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.

___________________

26. http://www.gunviolencearchive.org/reports/mass-shooting
27. https://www.cnn.com/2018/04/09/us/gun-laws-since-parkland/index.html
28. https://www.nytimes.com/2018/03/22/business/citigroup-gun-control-policy. html
29. https://www.mediamatters.org/video/2018/04/06/nra-s-ted-nugent-compares-democrats-rabid-coyotes-keep-your-gun-handy-and-every-time-you-see-one-you/219877 
30. Lockridge, Or Was He Pushed?
31. http://lawcenter.giffords.org/facts/statistics/ For an awful example, see          https://www.thedailybeast.com/girl-13-shot-dead-by-9-year-old-brother-over-a-video- game
32. https://www.nytimes.com/2018/03/27/opinion/john-paul-stevens-repeal-second-amendment.html

 

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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23. http://www.nejm.org/doi/full/10.1056/NEJM199310073291506

24. https://www.congress.gov/bill/104th-congress/house-bill/3610/text 

25. https://www.americas1stfreedom.org/articles/2018/3/12/gun-rights-could-be- affected-by-socialist-ideals/

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.

____________________

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

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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. https://www.vox.com/policy-and-politics/2017/10/2/16399418/us-gun- violence-statistics-maps-charts

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

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¹ https://www.vox.com/policy-and-politics/2017/10/2/16399418/us-gun-violence-statistics- maps-charts

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

February 5, 2018

President Trump’s State of the Union address has received a surprisingly bland response. The Democratic rejoinder, by Rep. Kennedy, was eloquent but general; it could have been offered on any occasion. Savannah Guthrie, one of the panel of pundits assembled by NBC, managed to find that Trump’s address "was optimistic, it was bright, it was conciliatory. . . . He set a tone and he was positive and he trumpeted the economy, and I think that's exactly what he wanted to do." Granting that she had reservations on substance, that is a strikingly kind appraisal of a smug, inane performance by a man who has failed every possible test as a leader and as a person. (The GOP web site included her remarks in a list of positive reactions to the speech).[18]

The New York Times’ evaluation, at least in the edition I received, wasn’t even a response, but a recitation of Trump’s agenda. Its headline was "President Issues Appeal for Unity in State of the Union." However the appended article based its conclusion that he called for unity not on the address, but on "excerpts released before his speech." An example, in the speech as given, of his unifying approach is the demand, disguised as the "pillars" of immigration reform, that Democrats accept his program, including the wall, as the price of protecting Dreamers. The Times elsewhere has pointed out many of Trump’s flaws. However, these bland, celebratory reviews lend respectability to a man and an administration that don’t deserve it. Donald Trump has so sullied the office that a willingness to treat his address as presidential is an exercise in delusion, of self and audience. The classiness of his approach to the SOTU, and the sincerity of his "appeal for union," are shown by his accusation that Democrats who failed to applaud are guilty of treason.

Here is a more appropriate evaluation of Presidential performance: "What makes our society tick, aside from good governance and competence, is good character. And good character is not some abstraction. It is one of those tangible, very real human attributes that we know, and appreciate, when we see it." We have had a year to evaluate the President in terms of those qualities, and he has failed.

It’s true that we should not expect perfection; everyone has flaws. However, there are limits. "What we need is a realistic, disinterested view of whether such flaws are, or might be, relevant to the highest public office. Sometimes they are. A president whose character manifests itself in patterns of reckless personal conduct, deceit, abuse of power, and contempt for the rule of law cannot be a good president. These aspects of character, in this combination, are surely relevant."

The scandal surrounding the President "now involves very public, very emphatic lies. Breaches of trust. The subversion of truth. The possibility of criminal wrongdoing." The various defenses offered "cannot obscure the more profound underlying issue: violations of law and efforts to undermine constitutional government."

Repeated lying corrupts the political process. "In general, if the president's word cannot be trusted—an issue of character—voters cannot take seriously his election platform or his campaign promises—an issue of public duty. Words are deconstructed, promises emptied of meaning. Politics is reduced to a mere game. It is all very straightforward: if a man's word means nothing, it means nothing. It is folly to believe otherwise." Trump lies reflexively.

However, we aren’t reacting as we should; we’re either numb or disinterested. Why? "What explains this seeming public indifference toward, and even acceptance of, the president's scandals? The explanations most often put forth include very good economic times; scandal fatigue; . . . the president's hyperaggressive, relentless, and effective spin team; the inclination to withhold judgment until more facts are known or give the president the benefit of the doubt; . . . and the fact that Republican leadership . . . has been quiescent and inconsistent in its comments . . . ."

