Posts © 2011-2012 by Gerald G. Day







Sunday, August 28, 2016

August 28, 2016
In an eloquent speech following the shooting of police officers in Dallas, President Obama said, "I’m here to insist that we are not as divided as we seem." Unfortunately, we are divided, broadly and deeply. There are any number of indications.
Starting with the context of Mr. Obama’s remarks, there is the deadly gulf between police and black citizens. This is not the only indicator of racial division; the attacks on the President often reflect bias. White nationalism, white pride, white whatever is based on fear and hatred of blacks and Latinos. Here is a typical white-nationalist claim: "Only those of pure White blood, whatever their creed, may be members of the nation. Non-citizens may live in America only as guests and must be subject to laws for aliens."[47]
Donald Trump is a demagogue and a rabble-rouser, who has encouraged or condoned violence at his rallies, and has used and magnified racial, cultural and religious divisions and resentments. The rebellious nature of his followers, and loose talk at rallies and at the GOP convention, has led to speculation that, when he is sent back to Trump Tower, his followers may not take it quietly, especially as he is claiming that, if he loses, it will be due to fraud. One article, referring to "the angry, unhinged mob formerly known as the Republican base," warned that "people who call for their opponents to be arrested or killed, while imbuing their own candidate with messianic powers, do not accept political defeat easily."[48]  A revolt isn’t likely, but concern about it is a sign of how bad things are.
Trump is supported by the loony but popular conspiracy theorist Alex Jones, who seems to think that every violent event, such as 9-11, the Oklahoma City bombing and Sandy Hook, was really staged by the government.[49]  Trump returns the compliment: "Your reputation is amazing. I will not let you down."[50]  Jones’ fear and hatred of government includes, not surprisingly, the question of gun possession: "I'm here to tell you, 1776 will commence again if you try to take our firearms!"[51]
Gun nuts, of whom the NRA is the leader and mouthpiece, fit nicely into the speculation about a rebellion by Trump’s followers. The NRA has endorsed Trump, and has run an ad attacking Mrs. Clinton and urging a vote for Trump. Of course, it encourages everyone to be armed. The country is awash in guns and many have dangerous ideas about what they are for. As an article in The Atlantic[52] put it, "in recent years, the belief in widespread gun ownership as a defense against tyrannical government has become an alluring idea, gaining traction with members of Congress as well as fringe conspiracy theorists." As an example of the former, it quoted Senator Tom Coburn: "The Second Amendment wasn't written so you can go hunting, it was to create a force to balance a tyrannical force here." (Ted Cruz agrees [53]) As to fringe groups, it quoted something called Three Percenters: "all politics in this country now is just dress rehearsal for civil war." As to ordinary citizens, the article cited a 2013 poll reporting that sixty-five percent of Americans see gun rights as a protection against tyranny.
The Southern Poverty Law Center identified 998 anti-government groups active in 2015. It noted that the anti-government movement has experienced a resurgence since President Obama was elected. Immigration and economic worries help fuel the movement, as does racism. Of the 998 groups, 276 were militias.[54]
Many of the groups are made up of "sovereign citizens." Such people believe that government is illegitimate, and that they are not bound by its laws. They invent odd theories to justify their above-the-law status. According to one web site, "The first thing a Sovereign becomes is immune to law, I.E. statutory, civil and vehicle codes. You no longer are subject to those laws they just do not apply to you."[sic][55]  A sovereign, it tells us, can avoid paying state or federal income taxes, and can discharge debts by self-created "bonds."
Much of the activity of self-proclaimed sovereigns is confined to evading taxes or license fees and creating false paperwork, such as liens on property, but some have engaged in violence. "The FBI considers sovereign-citizen extremists as comprising a domestic terrorist movement . . . with well-known members, such as Terry Nichols, who helped plan the Oklahoma City, Oklahoma, bombing."[56]
A frequent claim by such people is that the federal government was replaced by a corporation mysteriously created many years ago; the date varies from the 1860s to the 1930s. One version tells us that "a for-profit corporate entity known as the UNITED STATES Government. . . has been posing as the lawful government for nearly 150 years. . . ." Because of its fraud, abuse and theft, righteous lawful government must be restored. That, we are told, has been done; there is a new government: "The Republic for the United States of America [RUSA], has been the only lawful de jure government in America since 2010."[57]  It is a parallel, interim entity which will be fully substituted for the corporation when proper elections somehow are held, at a date to be determined. In the meantime, RUSA does not consent to the use by the false, corporate federal government of any federal property or resources. RUSA is an offshoot of The Guardians of the Free Republic, which issued letters to governors in 2010 directing them to resign within three days or be removed. All of this is delusional, but it’s none the less an example of the suspicion, resentment and withdrawal that seems to be rampant.
The web site of RUSA urges support for "Constitutional Sheriffs," and links to the web site of the Constitutional Sheriffs and Peace Officers Association (CSPOA), a group which claims membership — or support, or training, something — of 400 or more sheriffs. It claims that sheriffs are the highest elected officials in each county and have the right to prevent enforcement of laws by state or federal agencies. It would prevent the "[a]rrest of citizens or seizure of persons or property [by outside agencies] without first notifying and obtaining the express consent of the local sheriff."[58]  The CSPOA has, peculiarly for a law enforcement group, an obsession with gun-possession rights.

