Now We Are Engaged In A Great Civil War

How do you write about the most recent gun violence, without saying the words "again" and "enough"?  You can't, and you shouldn't.

But where do we go from there, with only one political party committed to taking action that would sensibly save lives without infringing on any honest understanding of the Second Amendment, while the other one looks away from the funerals with "thoughts and prayers" while the NRA, a gun-manufacturers' lobbyist group that ironically started life as a gun-safety organization, stuffs campaign cash in its pockets?

The debate we're having now is not about guns generally.  If that was ever a battle, and I don't think it was, it ended a long time ago, and gun-ownership advocates won it handily.  No one objects to the personal defense of one's home or business.  No one (or, at least, almost no one) objects to hunting.  And no one objects to the existence of firing ranges.  I don't object to any of these things.  When it comes to hunting, well, I eat meat, so I would be a hypocrite to object to that.  I shot air rifles in summer camp, and enjoyed it very much.  And, if you live or work in a rough patch, no one's going to object to you taking steps to protect yourself--provided that the steps you take include making sure that any weapons you owned are secured in such a way that someone can't gain access to them in order to misuse them.

Guns are dangerous.  They are weapons.  They are dangerous by design.  This is why they need to be regulated in the first instance.  And the Constitution explicitly fails to blink at this need; it not only recognizes the need to keep arms regulated, but "well-regulated."  Moreover, the Second Amendment provides for regulation even in the context of military use, i.e., the "militia."  Militias are organized.  Militias exist and operate under color of state law.  Militias are not randomly-summoned groups of people who think of firearms as a fashion or party accessory.  Militias are meant to act in response to specific threats against the general public, not members of a particular political party.  

And, when that threat is vanquished, militias are meant to stand down, permit the resumption of civilian life, and be ready for the next threat.  That is why the right to the personal possession of firearms is recognized as a constitutional right in the first place.

Indeed, that is why then-Justice Antonin Scalia struck down, on behalf of the Supreme Court in District of Columbia v. Heller, a D.C. statute that forbade all private ownership of guns in the district.  That law went too far; under any understanding of the Second Amendment's terms, it could not pass constitutional muster.  As an attorney, I disagree with the reasoning in Heller, primarily because it strove to diminish the import of the clause regarding regulation, and then left the broader question of whether any gun regulation is constitution to dicta that states, outside of the ambit of the Court's legal holding, that there are many reasons why government should be able to regulate guns.  This was based on a cramped philosophy of statutory construction, which somehow treated the "well-regulated" clause as purely introductory, while failing to construe that the right preserved in the Amendment is a right of "the people" and not of individuals.

Heller is worth a law review article all by itself, but that's not my purpose in bringing it up here.  Rather, I want to emphasize that at least some conservative voices, like that of the late Justice Scalia, understand that the right to own guns and the power of the state to regulate them exist in our constitutional structure, as do many other seemingly contradictory provisions, in order to balance each other and to ensure that neither is being misused for purposes other than the formation of a more perfect Union.

In other words, weapons of war fall outside of the protection of the Second Amendment.  There is no Second Amendment right to own explosives.  There is no Second Amendment right to own artillery.  There is no Second Amendment right to own missiles or missile-launchers.  And there is no Second Amendment right to own an H-bomb.

And that's the problem we have.  That's why the lost souls of Atlanta and Boulder join those of far too many other communities across the nation.

They were killed by weapons of war.  Specifically, by assault rifles.  By guns that have no essential, or even practical use in civilian life.   By weapons designed to be lethal on such a massive scale that their regulation is a matter of public safety, not tyranny.  Any individual with deadly intentions or an inability to control their intentions, deadly or otherwise, only needs one such weapon, and one magazine with which to load it, to become a public menace.

That is, to become a menace to the peaceful operation of society.  To become the exceptional moment, not the everyday one.  To become a source of righteous outrage that demands swift, effective action by public officials, regardless of their party affiliation and, above all, regardless of who is paying their bills.

Thoughts and prayers don't cut it.  Thoughts and prayers with a willingness to enable the circumstances that ensure more opportunities for them amount to the worst sort of virtue-signaling.  It doesn't wash the blood off the hands of those doing the signaling, any more than it washes it off the hands of the people who pull the triggers.

