July 27, 2016

Entirely by happenstance, two days before looking up the 2016 Republican national platform I had read an essay, "The Illusion of American Omnipotence," written in 1952. The Author, [45] a Brit with a generally high opinion of the United States, encapsulated an attitude which doesn’t seem to have changed much. He referred to "the existence, in the American mind, of what I call the illusion of omnipotence," which leads to the belief "that the world must go the American way if the Americans want it strongly enough and give firm orders to their agents to see that it is done."

Of course, if that doesn’t happen it must be someone’s fault. This is the domestic-political form of the illusion, "that any situation which distresses or endangers the United States can only exist because some Americans have been fools of knaves," probably one’s political foes. Such a reaction is "the American equivalent of that disastrous French cry, ‘nous sommes trahis’ "[we are betrayed].

Here’s what the Republican platform has to say about that: "We believe that American exceptionalism — the notion that our ideas and principles as a nation give us a unique place of moral leadership in the world — requires the United States to retake its natural position as leader of the free world. . . . " Again, under the heading "America: The Indispensable Nation," we are told that under Republican presidents, there was a tradition of "world leadership" based on "enormous power," which "requires consultation, not permission to act." With that policy we could "lead the world into a new century of greater peace and prosperity — another American Century."

However, "[f]or the past 8 years America has been led in the wrong direction. . . . Our standing in world affairs has declined significantly — our enemies no longer fear us . . .." Why is that? "After nearly eight years of a Democratic Commander-in-Chief who has frequently placed strategic and ideological limitations and shackles on our military, our enemies have been emboldened and our national security is at great risk. . . . In all of our country’s history, there is no parallel to what President Obama and his former Secretary of State have done to weaken our nation." Trahison.

Political platforms tend to be ignored, and the current GOP version seems designed to ensure that. It covers sixty-four pages; even if we ignore the artwork and the lists of committee members, there are fifty-six pages of text, including the preamble. Only the masochistic (yes, that includes me) would read all of it. It is a combination of ideology, fantasy, evasion, misstatement and blame-shifting. 

Much of its philosophy is expressed in generalities; its most consistent message is the need to weaken the oppressive federal government. Its positions include opposition to regulation of business, opposition to a national minimum wage, and reduction of the national debt (although it complains of cuts to defense spending). It opposes limits on "political speech," and advocates "free-market approaches to free speech unregulated by government," central to which is "raising or repealing contribution limits." Money, after all, is speech.

The tax code must be rewritten completely; the new code must be "pro-growth." Republicans "oppose tax policies that deliberately divide Americans or promote class warfare," i.e., we mustn’t tax the rich. "We also support making the federal tax code so simple and easy to understand that the IRS becomes obsolete and can be abolished." Hovering in the background, apparently, is a proposal to make a sales tax the prime source of revenue, for we are told this: "To guard against hypertaxation of the American people in any restructuring of the federal tax system, any value added tax or national sales tax must be tied to the simultaneous repeal of the Sixteenth Amendment, which established the federal income tax."

The platform supports "constitutional [gun-]carry statutes," and opposes "laws that would restrict magazine capacity or ban the sale of the most popular and common modern rifle;" in other words, we all should have semi-automatic (assault) weapons. It opposes federal licensing or registration.

In one departure from reining in the federal government, the platform not only "support[s] the right of states to enact Right-to-Work laws," but "call[s] for a national law to protect the economic liberty of the modern workforce," thereby coining another euphemism for union-busting.

The authors wanted to advocate returning to the gold standard, but they couldn’t quite bring themselves to do so. Instead, they noted that President Reagan had created a commission to "consider the feasibility of a metallic basis for U.S. currency," and that the 2012 platform proposed a commission "to investigate possible ways to set a fixed value for the dollar." Having crept that far, they boldly proposed a commission to explore "ways to secure the integrity of our currency." Apparently they are afraid that saying "gold standard" out loud would tip off the inattentive to the nuttiness of the proposal.

There is much more, a small amount of it sensible, a few parts fairly debatable, but on the whole it illustrates why the Republican Party should not be in charge of government.

