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.

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

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