons, was detonated by the U.S.S.R. on October 30, 1961. The device had a design yield of 100 megatons, but was dialed back for fear of excessive fallout.]

We have never tested fully the stamina of our hardened missile emplacements. The treaty will close the door against such tests. Will it close such a door for the Soviets? We only know that there is evidence that they have tested–have tested, not theorized–hardened structures.

Not knowing whether our missile emplacements or missile sites will withstand a severe blast, how can we be sure of our great deterrent, which is a second-strike capability? How can we ever be sure that any missiles will leave their sites with the lack of knowledge that we have of the environments to which they will be subjected?

Through the eyes of hope, of course, we see tests of major weapons and systems as unnecessary. Hope says that what we have is enough, that these high-yield devices are of minimum military efficiency. Lapsing only for a moment into the language of harsh fact, it is asked if several 20-megaton devices are not far better than one 60- or 100-megaton device. Again, the answer must be along the horizons of knowledge and not along the edges of the statisticians ledger sheet.

It is the knowledge of the effect, the environmental effect, of high-yield explosions, the sort we have not tested and will not test under this treaty–it is in such knowledge that we will be weakened by this treaty.

Prompt gamma pulses from high-yield explosions are known devastatingly to distort electronic circuitry.

[Editor's note: A beautiful example of refusal to split the infinitive!]

We know very little about that subject. We know that megaton yields of which the enemy is capable could render unusable our entire communications system. It would even render unusable our entire domestic electric systems at astonishingly high distances. Since my colleagues have not been to well informed in that field, at the end of my remarks I shall ask consent to have printed in the Record some information that I have gathered on that subject, but I shall not offer it now.

Interference with electronic triggers is an area of grave concern. So is the effect upon missile guidance systems. so grave is the concern, that our military men must ask if the Soviets do not have the capability, with the knowledge gained in their exclusive high-yield tests, of thoroughly disrupting our retaliatory missile systems. They must ask if their systems can survive the melt-down of fissionable materials by neutron impact, the effect of X-rays, the disruption of communications and radar blackout from beta rays, from gamma rays, from fireball effects.

Ask the men who must man the missiles and they say tests are needed. Ask if the Soviets have not already tested in this area and we find that we do not know–but there is ample evidence upon which to presume that they have.

Ask the man upon whose command rests 90 percent of the strategic striking power of this Nation: Ask General Power the impact of this treaty upon the strength about which he knows as much as any man. We have all heard his answer. This treaty is not in the national interest.

Ask the man whose job it has been to work with the most advanced weapons system: ask General Schriever the impact of this treaty. We all have heard his answer. He felt he could protect his country better without the treaty.

And what of the Joint Chiefs of Staff altogether? Remember now, if you will, only that they finally supported the treaty because of many safeguards, many promises, and political advantages of which other had spoken. But remember every other day of your life, every day that the time bomb of Communist treachery ticks closer to detonation, that they spoke and spoke clearly of military disadvantages under this treaty.

Pray God that we do not have to remember that under attack, weakened and unprepared.

Remember also their warning that a state of euphoria would be the most deadly consequence of the treaty. Remember that as we now officially study increased trade with the Soviets. Remember it when the next steps are taken, the pacts proposed, the agreements signed. It is not too late to remember those things now, but other, more popular tunes seem to dance in the air.

I shall not recite the page after page of cataloging of the U.S. price in strength that this treaty exacts. Senators know of them; they have heard or read them. They can restudy them. Let me just sum up the price: Under this treaty we close the door on sure knowledge of the survivability of our second-strike capability, the very capability which, until know, has been the shield of peace in this world. We halt the search for the widest span of nuclear know-how at a point where the total test yields of the Soviet are a full third greater than our own.

If I had no knowledge of weapons and of the enemy, then I would wish also to vote for this treaty and share the brief illusion that it brings. But I have lived too long with reality, too long with the men who are dedicated to our defense, too long with the facts of the enemy’s dedication, to discard all that I am and all that I know.
I will vote against this treaty because it will erode our military strength. I will vote against this treaty because it preserves the enemy’s advances in high-yield weaponry while freeing them to overtake our lead in low-yield research. We pay a price; they do not.

I do not vote against the hope of peace, but only against the illusion of it. I do not vote for war, but for the strength to prevent it.

