Because There's No Danger So Slight That It Isn't Worth Sacrificing Liberty to Prevent

Here's the set up.  Joe Nocera, liberal columnist in the Times, invites Dan Baum a self-described liberal and "gun guy" (author of Gun Guys: A Road Trip) to debate (in Joe's column) guns and gun control.

Baum's not Wayne LaPierre.  He describes the N.R.A. as "a hideous organization."  He's comfortable with requiring gun locks and punishing gun owners (assuming you can identify them, since he disapproves of registration) whose guns weren't locked up and get stolen and used in crimes.  He wants folks who carry guns to be well-trained.

I think somebody who wants to carry a gun should be at least as well trained as the police. Right now, for example, if I wanted to carry a gun, my permit would be good in 30 states. But in every state it’s different. I can wear it in a restaurant in this state, but not in that state. In this place, I can take it near a school, but in that place I can’t. Flip the script. Say, “If you get licensed to carry a handgun, you can carry it anywhere. But you have to be trained at least as well as a police officer.” Do you worry when there’s a police officer in your kid’s school? No. You trust the police officer. Trust gun owners. Raise everybody’s level of responsibility instead of treating them like children. It’s getting us nowhere. 

Of course, we could point to serious evidence that the cops aren't all that well-trained, so he's not exactly setting the bar high.  Still, he'd set it.

But this isn't a post about what's wrong with guns.  I've made my position clear (I hope) before.  I hate guns.  I'd be a much happier camper if there were none.  Confiscate and destroy all 300 million in private hands.  And take them away from the cops, too.  But it won't happen, and the Constitution, through the Second Amendment, says it shouldn't.  

And one more time (because I've said it a number of times before), the Second Amendment isn't about protecting the right to hunt or shoot skeet or protect yourself and your loved ones from grizzly bears or burglars or Indians.   It's about having weapons to protect yourself from the government - and to engage in revolution against that government.  (Of course, the Five Who Decide in Heller didn't say that.  Because they are the government, after all, and because they like to protect themselves against burglars and to go hunting with the Veep.)

All that is, as I said, the set up.  This isn't a post about Baum or gun rights or the N.R.A.  It's about something closer to how Phil Ochs described liberals:

Ten degrees to the left of center in good times.  Ten degrees to the right of center if it affects them personally.

It's about silly ideas like banning the Big Gulp.  And it's about, really about, the anti-civil-libertarian liberal's belief that there's no risk so slight that it isn't worth losing our liberty over.

Baum apparently argued in Gun Guys that a focus on banning assault weapons was misguided (or worthless or silly or something) because, says Nocera, "very few people are killed with them." Which leads to this.

DAN: That is true. They’ve been used in these big high-profile mass killings, no doubt about it. But there were no assault rifles at Virginia Tech or Fort Hood.

JOE: But assault rifles were used in Aurora and Newtown. And here is my larger point. When I talk to gun absolutists, they claim that we shouldn’t make such a big deal out of mass shootings because they are statistically insignificant. But so what? We have turned this society upside down because 3,000 people died on 9/11. In the scheme of things, that number is also statistically insignificant. Yet we take extraordinary measures, limiting people’s personal freedoms, to prevent another act of terrorism on our soil. Besides, we enact regulations all the time designed to keep people safe, even when the number of people who have been harmed is small. 

And what's striking is that Nocera hasn't a clue about why that's a problem.  Forget the merits of banning assault rifles (and please, forget the arguments about whether the weapons at issue are actually assault rifles).  Focus instead on the point.  It's ok, desirable, vital even to "take extraordinary measures, limiting people's personal freedoms" to protect against statistically insignificant risks. 

Ben Franklin put it well.

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

And then there's Ochs.

Dealing with the Distraction

I really didn't want to write this post.  What I wanted to do was write about A Wilderness of Error: The Trials of Jeffrey MacDonald (I'd promised in a comment here that a review was coming) and pursue in epistemological and practical and legal terms questions of truth, belief, knowledge, and proof.

And I will do that.  Just not today - in fact, probably not till after the new year.

Because it seems that for right now I have to talk about guns.  I don't want to.  Really I don't.  But there's just no getting around it.

It starts with Norm Pattis who explained the other day that he wants to go after guns and gun owners and gun manufacturers, to regulate them like we regulate cigarettes* with the goal of eliminating all or nearly all guns.  That led Matt Brown to respond by pointing out that guns are a mechanism, but if we want to find ways to prevent the sort of thing that happened at Sandy Hook Elementary (or a movie theater in Aurora or a strip mall near Tucson or a university in Virginia or a high school in Columbine or a sign manufacturer in Minneapolis or a church in Pennsylvania or a mall in -- my god this happens a lot) we have to get at causes not just tools.

So let's talk about causes for a bit.

Here's what little we know for sure.

1. Most people don't go on killing sprees, don't become mass murderers.  Really, they don't.  And in fact, most of us will never be at more than a theoretical risk from someone who does.  (The theoretical risk is that it can happen anywhere, anytime, so in theory we're all at risk, though the risk is vanishingly small - which is, of course, no comfort to those for whom the risk becomes horrifyingly real.)
2. Some folks want to call the people who do those things evil, but that gets us nowhere, tells us nothing useful.  Call them evil and there's no point in looking for cause.  They just are.  The Bad Seed.  There's nothing to be done. Might as well sit back and let God zap 'em.  Except She doesn't. 
3. The people who do this stuff, have mental health issues.  Maybe something that falls neatly into a DSM category.  Perhaps psychotic delusions or acute depression or.  Maybe a chemical imbalance.  Maybe it's just a build up of stress.  But no one who's functioning in a healthy way gets up in the morning, takes a shower, has a bowl of Cheerio's or a couple of eggs, and then heads out to commit mass murder.
4. These events seem to be happening with greater frequency.  And they happen more often hear than anywhere else in the developed world (and perhaps in the whole world).
5. Typically, these spree killers are using what we've broadly, if not precisely, called assault weapons.  We're talking firearms, and there are a whole shitload of them out there.  The current estimate seems to be that Americans have somewhere between 250 and 300 million guns.  That's a bit under 1 for every man, woman, and newborn still in a bassinet.

