What he said. If you haven't read Bob Zubrin's "The Case for Mars", get thee to a bookstore. Zubrin's proposal is stunningly elegant: It uses the Martian atmosphere and basic chemistry to produce on Mars the propellant, oxygen and water needed for exploration and the return trip.
Zubrin's proposal would put astronauts on Mars within ten years, let them stay up to eighteen months per trip, and cost less than $40 billion. (...which sounds like a lot, except that NASA currently spends $15 billion a year, including $6-7 billion on manned space flight.) For the money we're spending today, we could be on Mars by 2012.
I'm afraid I disagree. Legal recedent points firmly in the direction that the law doesn't care whether you're doing something for profit or if you're doing it gratis when it comes to determining liability, especially when it comes to professional services.
A doctor can be held liable if he, out of the goodness of his heart without expectation of compensation, assists at an accident scene, and through his actions someone is injured or dies. A lawyer can be held liable if he, as a friendly gesture without being paid, gives someone bad legal advice.
I hate to flatly contradict you here, but: The Volunteer Protection Act of 1997 very clearly distinguishes between for-profit and non-profit activities. Good Samaritan laws also distinguish between free and for-profit activities (although these laws are more specific to medicine). The law most certainly does care whether you're doing something for profit or doing it gratis, and provides additional protection in the latter case.
....But this has nothing to do with the question at hand, which was about products: Microsoft has made literally piles and piles of money from the premise that software is a product like cars and toys and razor blades, not a service like the medical or legal professions. If this is the case, then the relevant law is that of product liability, and it should require Microsoft to do the same thing that Ford, Sony, Mattel, Kraft, Gilette, Wal-Mart and pretty much everyone else does when they release a faulty product: Fix it at their expense. Mailing me a carburetor and installation instructions is not sufficient -- and, more to the point, that approach is not getting the job done.
A person who contributes code to an OSS project, by contrast, cannot be held liable for "product defects" in the sense that Ford or Sony can be. You do not have any commercial relationship with the individual OSS developer, any more than you had one with the individual Microsoft developer who wrote the buggy SQL Server code, or with the individual engineer who put the Ford Pinto's gas tank in such an awful place. None of these people are responsible under product liability law, because they were not responsible for the decision to release the product.
(Arguably you could go after Linus for defects in OSS software, but Linus didn't sell you anything and has shallow pockets anyway -- trying to hold him liable for his 'product' is probably not going to work, and Linus will get free legal help from Laurence Lessig while you get burned in effigy. At most you might be able to hold RedHat liable for buggy software they sold you, but this is a concern for RedHat, not the individual OSS developer; RedHat has the potential to set all sorts of interesting legal precedents, though, which is why IBM is happy to have them as a separate company instead of a subsidiary.)
I still maintain, and I say this both as an OSS developer and a software consumer, that we would all benefit from tightening the product liability standards for computer software. Until we do, the commercial incentives will be the same as they are today -- to produce shoddy, insecure code and rush it out the door -- and all the "trusted computing" initiatives in the world will not change the underlying economics.
...holding Microsoft responsible would be a chilling precedent that would effectively squelch software development, because all software has bugs.
Oh, FUD and nonsense. Did lawsuits against waste-dumping companies have a chilling effect on business, because all companies produce waste? Did liability suits lead to the death of the toy-making industry, because all toys can injure someone? Have negligence suits put the construction industry out of business, because all buildings eventually collapse?
No, no, and no. It is possible to hold industries to a reasonable standard of product quality and make them liable for defects, even in the click-to-absolve-me-of-all-responsibility world of computer software. I should be able to purchase a product from Microsoft (or any other software company) and expect that product defects will be repaired at Microsoft's time and expense, not mine.
If the FTC treated other industries the way it treats Microsoft, then instead of recalling cars with bad brakes, you'd get a brake pad in the mail and a sheet of installation instructions. Holding software to the same quality standards as any other product would lead to a vast improvement in software quality and network security, at the expense of negligent producers of insecure software. Who wouldn't want that?
Oh, and your liability as an OSS developer is fundamentally different from that of a company selling software; it's the difference between contributing a recipe to a free cookbook and agreeing to deliver a catered banquet. That's not to say that an OSS developer can't be held liable (for poisoning, say), but that the obligations are materially different from those of a company selling products.
However, WiFi is severly limited by its limited range, and the fact that there is no model for billing/roaming. So when you leave McDonalds and go to Starbucks, you have to go through the disconnect/connect mechanism once again.
