March 24, 2013

Fox News has added to the inventory of absurd excuses to arm everyone. During a discussion with Lou Dobbs on March 22,[38] someone named Angela McGlowan blurted, "What scares the hell out of me is that we have a president . . . that wants to take away our guns, but yet he wants to attack Iran and Syria. So if they come and attack us here, we don’t have the right to bear arms under this Obama administration, if he gets his way." Leaving aside the lack of any program, intent or ability to take away guns and the absence of any expressed desire to attack Syria or Iran, how does she suppose that Syrians and Iranians are going to come here, and do so in a manner that they can be defeated by small-arms fire by civilians?

Did Dobbs point out those small flaws in her argument? Hardly; he agreed and added his form of paranoia: "We’re told by Homeland Security that there are already agents of Al Qaeda here working in this country. Why in the world would you not want to make certain that all American citizens were armed and prepared?" Does he anticipate that al Qaeda will attack his house? Or does he plan to march up and down in front of the nearest power plant?

Dobbs went on to say that his notion that all American should be armed is a "right" enjoyed in Israel, and that we should have the same right. Another panelist claimed that a number of terrorist attacks in Israel have been stopped by private citizens with firearms. If so, a few of those citizens have been very active. Access to firearms reportedly is strictly limited in Israel,[39] and the notion that all Israeli civilians are armed, or that more are armed than here, or even that many are armed, is way off the mark: the US is first in the world in per capita private gun ownership; Israel, which faces real, not imagined terrorists, in one listing is tied for 79th.[40] Whatever the exact number, Israel doesn’t provide us with an excuse.

If gun nuts and others who suspect plots, fear the government, and think that they live in the less-civilized regions of the nineteenth century weren’t provided with daily reassurance that their warped views make sense, they might wake up or at least subside.

_________________________
38. http://thinkprogress.org/media/2013/03/23/1766581/fox-americans-need-assault-weapons-to-protect-themselves-from-an-iranian-invasion-al-qaeda/
39. http://news.yahoo.com/israel-rejects-us-gun-lobby-claims-security-201808159.html
40. http://en.wikipedia.org/w/index.php?title=List_of_countries_by_gun_ownership&

March 17, 2013

The opposition to gun control is baffling and, at least in most of its manifestations, it seems irrational and hysterical. It makes no sense too oppose such measures as background checks and an assault weapons ban when the potential for harm is so obvious, and the proposed restrictions are so limited. Some of the arguments for gun possession are so ludicrous that they would be amusing if not so dangerous, such as self-defense against attacks by turkeys [33] or protecting a church service from disruption by Mexicans.[34] Others are less silly, but no more persuasive. Before looking at them, let’s consider the alleged basis for opposition.

The constitution preserves the right to "bear arms," almost certainly a military reference. It makes that focus clear: "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." Militias no longer are the first line of defense, so the Amendment, properly interpreted, may be largely obsolete and meaningless. (That would not be unique: the Third Amendment, against quartering troops, is covered in dust). However, the Supreme Court, in its decision in District of Columbia v. Heller , gave it new life, in the process getting the intent and meaning entirely wrong and transforming its impact.

Ignoring precedent, logic, grammar and common sense, the Court, through the alleged originalist Justice Scalia, found that the reference to militia duty is irrelevant and that the Second Amendment instead protects possession of guns in the home for self defense. To reach that result, the Court had to overrule U.S. v. Miller , which held in 1939 that the Amendment did not protect non-militia possession. The Miller Court, almost laboring the obvious, had ruled: "With obvious purpose to assure the continuation and render possible the effectiveness of such forces [militias], the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." Apart from encouraging the anti-control forces, Heller seems to have had little effect on their rhetoric; they still rely on the militia reference when that suits, and go far beyond demanding guns in the home for self defense.

Stand-your-ground laws, enacted in many states, expand the perimeter of self-defense, essentially sanctioning lethal force anywhere one is menaced, or claims to have been. Such laws are an invitation to overreaction, irresponsibility or just plain execution; the first two are illustrated by the Trayvon Martin case. Self-protection also escalates into protecting others, but often under conditions which may create more danger than is avoided. Wayne LaPierre’s argument that "gun-free zones" such as schools should be converted into armed camps is an example. South Dakota now has enacted legislation authorizing teachers and staff to carry firearms in their schools, although the law apparently allows school districts to opt out.

The Martin case, involving a self-appointed neighborhood watchman, involves another rationale: vigilantism. This may be dressed up as a desire to help the police, or to supplement them, or more or less to replace them, on the theory that they provide inadequate protection, but posses roaming the streets won’t increase public safety.

Another element suggested by the Martin case, although not an admitted rationale, is racism. According to the Southern Poverty Law Center, "patriot groups" increased form 149 in 2008 to 512 in 2009. The level of invective aimed at President Obama indicates that the increase is not merely coincidental.