That last point is true enough, but it's also a distraction.  Yes guns are a problem.  But they're not the problem.  The problem is that there are too many folks running around wanting to kill whole bunches of other people.  The problem is that we have crazy people who live in a world (partly of their own imagining) where extraordinary violence seems like a good way to deal with problems.

So we've got a culture of violence and people with serious mental health issues and some small number of them (and the number is small) decide to go postal.  (And you'll remember where that term came from.)  Ready access to guns that can shoot a whole lot of bullets without reloading makes those few people extraordinarily dangerous.

But for the determined mass murderer, restrictions on assault weapons won't much matter.

1. Mohamed Atta used an airplane.
2. Derrick Bird used a shotgun and bolt action rifle.
3. Walter Seifert used a flamethrower and a lance.
4. Andrew Kehoe used bombs.
5. Julio González set a fire.
6. Aum Shinrikyo used sarin gas.
7. Anders Behring Breivik used both a bomb and assault guns.

As I've said a few times here (though not recently), "I grew up a Jewish kid from New York, and I don't like guns."  I also think that Scalia, for perhaps understandable reasons, got Heller wrong - not that he reached the constitutionally wrong result, that his explanation was wrong.  Which also means that his (and the Court's) explanation of what an originalist (of any stripe) interpretation of the Constitution's prohibition is wrong.

The purpose of the 2nd Amendment isn't to allow people to protect themselves from their predatory neighbors (or from grizzly bears, which Kennedy brought up THREE fucking times during oral argument) or to hunt or shoot skeet or even to fend off Indians.  The purpose was to allow for revolution.

It's precisely the sort of weaponry that even the Scalia's would ban that's the sort the second is designed to allow.  Fighter jets, predator missiles, tanks - you get the idea.

That much said, it's absurd today, and virtually nobody will allow for that.  Which is why Scalia and the Court wouldn't even consider going there and pretty much said those sorts of things can certainly be prohibited.

But if the purpose of the second amendment is self-defense and hunting and sport shooting (and regardless of the framers' language or original intent or original meaning or purpose or whatever, that's the purpose according to SCOTUS), then it would seem to follow that anything which does not reasonably advance that purpose can be closely regulated and even prohibited.  (We can argue around the margins of what weaponry does reasonably advance the SCOTUS-approved purpose of the Second Amendment.)  

It wouldn't get the guns off the streets or out of the homes. It's purely fantasy to imagine that Congress would ever pass gun control legislation that doesn't include some grandfathering.  There'd still be 250-300 million of them out there, and more to come. And the vast majority would be, as they are now, in the hands of sane, responsible folks. But the government could, were it so inclined, make it harder to get them - and get access to them. It's at least marginally possible that they'll actually restrict the sale of high-capacity magazines and the guns that can handle them.

Would that prevent mass killings? Certainly not all of them. Might it stop one now and again? Probably. And it would likely reduce by some number other odd killings and injuries. Not a bad thing.
 
Of course, there's that other approach, too. Wayne LaPierre laid it out at his press conference.

I call on Congress today to act immediately, to appropriate whatever is necessary to put armed police officers in every school — and to do it now, to make sure that blanket of safety is in place when our children return to school in January.
. . .
The NRA is going to bring all of its knowledge, dedication and resources to develop a model National School Shield Emergency Response Program for every school that wants it. From armed security to building design and access control to information technology to student and teacher training, this multi-faceted program will be developed by the very best experts in their fields.

Former Congressman Asa Hutchinson will lead this effort as National Director of the National School Shield Program, with a budget provided by the NRA of whatever scope the task requires. His experience as a U.S. Attorney, Director of the Drug Enforcement Agency and Undersecretary of the Department of Homeland Security will give him the knowledge and expertise to hire the most knowledgeable and credentialed experts available anywhere, to get this program up and
running from the first day forward.

Now there's a plan.  Armed cops in every school.  A guy who ran the DEA and helped get Scope 'n' Grope up and running to protect our children.  Because school's aren't enough like prisons.  And school cops aren't already arresting, beating, tazing, and killing enough kids.

Lyndon Johnson is said to have explained why he kept Bobby Kennedy as Attorney General after President Kennedy was murdered.

Better to have the bastards inside the tent pissing out than outside the tent pissing in.

The truth is that schools remain remarkably safe places. 

Still, I'm all for greater gun control. I don't think any sorts of control I can imagine being enacted would do much to prevent future mass shootings. But even a marginal reduction would be a good thing. And some sensible gun control measures would also probably reduce gun violence generally.

If what happened at Sandy Hook Elementary spurs meaningful gun control, that's terrific. But it's also, as I said, a distraction. I believe what I've said about mental health. The folks who do this stuff need (needed) treatment. Either they didn't get it or they didn't get enough or the right sort. When our approach to mental health issues is to wait until something awful happens and then lock people up, we're really doing things backwards. 

And we really, also, need to go further and find ways to get at the root causes of violence. We are the most quotidianly violent of the developed nations. We don't have the drug cartels running around offing large numbers of our people, but we do have just lots and lots and lots of individual violent acts. When H. Rap Brown said "Violence is as American as cherry pie," he was exactly right.

But why exactly is that?  It's not because of movies and video games.  They're the way they are because of our enthusiasm for vicariously experiencing violence.  And it's not because we don't pray enough or because the 10 Commandments aren't prominently enough displayed in schools and courthouses.  Most of the rest of the developed world is far more secular than the US.  And far less violent.

Part of the answer is surely our frontier heritage.  But there's more.  And we need to understand it and address it.

The NRA used to say (maybe still does)

Guns don't kill people.  People kill people.

That's a lie of course.  Guns kill people all the time.  The thing is that they don't do it volitionally.  We can make people safer by making the tools safer.  But we won't really solve the problems until we find ways to get at their root causes. All those folks who, in their fuckedupedness decided to kill whole bunches of folks.  They didn't decide that because there were guns around.  They went and got the guns after they had the idea. It's having the idea we really need to deal with.

We need to decriminalize mental illness.  Destigmatize it, too. 