I have been told, as have others, I am sure, that to vote against this treaty is to commit political suicide.

I will vote against this treaty because in my heart, mind, soul and conscience, I feel it detrimental to the strength of my country.

If it means political suicide to vote for my country and against this treaty, then I commit it gladly. It is not my future that concerns me. It is my country-and what my conscience tells me is now best I may preserve it.

The Senator then asked and was granted unanimous consent to include additional written materials in the Record, and then responded to questions from the floor.

Source: 1963 Cong. Rec. 17557-58.

Any typos are my own. I typed it rather quickly.

Attorney Alan Gura, with whom I had the pleasure of dining just before he argued District of Columbia v. Heller to the United States Supreme Court, is now challenging Chicago’s handgun regulations. The Court granted certiorari last month. The case, McDonald v. Chicago, goes further than Heller did because the District of Columbia is a Federal jurisdiction. Heller didn’t address whether the Second Amendment also applied against state governments. McDonald will now try to answer that question.

Applying the protections of the Bill of Rights (which on their face apply only to the Federal government) to the states is a legal process called incorporation, because these protections are, one by one, deemed to have been “incorporated” into the 14th Amendment’s Due Process Clause. Due Process incorporation is a messy, convoluted business because it requires finding that a protection found in the Bill of Rights is essential to the concept of ordered liberty and deeply ingrained in our nation’s history and tradition, such that not restraining the states would deny citizens of a fair day in court. Due Process is a clunky way for the Federal government to go about protecting individual rights at the state level. A much better way would have been to use the 14th Amendment’s Privileges or Immunities Clause.

The Privileges or Immunities Clause is little-known by the general public. The public knows about Equal Protection and Due Process, but not Privileges or Immunities. It reads:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

It sounds like an amazingly powerful tool for the Federal government to use to keep state governments from violating individual rights protected by the U.S. Constitution. But it isn’t.

In 1865, Louisiana passed a law granting to the City of New Orleans to charter an exclusive slaughterhouse operator. The goal was to reduce slaughterhouse waste ending up in the Mississippi, and its effect was the confiscation of private slaughterhouses in and around the city and the creation of a politically powerful, government sponsored slaughterhouse monopoly. Independent butchers, now out of jobs by government fiat, sued under the new 14th Amendment, arguing that all three clauses (Privileges or Immunities, Equal Protection, and Due Process) independently prohibited the State of Louisiana from doing what it had done. The suits were addressed together by the Court and are today collectively referred to as the Slaughterhouse Cases, decided in 1873.

The Court upheld the monopoly. It ruled that Equal Protection did not protect the butchers because they were not being discriminated against on the basis of race, and that Due Process did not protect the butchers because they had not been excluded from the political process. (Substantive Due Process, the modern doctrine of incorporating substantive rights into the 14th Amendment, arose much later in response to the Slaughterhouse Cases.) And most depressingly, it ruled that Privileges or Immunities only protected rights peculiar to being a citizen of the United States (as against state citizenship). The clause has been effectively meaningless ever since. Substantive Due Process doctrine arose later as a way to shoehorn Federal Constitutional rights into the still-operative Due Process Clause. Had the Privileges or Immunities Clause remained viable, there would have been no need to individually examine each protection in the Bill of Rights to see whether the rights they protect are “essential to the concept of ordered liberty” and “deeply ingrained in our nation’s history and tradition” before requiring state governments to observe them. The Privileges or Immunities Clause should have done this automatically.

The protections of the Second (right to bear arms), Third (against quartering of soldiers), and Seventh Amendments (right to trial by jury in civil cases in excess of $20) have never been incorporated into the 14th Amendment’s Due Process Clause and therefore do not apply against the states. If the Privileges or Immunities Clause were viable, most scholars agree that it would include all the rights protected by the first eight Amendments.

Mr. Gura will be arguing in McDonald v. Chicago, inter alia, that the Court should reverse its ruling on the Privileges or Immunities Clause from the Slaughterhouse Cases.

Popehat has excellent commentary on the case and its possible implications.

While I dislike the rule from Slaughterhouse and would love to see it reversed, I do not think the current Court will like this argument very much. Substantive Due Process doctrine is too old and established to get tossed out by this Court. I will remain quietly hopeful, though, because I know that if anyone can convince the Court to make a change, Mr. Gura can.