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

July 19, 2016

Presidential polls that I looked at yesterday, taken in July, range from a dead heat to a lead for Hillary Clinton over Donald Trump of seven points, when the choice is between only those two. When the of the Libertarian and Green Parties are added, the margins change, but not consistently; in one, Trump gains, in one there is no change (the dead heat), and in three Clinton gains. Another muddling factor may be the "silent" Trump vote, potential votes by people who are shy about admitting their support, including those who don’t like him but like Mrs. Clinton less.

An example of that attitude was set forth on the Washington Post page on June 28. The writer, identified as a retired financial adviser, had this to say: "I’m part of the new silent majority: those who don’t like Donald Trump but might vote for him anyway." He’s hardly part of a majority as he defines it, but he and others might make a majority for Trump. Why, if he doesn’t like Trump would he vote for him? "For many of us, Trump has only one redeeming quality: He isn’t Hillary Clinton. He doesn’t want to turn the United States into a politically correct, free-milk-and-cookies, European-style social democracy where every kid (and adult, too) gets a trophy just for showing up." There are legitimate reasons to have reservations about Mrs. Clinton, but a fantasy of corrupting socialism and stifling political correctness isn’t among them.

The writer claims to be under no illusions about Trump, "a classic bully and a world-class demagogue in his personal, professional and political lives." Trump "will continue to demonize his perceived enemies and take the low road at every opportunity." So why then, he asks, appropriately, "would rational, affluent, informed citizens consider voting for The Donald?"

Trump, he tells us, is "the only one who appears to want to preserve the American way of life as we know it." What is the threat? (We might ask as well: what does he think is the American way of life?) Here is his attempt at an answer: "For the new silent majority, the alternative to Trump is bleak: a wealthy, entitled progressive with a national security scandal in her hip pocket." Mrs. Clinton’s sense of entitlement is annoying but, although her performance as Secretary of State leaves much to be desired, a national security scandal is a stretch. "In our view, the thought of four to eight more years of a progressive agenda polluting the American Dream is even more dangerous to the survival of this country than Trump is." It would be interesting to know where he found that agenda, and what it contains, but it hardly matters. He’s with Glenn Beck in thinking that "progressive" is a pejorative, so much so that even Trump is acceptable.

"So come Nov. 8, you’ll find many of us sheepishly sneaking into voting booths across the United States. Even after warily pulling the curtain closed behind us, we’ll still be looking over our shoulders to make sure the deed is shielded from view. Then, fighting a gag reflex, we’ll pull the lever." Perhaps that describes the supposed silent mass, but the coyness is a bit out of place for the author after declaring his intentions in a major publication.

He and his rational, informed fellows ought to consult a New Yorker article by Jane Mayer,[44] which describes the reactions to Trump’s candidacy of the author of Trump’s supposed memoir, The Art of the Deal. That author, Tony Schwartz, who spent a year following Trump around in an attempt to learn who he was, considers The Donald to be "pathologically impulsive and self-centered." He says that if he were to write a book today about Trump, he would title it "The Sociopath."

Interviewing Trump for the book posed a problem: "He has no attention span" or, put another way, "it’s impossible to keep him focused on any topic, other than his own self-aggrandizement, for more than a few minutes." Confirming the impression one gets watching Trump, Schwartz "believes that Trump’s short attention span has left him with ‘a stunning level of superficial knowledge and plain ignorance’." As President, his impulsiveness and inability to concentrate would be dangerous.

Our retired financial advisor describes his reluctantly-for-Trump group as affluent and fiscally conservative. ("We’re not uneducated, uninformed, unemployed or low-income zealots.") Their possible votes for Trump presumably come at least in part from the notion that Trump shares their viewpoint because he is a self-made, successful businessman. Reading Jane Mayer’s article might disabuse them of that notion. In any case, the American Dream, even that of the smugly superior, would be at risk with Trump in the White House.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

July 11, 2016

Several recent decisions have attempted to make sense of the Supreme Court’s reading of the Second Amendment, which states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The list below is far from exhaustive, but it illustrates the problem.