Agreed within context, but the market for people who need data, especially high-speed data, to travel with them as they go from McDonald's to Starbucks is relatively small. The rest of the market (that is, the people who want high-speed data while they're sitting at McDonald's or Starbuck's, but don't need it while moving between them) will be consumed by WiFi - and, without that revenue, the business case for EV-DO goes under water. Sprint and Verizon can't justify the expense, especially with the current state of the telecom business.
If I want to go outside the box, though, I'll argue that connect/disconnect and billing/roaming mechanisms only make sense for a centrally owned network, and that I can have a decentralized, peer-to-peer WiFi network for a lot less than your costs to build, operate and maintain EV-DV. In my network, a million people each spend $100 to buy a WiFi card and base station, and we're done; in your network, you build, operate and maintain a complete EV-DV network, and then have to recover your costs and make a substantial profit for your investors.
In my peer-to-peer WiFi network, I can just route packets back to my home DSL if they need to get onto the wired network; everyone on the network has 802.11g bandwidth and near-zero maintenance costs, so wireless backhaul to my house is free. I was already paying for the DSL, so my total investment is $100.
You, meanwhile, are paying monthly real estate costs for each cell site, equipment upgrade costs, power, backhaul, a network operations center, customer care hotline, billing center, a team of people to drive around and fix hardware problems, a team to drive around and fix RF problems, subsidies to the handset retailers, advertising, investor relations, corporate finance, human resources, and an options package for your CEO that would make Ken Lay blanch.
If I were a betting man, I'd bet that by 2008 WiFi (or something like it) will be standard equipment on GM cars, available in any decent shop or restaurant, etc. It'll emerge as quickly as the web itself did in 1993-6, and then we'll forget what life was like before it. I think that scenario is more likely than the one where we're all using EV-DV by then.
The problem with this technology is that WiFi is doing to 1xEV-DO what cellular did to Iridium, what CD-ROMs did to the Encyclopedia Britannica, and what fax machines did to ZapMail. WiFi's footprint may only cover 5% of what a cellular telephone network does (at first), but it'll be the 5% where I actually care to have high-speed wireless data: Airports, coffee shops, and my home.
I don't need 1xEV-DO at work, because work is crawling with Ethernet cables. I don't need 1xEV-DO at home, because it's cheaper to buy WiFi equipment directly instead of paying for wireless by the packet. The only reasons I need wireless data in my car are for driving directions when I'm lost, which - being male - I wouldn't use anyway, and for streaming audio, for which I have a hi-tech device called a "radio" (or, more likely, a "six-disc CD changer").
By the time 1xEV-DV gets to market, McDonald's will have WiFi and you'll get free bandwidth with your Happy Meal. (They'll sell your data to advertisers and interrupt with McDonald's ads, but, hey, free bandwidth.) WiFi destroys the business case for cellular data, just as the unregulated Internet destroys the business case for pop music, and in the long-term WiFi even threatens the core cellular business of providing wireless voice.
Perhaps the real question is whether the Cellular Telephone Industry Association (CTIA) will someday find itself where the RIAA is today - fighting its customers in a desperate effort to squeeze the last dollar from a dying business model. Time for the Free Spectrum Foundation?
It's not as though Hilary Rosen's departure will suddenly cause the RIAA to change heart: Remember that the RIAA is just a facade, and the cartel behind it is just as pro-DMCA, anti-You as ever.
I'm sure the RIAA will find another shill in no time: All they need is an entertainment lawyer who will set aside ethics and the common good in exchage for a large bundle of money. Goodness knows how long it will take them to find one of those.
That is inaccurate. In Miller, the Court ruled concerning a particular type of weapon's coverage by the 2nd Amendment. The question was "which weapons" not "who" or "if/when".
The question posed to the Court was whether Miller and Layton had the right to bear sawed-off shotguns; the Court determined that they did not, reversed a lower court in order to do so, and said precious little about what rights they did have, if any. The Court's silence in Miller informed the body of appellate decisions that followed.
If my understanding of Miller is inaccurate, then at least I'm in good company here with the entire federal judiciary; even the Fifth Circuit found no support in Miller for an "individual rights" view, and, indeed, had to work its way around Miller to get to the older rulings.
Since they implicitly accepted the argument of standing, the only possible conclusion is that they accepted his right to argue for the position that his shotgun was among the arms he had a personal right to have.