LaPierre’s shoot-it-out theory, that "[t]he only thing that stops a bad guy with a gun is a good guy with a gun," leads to proposals to permit guns in various public places, including churches, then to allowing concealed weapons anywhere, and finally to a general open-carry law, essentially proposing that we return to the Wild West, or to someone’s fantasy of it.

A variation on the theme is that if everyone packed heat, we’d all be more civilized and polite, as well as safe. Jeffery Snyder apparently has become popular with the anti-control set, through a book of essays entitled Nation of Cowards , which reproduces an essay of the same title written in 1993. (George Will wrote a sympathetic, if skeptical, review of the essay in a Newsweek column of November, 1993). Snyder quoted with approval from Beyond This Horizon , a science fiction novel of 1943: "An armed society is a polite society. Manners are good when one may have to back up his acts with his life." Will appropriately tied that quote to one allegedly describing the old West (from The Virginian , 1902): "When you call me that, smile!" "Such was politeness," Will observed, "in the armed society of 19th-century Wyoming."

There is a group called The Polite Society which, according to Wikipedia, "is an American organization that holds shooting events designed to test defensive skills with a handgun." The name is borrowed from Beyond This Horizon , and the Society emblazons the "armed society" quote across the top of its web page. It claims that its logo (top hat, cane and pistol) "reinforces [a] vision of the armed warrior gentleman (or lady)." Its targets are humanoid; the perfect "reactive" target would be one "that requires multiple center of mass shots but only a single head shot . . . ." Such is politeness in the armed society of 21st-century America.

One of the favorite excuses for opposing any controls is that they are the first step to confiscation. This ignores the absence of any such proposal, the impossibility of such an undertaking, and the Court’s gun-friendly interpretation of the Second Amendment. Nevertheless, LaPierre warned that President Obama, if re-elected, would confiscate guns.

Militias have not disappeared from the popular imagination, and while some people believe that by being armed they can somehow fulfill the role of the early militias, most of the rhetoric along this line emanates from self-styled patriots who are preparing to resist a tyrannical federal government, or the UN, or some other evil force. The gun culture and the interest in militias are mixed up with the states-rights fantasy. Of the 512 "patriot" groups identified by the SPLC, 127 were classified as militias. Many of the nullification proposals are aimed at gun control.

The League of the South, described by The Southern Poverty Law Center, as "a white supremacist secessionist group based in Alabama," issued this statement in January:

The League of the South, the premier Southern nationalist organization, will not comply with any diminution of our God-given right to keep and bear the sort of arms a free people need to remain free. This means "assault weapons" and high-capacity magazines. Moreover, we will view any attempt to deprive the Southern people of these tools as a criminal act by a criminal regime.

League President, Michael Hill, noted: "Those in positions of power who exceed the limits of lawful authority ought to be made to live in mortal fear of their transgressions. . . ."

***

The League of the South is an advocate for a free and independent South. Therefore, we understand that a free people is an armed people. And, as Hill puts it: "We intend to be free from the destructive clutches of Washington, DC, sooner rather than later, God willing. And that will necessitate us being armed to defend our liberty for those who would deny it to us."[35]

The League web site advertises a conference captioned "Southern Independence: Antidote to Tyranny." It will feature "practical workshops and speeches promoting Southern independence and practical responses to the current tyranny.[36]

There seem to be two psychological threads running through all of this. One is the notion that being armed is manly. Bushmaster, the manufacturer of the rifle which was used at Newtown, ran a promotion featuring "man cards" and an ad showing the gun and saying, "Your man card reissued." The claim that manhood equals being armed may be based on the feeling that manhood depends on being armed; much of the insistence on being armed does seem to reveal timidity.

The other theme is the frontier, or lone man in the wilderness, myth. Irving Howe, in a essay entitled "Anarchy and Authority in American Literature," addressed the tendency in literature to yearn for a more primitive condition. Discussing William Faulkner, Howe referred the notion that primitive America "was paradise, the last paradise."

For Faulkner, as for many other American writers, there is a radical disjunction between social man and the natural world. The wilderness is primal, source and scene of mobility, freedom, innocence. Once society appears, it starts to hollow out these values. And not one or the other form of society, not a better or worse society, but the very idea of society itself comes to be regarded with skepticism and distaste.

This is not an invention of authors; it reflects American beliefs:

This myth is lent credence by the hold of the frontier on our national life. A myth of space, it records the secret voice of a society regretting its existence, and recalls a time when men could measure their independence by their physical distance from one another, for "personal liberty and freedom were almost physical conditions like fire and flood."

The gun culture, the "patriot" mentality, the fear of confiscation, the paranoia about impending tyranny, the nullification and secession fantasies are what Howe saw as "anarchy,"

a vision of a human community beyond the calculation of good and evil; beyond the need for the state as an apparatus of law and suppression; beyond the yardsticks of moral measurement; beyond the need, in fact, for the constraints of authority.