And then we need to work on just why we're so violent a people.  

If we make access to guns a bit harder along the way, that's not a bad thing.  But if we think it's the answer, we're in for a real disappointment.  And a lot more blood.


Baby Blues - by Rick Kirkman, Jerry Scott

------------------------

*Norm's suggestions for gun control actually bear no relationship to the way we regulate cigarettes.  We tax the hell out of a pack of Winston's, prohibit (more and more, depending on where you are) where it can be smoked, don't allow certain kinds of advertising (though as I recall that was a voluntary concession by the tobacco companies - if I'm wrong, tough, I'm not bothering to look it up), require a warning on the pack saying they're dangerous and insist that nobody under 21 can buy it.  Smoking is down, but the tobacco companies aren't out.  If instead we said that every time someone dies of lung cancer every smoker has to cough up a $5,000 fine and some tobacco company must pay 250K, which is exactly what Norm suggests for the firearms manufacturers, the tobacco companies would be out of business in a week.  And the numbers of homeless and desperate would increase exponentially.  Of course, Norm's goal is to prohibit all guns.  But the analogy to cigarettes is, well, I like Norm so I'll call it disingenuous rather than dishonest.

Dangerous Dumpsters & the Armed Generalissima

Really, what I wanted to write about was inanimate objects.I wanted to offer a thought experiment.

Imagine, if you will (and if you won't why are you reading this?), a tree.  Tall and broad, stately.  A thing of beauty.  On a bright summer's day, you could sit under it, perhaps with a lover.

A Book of Verses underneath the Bough, 
A Jug of Wine, a Loaf of Bread--and Thou 
Beside me singing in the Wilderness-- 
Oh, Wilderness were Paradise enow!

 
     Omar Khayyam, The Rubaiyat

A lovely thing, really, though with the potential of great danger, naturally.  You know the rule:  Don't take shelter under a tree in a thunderstorm.  And there are the stories:

• Man killed by falling tree branch in Central Park.
• Man killed by falling tree branch in Radnor, PA.
• 13-year-old girl killed by falling tree branch in Yaxley, Cambridgeshire.
• 16-year-old girl killed by falling tree branch in the Teton Wilderness.

Which are just a tiny sampling.  And don't include all those times when drivers run into trees and die or parachutists fall on them and die or idiots climb up and fall off and die or . . . . Really, the Darwin Awards could have a special category.   But really, mostly trees are pretty safe.

So, to get back to the point, imagine a tree.  But don't think of it on that bright summer day with your lover nearby.  And don't think of it as an accident waiting to happen.  I mean, life is a risk.  Anything can happen anywhere.  No, think of the tree as a weapon.

Break off a branch and hit someone with it.  Or stab someone with it.  Take someone and ram him, hard, head first, into the trunk.

Now, another image.  Think of a wooden box.  A big one.  It could be a weapon, just like a tree.  One could smash someone's head into it.  One could break off a piece and use it as a bludgeon or a spear.  One could, perhaps, drop it on someone.

Or, and now we get toward the point, one could place someone inside the box.

Which brings us to the question: 

If someone is put in the box, does the box become a weapon?

If that box is in Waco, Texas, the answer is now "Yes."

Via Walter Reaves, comes word of Mechell v. Texas which demonstrates, as Reaves says, "anything can be a deadly weapon."

That was apparent in the recent case of poor Prisscilla Mechell. She was charged with aggravated kidnapping, injury to a child, and abandoning a child. The facts were that she took a baby from a friends house, and ended up leaving the child in a dumpster where she was later found. Although the child was severely dehydrated, there were no serious or permanent issues. The issue in the case was whether the dumpster was a deadly weapon.
The court had little trouble deciding that it was. The court found that the defendant used the dumpster to hide the baby, and that in doing so there was the possibility that death or serious bodily injury could result. While I'm not surprised,that seems to me to be a totally unwarranted expansion of the definition.

What's striking about Mechell's case is that there was no need to go there.  Mechell ended up with a 48 year prison sentence.  She'd have been well up into the double digits (I'm not up on the details of Texas sentencing law today so I won't try to figure out just how high) without the deadly weapon specification.  So why would the DA bother?

There are, I think, two answers.

1. Because he could.
2. Because he wanted to get a court to say so.

Here's the relevant Texas law as set out in the court's opinion.

A deadly weapon, as applied to this case, is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West 2011).

From which, the court of appeals in Waco concluded, a dumpster is "capable of causing death or serious bodily injury" because a person abandoned in one might die or be seriously injured. Which is surely true.  But is also a major screw up.  By focusing on whether harm could occur in a dumpster, the court lost track of the issue of causation.

Because the simple fact is that the dumpster as inanimate box, couldn't cause harm.  The cause of harm was abandoning the child.  Causation matters.  (See here, for instance.)  Reaves again.

It was the act of abandoning the child that caused the injury, and the dumpster was simply the place where he was left. Under the court's logic, any place the child had been left could be a deadly weapon. I suppose that if a parent runs off and leaves their children for an extended period of time, their house then becomes a deadly weapon.

And don't think it won't happen.

Which brings us back to the District Attorney.  Maybe it was a power play.  (Let's stack up the charges and make them as bad as possible because we can.)  Or maybe it was an effort, at Mechell's expense, to establish some really awful law to use in the next case.  Offensive either way.

But then, so are the trial and appellate courts for buying into it.  

Except, of course, a child was hurt.  And as they like to say,

Bad facts make bad law.

* * * * *

That's the post I was going to write.  Up until the moment I saw this CNN story via Howard Bashman's post.

Let me back up for a moment.  I've made this point before (here, for instance).

I love westerns, and the gunfight (really it was a duel) is a classic scene with which I'm comfortable and in which, when I was younger, I repeatedly fantasized a role for myself. But I grew up a Jewish kid from New York, and I don't like guns.

I had and played with lots of cap guns and an air rifle when I was a kid. I've shot a .22 a couple of times. I've held handguns with varying degrees of pleasure/fascination (mostly depending on my age). I've learned something about how firearms work as a criminal defense lawyer. But I grew up a Jewish kid from New York, and I don't like guns.

