I’m allergic to carrying out social policy arguments through the medium of Constitutional law, and a skeptic about “originalist” theories of Constitutional interpretation. Still, all Americans ought to acknowledge some sort of allegiance to the deal embodied in the founding document, and textual analysis must have some relevance to determining what that deal meant.

The meaning of the Second Amendment is controversial largely because of the underlying quarrel about gun control. At a textual level, though, the dispute revolves around the meaning of the introductory subordinate clause about “a well-regulated militia.”

The gun controllers would like “militia” to mean “state-sponsored reserve troops,” or what we now call the National Guard. The gun-rights folks would like it to mean what it seems to have meant in 1791, which is the whole body of (male) adult citizens, privately armed but available for collective defense.

If the latter is the right interpretation, then the “right of the people to keep and bear arms” as part of the militia would be an individual right, and a ban on private gun ownership, however desirable socially (for my doubts on that issue, see here), would face a Constitutional bar.

Let me assume, arguendo, that the gun-rights people have the rights of this textual issue. There remains the question of what arms an individual militia member may lawfully keep and bear. Not, presumably, a nuclear weapon, a tank, or a batch of anthrax spores.

The following argument occurred to me; having checked it out with a Second Amendment scholar on the gun-rights side of the question, who did not collapse in uncontrollable laughter, I offer it to the world, or at least to the blogosphere, for what it may be worth. As usual, I write under the correction of those who know more than I on this topic, and will pass their wisdom along to my readers. Here goes, then:

A militia member fights as a soldier, with whatever arms are conventional at the time, and fights lawfully according to the laws of war at the time.

A side-arm is not a weapon of war, because it lacks the range to strike the enemy. No private soldier carries one. Side-arms are for officers, to threaten, or if need be to shoot, disobedient subordinates. The rank-and-file carry long guns.

Moreover, to be lawful, a weapon must be carried openly. A concealed weapon is carried by a spy or an assassin, who can be executed as an “unlawful combatant.”

Ergo, a handgun is not a militia weapon, and in particular a concealed handgun is not a militia weapon.

Ergo, the Second Amendment provides no guarantee of an individual right to own handguns, or to carry them concealed.

Now this proves way too much for the comfort of the gun controllers; under this theory, a fully automatic AR-15 or a rocket-propelled grenade launcher would be militia weapons, as would the fabled “assault rifles.” But, if valid, the argument suggests that handgun controls are likely to pass constitutional muster. And of course it’s handgun controls, and especially rules about concealed carry, that are now at the center of the political argument.

Of course, even if this argument shows that handgun controls, or even a ban on any handgun ownership by individuals, would face no Constitutional bar, it can’t show (what may in fact be false) that any given control measure would improve public safety. But it does suggest that if the National Rifle Association wants to defend the Second Amendment, it ought to remember the meaning of the term “rifle.


Dwight Meredith of P.L.A. provides a link to his post reviewing the scholarly literature on the general Second Amendment question, with several links, including one to a piece by Glenn Reynolds in his law-professor hat. Meredith argues that Supreme Court recognition of an individual right to keep and bear arms would be good for the gun control forces, because:

1. The right, if construed as Reynolds construes it, in terms of an individual right to keep and bear that exists primarily for the purpose of militia service, would be subject to any reasonable restriction that did not amount to disarming the people. This, says Meredith, would allow the gun controllers anything they could reasonably want, and much they wouldn’t even thing about asking for.

2. A Supreme Court decision would, he says, help de-mobilize gun rights advocates politically by giving individual gun owners assurance that their weapons could not be confiscated. (This instantiates one of Eugene Volokh’s proposed solutions to the generalized “slippery slope” problem.)

The article by Reynolds asserts that the right to keep and bear is limited to weapons ordinarily used by soldiers, and points out that “assault rifles” are therefore squarely protected. But he doesn’t directly address the hand gun/long gun distinction.

More to come, no doubt.


Glenn Reynolds responds. It seems we more or less agree, though he suggests that one could plausibly distinguish (as Tennessee jurisprudence apparently does) between “military” and “criminal” handguns. Again, if Reynolds and Meredith are right, such a distinction would be good news politically for the gun-control forces: if in fact a Constitutionally protected right to keep and bear would weaken the gun-rights groups politically, a finding that the right existed but didn’t apply to handguns would undo that benefit.