You're saying the Court could have ruled that Jack Miller did not have standing - that is, that he did not have a stake in the outcome of United States v. Miller. To put it mildly, this is not a very solid premise. Miller's standing to challenge the NFA came because he was under criminal indictment for violating the NFA; he could challenge the law in any way he saw possible, and the courts were obliged to entertain his challenges, even if only to dismiss them (as Miller did).
If by hearing the case the Court implicitly decided that Jack Miller had Second Amendment rights, then the Court also implicitly decided that Jack Miller is a State, since it gave him standing to challenge the NFA on the grounds that the law usurped State police powers.
Moreover, I challenge you to find a single reference supporting the 9th Circuit's position from caselaw before 1930. The "State's Rights" view is the product of an explict attempt in the last 70 years to enact the functional equivalent of a Constitutional Amendment.
You're asking me to believe that federal court rulings since Miller are the result of a sinister, organized conspiracy in the federal judiciary, rather than being the result of Miller. I don't buy it. It's easier to conclude that the overwhelming majority of judges respect the law, follow precedent whenever they can, and accept that the last time the Supreme Court ruled on a Second Amendment question, it reversed a lower court decision which had found an individual right to bear arms.
I agree with this, but I stop short of adopting the outright moral relativism required to find no judicial decision to be evil. Your position seems to be that if several courts adopt an egregious viewpoint, that it should not be challenged or corrected.
Calling for the impeachment of the Ninth Circuit is not exactly what I'd call tolerance of dissenting views. I don't have any reason to believe that Judges Stephen Reinhardt, Frank Magill and Raymond Fisher are real live Minions of Evil(tm), cackling behind their robes as they conspire to destroy the Second Amendment; I respect them as reasonable men who believe they are in the right, just as sincerely as I believe I am. I think calling for their impeachment does more damage than good to the cause of Second Amendment rights; it plays into the perception that gun-rights advocates are a pack of wild-eyed nutjobs defending our right to shoot people we disagree with.
Oh, and I'll be happy to see the Ninth's decision challenged (which, of course, it will be); I'm just not optimistic that the Supreme Court, Thomas notwithstanding, will give gun-rights advocates anything to celebrate.
The Supreme Court adopted no such view in Miller. You are engaging in naked historical revisionism, just like the judges in the 9th Circuit.
In Miller, the Supreme Court examined the Second Amendment at length, considered its application to the case at hand, and concluded that the National Firearms Act did not violate the Constitution - and that Miller did not have any individual right to bear sawed-off shotguns.
In last month's ruling, the Ninth Circuit examined the Second Amendment at length, considered its application to the case at hand, and concluded that California's Assault Weapons Control Act did not violate the Constitution - and that the plaintiffs did not have any individual right to bear arms.
In 2001's Emerson, the Fifth Circuit examined the Second Amendment at length, considered its application to the case at hand, and concluded that the law in question (a temporary restraining order) still did not violate the Constitution - even if Emerson did have an individual right to bear arms.
In all of these cases, gun control legislation survived a direct court challenge to its constitutionality. Even the Fifth Circuit ruling, which drew the radical conclusion that the Second Amendment guarantees an individual right, did not conclude that the government had erred in denying this right. The Fifth Circuit acknowledged that it was taking a radical view of the Second Amendment, compared to its peers and the historical record; if you don't believe me, read the ruling yourself.
The Ninth Circuit's ruling was consistent with all other federal appellate court decisions dating back to Miller; the Fifth Circuit's ruling was not. The Fifth Circuit explicitly did not find in Miller a precedent that all other federal appellate courts have found to date; in order to reach its ruling, it had to avoid in Miller what all other courts have found there, which was that Millerexplicitly denies an individual right.
There's no getting around this: Miller offered the Supreme Court an opportunity to choose between an expansive view of the Second Amendment and a restrictive one, and it chose the latter. The Supreme Court could have upheld the lower court's finding, which was that the National Firearms Act violated the Second Amendment; instead it chose to hear the case, reverse the lower court's decision, and deny an individual right to bear sawed-off shotguns.
At best, you can argue that Miller's denial of individual rights is limited in scope, compared to the Ninth's broader denial - but arguing that Miller is a ringing endorsement of individual rights flies in the face of the actual decision, which reversed the lower court, denied Miller's rights, and determined that a gun-control law did not violate the Second Amendment.
For example, in Miller had the US supreme court not believed that he had an individual right to bear arms, they would have ruled based on lack of standing (as the 9th Circuit here did).