According to Right Wing Watch, the leader of CSPOA, Richard Mack, claims that "states and counties need to enforce their ‘sovereignty’ in areas like marriage equality and gun control, or else ‘we will lose liberty in America, and we will not get it back unless there’s bloodshed’." [59]  Mack is part of a group that is "seeking to stage a political takeover of [an Arizona] county as an experiment in creating a local government that will ignore and ‘nullify’ federal laws — such as federal lands restrictions and gun regulations — that its leaders believe to be unconstitutional."[60]
Similarly, The Tenth Amendment Center peddles the notion that states have the right to nullify federal laws, an invitation to chaos. I won’t add to my extensive comments[61] on that theory, but it is high on the worrisome list of symptoms of national fracturing, and the Center’s web site toys with secession. That is made more explicit by the League of the South, which advocates the secession of the Southern States and the formation of a Southern republic. [62]
Cliven Bundy became a hero to the sovereigns by running his cattle on federal land, refusing to pay grazing fees, ignoring court orders, and finally arranging an armed standoff with federal officers. He declared that "I don’t recognize [the] United States Government as even existing." His defiance encouraged others, including the CSPOA and, of course, led to the occupation led by his sons of a wildlife refuge in Oregon. The Republican national platform pandered to the resentment of federal land ownership in this proposal: "Congress shall immediately pass universal legislation providing for a timely and orderly mechanism requiring the federal government to convey certain federally controlled public lands to states."
Disdain for government and radical individualism aren’t limited to fringe groups. The preamble to the Libertarian Party’s 2016 platform declares: "As Libertarians, we seek a world of liberty; a world in which all individuals are sovereign over their own lives and no one is forced to sacrifice his or her values for the benefit of others." To be sure, the Libertarians disavow the aggressive use of force against other citizens. Therefore, we could regard this as a peaceful, political form of self-sovereignty, distinct from the kooky sovereign citizens.
However, the platform is directed primarily at freeing the individual from government, many of the activities of which are declared to be illegitimate, and asserts the right to use force to protect property. "This right inheres in the individual, who may agree to be aided by any other individual or group." That seems to encourage armed resistance, such as Bundy’s. To make clear that it has arms in mind, the platform declares: "We affirm the individual right recognized by the Second Amendment to keep and bear arms. . . . We oppose all laws at any level of government restricting, registering, or monitoring the ownership, manufacture, or transfer of firearms or ammunition."
In a final flourish, the platform states: "Whenever any form of government becomes destructive of individual liberty, it is the right of the people to alter or to abolish it . . . ." The present government, in the Libertarians’ view, meets that description.
Divisiveness has become the aim of one of our major parties. One could go on at length on this topic, but let these comments from The Party is Over suffice. "The Republican Party is no longer a party of governance, because it has no positive agenda. . . It has become the ‘anti’ party par excellence." The author, noting that he was "not alone in ascribing nihilistic and destructive motives to the former party of Lincoln," offered a 2011 quote by Bruce Bartlett, who served in the Reagan and Bush I administrations. Referring to failure of the government to make progress in combating the economic slump, Bartlett said the problem is that "we now have a crazy party in charge of one of the houses of our Congress, and they won’t allow anything to happen, because it’s in their vested interest to make things worse."[63]
Then we have the Tea Party, in effect the right wing of a right-wing party, which pretends to be dedicated to defending the Constitution. However, one study found that to be ironic. Despite their fondness for the Founding Fathers, Tea Party members espoused positions similar to those of the anti-federalists, the Founders’ opponents. Their toying with disunion doesn’t recall only the founding era: "The Tea Partiers we met did not show any awareness that they are echoing arguments made by the Nullifiers and Secessionists before and during the U.S. Civil War, or that their stress on ‘states' rights’ is eerily reminiscent of dead-ender white opposition to Civil Rights laws in the 196os."[64]
Economic inequality is at indefensible levels, and yet we have rich people who hide money overseas, agitate for the repeal of the estate tax — and even the income tax — and buy elections to accomplish those antisocial aims. Dark Money, a recent study of political spending, especially by the Koch brothers, described their program (and that of other members of the economic elite), starting with funding free-market think tanks, and moving on to political spending through front groups. "While amassing one of the most lucrative fortunes in the world, the Kochs had also created an ideological assembly line justifying it [and] a powerful political machine to protect it."[65]  A former Koch employee summarized the theory and reality: "They call themselves libertarians. For lack of a better word, what it means is that if you're big enough to get away with it, you can get away with it. No government."[66]
Finally, consider the influence of modern media. Right-wing radio and television, and much of the internet, not only have encouraged division, but have created an alternative, hostile reality. Donald Trump didn’t create division; the Trump phenomenon is the product, but also the abetter of this dangerous trend.
 