It is therefore, perhaps, fortunate (from the viewpoint of gun controllers) that I seem to have been wrong about the military use of handguns. I was aware that officers and MPs carry sidearms, and that privates and non-coms are issued sidearms for self-defense while carrying out either non-combat assignments in or near combat zones or combat assignments (as combat engineers, tank crews, those operating crew-served weapons) where long guns would be in the way. None of those seem to me relevant to the notion of a militia, thought of as a group of ordinary citizens assembling ad hoc for local defense.

But there are also, several correspondents inform me, significant numbers of cases in which ordinary combat soldiers need, and use, handguns as offensive weapons (in house-to-house or tunnel fighting, for example.) One reader reports:

I carried a sidearm, as a mid-level enlisted man, just last year in Central Asia. It was there in those cases when I could not carry a rifle. I was issued both, BTW, and I chose which to bear according to the situation.

That being the case, the handgun/long gun distinction can’t be made to do the work I proposed for it.

On the other hand, the concealed weapons idea seems to be on firmer ground. (One reader pointed out that a resistance unit might need concealed weapons, but such forces are not, in general, lawful combatants, however much we admire the work they do.)

Thanks to my correspondents for improving my state of knowledge.






I’m posting the full text of this story from today’s New York Times (with thanks to appellateblogger Howard J. Bashman for finding it). If I tried to paraphrase it, you would suspect me of making it up. In fact, I lack the talent, if not the gall, to invent anything this silly.

I’ve highlighted the good part. It probably doesn’t matter at all legally, but it might matter to the Justices, and it ought to matter to the voters

A couple of questions:

Did Bill Frist know about this when he hand-delivered those pleadings to the Supreme Court?

If so, how DARE he?

If not, how does he feel about being sandbagged this way? (If RNCC keeps giving money to Forrester, we have to conclude that Frist either knew he was conveying a lie to the Supreme Court and to the American electorate, or didn’t much care.)

How come it took until today for someone to find it?

And what do all the Republicans who were shocked — shocked! — about anyone asking a court to waive an election deadline have to say for themselves now?

In New Jersey Senate Race, Another Day Spent in Court


TRENTON, Oct. 4 — New Jersey Democrats asked the United States Supreme Court today to reject a Republican appeal seeking to block Frank R. Lautenberg from taking the place of Senator Robert G. Torricelli on the November ballot. They argued that the Republicans had neither shown any injury to their candidate or to the voters nor demonstrated a constitutional issue.

The Republican National Senatorial Committee, in an emergency appeal, had asked the court on Thursday to block the printing of new ballots and to overturn Wednesday’s ruling by the State Supreme Court that Mr. Lautenberg could replace Mr. Torricelli. The senator withdrew from the race on Monday as his chances for re-election faltered because of ethics allegations against him.

Today, Republican Party lawyers also brought suit in United States District Court here on behalf of two absentee voters, one living in Hawaii and the other in Paris. The suit alleges that the two, and others like them, could have their voting rights abridged because there was not enough time to deliver the new ballots. Judge Garrett E. Brown Jr. accepted the case and set a hearing for Monday.

In their brief to the United States Supreme Court, the Democrats argued that there was plenty of time to get absentee ballots to overseas voters, and that the case was a state matter, without a federal constitutional issue for the Supreme Court to decide. By day’s end, there was no word from Associate Justice David H. Souter, who handles emergency appeals from New Jersey, on whether the high court would hear the case or block the reprinting of ballots.

In an almost mocking tone, Angelo J. Genova, the Democratic Party’s lawyer, suggested in the brief that the Republican candidate, Douglas R. Forrester, was angling to run unopposed.

Mr. Forrester “does not allege irreparable injury to his position as the Republican nominee for the office in question,” Mr. Genova wrote. “Nor could he.” Mr. Forrester “will remain on the revised ballot, and the voters inclined or decided to vote for him may still do so,” Mr. Genova continued. “Applicant’s complaint appears to be that he would prefer to compete with the withdrawn candidate — hence, to compete not at all.”

Mr. Genova also uncovered a legal memorandum from Mr. Forrester’s lawyer written in April, when State Senator Diane Allen, one of Mr. Forrester’s opponents in the Republican primary, was trying to block him from taking the ballot position of James W. Treffinger. Mr. Treffinger, the Essex County executive, had resigned from the race because of scandal three days earlier, or 40 days before the primary.