I think we'd be better off if they were completely banned. I hate the Second Amendment. I'm a fan of all sorts of gun control. Heck, I grew up a Jewish kid from New York, and I don't like guns. But I try and be honest about these things.The Second Amendment is part of the Bill of Rights. As such, it has as much clout as, say, the Fourth or the Eighth, both of which I like a great deal. It's the law of the land. And we're stuck with it.

 

I wrote that, as you'll see if you follow the link, in a post arguing that the Second Amendment allows, even encourages, an armed citizenry not for sort or hunting or defense against burglars but to ensure the ability to successfully defend against and even overthrow the government.

If the Second Amendment means what I think it has to mean. If the Second Amendment guarantees the people the right to bear arms in order to prevent the government from becoming tryranical. If the Second Amendment is there so that free Americans can protect themselves from an oppressive government and so that, in a pinch, they can fulfill the duty of revolution and overthrow that government. If all that's so. Then my hyperbolic, jokey response about how, whatever limitations there may be on the Second Amendment right, the government can surely prevent me from keeping an atom bomb in my backyard, is simply wrong.

Regardless, I'm still in some ways that Jewish kid from New York who hates guns.

Another Jewish kid from New York (and no, we've never met, though we both grew up on the upper west side of Manhattan) who presumably hated guns is the former Generalissima, now-Justice Elena Kagan.

The other day, she was in Baltimore helping a temple celebrate its 90th anniversary.  She talked about her family's search for a temple.  About convincing a "modern orthodox" rabbi (whatever sort of orthodox that is) to give her something like a bat mitzvah.  She talked about Jews on the SCOTUS bench and about a case involving a passport from Jerusalem or Israel or Palestine.  And she talked about (you knew I was going to get back to this, right?) guns.

She recalled paying a courtesy call on Sen. Benjamin Cardin, D-Maryland, who is a member of Beth Tfiloh, shortly after her nomination to the court by President Barack Obama in May 2010. Cardin asked her about gun rights, and remarked she may not realize how important the issue is to some Americans.
She admitted never having owned or fired a gun before. "But I told Sen. Cardin if I was fortunate enough to be confirmed, I would go hunting with Justice Scalia."
And she has, joining her conservative colleague on an excursion to a Washington-area shooting range and on several hunting trips, until now never reported. Her host at the synagogue event was surprised.
"You're Jewish," deadpanned Rabbi Mitchell Wohlberg.
"Yeah, but it turns out, it's kind of fun," said Kagan, laughing.

And no, I'm not going to try relating this to the big/game/hunter cops near Zanesville (home of the National Road/Zane Grey Museum, by the way) who just tracked down and killed some 49 "exotic" animals.

Fixing What's Wrong

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.

I'm back to the Second Amendment because of this comment, because I find my own views on the Second Amendment so at odds with how I see the world, and because, frankly, I haven't figured out just what I want to say about Judge Bolton's order in United States v. Arizona or about the recently flaring contretemps (I called it a pissing match when I started writing about it a couple of days ago) among abolitionists over Mumia Abu Jamal, or about the vote in the House to reduce the crack/cocaine disparity from 100:1 to 18:1.

* * * * * * * * *

OK, a moment on the short versions of what I want to say about those things.
1. Arizona.
Good for Judge Bolton.  In case you've been in a cave for the past 48 hours, the Honorable Susan Bolton, Judge of the United States District Court for the District of Arizona, granted a preliminary injunction preventing parts of Arizona's anti-immigrant law.  Here's the New York Times explanation.

“Preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely pre-empted by federal law to be enforced,” she said.
“There is a substantial likelihood that officers will wrongfully arrest legal resident aliens,” she wrote. “By enforcing this statute, Arizona would impose,” she said, citing a previous Supreme Court case, a “ ‘distinct, unusual and extraordinary’ burden on legal resident aliens that only the federal government has the authority to impose.”
The judge’s decision was not her final word on the case. In granting the injunction, she simply indicated that the Justice Department was likely, but not certain, to prevail on those points at a later trial in federal court. She made no ruling on the six other suits that also challenged the law.

Essentially, this isn't the last word, or even Judge Bolton's last word, on the merits of the law.  Her ruling grants a preliminary injunction, which means not that the law is unconstitutional but that on review it looks like the government is "likely" to prove at a trial that portions of the law are unconstitutional.  Therefore, those portions of the law don't take effect for now (because you don't want a probably unconstitutional law being enforced while you wait around for the courts to decide whether it is in fact unconstitutional).  Moreover, Arizona can, and says it will, appeal her decision.  In any event, here's Judge Bolton's summary (I'm never going to capture her formatting, so I'm reworking the format and a bit of punctuation.)
Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070, A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person.

Section 3 of S.B. 1070, A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers.
Portion of Section 5 of S.B. 1070, A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work.
Section 6 of S.B. 1070, A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

S.B. 1070 was not just anti-immigrant. (And as a practical matter, anti-Mexican and people-of-color immigrant; Sheriff Joe and the boys weren't going to be searching for undocumented French Canadians.)  It violated the Constitution in a number of ways.  Consider, for instance, Section 6, which simply says the Fourth Amendment doesn't apply to suspected immigrants without documentation.  Arizona just cannot selectively abrogate the Bill of  Rights - even if it thinks the feds are insufficiently vigilant about enforcing immigration law.
Frankly, I wish Bolton would just wipe out the whole law.  But then I remember what Voltaire taught.

Le mieux est l'ennemi du bien.
(The best is the enemy of the good.)

2. Mumia.
Sigh.  It turns out that back in December, leading up to February's 4th World Conference Against the Death Penalty, US best members of the organizing group (the World Coalition Against the Death penalty) signed a memorandum to the Conference organizers objecting to the major role planned for and around Mumia Abu Jamal.

