Posts © 2011-2012 by Gerald G. Day

Saturday, May 5, 2018

May 4, 2018

     By various measures the country is in poor shape. The federal government is mired in corruption and moral failure.  We might reasonably look to religious leaders for answers and guidance; think of the civil rights crisis, in which pastors such as Martin Luther King led in spirit and in action.  Unfortunately, now the most visible religious figures are part of the problem.

     Support for Trump by conservative Christians is a continuing puzzle.  Why would they stand behind a man who embodies, in numerous ways, the opposite of their beliefs and standards?  The question swirls around the announcement in April that "evangelical leaders are organizing a sit-down with President Trump in June."[37] "We're very concerned" about the Clifford/Daniels affair, "said a leader of a faith-based ministry."  That might be expected; Trump’s behavior, alleged and known, should be offensive to them.  Although they are, as stated, "concerned," that is not, apparently, because of  moral or religious principles, at least not directly.  Their reason for the meeting seems to be anxiety that Democrats might prevail in the midterm election. 

     "The source said the combination of the Stormy Daniels sex-scandal allegations and Trump's continued reputation for divisive rhetoric could suppress evangelical turnout in the November midterm elections."  Granted, they do worry about some specific issues: " ‘It is a concern of ours that 2018 could be very detrimental to some of the other issues that we hold dear,’ like preserving religious liberty and restricting abortion rights, the source noted." In other words, a Republican Congress and conservative judges are their goals. Trump’s reputation might interfere.

     Abortion is a subject worthy of discussion, and of compromise, although the evangelicals may be no more inclined to compromise than liberals. "Religious liberty" likely is a euphemism for freedom to discriminate or to impose views on others, as in the Hobby Lobby case (which also involved hyper-conservative abortion views).  The religious leaders are willing to empower a man who is so incompetent and erratic as to endanger the country, in order to pursue a narrow agenda.   The same could be said of other Trump supporters, but it seems especially odd among people who claim the moral high ground.

     Although the unidentified spokesman said that "Trump's tone and personal life remain a concern for many evangelicals," others, including Penny Nance of Concerned Women for America ("your voice for Biblical values") were less concerned.  As to the Daniels storm, "I just honestly don't hear hand-wringing over the issue. They're not surprised," she said, apparently referring to Trump’s Christian supporters; "they made that decision a long time ago. This president is not Rick Santorum or Mike Huckabee; he doesn't pretend to be a Bible-banging evangelical." Support of Trump by any voice for Biblical values, especially the leader of a women’s group, is puzzling.

      "Ralph Reed, chairman of the Faith and Freedom Coalition, also said it's ‘highly dubious’ that the allegations will substantially erode support for the president or suppress midterm turnout."  Opportunism becomes a religious tenet.

     A month earlier, Pastor Robert Jeffress, a member of Trump’s evangelical advisory board, said: “Evangelicals know they’re not compromising their beliefs in order to support this great president. And let’s be clear, evangelicals still believe in the commandment ‘thou shalt not have sex with a porn star.’ However, whether this president violated that commandment or not is totally irrelevant to our support of him."  That sounds like compromising their beliefs.  Evangelicals knew they “weren’t voting for an altar boy, he said;” they support Trump for his “policies and strong leadership.”[38]

     One meeting of evangelicals, but without Trump, took place last month.  "Evangelical" is a term more often applied than defined; usually it seems to equate to conservative Christian, or white conservative Christian, and carries an implication more of politics than of religion.  A report of the gathering this month used the word in a more traditional, literal sense. 

     The article, by Katelyn Beaty, formerly managing editor of Christianity Today, began with a description of the memorial service for Billy Graham, who was an evangelist, that is a spreader of the Christian message, with the intent of conversion.  However, "[m]any evangelical leaders, including some in attendance at Graham’s funeral, were fearful that this association with Trump now threatened the focus on personal salvation that Graham spent a lifetime preaching."[39]  Accordingly, a meeting was arranged at Wheaton College, a Christian school in Illinois.  The invitation stated that "support of ‘eighty-one per cent of self-identifying white evangelicals’ for Donald Trump is a call to self-reflection on the current condition of Evangelicalism.”  Indeed.

     The meeting seems to have gone nowhere.  Some participants left in protest of comments critical of Trump.  Although a formal statement was contemplated, none was issued.  The author clearly was disappointed in the result: "Without a statement, and with the bewildering skittishness about getting political, my time at Wheaton left me feeling deeply unsettled about the moral and political fortitude of my spiritual community in the era of Trump and beyond."