Try again? Miller was a criminal case, and the United States appealed to the Supreme Court; a lower court had quashed Miller's indictment on the grounds that the National Firearms Act was unconstitutional. How could a court possibly find that the United States, acting as public prosecutor, did not have standing?
I could proceed to rebut your third, fifth and sixth paragraphs, but suffice to say that, aside from a single Fifth Circuit ruling, none of the federal courts have endorsed your view that the Second Amendment guarantees an individual right to own firearms, or that Miller endorses an "individual rights" view - in fact, all the courts except the Fifth have reached the opposite conclusion. I have no doubt that the Supreme Court will soon be called upon to clarify its position... but I think you'll be unpleasantly surprised at the outcome.
I happen to think that guns reduce crime and generally do more good than harm, and that most gun control legislation is misguided. I think our best response to terrorism is a decentralized approach, that encourages the average citizen to play an active role in our defense. But I also recognize that reasonable people, acting in good faith, can honestly disagree over the scope of rights guaranteed by the Second Amendment. I think judges who disagree with me (and with each other, for that matter) are a sign that our democracy is healthy and strong, and not a sign that some judges are evil and should be replaced by people who parrot my views.
You have correcly stated the 9th Circuit's position. The position is complete crap, however. I would impeach a judge for adopting such a position, because I believe it violates the oath of office to uphold the Constitution.
You'd impeach a lot of judges, then: Historically the courts all agree with the Ninth Circuit, including the Supreme Court (United States v. Miller, 1939); the odd man out is the 2001 Fifth Circuit case.
Also, your dissection of key Second Amendment words and phrases omits any discussion of what "well regulated" means, unless you meant that John Ashcroft (and, before him, Janet Reno) gets to decide. Care to elaborate?
Despite the recent California Supreme Court decision, I think every reasonable American knows that the founding fathers designed the second amendment to allow all Americans access to personal firearms. Muzzle loaded, smoothbore, single shot flintlocks.
Just to nitpick: The decision was by the U.S. Court of Appeals for the Ninth Circuit, not the California Supreme Court. The Ninth is a federal appeals court, and its decisions are the next-to-last word (with the Supreme Court having the last word) on the interpretation of federal law in nine western states.*
The Ninth's recent decision (online here) concludes that the Second Amendment preserves the citizen's right to serve in a well-regulated militia - that is, it grants the state government the right to have National Guard units, and grants you the right to serve in them. If the framers had meant to guarantee an individual right to gun ownership, the Ninth asserts, they would have done so in the plain language of the other nine amendments enacted at the same time (e.g., "Congress shall make no law infringing upon the people's right to possess arms" or similar language).
The Ninth's decision is in direct conflict with a recent Fifth Circuit decision that finds an individual right in the Second Amendment, which was the first time a federal appellate court has ever endorsed this view. The conflict between the two circuit courts makes it extremely likely that the Supreme Court will review the Ninth Circuit's ruling and settle the dispute.
As an aside, Howard Bashman's How Appealing is a surprisingly entertaining source of information on the federal courts of appeals, and a goldmine of information about this particular ruling. If you're interested at all in the activities of the judicial branch, check it out.
* To nitpick even further, the Ninth also includes Guam and the Northern Mariana Islands. Nyah.
I was going to write a simple, elegant proposal that would solve the copyright dilemma to the complete satisfaction of all interested parties... but instead I cleaned the refrigerator.
A joint UN/FSF team performed a "surprise" inspection of Saddam Hussein's laptop earlier today, to ensure that the dictator was not using HESSLA-licensed software. A UN spokesperson confirmed that the laptop, a Dell notebook running Windows DE, did not contain any software in violation of the license.
Red Hat-equipped F-22 fighers continue to patrol the no-hack zone above northern and southern Iraq, as the world awaits Iraq's Dec. 8th software license report. FSF president Richard Stallman declared yesterday that Iraq would be in "material breach" of its licenses if the Dec. 8th report was incomplete; MSFT chairman Bill Gates dissented, however, saying that the report alone would not be sufficient to breach the HESSLA license.
I moved from broadband in London to an always-connected dialup in a seaside town in Australia, and nearly went out of my mind.
You moved from an English fogbank to the sunny shores of Australia, the sun shines every day, the people are gorgeous and friendly, the surf's the best in the world, and you're sitting inside at your computer cursing about the slowness of your dialup connection.
Improves updating of applications installed with Mac OS X, updating them only if they have not been relocated or deleted.
