Posts © 2011-2012 by Gerald G. Day







Tuesday, June 26, 2012

June 26, 2012

Yesterday the Supreme Court disposed of the challenge to Citizens United v. Federal Election Commission raised by Montana, holding that a statute of that state banning corporate spending on elections is, like the federal statute in Citizens United , unconstitutional. The Court, in its per curiam (you aren’t worth a signed statement) opinion, provided a bare description of the subject of the dispute: "A Montana state law provides that a ‘corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party’.” However, that was it; there was no analysis, but merely a dismissive conclusion: "The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case."
The reference to Article VI was an unnecessary and irrelevant flourish, or an ironic one, depending on how cynical is one’s point of view. That clause states that "This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." I doubt that Montana argued otherwise; the issue was, or ought to have been, whether the Constitution, specifically the First Amendment, renders the Montana statute void. The Court apparently believes that its muddled opinion in Citizens United sufficiently explained that result. It didn’t, so what the Court really said to Montana, and to the rest of us, is that the unpersuasive opinion of five of its members is the Law of the Land. We have spoken: don’t expect any further explanation.
There were four dissents, as there were in Citizens United . Too many important issues have been decided by a margin of five to four, which will continue to be the pattern given the ideological split on the Court: four liberals and four conservatives. As that split is so predictable, the swing vote, currently that of Justice Kennedy, is decisive. An article by Jonathan Turley in The Washington Post on June 22 pointed out the effect of that situation: "Before Justice Anthony Kennedy was the primary swing vote, Justice Sandra Day O’Connor was often the deciding vote and for years shaped the law according to her shifting views on subjects from the death penalty to privacy." In other words, we have to no small extent, a Supreme Court of one. That may be the result in the most important pending matter, the health care act.

Thursday, June 14, 2012

June 14, 2012

Politics has become so stupid, dishonest, irresponsible and simply ugly that reading the news is depressing, and there is a strong temptation to abandon the struggle, to quit mentally fighting the inevitable takeover of our society by the plutocrats, troglodytes and their idiot enablers, to withdraw into another realm, such as art or literature, but even they are increasingly dominated by aesthetic and intellectual barbarians. Detached, ironic observation seems the only course.
However, some developments are too awful to treat as bleakly amusing phenomena. We returned from a trip on May 24 to find that our mellow corner of the country has gone mad. Actually, the madness — shootings, many fatal — began much earlier, but it intensified in May. There were four shooting deaths in Seattle in January and five in February. Then the pace slackened, with one each in March and April. In the last of those events, on April 22, a young woman, walking in Pioneer Square, was killed by shots fired from a passing car; apparently she was not an intended target. That brought the problem into public consciousness.
Then in May, all Hell broke loose. After another fatal shooting on May 16, two incidents repeated the April pattern; the victims were not the intended targets. On May 24, a man driving through the Central Area was killed by a bullet intended for someone across the street from the shooter. On the 26th, near the Seattle Center, a man was wounded by another misdirected bullet.
Early Sunday morning, the 27th, four drive-by shootings sprayed more than 60 bullets into four houses in various parts of South Seattle; no one was hit, but one teenage girl nearly was. Inside a North Seattle home, during an apparent robbery, an intruder shot and killed a resident. In Shoreline, on the 25th, two students were robbed at gun point. On the 30th, a gunman killed four and wounded one outside a café on Roosevelt Way and later killed a woman downtown.
A car-to-car shooting wounded two in Rainier Valley on June 8.
In the initial reports, nothing was made of the obvious link: too many guns floating around. An article in The Seattle Times reported that "Seattle police officials . . . told the City Council that the outbreak of violence through Memorial Day weekend and since the beginning of the year has more to do with guns than with gangs." However, nearly all of the ensuing discussion had to do with gangs, and there was no mention of gun control. On Wednesday the 30th, obscure hints of the issue crept into reports, and later a frank discussion, but the tone was one of resignation.
Under state law, it is unlawful to aim any firearm, whether loaded or not, at any human being, or willfully discharge any weapon in a public place, or in any place where any person might be endangered.42 However, state statutes impose only limited restrictions on possession. Weapons are prohibited in the "restricted access areas" of jails or mental health facilities, in a courtroom or adjacent space, such as a jury room, and in "that portion of an establishment classified by the state liquor control board as off-limits to persons under twenty-one years of age." Possession by certain categories of persons is unlawful, including those convicted of a "serious offense," as defined and, with exceptions, those under eighteen. It is unlawful to carry a concealed pistol, or have a loaded pistol in a vehicle, unless one has a license.43 Carrying one in the open is not addressed; However, that is covered in a limited way in another statute, discussed below at footnote 52.
Obtaining a license to carry a concealed weapon is not an arduous process nor is the chance of being refused high:
The chief of police of a municipality or the sheriff of a county shall within thirty days after the filing of an application of any person, issue a license to such person to carry a pistol concealed on his or her person within this state for five years from date of issue, for the purposes of protection or while engaged in business, sport, or while traveling. . . . The issuing authority shall not refuse to accept completed applications for concealed pistol licenses during regular business hours.44 (Emphasis added)
Only after that sweeping statement are exceptions listed or referred to, and those are prefaced by this reminder: "The applicant's constitutional right to bear arms shall not be denied, unless: . . ." While that is a legitimate reference, it gives the statute a drafted-by-the-NRA tone. Those under twenty-one, with numerous exceptions, are barred, as are felons and the mentally ill. Virtually anyone else has a right to a license.
Gun dealers may sell a pistol to anyone with a concealed pistol license; in the absence of a license, the application must be sent to the local law enforcement agency and, if it fails to respond within five business days, the pistol may be delivered.45
State law severely restricts what local governments may do in the area of gun control. The state "fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof. . . ." Local governments "may enact only those laws and ordinances relating to firearms that are specifically authorized by state law . . . ."46 However, the State Supreme Court has held that no-gun policies by employers are not barred by the preemption statute. 47 
Some local regulation is authorized by statute, including a restriction on possession in a municipal stadium or convention center — although that doesn’t apply to people with state licenses to carry — and allows municipalities to restrict "the discharge of firearms . . . where there is a reasonable likelihood that humans, domestic animals, or property will be jeopardized. 48 That provision and the corresponding state statute may be useful occasionally; there was one successful prosecution of a man shooting a gun into the air from his back porch.49 However, the real need is for more inclusive restrictions on possession and carrying.