     Ms.Beaty wanted evangelicals to take a stand, to do good. "Much of evangelicalism still functions with a spiritual-secular divide, as if the physical concerns of this world can be neatly fixed with worship and prayer. But worship and prayer are not the only things that this Trumpian moment demands of us. Rather, the moment calls for risk."  This calls to mind the formulistic call for prayer after each mass shooting, a substitute for action. 

     She named some who had taken a stand, who had risked, including King; they "stood against corruption with courage and grace. They hadn’t been afraid to get political, to challenge unjust systems and policies. The Church was made stronger for it."  The society was improved as well.  However, there is little sign now of such an effort.

     The spiritual-secular divide, the flight from dealing with urgent real-world problems, is exacerbated by the rejection, by many conservative Christians, of scientific facts.  Some, such as evolution, are opposed to traditional belief, or are thought to be. Others are politically inconvenient.  Senator James Inhofe, Republican of Oklahoma, cited Genesis to prove that global warming is a hoax.

     In an excellent article in The Atlantic, Michael Gerson, a graduate of Wheaton, described one of the sources of modern fact-aversion.  In the early twentieth century, "the religiously orthodox published a series of books called The Fundamentals. Hence the term fundamentalism, conceived in a spirit of desperate reaction."  It represented a break with older evangelicalism.  "In reacting against higher criticism, it became simplistic and over literal in its reading of scripture. In reacting against evolution, it became anti-scientific in its general orientation. In reacting against the Social Gospel, it came to regard the whole concept of social justice as a dangerous liberal idea.”[40]

     Now, as noted above, evangelicals have taken another step: establishing a hierarchy of virtues which relegates personal merit to a lower rank, and threatens to reduce religion to another, rather hypocritical, special interest.  In describing the fall of Alabama Governor Bentley, in a sex scandal, an article offered this summary:  "[I]t had become clear that for conservative Christians, the cultural and political issues that define modern conservative politics mattered at least as much as moral piety.  . . .’The idea that moral hypocrisy hurts you among evangelical voters is not true, if you’re sound on all of the fundamentals,’ said Wayne Flynt, an ordained Baptist minister and one of Alabama’s pre-eminent historians. . . .‘At this time, what is fundamental is hating liberals, hating Obama, hating abortion and hating same-sex marriage’.”[41]

     Many of the comments by evangelical leaders defy belief.  Here are several from Gerson’s article: Following news of Trump’s tryst with Stormy Daniels and the payment of hush money, Franklin Graham vouched for Trump’s “concern for Christian values.”  Somewhat more evasively, Tony Perkins urged forgiveness or, in his phrase, Trump should be given a "mulligan" for his fooling around.  "Pastor David Jeremiah has compared Jared Kushner and Ivanka Trump to Joseph and Mary: ‘It’s just like God to use a young Jewish couple to help Christians.’ According to Jerry Falwell Jr., evangelicals have ‘found their dream president,’ which says something about the current quality of evangelical dreams."

     Some have been driven from the fold.  Peter Weiner, a conservative writer, declared in a recent column that he no longer could call himself an evangelical.  During the Alabama special election, in which Roy Moore was the Republican candidate, Weiner wrote: "the support being given by many Republicans and white evangelicals to President Trump and now to Mr. Moore have caused me to rethink my identification with both groups. . . . I consider Mr. Trump’s Republican Party to be a threat to conservatism, and I have concluded that the term evangelical — despite its rich history of proclaiming the ‘good news’ of Christ to a broken world — has been so distorted that it is now undermining the Christian witness." [42] 

     Others have expressed similar views to him.  One said "the term evangelical “is now a tribal rather than a creedal description.”   Gerson summed the problem up in similar terms: "The moral convictions of many evangelical leaders have become a function of their partisan identification. This is not mere gullibility; it is utter corruption. Blinded by political tribalism and hatred for their political opponents, these leaders can’t see how they are undermining the causes to which they once dedicated their lives. Little remains of a distinctly Christian public witness."


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Saturday, April 21, 2018

April 20, 2018

Paul Ryan’s retirement has prompted many comments.  One of the more unusual is a column in USA Today by Andrew Cline.[33]  Mr. Cline is "president of the Josiah Bartlett Center for Public Policy, a free-market think tank in New Hampshire."  The caption to his column is "America is done with adults like Paul Ryan. Donald Trump and celebrities are the future."