Based on District of Columbia v. Heller, the Amendment might protect "the individual right to possess and carry weapons in case of confrontation" (although "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation"), or "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," or — the actual holding — the right to "handguns held and used for self-defense in the home."

McDonald v. Chicago, which applied the Second Amendment to the states, initially recited that, under Heller, the Amendment preserved "the right to keep and bear arms for the purpose of self-defense," but later decided that Heller had found "a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." That was only the beginning of the attempts to interpret the Heller majority opinion, which said many things, not all of them consistent, clear or sensible. Heller and its progeny demonstrate that verbosity is an enemy of precision, to say nothing of good results.

A. In Friedman v. Highland Park (12/7/2015), the plaintiff challenged a city ordinance which bans manufacturing, selling or possessing semiautomatic firearms. The lower courts upheld the ordinance and the Supreme Court declined review. A dissent by Justices Thomas and Scalia complained that "the Seventh Circuit limited Heller to its facts, and read Heller to forbid only total bans on handguns used for self-defense in the home." That sounds as if the Court of Appeals applied that decision exactly as it should have, ignoring the looser formulas.

However, the Court of Appeals’ opinion doesn’t match its holding. Its test for the constitutionality of bans on firearms is "whether a regulation bans weapons that were common at the time of ratification or those that have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia,’ . . . and whether law-abiding citizens retain adequate means of self-defense."

The Court of Appeals held that the second part of its test was satisfied: "If criminals can find substitutes for banned assault weapons, then so can law-abiding homeowners." That rather strange finding, combined with the language of the second part of the test (adequate means of self-defense), leaves open allowing weapons other than handguns, and allowing them "for self defense," thus perhaps also extending the right beyond the home. The Seventh Circuit can be forgiven for that bit of confusion, as Heller, weaving its way toward its holding, spoke, as noted above, of "the individual right to possess and carry weapons in case of confrontation."

The first part of the Court of Appeals’ test, not illogically, nods toward the language of the Amendment. However, Heller rejected any limitation related to military use. As the Supreme Court dissent in Friedman put it: "The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess." That makes little sense, but it seems to be where we are.

The Supreme Court dissent claimed that Heller "excluded from protection only ‘those weapons not typically possessed by law-abiding citizens for lawful purposes.’" That inverts the test. Heller said this: "We therefore read [United States v.] Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes. . . ." That does not state that only such weapons may be banned.

B. In Kolbe v. Hogan (2/4/16), the Court of Appeals for the Fourth Circuit was concerned primarily with the standard of scrutiny to be employed by a district court in evaluating a challenge to a gun-control law. However, along the way numerous comments were made about the scope of the Second Amendment right. The Court summarized the issue as follows: "In April 2013, Maryland passed the Firearm Safety Act ("FSA"), which, among other things, bans law-abiding citizens . . . from possessing the vast majority of semi-automatic rifles commonly kept by several million American citizens for defending their families and homes and other lawful purposes." Plaintiffs challenged the FSA, contending that the ‘assault weapons’ ban was invalid under the Second Amendment.

The majority opinion adopted one of the Heller formulas, finding that the "core protection of the Second Amendment [is] the right of law-abiding responsible citizens to use arms in defense of hearth and home’." That is broader than the Heller holding, in that it substitutes "arms" for "handguns," but narrower in that it limits the right to "law-abiding responsible citizens." The broadening was useful to the majority, as they were in the process of bringing semiautomatic rifles under the Amendment.

The court recited, following Heller, that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes . . . ." "Accordingly," it concluded, "the Second Amendment extends only to those weapons "typically possessed by law-abiding citizens for lawful purposes." As in the dissent in Friedman, this seemed to be converted into a rule that all weapons so possesed are protected, for it continued, "Heller . . . looked to present-day use to assess whether handguns are in common use (and consequently protected)." The Court of Appeals had "little difficulty in concluding that the banned semi-automatic rifles are in common use by law-abiding citizens," and "determined that the Second Amendment covers the prohibited semi-automatic rifles . . . ."