Senator Allen maintained that moving Mr. Forrester’s name to Mr. Treffinger’s place on the ballot would come too late under Title 19 of the state election law, which sets a deadline of 51 days before an election for ballot substitutions. It is the same argument that Mr. Forrester’s lawyer, Peter G. Sheridan, made before the State Supreme Court on Wednesday, opposing Mr. Lautenberg’s placement on the ballot. The Democrats said that the deadline was merely a guideline.

In April, Mr. Sheridan read the law the way the Democrats do today.

“Strict compliance to statutory requirements and deadlines within Title 19,” Mr. Sheridan wrote, “are set aside where such rights may be accommodated without significantly impinging upon the election process.”

Mr. Genova said the Forrester campaign was trying to have it both ways. But Mr. Sheridan said today that the two situations were not analogous because “no primary ballots had been issued” in April.

In the current case, some 1,600 absentee ballots with Senator Torricelli’s name have been sent out.

As one of the most tumultuous weeks in New Jersey politics stumbled toward the weekend, Mr. Forrester went to work reinventing a campaign that no longer had Mr. Torricelli and the senator’s ethical problems as a punching bag. Today, he broadcast a one-minute radio ad titled “Purpose” as a rebuttal to the Lautenberg campaign’s messages that, without Mr. Torricelli, the Republican has no reason to run.

“Every day, there seems to be some dramatic change regarding the race for U.S. Senate in New Jersey,” Mr. Forrester says in his rich baritone. “But I want to assure you one thing hasn’t changed: my reasons for running for the United States Senate.” He goes on to stress his interest in protecting national security, safeguarding Social Security and protecting the environment, among other issues.

This evening, Mr. Forrester held a news conference at Newark Liberty International Airport with Senator Fred Thompson, Republican of Tennessee. Mr. Forrester said he would defeat Mr. Lautenberg as, he said, he had beaten Mr. Torricelli.

Meanwhile, greeting homebound commuters at the Rutherford train station, Mr. Lautenberg, who served in the United States Senate for 18 years, immersed himself in the handshaking and the backslapping, the joking and the gibing of his earlier campaigns.

“This is familiar territory,” he said.

NOTE: The argument about primary ballots having been mailed is about as silly as they come. (Unlike the argument that the 51 day deadline ought to be enforced simply because it’s the law, which isn’t silly at all.)

Let’s say the courts allow Lautenberg to substitute for Torricelli, but some voters have already been mailed ballots showing Torricelli as the Democratic candidate. Forrester is on the ballot in any case, so they haven’t lost the chance to vote for him, and it’s hard to see how he has been damaged by the act of mailing out the now-obsolete ballots. (Obviously, he’s damaged by being given a real opponent to replace a withdrawn one.) Those who don’t want to vote for Forrester can still vote for Torricelli. That will be a futile gesture, but it would be the same futile gesture in any case. Or they can write in Lautenberg, which might not be a futile gesture. Or they can write in Ghengiz Khan. A voter who gets a Torricelli v. Forrester ballot for a Lautenberg v. Forrester race will be infinitesimally worse off than if he’d gotten a correct ballot — writing in isn’t really that hard — but not at all worse off than if he’d gotten a ballot with the name of a withdrawn candidate.

And who says there isn’t enough time? Never heard of FedEX? The New Jersey Democrats are already paying $800,000 to reprint the ballots; sending out 1600 absentee ballots by overseas overnight, with return envelopes, shouldn’t add more than $50k to that cost.

What frustrates me is that, if the shoe were on the other foot, the Republicans would do a good job of getting the word out, and the whole country would be laughing at the Democrats. I have no confidence that the Democrats will be as efficient. Note that the Times reporter doesn’t even lead with it. [On the other hand, Joshua Micah Marshall is, as usual, on the case.]


So far, the story seems to have no journalistic “legs;” neither AP nor the Washington Post has picked it up. It’s bouncing around the blogosphere, but so far only on the left. Eugene Volokh, who doesn’t post on weekends, is sure to have something worth reading on Monday; nothing yet on the latest development from Glenn Reynolds, who had been all over the story earlier, including a link to Virginia Postrel’s delicious earlier comment that election law in New Jersey proceeds under the rules of Calvinball.