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47. http://www.nsm88.org/25points/25pointsengl.html . See my note of 3/3/16.

48. http://www.huffingtonpost.com/lincoln-mitchell/but-what-if-trump-loses
_b_11153432.html

49. See my note of 5/30/10.

50. http://www.newyorker.com/news/daily-comment/donald-trump-and-the-amazing-alex-jones

51. https://www.splcenter.org/fighting-hate/extremist-files/individual/alex-jones

52. http://www.theatlantic.com/national/archive/2013/01/why-the-citizen-militia-theory-is-the-worst-pro-gun-argument-ever/272734/

53. http://talkingpointsmemo.com/dc/ted-cruz-second-amendment-government-tyranny

54. https://www.splcenter.org/fighting-hate/extremist-files/ideology/anti-government

56. https://leb.fbi.gov/2011/September/sovereign-citizens-a-growing-domestic-threat-to-law-enforcement


57. http://www.republicoftheunitedstates.org/ . See my note of 8/13/13.

60. http://www.rightwingwatch.org/content/anti-government-patriot-movement-group-plans-political-takeover-arizona-county

61
. See my notes of 10/29, 11/6, and 11/7/2013

62. http://dixienet.org/rights/2013/core_beliefs_statement.php

63. Mike Lofgren, The Party Is Over, pp. 40-41. 
 The Bartlett quote also is at http://talkingpointsmemo.com/dc/economic-experts-gather-in-dc-to-explain-why-politics-has-doomed-us

64. Theda Skocpol and Vanessa Williamson, The Tea Party and the Remaking of Republican Conservatism, p. 50.

65. Jane Mayer, Dark Money, pp. 312-13.

66. Id. at p. 377

Tuesday, August 16, 2016

August 15, 2016
A few years ago, I bought a coffee mug in Ireland — where everyone is a philosopher — which reads: "Trust me. At my age I’m an expert on everything." I doubt that I can claim that, but age does carry with it longer memories, including those of better times, which leads one to imagine that he can advise the world as to its current failings. Hence these ramblings.
A retrospective view can be dangerous if it consists mainly in demanding conditions which would be better only in a self-centered sense, achieved by disadvantaging someone else. When the view of the past is false or imaginary, the results only can be worse. The Trump phenomenon illustrates aspects of this.
However, not all memories are false; consider real wages and living standards, present and past, for ordinary people. Average hourly wages, in inflation-adjusted dollars barely have moved since the mid-60s; the value of the federal minimum wage in present dollars has declined since then. Lagging wages and increasing inequality are reflected in charts prepared by the Economic Policy Institute,[46] such as the following: Wages have not kept pace with productivity; from 1973 to 2013, productivity rose 74.4%, hourly wages only 9.2% (EPI Figure 2). The minimum wage would be much higher if it had kept pace with productivity (Figure 8). Incomes for the top 10% rose 138%, but for the bottom 90% only 15% from 1979 to 2013 (Figure 3). The ratio of CEO compensation to that of average workers was 20 to 1 in the late 60s, 30 to 1 in the late 70s, and in 2013 296 to 1 (Figure 7).  
In recent years, Democrats have not done enough to persuade people of ordinary means that the Party is on their side, but are saddled, in part justly, with an reputation of elitism. The dominant Democratic/liberal position, or at least image, has been a peculiar mixture: socially a rerun of the 6os, economically of the 80s (more accurately, of the Clinton 90s, the Democratic version of the 80s). Fortunately for the Party the Sanders campaign has revived an earlier economic vision, and much of that is reflected in the national platform. It remains to be seen whether Hillary Clinton, as President, will drift back to the former position, but her economic plan was described as "disastrous" by the National Review and "insanity" by Larry Kudlow, a good sign.