Aaaaaarrrrrggghh! Apple replaces one Wrong Thing with another. Before 10.2.2, Apple's installer would blindly write files into/Applications/Mail.app/contents/resources without first checking to see whether Mail.app was still in the/Applications folder.
Now Apple's installer looks for/Applications/Mail.app, and aborts the install if it isn't there. For the love of Tog, how hard is it to actually find Mail.app, considering that the OS already has this ability built in??
MacOS X can find where Microsoft Excel is hiding on my hard drive every time I double-click on a spreadsheet - how hard can it be to find/Applications/Apple/Mail.app? Why should I be forced to organize my/Applications folder in a particular way (or, more accurately, why should I be prevented from organizing the folder) just to satisfy Apple's brain-dead installer scripts?
Now I have to re-construct the/Applications folder to look exactly the way it did after a clean install, or I can't get application updates. MacOS 9 didn't require this. I could understand Apple's installer getting uppity if I turned/bin or/usr into my personal carnival of idiosyncracies, but I can't understand why Apple's new and improved OS is hard-wired to implode when I move an application from one folder to another.
Re:TCO isn't "in the bag" yet
on
Halloween VII
·
· Score: 1
If Microsoft makes a serious effort to make Windows easy to use, they could theoretically win the TCO fight, or at least beat the penguins.
You're assuming that Microsoft will try to win the TCO fight by lowering the TCO for Microsoft products.
The alternative is that Microsoft will try to raise the TCO for open source, by buying laws that criminalize open-source development, by turning the personal computer into a locked box that dispenses pay-per-view content to consumers, and by threatening "intellectual property" lawsuits against companies and individual developers.
Of course, that's just a paranoid theory. I mean, if
thingslikethatwerehappeninginreallife, people would do more than just whine about it on Slashdot, right?
Yeah, I'm envisioning some enemy discovering the signal used to tell the paint to change color, then broadcasting a signal to turn all the US tanks hot pink.
If you can intercept a signal that says "All right, you worthless maggots! Change tank color to HOT PINK, on my mark!" and replace it with your own signal, then you can do a lot more damage than just changing the tank's color.
I think once we finally get to one of these places we'll find that life thrives Everywhere.
For values of "life" equal to "protozoans," quite probably. There are single-celled creatures on Earth whose metabolisms are so exotic that they might as well be from other planets.
Think we could send a few microbes to Pluto with a tiny little American flag?
If you're really interested, download my game-authoring utility -- Yonk 1.0b3 for the Macintosh. It'll let you write Inform-language games for the 2003 competition.:-)
Slashdot Mirror
Valentine's Day was yesterday, you insensitive clod!
Zubrin's proposal would put astronauts on Mars within ten years, let them stay up to eighteen months per trip, and cost less than $40 billion. (...which sounds like a lot, except that NASA currently spends $15 billion a year, including $6-7 billion on manned space flight.) For the money we're spending today, we could be on Mars by 2012.
I think they should call them Certified Linux / Unix Engineers. Who could resist the acronym?
I hate to flatly contradict you here, but: The Volunteer Protection Act of 1997 very clearly distinguishes between for-profit and non-profit activities. Good Samaritan laws also distinguish between free and for-profit activities (although these laws are more specific to medicine). The law most certainly does care whether you're doing something for profit or doing it gratis, and provides additional protection in the latter case.
A person who contributes code to an OSS project, by contrast, cannot be held liable for "product defects" in the sense that Ford or Sony can be. You do not have any commercial relationship with the individual OSS developer, any more than you had one with the individual Microsoft developer who wrote the buggy SQL Server code, or with the individual engineer who put the Ford Pinto's gas tank in such an awful place. None of these people are responsible under product liability law, because they were not responsible for the decision to release the product.
(Arguably you could go after Linus for defects in OSS software, but Linus didn't sell you anything and has shallow pockets anyway -- trying to hold him liable for his 'product' is probably not going to work, and Linus will get free legal help from Laurence Lessig while you get burned in effigy. At most you might be able to hold RedHat liable for buggy software they sold you, but this is a concern for RedHat, not the individual OSS developer; RedHat has the potential to set all sorts of interesting legal precedents, though, which is why IBM is happy to have them as a separate company instead of a subsidiary.)
I still maintain, and I say this both as an OSS developer and a software consumer, that we would all benefit from tightening the product liability standards for computer software. Until we do, the commercial incentives will be the same as they are today -- to produce shoddy, insecure code and rush it out the door -- and all the "trusted computing" initiatives in the world will not change the underlying economics.