***

[T]he American imagination, at its deepest level, keeps calling into question the idea of society itself.[37]

That is the state of nature, which Hobbes described as the war of all against all. In a country with well over 200 million privately-owned guns, that is not a happy prospect.

_____________________

33. http://thinkprogress.org/justice/2012/04/13/464053/oklahoma-state-senator-justifies-need-for-open-carry-gun-law-due-to-threat-from-wild-turkeys/
34. http://www.thedaily.com/article/2012/11/11/news-concealed-carry-church/. Churches are offering gun classes in order to increase attendence.
35. http://conservativetimes.org/?p=12991
36. http://dixienet.org/rights/southernpatriot.shtml
37. Irving Howe, Selected Writings, 1950-1990, pp. 103, 107, 116

February 18, 2013

Numerous articles speculate whether the Republican Party is undergoing a change in philosophy and direction or merely is contemplating cosmetic changes. The fact that Governor Jindal pleads for it to cease being the stupid party while supporting regressive tax policies suggests the latter. Although the Party as a whole is reactionary and often factually challenged, there are degrees on the right and some effort apparently is being made by Karl Rove and others to marginalize the sort of opinions and attitudes usually identified with the Tea Party "movement." That undertaking arises less from philosophical disagreement than from the belief that the hard right is hurting Republican chances at the polls; there is no indication of sudden enlightenment in the GOP mainstream.

However, in Tea Party country philosophy is all, and the folks teetering on the lip of the precipice have a new cause: nullification.[11] Actually it’s a very old cause, but old ideas are all the right allows, and mostly bad old ones. It is remarkable the degree to which politicians on the far right advance policies which are not merely reactionary but Constitutionally and historically ignorant.

The most significant flirtation with nullification in our history occurred in South Carolina. In 1832, prompted by a dispute over tariffs, that state held a "Nullification Convention," a procedure proposed by its Senator John C. Calhoun. The Convention adopted an ordinance declaring that the tariffs of 1828 and 1832

are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens; . . .

Further,

it shall not be lawful for any of the constituted authorities, whether of this State or of the United States, to enforce the payment of duties imposed by the said acts within the limits of this State; . . .

It concluded with this threat:

[W]e will consider . . . any . . . act on the part of the federal government, to . . .enforce the acts hereby declared to be null and void, otherwise than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union; and that the people of this State . . .will forthwith proceed to organize a separate government, and do all other acts and things which sovereign and independent States may of right do.[12]

The state legislature responded with preparations for resistance to potential federal coercion, including raising twenty-five thousand volunteer militiamen.[13]

The nullification crisis in 1832 passed quickly, in part because Congress amended the tariff law, but also because President Andrew Jackson issued a proclamation telling the people of South Carolina to think carefully about what the convention had proposed. He declared that its ordinance proposed "a course of conduct, in direct violation of their duty as citizens of the United States, contrary to the laws of their country, subversive of its Constitution, and having for its object the destruction of the Union . . . ."[14] As the ordinance threatened secession in the case of action by the federal government to enforce the law, nullification, in his view, was tantamount to secession.[15]

Justification for nullification seems to alternate between a theory that states are sovereign and one that places sovereignty in the people. As to the latter, a present-day advocate, Thomas Woods, put it this way: "In the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns."[16] Why not the people of the nation, as in "We the People of the United States . . . do ordain and establish this Constitution for the United States of America"? However, the nullifiers’ reference to the people may not be meant very seriously, as the same source alleges that "it would be absurd for the states, the fundamental building blocks of the United States, not to be able to defend themselves against the exercise of usurped power. The logic of sovereignty and the American Union demand it." A review of a book by Woods summarizes his view as follows: "The basic idea of nullification is that the states should formally resist unconstitutional laws. They are the partners that created the federal government, so if the federal government violates the restrictions on its actions, the states have no duty to comply. Indeed, they must resist."[17] The people merely are a smokescreen; nullification always is an attempt by a state to avoid federal law.

The South Carolina precedent certainly leans toward power in the states, not the people:

South Carolina . . . was the only state that had successfully resisted political democratization in the years since independence. By a compromise agreed in 1808, the tidewater controlled one house of the state legislature and the more populous up-country the other; large planters dominated both houses through property qualifications and local custom. The legislators in turn chose the governor and most other state officers as well as the presidential electors. . . .[18]

Not much about the people there.

It has been said that the Civil War decided several questions, among them that "United States" thereafter would be a singular term, that we are not merely a conglomeration of independent units. (The South Carolina Nullification Ordinance referred to them as "co-states.") In this spirit, Daniel Howe thought, in 2007, that after the Jackson-South Carolina confrontation, "never again would Calhoun’s theory of nullification be taken seriously enough to be tried."[19]Unfortunately, we live in a no-lessons-learned age. Accordingly, nullification bills are being considered in legislatures across the country.