No doubt you have, by now, especially given the ellipses in the last quote, tumbled to the fact that I am playing a political-historical game. The quotes are from The Death of Outrage, by William Bennett, and refer to President Clinton’s behavior regarding the Monica affair.[19]  However, his observations are more apt now; we have reached the point at which each new report simply is added to the pile; there is so much that nothing stands out. Worst, because Trump is such a joke as President, we no longer hold him to a normal standard. Outrage isn’t dead, but it isn’t in perfect health.

__________________________

18. https://gop.com/sotu-what-they-are-saying/
19. Bennett, The Death of Outrage (1998), pp. 3, 36, 38, 42, 128.  
 
 
 

January 29, 2018

I can’t say that I was greatly impressed by For Whom the Bell Tolls, but there is a line in it which ought to have more resonance than it does, especially now: "For what are we born if not to aid one another?"[6]   Leave aside issues of war and peace — the question was asked during a war — and just look at the domestic scene; aiding one another is not a priority under the present regime.

Why do we tolerate a culture ostensibly based on competition, more accurately on the notion that those who have much not only should keep it, but should have more? Why do we tolerate politics which denigrates programs which help those who need help, which tells them they are on their own? Hobbes described life in the state of nature as solitary, poor, nasty, brutish and short. More than one of those conditions might be found in Twentieth-Century America, but let’s concentrate on the first; it defines life in the absence of a functioning state; it describes the direction the country has pursued for several decades.

A few years ago, I quoted John Donne — no man is an island — to criticize libertarian (anti-state) and I’ve-got-mine conservatives. They are in control, pushing us further toward a soulless, unregulated, untaxed society of the favored versus the rest. However, a similar separatist, isolating tendency is found in contemporary liberalism, emphasizing identity and encouraging tribalism, when we need commonality. Trump and the "nationalist" right, Congress and its wealthy masters, have divided the country; a liberal, Democratic response must not be a different form of division.

The Once and Future Liberal, by Mark Lilla, is a small book, eight by five inches, and one hundred forty-one pages of text. It is even slighter than that would indicate, as extra spaces are inserted every few paragraphs; it offers neither notes nor index. It is a condensed argument that the way to set liberalism on the right path is by turning from a focus on identity to a common focus and effort.

Here is the heart of his argument: The New Deal philosophy "pictured an America where citizens were involved in a collective enterprise to guard one another against risk, hardship, and the denial of fundamental rights." It eventually faded away, and when there arose "a unified and ambitious right, American liberals faced a serious challenge: to develop a fresh political vision of the country's shared destiny." Liberals failed to do that. "Instead they threw themselves into the movement politics of identity, losing a sense of what we share as citizens and what binds us as a nation. . . ." Instead of a symbol of shared experience, a "recurring image of identity liberalism is that of a prism refracting a single beam of light into its constituent colors, producing a rainbow. This says it all."[7]

We have become a hyper-individualistic society, Lilla charges. "Almost all the ideas or beliefs or feelings that once muted the perennial American demand for individual autonomy have evaporated. Personal choice. Individual rights. Self- definition. . . .. And so it was to be expected that eventually our politics would catch up and be infected with this same self-regard, and that our political vocabulary would be revised to match the new reality."[8]  This perhaps goes too far, but his basic point, a variation on Hemingway’s formula, is valid: "There can be no liberal politics without a sense of we — of what we are as citizens and what we owe to each other."[9]

Lilla’s complaint is not new. The tendency toward identity politics was deplored by Todd Gitlin, with an emphasis on multiculturalism, in 1996; Arthur Schlesinger made somewhat the same point in 1992.[10]  Concern for the drift toward hyper-individualism is not new to Lilla, either. He raised the issue in an article in The New York Review of Books in 1998, and again in the same publication in 2010.[11]  However, The Once and Future Liberal, published last year, comes at an especially significant time. The Republicans have gone so far astray that Democrats have a chance to recover control of Congress, but they must be ready to serve the people, not an accumulation of identities. Lilla’s book is an argument for that reorientation.

Lilla sees contemporary liberalism’s emphasis on divisive individuality as a continuation, with different emphasis, of the individualism of Reagan conservatism. As Lilla puts it, compared to the New Deal, Reaganism "pictured a more individualistic America where families and small communities and businesses would flourish once freed from the shackles of the state. Its watchwords were self-reliance and minimal government."[12]

However, even before Reagan’s election as President, the new left had adopted individualism as its mantra; as Gitlin put it, "Difference was vital, commonality moribund. Demands for race and gender blindness and inclusion tipped toward demands for all-consuming race and gender consciousness. Difference was practiced, commonality barely even thought."[13]

Not everyone agrees with Lilla’s point of view. One response is an article in the London Review of Books.[14]  The author refers, with implied — and fair — criticism, to this statement by Lilla: "Black Lives Matter is a textbook example of how not to build solidarity." Lilla noted a confrontation between BLM activists and Hillary Clinton which was, as he suggests, a mistake by BLM. However, his quoted appraisal is too sweeping; BLM has done important work in bringing attention to police violence against blacks. There is no reason that cannot be part of a common effort, to point out that police are too prone to violence against others as well, and too militarized. Blacks suffer the most, so their taking the lead is natural.