U.S. Court of Appeals for the Federal Circuit, Rambus v. Infineon Technologies [corrected]. If the site asks for a password, hit "Cancel" and the document (a 60-page MS Word file) should appear.
Agreed within context, but the market for people who need data, especially high-speed data, to travel with them as they go from McDonald's to Starbucks is relatively small. The rest of the market (that is, the people who want high-speed data while they're sitting at McDonald's or Starbuck's, but don't need it while moving between them) will be consumed by WiFi - and, without that revenue, the business case for EV-DO goes under water. Sprint and Verizon can't justify the expense, especially with the current state of the telecom business.
If I want to go outside the box, though, I'll argue that connect/disconnect and billing/roaming mechanisms only make sense for a centrally owned network, and that I can have a decentralized, peer-to-peer WiFi network for a lot less than your costs to build, operate and maintain EV-DV. In my network, a million people each spend $100 to buy a WiFi card and base station, and we're done; in your network, you build, operate and maintain a complete EV-DV network, and then have to recover your costs and make a substantial profit for your investors.
In my peer-to-peer WiFi network, I can just route packets back to my home DSL if they need to get onto the wired network; everyone on the network has 802.11g bandwidth and near-zero maintenance costs, so wireless backhaul to my house is free. I was already paying for the DSL, so my total investment is $100.
You, meanwhile, are paying monthly real estate costs for each cell site, equipment upgrade costs, power, backhaul, a network operations center, customer care hotline, billing center, a team of people to drive around and fix hardware problems, a team to drive around and fix RF problems, subsidies to the handset retailers, advertising, investor relations, corporate finance, human resources, and an options package for your CEO that would make Ken Lay blanch.
If I were a betting man, I'd bet that by 2008 WiFi (or something like it) will be standard equipment on GM cars, available in any decent shop or restaurant, etc. It'll emerge as quickly as the web itself did in 1993-6, and then we'll forget what life was like before it. I think that scenario is more likely than the one where we're all using EV-DV by then.
I don't need 1xEV-DO at work, because work is crawling with Ethernet cables. I don't need 1xEV-DO at home, because it's cheaper to buy WiFi equipment directly instead of paying for wireless by the packet. The only reasons I need wireless data in my car are for driving directions when I'm lost, which - being male - I wouldn't use anyway, and for streaming audio, for which I have a hi-tech device called a "radio" (or, more likely, a "six-disc CD changer").
By the time 1xEV-DV gets to market, McDonald's will have WiFi and you'll get free bandwidth with your Happy Meal. (They'll sell your data to advertisers and interrupt with McDonald's ads, but, hey, free bandwidth.) WiFi destroys the business case for cellular data, just as the unregulated Internet destroys the business case for pop music, and in the long-term WiFi even threatens the core cellular business of providing wireless voice.
Perhaps the real question is whether the Cellular Telephone Industry Association (CTIA) will someday find itself where the RIAA is today - fighting its customers in a desperate effort to squeeze the last dollar from a dying business model. Time for the Free Spectrum Foundation?
Moof!
I'm sure the RIAA will find another shill in no time: All they need is an entertainment lawyer who will set aside ethics and the common good in exchage for a large bundle of money. Goodness knows how long it will take them to find one of those.
The question posed to the Court was whether Miller and Layton had the right to bear sawed-off shotguns; the Court determined that they did not, reversed a lower court in order to do so, and said precious little about what rights they did have, if any. The Court's silence in Miller informed the body of appellate decisions that followed.
If my understanding of Miller is inaccurate, then at least I'm in good company here with the entire federal judiciary; even the Fifth Circuit found no support in Miller for an "individual rights" view, and, indeed, had to work its way around Miller to get to the older rulings.
You're saying the Court could have ruled that Jack Miller did not have standing - that is, that he did not have a stake in the outcome of United States v. Miller. To put it mildly, this is not a very solid premise. Miller's standing to challenge the NFA came because he was under criminal indictment for violating the NFA; he could challenge the law in any way he saw possible, and the courts were obliged to entertain his challenges, even if only to dismiss them (as Miller did).
If by hearing the case the Court implicitly decided that Jack Miller had Second Amendment rights, then the Court also implicitly decided that Jack Miller is a State, since it gave him standing to challenge the NFA on the grounds that the law usurped State police powers.