"Preceding [Ryan] to the exit was the numbers-crunching, economics-guided GOP he had supposedly molded in his image only a few years ago." It isn’t clear what that means.  Was there no such GOP, or was it not in Ryan’s image?  I’d suggest the former. " Trump will be blamed, naturally."  For Ryan’s  exit or that of the number-crunching?  "But Trump is a symptom, not a cause. Paul Ryan is a serious man in an unserious time. American culture is undergoing a transformation. It is jettisoning adulthood."  He’s right that Trump is a symptom, although he also is a cause, of the condition of the Republican Party and, therefore, in part a cause of Ryan’s retirement.  More on that later.

Mr. Cline blames loss of seriousness on "[t]he rise of youth culture in the mid 20th century." The result of the dominance of youth, he says, is that "the worst mistake a politician can make is to be uncool" As proof he argues that "[e]very losing presidential candidate since 1980 was the least ‘cool’ candidate in the race."  The list includes Jimmy Carter, losing to Ronald Reagan; Walter Mondale, losing to Reagan; Michael Dukakis, losing to George H.W. Bush;  Bush, losing to Bill Clinton; Bob Dole, losing to Clinton; Al Gore, losing to George W. Bush; John Kerry, losing to Bush; John McCain, losing to Barack Obama; Mitt Romney, losing to Obama; and Hillary Clinton, losing to Donald Trump.  That’s an unusual interpretation, and it founders on the victories in the popular vote by the uncool Gore and Hillary.  Also, would he have been happier with Carter, Mondale, Dukakis, Gore and Hillary Clinton?  I doubt it, but his formula seems to lead to that conclusion.

The further implication of Mr. Cline’s complaint is that the adult Paul Ryan is uncool, although he puts it this way: Ryan has dignity, decency and gravitas.  Let’s grant the first and pass on the second for now.  Apparently the last means that he has ideas: "Ryan is the latest in a [long line] of political figures of both parties who were drawn to politics by ideas only to find themselves at the mercy of forces that are more powerful than spreadsheets and footnoted policy papers." Under this theory, Ryan, who attempted to offer detailed, constructive ideas, is out because the adolescent public elects adolescent people who won’t listen to him.

"Sober, calm and judicious are out. Loud, obnoxious and incessant are in. The social dynamics of the nursery are governing our political discourse."  That could describe the advent of Donald Trump, and Mr. Cline’s complaint that the media don’t pay enough attention to policy issues has merit, but those factors don’t fully explain Ryan’s retirement or validate his ideas.

The column uses the word "sober" four times, no doubt to emphasize Ryan’s distance from everyone else’s frivolity, as in "sober analysis of health care policy . . . was Ryan’s strength."  Here’s what Ryan’s health-care notions produced, his attempt to repeal Obamacare: "The bill weakens protections for people with pre-existing medical conditions. It rolls back the expansion of Medicaid and cuts taxes on the wealthy. . . . It also significantly reduces federal assistance to lower-income Americans paying for health insurance, and it defunds Planned Parenthood.".[34]  Fortunately, the Senate didn’t go along. 

Ryan had an undeserved reputation as a deficit hawk, which disappeared with the tax cut, his true priority.  Here’s another relevant evaluation, from Paul Krugman: "[Ryan’s] ‘deficit reduction’ proposals were always frauds. The revenue loss from tax cuts always exceeded any explicit spending cuts, so the pretense of fiscal responsibility came entirely from ‘magic asterisks’: extra revenue from closing unspecified loopholes, reduced spending from cutting unspecified programs."  Ryan’s "decency," if we define that in terms of fair treatment of the non-wealthy, also evaporates:  "Can anyone name a single instance in which his supposed concern about the deficit made him willing to impose any burden on the wealthy, in which his supposed compassion made him willing to improve the lives of the poor?"[35]

A conservative columnist, Ross Douthat, doesn’t think much of Ryan’s intellectual leadership.  "He was miscast as a visionary when he was fundamentally a party man — a diligent and policy-oriented champion for whatever the institutional G.O.P. appeared to want, a pilot who ultimately let the party choose the vessel’s course." [36]

Ryan can blame his early retirement in part on the disaster that is Donald Trump, though Ryan was not noted for standing up to him; Republicans in Congress have been willing to tolerate Trump as long as they can use him.  Ryan’s retirement seems to have more to do with electoral chances, his and the party’s, than weariness in dealing with the less serious.  Republicans are in trouble this year because of Trump’s unfitness for office, but also because of their policies, which Ryan advanced. 