Ignatz (Sam Heldman) who picked it up before I did, has some useful reflections, and clarifies a point I had slurred over: the Forrester case in the spring was about where he would be on the ballot, not whether he would be on the ballot. Apparently New Jersey still has official party endorsements in primaries, with the endorsee getting the top spot on the ballot; Forrester, having been chosen by the party machinery to replace a candidate who had been forced to drop out due to scandal (his office had just been raided by the FBI) sued for, and got, the improved ballot placement, against the opposition of another Republican candidate.

But the underlying legal question is the same, it seems to me. The legislature set a 51-day-before-the-voting deadline for dropping out and being replaced, and the court then had to decide whether that was a firm deadline or just a guideline for administrative convenience. Forrester took the “administrative convenience” line, and won on it, in the spring; he’s now taking the “firm deadline” line. Does it matter that that was a primary and this is a general? Does it matter that that case involved ballot placement and this involves being on the ballot at all? Does it matter that some absentee ballots have now been sent out, where they hadn’t in the spring? If the courts have some leeway in enforcing the deadline — which Forrester said they did in the earlier case — then only the courts can decide how far that leeway extends. This being a question of New Jersey law, the highest authority is the New Jersey Supreme Court, which has just decided it in favor of giving the voters two real candidates to choose between. End of story, except for the horselaugh Forrester, Frist & Co. have earned for pretending this was a matter of principle, and the secondary horselaugh earned by those of us who were taken in by them.

Having been taken in myself, I can’t criticize anyone else for having been similarly victimized. But everyone who said anything in print or cyberspace about how the New Jersey Democrats were cheating, monkeying with the law, displaying contempt for the rules of fair play, etc., now owes it to his or her readers to take it back, to criticize the New Jersey Republicans for the fraud they attempted to perpetrate, and to remember this the next time one of these tempests-in-a-teapot comes along. There’s an old Texas saying, “Fool me once…”


The Daily Pundit has a long argument that the two cases aren’t parallel. But it doesn’t seem to me to hold together. The statute he cites has to do with a case in which it is determined that “the nomination for an office of a successful candidate at any primary election is null and void.” Nothing had made Treffinger’s designation “null and void;” the raid had merely made him a sure loser, just as the prosecutors’ report had made Torricelli a sure loser. Note that Forrester’s lawyer didn’t even argue that the change complied with the statute, only that the statutory deadline should be “set aside.”

Am I missing something, or is the Daily Pundit stretching?


Eugene Volokh weighs in, sensibly and wittily as usual:

“BANG! — OW! — YOU IDIOT!” That is the sound of the Republican politicos shooting themselves in the foot, if the story about Forrester — that he violated the same deadline in the primary that the Democrats violated with the Lautenberg switch — is correct.

This will now be an interesting case study in blogospherics. Your obedient servant still has a small (or, should I say, “select”?) readership of about 150 a day, and mostly on the Democratic side. The Volokh Conspiracy is more widely read by an order of magnitude (one-and-a-half orders, to be more precise), including mostly folks on the other side of the fence. In particular, Eugene is both read and respected by the blogger-of-record, Glenn Reynolds.

So the right blogosphere may now be assumed to be aware of the new development. Now we get to see how many right-bloggers pass this news along to their readers, and what if any comments they have on having been snookered.

The huge advantage of blogging over print is the capacity to take something back, or say something different, when new information arrives. But it seems to me that some bloggers tend to under-exploit that advantage. I’ll be watching with interest who does, and who does not, make use of it in this instance.

[Early returns: Lee, at Right Thinking from the Left Coast, and Glenn Reynolds, the Instapundit himself, have both linked to Eugene’s note and provided their own frank comments; neither is happy about having been sandbagged.

That’s more testimony to the awesome nature of Volokh Power, as is the fact that this humble page has had more hits in the four hours since the Volokh Conspiracy post than in any previous 24 hours, virtually all of them Volokh Conspiracy referrals.

The Right-Thinker notes that I didn’t provide a link to the New York Times story; instead, I quoted the full text. But here’s the link.]

I will also be watching with interest the capacity of the left blogosphere to pound the drum.


Several readers write to argue that the Forrester case in the spring and the Lautenberg case now aren’t parallel, because Forrester was already on the ballot and Lautenberg wasn’t. It’s true that the facts are different. But they differences aren’t legally relevant.

Here are the facts as I understand them:

In New Jersey, the party machine in each county gets to designate an “official” or “regular” candidate in a primary. That person gets the top spot on the ballot. If the official designee drops out 51 days before the primary, the party can designate a new person, who then gets that slot.

