Reason Magazine - Staff

"Who Can Save Us Now?"

bdoherty@reason.com (Brian Doherty) — Mon, 28 Jul 2008 15:00:00 EDT

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The Gun Rights Fight Isn't Over

bdoherty@reason.com (Brian Doherty) — Fri, 27 Jun 2008 12:00:00 EDT

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The Second Amendment Goes to Court

Fri, 27 Jun 2008 07:00:00 EDT

For the past three decades, Washington, D.C. has enforced one of America's most draconian gun control laws—a total ban on the possession of handguns, not to mention strict gun lock provisions for rifles and shotguns, that has left law-abiding citizens unable to legally defend themselves and their homes. In March, the U.S. Supreme Court heard oral arguments in the case of District of Columbia v. Heller, in which seven D.C. residents challenged the constitutionality of the ban. At the center of the case is the question of whether the Second Amendment protects an individual or collective right to keep and bear arms.

Yesterday, the Court issued its long-awaited opinion, ruling 5-4 in favor of an individual right to own guns. reason assembled a panel of 8 leading civil libertarians to help make sense of what the Court said, what it means, and what's likely to come next.

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Alan Gura: Yesterday’s decision is a huge victory for liberty. First, we saved the Second Amendment. That much should be obvious from the opinion. Yesterday, federal courts in 47 states were telling Americans they had no Second Amendment rights. The score is now 50-0, plus the capital, in the other direction. For budding lawyers, “individual right” is now the correct answer on the Multi-State Bar Exam. The movement to end private firearm ownership in America is dead and buried. Yes, we’ve got some work to do to make sure it stays that way. It will.

The case is “narrow but broad.” Narrow, in the sense that our objective was merely to secure the individual nature of Second Amendment rights, and demonstrate—with a judgment—that the right has substance. Broad, in the sense that this simple principle can now be applied in other contexts. This is not just about flat-out gun bans in Washington, D.C. homes. All regulations that touch upon Second Amendment rights will get a well-deserved constitutional look. Instant background checks and felon-in-possession laws will survive. Laws meant to harass gun possession, while at best advancing only a hypothetical public benefit, will not. The Second Amendment is now a normal part of the Bill of Rights. It’s not realistic to expect one Second Amendment case to answer all right to arms questions for all time, just as we have no one decision telling us what a Fourth Amendment “reasonable search” in all circumstances. We may not win every case. We’ll win a good amount of them. The next step is obviously 14th Amendment incorporation. I’m looking forward to leading that fight. Learn more at www.chicagoguncase.com.

Libertarians can be impatient. Would anyone prefer the quick certainty of Kelo? Or McConnell v. FEC? It may be a tough slog to restore the Takings Clause and free political speech. Restoring the Second Amendment will take time, too. Today, with the right to keep and bear arms, we start from a position of strength.

Alan Gura argued District of Columbia v. Heller before the Supreme Court. He is a partner at Gura & Possessky.

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Glenn Reynolds: My first thought on Heller is that many gun-rights supporters never thought they'd live to see a Supreme Court opinion to the effect that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." Bob Levy, who brought the case against the advice of many gun-rights supporters, should feel very good about that.

My second thought is that this is a gift to the Obama campaign. While this won't take the gun issue off the table, it also won't energize the gun-rights crowd (which cost Al Gore the election in 2000 when he failed to carry Tennessee, largely because of his support for gun control) the way a contrary opinion would have. Obama's record of strong support for sweeping gun control would hurt him much more if gun owners felt more vulnerable.

My third thought is that whether this has much impact on the real world depends on how the next several cases proceed. In the 1990s the Supreme Court announced a major shift in Commerce Clause doctrine that offered the hope of paring back federal power considerably. But right-leaning public interest law groups didn't take up the challenge and bring carefully selected cases to advance the principle, leading it to be characterized by some (including me) as a constitutional revolution where nobody showed up. Gun-rights advocates are already talking about follow-on challenges in places like Chicago or Morton Grove. How well those are brought will have a lot to do with whether the Heller opinion is a milestone, or just a speedbump.

Glenn Reynolds is a law professor at the University of Tennessee. He blogs at Instapundit.com.

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Randy Barnett: Justice Scalia's historic opinion will be studied for years to come, not only for its conclusion but for its method. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Its analysis of the "original public meaning" of the Second Amendment stands in sharp contrast with Justice Stevens' inquiry into "original intent" or purpose and with Justice Breyer's willingness to balance an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. The differing methods of interpretation employed by the majority and the dissent also demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same. Now if we can only get a majority of the Supreme Court to reconsider its previous decisions—or "precedents"—that are inconsistent with the original public meaning of the text.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center and author of Restoring the Lost Constitution: The Presumption of Liberty.

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Brian Doherty: The Heller decision was exciting for fans of American liberty—even the dangerous and disreputable end of that liberty, where weapon possession and use rights abide in the minds of many good-hearted people who think guns are just ugly and awful and appeal to the worst aspects of human nature.

Scalia's opinion did a thorough job of fileting, layer by layer, the lame and unsupportable "collective right" beliefs about the Second Amendment—including lots of sadly necessary exegesis on how the word "keep" means that people have a right to, yes, keep arms in their homes.

But Heller represents no happy ending to our legal and public policy duels over guns. Scalia's opinion does admit that we do have a constitutionally protected right to some degree to defend ourselves and our property with weapons.

But the opinion also stresses that right is still regulatable in many, many ways. It leaves plenty of room (which you can be sure will be filled rapidly) for future court challenges and public policy fights to define the degree to which the government, at any level, can restrict or regulate the sale, possession, and use of weapons. It may well turn out that anything less severe than D.C.'s total ban will withstand scrutiny even under the newly revived Second Amendment.

The "eternal vigilance is the price of liberty" part: four members of the Supreme Court think that it's A-OK for the government to completely bar citizens from using guns for the protection of their lives and homes. That can't make sleeping at night any easier. That said, the Heller victory was a sweet one for the recognition that there are limits to what democracy can do to individual rights, and is worth celebrating for that.

Brian Doherty is a senior editor at reason and the author of This Is Burning Man and Radicals for Capitalism. He is currently writing a book about District of Columbia v. Heller.

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Sanford Levinson: The majority obviously found that the Second Amendment does protect an individual right to bear arms, and they applied this right in the easiest possible case, i.e., a functionally absolute prohibition against handgun possession.

What cannot be determined from the opinion is what the future impact of Heller will be, beyond further litigation. I am reminded of a cartoon in the New Yorker several years ago, of a conversation at a suburban cocktail party where a woman says to a well-dressed man, who is carrying a rifle slung over his shoulder, “I've never met a Second Amendment lawyer before.” I suspect that there will be more such lawyers in the next few years, but this says nothing about the prospects of winning such cases. For all of the rhetorical bluster of Scalia’s opinion, it not only focuses on the extreme nature of the D.C. ordinance, but also goes out of its way in effect to legitimize a plethora of existing federal legislation regarding guns. And, of course, there is no way of knowing who will be appointing the all-important “inferior” federal judges, beginning in January 2009, who will play a far more important role than the Supreme Court in deciding the operational meaning of the Second Amendment.

Finally, Scalia should take a certain pleasure that Justice Stevens, by confining the entirety of his opinion to an “originalist” analysis of the Second Amendment (that obviously came to a completely different conclusion), seemed to concede the overarching importance of original meaning. Neither Justice was willing to pay any attention to the “dynamic” aspect of the Second Amendment. Scalia was presumably unwilling to cite Chief Justice Taney’s opinion in Dred Scott, but it’s the strongest single piece of evidence for the proposition that by mid-19th century an individual right to bear arms (at least if you were an American citizen) had become the conventional wisdom.

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. His most recent book is Our Undemocratic Constitution.

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Jacob Sullum: The most important aspect of D.C. v. Heller, of course, is the Supreme Court's recognition that the Second Amendment protects an individual right to arms. From that premise it almost inevitably follows that the District of Columbia's gun law—which, as the Court noted, "bans handgun possession in the home" and "requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable"—is unconstitutional. If such a law does not violate the right to armed self-defense, it's hard to imagine what law would. That's why the Court did not bother to specify what level of scrutiny is appropriate for purported violations of the Second Amendment. It concluded that the D.C. law is invalid "under any of the standards of scrutiny the Court has applied to enumerated constitutional rights."

By the same token, however, this decision does not give a clear sense of the line between constitutional and unconstitutional forms of gun control. The Court indicates that laws regulating the sale of firearms and prohibiting concealed carry, gun ownership by "felons and the mentally ill," possession of "unusual and dangerous weapons" (as opposed to weapons in common use for lawful purposes), and possession of firearms in "sensitive places" such as schools and government buildings are consistent with the Second Amendment. But it is not clear whether a law against openly carrying guns would pass muster, or what kinds of guns count as "unusual and dangerous," or how onerous licensing and registration requirements can be before they run afoul of the Second Amendment.