Today, the principal insignia of oppression are the Affordable Health Care Act, possible firearms regulation and the domestic enforcement provisions of the National Defense Authorization Act.[20] There is widespread opposition to the last among liberals as well as conservatives, but nullification as a remedy remains a reactionary, states-rights-fantasy device.

The bills seem to have four features, in various combinations: direction to state agents not to cooperate with federal agents; criminal penalties for state agents who cooperate; criminal penalties for federal agents who attempt to enforce the federal law; and express nullification i.e., a declaration that a federal law is void in the state. Most, if not all, would run afoul of the Supremacy Clause (see below).

I’ve found only one bill which has moved as far as passage by one house of a state legislature. The Wyoming state House passed a bill which contains two not entirely consistent provisions. It decrees that

Any federal law, rule, regulation or order created or effective on or after January 1, 2013 shall be unenforceable within the borders of Wyoming if the law, rule, regulation or order attempts to:

(i) Ban or restrict ownership of a semiautomatic firearm or any magazine of a firearm; or

(ii) Require any firearm, magazine or other firearm accessory to be registered in any manner.

It also would prohibit a "public servant (presumably of the state) from attempting to enforce any federal law or regulation "relating to a personal firearm, firearm accessory or ammunition that is owned or manufactured commercially or privately in Wyoming and that remains exclusively within the bord1ers of Wyoming," and would make it a misdemeanor for a federal employee to attempt to do so. The latter provisions are not limited to laws, etc, coming into force after January 1.[21]

Although the bill doesn’t refer to nullification, its language has that effect. According to a news report, the bill "will now go to the Wyoming Senate where, with a 23-7 Republican majority, it will likely enjoy broad support."[22]

Two years ago, the Idaho House passed a bill to nullify Obamacare, but the state Senate rejected that measure as unconstitutional. There is agitation for similar action now.[23]

A bill was proposed in Mississippi which didn’t refer to any present or threatened federal law, but purported "to assert the sovereignty of the state under the Mississippi Constitution of 1890." Rather than nullification, it spoke in terms of neutralization: "If the Mississippi State Legislature votes by simple majority to neutralize any federal statute, mandate or executive order on the grounds of its lack of proper constitutionality, then the state and its citizens shall not recognize or be obligated to live under the statute, mandate or executive order."[24] The bill apparently died in committee.[25]

Our state has not escaped the epidemic. Two bills are pending here, one of which contains operative sections virtually identical to those in Wyoming quoted above.[26] For good measure, and somewhat redundantly, the Washington bill adds this declaration:

Any federal law, rule, order, or other act by the federal government violating the provisions of this act is hereby declared to be invalid in this state, is not recognized by and is specifically rejected by this state, and is considered as null and void and of no effect in this state.

The other local bill addresses itself to the domestic enforcement provisions of the National Defense Authorization Act. After a long preamble devoted primarily to a detailed analysis of the relevant federal statutes, it makes a statement of principle:

To condemn . . . section 1021 of the 2012 NDAA as it purports to . . . authorize the president of the United States to utilize the armed forces of the United States to police United States citizens and lawful resident aliens within the United States of America, indefinitely detain United States citizens and lawful resident aliens captured within the United States of America without charge until the end of hostilities authorized by the 2001 authorization for use of military force, subject American citizens and lawful resident aliens captured within the United States of America to military tribunals, and transfer American citizens and lawful resident aliens captured within the United States of America to a foreign country or foreign entity.

Thus far, the bill is unexceptionable. However, it proceeds to the interposition-rebellion level so characteristic of these measures. With certain exceptions, no agent of the state "shall knowingly cooperate with an investigation or detainment of a United States citizen or lawful resident alien located within the United States of America by the armed forces of the United States of America." Violation would be a felony. Also, with the same exceptions, no member of or person acting on behalf of the armed forces would be permitted to conduct within Washington, "an investigation or detainment of a United States citizen or lawful resident alien located within the state." Again violation would be a felony.[27] This bill does not mention nullification or expressly state that the federal law is invalid, but the effect is much the same.

All of these proposals fly in the face of the supremacy clause of the United States Constitution, which provides as follows:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.[28]

Neo-nullifiers argue that only laws made "in pursuance of" the U.S. Constitution are supreme, and that states may decide which are so made. The last half of the formula ignores logic, the role of the Supreme Court, its decisions and the language of the Constitution.

Their argument depends on a belief in the sovereignty of the states. "Sovereignty" is a loose term. It may refer merely to authority over a limited geographic area or an issue, or it may be more inclusive. The form and degree of state sovereignty which is claimed by nullifiers, that of an independent polity, is denied by multiple provisions of the Constitution:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.[29]

In addition to those limitations,

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.[30]

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.[31]

No entity subjected to those restraints can be called "sovereign" in the way imagined by nullification theory. Nullification is dangerous nonsense.