You're asking me to believe that federal court rulings since Miller are the result of a sinister, organized conspiracy in the federal judiciary, rather than being the result of Miller. I don't buy it. It's easier to conclude that the overwhelming majority of judges respect the law, follow precedent whenever they can, and accept that the last time the Supreme Court ruled on a Second Amendment question, it reversed a lower court decision which had found an individual right to bear arms.
Calling for the impeachment of the Ninth Circuit is not exactly what I'd call tolerance of dissenting views. I don't have any reason to believe that Judges Stephen Reinhardt, Frank Magill and Raymond Fisher are real live Minions of Evil(tm), cackling behind their robes as they conspire to destroy the Second Amendment; I respect them as reasonable men who believe they are in the right, just as sincerely as I believe I am. I think calling for their impeachment does more damage than good to the cause of Second Amendment rights; it plays into the perception that gun-rights advocates are a pack of wild-eyed nutjobs defending our right to shoot people we disagree with.
Oh, and I'll be happy to see the Ninth's decision challenged (which, of course, it will be); I'm just not optimistic that the Supreme Court, Thomas notwithstanding, will give gun-rights advocates anything to celebrate.
In Miller, the Supreme Court examined the Second Amendment at length, considered its application to the case at hand, and concluded that the National Firearms Act did not violate the Constitution - and that Miller did not have any individual right to bear sawed-off shotguns.
In last month's ruling, the Ninth Circuit examined the Second Amendment at length, considered its application to the case at hand, and concluded that California's Assault Weapons Control Act did not violate the Constitution - and that the plaintiffs did not have any individual right to bear arms.
In 2001's Emerson, the Fifth Circuit examined the Second Amendment at length, considered its application to the case at hand, and concluded that the law in question (a temporary restraining order) still did not violate the Constitution - even if Emerson did have an individual right to bear arms.
In all of these cases, gun control legislation survived a direct court challenge to its constitutionality. Even the Fifth Circuit ruling, which drew the radical conclusion that the Second Amendment guarantees an individual right, did not conclude that the government had erred in denying this right. The Fifth Circuit acknowledged that it was taking a radical view of the Second Amendment, compared to its peers and the historical record; if you don't believe me, read the ruling yourself.
The Ninth Circuit's ruling was consistent with all other federal appellate court decisions dating back to Miller; the Fifth Circuit's ruling was not. The Fifth Circuit explicitly did not find in Miller a precedent that all other federal appellate courts have found to date; in order to reach its ruling, it had to avoid in Miller what all other courts have found there, which was that Miller explicitly denies an individual right.
There's no getting around this: Miller offered the Supreme Court an opportunity to choose between an expansive view of the Second Amendment and a restrictive one, and it chose the latter. The Supreme Court could have upheld the lower court's finding, which was that the National Firearms Act violated the Second Amendment; instead it chose to hear the case, reverse the lower court's decision, and deny an individual right to bear sawed-off shotguns.
At best, you can argue that Miller's denial of individual rights is limited in scope, compared to the Ninth's broader denial - but arguing that Miller is a ringing endorsement of individual rights flies in the face of the actual decision, which reversed the lower court, denied Miller's rights, and determined that a gun-control law did not violate the Second Amendment.
Try again? Miller was a criminal case, and the United States appealed to the Supreme Court; a lower court had quashed Miller's indictment on the grounds that the National Firearms Act was unconstitutional. How could a court possibly find that the United States, acting as public prosecutor, did not have standing?
I could proceed to rebut your third, fifth and sixth paragraphs, but suffice to say that, aside from a single Fifth Circuit ruling, none of the federal courts have endorsed your view that the Second Amendment guarantees an individual right to own firearms, or that Miller endorses an "individual rights" view - in fact, all the courts except the Fifth have reached the opposite conclusion. I have no doubt that the Supreme Court will soon be called upon to clarify its position... but I think you'll be unpleasantly surprised at the outcome.
I happen to think that guns reduce crime and generally do more good than harm, and that most gun control legislation is misguided. I think our best response to terrorism is a decentralized approach, that encourages the average citizen to play an active role in our defense. But I also recognize that reasonable people, acting in good faith, can honestly disagree over the scope of rights guaranteed by the Second Amendment. I think judges who disagree with me (and with each other, for that matter) are a sign that our democracy is healthy and strong, and not a sign that some judges are evil and should be replaced by people who parrot my views.
You'd impeach a lot of judges, then: Historically the courts all agree with the Ninth Circuit, including the Supreme Court (United States v. Miller, 1939); the odd man out is the 2001 Fifth Circuit case.