On that last point, the Court says licensing and registration are not necessarily unconstitutional, but it sounds like it would look askance at conditions attached to them.

"Assuming that [plaintiff Dick] Heller is not disqualified from the exercise of Second Amendment rights," the Court says, "the District must permit him to register his handgun and must issue him a license to carry it in the home." (Emphasis added.) It's harder to predict which weapons will end up being covered by the Second Amendment, except that they will include handguns but evidently not machine guns or bazookas.

Finally, the majority opinion does not address the question of whether the Second Amendment, either directly or via the 14th Amendment, applies to the states as well as a federal domain like the District of Columbia. But it's hard to imagine why it wouldn't now that the Court has clearly acknowledged the right to armed self-defense as a fundamental aspect of liberty protected by the Constitution.

Jacob Sullum is a senior editor at reason and a nationally syndicated columnist.

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Dave Kopel: Heller is a tremendous victory for human rights and for libertarian ideals. Today’s majority opinion provides everything which the lawyers closely involved in the case, myself included, had hoped for. Of course I would have preferred a decision which went much further in declaring various types of gun control to be unconstitutional. But Rome was not built in a day, and neither is constitutional doctrine.

For most of our nation’s history, the U.S. Supreme Court did nothing to protect the First Amendment; it was not until the 1930s when a majority of the Court took the first steps towards protecting freedom of the press. It would have been preposterous to be disappointed that a Court in, say, 1936, would not declare a ban on flag-burning to be unconstitutional. It took decades for the Supreme Court to build a robust First Amendment doctrine strong enough to protect even the free speech rights of people as loathsome as flag-burners or American Nazis.

Likewise, the Equal Protection clause of the Fourteenth Amendment was, for all practical purposes, judicially nullified from its enactment until the 1930s. When the Court in that decade started taking Equal Protection seriously, the Court began with the easiest cases—such as Missouri’s banning blacks from attending the University of Missouri Law School, while not even having a “separate but equal” law school for them. It was three decades later when, having constructed a solid foundation of Equal Protection cases, the Court took on the most incendiary racial issue of all, and struck down the many state laws which banned inter-racial marriage.

So too with the Second Amendment. From the Early Republic until the present, the Court has issued many opinions which recognize the Second Amendment as an individual right. Yet most of these opinions were in dicta. After the 1939 case of United States v. Miller, the Court stood idle while lower federal courts did the dirty work of nullifying the Second Amendment, by over-reading Miller to claim that only National Guardsmen are protected by the Amendment.

Today, that ugly chapter in the Court’s history is finished. Heller is the first step on what will be long journey. Today, the Court struck down the most freakish and extreme gun control law in the nation; only in D.C. was home self-defense with rifles and shotguns outlawed. Heller can be the beginning of a virtuous circle in which the political branches will strengthen Second Amendment rights (as in the 40 states which now allow all law-abiding, competent adults to obtain concealed handgun carry permits), and the courts will be increasingly willing to declare unconstitutional the ever-rarer laws which seriously infringe the right to keep and bear arms.

As the political center of gravity moves step by step in a pro-rights direction, gun control laws which today might seem (to most judges) to be constitutional will be viewed with increasing skepticism. The progress that the pro-Second Amendment movement has made in the last 15 years has been outstanding. As long as gun owners and other pro-Second Amendment citizens stay politically active, the next 15, 30, and 45 years can produce much more progress, and the role of the judiciary in protecting Second Amendment rights will continue to grow.

Dave Kopel is Research Director at the Independence Institute, in Golden, Colorado. He was one of three lawyers at the counsel table who assisted Alan Gura at the oral argument on March 18. His brief for the International Law Enforcement Educators and Trainers Association was cited four times in the Court's opinions.

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Joyce Lee Malcolm: What a great day for individual rights. The majority of the Supreme Court retrieved the original intent of the Second Amendment to permit individuals the right and ability to defend themselves. For thirty years those convinced that ordinary people can’t be trusted with guns have dominated the discussion. In order to ban civilian ownership of weapons, the original meaning of the Second Amendment had to be reinterpreted, and unfortunately with its awkward language—which was well-understood at the time—that wasn’t too difficult. Generations of law students have been taught that the Second Amendment merely protected the right of states to have a militia, a right already incorporated into the body of the Constitution. The nearly complete control over the militia by the federal government was not altered in any way by the amendment, but no mind. The linguistic efforts to deny an individual right were quite inventive—“the people” only in this amendment meant a group, not an individual, “bear arms” implied an inclusively military context, that awkward word “keep” was to be erased by linking it with “bear” in order to make it exclusively military, and so on. And it all nearly worked. But not quite.

Thanks to the scholarly efforts of many people, the overwhelming evidence for an individual right to keep and have weapons for self-defense was uncovered and published. It was that evidence that the justices relied upon.

My only disappointment with an otherwise great decision was how narrow it was. Four justices ignored the evidence in order to preserve the gun control measures meant to deny individuals the right to be armed. In the process, they were prepared to erase a basic right and uphold the stringent and ineffective D.C. gun ban, a law that went so far as to forbid reassembling a gun in the home in the case of a break-in.

Still, it was a great day for every American, one that will ensure a safer America than any number of gun bans ever could.

Joyce Lee Malcolm is professor of legal history at George Mason University School of law. She is the author To Keep and Bear Arms: The Origins of an Anglo-American Right.

Power From the People

bdoherty@reason.com (Brian Doherty) — Mon, 28 Apr 2008 15:00:00 EDT

Here’s one way to get electricity: First, find two old metal tanks, of varying widths and heights—the kind used to contain compressed gases will do. You might have a few lying around, at least if you hang out in junkyards or machine shops chockablock with working metal sculptors.

Then take your angle grinder—you’ve got an angle grinder, right?—and smooth down the surface of the smaller tank, slicing off any protruding pieces with its palm-sized circular saw. The grinder will get them—just put a little muscle behind it. It’d be good to have a box of replacement discs around, as they wear out quickly.

Now put a different blade on the grinder and cut around the entire circumference of both tanks to get yourself cylinders of the desired height. Really, anyone can do it. I’m no trained metal worker, but I was able to perform the grinding and slicing OK when I had to. It was even sort of fun.

My circumference cut was uneven, though; if you’re an amateur, get someone with a better eye and steadier hand to even it out for you so you can get something close to a seal when you put a lid on top of the wider one. Nestle the smaller cut tank inside the other, attach a grate to its bottom, then funnel carbon-based waste into the top. It can be wood, paper, walnut shells, even coffee grounds. All that matters is that it has some carbon bonds that can break down to make heat and burnable gases.

Get a fire going inside the first cylinder to heat that carbon-based waste, without quite burning it. What you want is to start a process called pyrolysis, in which the carbon-based stuff gets warmed up in an oxygen-poor environment, releasing volatile gases that aren’t fully incinerated. The carbon then becomes char.

Keep heating those released volatiles over the char until you’ve reduced the output gas to mostly carbon monoxide and hydrogen; that gas will “live” in the space between the inner and outer cylinder, and can ultimately be sucked out via a hole in the top, through tubes, to run into a generator engine, which will burn them like it burns any other fuel to operate. The byproducts will be carbon dioxide and water.

This technique can also run the engine in your car, which is what the one I helped build in an Oakland metal-worker warehouse last August was intended to do.

As with any biofuel, this process is in essence carbon-neutral, since it only releases back into the atmosphere the carbon that had been taken out by the raw-material plants as they grew. Had that bio-waste not been burned, it would have eventually released the carbon back into the atmosphere through decomposition anyway. Burning fossil fuels, by contrast, introduces new carbon into the atmosphere that was previously sequestered underground.

The chemical and technical realities behind this fuel generation have been very much simplified in the above description, but a workable machine to manufacture usable, carbon-neutral energy really can be constructed in a single afternoon. What you have just built is a jury-rigged version of a “gasifier.” While gasifiers haven’t been widely used in America for decades, it’s not a new technology. In Europe during World War II, when liquid fuel was hard to come by, these generators were adopted as an impromptu way to get many thousands of cars moving.

Most of us, thankfully, have other ways to acquire energy. To light your living room, you can flick a switch on your wall, completing a flow of electrons that began at a giant (usually coal-powered) plant hundreds of miles away. To start your car, you can drive to a station likely within a few miles of wherever you live and pump in a dense, energy-rich, ready-made liquid fuel.

Even in this era of rising energy prices, the costs of electricity and gasoline are still manageable. It requires around 15 cents a mile to move at typical gas prices and mileage, so you can travel more than 35 miles for one hour at minimum wage. In Los Angeles, it costs me about 50 cents a day to illuminate every room, keep a stereo and a computer running pretty much all day, charge iPods and cell phones, run a refrigerator, and keep a microwave oven, toaster, and George Foreman grill all at the ready.