Once upon a time, back in the 1990s, a period that was no stranger to partisan culture wars, we managed to muster enough combined outrage and common sense to ban assault weapons.  It worked.  There is absolutely no reason that it can't work again.  It won't stop every mass killing, but it would stop many of them, and it would be a far more fitting memorial to those we've already lost.  It would be absolutely more appreciated by the survivors of those we've already lost than "thoughts and prayers."  And there are additional steps that need to be taken, that would help to ensure fewer lives lost without violating anyone's right to keep and bear arms.

If it were up to me, we would, as a nation, emulate Japan, which has one of the lowest rates of deaths by gun violence in the world.  Take a look at the video here, which outlines in detail the steps that a private individual needs.  Maybe you think it's too restrictive.  Frankly, I don't.  But, that could just be me.  I measure the burden that it imposes on the lives of prospective gun owners in Japan as far smaller than the burdens that the deaths of victims imposes on the victims themselves.  Good news:  they have no need to worry about government forms and tests.  Bad news:  they're dead, and any dreams they had are with them.  This doesn't even begin to get into the burdens imposed on their survivors, and on society when it comes to the costs of caring for the victims and the survivors.

If you have any doubt about the costs on all of us that the Wild West of the current status quo imposes, take a look here.  At the very least, gun manufacturers and gun owners should be required to be insured against the harm that comes from being a paradise for gun-toting.

And the extent of gun-toting that we now have isn't even enough for the gun-toters.  Once upon a time, I used to joke that they wouldn't be satisfied until everyone is required to own one.  Well, the joke is now on me.  But, sadly, now it's on all of us.  And death may be an inevitability, but that doesn't give anyone the right to make it more likely.

Strictly speaking, this should not even be a partisan divide.  The New York Post, whose owner has done more to support Donald Trump than anyone else has, has consistently taken a position in favor of an assault weapons ban.  It recently re-affirmed that position.  But the Post appears to be an isolated case.  The Washington lobbyists masquerading as office-holders, and the investing class that funds their perpetual re-election, prefers to allow the merchants of death to rake in the big bucks, even while proclaiming themselves to be "pro-life."

To borrow from Lincoln, and as the assault on the Capitol demonstrated, we are now engaged in a great civil war.  Between a party that respects the Constitution, including its provisions on guns, and a party that treats the Constitution as a slogan, and views guns as both a means and an end.  Ultimately, the type of society we will have, the type of society your children will grow up in, will depend on which one of those parties wins, and keeps on winning.

That's up to you.  But, if you really want to choose life without upsetting the Constitution, you should know by now which one you need to vote for.  Next year, and after that as well.

Do We Need To Suspend Habeas Corpus?

So much for the image of Democrats in charge as being too bogged down in process arguments, and division in general, that nothing gets done.

Joe Biden, in partnership with congressional Democrats, have been in charge for just slightly over two months.  In that time, he has had nearly all of his Cabinet appointments confirmed, he has signed a series of executive orders to undue much of the Trump administration's policy and regulatory damage, the Senate has completed Donald Trump's second impeachment trial, the nation has exceeded (with weeks to spare) the new Administration's goal of 100 million COVID-19 vaccinations within its first 100 days, and, to top it off, has enacted the largest and perhaps most radical revision of Federal spending in decades, while at the same time providing states and health care providers with the resources needed to turn the page of the Trump pandemic.

This latter accomplishment, the $1.9 trillion-dollar pandemic relief bill, has been the object of many laudatory articles and reports in the MSM and on the Internet.  I have nothing to add to what others have said, but I'd like to take some space here to highlight some aspects of what has been said that I think are significant, especially going forward.

During the past four decades, Republicans have typically tried to frame the Federal spending debate as a clash between Democrats and their wasteful government programs, versus the alleged Republican desire to "put more money in your pocket."  What they never said was that, by "your," they always meant the people who underwrite their campaigns.  The 2017 tax-cutting bill that Paul Ryan masterminded on their behalf, with the help of Trump and Mitch McCONnell, is perhaps the most egregious example of this trend; the goodies provided for in that bill went straight into corporate treasuries and off-shore bank accounts.  This is why the short-term value of the stock market increased, even while the job market showed, at best, negligible pre-pandemic growth compared to the final months of the Obama Administration.  

And then came the pandemic, which Trump largely ignored for the sake of protecting his paper tiger of a recovery.  What happened?  The job market fell off of a cliff, while the billionaire class enjoyed an unexpected, undeserved boom.

