Morning Fog

Second Amendment - The Truth Of Context

Anyone who read my last post might suppose that I'm a rabid advocate of absolute gun control.  I'm not.

Growing up in various places around the country (and in a military environment as well) I know that every farmer has a gun rack in the back window of his pickup, and in it, a couple of guns for shootin' varmints (a term loosely defined).  I know a lot of people who hunt and I don't see anything wrong with that.  My dad never hunted, so I never picked up the habit, but hunting is as old as man.  And, I understand that there are other reasons to own guns -- for self-protection, or (let's face it) for the occasional murder or bank robbery too.   No problem! (Except for the murder and robbery part.)

On the other hand, as I demonstrated in yesterday's article, none of these uses of guns has any basis in the Constitution.  They are neither forbidden, nor regulated.  That's also true of automobiles, pharmaceuticals, poisons, and health insurance.  In short, the Constitution leaves up to us, and to our governments, which operate for our general good, to decide how to handle all these elements of modern life.  The good news is that guns, drugs, cars, insurance, and poisons are widely available for all who have perfectly rational reasons for wanting them.  In short, regulation is not denial.

The bad news is that of all these examples, only guns are largely unregulated.  That's dumb, because guns are dangerous (probably more dangerous than insurance).  If you want to believe that "guns don't kill people," that's OK - except maybe for those (often kids, or those with the mind of a child) who get killed playing with guns, or while cleaning them; and maybe also for all those police who are killed in the line of duty by criminals.  Or possible suicides who might think twice if it weren't so easy to get a gun.  Cars don't kill people either, I guess - drivers do! But we do regulate driving, giving drivers a test, attempting to keep habitual drunks and reckless drivers from behind the wheel, and setting different standards for a license to drive a semi than for a Smartcar.  

In interpreting the law, some judges deny that context has any bearing.  But I think the second Amendment is a perfect example of why we need context.  We need context to tell us that the authors of the Constitution were thinking of militias when they penned this part of the Bill of Rights, so there is no constitutionally guaranteed right for the average citizen to own guns at all.  We also need context to tell us that even in the mostly agrarian society of the late 1700s, as now, many people in this country owned and used guns.  It was so common that no one would have thought to mention it, any more than the right to own a pig.  The first context shows why no guns, not even those of the "militia," are exempt from regulation; the second part demonstates why nobody has sought to prohibit guns generally, or ever will.

So let's get on with reasonable measures:  registration of guns; controls that might make it harder for a kid to kill himself accidentally; preventing drunks, druggies and convicted criminals from owning guns; and higher standards of licensing and background check for the purchase of guns that go far beyond the needs of hunting or personal protection:  military weapons, automatic weapons, rockets, grenade launchers, and the like.  

Second Amendment - Chicago's Guns

Predictably, the gun lobby is prepared now to try to shoot down limitations imposed on weapons ownership by Chicago and some of its suburbs.  Their limits are similar to those the supreme court struck down more than a year ago in the District of Columbia, but that decision was based on the District's status as a federal district; the case in Chicago would apply the Court's nullification to state and local governments as well.

We shouldn't be sidetracked by the supposed falling out between the Libertarian Party and the National Rifle Association who are arguing the case (mentioned, and almost certainly exaggerated, in an article today in the Washington Post).  Both these groups, regardless of their differences over the legal grounding, are completely against any control.

A truly conservative court - one that wanted to honor the letter of the Constitution - would not even take the Chicago case after reading the actual wording of the Second Amendment:

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.

That's pretty clear, especially if we keep in mind the historical context.  Most Second Amendment fans like to leave out the annoying first half, but there it is:

• First, the right to bear arms exists in the context of a "well-regulated" militia, so regulation is embedded in the document itself.
• Second, all of this is in the context of the security of a free State, so you folks who want to "protect your loved ones," or to go hunting, just don't have a dog in this fight.
• Third and finally, the word "state" is very important, since the Founders envisioned the union as a collection of states, and the term is used consistently in the Constitution to refer to one of the constituent states of the union (NOT the union itself). Clearly, the states do have authority to regulate the militia and anyone who might wish to become a part of it, which puts a big hole in the Libertarian/NRA case coming before the court now.