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Sunday, April 15, 2018

April 14, 2018
     Will we ever do anything about the plague of guns?  Shootings happen daily, and mass shootings (defined as events at which four or more are shot) occur about every one and one-half days.[26]  That is cause enough for alarm, but shootings at schools are a sign like no other of the firearm disease.  

     The interest in change triggered by student protests is encouraging, and finally there has been some action.  Florida enacted a law which raises the age for gun purchase to 21 and bans bump stocks, but it also authorizes and funds arming some school personnel, pleasing the NRA.  In New Jersey, which has relatively strict gun control laws, the governor issued an executive order under which the state will release a report every three months listing the states that are the source of guns used in crimes in New Jersey.  More than 80% of them come from outside the state.  Stronger controls are under consideration in the legislature.   
    The Vermont legislature passed measures that include a ban on bump stocks, limits on the size of magazines, expansion of background checks on buyers and raising the purchase age.  Other states, and cities, have enacted or considered additional controls. [27]

     Citibank announced a policy, applicable to "clients who offer credit cards backed by Citigroup or borrow money, use banking services or raise capital through the company," prohibiting the sale of firearms to customers who have not passed a background check or who are younger than 21, and barring the sale of bump stocks and high-capacity magazines.[28]

     However, in response to the students’ pleas, there have been nasty, idiotic attacks and conspiracy theories from those opposed to any progressive change. Ted Nugent, NRA board member, offered this sentence-fragment appraisal of  the surviving, protesting Parkland students: "The lies from these poor, mushy-brained children who have been fed lies and parrot lies."  On the other hand, "The National Rifle Association are [sic] a bunch of American families who have a voice to stand up for our God-given, constitutionally given right to keep and bear arms."  It is good to know that God, as well as the Founders, decreed civil warfare.

     Nugent made an appearance on the Alex Jones show, and the two engaged in a contest to see who is the most weirdly out of control.[29]  Nugent offered this cogent evaluation of contemporary politics: "Don’t ask why [gun control and other awful, un-American proposals are made]. Just know that evil, dishonesty, and scam artists have always been around and that right now they’re liberal, they’re Democrat, they’re RINOs, they’re Hollywood, they’re fake news, they’re media, they’re academia, and they’re half of our government, at least. . . . There are rabid coyotes running around. . . . Keep your gun handy, and every time you see one, you shoot one."  That’s why we need guns: to shoot political enemies. 

     As Nugent implied, the supposed basis for packing heat is that gun possession is protected by the Second Amendment.  Since 2008, gun-possession advocates have pointed to Heller v. District of Columbia, in which Justice Scalia and friends purported to find a private, non-militia right to possess and carry a firearm.  However, Heller confirmed rather than established that claim. On February 20, I mentioned the Second Amendment Foundation, established in 1974, as an early manifestation of that theory.  Here’s another, from popular fiction, in 1975: "Nobody was ever going to keep firearms out of the hands of butterfingered idiots. Nobody was trying, thanks to the National Rifle Association and a misreading of the Constitution of the United States."[30]  

     One of the reasons often cited for protecting gun ownership — and the actual holding  in Heller — is self-defense in the home.  However, a gun in the home "is more likely to be used to kill or injure an innocent person in the home than a threatening intruder,"[31] so it’s a weak reed on which to lean in demanding unlimited ownership of guns.

     Because of the long-standing misinterpretation, now sanctioned by the Supreme Court, repeal of the Second Amendment is tempting as a cure for the disease.  Former Justice John Paul Stevens proposed just that in a recent column.[32]  He first set forth the core of his dissent in Heller: "Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that ‘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.’" He added: "Today that concern is a relic of the 18th century."  That’s an interesting variation on the original-intent theory: the interest which the Amendment was intended to serve no longer is recognized. 

     Even if still relevant, it is not being applied as intended: "For over 200 years after the adoption of the Second Amendment, it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation. In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a ‘well regulated militia’.”

     The Heller decision was wrong, as a matter of constitutional interpretation and as a matter of policy.  According to Stevens the solution is to be rid of the source.  "Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option."  While I agree that misinterpretation of the Amendment is a major prop for our gun culture, and that we would be better off  without it, I don’t think that repeal would be simple, or easy.  Also, while repeal would undercut the NRA, an attempt to repeal would empower it, by playing into the gun lobby’s claim that liberals, the government, the deep state, are about to confiscate everyone’s hunting rifle.  The better approach is to enact meaningful restrictions, including licensing, and rely on the numerous ambiguities in Heller to permit them.