____________________

46.
http://www.epi.org/publication/charting-wage-stagnation/

Monday, August 1, 2016

August 1, 2016

"It is not often that careful students of American politics talk seriously about the possible demise of a major party." However, some felt "that the suicidal trend to the right has passed beyond the point where it can be reversed." Such predictions were prompted by the capture of the GOP by an uncompromising right wing. What happened at the Republican convention "convinced many Americans that those extremists everyone had been hearing about were really in control . . . ."
No, that doesn’t describe the 2016 campaign, although it certainly could. Those and the following comments were published in 1966 in From Disaster to Distinction, a small book published by the Ripon Society, a Republican organization, criticizing the condition of the Party leading up to and through the election of 1964, when Senator Barry Goldwater was the GOP candidate. Then, as now, the Republican campaign was founded on reactionary fantasy: "If Goldwater's words were heresy to those who had painfully come to terms with the unpleasantness of a changing world, they were prophecy to those who dared to think that such a reconciliation might yet be avoided, that their illusions might still be spared."
Goldwater led the Republicans to a crushing defeat. Like Trump, his strategy aimed at "a consensus of discontent." Whether Trump will lead the Party to a similar loss and crisis of conscience is, at this point, very much in doubt. Even if that were to happen, its not at all clear that the remedy adopted would be that which the authors suggested after the Goldwater debacle: "The GOP cannot regenerate and rebuild itself without making an unapologetic commitment to the center of American politics. But the Republican party can never win the center of American politics unless it assigns the major responsibilities for leadership to dynamic Republican moderates." The book described the Ripon Society as "a group of young, progressive Republicans." How often recently have the last two words of that description appeared together?

Wednesday, July 27, 2016

July 27, 2016
Entirely by happenstance, two days before looking up the 2016 Republican national platform I had read an essay, "The Illusion of American Omnipotence," written in 1952. The Author, [45] a Brit with a generally high opinion of the United States, encapsulated an attitude which doesn’t seem to have changed much. He referred to "the existence, in the American mind, of what I call the illusion of omnipotence," which leads to the belief "that the world must go the American way if the Americans want it strongly enough and give firm orders to their agents to see that it is done."
Of course, if that doesn’t happen it must be someone’s fault. This is the domestic-political form of the illusion, "that any situation which distresses or endangers the United States can only exist because some Americans have been fools of knaves," probably one’s political foes. Such a reaction is "the American equivalent of that disastrous French cry, ‘nous sommes trahis’ "[we are betrayed].
Here’s what the Republican platform has to say about that: "We believe that American exceptionalism — the notion that our ideas and principles as a nation give us a unique place of moral leadership in the world — requires the United States to retake its natural position as leader of the free world. . . . " Again, under the heading "America: The Indispensable Nation," we are told that under Republican presidents, there was a tradition of "world leadership" based on "enormous power," which "requires consultation, not permission to act." With that policy we could "lead the world into a new century of greater peace and prosperity — another American Century."
However, "[f]or the past 8 years America has been led in the wrong direction. . . . Our standing in world affairs has declined significantly — our enemies no longer fear us . . .." Why is that? "After nearly eight years of a Democratic Commander-in-Chief who has frequently placed strategic and ideological limitations and shackles on our military, our enemies have been emboldened and our national security is at great risk. . . . In all of our country’s history, there is no parallel to what President Obama and his former Secretary of State have done to weaken our nation." Trahison.
Political platforms tend to be ignored, and the current GOP version seems designed to ensure that. It covers sixty-four pages; even if we ignore the artwork and the lists of committee members, there are fifty-six pages of text, including the preamble. Only the masochistic (yes, that includes me) would read all of it. It is a combination of ideology, fantasy, evasion, misstatement and blame-shifting. 
Much of its philosophy is expressed in generalities; its most consistent message is the need to weaken the oppressive federal government. Its positions include opposition to regulation of business, opposition to a national minimum wage, and reduction of the national debt (although it complains of cuts to defense spending). It opposes limits on "political speech," and advocates "free-market approaches to free speech unregulated by government," central to which is "raising or repealing contribution limits." Money, after all, is speech.
The tax code must be rewritten completely; the new code must be "pro-growth." Republicans "oppose tax policies that deliberately divide Americans or promote class warfare," i.e., we mustn’t tax the rich. "We also support making the federal tax code so simple and easy to understand that the IRS becomes obsolete and can be abolished." Hovering in the background, apparently, is a proposal to make a sales tax the prime source of revenue, for we are told this: "To guard against hypertaxation of the American people in any restructuring of the federal tax system, any value added tax or national sales tax must be tied to the simultaneous repeal of the Sixteenth Amendment, which established the federal income tax."
The platform supports "constitutional [gun-]carry statutes," and opposes "laws that would restrict magazine capacity or ban the sale of the most popular and common modern rifle;" in other words, we all should have semi-automatic (assault) weapons. It opposes federal licensing or registration.
In one departure from reining in the federal government, the platform not only "support[s] the right of states to enact Right-to-Work laws," but "call[s] for a national law to protect the economic liberty of the modern workforce," thereby coining another euphemism for union-busting.
The authors wanted to advocate returning to the gold standard, but they couldn’t quite bring themselves to do so. Instead, they noted that President Reagan had created a commission to "consider the feasibility of a metallic basis for U.S. currency," and that the 2012 platform proposed a commission "to investigate possible ways to set a fixed value for the dollar." Having crept that far, they boldly proposed a commission to explore "ways to secure the integrity of our currency." Apparently they are afraid that saying "gold standard" out loud would tip off the inattentive to the nuttiness of the proposal.
There is much more, a small amount of it sensible, a few parts fairly debatable, but on the whole it illustrates why the Republican Party should not be in charge of government.