Also, your dissection of key Second Amendment words and phrases omits any discussion of what "well regulated" means, unless you meant that John Ashcroft (and, before him, Janet Reno) gets to decide. Care to elaborate?
Just to nitpick: The decision was by the U.S. Court of Appeals for the Ninth Circuit, not the California Supreme Court. The Ninth is a federal appeals court, and its decisions are the next-to-last word (with the Supreme Court having the last word) on the interpretation of federal law in nine western states.*
The Ninth's recent decision (online here) concludes that the Second Amendment preserves the citizen's right to serve in a well-regulated militia - that is, it grants the state government the right to have National Guard units, and grants you the right to serve in them. If the framers had meant to guarantee an individual right to gun ownership, the Ninth asserts, they would have done so in the plain language of the other nine amendments enacted at the same time (e.g., "Congress shall make no law infringing upon the people's right to possess arms" or similar language).
The Ninth's decision is in direct conflict with a recent Fifth Circuit decision that finds an individual right in the Second Amendment, which was the first time a federal appellate court has ever endorsed this view. The conflict between the two circuit courts makes it extremely likely that the Supreme Court will review the Ninth Circuit's ruling and settle the dispute.
As an aside, Howard Bashman's How Appealing is a surprisingly entertaining source of information on the federal courts of appeals, and a goldmine of information about this particular ruling. If you're interested at all in the activities of the judicial branch, check it out.
* To nitpick even further, the Ninth also includes Guam and the Northern Mariana Islands. Nyah.
I was going to write a simple, elegant proposal that would solve the copyright dilemma to the complete satisfaction of all interested parties... but instead I cleaned the refrigerator.
Red Hat-equipped F-22 fighers continue to patrol the no-hack zone above northern and southern Iraq, as the world awaits Iraq's Dec. 8th software license report. FSF president Richard Stallman declared yesterday that Iraq would be in "material breach" of its licenses if the Dec. 8th report was incomplete; MSFT chairman Bill Gates dissented, however, saying that the report alone would not be sufficient to breach the HESSLA license.
You moved from an English fogbank to the sunny shores of Australia, the sun shines every day, the people are gorgeous and friendly, the surf's the best in the world, and you're sitting inside at your computer cursing about the slowness of your dialup connection.
Mate, you're already out of your mind.
<voice="Montgomery Burns">
Ex-cellent.
Now all I need is to convince AOL Time Warner to drop their Usenet feed as a "cost-cutting move," and the Backbone Cabal will rule again!
Fly, my pretties!
</voice>
Aaaaaarrrrrggghh! Apple replaces one Wrong Thing with another. Before 10.2.2, Apple's installer would blindly write files into /Applications/Mail.app/contents/resources without first checking to see whether Mail.app was still in the /Applications folder.
Now Apple's installer looks for /Applications/Mail.app, and aborts the install if it isn't there. For the love of Tog, how hard is it to actually find Mail.app, considering that the OS already has this ability built in??
MacOS X can find where Microsoft Excel is hiding on my hard drive every time I double-click on a spreadsheet - how hard can it be to find /Applications/Apple/Mail.app? Why should I be forced to organize my /Applications folder in a particular way (or, more accurately, why should I be prevented from organizing the folder) just to satisfy Apple's brain-dead installer scripts?
Now I have to re-construct the /Applications folder to look exactly the way it did after a clean install, or I can't get application updates. MacOS 9 didn't require this. I could understand Apple's installer getting uppity if I turned /bin or /usr into my personal carnival of idiosyncracies, but I can't understand why Apple's new and improved OS is hard-wired to implode when I move an application from one folder to another.
The alternative is that Microsoft will try to raise the TCO for open source, by buying laws that criminalize open-source development, by turning the personal computer into a locked box that dispenses pay-per-view content to consumers, and by threatening "intellectual property" lawsuits against companies and individual developers.
Of course, that's just a paranoid theory. I mean, if things like that were happening in real life, people would do more than just whine about it on Slashdot, right?
If you can intercept a signal that says "All right, you worthless maggots! Change tank color to HOT PINK, on my mark!" and replace it with your own signal, then you can do a lot more damage than just changing the tank's color.
Do you mean the large wooden club, or the sacrificial animal?
Think we could send a few microbes to Pluto with a tiny little American flag?
If you're really interested, download my game-authoring utility -- Yonk 1.0b3 for the Macintosh. It'll let you write Inform-language games for the 2003 competition. :-)