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30. Lockridge, Or Was He Pushed?

31. For an awful example, see game


Monday, March 19, 2018

March 18, 2018

     It isn’t pleasant to contemplate, and it sounds pretentious to declare it, but American culture is in decline.  The fact that Donald Trump was elected President, and the resulting inanity and chaos in his White House, might be considered proof enough, but there are any number of indicia. 
    They include the capture of government by those who don’t believe in it, elected in part by those who hate and fear it, and the fact that politics is for sale, aided by the notion that money is speech.  They include disbelief in scientific findings and denial of facts, most notably regarding climate change, displaying at least a blasé attitude toward impending disaster, at worst revealing a society committing suicide.  They include a health care system which delivers less at greater cost than in advanced countries, and rampant homelessness in a wealthy society with a robust economy.  They include crumbling infrastructure; inequality, financial and otherwise; racial and religious conflict; a loss of common purpose; and art in its various forms in a state of decadence.   One of the most serious is  the failure to control possession of firearms. 

     The mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida has underlined that unpleasant fact, an obvious and tragically dramatic sign of societal failure.  The proposals to turn schools in to fortresses and to arm teachers are admissions that society has failed, that government is paralyzed and cannot keep people safe.  The federal government cannot do so because, reflecting the culture, it refuses to recognize the problem; in effect, it plugs its ears. 

     In 1993, a study funded with grants from the CDC produced this conclusion: "Rather than confer protection, guns kept in the home are associated with an increase in the risk of homicide by a family member or intimate acquaintance."[23]  That and other studies upset gun-rights advocates, and Congress responded in 1996 by adopting the "Dickey Amendment," which provides that "none of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control."[24] 
    Although that does not, in terms, prohibit research, the CDC has been intimidated, by the NRA and by Congress’ refusal to fund such research, into abandoning it.  The Trump budget continues the ban: "None of the funds made available in this title [Health and Human Services] may be used, in whole or in part, to advocate or promote gun control."

     Advocates for gun possession assert that one must be armed to repel foreign invaders, "globalist forces," rapacious Mexican immigrants or whomever one fantasizes about.  Some claim they must be armed to resist their own government, the pathetic ineffectiveness of which is somehow transformed into menace.  Pop-up ads from the NRA tell us: "Fight Now or Lose Your Freedom."  To elaborate, here’s Wayne LaPierre, executive vice president of the National Rifle Association:[25]

     "Once they get our guns, the rest is easy. Then they could dismantle the rest of our freedoms piece by piece, all the while moving closer to the European-type of socialism they believe our country should embrace."  Some things never change: there’s always a menace to the American Way, if not communism then socialism. 

     "Fortunately, after eight years of a rabidly anti-gun administration, we beat back the tide in 2016—but just barely. We shunned socialist Bernie Sanders and far-left Hillary Clinton, and put Donald Trump in the White House."  They do deserve each other, companions on the downward slope. "As a result, the socialist movement in the U.S. has shifted into overdrive. And this new acceleration is what threatens to greatly, and irreparably, harm our nation." 

     What do those socialists resent about the revival of real Americanism under Trump?  "They hate that he is working diligently to stop the flow of illegals from all over the world who are coming across our southern border."  As that suggests, white nationalism feeds the gun culture.  "They hate Trump’s tax cuts putting more of Americans’ money into their own pockets. They hate that Trump’s policies have spurred the economy so successfully, resulting in record-low unemployment and a record-high stock market."  At this point the defense of guns has moved from paranoia into fantasy.

     Resistance to control of guns is driven as well by an industry which profits from selling them.  Another aid to keeping guns available is that guns taken from criminals often are recycled, sold to dealers; even that opportunity to slightly reduce the number of firearms is ignored. (The Washington State Patrol is required by law to auction off such guns or  trade them to a firearms dealer, who sells them to the public. This applies not only to handguns and hunting rifles, but also to assault weapons).

     We are witnessing a flight into the past.  Fortifying schools is a return to the middle ages,  manning the castle walls against invaders.  Arming teachers is a return to the wild west, or a fantasy of it, where every man packed a gun, only now the schoolmarm will as well.  Stand-your-ground laws, which authorize deadly force almost at a whim, further the retreat into the past.

     The notion that uncontrolled individual action is the only course returns us to the state of nature — anarchy — with its war of all against all.  It is depressing that, in the twenty-first century, we should be reduced to explaining that civilization, organized society and functioning government are positive developments.