________________________

45.
Denis William Brogan, later Sir Denis. The essay is in Treasury of Great Writers, p. 602.

Tuesday, July 19, 2016

July 19, 2016
Presidential polls that I looked at yesterday, taken in July, range from a dead heat to a lead for Hillary Clinton over Donald Trump of seven points, when the choice is between only those two. When the of the Libertarian and Green Parties are added, the margins change, but not consistently; in one, Trump gains, in one there is no change (the dead heat), and in three Clinton gains. Another muddling factor may be the "silent" Trump vote, potential votes by people who are shy about admitting their support, including those who don’t like him but like Mrs. Clinton less.
An example of that attitude was set forth on the Washington Post page on June 28. The writer, identified as a retired financial adviser, had this to say: "I’m part of the new silent majority: those who don’t like Donald Trump but might vote for him anyway." He’s hardly part of a majority as he defines it, but he and others might make a majority for Trump. Why, if he doesn’t like Trump would he vote for him? "For many of us, Trump has only one redeeming quality: He isn’t Hillary Clinton. He doesn’t want to turn the United States into a politically correct, free-milk-and-cookies, European-style social democracy where every kid (and adult, too) gets a trophy just for showing up." There are legitimate reasons to have reservations about Mrs. Clinton, but a fantasy of corrupting socialism and stifling political correctness isn’t among them.
The writer claims to be under no illusions about Trump, "a classic bully and a world-class demagogue in his personal, professional and political lives." Trump "will continue to demonize his perceived enemies and take the low road at every opportunity." So why then, he asks, appropriately, "would rational, affluent, informed citizens consider voting for The Donald?"
Trump, he tells us, is "the only one who appears to want to preserve the American way of life as we know it." What is the threat? (We might ask as well: what does he think is the American way of life?) Here is his attempt at an answer: "For the new silent majority, the alternative to Trump is bleak: a wealthy, entitled progressive with a national security scandal in her hip pocket." Mrs. Clinton’s sense of entitlement is annoying but, although her performance as Secretary of State leaves much to be desired, a national security scandal is a stretch. "In our view, the thought of four to eight more years of a progressive agenda polluting the American Dream is even more dangerous to the survival of this country than Trump is." It would be interesting to know where he found that agenda, and what it contains, but it hardly matters. He’s with Glenn Beck in thinking that "progressive" is a pejorative, so much so that even Trump is acceptable.
"So come Nov. 8, you’ll find many of us sheepishly sneaking into voting booths across the United States. Even after warily pulling the curtain closed behind us, we’ll still be looking over our shoulders to make sure the deed is shielded from view. Then, fighting a gag reflex, we’ll pull the lever." Perhaps that describes the supposed silent mass, but the coyness is a bit out of place for the author after declaring his intentions in a major publication.
He and his rational, informed fellows ought to consult a New Yorker article by Jane Mayer,[44] which describes the reactions to Trump’s candidacy of the author of Trump’s supposed memoir, The Art of the Deal. That author, Tony Schwartz, who spent a year following Trump around in an attempt to learn who he was, considers The Donald to be "pathologically impulsive and self-centered." He says that if he were to write a book today about Trump, he would title it "The Sociopath."
Interviewing Trump for the book posed a problem: "He has no attention span" or, put another way, "it’s impossible to keep him focused on any topic, other than his own self-aggrandizement, for more than a few minutes." Confirming the impression one gets watching Trump, Schwartz "believes that Trump’s short attention span has left him with ‘a stunning level of superficial knowledge and plain ignorance’." As President, his impulsiveness and inability to concentrate would be dangerous.
Our retired financial advisor describes his reluctantly-for-Trump group as affluent and fiscally conservative. ("We’re not uneducated, uninformed, unemployed or low-income zealots.") Their possible votes for Trump presumably come at least in part from the notion that Trump shares their viewpoint because he is a self-made, successful businessman. Reading Jane Mayer’s article might disabuse them of that notion. In any case, the American Dream, even that of the smugly superior, would be at risk with Trump in the White House.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