Q.E.D.  An informed, commonsense citizen can easily see that the court would never annul Chicago's regulations.  But I don't think that will be the outcome.  I take for granted that the court's decision will be to find a reason to declare the Chicago laws unconstitutional.  The NRA is not a lobbying group for gun owners, it's a lobbying group for the gun manufacturers, who find gun owners useful as their tools (as in politics, lies and exaggerations help them a lot in this endeavor).  And any doubt as to where the Roberts court stands when a big business is involved should have been dispelled by their decision on corporate political advertising.

Boston Moves To Dixie

Here's an idea whose time has NOT come:  Virginia state legislators are setting an "example" for the nation, busying themselves passing bills (three different ones) that would "make it illegal to require individuals to purchase health insurance."  A number of Democrats in iffy districts were evidently stampeded across the aisle by the "tea-party" movement to vote with Republicans and pass these idiotic and shameful bills.

Idiotic?  Yes, since of course if such a requirement were a part of federal legislation, these bills would themselves be illegal.  And if the politicized Supreme Court were to decide the federal requirement was unconstitutional, these self-indulgent little lawlets would have no standing either.  (My guess is that the Roberts Court would not strike down the mandate, which benefits big health care and insurance companies.) 

Of course, the bills are designed not as law, but to have a political chilling effect and to express a view.  It's the view of a noisy minority whose actions if successful would unwittingly serve, not to declare liberation from an oppressive regime, but effectively to paralyze government and turn the whole country into California.  Some may say that's what they want; but they would not care to live with the result.

Shameful? Yes, Virginians ought to be ashamed of these posturing politicos.  The tea-party movement, despite its name, doesn't fit in the historical or philosophical framework of the U.S. war of independence.  It's a much better match for some of the most heinous moments in history.  The raucous disruption of political gatherings, for example, belongs squarely in the playbook of the Nazis in the early 1930's as Hitler schemed to seize power. 

Virginia politicans in particular ought to recall another shameful moment in history.  This is the Virginia that can't think of any better tourist attraction to advertise in its Richmond motel rooms than being the former capital of the Confederacy; the Virginia where every other highway, park, statue, and public building is still named either "Lee" or "Jeff Davis"; and the Virginia that had as its official state song until just a decade ago, "Carry Me Back to Ol' Virginny," with its talk of "darkies" and such (and no new state song has been chosen).  The efforts to preempt federal legislation with defiant rants in the halls of state capitals is from the Civil War playbook, one with which responsible state assemblymen ought to refuse to be associated - even as they're running like frightened rabbits from the fox (or the mad hatter).

The linked article above helpfully shows who voted in favor of these bills, and I reproduce it here - 18 Republicans,5 Democrats.  If one of them is your state delegate, you might think about sending him/her a note.

Yeas: 23   Charles J. Colgan (D-Prince William), Blevins (R-Chesapeake), Emmett W. Hanger Jr. (R-Augusta), R. Edward Houck (D-Spotsylvania), Robert Hurt (R-Pittsylvania), Stephen H. Martin (R-Chesterfield), Ryan T. McDougle (R-Hanover), Jeff McWaters (R-Virginia Beach), John C. Miller (D-Newport News), Stephen D. Newman (R-Lynchburg), Thomas K. Norment Jr. (R-James City), Mark D. Obenshain (R-Harrisonburg), Phillip P. Puckett (D-Russell), Frederick M. Quayle (R-Chesapeake), William Roscoe Reynolds (D-Franklin), Frank M. Ruff Jr. (R-Mecklenburg), Ralph K. Smith (R-Roanoke), Walter A. Stosch (R-Henrico), Richard H. Stuart (R-Westmoreland), Jill Holtzman Vogel (R-Winchester), Frank W. Wagner (R-Virginia Beach), William C. Wampler Jr. (R-Bristol), John C. Watkins (R-Chesterfield)

Two Good Reads

I may be a little short of time today, so for now I'll just point to two good opinion columns on two issues I've blogged about lately:

See Fareed Zakaria's "Obama Should Act ... Like a President" concerning the need for a revised political framework in President Obama's interface with the public, and

See E.J. Dionne's "Supreme Court Ruling Calls for Populist Revolt" concerning the egregious Supreme Court decision that broadened the power of Corporate America to influence the political process on which it already exerts a heavy thumb.  In particular, Dionne summarizes some of the ideas being considered in Congress to attempt to limit the effects of the decision.  In addition, I'd propose that (if it doesn't already exist) there should be an annual financial disclosure statement required from each of the Justices. 