ECPM has unilaterally, and over objection, determined to give the Mumia Abu-Jamal case a prominent role in the upcoming 4th World Congress Against the Death Penalty, including the participation of Mr. Abu-Jamal's lawyers and his direct participation by telephone. The US members of the Steering Committee of the World Coalition Against the Death Penalty do not agree to this, because it will be counter-productive to our effort to achieve abolition in our country.
The Abu-Jamal case, regardless of its merits, acts as a lightning rod that galvanizes opponents of abolition and neutralizes key constituencies in the cause of abolition. Continuing to give Abu-Jamal focused attention unnecessarily attracts our strongest opponents and alienates coalition partners at a time when we need to build alliances, not foster hatred and enmity.

I can't vouch for the bona fides of the memo.  It seems to have come to light only this week.   But it's also clearly an accurate statement.  There are groups including (and this is relevant here) the Fraternal Order of Police which have been helpful in achieving statutory abolition in New Jersey and New Mexico but which avidly seek the Abu Jamal's execution.  However, to many abolitonists, he is a hero: The quintessential innocent victim of a police and prosecutor and judge frame-up; a powerful, articulate voice against racism, capitalism, and the death penalty.  There is outrage, pretty well captured by this on-line petition and accompanying statement on the horribly formatted home page of the Campaign To End the Death Penalty.

Calling All Abolitionists - Stand Up for Mumia Abu-Jamal!
We, the undersigned, strongly condemn the letter, signed by some US abolitionists, opposing Pennsylvania death row prisoner Mumia Abu-Jamal's participation in the World Congress Against the Death Penalty and claiming that highlighting his case hurts the cause for abolition in the U.S.
(see http://www.thiscantbehappening.net/node/116. See also Dave Lindorff's article about this at http://www.thiscantbehappening.net/node/117 ).
We stand in solidarity with Mumia, who has spent the past twenty-eight years on death row, the victim of a trial and court procedures fraught with racism, and police, prosecutorial and judicial misconduct.
Mumia currently faces a grave threat: the US Supreme Court has accepted an appeal to re-instate Mumia's death sentence, and Philadelphia's District Attorney has pledged his intention to pursue his execution. Mumia urgently needs our support, and we call for a new trial for him now.
We reject any call by abolitionists to put "coalition-building" with law enforcement over and above the struggle for justice of any death row prisoner, be they innocent or guilty.
We also reject the logic of having police organizations that fight tooth and nail for the execution of those with unpopular views as a partner or ally.
Many police organizations – as well as prosecutors and judges-- have organized against our efforts to win justice for Mumia, and have served as guardians of an unjust "justice" system.
We deplore divisive strategies that seek to exclude death row prisoners from our movement. We call on all participating organizations in the World Congress to re-affirm their support for Mumia Abu-Jamal and all death row prisoners in our struggle to end the death penalty worldwide.

I've written about Mumia before as the nation's leading death row celebrity.  His fans (and there are many) think I'm insufficiently deferential to his importance to the abolition movement (and the movements against racism and classism and capitalism and what-all ism).  I'm not interested in throwing him under the bus (which is what supporters say the memo attempted to do).
He should not be executed.  That's not negotiable.
He IS a powerful voice that should be heard.  There is much to commend him.  And like so many others on death row, he is clearly the victim of shoddy police work, prosecutorial misconduct, and biased judging.  (None of which makes him factually innocent; I'm agnostic on that question, as I generally am about claims of factual innocence.)
But he is divisive.  More to the point, he's a distraction.  It may be that he is a particularly powerful voice overseas, but we are not overseas.  While I welcome international pressure and efforts on behalf of abolition, they are necessary and vital to the cause, we in the United States must win the struggle for abolition here, in the United States.
There are too many cases, too many injustices, too many wrongs in too many places, to hang up one poster.   Here's the question to ask before putting Mumia (or anyone else) front and center: will he gain us more support from those we need - judges, legislators, governors, voters - than he will cost?
And if the focus is abolition rather than fixing all that's wrong in the US including abolition, will he gain more support on that issue?
The anti-abortion but also anti-death penalty Catholics?  The I-don't-give-a-damn-about-social-justice libertarians (no, that's not all libertarians) who think the government is too incompetent to be deciding who to kill?  The liberals who fear anyone who looks even a little non-mainstream?  The conservative bankers who think there's a better use for the money we pump into killing people?  The folks who think we should give all people charged with crimes, innocent or guilty, LWOP because it's worse then death?  The people who think the system is broken but that executions are fine in principle?
Mumia gets attention because he's such a powerful voice and because his lobby has lots of powerful voices.  That's no small thing.
I'm not so sure that giving him yet more platform space helps the abolition cause more than it hurts.  I'm certain it's a discussion that shouldn't be had in hyperbolic terms and open letters.
If the goal is abolition rather than rabble rousing, the question is how best to achieve it.
And so there's Voltaire's lesson.

Le mieux est l'ennemi du bien.

I'd like to change many things in this country.  But if I can achieve a major victory today, I'm not going to refuse because there are other things that need to be done also.  Don't need one global correction.  I'll take the wins one at a time.
But they have to be wins.   I won't trade Mumia's life for another.  But that's not really the choice, I don't think.
3. Crack.
How many years havewe been after this?  And yet again, Voltaire.

Le mieux est l'ennemi du bien.

According to Grits Ron Paul had the line of the day.

Texas Congressman Ron Paul quipped that instead of the "Fair Sentencing Act" the bill should be called the "Slightly Fairer Sentencing Act" because they didn't reduce it to 1:1, calling to repeal the entire war on drugs.

Yeah.  But damn, it's a hell of an improvement.   We've been locking up people at an absurd rate, for preposterous lengths of time, on the faulty assumption that we can stop the use of illegal drugs by locking up enough of them.
The war on drugs is a failure.  Complete and abyssmal.  Locking up druggies accomplishes nothing but making criminals.
That's not quite true.  It also destroys families, increases crime, wastes billions of dollars a year, and makes us all less safe.
Treating crack as the worst drug in the history of drugs does the same thing - but puts a special focus on hurting the poor and members of minority communities.  And it's a fraud in another way.  Crack is cocaine.  Any disparity in sentencing approach is simply dishonest.  Still, 18:1 is a hell of a lot better than 100:1.  Raising the threshold for mandatory minimums won't solve the problems.  It's not the best.
But it's damn well a step in the right direction.