What is the likelihood of such a restriction being enacted? The common wisdom is that the chances are nil, for several reasons:
1. People genuinely, on their own, believe that guns should be readily available;
2. They have been conned or coerced into that position by the right, especially the NRA;

3. For whatever reason, gun control is politically impossible, i.e., no legislature will enact it;

4. Gun control is not legally possible because of constitutional issues.
Because the pro-gun campaign has been so prominent for so long, it is difficult to separate the first two, but it seems clear that there are many people who would argue, with or without NRA influence, that gun possession either is necessary for protection or is a symbol of freedom. Neither argument stands scrutiny, but the pro-gun sentiment, from whatever source, is powerful enough to make issue 3 a real problem, and many legislators also probably believe that proposition 4 is true. Is that so? There are two constitutional provisions to examine.
First, there is the Second Amendment to the federal constitution:
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 U.S. Supreme Court has spoken twice on the gun issue in the past four years, both decisions striking down gun-control laws. In District of Columbia v. Heller,50 the Court brushed aside the reference to militias in the Second Amendment, thus allowing itself to find a right to carry a gun for other purposes. However, because of Justice Scalia’s need for an original-intent rationale, his majority opinion seized on a dubious application of an English statute of 1689. Arguing that it was part of the inherited rights of Americans, he pasted it onto the Second Amendment. That statute, as he then interpreted it, protected the possession of arms for self-protection. Because of the facts of the case, the newly-discovered right extends only to possession of a gun for defense in the home. There was a nod toward a right to have a gun for hunting; that wasn’t at issue, but clearly the Court would find that right as well. The second decision, McDonald v. Chicago,51 extended the ruling of Heller to the states.
The primary problem for Seattle, for the state legislature, and for the rest of the country, is to control the possession of guns in public places. McDonald does not prohibit such restrictions, so it cannot serve as an excuse to do nothing. Predicting how the present Court will rule, even in areas where it has acted recently, is difficult, as neither precedent nor logic constrain its decisions, but those decisions often are driven by right-wing ideology, so it is entirely capable of finding further gun rights. After all, the right to have a gun in the home for self-defense is not mentioned in the Second Amendment, so who knows what else lurks there? However, the Heller opinion contemplated the continued existence of some limitations on gun rights: "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, . . ." This leaves an opening, albeit one not clearly lighted and possibly narrow.
The other hurdle is Article I, Section 24 of the State Constitution, which contains a protection of gun possession:

The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.
(This is virtually the reverse of the Second Amendment, protecting individual possession for self-defense, but prohibiting private militias. It is, however, more or less what the Second Amendment now has become). The provision of state law permitting local regulation of the discharge of firearms adds that such ordinances "shall not abridge the right of the individual guaranteed by Article I, section 24 of the state Constitution to bear arms in defense of self or others," in effect further limiting cities’ powers.
Section 24, if taken literally, would allow anyone, however irresponsible, to carry a gun anywhere if he claimed a need for self-defense, but the state appellate courts have ruled that the constitutional right is subject to reasonable regulation. One decision is relevant.52 A man seen carrying an AK-47, with clip attached, in a residential neighborhood, was arrested and convicted of unlawful possession under a state statute which provides as follows:

It shall be unlawful for any person to carry, exhibit, display, or draw any firearm . . . in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.53
(The defendant also carried a .45 automatic under his jacket; he had a concealed weapon permit, so no offense there). Citing State Supreme Court decisions, the Court of Appeals set forth this principle:

Although [Article I, Section 24] is stated in absolute terms, the right to bear arms is subject to reasonable regulation by the State under its police power. . . . However, the regulation must be reasonably necessary to protect the public safety, health, morals, and general welfare and must be substantially related to the legitimate ends sought.
The defendant argued that the statute interfered with his right to carry a weapon for self-defense, a bold claim given his concealed .45; the Court was not impressed. It held that packing an automatic rifle would cause alarm as contemplated by the statute. It summarized the holding as follows:

. . . the statute minimally restricts the rights of the individual, it is narrowly drawn, and it promotes a substantial public interest. The public interest in security, and in having a sense of security, outweighs the individual's interest in carrying weapons under circumstances that warrant alarm in others. . . .
The State Supreme Court denied review.53
It would be foolish to think that stricter gun control would be easy to come by, and the problems are especially great at the local level. However, this is a vitally important issue and there is some room for tougher measures. It’s worth trying.


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42. RCW 9.41.230
43. RCW 9.41.050
44. RCW 9.41.070(1)
45. RCW 9.41.090
46. RCW 9.41.290
47. Cherry v. Metro Seattle, 116 Wn.2d 794 (1991)
48. RCW 9.41.300
49. See Seattle v. Ballsminder, 71 Wn. App. 159 (1993)
50. 554 U.S. 570 (2008)
51. 561 U.S. 3025 (2010)
52. State v. Spencer, 75 Wn. App. 118 (1994)
53. RCW 9.41.270(1)
54. 125 Wn. 2d 1015 (1995)