In Cooper v. Aaron ,[32] the Supreme Court ruled that a desegregation order "can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes . . ." As Justice Frankfurter put it in a concurring opinion, "Criticism need not be stilled. Active obstruction or defiance is barred." That is the lesson the neo-nullifiers must learn, and no amount of rhetoric about the Tenth Amendment will change that.

_____________________________

11. See, e.g., http://www.teaparty911.com/blog/tag/state-nullification/ ;
http://www.teapartynation.com/forum/topics/obamacare-can-be-nullified ;
http://dailyteaparty.com/2011/02/15/14-ways-the-tea-party-is-restoring-the-constitution-with-the-10th-amendment-nullification-movement/ .
12. http://en.wikisource.org/w/index.php?title=The_Federalist_(Ford)/South_Carolina_Ordinance_ of_ Nullification
13. Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815-1848 (part of The Oxford History of the United States ), p. 404
14. Proclamation of December 11, 1832: http://en.wikisource.org/wiki/President_Jackson%27s_ Proclamation_against_the_Nullification_Ordinance_of_South_Carolina
15. What Hath God Wrought , p. 405
16. Thomas Woods, at http://tenthamendmentcenter.com/2013/02/07/ is-nullification-unconstitutional/
17. http://wmugop.blogspot.com/2012/09/nullification-by-thomas-woods.html
18. What Hath God Wrought , p. 401
19. What Hath God Wrought , p. 410
20. See http://tenthamendmentcenter.com/legislation/federal-health-care-nullification-act/ ; http://www.sltrib.com/sltrib/politics/55791106-90/bills-federal-greene-gun.html.csp ; http://www.examiner.com/article/thirteen-states-currently-battling-for-anti-ndaa-legislation .
21. http://legisweb.state.wy.us/2013/introduced/hb0104.pdf . The penalty for a federal agent may be a felony; the status of that provision isn’t clear.
22. http://thinkprogress.org/justice/2013/01/31/1521151/wyoming-nullification-gun/
23. http://www.idahostatesman.com/2013/02/05/2440162/about-200-people-attend-idaho.html#storylink=cpy
24. http://billstatus.ls.state.ms.us/documents/2013/html/HB/0400-0499/HB0490IN.htm
25. http://msbusiness.com/blog/ 2013/02/05/federal-law-nullification-bill-killed-by-committee-chair/  
26. House Bill 1371: http://apps.leg.wa.gov/documents/billdocs/2013-14/Pdf/Bills/House%20Bills/1371.pdf
27. House Bill 1581: http://apps.leg.wa.gov/billinfo/summary.aspx?bill=1581&year=2013
28. Constitution Article VI Clause 2
29. Const. Art. I Section 10 Clauses 1-3
30. Const. Art. IV Sect. 1
31. Const. Art. IV Sect. 2 Cls. 1
32. 358 U.S. 1 (1958)

January 29, 2013

In his New York Times column on January 16, Nicholas Kristof related the story of two men back home in Oregon who nearly shot each other over a goose:

That goose would wander off to a . . . neighbor’s property and jump into the watering trough for his sheep. The sheep owner was furious that the water would be fouled, and one time he was so fed up he threatened to shoot the goose. He was probably just making a point, but, since he had a gun handy, he pulled it out and aimed it in the direction of the goose. Seeing this, the goose-owner (who had come to fetch his bird) saw the need to protect his property and pulled out his own gun. They faced off — over a goose!

The Twin City Star Tribune reported that, on January 13, a St. Paul man became upset that his teenage daughter brought home two Bs rather than straight As; during a confrontation over the grades, he got out his AK-47 and pointed it at his daughter (and at his wife, who perhaps made the mistake of opining that the world wasn’t ending). Dad "had recently purchased the rifle because he thought that such guns soon will be banned . . . ."⁸

These two stories illustrate one of the reasons for gun control: a gun transforms an argument over a minor matter into a life-threatening event.

On the same page as Kristof’s column was one by John Howard, former Prime Minister of Australia; it addresses another problem: mass murders by the mentally ill. As Howard told it, on April 28, 1996, a psychologically disturbed man "used a semiautomatic Armalite rifle and a semiautomatic SKS assault weapon to kill 35 people in a murderous rampage in Port Arthur, Tasmania." Howard, though leading what he calls a center-right coalition, was able to rally support for a ban on such weapons. That was not an easy task:

Because Australia is a federation of states, the national government has no control over gun ownership, sale or use, beyond controlling imports. Given our decentralized system of government, I could reduce the number of dangerous firearms only by persuading the states to enact uniform laws totally prohibiting the ownership, possession and sale of all automatic and semiautomatic weapons while the national government banned the importation of such weapons.