* * * * * * * * *

And so there's the anonymous commenter.  Here's what he (I assume "he") wrote.

In 1755 Samuel John­son pub­lished the the “Webster’s dic­tio­nary” of the day.
It was the defini­tive dic­tio­nary of the Eng­lish lan­guage at the time the US Constitution was written.
Under the word “arms” the 1755 def­i­n­i­tion was ” weapons of defense or armour of defense“
The definition of arms did not restrict the term to portable hand held weapons like mus­kets and swords, (as some revi­sion­ists who try to rein­ter­pret the sec­ond amend­ment claim)…but even included the most ter­ri­ble weapons of the day…the can­non.
Which means that Amer­i­cans are not lim­ited in what type of weapon they can own: a stinger mis­sile, a tank, a bazooka, a flame thrower. Any “weapon of defense” is fair game. Machine guns, hand grenades, RPG’s all are included in the sec­ond amend­ment. I would even go so far as to say that Americans even have the right to possess biological weapons.
Amer­i­cans have the right under the con­sti­tu­tion to unre­stricted access to any weapon that can be use in any pos­si­ble way in defense of the coun­try or the individual.
There are those, even some in the NRA, who would like to draw a distinction between a handgun and , say a bazooka, a missile or a suitcase nuke. But based to the second amendment and the definition of "arms" , Americans citizens have the right to own any weapon they wish.
No exceptions. 

It's not that simple. 
Dr. Johnson's Dictionary is a quirky thing.  It's revered for its wisdom, wit, and erudition.  Rather less so for its definitions.  If you want to know what a word meant in England in the mid-1700s, you'd do better to study the OED than to read Johnson's Dictionary.
I'm not bothering to walk across the room to check what the OED says about "arms" because I don't think it much matters.
First, it doesn't matter because words don't stand by themselves.  They occur in contexts which limit their meaning.  A basic rule of interpreting all language for legal purposes (and enough of the drafters were lawyers that they clearly understood this) is that no part of a written document is to be ignored.  That means that the part about the "Militia being necessary to the security of a free State" is not just excess.  What exactly it means, and why it's there, is key.  Another part of how you interpret is in light of what the document's author's intended.
Put all that together and you come to my conclusion (or at least I do):  The Second Amendment secures your right to possess weapons suitable to overthrow the government.  And it secures that right for that purpose and only for that purpose.
Second, it doesn't matter because whatever the words of the Second Amendment or the intent of the framers, the courts (and regardless of how you may feel about it, they are the final arbiters of what the Constitution does and doesn't mean) will never say that individuals "have the right under the con­sti­tu­tion to unre­stricted access to any weapon that can be use in any pos­si­ble way in defense of the coun­try or the individual."  Nor will they say that individuals have the right to whatever weaponry they might need which would enable them to rise up in successful revolution.  Ain't gonna happen.
And it probably shouldn't.  For one thing, the consequence is insane when we have the technology we do today.  I'm sorry.  I know there are folks who think we'd all be safer and crime reduced if everyone were armed.  But nukes are simply different from conventional weapons.  The potential for an accident, and the consequence of that accident, changes the reasonable terms of the discussion.  So does the potential for what happens when someone with an h-bomb in the basement suddenly goes bat-shit crazy.  (And yes, people do that sometimes.)
For another, none of the provisions of the Bill of Rights has ever (that's ever) been treated as absolute.  Freedom of speech can be abridged.  The right to free exercise of religion has limits.  You can be searched and seized without a warrant or probable cause or even good reason.  The right to a fair trial is limited.  So is the right to - actually, so is the right to everything.  Why imagine that the Second Amendment, whatever it might mean by pure parsing of words, is the only provision that is to be applied by purely parsing words?
Besides, as  Eugene Volokh pointed out in the post that got me started on this last week, even if you try to take the Second Amendment literally, you have to decide what's an infringement and what isn't. 
So where are we?
I hate the Second Amendment.  I've said that before.  I hate guns.  I think that as a matter of public policy we should disarm everyone.  But the Amendment is there, and I believe in the Constitution.  I'm happy to have philosophical discussions, but if you want to talk about giving teeth to the Second Amendment, you won't get there by advocating the right to revolution or the right to a tank in your back yard.

Le mieux est l'ennemi du bien.

In this best of all possible worlds.

Le mieux est l'ennemi du bien.

On the Limits of Constitutional Interpretation

Last night, Eugene Volokh pointed out that figuring out how to apply the Second Amendment requires not only deciding how to treat a fundamental right but also what it means for that right to be "infringed."

A commenter discussing the gun show case writes, among other things,

So, along with Chicago and DC trying to keep poor people from exercising their “fundamental right” by pricing permits/licenses/training/registration out of their reach, now California is trying to reduce the Second Amendment to a “want” instead of a “RIGHT”. The standard of review should be “SHALL NOT BE INFRINGED”.

The trouble is that “shall not be infringed” doesn’t resolve much until we figure out what it means to “infringe” a right. Is it an infringement of a right to bear arms to say that you should sell guns on your property (or on the property of someone who agrees to let you sell them), but that you can’t sell them on government property? How about to say that you can’t even possess them on government property? What if you are free to possess many kinds of guns, but not certain other kinds of guns that are very similar to them? What if you have to pay a relatively small fee to get a license to have a gun (which the government must give you once you pay the fee), or to organize a demonstration, or to get married?

Not surprisingly, the Volokh commentariat jumped into the fray, a significant portion arguing (I'm paraphrasing, not quoting) that anything limiting possession or sale or ability to use  weaponry "infringes," on keeping and bearing and is, therefore, flat out unconstitutional, by god.  (That's ability to use, not use itself - nobody suggested that murder  or bank robbery or other offense committed with a gun was constitutionally protected, and at least one commenter pointed out that such a reading of the Second Amendment would obviously be wrong.)

* * * * *

An Aside

Shortly before Volokh's post, Jay Root reported from Austin for the AP that if you've got a gun permit, you can get into the Texas Capital without having to pass through security.  As lobbyists and others with regular business in the Capital sign up for gun permits, gun control advocates and out-of-state tourists shake their heads.