Lately, however, concerns about depleting oil supplies and global warming have convinced many Americans that the easy, nearly free energy ride is over. From Oscar-winning movies to the Nobel Peace Prize, from government to industry, anxiety over climate change has unleashed a lot of heavy thinking about devising new systems to power our lives. Even giants in the energy industry are beginning to reconsider the top-down broadcast model that has dominated the provision of power for most of the past century. Under that legacy system, faraway plants burning coal or natural gas zip electrons out to all of us at the end point of the network, losing nearly 70 percent of the energy in the process through waste heat and line loss.

Many of the policy ideas being generated amount to wealth-reducing restrictions, such as higher taxes on fossil fuels and mandatory caps on emissions. But a growing number of venture capitalists, small businesses, and government regulators are asking a provocative question: What kind of efficiencies could be realized if power was created by, or at least much nearer, the end user instead?

Experiments in such “distributed generation”—where power is produced by multiple sources through multiple methods, much closer to the point of final use—are happening on industrial scales, via such means as combined heat and power (CHP) and solar. But they are also possible on a smaller scale, as part of a burgeoning “people power” movement. Lots of distributed generation thinking is based on the already old-fashioned solar panel model. But in Berkeley, California, a group of artists and gearheads is exploring more complicated ways to turn the old electricity model upside down without a single dollar in subsidies or a giant power plant.

Their trials, tribulations, and occasional flashes of glory make a compelling case study of how something as emblematic of the machine age as energy production can become intimate and personal. These innovators imagine a transformation similar to the evolution of computers over the past 40 years: from a mainframe model in which consumer interaction was both unwanted and enormously difficult, to a networked personal laptop model where both hardware and software are widely accessible and, for those interested, adjustable to your personal and creative choices, circumstances, and whims—remaining all the while deeply intertwined with an industrial mass-production system.

Their experiences also indicate that industrial creativity has a hard time co-existing with current urban regulations—and that the old model of generating and distributing electricity, with all its flaws, is unlikely to be knocked off its perch any time soon.

The Shipyard vs. the State
During the summer of 2007, I was introduced to a new way of thinking about personalized power as I watched a group of bohemian machine-artists grapple with gasification, trying to master it, teach it, and ultimately transform it into a huge art project.

The effort was spearheaded by Jim Mason, a Berkeley artist I knew through Burning Man, an annual festival held in Nevada’s Black Rock desert. Mason was forced to think about self-generated power by the city of Berkeley, which cut off his electricity during a dispute over building code violations.

In 2001 Mason rented a couple of buildings on a big lot in a mixed-used, quasi-industrial part of town to start what he called the Shipyard, an artists’ workshop. It officially covered two addresses on two streets, filling about a third of a block. It had lots of outdoor space for art projects and parties. For storage and more indoor work space, Mason championed what he thought was a quintessentially Berkeleyesque solution: repurposed, recycled shipping containers that he scrounged from Bay Area ports, stacked two high.

Mason and his collaborators threw elaborate art parties. One, celebrating Ernest Shackleton’s disaster-plagued Antarctic expedition of a century ago, featured meals of faux penguin served on ice plates to dozens of guests crammed into a shipping container kept below freezing, with fire effects pumping up through columns of ice all around them. A “How to Destroy the Universe Festival” combined extreme industrial noise acts with fire (and meat) art. The Shipyard artists were self-consciously bohemian, charmingly aware of their own absurdity. During one of my interviews with Mason, I noted a dry-erase board in their shop on which someone had scrawled a list of “tools needed,” starting with “14" chopsaw blade” and “pile of money.” The crew created self-mythologizing slogans: “Shipyard: When Overkill Isn’t Enough,” “Shipyard: When Biblically Huge Machines Have to Be There Overnight.” The artists genuinely believed they were providing a service to Berkeley, a city with a reputation for liberalism and creativity.

But Berkeley Deputy Fire Chief David Orth didn’t see it that way, especially after receiving unexpected calls about 40-foot propane fire jets (typical Shipyard entertainment) in the air over his city. Joan MacQuarrie, the woman in charge of building inspection at the city’s planning department, found nearly everything about the situation troublesome. “No use permit,” she recalls. “They moved cargo containers onto the lot, which constitutes building, without any building permits. There were other safety violations. The cargo containers, some of them were occupied or appeared to be occupied. Fire hazard issues. Exiting issues.”

Mason thought Berkeley was flouting its heritage by being so picayune about his attempts at innovative recycled living. “All the issues came down to trying to solve liability problems,” he says. “Their first thought always seemed to be ‘We must act to cover our ass’ so no one can come back to them over injuries. There was this inordinately high valuation of a culture of safety, even in a city whose reputation is founded on experimentation, creativity, and innovation.”

Filled shipping containers stay stacked, often nine high, on rolling ships; institutions ranging from traveling art shows to specialized communities in Europe had been using them for housing for years. But the containers didn’t fall under any existing building codes and thus there was no standard way to certify them as safe building materials, especially in a city that is seismically active.

The containers could eventually be folded into an existing code, says Orth (who has resigned since being interviewed), but they probably would have to be encased in frames or transformed in some other way to qualify as buildings, thus eliminating the whole point of the Shipyard’s experiment in cheap recycling. “They know they need structural engineering,” Orth says. “It’s not going to be inexpensive to create buildings out of these containers. It’s gonna cost as much as it takes to build a building.”

That New-Car Smell
Regulatory problems soon led to electrical problems. In March 2002 the city government decided that one way to deal with these stubborn artists was to cut off their power. Power generation suddenly became more than just an intellectual curiosity for Mason. Looking around at the existing world of people trying to live without plugging into the existing power grid, he was disappointed, seeing mostly the sort of 1960s mentality that figured if you had solar panels on the roof to heat your herbal tea, you were living a properly low-impact life.

“I wanted to take up power not from a Luddite ‘the world is being destroyed’ mentality that we should all do nothing, sit in a corner, and not consume at all, or since we can’t, just do a little and feel guilty anyway,” Mason says. “I wanted to take it up as a culture of potential abundance, of doing and engagement.”

So he and some of his pals experimented with living large off the grid. Tea, shmea; they needed to operate three-phase industrial power tools. So they scrounged transformers and off-the-shelf generators from junkyards, bought inverter arrays on eBay, assembled solar panels and switching stations. It took them many months and many failures along the way, but they ended up cobbling together a system that successfully supplied their workshop with electricity, controlled by a snazzy computer program that made it possible to trace all operations online. Though it tended to trip out at least once a day, Mason hopes eventually to offer a version of the power system bundled together in one shipping container as a “powertainer” for off-grid use in the Third World and elsewhere.

Hearing Mason explain it all, the Shipyard’s multiyear experimental electricity generation project sounds absurdly Fitzcarraldan—nothing that any normal person would confuse for a suitable replacement for flicking a switch. While the power system he developed for the Shipyard was ultimately a jumble of solar, batteries, and biodiesel generators, while immersing himself in interesting ways to self-generate power, he did stumble upon a simple old technology—gasifier engines—that, he imagined, could help people rethink energy at a profound level, especially when it came to moving vehicles.

Mason and friends built their first gasifier, similar to the one described at the beginning of this article, in one day. Feeling evangelical about this weird old tech, they installed the engine in the bed of a truck owned by the San Francisco artist and 2007 mayoral candidate Chicken John Rinaldi. The gases produced by the contraption were sucked into the engine on its downstroke via old vacuum-cleaner hoses. Rinaldi began preaching the wonders of gasification on city streets and in the parking lots of Silicon Valley tech conferences, explaining how a car could run on coffee grounds. They dubbed the vehicle the Café Racer.

For Mason, gasification demonstrated the potentially wide range of individual choice in power. He began imagining eco-power stores where you could choose what you burned in your gasifier based on the scent you wanted in the exhaust. At the same time you’d be solving an environmental problem by burning for fuel what would otherwise be waste. Thinking further, Mason figured out a way to link gasification to one of the decade’s biggest concerns: carbon footprints.

The Mechabolic Hypothesis
The key in making a 21st century environmentally friendly process out of an old 20th century machine is the char left over after gasification. In the Amazon rain forest, scientifically mysterious processes create a charcoal known as terra preta (“black earth”) or “agri-char,” which has been used for thousands of years to enrich the soil and boost agricultural productivity. More recently, it got a glowing write-up in Scientific American in May 2007 and made Wired’s “JargonWatch” this March.

By taking the leftover carbon char and plowing it back into the ground, gasification might do more than the mostly carbon-neutral act of burning biofuel. The process is potentially carbon-negative, keeping most of the carbon in the ground rather than the atmosphere while helping plants grow faster, which takes still more carbon out of the atmosphere.

At the 2007 Burning Man gathering, for which the art theme was “green man,” Mason planned to unveil a huge sculpture illustrating the potential of gasification and its terra preta byproduct. He called it the “Mechabolic,” after what he had started to call the Mechabolic Hypothesis.