The Bergen County Republicans designated a candidate named Treffinger as their official candidate for governor, giving him the top spot on the ballot in that county. Forty days before the primary, his office was raided by the FBI in a corruption probe. He then dropped out of the race for governor. He hadn’t been disqualified from serving; he simply decided he couldn’t win. When the party tried to give Forrester the top spot in his place, but another Republican candidate challenged that decision in court, arguing that the deadline had passed.

Forrester’s lawyer argued, successfully, that the deadline should not be strictly enforced as long as it could be ignored without fouling up the administration of the election.

Obviously, getting on the ballot is more important than placement on the ballot. So the legislature could rationally have made one rule for changing ballot position and a different rule for getting on the ballot in the first place. But in fact the legislature made a single rule covering both situations: 51 days, unless something intervenes to make a nominee or designee ineligible to serve.

In the spring, Forrester argued that the 51 day deadline shouldn’t be regarded as binding if it could be waived without impinging on the need to administer the election fairly. Now Lautenberg is arguing the same thing. The NJ Supreme Court agreed with Lautenberg.

Maybe that court was wrong to do so, as Eugene Volokh argued (and I agreed). But if the law is to be interpreted liberally rather than strictly, that means the courts get to make the call. And on a matter of New Jersey law, the New Jersey Supreme Court has the final word.

Forrester may well be right that the New Jersey courts had no authority to overrule the New Jersey legislature on the law concerning elections to Congress, since the Constitution gives authority over those elections to the legislature. But if so, then he was asking the court last spring to do what it had no authority to do. That makes his current posture of wounded innocence, with his supporters shouting “lawbreaker” at Frank Lautenberg, a little bit hard to take.


Allons, enfents de la Homeland?

Thanks to Kieran Healy for pointing me to this from CalPundit:

There is, in fact, one European country that shares most of America’s attitudes and values:

Uniquely for western Europe, they value independent military action and have a strong martial culture.

They generally speak only their own language, and when they do speak other languages they do it badly.

They believe in the superiority of their culture and aggressively try to export it abroad — though with minimal success these days.

They bargain aggressively and are often seen as obstreperous and arrogant by their fellow Europeans.

They have a permanent seat in the UN Security Council and aren’t afraid to use it.

Needless to say, the country is France, the bête-noir of Americans because they’re the only European country that acts the way America does. Delightfully ironic, no?

Well, yes and no. France’s obstreperousness is, in some ways, optimal for a small power. Being stubborn is one way to take advantage of the strength of a weak position: the capacity for what Mancur Olsen calls “the exploitation of the great by the small.”

The basic idea is that if you and I have to agree on something to make it work, and it matters a lot to me and only a little to you, you’re in a position to shake me down. For example, imagine we’re partners; we own a piece of land together. I own 90%, you own 10%. The partnership agreement provides that the decision to sell must be unanimous. Now say we get an offer from someone who wants to buy the land for $100,000 more than we could otherwise get for it. That’s a gain of $90,000 to me, and only $10,000 to you. If you say, “I won’t approve the sale unless you give me an extra $10,000,” and you’re stubborn enough so that I believe you, you’ve got me over a barrel. Buying you off for an extra $10,000 is clearly better for me than having the sale fall through.

In a coalition, the unimportant members usually get more than they deserve and contribute less than their share, because the cost to the big partners of giving them what they want is small compared to the costs of having the coalition dissolve. (See Macaulay on the nightmare William of Orange had in managing the German princelings in his war against Louis XIV.)

And that’s the French strategy. Not nice — you wouldn’t really expect “nice” from a country whose national anthem ends “until their polluted blood courses through our gutters,” would you? — but reasonably effective.

However, the attempt of a superpower to behave in the same way is inevitably self-defeating, as the real estate example makes plain. Can you say “Cutting off your nose to spite your face?” I was sure you could.

“Beware,” says Eric Hoffer, “when the strong begin to employ the weapons of the weak.”



Kevin Drum, the CalPundit, has an interesting but, in my view, over-optimistic reading of the potential impact of the stem-cell debate on the politics of abortion.