That lawmakers would take the trouble to install magnetometers and then allow weapons inside has drawn criticism from gun-control advocates, including the Brady Washington-based Brady Campaign to Prevent Gun Violence, which called the policy "ludicrous." Some tourists also were perplexed by the new procedures.

"Where's the security come from if you can still get in with a gun?" asked Canadian tourist Clyde Ducharme, who went through the metal detectors one recent morning.

My friend Anna D, who pointed me to the story, wished Molly Ivins were alive so that we could get her take on it.

End Aside

* * * * *

Meanwhile, the lead editorial in today's Times says that the Senators who vote against Elena Kagan's nomination won't be voting against her or against Obama but will really be taking on a broad view of the government itself - and in particular of the Commerce Clause.

The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor. The Civil Rights Act of 1964, outlawing segregation in the workplace and in public accommodations. In cases like these, the Supreme Court has said Congress can regulate activities that have a “substantial effect” on interstate commerce, even if they are not directly business-related. 

So, the Times opines,

Make no mistake that such a vote is simply about her, or about President Obama. A vote against the commerce clause is a vote against some of the best things that government has done for the better part of a century, and some of the best things that lie ahead. 

Maybe.

I've talked about the Second Amendment before.   The short version:  The idea is to ensure that the people have the means to engage successfully in violent revolution.  It's the provision necessary to satisfy Jefferson's belief that every 20 years or so, there needed be a rebellion to refresh the "tree of liberty . . . with the blood of patriots & tyrants."  That is, the right to bear arms is the right to bear them against the government.  It has nothing to do with self-defense against criminals who would rob or rape or pillage or against ravaging native Americans or against grizzly bears.  (The hard question is the application of the Amendment today when the means necessary for rebellion might include nuclear weaponry or other WMDs.  The framers didn't contemplate our current technology of destruction.  It's not at all clear to me what they'd have thought if they did.)

I haven't talked much about the Commerce Clause (and when I did, it was also a post about the Second Amendment), but it seems to me evident that it was intended to give the government (actually Congress) power to regulate, er, commerce, which is not the same as the power to regulate anything which might happen to have some tangential relationship to commerce.

All that's theory.

In practice, I think it follows that the Second Amendment does not prohibit government regulation of the sporting possession and use of arms or for purposes of individual self-defense.  Concealed carry can, I think, probably be prohibited except in aid of insurrection.  But you can have a tank in the back yard.  That may be bizarre, but it's what follows if you believe that what the framers said and had in mind counts.  I hate guns and wish the populace disarmed, but that doesn't strike me as a Constitutional option.

I've got a related problem with the Commerce Clause.  I agree with the Times that much good has been done in reliance on an expansive view of the Clause.  But the Constitution doesn't say that Congress can do what it likes so long as it is both socially desirable (like we could agree about what those things might be) and can find some tenuous connection to commerce.  Does the Endangered Species Act really have a relation to interstate commerce that's more than a statutory fiction?

(Note that I'm not weighing in here on whether the health care law or the bailout of AIG or whatever is or is not constitutional.  Nor, even, on whether those things are good policy choices.)

This is about how to view the Constitution.

And the problem with the Constitution is that it sits out there as a monument.  We worship it.  But we never quite know what to do with it.  Is it a contract, plain and simple, or is it a combination of contract and set of guidelines.  Is it to be read narrowly or broadly?  When there's a conflict, will words matter or intentions?  And how do you determine intentions, anyway?

The supposed strict constructionists on the Court ignore the Ninth Amendment because it doesn't specify what it covers.  Libertarians and civil libertarians, on the other hand, think it's essential, though they may disagree about its content.  Nobody can really agree about how the Free Exercise and Establishment Clauses of the First Amendment co-exist.  And none of that is much of a guidepost.

But we're still faced with that fundamental interpretive question: Is the Constitution to be viewed as primarily saying what government can do or what it cannot?  Are the constraints on government to be read broadly or narrowly?

The problem and the solution both is that it's a limited government with an expansive reach.  A goal, set forth in the Preamble, is to "secure the Blessings of Liberty to ourselves and our Posterity."  Now, we can argue a lot about what those "blessings" are.  But when government starts telling you what to do, it's pretty clearly interfering with them.  When government locks you up (whether the lock up is criminal or civil), it's pretty clearly interfering with them.  When government tells you what to think or to believe, it's pretty clearly interfering with them.

If you're with me on that, then you view the Constitution's limitations on federal government action as strict.  But there's another piece of it, too.  For the civil war amendments (the Thirteenth, Fourteenth, and Fifteenth) limit what the States can do.  And what individuals can do.  Because to ensure liberty for one means that there must be restraints on liberty for others.

And the Fourteenth, in particular gives Congress "power to enforce, by appropriate legislation, the provisions of this article."  Which makes the Constitution's authorization of federal government action expansive.  But still, within limits.

The Second Amendment, bless it's ugly (from my point of view) heart, puts a real if bizarre limit on the government's ability to disarm the populace.  And the Commerce Clause, by god, gives the government a right to regulate commerce, but not those things which might, somehow, by some attenuated reasoning, have some tangential relationship to commerce.

I may not like those results, but that's not the proper test of what's constitutional.

Though in a better world, it might be.

Musing

Just some random thoughts here.  I'm not sure how much I actually believe all I wrote.  But I might.  Or not.

Maybe it began when I reconsidered my position and concluded that although I hate guns and as a matter of policy think they should be banned completely or their ownership severely restricted, the Second Amendment contained an individual right to bear arms.  Maybe it was later, when although my hatred of guns and view of wise public policy remained as they were, I thought some more about it and determined that the purpose of the Second Amendment right had nothing to do with self-defense against bad guys or wild animals or for hunting for food or sport (and what follows, which is that insofar as the right is demanded for those purposes it can be severely limited without offending the Constitution).  Rather, the purpose was to ensure that the people have the means of effecting violent revolution against the government.  (There are consequences to that conclusion about which I haven't yet satisfied myself.)