“Whether food or fuel, animals or engines, it is the same chemical process, partaking of the same inputs, exhaling the same exhausts,” he says. “Fuel, machines, and fire are the synthetic forms of food, body and respiration.” All involve putting together and breaking apart carbon, hydrogen, and oxygen. It’s important to be mindful of the complicated interconnections of it all; the carbon in anything is going to remain in the entire bio-economy in some form, whether burnt or composted or eaten. But some ways of transforming it, such as gasification, are better in terms of greenhouse gases than others. Plain composting, for example—an environmentalist favorite—if done without proper aeration during the process, produces methane, a particularly heinous greenhouse gas, worse than carbon dioxide.

The 120-foot-long Mechabolic was meant to resemble a huge mechanical slug, with a “mouth” that mulched waste and a “stomach” that gasified it. The gas would be used to run an old dragster engine that would propel the sculpture, as well as flame effects. The excretion would be terra preta, which would be fed to edible plants attached to the sides of the moving sculpture. When the Mechabolic was little more than an idea, it was already gaining respectful attention in The New York Times, Business 2.0, and other prominent publications.

Around the time those stories started to appear, in May 2007, Berkeley officials decided enough was enough. The city gave the Shipyard a three-day order to vacate, citing 32 code violations and threatening fines of $2,500 a day. Mason began a counterattack through blogs and the press, ginning up dozens of emails and calls to city officials in his defense.

The tone of some of them is captured well in an email the Shipyard artist Ryon Gesink circulated among friends. Gesink wrote movingly about having to remove huge containers and several years’ worth of art, of seeing his dream of a space to create and innovate squashed. The headline on his account: “Small communist California city to shed 1,000,000 pounds of excessively interesting culture in days; City leaders ensure self righteousness, boredom to be restored shortly.”

While pressuring city officials to back down through mockery and public jousting, Mason also did attempt to address some of their concerns. He disconnected the shipping-container power system. (The system had alarmed Orth, the fire chief, because of the non-professional wiring and all the batteries, and potentially flammable battery acids.) Mason hired an architect to negotiate with the city a way to bring the shipping-container structures up to code, and in the meantime he removed most of them from the lot.

Although the artists were not legally permitted to do anything at the Shipyard, the Mechabolic and other gasifier-powered art vehicles were nonetheless constructed on the site throughout that summer. As late as November 2007, Berkeley Mayor Tom Bates was bringing people by the facility to show off the ingenuity happening in his city, even though it was illegal.

In January 2008 city officials began meeting again with Mason and his team. MacQuarrie, the building inspector, said in January that she was pleased with the signs of cooperation she had seen thus far and that she hoped the innovative art space and its power experiments can maintain a happy home in her city. Just as long as Mason and his friends obtain the proper permits and meet all use, zoning, building, and safety regulations. In February, the Shipyard officially received a use permit and legal power at one of its two addresses, and is on track to make the other legal as well.

Still, Mason feels crushed by the conflict—and radicalized. While others on his team are more optimistic that it will all work out, he thinks experimental living in a highly regulated context might ultimately be hopeless. Never any kind of libertarian, he was shocked to discover that “giving someone the right to shut down a physical site is no less a significant power than giving someone the power to arrest me. The lives of 30 people have been stopped, and there is no immediate review of that decision.

“I live life in economies based on what is interesting,” he adds. “I’ve found no matter what the rules or processes, in the end the thing that’s interesting somehow gets chosen. But getting beat down, I realized that is completely irrelevant. They will not listen or make consideration for interest in anything. They only care, what does the letter of the code say, and does that completely encapsulate the conditions they determine are sitting in front of them? It’s an impossible set-up in which to engage the messy flux of the world.”

Local Power
Mason is inspired by the cultures of hot-rodding and hacking, areas where control over one’s machines, life, and pleasure is small, personal, and imaginative. He’s not out to replace one big power system with another, or to convince the world that we all need to run our cars on wood chips.

But every time John Rinaldi would take the gasified Café Racer out to demonstrate how gasification could turn trash to fuel with techniques anyone could potentially execute in an afternoon, something would happen, he says. After a few seconds of interested delight, someone would ask: How does this scale up?

The questioner would seem a bit disappointed when he’d say, it’s not meant to scale up. It’s supposed to change your whole view of how power can be generated and distributed: not top-down but bottom-up, not adding unpleasant waste to the world but eliminating it.

Colorful experiments like the Café Racer are below the radar of the larger distributed generation community. A growing number of policy intellectuals, activists, and entrepreneurs see systematic, not merely personal, benefits from relying less on big power plants. A 2006 monograph by the environmentalist Avory Lovins, called Small Is Profitable, neatly sums up the arguments for distributed generation, from efficiencies of scale to lower greenhouse emissions to an energy infrastructure more resistant to terrorist attacks. The journal Distributed Energy exudes a worldview far removed from Mason’s unregulated, do-it-yourself mentality. It’s a world enmeshed in, and seeking help from, either government or the existing big utility system at every turn, from subsidies to changing local regulations that delimit or complicate pumping self-generated power back to the grid.

Some people excited about the Mason model think it can become something bigger than a passion for hobbyists. Charlie Sellers, a member of Mason’s Mechabolic crew, brings gasification-based cooking and heating technologies to off-the-grid areas of the Third World.

Tom Price is a 20-year veteran of environmental policy wonkery who worked for Burning Man this year as their liaison to the environmental and energy communities. He helped organize a corporate gift of desert-based solar panels that after the event began supplying free solar power to nearby Nevada communities. He has spun that project off into a company called Black Rock Solar, looking to repeat the experiment in other high desert locales. He’s been talking up the Mechabolic project to people in the enviro-tech community, and says “the consensus opinion is Jim Mason is six months ahead of the curve.”

When Price and Rinaldi took the Café Racer to the CleanTech 2007 convention in Santa Clara, California, last May and “explained how we were making hydrogen out of junk, we ended up surrounded by CEOs and [venture capitalists] who were flabbergasted. I’ve been working on environmental issues for 20 years on the policy side, and I had always assumed like many people that the best solutions came from large institutions set up specifically for this purpose.

“We have in this country both a tradition of independence and a tradition of machines bringing ever increasing levels of comfort. And the latter has been in the ascendant. But there is in our cultural DNA this idea that we can provide for ourselves without any outside help.” When it comes to the potential of gasification, Price says, “only a few hundred or a few thousand technically understand what we are talking about today. But I suspect the number will increase exponentially in very short order.”

The Ride of the Mechabolic
Maybe. But Americans who are not convinced for reasons of ideology or identity that the top-down, flick-a-switch, pull-up-to-the-pump model of power distribution is passé might contemplate the travails of the Mechabolic project and decide there’s no reason to rush into any big changes.

Constructing the monstrous slug involved months of legal fighting, last-minute entreaties for cash injections from the far-flung Burning Man community, and weeks of all-nighters. Then everything had to be taken apart and moved in shipping containers and trucks to the Black Rock Desert, where the crew reassembling it faced a punishing sun, toppling and blinding windstorms, and the sinking morale that comes from realizing you’ve bitten off much more than you can comfortably chew.

Through the week of Burning Man, Mechabolic remained a work in progress. The curious sight of the 120-foot-long metal skids topped with mulchers, shiny engines, gasifier hoppers, and vegetable and spice plants, including radishes, zucchini, and sage, with fewer than half of the ribs that were meant to give the sculpture the shape of a slug, made people stop and ask what was up. Thus Mason got to do what he liked most: explain the potential of gasification and terra preta for humanizing and diversifying our relationship with power while reducing our carbon footprint.

Shortly after sunrise on Sunday, September 2—the next-to-last day of the event—it came together. I was around through sheer luck. I had been up all night, Burning Man–style, listening to a singer playing banjo and ukulele, and I wandered by the Mechabolic work site to find Mason finally turning over the engine. Some other up-all-nighters and I helped to get the machine moving by pushing it, and the loudly throoming engine barreled the monster through the playa dust that had built up around its wheels. It was moving! And shaking! Bottles of homemade wine passed from person to person crouching on the beast’s skids, grinning and whooping. The air was thick with the joy of the improbable and absurd achieved.

About a minute later, with a ferocious cough of transmission fluid all over Mason, the Mechabolic groaned to a halt. It had moved about 68 feet—nearly one for every $1,000 spent on the project, Mason mordantly noted with a smeared smile.

I had assumed, at that moment of triumph, that the Mechabolic was running off pyrolized waste matter. I was mistaken. It turns out the gasification system was only providing gas to burn for fire effects, and powering a generator for lights. When you’re trying to get a car to run via gasification, it works best to start it off with a standard fuel and then ease it over to the gasified junk. So for that minute of motion, the Mechabolic actually was running on off-the-shelf motor fuel. The dream still had some bugs.

The Homebrew Power Club
The costs in time and sanity borne by Mason and his crew were apparent. They were also far beyond what most of the non-art-obsessed will want to pay. But so were the innovations that arose from, say, the Homebrew Computer Club of Silicon Valley, that mid-’70s gang of PC enthusiasts—including a young Steve Jobs and Steve Wozniak—dedicated to DIY computer making. Yet from the homebrewers’ irrational enthusiasms arose the modern world of personal computing.