In an article in The New York Times which was, in effect, a first draft of The Once and Future Liberal, Lilla was more measured: "The moral energy surrounding identity has, of course, had many good effects. Affirmative action has reshaped and improved corporate life. Black Lives Matter has delivered a wake-up call to every American with a conscience. . . ." Rights for those denied them can and should be a common cause.

The author of the LRB article, James Meek, concedes that "It is right to be wary of those who bring to political activism an egoistical yearning for personal transcendence." However, he worries that, if liberals "were discouraged from ‘identity politics’, they would drop out of politics altogether; that instead of turning a diverse, chaotic, squabbling host of overlapping campaigners into a disciplined army of moderate civic foot soldiers, you would extinguish the very force that keeps the Democrats going." I don’t think that’s Lilla’s argument; he wants a focus on common goals, not necessarily "moderation." Another critique, by Jonathan Rauch in the New York Review of Books, summarizes Lilla’s aim as follows: "He wants them to integrate practical politics into their conception of social justice, rather than treating politics as a distraction or an afterthought." [15]  Creating a unified effort won’t drive everyone away, and there will remain issues on which liberals disagree with one another. As to that, the form of unity required is to abandon litmus tests, and to return to something resembling the big tent.

Meek also acknowledges: "It’s true that the Democrats, to put it mildly, have a grass roots problem. Long before Trump became president and the Republicans cemented control of both Houses of Congress, the GOP was tightening its grip on power at the state level." Rauch agrees. "Lilla’s brisk account leaves out a lot of nuance, but the endpoint is right: liberals lost their common touch." Many voters see liberals as an educated elite mired in "political correctness." If liberals and Democrats continue down that road, they will encounter Steve Bannon’s response: "The Democrats, the longer they talk about identity politics, I got ’em . . . . If the left is focused on race and identity, and we go with economic nationalism, we can crush the Democrats."[16]

The right also is playing the identity game. It not only is pandering to the resentments of the anti-elites, it is caught up in a movement called identitarianism which is, in this country, white nationalism. Nationalism of various sorts, including tolerance of neo-Nazism, has found its way into the White House.

The Constitution begins "We the People." There is hypocrisy in that phrase, given that "the people" were limited, in terms of freedom, to whites and, for political purposes, to white males. However, it correctly stated the principle behind democratic government, and we have moved a long way toward a true embodiment of that principle. Dividing into self-focused camps will not bring further advance.

Some people have become isolated selves in non-political ways as well. The irony of smart phones is that, although they connect users to the world, many use them so continuously that they are cut off from their near surroundings. An example of compulsive use (I offer this in part, I admit, because it irritates me) is the frequent phenomenon, at the gym where I work out, of someone occupying a machine, doing nothing related to it other than sitting, while playing with his phone, unaware of anything but images on a small screen. Whether that results from selfishness or encasement in a bubble, it is an apt image of the disengaged individual.

Here is Lilla’s conclusion: "for two generations America has been without a political vision of its destiny. There is no conservative one; there is no liberal one. There are just two tired individualistic ideologies intrinsically incapable of discerning the common good and drawing the country together to secure it under present circumstances."[17]

Something needs to be done to bring people back from their isolation and rekindle a commitment to the common welfare; liberals must take the lead. Taking the country back from Trump and the Republican Congress would be a good first step in working together in common cause; that may require, and should include, bringing people to the polls who don’t usually vote, who have abandoned the common effort in that sense.. Then we might make America greater, and cease to be an international embarrassment, by addressing such matters as gun violence, universal health care and child poverty.

_______________________

6.For Whom the Bell Tolls, p. 139

7. Lilla, at 8-9

8.Id., at 28

10.Gitlin, The Death of Common Dreams: Why America is Wracked by Culture Wars; Schlesinger, The Disuniting of America

11. See http://www.nybooks.com/articles/archives/2010/may/27/tea-party-jacobins/

12. Lilla, at 8

13. Gitlin, at 147

14. https://www.lrb.co.uk/v39/n23/james-meek/against-passion . See also:
https://www.nytimes.com/2017/08/15/books/review/mark-lilla-the-once-and-future- liberal.html;
https://www.huffingtonpost.com/entry/this-crusader-isnt-trying-to-save-liberals-from-identity_us_59988607e4b02eb2fda32079

15. http://www.nybooks.com/articles/2017/11/09/mark-lilla-liberal-speaking/

16. http://prospect.org/article/steve-bannon-unrepentant

17. Lilla, at 99