Supreme Court Seeks To Obsolete Itself

Here's a headline that appeared today: "Supreme Court rejects limits on Corporate Spending in Political Campaigns."  Well, of course they did.  What else could be expected from the Roberts court?  Especially when they took the unusual step of reaching out to consider this issue when nothing required them to do so? 

I won't reiterate here the reasons I think this predictable       
decision is poppycock (and I don't mean the candied   
popcorn treat by ConAgra), but you can read them here.   

The problem, of course, is that corporations, if not restrained, have so much greater financial power than any small group of citizens that they can completely dominate political discussion.  We need look no further than the public debate on health care to demonstrate this. 

Further, in giving corporations free rein to spend their money to advocate for one candidate or another, the Court effectively grants them license to infringe the free speech of two groups -- those who, through corporate spending, could be denied access to the print and electronic media, AND their own stockholders, not all of whom might condone the company's promoting a candidate whom they (stockholders) do not approve.   Stockholders might have some recourse to challenge spending by their corporation, but only to a very limited degree.)

Today's decision, which reverses a host of precedents as recent as six years ago, is a clear case of the "judicial activism" conservative jurists and politicians profess to deplore.  Realistically, though, we all know that if a decision goes in the direction you prefer, it's not "activism" but "what the framers intended."  This special effort by the Court to reverse precedent -- clearly with anticipation of what the decision would be -- further sullies the Court's already tattered reputation for wisdom and impartiality.  Ultimately, with a few more artful judicial interpretations, I suppose we'll have corporate execs making our legal decisions for us too; then we won't need the "Supremes." 

Taking Health Reform To Court

Republican threats to defeat health care reform legislation by taking it to court as "unconstitutional" are once more in the news.   This line of argument is spurious; I have no reason to revise what I said earlier about it, but I might add a couple of thoughts: 

Most of the attention centers on the "mandate" - the requirement that everyone must obtain health insurance or pay a fine.  When the Constitutionality issue arose earlier, most experts simply noted that it didn't seem much different from the requirement to get automobile insurance and would be justified by the "general welfare" provisions.  So Republican detractors changed course a bit, and some now profess to see an issue with the government requiring people to acquire a product from a single private commercial entity.  One of them has said it would be like requiring everyone to buy a Chevy every year.

This seems a strange argument for Republicans, the party that so adores private enterprise, and that has opposed a lot of the health reform efforts precisely because they threaten the profits of major companies in the health care sector.  Besides, actually a person can obtain insurance from any number of companies, not just one (as is also the case with health insurance) so the whole basis for the claim disappears.

On the other hand, if we take the complaint seriously, it would seem to strengthen the case for creating the public option.  Surely, if the issue is that citizens would be forced into a transaction with a private concern, the solution is to be sure that they have the option to obtain insurance from a government source, right? The public option was designed to be open only to those who couldn't obtain insurance elsewhere, so it seems like a good fit.  But then, if they don't want the public to be forced to buy commercial insurance, why on earth were those Republican lawmakers so angrily opposed to the public option? 

Gosh, I just can't make any sense of that!  And there, of course, is the point - the argument is cramped, illogical, and circular because it's a desperate, last-minute grasp for a straw, any straw, to defeat legislation that the country needs, which the public wants, on which the health "industry" is split, but which the GOP believes must be quashed because... because...?   Well, let's let them provide the answer to that one; they haven't done so yet.

My one concern is that all this desperate posturing, if successful, has a tendency to politicize the Supreme Court.  Again, that's something the Republicans say they don't want, yet the Court's intervention in the 2000 election embroiled the Court in partisanship and badly damaged its reputation.  We should hope the Court has enough wisdom not to accept the case, if it comes to that, for another rancorous, politically-charged case within one decade would pretty well wreck its authority, regardless of how it decided.