Tuesday, July 12, 2016


July 11, 2016
Several recent decisions have attempted to make sense of the Supreme Court’s reading of the Second Amendment, which states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The list below is far from exhaustive, but it illustrates the problem.
Based on District of Columbia v. Heller, the Amendment might protect "the individual right to possess and carry weapons in case of confrontation" (although "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation"), or "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," or — the actual holding — the right to "handguns held and used for self-defense in the home."
McDonald v. Chicago, which applied the Second Amendment to the states, initially recited that, under Heller, the Amendment preserved "the right to keep and bear arms for the purpose of self-defense," but later decided that Heller had found "a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." That was only the beginning of the attempts to interpret the Heller majority opinion, which said many things, not all of them consistent, clear or sensible. Heller and its progeny demonstrate that verbosity is an enemy of precision, to say nothing of good results.
A. In Friedman v. Highland Park (12/7/2015), the plaintiff challenged a city ordinance which bans manufacturing, selling or possessing semiautomatic firearms. The lower courts upheld the ordinance and the Supreme Court declined review. A dissent by Justices Thomas and Scalia complained that "the Seventh Circuit limited Heller to its facts, and read Heller to forbid only total bans on handguns used for self-defense in the home." That sounds as if the Court of Appeals applied that decision exactly as it should have, ignoring the looser formulas.
However, the Court of Appeals’ opinion doesn’t match its holding. Its test for the constitutionality of bans on firearms is "whether a regulation bans weapons that were common at the time of ratification or those that have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia,’ . . . and whether law-abiding citizens retain adequate means of self-defense."
The Court of Appeals held that the second part of its test was satisfied: "If criminals can find substitutes for banned assault weapons, then so can law-abiding homeowners." That rather strange finding, combined with the language of the second part of the test (adequate means of self-defense), leaves open allowing weapons other than handguns, and allowing them "for self defense," thus perhaps also extending the right beyond the home. The Seventh Circuit can be forgiven for that bit of confusion, as Heller, weaving its way toward its holding, spoke, as noted above, of "the individual right to possess and carry weapons in case of confrontation."
The first part of the Court of Appeals’ test, not illogically, nods toward the language of the Amendment. However, Heller rejected any limitation related to military use. As the Supreme Court dissent in Friedman put it: "The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess." That makes little sense, but it seems to be where we are.
The Supreme Court dissent claimed that Heller "excluded from protection only ‘those weapons not typically possessed by law-abiding citizens for lawful purposes.’" That inverts the test. Heller said this: "We therefore read [United States v.] Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes. . . ." That does not state that only such weapons may be banned.
B. In Kolbe v. Hogan (2/4/16), the Court of Appeals for the Fourth Circuit was concerned primarily with the standard of scrutiny to be employed by a district court in evaluating a challenge to a gun-control law. However, along the way numerous comments were made about the scope of the Second Amendment right. The Court summarized the issue as follows: "In April 2013, Maryland passed the Firearm Safety Act ("FSA"), which, among other things, bans law-abiding citizens . . . from possessing the vast majority of semi-automatic rifles commonly kept by several million American citizens for defending their families and homes and other lawful purposes." Plaintiffs challenged the FSA, contending that the ‘assault weapons’ ban was invalid under the Second Amendment.
The majority opinion adopted one of the Heller formulas, finding that the "core protection of the Second Amendment [is] the right of law-abiding responsible citizens to use arms in defense of hearth and home’." That is broader than the Heller holding, in that it substitutes "arms" for "handguns," but narrower in that it limits the right to "law-abiding responsible citizens." The broadening was useful to the majority, as they were in the process of bringing semiautomatic rifles under the Amendment.
The court recited, following Heller, that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes . . . ." "Accordingly," it concluded, "the Second Amendment extends only to those weapons "typically possessed by law-abiding citizens for lawful purposes." As in the dissent in Friedman, this seemed to be converted into a rule that all weapons so possesed are protected, for it continued, "Heller . . . looked to present-day use to assess whether handguns are in common use (and consequently protected)." The Court of Appeals had "little difficulty in concluding that the banned semi-automatic rifles are in common use by law-abiding citizens," and "determined that the Second Amendment covers the prohibited semi-automatic rifles . . . ."
The state, in opposition, had argued that "even if ownership of the prohibited weapons . . . is common, nothing in the record reflects that these weapons are commonly used for self-defense," but to no avail. According to the court, the "proper standard under Heller is whether the prohibited weapons . . . are ‘typically possessed by law-abiding citizens for lawful purposes’ as a matter of history and tradition, . . ." Under Heller, "Second Amendment rights do not depend on how often the semi-automatic rifles . . . are actually used to repel an intruder." The court added, "We find nothing in the record demonstrating that law-abiding citizens have been historically prohibited from possessing semi-automatic rifles." So, unless they have been prohibited before the subject law was passed, they have, in effect, been grandfathered into the Second Amendment.