We haven’t reached the point where flicking a switch for coal-fired power from far away seems as inadequate as the five-mainframes-for-the-nation computer vision that the proto-hackers of the ’70s were rebelling against. But Mason notes that all sorts of human endeavors, from our computing to our food to our transportation, have evolved away from bare resource economizing. They’ve become instead arenas for play and assertions of identity—or, as Mason likes to think of it, areas in which there is at least some opportunity to impress girls.

“We can turn power into something experiential, expressive, personal,” he says. “Not a problem to be solved but an opportunity to be explored, like the cultural movement in food from a thing you eat for raw energy to food as an idiom of pleasure, creativity, and expression, an excuse for gathering friends and family.

“Computing had a similar transformation. It wasn’t until the computer became an idiom of personal expression that it exploded into something ubiquitous as clothes on our body.

“So much of our energy dialogue is still about how big corporate players can do better things, or forcing carmakers to do more reasonable things by taxing the bejesus out of oil so the government can smartly fund new research.…There isn’t enough faith that things can come up meaningfully from the bottom, that through a culture of hacking and play there could be broad, self-realized solutions.”

Senior Editor Brian Doherty is the author of This Is Burning Man (BenBella) and Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement
(PublicAffairs).

Need to Know

bdoherty@reason.com (Brian Doherty) — Thu, 01 May 2008 19:41:00 EDT

When officials in the Bush administration want to stop a plaintiff from obtaining evidence, they often simply declare that evidence a state secret. They have called on this option some 25 percent more times each year than any previous administration since the U.S. Supreme Court first recognized the state secrets privilege in 1953. Recently, Bush officials have used it to block lawsuits accusing the government of violating the Foreign Intelligence Surveillance Act, including an American Civil Liberties Union suit challenging the warrantless interception of U.S. citizens’ communications with people in other countries.

In January, responding to fears that this practice harms citizens’ rights, Sens. Ted Kennedy (D-Mass.) and Arlen Specter (R-Pa.) introduced the State Secrets Protection Act. The problem with the state secrets doctrine, a press release from Kennedy’s office explained, “is that sometimes plaintiffs may need that information to show that their rights were violated. If the privilege is not applied carefully, the government can use it as a tool for cover-up, by withholding evidence that is not actually sensitive.”

The Kennedy-Specter bill would require federal courts to review any invocation of the state secrets privilege in a civil suit, looking not just at government affidavits but at the evidence underlying them. (As state secret law is now practiced, court review is generally not required.) It would also require the attorney general to report to both the House and Senate on any civil case in which the government invokes the privilege. As of early February, the bill was being considered by the Senate Judiciary Committee.

Artifact: Castro Shrugged

bdoherty@reason.com (Brian Doherty) — Thu, 01 May 2008 20:56:00 EDT

“I tried to understand the essence of this new world,” the now-retired Cuban dictator Fidel Castro said last September. “How did we get here?” He was discussing what he gleaned from former Federal Reserve Chair Alan Greenspan’s memoir The Age of Turbulence: Adventures in a New World.

Fittingly, some interpreted El Jefe’s talk of Greenspan as merely a means to ensure people knew the ailing Castro was still alive and aware, not merely appearing in a pre-recorded scam. (Greenspan’s book had been published that month.) No one had any reason to expect honesty from the world’s longest-lasting totalitarian leader.

But Castro was being unexpectedly truthful. By hewing for decades to the communist faith in a centrally managed economy and society, he failed to understand the forces of economic liberalization that Ayn Rand’s acolyte Greenspan endorsed in his book and supported at least rhetorically throughout his career as both economic advisor to presidents and Fed chief. Castro’s failure to comprehend meant decades of material misery for the Cuban people.

Now America’s longest-lasting enemy is officially out of power. The Bush administration’s reluctance to change its ill-conceived embargo against Cuba, even post-Fidel, shows that Castro isn’t alone in misunderstanding “the essence of this new world” or the role of relatively unrestricted international trade in spreading wealth and liberty.

Mint Condition

bdoherty@reason.com (Brian Doherty) — Fri, 07 Mar 2008 07:46:00 EST

In November the Federal Bureau of Investigation raided the Indiana offices of the company that sells the privately minted metal coins known as Liberty Dollars, an alternative currency beloved by those who think U.S. paper money is inherently inflationary. Later that month, G-men hit the Idaho company that mints the coins. In both instances, the government took all the coins it found, along with computers and other records.

According to an affidavit filed by an FBI agent with the U.S. District Court for the Western District of North Carolina (where the investigation was based), the FBI conducted “undercover operations to determine the legality of the American Liberty Dollar currency” from August 2005 to July 2007. It decided that Liberty Dollars were essentially fake U.S. currency, seizable for being “involved in, or traceable to, money laundering” and mail fraud.

Neither Liberty Dollar President Bernard von NotHaus nor any of his employees have yet been arrested or charged with any crime, although the feds so far have kept what they’ve seized. Many of the coins had already been purchased by customers and were awaiting shipment when police took them. Von NotHaus is asking those customers to join a lawsuit to get the coins back. He continues to sell already-minted Liberty Dollars donated by well-wishers as “Arrest Dollars,”
with special handcuff marks added.

The Cost of a Free Lunch

bdoherty@reason.com (Brian Doherty) — Sat, 01 Mar 2008 22:50:00 EST

Guns for D.C.?

bdoherty@reason.com (Brian Doherty) — Sat, 01 Mar 2008 00:54:00 EST

In March the U.S. Supreme Court plans to hear oral arguments in its first significant Second Amendment case since 1939.

The case, District of Columbia v. Heller, involves the District of Columbia’s handgun ban, which the U.S. Court of Appeals for the D.C. Circuit overturned on Second Amendment grounds in March 2007. In doing so, it became only the second federal appeals court to adopt the position that the amendment protects an individual right to keep and bear arms.

The last time the Supreme Court directly addressed the Second Amendment, in the 1939 case U.S. v. Miller, it upheld convictions for moving sawed-off shotguns across state lines. The Court based its decision on the premise that the Second Amendment applies only to weapons suitable for militia use. Since it focused on the type of weapon, it didn’t settle the question of whether the right to keep and bear arms belongs to individuals or merely to state-organized militias. This ambiguous ruling has contributed to decades of debate among legal scholars, judges, and the public about the meaning of the Second Amendment.

If the Supreme Court endorses the individual-right interpretation in Heller, it won’t be the death of all gun regulations, although it may rule out laws as strict as D.C.’s. According to the D.C. Circuit, “the protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment.” As Robert A. Levy, the libertarian lawyer who organized and funded the D.C. gun ban challenge, told Mother Jones, “there are some restrictions that are permissible, and it will be the task of the legislature and the courts to ferret all of that out and draw the lines.”

Friday Mini Book Review: Head Case

bdoherty@reason.com (Brian Doherty) — Fri, 29 Feb 2008 21:40:00 EST

See past mini book reviews.

Head Case: How I Almost Lost My Mind Trying to Understand My Brain, by Dennis Cass (HarperCollins, 2007). More in the "sensitive but not too earnest, hapless but not too pathetic" guy non-fiction mode, on a topic that could certainly use some humane and skeptical voices: the graspings of modern neuroscience.

The book is a perfectly entertaining failure; it reads quickly and smoothly as any given Esquire feature (which it resembles in voice and weight) and switches skillfully and entertainingly from the poignant memoir part (the author's troubles coping with the memory of his mentally troubled stepfather) to the wacky participatory journalism parts (he gets his brain scanned, takes Adderall, leads his own psychological research team to a mall).

Cass plays the naif too much to get to any deep conclusions about what we actually understand, and/or can control, about the human brain; this humble voice is appropriate to such a confused and confusing topic. One comes away intrigued with the knowledge that Adderall makes Arby's sandwiches taste even crappier; thinking that his nutty stepdad might have been hell to live with but is pretty interesting to read about; and that perhaps the wisest sentence in the book is "When Bill [the stepdad] talked to me this way he wasn't a brain; he was a shitty dad."

Cass is a good writer who took on an important topic--perhaps a more important topic than he even fully grasped. Sometimes contemplating neuroscience and its curious and troubling connection to the humane life--its advances, its imperialism, its reductionism, its tautologies--I think it must demand either slavish obedience or rebellious resistance. Doubtless, that's a limbic reaction. A middle way is surely more sensible, more responsible, more defensible. Cass takes that middle way, and proves that, at least when it comes to popular journalism, that middle path is alas far less fascinating.

Shouting "Screw You" At Prozac

bdoherty@reason.com (Brian Doherty) — Fri, 29 Feb 2008 20:35:00 EST

Found via Kevin Drum at the Washington Monthly, an interesting new metastudy written up in the UK Guardian that casts doubt on the effectiveness of such SSRIs and SSNIs commonly prescribed for depression as Prozac and Effexor.