New York Terrorist Trials

The Obama Administration has decided to try a handful of the Guantánamo detainees in civilian courts in New York City.  While I'm sure this was a difficult decision for Attorney-General Holder and others, it seems to me the correct one.  It fulfills an Obama campaign pledge, it begins the process of extracting us from a Cheney-Bush mistake that made a mockery of our justice system, and it reaffirms that we're a nation of laws.  Could this possibly be controversial, and if so, why?

According to many Republican politicians, it can be and is.  If we take the word of House Minority Leader John Boehner, for example, their reasons lie in the realms of security (what if there is violence because of the trials?), publicity (what if the accused use the media to get attention for their views?) and incredibly, the possibility that the plotters might be found innocent, due to some "legal technicality."  (My emphasis, Boehner's words.)  

I'm dumbstruck by this line of argument.  Can the Republican Party, the voice of conservatism, the self-proclaimed defender of the U.S. Constitution and the American tradition which includes the rule of law, really not see how the other option (trial in closed military courts without the "niceties" of civilian rules of evidence) flies in the face of that tradition? 

Maybe Boehner should have a look at some of those old Ronald Reagan and John Wayne Westerns, in which the local sheriff stands alone to keep the lynch mob away from his prisoner, even if there might be some violence, or publicity for the prisoner's side of the story, so that the varmint can have a fair trial and maybe, just maybe, even be found innocent.  This is a drama that's playing out today, with a new cast:  Obama as the sheriff, Holder maybe as his stalwart deputy, the town-hall objector crowd as the mob and Boehner, apparently, as their spokesman.  In a saner, less partisan world, the GOP should be the old drunken has-been lawyer in town who is prevailed upon to sober up, break open his dusty old law books, and defend the accused.

The concern that Khalid Sheik Muhammed and his four partners in crime might be found innocent particularly attracts my attention, for that normally is cited as one of the strengths of our legal system.  

I wonder if anyone recalls the Angela Davis case back in 1970-72.  Ms. Davis, a Communist, a Black Panther, definitely a radical, was arrested in a case involving the murder of a judge.  She, her lawyers, and other supporters claimed at the time that she could never get a fair trial, yet she was acquitted.  The charges and countercharges surrounding the trial, in a period of intense left-right partisanship not so different from what we are experiencing today, were heated, and they were front-page news.  I suppose the verdict upset the right-wingers of the day, but I always thought it showed the strength and resiliency of our legal system.  Reading the Wikipedia article on Angela Davis today (link above), it's just amazing to see how short and matter-of-fact the paragraph about this trial is, compared to the furor it sparked at the time. We might conclude that the verdict averted a situation in which Ms. Davis might have become a martyr, or her trial might have touched off more controversy, or even violence -- and that's also a strength of our system.

The politics of the New York trials is clear.  The main difficulty in Holder's decision was concern about the political fallout from the mob.  Today's Republicans oppose anything and everything done or proposed by the Obama administration.  If that's a viable strategy at all, it shouldn't be applied in a way that weakens our commitment to the rule of law.  And (to address another GOP bugaboo I've heard), it's our law, and our tradition, that we want to preserve.  We're not doing this for a bunch of "furriners," but for ourselves. 

Last but not least, I should note there's another source of opposition to the Holder decision. At least some of the relatives of the 9/11 victims also object, evidently on pretty much the same grounds.  Those who do can be forgiven for their emotionalism, but for them there's a principle that should always apply:  the victims of a crime do not, and should not, have any influence in how justice is meted out. 

Getting Cross Over A Cross

Those sons-of-guns on the Supreme Court seem to have consciously waded into a number of more-controversial-than-usual issues for the coming term, going on a tear through the Constitutional Amendments, one by one.  Regarding the First Amendment, the vehicle is the fight over the cross erected in the Mojave Desert 75 years ago to commemorate veterans of WWI.  Because it stands now on "federal" land (a nature preserve), its presence has been challenged by the ACLU and others.