Heller had referred to and approved "the historical tradition of prohibiting the carrying of dangerous and unusual weapons." Restating that test somewhat, the state argued that "the banned semi-automatic rifles are ‘unusually dangerous’ and therefore do not fall within the ambit of the Second Amendment." Nice try. The court responded: "In distinguishing between protected and unprotected weapons, Heller focused on whether the weapons were typically or commonly possessed, not whether they reached or exceeded some undefined level of dangerousness." So, again, once something becomes widespread enough to be "usual," it can’t be banned.
The dissent argued that the long guns in question are not as commonly possessed as the majority claimed, and especially that they are nor commonly used in defense of the home, but that factual argument doesn’t reach the fallacy of the test. However, the dissent also addressed that fallacy by quoting an apt observation in Friedman v. Highland Park: "relying on how common a weapon is at the time of litigation would be circular . . . . Machine guns aren’t commonly owned for lawful purposes today because they are illegal; semi-automatic weapons with large-capacity magazines are owned more commonly because, until recently (in some jurisdictions), they have been legal. Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity."
C. In Caetano v. Massachusetts, (3/21/2016), the Supreme Court overturned a Massachusetts decision which had upheld a state law banning possession of a stun gun. The state court’s rationale was that stun guns were unknown at the time the Second Amendment was adopted, and that they were not suitable as military weapons. The Supreme Court, in a per curiam opinion, reversed. As to the latter point, it pointed to Heller’s rejection of the proposition "that only those weapons useful in warfare are protected." As to the former, it referred to "Heller's clear statement that the Second Amendment "extends . . . to . . . arms . . . that were not in existence at the time of the founding." Heller in fact wasn’t altogether clear on that point, stating twice that the weapons protected were those "in common use at the time," the time presumably being the eighteenth century. However, the official position now seems to be as stated in Caetano.
D. In Peruta v. County of San Diego (6/9/2016), plaintiffs challenged denial of permits to carry concealed weapons, claiming infringement of Second Amendment rights. District Courts dismissed their claims, but a panel of the Court of Appeals for the Ninth Circuit reversed. On review en banc, the full Ninth Circuit court upheld the dismissals.
The majority en banc opinion noted Heller’s observation "that the Second Amendment has not been generally understood to protect the right to carry concealed firearms." It concurred emphatically after a long review of English and American legal history, concluding: "The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment." It added: "We do not reach the question whether the Second Amendment protects some ability to carry firearms in public, such as open carry. That question was left open by the Supreme Court in Heller, and we have no need to answer it here."
The en banc dissent relied on broad statements in the leading cases. "Heller and McDonald . . . instruct that the right to bear arms exists outside the home." They do this by stating that "the Second Amendment secures ‘an individual right protecting against both public and private violence,’ indicating that the right extends in some form to locations where a person might become exposed to public or private violence."
In Heller, according to the dissent, "the Supreme Court held that the Second Amendment codified an existing individual right to keep and bear arms for self-defense." Heller did say that, more or less. The dissent continued: McDonald "held that the individual right to bear arms for self-defense under the Second Amendment was fundamental and applied to the states. Although these opinions specifically address firearms in the home, any fair reading of Heller and McDonald compels the conclusion that the right to keep and bear arms extends beyond one’s front door." That conclusion was "compelled" by the assortment of loose comments in those opinions. Heller, it said, "reinforced this view by noting that the need for the right is ‘most acute’ in the home, . . . thus implying that the right exists outside the home." It added: "See also McDonald . . . ("[T]he Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home."). They do say that.
The dissent noted that "while the [Supreme] Court enumerated four presumptively lawful ‘longstanding prohibitions,’ it did not list prohibitions of concealed weapons as one of them." It also said that its list was not exhaustive.
A major issue for the dissent was that California law prohibited open-carry. Combined with that, restrictions on concealed carry could not stand. Heller, it said, "further noted that a prohibition on carrying concealed handguns in conjunction with a prohibition of open carry of handguns would destroy the right to bear and carry arms." Actually in the passage cited, the Supreme Court referred to several state court cases, one of which might be so interpreted.
E. Voisine v. United States (6/20/16), involved a federal statute prohibiting any person convicted of a "misdemeanor crime of domestic violence" from possessing a firearm. The issue was whether a conviction for "recklessly assaulting a domestic relation," as opposed to doing so intentionally, fell under the statute. The Supreme Court held that it did. Justices Thomas and Sotomayor dissented on the issue of intention.
Thomas added a dissent on the ground that the decision intruded on the Second Amendment. He offered this summary of the law: "In District of Columbia v. Heller . . . , the Court held that the Amendment protects the right of all law-abiding citizens to keep and bear arms that are in common use for traditionally lawful purposes, including self-defense." That is roughly one of the dicta in Heller, but not its holding.