An excerpt from the Guardian account:

The study examined all available data on the drugs, including results from clinical trials that the manufacturers chose not to publish at the time. The trials compared the effect on patients taking the drugs with those given a placebo or sugar pill.
When all the data was pulled together, it appeared that patients had improved - but those on placebo improved just as much as those on the drugs.
The only exception is in the most severely depressed patients, according to the authors - Prof Irving Kirsch from the department of psychology at Hull University and colleagues in the US and Canada. But that is probably because the placebo stopped working so well, they say, rather than the drugs having worked better.
"Given these results, there seems little reason to prescribe antidepressant medication to any but the most severely depressed patients, unless alternative treatments have failed," says Kirsch.
The paper, published today in the journal PLoS (Public Library of Science) Medicine, is likely to have a significant impact on the prescribing of the drugs.
.........
The pattern they saw from the trial results of fluoxetine (Prozac), paroxetine (Seroxat), venlafaxine (Effexor) and nefazodone (Serzone) was consistent. "Using complete data sets (including unpublished data) and a substantially larger data set of this type than has been previously reported, we find the overall effect of new-generation antidepressant medication is below recommended criteria for clinical significance," they write.

From my own perspective on the rolling juggernaut of psychatric medicine, I somehow doubt the optimistic "likely to have a significant impact" bit. Especially given Kevin Drum's observation on how little play this has gotten in American media, which still seems to be the case.

Drum's comment thread is very interesting and worth at least skimming for those who care about this topic. Lots of people jousting with the results, some of them of the level of intellectual sophistication of those who note that, damn, that horoscope that day really described exactly what I was going through; others raise the notion that the study might be misleading for either conflating some drugs that work with others and dragging down the working drugs average, or for mixing subjects who really are depressed with a bevy of people to whom the drugs were misprescribed and thus don't work.

The full study, from the open-access Public Library of Science.

Ronald Bailey wrote back in July 2007 for reason on the fascinating world of public access open source scientific journals such as Public Library of Science.

This July 2007 reason feature by me touches on some of the things that psychiatric medical science can't quite tell us.

And see this July 2000 reason interview with psychiatric critic Thomas Szasz, conducted by Jacob Sullum.

Second Thoughts on WFB

bdoherty@reason.com (Brian Doherty) — Fri, 29 Feb 2008 20:02:00 EST

Reading through a recent issue of the magazine he founded, National Review, on the day of his death, I was reminded that, though there are certainly things to admire from a libertarian perspective about William F. Buckley, many of which you've read here on this site this week, it takes a fair amount of "defining bad conservatism down" to praise the late Mr. Buckley unreservedly as one of the good 'uns.

The article that got me thinking this was a review by NR Senior Editor Ramesh Ponnuru of the new book by fellow National Review contributor David Frum, Comeback: Conservatism That Can Win Again. The book's prescriptions (I have not read the book--I am going from Ponnuru's review, and my understanding of Frum from his short-form journalism) sound simply dreadful--and in many ways perfectly Buckleyan.

One of the characteristic aspects of Buckleyan conservatism was that it must stay moored within the bounds of widely acceptable and achievable political goals, an approach that he and his colleagues felt made them more serious, more engaged, more realistic, than their libertarian semi-comrades. This approach was drilled into him by early mentors like James Burnham and Whittaker Chambers. You see this attitude in Ponnuru on Frum:

Had [Bush] governed more conservatively, he would be even more unpopular than he is now. Conservative journalists and policy experts complain that Bush added an expensive prescription-drug benefit to the already-unaffordable Medicare program. “But,” writes Frum, “public support for the benefit ranged between 80 percent and 90 percent through the first Bush term. .

Blithely going along with a program that will cost staggeringly unimaginable amounts of money in a nation already buried in debt is the sober, serious stance, then; while those who might object to indebting ourselves to the nth generation to satisfy short-term political and business constituencies are head-in-the-clouds losers.

There's more to Frum's realistic advice:

it is conservative themes, not just conservative policies, that need to be updated [thinks Frum]. “[H]ow many Americans in these opening years of the 21st century feel too little liberty to do what they want to do?” We have more liberty, and less order, than we used to have, and popular anxieties have shifted in response.

That's exactly the problem most Americans face: too much liberty. What does this man who sells himself as political advisor to an adrift political tendency offer to save conservatism (and America) from too much liberty?

He wants stiff carbon taxes, to combat both global warming and our geopolitically harmful dependence on oil. He thinks conservatives should regard obesity as an issue of public concern. Some conservatives have championed the reform of prisons, for example to reduce the horrifying incidence of rape within their walls; Frum believes such reform should be a much higher priority.......he asserts that conservatives need to stand for “universal health insurance.” ......He has no strategy on education, just the hope that the No Child Left Behind Act, by requiring schools to report their test scores, will open people’s eyes to the public system’s failure and thus make them more receptive to conservative ideas such as vouchers.

Now, that particular philosophically confused set of policies might not match those WFB would endorse exactly. Here at Hit and Run we've praised Buckley for being right on two important issues where most of his fellow conservatives are wrong--pot legalization and the Iraq War.

But I fear that his being right was more a matter of his magisterial whim than of a firmly developed and trustworthy set of beliefs, either strategic or philosophical. This same "conservatism is what I think government needs to do to satisfy either the people or my particular concerns" principle animates Frum.

It has been often quoted, especially by libertarians, but so often because it is a succinct and representative explanation of the distinction between conservatives and libertarians in the day when Buckley and the early National Review was helping create and enforce a gap between libertarians and conservatives. See again this disturbing thought from Buckley in Commonweal magazine in 1952: "We have to accept Big Government for the duration – for neither an offensive nor a defensive war can be waged...except through the instrument of a totalitarian bureaucracy within our shores." He thus championed "the extensive and productive tax laws that are needed to support a vigorous anti-Communist foreign policy," and of course the "large armies and air forces, atomic energy, central intelligence, war production boards and the attendant centralization of power in Washington – even with Truman at the reins of it all."

From those early Cold War thoughts to segregation through his more recent missteps on matters like national service and smoking, Buckley seemed to believe steadfastly in this timeless political principle: that government should be restricted quite firmly to...those things that Buckley thought it important for government to do. (See, for example, in his 1983 reason interview the distinction he makes between pot legalization, which he's for, and heroin legalization, which he is not.)

Thus both Buckley and Frum represent the weaknesses of conservatism: slavishly dedicated to the politically possible to some degree, whimsically unmoored from settled principles about what government ought to be doing to a large degree, unreliable bulwarks of peace and liberty to a dangerous degree.

Buckley was a witty man, a learned man, in most ways clearly a good man--dedicated, productive, humane. He was certainly vital to importing a general sense in American culture in the past half-century that government was not necessarily the solution to every problem. Was he a great writer? I've enjoyed some of his longer form work. As a newspaper columnist, especially in the later decades when I was reading him most regularly, I have to largely concur with Jesse Walker's wickedly entertaining take on his deficiencies.

Since he was himself an often rough-and-tumble public controversialist, I trust neither he nor anyone else would consider it untoward to deal with him critically, even on the week of his death. Buckley was, through his virtues, a representative--the representative--conservative of his time, with all the troublesome (for the libertarian) beliefs and strategies that implied.

Many of his successors in the business of defining and running the modern American right-wing are worse, to be sure; more partisan, more brutal, less rooted in any understanding of the necessary limits of state power. But even on his passing, it's worth remembering many of the problems with modern conservatism, problems that live on beyond Buckley, that can fairly be considered his children.

"It is Well That War is So Terrible...."

bdoherty@reason.com (Brian Doherty) — Thu, 28 Feb 2008 20:16:00 EST

Via Wired.com, and from the collection of psychologist Philip Zimbardo who was a defense expert witness for one of the guards, some more gruesome photos from Abu Ghraib. Some are pretty similar to the classic hooded figure one, some of them defensible on some level as weird black humor, but for the most part showing some very dark behavior seemingly motivated from some of the very dark feelings generated by life during wartime.

[Tip via reader John-David Filing.]

Libertarianism and Civil Disobedience

bdoherty@reason.com (Brian Doherty) — Thu, 28 Feb 2008 15:23:00 EST

Arnold Kling at TechCentralStation thinks libertarians should give civil disobedience a chance:

I am thinking more like open, nonviolent defiance of laws that require licenses, paying onerous taxes, and so on....like Gandhi in the sense that we would be counting on a civilized society not to engage in severe repression. We would have the same idea. Millions of ordinary, decent Americans engaging in peaceful disobedience, making it awkward for the government to engage in repression.....Run a small school without a license. Do some health care services without a license. Run a small part-time business without complying with the payroll tax.

Kenneth Silber thinks that's nuts. Kling begs to differ, natch. Kling's blogging partner Bryan Caplan weighs in.

reason contributions from Silber and Caplan.

AT&T Works In More Places....

bdoherty@reason.com (Brian Doherty) — Thu, 28 Feb 2008 13:39:00 EST

For some real-world commentary on the recent telecommunications company/FISA brouhaha, see the work of the Billboard Liberation Front on a San Francisco AT & T billboard yesterday.