I'm not a deeply religious person (OK, to be honest, I'm not even a shallowly religious person), I am fully in favor of separation of church and state.  Yet I've never been particularly offended by crosses in the desert (public land or not), or on gravesites; crèches at Christmas don't enrage me; and I can ignore the outward signs of other people's faith when they're not hitting me over the head with them.  Maybe that's why I can see this case has nothing to do with the "separation" issue.  This case doesn't belong in the Supreme Court, or in any court. 

It's a matter of history.  At the time this cross was erected in 1934, our society was far more religiously homogeneous than it is today; for those relative few who weren't Christian at that time (e.g. atheists, Jews, probably even a few Muslims), there wasn't much recourse.  The dangerously quaint Justice Scalia (who by some accounts is exasperated by the suggestion that the cross does not symbolize a final resting place to Jews or Muslims) would have fit right in back then; his mode of thinking was the majority view.  It isn't any longer. 

It seems to me we have to let history be history.  Throughout parts of the Balkans where the Ottoman Empire held sway for hundreds of years, Muslims obliterated the faces of ancient frescos in countless pre-Ottoman churches and monasteries; when the Ottomans took over "Constantinople" from the decaying Byzantine Empire, they turned the Cathedral of St. Sophia into a mosque (and later a museum); in 2001, in Afghanistan, the Taliban demolished the ancient Buddhas of Bamyan; and of course, throughout the U.S. and Europe, countless Jewish gravestones have been vandalized.  Today, we consider these acts as desecration and intolerance. 

Would the removal of this Mojave cross (or even some wacky transfer of ownership of the land) be any different?  Not a whit.  The ACLU and their allies are wrong on this one.  But so is the Supreme Court, in taking up this case, if the Justices seek to draw any conclusions regarding the First Amendment or church-state separation.

It's a far different matter nowadays, when the issue is whether new religious imagery should be erected in/on property of the U.S. or a state government which is charged to represent all citizens.  In 2009, the answer is clearly "no."

Taking Sight On Guns

A group of 450 city mayors has petitioned the federal government to provide the funds and personnel (mainly for the Justice Department's Bureau of Alcohol, Tobacco, and Firearms, or ATF) that would make possible real enforcement of laws already in force to control illegal weapons.  The suggestions would seem to offer an encouraging, practical route toward progress in controlling some of the worst weapons abuses.   Yet, sad to say, I see a few obstacles in the path:

According to the mayors' request, the enforcement of these existing laws is something all parties to the "gun debate" support.  Really? Even the NRA?  I have my doubts; if the NRA has ever really supported the idea, I can only believe it's because they assessed it as a non-starter, knowing that the money for enforcement wasn't there.  I'd be shocked if the NRA got behind this petition, but let's wait and see.

The petition comes at a time when the federal government budget is under huge pressure:  war, health reform, economic recovery, jobs.  So much to do, so little money.  Is it likely that anyone will now break loose funding for ATF that hasn't been available in the past when times were good?

Last but far from least, of course, is the Supreme Court's recent decision to take up a case challenging gun laws in Chicago.  There can't be much doubt about what the Supremes' ruling will be, given their recent overturning of similar regulations in the District of Columbia.  While this issue isn't directly related to the laws the Mayors seek to have enforced, it certainly will raise a veil over any action involving the Second Amendment.

In short, Mayors, if you're really serious about this petition, don't hold your breath.   

Full Moon Crazy 5: Roman Polanski

The last of five vignettes on events that demonstrate the weirdness a full moon can bring on...  

And finally, the strange case of Roman (or Roamin', as the case may be) Polanski.  Weird guy, yes.  Pled guilty to rape of a minor, yes.  Put one over on the authorities and took French leave, yes.  I suppose legal authorities in California are within their rights to try to bring him to justice, yet the question "why now" does arise.  I believe the real reason is that he made fools of them.  The parallel to Bush 1, Sadam Hussein, and Bush 2 is clear. 

I don't mean to defend Polanski; it may indeed be just and proper to pursue extradition and prosecution of Polanski now.  Those involved, however, should also see the other side of the coin:   The effect of our using extradition treaties to pursue cases that are viewed abroad as extreme will be to weaken extradition treaties.  Countries already unwilling to extradite to the U.S. because we have the death penalty will be less willing to honor agreements, or to negotiate new ones.