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Sunday, March 4, 2018

March 2, 2018   

 Let’s assume that Congress, urged along by a continuing popular demand for an end to firearm carnage, enacted stricter controls.  What would the Supreme Court do?   The Court’s actions and lower court decisions subsequent to Heller make prediction difficult.

 McDonald v. Chicago (2010), declared that: " in District of Columbia v. Heller . . . we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense . . . ."  Possession of a handgun in the home for self-defense, the actual holding in Heller, thereby was expanded to "keeping and bearing arms," apparently of any kind, for self defense, apparently anywhere.

 In 2015, the Court of Appeals for the Seventh Circuit, in Friedman v. City of Highland Park, upheld a municipal ordinance which "prohibits possession of assault weapons or large-capacity magazines."  In December, 2015, the Supreme Court denied review by a vote of 7 to 2.  Justices Scalia and Thomas dissented in an opinion written by Thomas, which asserted: "We explained in Heller and McDonald that the Second Amendment ‘guarantee[s] the individual right to possess and carry weapons in case of confrontation’.” Actually, Heller’s holding and McDonald’s restatement, as noted above, referred to self-defense, not confrontation. 
It’s true that  Heller said this: "we find that they [the terms of the Amendment] guarantee the individual right to possess and carry weapons in case of confrontation."  However, it also said this: "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose."    

In Caetano v. Massachusetts, a state court decision had upheld a state law banning possession of a stun gun.  The 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 reversed in March, 2016. As to the latter point, it invoked 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," Call this the modern position.  However, the Heller opinion took both sides of this issue; the contrary theory is discussed in connection with the next case.

A concurring opinion in Caetano by Justice Alito, joined by Justice Thomas, stated that "the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today." Given the range of weapons in private hands, that test would broaden the protection. However, compared to McDonald, an opinion written by Alito, the suggested formula adds two requirements: that the weapon be commonly possessed, and that the possessor be a law-abiding citizen.  (It drops self-defense, although that was the use involved in the Caetano case.) Given Thomas’ admiration for the Second Amendment, it is doubtful he intended further restrictions, so it’s impossible to know where this line leads.

In Kolbe v. Hogan, a District Court upheld a Maryland law which banned the AR-15 and other military-style rifles and  large-capacity magazines.  A panel of the Court of Appeals for the Fourth Circuit reversed but, in February 2017,  the full Court of Appeals affirmed the trial court.  It based its decision on the other Heller statement regarding modern weapons: "We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ . . . We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’."  Call this the anti-modern position. 

In expounding that position, Heller had added: "It may be objected that if weapons that are most useful in military service — M-16 rifles and the like — may be banned, then the Second Amendment right is completely detached from the prefatory clause [the reference to militia]. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty."  Relying on that, the Court of Appeals held that "the banned assault weapons and large-capacity magazines are among those arms that are ‘like’ ‘M-16 rifles’ — ‘weapons that are most useful in military service’ — which the Heller Court singled out as being beyond the Second Amendment's reach." Therefore, "the banned assault weapons and large-capacity magazines are not protected by the Second Amendment." 

The Supreme Court denied review, allowing to stand, as it had in Friedman, a law banning assault weapons and large-capacity magazines, even though the Court of Appeals’ decision on the modern-arms issue is contradictory to the opinion and result in Caetano.

In Peruta v. California, the Court of Appeals for the Ninth Circuit, reversing a panel decision, upheld a restrictive interpretation of the California ban on concealed weapons.  The Supreme Court denied review on June 17, 2017. Justice Thomas, joined by Justice Gorsuch, dissented; here is the issue, as described by the dissent:

"California . . . . proscribes concealed carry unless a resident obtains a license by showing ‘good cause,’ among other criteria, . . . and it authorizes counties to set rules for when an applicant has shown good cause."  In San Diego County, where the plaintiffs reside, "the sheriff has interpreted ‘good cause’ to require an applicant to show that he has a particularized need, substantiated by documentary evidence, to carry a firearm for self-defense. The sheriff's policy specifies that ‘concern for one's personal safety’ does not ‘alone’ satisfy this requirement."