His argument: Abortion opponents have chosen to hide their fear of changing sexual mores under the slogan “Abortion is murder.” If abortion is murder (and, in particular, if early abortion is murder), then stem-cell research, which kills a blastocyst, is likewise murder. But people, even ardent conservatives, aren’t going to tolerate anything that gets in the way of treating Alzheimer’s or Parkinson’s. (When told that Ronald Reagan never would have supported stem-cell research, as Nancy Reagan is now doing, Mike Deaver reportedly said, “Ronald Reagan didn’t have to take care of Ronald Reagan for the last ten years.”) So, Kevin reasons, people are going to have to decide that a fertilized egg isn’t a person, and therefore that abortion isn’t murder, whereupon the pro-life movement will fade away.

This seems to me to embody the standard mistake of intellectuals thinking about politics: it assumes that voters, and politicians, actually care about whether their opinions make sense, even as tested by the minimal rule of consistency. They don’t. That’s the difference between intellectuals (well, some intellectuals: don’t get me started about the PoMo’s) and normal people. Normal people believe whatever feels good, and if two contradictory opinions both feel good, they’re happy to hold both of them at once. (Look at the poll numbers about belief in Heaven versus belief in Hell, even among those who claim to think the Bible literally true.) The very same groups that sell bumper stickers saying “Every abortion stops a beating heart” oppose RU-486, which ends a pregnancy before a heartbeat develops.

What Orwell satirized as “double-think,” and imagined had to be deliberately inculcated, is in fact quite natural. Kevin’s piece notes that people who say “Abortion is murder” don’t want women who have abortions punished as murderers. He doesn’t note, but Richard John Neuhaus does, that many people who say “Abortion is murder” make an exception for, e.g., rape cases.

…somewhat more than 50 percent of respondents agree that abortion “is the same thing as murder.” Yet cognitive and moral dissonance continues to be conspicuous. The question is variously phrased in different surveys, but the noteworthy fact is that over half of those who say that abortion is tantamount to murder also say that abortion should be legal in difficult circumstances. One may wonder whether people really intend to say that murder should sometimes be legal.

My prediction: the stem-cell researchers will win, and it won’t have any impact on abortion politics unless the Right-to-Lifers declare jihad on the question and start trashing reliably anti-abortion and anti-sex politicians such as Orrin Hatch because they’re off the reservation on stem cells. (Which they won’t: Kevin is right that, on an emotional and political level, this is mostly about sex — and, I would add, uppity women — not about killing fetuses. So if Orrin Hatch wants to kill fetuses not produced by sex, the Right-to-Lifers will mostly give him a pass.)

The hatred of loose women, and fear of women’s independence, that drive the anti-abortion forces won’t go away just because we start to allow the harvesting of stem cells from blastocysts. I bet Nancy Reagan still thinks abortion is murder.



If CNN has it right, the Nevada cannabis-legalization initiative is going to pass. It’s ahead 55-43 in the lastest poll, and the proponents have half a million dollars in the bank while the opponents are struggling to get their act together. The “no” side gets another bite at the apple; to become law the proposition has to pass again in two years.

This isn’t one more “medical marijuana” propositionI; it’s flat-out legalization of use and production. (Legalization as far as state law goes, that is; cannabis would still be illegal under Federal law.)

I wouldn’t have expected this, and don’t quite know what to make of it. Nevada is always a special case; still, this may suggest that attitudes about cannabis are softening in this country, as well as abroad, as fewer and fewer voters remember a time when the weed wasn’t part of the social scene.

[For some thoughts about the substance of the question and the argugments around it, see here and here.]

LAUTENBERG AHEAD The Democratic Senate


The Democratic Senate Campaign Committee released a poll by the Mellman group showing Lautenberg with an 11-point lead over Forrester in the New Jersey Senate race, 44-33. Even adjusting for the bias of a partisan poll, and allowing for the large sampling error due to a small sample size (n=400), that suggests that Lautenberg starts out ahead, at a moment when the slightly fishy odor of his entry into the race should be strongest. He won’t run out of money, and New Jersey is a Democratic state. So unless he loses the election 5-4 next week, I think he’s got it locked up.

If the Democrats hold on to the New Jersey seat, the Republicans have to more or less fill an inside straight to take the Senate back.

Here’s the arithmetic as I see it. If we treat every race where one candidate is either ahead by 10 points or over the 50% mark in the latest polls as likely to go to the current leader, and all others as “in play,” so far the Democrats have a likely pick-up in Arkansas and no likely loss. and have three seats “in play” to the Republicans’ one.