For more sober and detailed commentary on this matter see, to begin with, Julian Sanchez's "Time for Democrats to Lead on FISA" from December.

Of Gold and Empire

bdoherty@reason.com (Brian Doherty) — Thu, 28 Feb 2008 10:46:00 EST

For those confused by the linkage between two of Ron Paul's major issues--antiwar and pro-gold--economist Steve Horwitz explains the connection in the January/February issue of The Freeman with a historical review of the links between federal intervention in the currency system and war.

Some excerpts that tell the tale:

Governments that can either create money directly or use regulation to force banks to provide the resources will be able to conduct war more often and with less political resistance than those that cannot.
.......
In 1863 the federal (Union) government for the first time offered charters for individual banks. With charters came regulations, one of which was the requirement that bank-issued currency be backed with U.S. government bonds. Whenever a federally chartered bank wanted to give its customers paper currency, it had to purchase such bonds, whose face value slightly exceeded the value of the currency and then present them to the Comptroller of the Currency in Washington, who then printed the bank’s notes......Interestingly, when the federal government first offered the charters, almost no banks signed up; they kept their state charters because the federal charters offered no advantages and some minor disadvantages. Not content to lose that way of financing the war, Congress quickly passed a 10 percent tax on the banknotes of state-chartered banks..... Between the original bond-collateral requirements and punitive tax on the state-chartered banks, the federal government used its power over the monetary system to ensure a market for bonds to pay for the Civil War.
............
The Johnson administration made a conscious decision to finance the Vietnam War
through inflation rather than higher taxes....At the time Federal Reserve Notes held by foreign central banks were still redeemable in gold at the Fed. As a result of the inflation (depreciating dollar) of the late 1960s, the Fed saw a massive flow back of Federal Reserve Notes from foreign governments, which began to reduce U.S. gold holdings. This drain of gold reserves led President Nixon to close the “gold window” in 1971, breaking the last remaining link between the dollar and gold. With excess supplies of money no longer generating any direct negative economic consequences for the Fed, the even-greater inflation and macroeconomic disorder that characterized the rest of the 1970s and ’80s were no surprise.
Thus the need to finance the Vietnam War led to increased government control over money, which led to macroeconomic disorder (much as we saw in the late nineteenth-century banking panics), which in turn led to calls for more government intervention.

A reason roundtable on the Federal Reserve in the Bernanke era, featuring Milton Friedman and Ron Paul, among others.

Horwitz reviewed Theodore Burczak's Socialism After Hayek in reason's July 2007 issue.

Some Thoughts on WFB

bdoherty@reason.com (Brian Doherty) — Wed, 27 Feb 2008 16:01:00 EST

This will not be a fully thought out discussion of William F. Buckley's influence and achievements. For a bit more in that direction, see this review of a Buckley bio and this review of a book on National Review's history.

There is a lot I could disagree with about the way Buckley treated what he clearly thought of as his conservative movement throughout the years, particularly his linking it with an endless war against communists both domestic and foreign. But I should also remember that if the conservative movement of today were more truly his, it would be a conservative movement I could cheer far more than I can the one we are actually faced with here in the phenomenal world Buckley has just left us behind in.

On the passing of this man of world-historical importance, I prefer to just note some details of his charm and humanity. He is known as a ruthless enforcer of orthodoxy within conservatism (for his own extended take on why he felt he had to be, see his 2003 novel Getting It Right in which fictionalized Objectivists and Birchers are drubbed). He's cheered for it and booed for it by different camps for different reasons.

But in his personal life, for the most part, he showed a winning ability (again, much of the time, not all) to be friendly and supportive beyond obvious ideological differences. I prefer to remember the Buckley who is understood to have provided support above and beyond the call to such friends and mentors as Whittaker Chambers and aging anarchist Frank Chodorov in his waning years; who could write, in response to many intemperate attack letters from his old buddy Murray Rothbard that "not that I love you any the less, you perverse old anarchist. But don't worry, when the Communists come, I'll run interference"; who would publish articles by the then utterly disreputable Timothy Leary in National Review in 1976 based on what Leary told me was the intertangled old acquaintanceships between his New England Irish aunts and Buckley's family, and "out of friendship--libertarian friendship"; and the man who could be long and intimate pals with ideologues who he considered as dangerous and wrong as John Kenneth Galbraith.

He was often a sterling example of letting humane considerations trump political ones (though he was usually less charitable toward ones, like Rothbard, Garry Wills, or Joseph Sobran, who he had thought of as "on his side" but who then shifted in whatever direction).

Yes, this kind forbearance was not universal, and some of his own obituaries for prominent libertarians he was at odds with such as Rand and Rothbard were intemperate. A complicated man, to be sure, and a complicated public influence. But on this day of his passing, I'll remember the wit who wrote an amused but delicate letter trying to placate F.A. Hayek (who was appalled at the indecorum of running a gag item hinting that deceased UN chief Dag Hammarskjold had cheated at cards); and who wrote in his influential column in 1971--the year that radical libertarians like Louis Rossetto were on the front page of the New York Times Sunday Magazine--that "the radical libertarians have a great deal to contribute."

Surge: Not Protecting

bdoherty@reason.com (Brian Doherty) — Wed, 27 Feb 2008 11:44:00 EST

The new Rolling Stone (Jack Johnson cover) has a long and ruthless anti-surge feature from Nir Rosen (author of The Triumph of the Martyrs: A Reporter's Journey into Occupied Iraq, a book that was hobbled in hardback with the un-resonant and uninformative title In The Belly of the Green Bird).

Rosen's story contains some anti-conventional wisdom assertions that are sure to make many spit their juice, for example:

"In Saddam's time, nobody knew what is Sunni and what is Shiite," [Iraqi National Police Capt. Arkan Hashim Ali] says. The Bush administration based its strategy in Iraq on the mistaken notion that, under Saddam, the Sunni minority ruled the Shiite majority. In fact, Iraq had no history of serious sectarian violence or civil war between the two groups until the Americans invaded. Most Iraqis viewed themselves as Iraqis first, with their religious sects having only personal importance. Intermarriage was widespread, and many Iraqi tribes included both Sunnis and Shiites....

The story is also belly-up vulnerable to accusations that it's only focusing on the scary side of the complicated reality of Iraq. Still, it's well worth a long look for those trying to collect as much data as possible about what America is facing and might soon be facing in Iraq.

The general arc of Rosen's piece: as Rosen follows various Iraqi and U.S. security forces around on raids, he insists that the Sunni militias known as either "Iraqi Security Volunteers" or Sahwa ("The Awakening") are another civil war waiting to happen, loyal only as long as the Yankee dollars keep flowing; Iraqis smile to our troops' faces but behind our backs they hiss: what are troops like you doing in a nation like this? And contempt for the U.S. occupying force is only matched by contempt for the official Iraq government.

A few key excerpts:

After meeting recently in Baghdad, U.S. officials concluded in an internal report, "Most young Concerned Local Citizens would probably not agree to transition from armed defenders of their communities to the local garbage men or rubble cleanup crew working under the gaze of U.S. soldiers and their own families."
..........
As the soldiers storm into nearby homes, the two men who had tipped off the Americans come up to me, thinking I am a military translator. They look bemused. The Americans, they tell me in Arabic, have got the wrong men. The eleven squatting in the courtyard are all Sunnis, not Shiites; some are even members of the Awakening and had helped identify the Mahdi Army suspects.
I try to tell the soldiers they've made a mistake — it looks like the Iraqis had been trying to connect a house to a generator — but the Americans don't listen. All they see are the wires on the ground: To them, that means the Iraqis must have been trying to lay an improvised explosive device. "If an IED is on the ground," one tells me, "we arrest everybody in a 100-meter radius." As the soldiers blindfold and handcuff the eleven Iraqis, the two tipsters look on, puzzled to see U.S. troops arresting their own allies.
.............
The [Iraqi National Police] were also reporting fake engagements and then transferring to Shiite militias the ammunition they had supposedly fired. "It was funny how they always expended 400 rounds of ammunition," [Maj. Jeffrey] Gottlieb [who trains Iraqi police] says.
...........
The Americans know that the entire raid may have been simply another witch hunt, a way for the Shiite police to intimidate Sunni civilians. The INP, U.S. officers concede, use Al Qaeda as a "scare word" to describe all Sunni suspects.
"Yeah, the moral ambiguity of what we do is not lost on me," Maj. Gottlieb tells me. "We have no way of knowing if those guys did what they say they did."

For more surge-skeptic blogging, see Radley Balko from earlier this week.

UPDATE: Forgot to mention, Rosen did some reporting from Iraq for reason back in 2004. See here and here.