He succeeded. Imagine its happening here. Even with a stronger federal government, more modest reform is problematical. Howard noted that Australia had offsetting advantages:

Our gun lobby isn’t as powerful or well-financed as the National Rifle Association in the United States. Australia, correctly in my view, does not have a Bill of Rights, so our legislatures have more say than America’s over many issues of individual rights, and our courts have less control. Also, we have no constitutional right to bear arms.

I have difficulty with the notion that a Bill of Rights is a bad thing, despite Heller and Citizens United , but the Second Amendment, even as now misconstrued by the Supreme Court, isn’t the main issue; national will is. Howard makes clear that a national consensus for change was the crucial element.

The Australian program went a step further: a federally-financed buyback program. "Almost 700,000 guns were bought back and destroyed — the equivalent of 40 million guns in the United States."⁹

Enacting any sort of gun control will be difficult, but this is an urgent problem. There are in excess of 30,000 gun-related deaths, including accidents, suicides and homicides, in the United States every year. Gun deaths per capita are higher here than in Canada, Australia, New Zealand or any European country. According to one source, we have 10.2 per 100,000 population; New Zealand has 2.66, Canada 2.13, Italy 1.28, Germany 1.1, Australia 1.05. Obviously the number of guns contributes to that. Our ratio is about 88.8 guns per 100 population, by far the highest in the world. The other counties listed have these ratios: New Zealand 22.6, Canada 30.8, Italy 11.9, Germany 30.3, Australia 15.¹⁰ The ratio between gun deaths and guns ranges from 0.03 (Germany) to 0.11 (the U.S. and New Zealand), so in some countries factors other than fewer guns are part of their success in controlling gun-related deaths.

Kristof had led his column with this: "When I travel abroad and talk to foreigners about the American passion for guns, people sometimes express a conclusion that horrifies me: in America, life is cheap." I don’t think that’s the problem. Americans may indeed have a slightly lower regard for life, as evidenced by our fascination with capital punishment, but the problem in the context of gun control isn’t regard for life: gun-possession advocates claim that they are protecting life by arming everyone. The problem is that we haven’t become completely civilized. We pretend that we live on the frontier, and fantasize that the frontier was populated, and tamed, by gunslingers. Americans simply haven’t grown up.

____________________________

8. http://www.startribune.com/local/east/188377421.html?refer=y
9. Actually, the equivalent number would be even higher. Here’s the arithmetic: The U.S. has about 27,923,352 guns, Australia about 3,432,912.
700,000 ÷ 3,432,912 = .2039
27,923,352 x .2039 = 57,076,371
10. For population, see http://en.wikipedia.org/wiki/List_of_countries_by_population , and for gun ownership, http://en.wikipedia.org/wiki/Number_of_guns_per_capita_by_country .

January 14, 2013

The experiences of the past twelve years underscore the need for election reform. The electoral college is a relic, one which can deny election to a candidate who has won a majority of the popular vote. There is too much inconsistency in the administration of elections from state to state and county to county. Congressional districts are subject to partisan gerrymandering, leading this year to a House of Representatives dominated by a party which drew far fewer total votes than the opposition. ¹ States enact laws designed to interfere with voting. Pressure groups have opportunities to harass and intimidate voters. There is no federal right to vote in presidential elections. All of this needs to change. The only solution is to federalize federal elections, at least in the sense of setting enforceable standards and procedures.

The electoral college has survived despite being anti-democratic. Three times a candidate who had the most popular votes lost the election by losing in the electoral college. In 1888, Harrison was the clear winner in the electoral college despite losing the popular vote to Cleveland, so we elected the country’s second choice, but at least the system operated as designed. On the other two occasions, electoral votes were contested, but the Constitution provides no mechanism for resolving such disputes. In 1876 (Hayes v. Tilden), the outcome was decided by a commission appointed by Congress, in 2000 (Bush v. Gore) by the Supreme Court.² Neither decision can sustain scrutiny, and both elections illustrate the vulnerability of the system to abuse.

The electoral college supposedly was adopted in part because it would produce a choice between obviously qualified candidates by leading citizens.³ That illusion was dispelled early. In fact, the electoral college has a disreputable history. It was devised by the founders as part of the compromise which accommodated slavery. Allocation to the states of seats in the House of Representatives was based on population but, as an inducement to the southern states, each slave was counted as three-fifths of a person, even though slaves could not vote. Therefore the votes of southern whites were multiplied. The electoral college allocated to each state a number of electors equal to its number of representatives plus two for its senators, so again slave states were favored. That history alone should disqualify the continued use of the electoral system.

There are, admittedly, two problems with a popular-vote system. Vote counting is much faster now than in the past, but except in blowout elections, the result might not be known for some time. Also, in numerous elections, where there have been multiple candidates, the winner of the electoral vote did not win a majority of popular votes, although winning a plurality.⁴ We could simply declare the winner of a plurality of votes elected, or conduct a runoff election. The latter would be more decisive but would leave the outcome in doubt for longer than probably is wise. An "instant runoff," in which voters pick first and second choices, would be better.