Or maybe it was when I looked in vain for the constitutional underpinnings of the administrative state.  Or first noticed that the Commerce Clause does not seem to say that anything that can be thought to have some marginal relationship to interstate commerce falls within the ambit of the Constitution's delegation of authority to Congress

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

And if the Necessary and Proper Clause really permits Congress to do pretty much whatever it wants, then we haven't just abandoned the  idea of a government of enumerated powers but we've abandoned the idea of the Rule of Law (uppercase intentional) because there would be no limit.

Or maybe it was when I acknowledged that ohmygodScalia'sright that a living Constitution does mean that the Constitution is this week whatever 5 members of the Court happen to think it means, and will mean something different whenever the composition of the Court (or the views of a sufficient number of members) changes.  (Of course, the same is true for Scalia's preferred Constitution - an embalmed one - since it, too, will be subject to constant reinterpretation as the courts and the Court try to figure out what it means, but that's not my issue today.)

Or maybe it was just when I finally admitted to myself that if you believe in the Constitution as the fundamental law of the land, whether you like all its terms or not, then you have to accept as fundamental the parts you don't like just as much as you have to accept the parts you do.

And so I find myself (and this isn't particularly new, it's just that I'm using it as the set-up here) a civil libertarian who more often than many who so define themselves tends toward the libertarian.

That requires some clarification, I think.  

Libertarians (and yes, I know I'm oversimplifying to the point where I'm approaching, but I don't think reaching, misrepresentation) tend to be political conservatives.  They believe not merely in limited government but in small government.  They have a commitment to the free market as not only constitutionally endorsed but as a good thing in and of itself.  If pressed, they'd say that the most important provisions of the Bill of Rights are the 2nd, 4th (and maybe 9th and 10th Amendments). At the distant margins, they expect any day that the administration will admit it's but a stalking horse for world domination by the UN, which itself will be run by some conglomerated version of state socialism on the line of Stalinist Russia except intent on ethnic cleansing of white folk.

Civil libertarians (to oversimplify with the same reach) tend to be liberals.  They believe in government, big government in fact, but think there are a few areas in which the government ought not meddle.  They're not terribly fond of the free market, think that government should regulate the hell out of it.  If pressed, they'd point to the 1st (though perhaps not the Free Exercise Clause), along with the 14th (and also maybe the 9th and 10th) as the most important of the Amendments.  At the distant margins, they really do think that the administration is a stalking horse for a resurgent Nazi party intent on ethnic cleansing of non-white folk.

Drop the distant margins people (there are nuts everywhere after all) and you find that there are real differences but also serious points of contact between libertarians and civil libertarians.

Again, this is all preface.  I'm a fan of government.  I'm an opponent of the administrative state.  (Those don't strike me as contradictory positiions.)  I don't want the government telling me (or anyone else) what to think or what to do with our bodies.  I have policy, political, and also constitutional questions about the government's handouts to the financial services industry and to GM and Chrysler, though I'm bothered less by the latter than the former.  I'm no enthusiast of the free market and I don't think the Constitution mandates it, though it certainly puts some limits on government regulation.  I'm a free speech absolutist.  Enough.  The details don't really matter here.

What got me rolling on this, are Rand Paul's comments on the Civil Rights Act of 1964, Volokh Conspirator David Bernstein's response/attack to "Bruce Bartlett's Attack on Libertarianism," and David Rittger's piece at the Cato@Liberty blog warning that US v. Comstock provides a blueprint for efforts to deny Constitutional protections to those suspected of being terrorists (he's not the first to discuss it).

And what I found myself thinking was two things.  First, I'm in complete agreement with what Rittger has to say.  Second, while I find Bernstein's discussion interesting and informative, I really can't get past his claim (essentially one Rand Paul couldn't quite bring himself to state, but then he's running for office now statewide, not just within a political party) that

Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would ban private discrimination when the government itself ensured the monopoly by law, as with common carriers like trains.

I wasn't brought up short by the claim that most libertarians believe that private discrimination should be legal.  I was brought up short by the idea that it's something of a mainstream belief (insofar as the libertarian perspective can be considered mainstream, and I think that with an even moderately broad definition of "mainstream," it can.

Anyway, so what I tried to do, because I'm finding more and more that I really don't trust the idea of government to do much of anything, is figure out where the rub is between me and libertarian thought (as Bernstein presents it, anyhow) on private discrimination.  And what it came to is that I'm no fan of free markets.  My objection isn't to the idea that the owner of a business ought to have some right to decide how the business works.  It's that when I look at the free market, what I see isn't the mom and pop grocery.  What I see is Wal-Mart and Best Buy and Barnes & Noble and Amazon driving the independent (i.e., mom & pop) out of business.

And while I'm offended if mom & pop want to discriminate (which they too often do/did), I guess I see that mostly as a personal choice that they can sometimes be coerced out of by concerted action (boycots, sit-ins, general suasion) although sometimes not, but gee, that's mom & pop.  And that's how they want to run their business, and as long as they don't have monopoly power or jim crow laws backing them, I guess that's their business.

But that's mom & pop.

I'm no economist, but you don't have to be to notice that big business drives out small and that Adam Smith's world wasn't exactly a bagatelle for the laborers.  But that's sort of a side question.

One of the commenters on Bernstein's piece complained about the libertarian fetish over property rights.  Bernstein responded without actually addressing the point, but it's all connected and deserved more of an answer than he offered.  Because if you want government to stay out of private business, you're either saying that the free market is a good thing in absolute terms or that you don't really care whether it's a good thing - government meddling is a bad thing.  And tI suppose that's an intellectually defensible position, but I don't see it.  And more to the point, I don't see the Constitution obliging it unless the only thing that "[t]o regulate Commerce . . . among the several States means" is that states can't impose tariffs on goods from other states without federal approval.  To put that another way, unless the Commerce Clause is understood to be only the Dormant Commerce Clause, which is really an inferred Clause rather than an enumerated one, the Constitution may limit what government can do about private enterprise and free markets (though I think the Civil War Amendments really do say something about discrimination), but it simply doesn't strip government of authority.

Although how you get authorization for the EEOC, the NLRB, the SEC, the FBI, and the NSA, that's a whole different question.