F. Hollis v. Lynch (6/30/16), decided by the Court of Appeals for the Fifth Circuit, concerned the constitutionality of a federal statute that makes possession of a machine gun unlawful. The plaintiff submitted an application to the Bureau of Alcohol, Tobacco, Firearms and Explosives to manufacture a "machine gun," actually an M-16 which, as it is capable of automatic fire, is classified under the statute as a machine gun. The ATF denied his application pursuant to the statute. Hollis sued, challenging the constitutionality of the statute. The District Court dismissed and the Court of Appeals affirmed.[43]
It reviewed the Supreme Court’s opinions, in greater detail than was necessary for its holding, but that review is interesting because it reprises the confusion. Here is the Fifth Circuit’s understanding of what the Court said in Heller:
The Amendment’s "main purpose was to ‘guarantee the individual right to possess and carry weapons in case of confrontation,’ which Heller later clarified to mean ‘an individual right to bear arms for defensive purposes’," citing two of the Supreme Court’s rhetorical flights. "Heller went on to hold that because the Second Amendment is about the defense of ‘hearth and home,’ and because "the American people have considered the handgun to be the quintessential self-defense weapon[,] . . . a complete prohibition of their use’ is invalid." That is, roughly, the holding; a prohibition on their use for self-defense in the home is invalid.
However, the Court of Appeals thought that "Heller’s reach goes beyond handguns . . . because ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding’." Heller indeed contains that language; if we were to substitute it for the holding, it would remove many restrictions, including the statute in this case: a machine gun may be a bearable weapon, and the kind the plaintiff proposed to make would have been. Certainly hearth and home would be left far behind.
"Heller . . . distinguished between two classes of weapons: (1) those that are useful in the militia or military, and (2) those that are ‘possessed at home’ and are in ‘common use at the time for lawful purposes like self-defense’. The individual right protected by the Second Amendment applies only to the second category of weapons . . . ." That isn’t quite accurate. Heller referred to category (2) as being the weapons a militiaman would carry when called for duty, i.e., part of category (1). The following sentence, though, is correct: under Heller, "The Second Amendment does not create a right to possess a weapon solely because the weapon may be used in or is useful for militia or military service."
"In summary," the Court of Appeals said, "the Second Amendment protects an individual right to keep and bear arms in defense of hearth and home." Under Heller, handguns, not "arms," are protected. Two sentences later, the Court of Appeals added: "The Second Amendment protects the class of weapons that enable ‘citizens to use them for the core lawful purpose of self-defense’." Now we’ve possibly limited the range of protected "arms" to an undefined "class of weapons," but have removed the limitation of protecting the home.
The confusion continues.

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43.
There actually were two related statutes involved, but one referred to the other, so the analysis would be the same if both were specified.

Wednesday, June 29, 2016

June 29, 2016
On June 24, Andy Borowitz "reported," on NewYorker.com, that "across the United Kingdom on Friday, Britons mourned their long-cherished right to claim that Americans were significantly dumber than they are." That is to say, they caught up to us by voting to leave the EU. David Cameron must be included among the not-so-bright, having promised the referendum to silence EU critics, thinking that his fellow Brits would be smarter than he turned out to be. Also include the English who, while promoting or celebrating the vote to leave, proudly waved the Union Jack; their vote increases the chance that the union will not survive.
Borowitz detected a ray of hope among the Brits. "This is a dark day," his imaginary correspondent said, "but I hold out hope that, come November, Americans could become dumber than us once more."
Speaking of Trump, what is he up to, if anything? Instead of campaigning, he went to Scotland to look at his resorts, finding a little time to speak as inanely as usual. He hasn’t raised much money and shows little interest in acting like a candidate. The theory that he never was serious about winning the nomination sounds ever more plausible, and even the speculation that he is trying to tank his candidacy begins to sound less far-fetched.
Trump gives the impression of not being all there, or at least not very bright, or never having grown up. His behavior isn’t just strange for a candidate; it’s strange for anyone. His inability to answer questions goes beyond lack of preparation or interest in details: he simply doesn’t know much and seems at times not to comprehend. However one recent poll shows him only two points behind, within the margin of error. We could regain the title.