Really Full Disclosure

bdoherty@reason.com (Brian Doherty) — Tue, 26 Feb 2008 12:21:00 EST

New way to bedevil those working in and for Congress, from the website LegiStorm's press release:

LegiStorm, the Web site that first caused controversy in Washington by publishing congressional staffer salaries, has now launched the first database of personal financial disclosures for thousands of the most powerful aides.
By law, members of Congress and their highest paid staff - who tend to be the most powerful on Capitol Hill - are required annually to disclose information about their personal finances, including details about their debts, stock portfolio, outside earned income, spousal employment, major gifts received and even their gambling winnings.
..........

Rules from the House of Representatives state, "The objectives of financial disclosure are to inform the public about the financial interests of government officials in order to increase public confidence in the integrity of government and to deter potential conflicts of interest."
[LegiStorm founder Jock] Friedly expects controversy with the new free database. "I understand that congressional aides want to jealously guard their privacy and I sympathize," he said. "However, these are the behind-the-scenes power players who control a $3.1 trillion federal budget and write all the laws of the land. It's hard to argue that they are not important public figures worthy of a little scrutiny."

Start your private investigation at LegiStorm today!

Don't Let the Bedbug Story Bite

bdoherty@reason.com (Brian Doherty) — Tue, 26 Feb 2008 11:33:00 EST

Interesting analysis of a tiny--very tiny--media panic over the looming, but likely nonexistent, "return of the bedbug" from the Washington Post. Excerpt:

Even if no one is padding the totals, relying on reports from freaked-out callers is ill-advised. For one thing, there are so many people out there who think they're being devoured by bugs -- and aren't -- that psychologists have a name for it: delusional parasitosis.
"We had a lady come in here with a garbage bag she said was filled with bugs that were biting her," says Matt Nixon of American Pest Management in Takoma Park. "She handed it to my dad and she said, 'If you open that and you get bit, it's your problem.' And there was nothing in there except lint, hair and dry skin. We deal with people like that every week."
But there are so many bedbug false alarms that there's reason to assume many perfectly sane people are ringing them. In New York, the city housing authority has fielded and checked out more than 2,500 bedbug complaints in the past three years; fewer than 500 turned out to be actual infestations. Even allowing for some overlap -- two calls about the same bugs, for instance -- that's as many as two or three callers who don't have bedbugs for each caller who does.

Stagflation, Or Just a Good Ol' Recession?

bdoherty@reason.com (Brian Doherty) — Tue, 26 Feb 2008 09:51:00 EST

Might there be a little something to worry about in the Federal Reserve's recent let-er-rip attitude toward cutting interest rates? See the latest inflation news from the Wall Street Journal:

U.S. wholesale prices surged in January and core inflation also climbed above expectations, according to more data revealing price pressures amid the economic slowdown.
The producer price index for finished goods rose 1.0% on a seasonally adjusted basis after a 0.3% decrease in December, the Labor Department said Tuesday. Originally, prices in December were estimated down 0.1%.
The core index, which excludes food and energy items, rose 0.4% last month, seasonally adjusted. It rose 0.2% in December.
Wall Street expected smaller price increases.....
In the 12 months ending in January, prices climbed 7.4% on an unadjusted basis. In the 12 months ending in December, prices were up 6.3%. The 7.4% climb is the largest since 7.5% in October 1981.

Analyst Paul Kasriel says it ain't stagflation (although a bunch of people quoted in the New York Times and Wall Street Journal might disagree)--just a natural and predictable start-of-recession phenomenon, with inflation lagging the slowing of GDP growth.

A reason roundtable on the Federal Reserve, from November 2006, featuring, among others, Milton Friedman and Ron Paul.

In possibly not unrelated commentary, see some recent goldblogging from me and Matt Welch.

Everything Still Turns to Gold

bdoherty@reason.com (Brian Doherty) — Mon, 25 Feb 2008 10:45:00 EST

Ron Paul associate, old libertarian movement hand, and retired coin dealer Burt Blumert is profiled at the San Francisco Chronicle's website. An excerpt:

Precious-metal prices tend to increase in times of economic uncertainty and a weakened U.S. dollar. And this inverse relationship is key to understanding Blumert's reference to gold dealers' dismal view of the future. To a philosophical goldbug, when the price of their commodity increases, it's a sign that the global economy is tanking. Inflation is proof that the fiat money system is an illusion — and an affirmation that, in the portentous, Arthurian terms of a recent book by Nathan Lewis, gold is The Once and Future Money.
But — and here's the paradox — for the goldbug's worldview to be finally vindicated, the fiat money system has to collapse. "Many of my clients would like to be standing in the rubble of our society saying, 'I told you so,'" Blumert says. "And there was a time when I did want collapse — when I was young and excited about my view. But the older I get, personally I can't deal with rubble anymore. I don't want to see a collapse, to be vindicated and say, 'See, I was right.'"

My reason interview with Nathan Lewis, mentioned in the above excerpt, on gold. Recent goldblogging from Matt Welch.

Obama: The More Things Change...

bdoherty@reason.com (Brian Doherty) — Mon, 25 Feb 2008 09:06:00 EST

D.C. Examiner columnist Melanie Scarborough goes to the man's website to figure out his plans for America. Some high-spendin' samples:

» “Obama will make college affordable for all Americans.”
» “Obama will quadruple Early Head Start and increase Head Start funding. Obama will also provide affordable and high-quality child care to ease the burden on working families.
» “Obama will double funding for after-school programs.
» “Obama will provide job training, substance abuse and mental health counseling to ex-offenders, so that they are successfully re-integrated into society.
» “Obama will create a fund to help people refinance their mortgages and provide comprehensive supports to innocent homeowners.
» “Obama will create an Affordable Housing Trust Fund to develop affordable housing in mixed-income neighborhoods.
» “Obama will create 20 Promise Neighborhoods in areas that have high levels of poverty and crime and low levels of student academic achievement … which provide a full network of services, including early childhood education, youth violence prevention efforts and after-school activities, to an entire neighborhood from birth to college.
» “He will provide at least $2 billion to expand services to Iraqi refugees in neighboring countries, and ensure that Iraqis inside their own country can find a safe haven.
» “Obama will double our foreign assistance to $50 billion.”

......Obama plans to meddle in minutiae, such as radio programming in Topeka (“An Obama presidency will promote greater coverage of local issues and better responsiveness by broadcasters to the communities they serve”)...

The New Iraq War

bdoherty@reason.com (Brian Doherty) — Fri, 22 Feb 2008 19:41:00 EST

Managing the empire can get so complicated: Turkey invades Iraq. From Reuters:

Thousands of Turkish troops have crossed into northern Iraq to hunt Kurdish rebels, television and a military source said on Friday, escalating a conflict that could undermine stability in the region.
Turkey's military said the cross-border offensive, possibly the largest in a decade, would continue until they had stopped the threat from PKK rebels, who have been using northern Iraq as a base to stage attacks in Turkey.
It said in a statement 24 PKK rebels and five soldiers were killed in clashes in Iraq. It also said at least 20 rebels were killed in separate aerial attacks.
The United States urged Turkey, a key regional ally, to limit its offensive to precise PKK targets and to bring the operation to a swift conclusion.

Link via the very useful Rational Review. Doug Bandow in reason in 2003 on the U.S.'s complicated relationship with Turkey.

Some Businesses Are Inherently Public, Says Washington State Supreme Court

bdoherty@reason.com (Brian Doherty) — Thu, 21 Feb 2008 13:11:00 EST

Some bad news from the Institute for Justice, in a press release ~~that does not yet seem to be on their website~~ that you can read here in its entirety:

The Washington Supreme Court today dealt a blow to civil liberties. In Ventenbergs v. City of Seattle, a divided Court decided that the city of Seattle could violate local entrepreneur Joe Ventenbergs' constitutional right to earn an honest living by creating construction waste-hauling monopolies for two multi-national corporations, making it illegal for Joe to practice his profession.

“The Court got the law wrong today and Washingtonians will suffer as a result,” said William Maurer, executive director for the Institute for Justice Washington Chapter (IJ-WA), which represents Joe Ventenbergs. “The Court ruled that our constitutional rights are less important than protecting two enormous, out-of-state corporations from competition. The sole good news from this decision, however, is that it is so narrow that it affects only hard-working entrepreneurs in the waste-hauling business and not other entrepreneurs throughout the state, who will be able to continue to rely on the protections of our state constitution to combat the creation of government monopolies.”

In a decision released this morning, the Court stated that hauling construction waste is not a private enterprise and “is in the realm belonging to the State and delegated to local governments.” The court found specifically that the provision of waste hauling service is a “government service” and constitutional protections do not apply to government-provided services.

Justice Richard Sanders, joined by Chief Justice Gerry Alexander and Justice Jim Johnson, dissented, arguing that today’s decision “presents a textbook example of governmental corporate favoritism to advance the profits of the privileged few at the expense, and the extinction, of any potential competitors. It flies in the face of the state’s privileges and immunities clause which was adopted to combat this exact sort of unholy alliance between government and big business, which ultimately not only disserves the excluded businesses but also the public in general.”

IJ's page dedicated to the Ventenbergs case. with a timeline and many links.