Plaintiffs could not meet the test, "and, because the State generally bans open carry, are thus unable to bear firearms in public in any manner."  That might seem to be a good thing, especially to someone who might accidentally jostle a California cowboy, or "confront" him.  The dissenters are not of that view; this is their rationale: "As a result, ordinary, ‘law-abiding, responsible citizens,’ District of Columbia v. Heller, 554 U.S. 570, 635 (2008), may not obtain a permit for concealed carry of a firearm in public spaces."  That tangled sentence includes a quotation from Heller.  However, the passage cited says this: the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."  A reference to defense of hearth and home becomes, in the dissenters’ view, part of a formula for concealed carry anywhere.   

Not only did the Court of Appeals limit concealed carry, the dissent complained, it failed to "answer the question of whether or to what degree the Second Amendment might or might not protect a right of a member of the general public to carry firearms openly in public."

Other decisions reflect the difficulty in applying a decision as confused as Heller .[22]

The most recent case is Silvester v. Berecca, another Ninth Circuit decision which the Supreme Court, on February 20, 2018, declined to review. Again Justice Thomas dissented.  The substantive issue was whether California’s ten-day waiting rule for gun sales violated the Second Amendment.  The Court of Appeals held that it did not, the Supreme Court’s refusal to take up the appeal left that decision standing, and Justice Thomas did not address the merits.  Instead, his dissent dealt with the standard of review; he contended that the Ninth Circuit applied the wrong standard. 

However, he added comments reflecting his frustration at the Court’s avoidance of the gun-control issue.  "The Ninth Circuit's . . dismissive treatment of petitioners' challenge is emblematic of a larger trend.  The lower courts, he said, are "resisting" Heller and McDonald.  "Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. . . . " 

I would like to think that Justice Thomas is right in contending that, "as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court."  It’s more likely that the other conservatives don’t know where they want to end up in the spectrum between Heller’s limited holding and its sweeping language.


The cases above and others were discussed at length in my post of July 11, 2016.


Wednesday, February 21, 2018

February 20, 2018 

     Once again a mass shooting has occurred, once again at a school, and once again, probably, nothing will be done to prevent another such tragedy.  Thoughts and prayers too often are cover for inaction, and asserting that better mental health screening will suffice is a delusion or an evasion.  The connection between the availability of guns and gun deaths is as clear as the connection between human activity and climate change, and is ignored by so-called conservatives in office for the same pair of reasons: libertarian aversion to regulation, and political pressure and money which demand that it continue to be ignored.

     I’ve begun to wonder whether public opinion counts for anything in today’s politics.  Polls show that people take gun control far more seriously than Congress or the Administration, with no effect.  Earlier mass shootings, including at schools, has not led to control of the availability of guns.  A popular uprising, something akin to MeToo, will be required.  Perhaps the teenagers, in Parkland and elsewhere, can succeed where the chronological adults have failed.

     There are some indications of change; a Florida political donor has vowed not to write another check to Governor Scott and other Republicans "unless they all support a ban on assault weapons.”  The Sheriff of Broward County, where Parkland is located, warned officials that they will not be re-elected unless they support stronger gun laws.  As a forecast, that may be too optimistic, but it’s another good sign. 

     The media usually have not pressed the issue.  One example is the CBS nightly news broadcast on February 14, which devoted a significant part of its time to the Parkland shooting, but did not mention the easy availability of guns as a cause. Change may be coming there as well; newspaper articles and columns have condemned inaction and hypocrisy in a way not seen after earlier shootings.

     Those who tout American exceptionalism probably don’t have in mind our relative standing in various categories relating to health and safety, including the prevalence and impact of guns.   We have more guns in private hands, and have more gun deaths than any other developed country, and more mass shootings.  The ratio of guns to gun deaths holds true among other developed countries.  This is not because we have more crime; per capita, our record is respectable; guns create an aberration. The argument that control doesn’t work is belied by experience: countries which have instituted more control have seen gun deaths drop; here, states with tighter gun-control laws have fewer gun deaths. [20]

     Bret Stephens, in a column in The New York Times, has proposed repealing the Second Amendment.  This, coming from a conservative, is significant. He summarized the argument as follows: "We need to repeal the Second Amendment because most gun-control legislation is ineffective when most Americans have a guaranteed constitutional right to purchase deadly weaponry in nearly unlimited quantities." 

     The Amendment long has been cited, legitimately or not, as the authority for unlimited ownership of firearms.  For example, there has been a gun-rights group known as The Second Amendment Foundation since 1974. The Amendment was used as an argument against the Brady Bill in 1993.  Days after the 1999 Columbine school shooting, Charlton Heston preached Second Amendment rights.  However, it was legitimized as a basis for individual gun possession only with the decision in Heller v. District of Columbia (2008),[21] which overturned United States v. Miller (1939). Miller had limited the Amendment to the support of militias, as the language seems to provide.  The Amendment had not been applied to restrict state laws until the Court extended Heller to the states in McDonald v. Chicago (2010).