The state, in opposition, had argued that "even if ownership of the prohibited weapons . . . is common, nothing in the record reflects that these weapons are commonly used for self-defense," but to no avail. According to the court, the "proper standard under Heller is whether the prohibited weapons . . . are ‘typically possessed by law-abiding citizens for lawful purposes’ as a matter of history and tradition, . . ." Under Heller, "Second Amendment rights do not depend on how often the semi-automatic rifles . . . are actually used to repel an intruder." The court added, "We find nothing in the record demonstrating that law-abiding citizens have been historically prohibited from possessing semi-automatic rifles." So, unless they have been prohibited before the subject law was passed, they have, in effect, been grandfathered into the Second Amendment.

Heller had referred to and approved "the historical tradition of prohibiting the carrying of dangerous and unusual weapons." Restating that test somewhat, the state argued that "the banned semi-automatic rifles are ‘unusually dangerous’ and therefore do not fall within the ambit of the Second Amendment." Nice try. The court responded: "In distinguishing between protected and unprotected weapons, Heller focused on whether the weapons were typically or commonly possessed, not whether they reached or exceeded some undefined level of dangerousness." So, again, once something becomes widespread enough to be "usual," it can’t be banned.

The dissent argued that the long guns in question are not as commonly possessed as the majority claimed, and especially that they are nor commonly used in defense of the home, but that factual argument doesn’t reach the fallacy of the test. However, the dissent also addressed that fallacy by quoting an apt observation in Friedman v. Highland Park: "relying on how common a weapon is at the time of litigation would be circular . . . . Machine guns aren’t commonly owned for lawful purposes today because they are illegal; semi-automatic weapons with large-capacity magazines are owned more commonly because, until recently (in some jurisdictions), they have been legal. Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity."

C. In Caetano v. Massachusetts, (3/21/2016), the Supreme Court overturned a Massachusetts decision which had upheld a state law banning possession of a stun gun. The state court’s rationale was that stun guns were unknown at the time the Second Amendment was adopted, and that they were not suitable as military weapons. The Supreme Court, in a per curiam opinion, reversed. As to the latter point, it pointed to Heller’s rejection of the proposition "that only those weapons useful in warfare are protected." As to the former, it referred to "Heller's clear statement that the Second Amendment "extends . . . to . . . arms . . . that were not in existence at the time of the founding." Heller in fact wasn’t altogether clear on that point, stating twice that the weapons protected were those "in common use at the time," the time presumably being the eighteenth century. However, the official position now seems to be as stated in Caetano.

D. In Peruta v. County of San Diego (6/9/2016), plaintiffs challenged denial of permits to carry concealed weapons, claiming infringement of Second Amendment rights. District Courts dismissed their claims, but a panel of the Court of Appeals for the Ninth Circuit reversed. On review en banc, the full Ninth Circuit court upheld the dismissals.

The majority en banc opinion noted Heller’s observation "that the Second Amendment has not been generally understood to protect the right to carry concealed firearms." It concurred emphatically after a long review of English and American legal history, concluding: "The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment." It added: "We do not reach the question whether the Second Amendment protects some ability to carry firearms in public, such as open carry. That question was left open by the Supreme Court in Heller, and we have no need to answer it here."

The en banc dissent relied on broad statements in the leading cases. "Heller and McDonald . . . instruct that the right to bear arms exists outside the home." They do this by stating that "the Second Amendment secures ‘an individual right protecting against both public and private violence,’ indicating that the right extends in some form to locations where a person might become exposed to public or private violence."

In Heller, according to the dissent, "the Supreme Court held that the Second Amendment codified an existing individual right to keep and bear arms for self-defense." Heller did say that, more or less. The dissent continued: McDonald "held that the individual right to bear arms for self-defense under the Second Amendment was fundamental and applied to the states. Although these opinions specifically address firearms in the home, any fair reading of Heller and McDonald compels the conclusion that the right to keep and bear arms extends beyond one’s front door." That conclusion was "compelled" by the assortment of loose comments in those opinions. Heller, it said, "reinforced this view by noting that the need for the right is ‘most acute’ in the home, . . . thus implying that the right exists outside the home." It added: "See also McDonald . . . ("[T]he Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home."). They do say that.