As one scholar has pointed out, a majority of the amendments to the Constitution adopted since the first ten (the Bill of Rights, ratified in 1791) have dealt with elections or terms of office.⁵ The original system having been so thoroughly modified, there is no reason to preserve the anachronism of the electoral college.

Abolishing the electoral college would require a constitutional amendment, but it could be neutralized by a device known as the National Popular Vote (NPV). Here is a summary by a supporter:

The concept is simple: individual state legislatures pledge that they’ll assign all of their electoral votes to whichever candidate wins the national popular vote — conditional on enough other states following suit. Once a majority of the nation’s electoral votes rest in states that have passed NPV measures, the laws go into effect and winning the popular vote becomes the only way to win.

(According to the NPV web site, nine states with 132 electoral votes (of 270 required) have passed such legislation). However, there is this problem:

This elegantly exploits one of the perversities of our current system—there’s no individual, federal right to have your ballot counted—and turns it against the system itself.⁶

Establishing a federal right to vote for president should be one of our goals.

Even more important than changing the method of election is to set and enforce federal standards for the conduct of elections. Such matters as eligibility, registration, identification requirements, early voting, polling place availability and hours, and protection of voters from interference by "observers," must be standardized, and so must congressional redistricting. Apart from the last, improved technology may be the answer, by creating some sort of computerized voting, which might also solve the slow-count problem. Voting by mail would solve some of the problems, but it exacerbates the delay in counting, especially if, as in Washington, votes are not counted as they come in, but are held until the close of the voting period. Redistricting must be removed from the partisan whims of state legislatures.

Most of the reforms apparently could be accomplished by legislation. Article I, Section 4 of the Constitution provides:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

(The provision regarding senators was rendered moot by the Seventeenth Amendment). Congressional districting might be considered an exception, but the matter already is subject to federal control; a federal statute requires that states be divided into Congressional districts, that Representatives be elected only from those districts, and that no district may elect more than one Representative. ⁷ Setting standards for, or even administering, redistricting would not be a conceptual or constitutional leap.

Eliminating or modifying the presidential electoral system, and creating a federal right to vote for president, will require a Constitutional Amendment. Until there is enough support for that, the NPV scheme may be the best choice.

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1.Democrats drew 1,362,351 more votes than Republicans in November, according to a count final as to 49 states. See http://en.wikipedia.org/wiki/United_States_House_of_Representativeselections,_2012 or http://thinkprogress.org/justice/2013/01/02/1382471/thanks-to-gerrymandering-democrats-would-need-to-win-the-popular-vote-by-over-7-percent-to-take-back-the-house/
2. However, only Tilden had a majority of the popular vote, 51%; Cleveland had 48.63%, Gore 48.4%.
3. See Federalist No. 68.
4. These include Polk (1844), Taylor (1848), Buchanan (1856), Lincoln (1860), Garfield (1880), Cleveland (1884 and 1892), Wilson (1912 and 1916), Truman (1948), Kennedy (1960), Nixon (1968), Clinton (1992 and 1996). See http://presidentelect.org/e1976.html .
5. Michael Dorf, "We Need a Constitutional Right to Vote in Presidential Elections," http://writ.news.findlaw.com/dorf/20001213.html. The list includes Amendments 12, 14, 15, 17, 19, 20, 22, 23, 24 and 26.
6. Quotes from Katrina vanden Heuvel "It’s Time to End the Electoral College," 11/7/12: http://www.thenation.com/blog/171115/its-time-end-electoral-college#. The NPV solution treats a plurality of popular votes as the test for election. See http://www.nationalpopularvote.com/ .

7. See US Code §2, which also specifies the time of election, and provides: "All votes for Representatives in Congress must be by written or printed ballot, or voting machine the use of which has been duly authorized by the State law. . . ." Those rules apply Article I, Section 4 as to time and manner of holding elections.

December 26, 2012

There was yet another shooting on Christmas Eve; the victims this time were firefighters responding to a fire set by the killer. The Newtown killings ten days earlier had prompted serious debate, and this additional incident — and no doubt more to come — may create the bare possibility of useful action on gun control. I set out my thoughts on that subject on June 14 and December 15; I won’t repeat them here, but will address a different point.

The NRA and its surrogates are in panic mode, as evidenced by a speech by NRA VP Wayne La Pierre at a "press conference" on December 21. Arming everyone, or at least someone in every school, is the only solution, according to him; certainly easy access to guns doesn’t pose a danger. Because guns can’t be a cause of so many deaths by shooting, the NRA must look elsewhere, and has decided that we are corrupted by the depiction of violence in movies and video games. That theory has been mocked on the left; below is an excerpt from an article on Think Progress captioned "The 10 Craziest Statements from the NRA Press Conference." (I’ve presented the statements in the order spoken by a Pierre; the article rearranged them, as shown by the paragraph numbers).