     Justice Scalia’s opinion for the 5-4 majority in Heller is misguided, inept and internally inconsistent.  In the course of interpreting the Amendment, he rewrote it by expunging  the limiting clause, "A well regulated Militia, being necessary to the security of a free State;" by converting the phrase "keep and bear arms" — a militia reference — into "keep and carry arms;" and by reading into the text "the individual right to possess and carry weapons in case of confrontation."  The last was based on an English statute of 1689 which provided that "the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law." By some mysterious process that became part of the Second Amendment, a process aided by cancelling the reference to militias.  Along the way, the statute lost its reference to religion, "as allowed by law" vanished, and having arms for defense became a right to carry weapons in case of confrontation. 

     The last is a broad hint to gun advocates that it is good policy to be armed, just in case.  Those taking the hint include airline passengers.  TSA reported finding 104 handguns (87 loaded) in carry-on bags between February 4 and 11.

     In dissent, Justice Breyer argued that "the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves."  The majority would have none of that: "The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon."  The right is absolute.

     Despite Heller’s sweeping rhetoric its holding is narrow, and would not justify mass gun possession, concealed carry, opposition to licensing, purchase from unlicensed sources, purchase by minors, possession of military-style rifles, or other examples of our irrational practice.  It merely held that "the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."  Possession in the home, for self-defense, of a loaded handgun, not burdened with a trigger-lock,  is protected; that’s it.  Little of the subsequent reliance on the Amendment and the decision can be based on the holding.  Instead, gun advocates take the decision as  blanket permission, relying on Scalia’s loose language and his strange interpretation of the Amendment.   

     As the Second Amendment clearly is the problem, what are the possible solutions?  The best would be for the Court to overturn Heller and McDonald and return to the holding in United States v. Miller (1939).  Justice Stevens, dissenting in Heller, described the former interpretation of the Amendment in this way: "The view of the Amendment we took in Miller — that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons — is both the most natural reading of the Amendment's text and the interpretation most faithful to the history of its adoption." 

     Given the makeup of the Court, reversal isn’t likely;  Justices Roberts, Thomas, Kennedy and Alito were in the majority in Heller, and Justice Gorsuch might be expected to join them in rejecting any such retreat.  The present Congress hardly is likely to propose repeal of  the Amendment, but perhaps the combination of a Democratic takeover and that popular push would make it possible.  The latter would be needed at the state level as well, in order to achieve ratification.

     A simpler and more direct approach, but also requiring a new Congress, would be to enact stricter gun laws.  One of the oddities of the Heller opinion is that, for all of its sweeping pro-gun comments, it contemplated some kinds of control.  The right to keep and bear arms, it said, "was not unlimited, just as the First Amendment's right of free speech was not . . . . Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. . . ."  More specifically, "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, or laws imposing conditions and qualifications on the commercial sale of arms."

     It isn’t clear whether the Court would have allowed prohibition of certain types of weapons, as Scalia’s muddled opinion took opposing positions on whether the Amendment protects only weapons in existence when the Bill of Rights was adopted.  At one point, he seemed to reject that interpretation: "Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment."  No, he said, "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."  Later, he reversed course: "We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ . . . We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of  ‘dangerous and unusual weapons.’ "  Perhaps prohibition of assault rifles, large magazines  and bump stocks therefore could pass muster; the opinion’s focus on the right to a handgun might help justify that.

     Another possibly unintended opening exists in the opinion’s reference to the people whose rights it sought to protect.  Whatever interpretation one might put on the Amendment, the Court said, "it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."  It doesn’t do that, of course, but the reference to responsibility, if taken as a limitation on possession, would open more doors to control, such as meaningful background checks and licensing.

The opinion can mean almost anything, given its illogic and ambiguity, so control advocates should be as aggressive in interpreting it as the gun nuts.

     Congress should enact those laws necessary to bring order out of chaos, and defy the Supreme Court to say nay.  We cannot simply recycle our thoughts and prayers forever.


20. violence-statistics-maps-charts

My review of the opinion is in the posts of July 6, 2008 and December 19, 2015.

1 maps-charts
2  My review of the opinion is in the posts of July 6, 2008 and December 19, 2015.