The dissent noted that "while the [Supreme] Court enumerated four presumptively lawful ‘longstanding prohibitions,’ it did not list prohibitions of concealed weapons as one of them." It also said that its list was not exhaustive.

A major issue for the dissent was that California law prohibited open-carry. Combined with that, restrictions on concealed carry could not stand. Heller, it said, "further noted that a prohibition on carrying concealed handguns in conjunction with a prohibition of open carry of handguns would destroy the right to bear and carry arms." Actually in the passage cited, the Supreme Court referred to several state court cases, one of which might be so interpreted.

E. Voisine v. United States (6/20/16), involved a federal statute prohibiting any person convicted of a "misdemeanor crime of domestic violence" from possessing a firearm. The issue was whether a conviction for "recklessly assaulting a domestic relation," as opposed to doing so intentionally, fell under the statute. The Supreme Court held that it did. Justices Thomas and Sotomayor dissented on the issue of intention.

Thomas added a dissent on the ground that the decision intruded on the Second Amendment. He offered this summary of the law: "In District of Columbia v. Heller . . . , the Court held that the Amendment protects the right of all law-abiding citizens to keep and bear arms that are in common use for traditionally lawful purposes, including self-defense." That is roughly one of the dicta in Heller, but not its holding.

F. Hollis v. Lynch (6/30/16), decided by the Court of Appeals for the Fifth Circuit, concerned the constitutionality of a federal statute that makes possession of a machine gun unlawful. The plaintiff submitted an application to the Bureau of Alcohol, Tobacco, Firearms and Explosives to manufacture a "machine gun," actually an M-16 which, as it is capable of automatic fire, is classified under the statute as a machine gun. The ATF denied his application pursuant to the statute. Hollis sued, challenging the constitutionality of the statute. The District Court dismissed and the Court of Appeals affirmed.[43]

It reviewed the Supreme Court’s opinions, in greater detail than was necessary for its holding, but that review is interesting because it reprises the confusion. Here is the Fifth Circuit’s understanding of what the Court said in Heller:

The Amendment’s "main purpose was to ‘guarantee the individual right to possess and carry weapons in case of confrontation,’ which Heller later clarified to mean ‘an individual right to bear arms for defensive purposes’," citing two of the Supreme Court’s rhetorical flights. "Heller went on to hold that because the Second Amendment is about the defense of ‘hearth and home,’ and because "the American people have considered the handgun to be the quintessential self-defense weapon[,] . . . a complete prohibition of their use’ is invalid." That is, roughly, the holding; a prohibition on their use for self-defense in the home is invalid.

However, the Court of Appeals thought that "Heller’s reach goes beyond handguns . . . because ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding’." Heller indeed contains that language; if we were to substitute it for the holding, it would remove many restrictions, including the statute in this case: a machine gun may be a bearable weapon, and the kind the plaintiff proposed to make would have been. Certainly hearth and home would be left far behind.

"Heller . . . distinguished between two classes of weapons: (1) those that are useful in the militia or military, and (2) those that are ‘possessed at home’ and are in ‘common use at the time for lawful purposes like self-defense’. The individual right protected by the Second Amendment applies only to the second category of weapons . . . ." That isn’t quite accurate. Heller referred to category (2) as being the weapons a militiaman would carry when called for duty, i.e., part of category (1). The following sentence, though, is correct: under Heller, "The Second Amendment does not create a right to possess a weapon solely because the weapon may be used in or is useful for militia or military service."

"In summary," the Court of Appeals said, "the Second Amendment protects an individual right to keep and bear arms in defense of hearth and home." Under Heller, handguns, not "arms," are protected. Two sentences later, the Court of Appeals added: "The Second Amendment protects the class of weapons that enable ‘citizens to use them for the core lawful purpose of self-defense’." Now we’ve possibly limited the range of protected "arms" to an undefined "class of weapons," but have removed the limitation of protecting the home.

The confusion continues.

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