Democrats are at risk in Minnesota, where Wellstone is trailing by 6, Missouri, where Carnahan is now up by 8 but still below 50%, and South Dakota, where Johnson’s lead has shrunk to 46-43.

The Republicans risk the loss of a seat in Colorado, where Strickland has pulled even with Allard.

So Republicans would have to win three out of four close races to take control of the Senate, and right now they lead in only one, are even in another, and trail in two. Not impossible, by any means, not not easy.

There are other races where a turnover would be unlikely but not far-fetched. Four Republican seats are in that category: New Hampshire, where Sununu seems to be way up in a non-partisan poll but a Democratic poll has Shaheen up by two; Texas, where Cronyn has a big lead but is still below 50%; North Carolina, where Dole is ahead 52-41 but Bowles seems to be gaining; and South Carolina, where Sanders is thought by some to have a chance. The incumbent Democrats in Georgia and Iowa are both over 50% but ahead by less than 10 points, with shrinking leads. (Oregon, Alabama, and Oklahoma, all of which looked like potential Democratic pick-ups, now seem out of reach.)

I’m not exactly breathing easy, but I think the Democrats are going to make it. If I had to bet on an outcome, I’d predict a one-seat gain for the Democrats, with pickups in Arkansas and Colorado and a loss in Minnesota.



So says Trent Lott, who should know.

[Thanks to Howard J. Bashman’s How Appealingfor the link. This site is a treasure, providing a running guide to the antics of the federal appeals courts — the 10th Circuit just ruled that the automobile exception to the warrant requirement of the Fourth Amendment, justified by the fact that the auto might drive away before the warrant can issue, applies to a car that can’t be driven — plus coverage of the occasional confirmation fight. Warning to Democrats: I suspect Bashman of being one of them. He admires Posner and Glenn Reynolds.]

Lott also says that if the Republicans take the Senate they will speedily confirm 40-50 judges.

I hope the Green Party spoiler who’s trying to make sure Paul Wellstone loses in Minnesota is listening. More to the point, I hope potential Green Party voters in Minnesota are listenting.

As for you, dear reader, have your written your check yet? Any of the marginal races in small states will do, but Tim Johnson in South Dakota is probably your maximum-impact-per-dollar contribution.



Polling results on the generic Congressional ballot question seem to flop back and forth in no pattern I can detect.The latest news seems to be good for the Democrats, at a moment I would have thought would favor the Republicans. Newsweek has them up by 7 last week, compared to down 2 three weeks ago; ABC/Washington Post up 4 a week ago, versus down 8 three weeks earlier; Fox up 3 at the end of September versus down 3 at the end of August. In the meantime, the Iowa markets, which seemed unreasonably optimistic about Democratic chances a month ago, now seem unreasonably pessimistic, giving the Republicans a 45% chance to take the Senate and the Democrats only a 25% chance to take the House.

I wonder whether all this war stuff might be less popular than it seems. Bush’s personal approval has gotten a several-point bounce out of it, as have his re-elect numbers, but there doesn’t seem to be much sentiment for giving him a Congress he can work with.



So Ari Fleischer has said out loud what lots of us were thinking, or even saying on our blogs: it sure would be nice if someone bumped off Saddam Hussein.

Here’s the story from CNN:

[Fleischer] was asked about the possible cost of any war with Iraq. The Bush spokesman said the president has not made any decisions about military action so therefore it is “impossible to speculate” about costs.

However, he went on to say, “I can only say the cost of a one-way ticket is substantially less than that. The cost of one bullet, the Iraqi people taking it (on) themselves, is substantially less than that, the cost of war is more than that.”

But there’s actually a difference between a blog, or a bar, or a locker room, and a podium where someone speaks for the President of the United States. And of course Fleischer wouldn’t even think about publicly calling for the assassination of a head of state in an administration that didn’t so pride itself on cheap, swaggering bully-talk.

There has been little commentary on the fact that Richard Lugar, the most thoughtful Republican in the Senate on national security issues and no one’s dove, has actually come out in opposition to the war-powers blank check that Bush asked for.

I don’t think the two items are completely unrelated. It appears to me that important people in Washington, by no means all Democrats, simply don’t trust Bush and his crew to tell the truth, or to do the right thing. That makes it less suprising that some folks in other capitals are also unconvinced. Swagger comes at a price.