(2) There exists in this country, sadly, a callous, corrupt and corrupting shadow industry that sells, and sows, violence against its own people (9) through vicious, violent video games with names like Bulletstorm, Grand Theft Auto, Mortal Kombat and Splatterhouse. And here’s one [projected on screens]: it’s called Kindergarten Killers. It’s been online for 10 years. How come my research department could find it and all of yours either couldn’t or didn’t want anyone to know you had found it?

(7) We have blood soaked films out there like ‘American Psycho’ and ‘Natural Born Killers’ that are aired like propaganda loops on Splatterdays, and every single day. A thousand music videos — and you all know this — portray life as a joke, and they portray murder as a way of life.

(10) Isn’t fantasizing about killing people as a way to get your kicks really the filthiest form of pornography?

(8) In a race to the bottom, media conglomerates compete with one another to shock, violate and offend every standard of civilized society by bringing an ever-more-toxic mix of reckless behavior and criminal cruelty right into our homes every minute, every day, every hour of every single year ⁹⁰

Those are not crazy comments. True, they are part of an attempt to divert attention from the role of guns in murder, but regardless of the source, they raise an issue which needs to be considered. I can’t offer any comments on music videos, having virtually no exposure to them. The same is true as to direct experience of violent movies and games. However, I see ads on television for video games and movies, and trailers for films in theaters, and they do indeed seem to feature gobs of violence, gratuitous violence. Experts seem to differ on the effect, and we are told that there is no direct evidence of increased violence due to these influences. At the risk of sounding anti-intellectual, I recommend using a little common sense: being awash in violent entertainment can’t be a good thing; a violence-is-fun culture is more likely to produce violence than a more peaceful one. One response will be that most people are not driven to violence by entertainment. That misses the point: mass and/or random killings are not the work of the well-adjusted.

Neither gun control nor restriction of violent images would be easy; both raise Constitutional issues, as that document currently is interpreted. The former would be less difficult, both because there is more room left by the Court’s view of the Second Amendment than of the First , and because it would be politically less difficult, especially if limited to such measures as outlawing assault weapons and rapid-fire clips.

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90. The article is at: http://thinkprogress.org/justice/2012/12/21/1372001/the-10-craziest- quotes-from-the-nra-press-conference/ . Here’s a video of the press conference: http://www.nytimes.com/video/2012/12/21/us/ 100000001969743/nra-calls-for-armed-guards-in-schools.html #100000001969743 .

December 15, 2012

On December 11, a gunman killed two, wounded one and then killed himself in a mall in Clackamas, Oregon. The Seattle Times responded with an editorial captioned "Put the Oregon mall shooting in perspective." Its perspective is that we shouldn’t be upset: shopping malls rarely are the venue for deadly gunfire and only a small fraction of the people at the Clackamas mall were killed; the shooting "is not . . . a reason to be intimidated."

The Times seemed to deplore the media attention to the event: "A shooting is news. It should also be news that the rate of murder in America has fallen wonderfully in the past 20 years. . . . And while random murders in public places get big attention, few murders are random. Retail districts full of holiday shoppers are some of the safest places there are."

One of the perspectives the Times might have noted is that the country is awash in firearms. By one standard, beloved of Fox News, it would have been bad taste to mention that during a period of mourning, but talking about gun control couldn’t have been less sensitive than the Times’ advice to get out and shop. If we were having an ongoing dialogue about gun control, suspension of the discussion for a period after a shooting spree might be appropriate. However, we aren’t having that debate, and the only time anyone focuses on the problem is in the aftermath of killing. Almost as if to mock the Times ’ complacency, on Friday a gunman entered the Sandy Hook elementary school in Newtown, Conn., and killed 26 students and teachers before committing suicide.

The paper addressed the Sandy Hook massacre this morning with a brief editorial comment notable for its evasiveness. "Once past the initial shock and grief that comes with deadly rampages in a single week, the public will demand a sober conversation about violence against innocents." Should that conversation include proposals for gun control? Well, no. The Times mentioned the Clackamas and Sandy Hook shootings, but added a reference to an attack by "a knife-wielding man" in China. "Reality will hopefully trump old rhetoric about violence and weapons," we were told, the message apparently being that taking away guns won’t eliminate violence. Of course it won’t, but it surely will reduce the number of dead. (The editorial neglected to mention that there were no fatalities in the China incident).

The Times managed to find the common element in the incidents to be that "they took place in innocuous settings — shopping malls, schools — with innocent victims," which doesn’t suggest any plan of action. Accordingly, the editorial’s conclusion — "Saying and doing nothing is not an option in the face of so many funerals and grieving families" — is devoid of content, and ludicrous given its refusal to mention guns.