The American Rescue Plan Act of 2021 will probably not fix all of the damage that has been done in the past year, but it will go a long way toward leading the nation back to something resembling "normal."  Perhaps even more significantly, it marks a change in Democratic thinking about how to enable economic growth, and how to use the power of the purse to help Americans at the bottom of the pyramid.  Instead of focusing on aid to the investing class, or expanding the size of the national bureaucracy, it focuses on providing direct financial aid to people in need.  It amounts to a progressive rebuttal of the more-money-in-your-pocket argument that Republicans have used to shift wealth from the bottom to the top of the American economic structure.  It is founded on the principle that wealth creation is not a top-down process; if anything, it is a bottom-up process in which work produces goods and services that everyone is able to consume.  As Paul Krugman has stated any number of times:  my spending is your income, and your spending is my income.

Perhaps most significantly, Biden and the Democrats in and outside of Washington seem to be in the process of re-defining what bipartisanship means.  Bipartisanship, the holy grail of inside-the-Beltway punditry, has always had had an inside-the-Beltway focus.  That is, the existence or ability to achieve it is viewed entirely from the perspective of Washington-based actors:  the President, members of Congress, and their various allies inside and outside of government.  When it comes to approving the ARPA, however, the President and Congress did so without a single Republican vote, an achievement that has led to reportage of the bill as a purely partisan achievement.  But that fails, however, to take into account the bill's popularity among Republican voters nationally, as well as Republican governors and mayors whom those voters support. And even in the world of op-eds, one can find conservatives who are, more or less, on board with the Democrats.  This is, in other words, a governing party that has the courage of its convictions, and with good reason.

But that's not to say that all Republican office-holders are on board with the Democrats, and even their own voters.  Far from it.

I have said, prior to last year's election, that the Republican Party was moving in a direction of defining itself solely by various forms of voter suppression--dark money, extreme gerrymandering, and, perhaps worst of all, blatant attempts at voter suppression that aim to target the ability of Democratic constituencies to get to the polls.  Or to be actually able to vote, once they get there.  But, in the wake of last year's Republican losses, the party and its allies in state legislatures have hit the accelerator on their suppression efforts.

In doing so, they have for the most part used the alleged existence of 2020 voting fraud, even though no actual evidence of such fraud has been produced.  However, their anxiety about their political future is such that, every so often, they will--well, like it says here--say that quiet part out loud.

What is the quiet part?

In a word, racism.  As well as its allied "isms":  sexism, ableism, any form of hatred of those who are not white male Christian straight bigots, and the folks who love them.

Moreover, the struggle to suppress the vote has an analog in the current battle within the U.S. Senate over the fate of the filibuster, the rule that currently requires an absolute minimum--with the exception of budget-related bills like the ARPA--of 60 votes to end debate on a bill and proceed to a vote on it.  Historically, up until the beginning of the Obama administration, the filibuster's use was almost entirely in opposition to civil rights legislation.  This is why perhaps, in hindsight, no one should have been surprised to see it used in opposition to everything the first African-American President would want, even on policies and bills that reflect things Republicans allegedly want.  And perhaps it should therefore not be surprising to see some real movement, at last, toward abolishing, or at least modifying, the use of the rule and/or the ways in which it can be used.

And, here again, Republicans are saying the quite part out loud:  if the filibuster rule is at least modified, and the Democrats are enable to enact legislation that would end voter suppression once and for all, it might actually herald the end of the Republican Party as a political force in America.  Let me be as clear as anyone can:  this is not a Democratic prophesy.  It is a Republican one.

Which brings us back, or should bring us back, to thinking about the seditious January 6th assault on the Capitol.  For a very obvious reason.  If a political movement is effectively reduced to a cause that has been repulsed not only by the majority of voters, but by the force of history that produced the Constitution and nearly 250 years of largely peaceful, democratic government--if, in other words, it stands for nothing except bigotry and suppression in the name of bigotry--it has no future in relying on due process of law.

It can only rely on a literal call to arms.  To violence.  And to death for all who stand in its way.

This is why I view the news about the removing of the protective fencing around the Capitol with a strong case of mixed emotions.  As a symbol of returning to the America most of us want to see, it is more than welcome.  Yet I find myself hoping and praying that it is not a premature step.  Trump and the forces he has managed to channel for his personal use are far from disappearing in our collective rear-view mirror.  And this should surprise no one.  These forces have been organizing for decades, at least since the 1995 Oklahoma City bombing, and likely even before then.  They have been gathering strength.  They even have allies withing the halls of Congress.  And at least some of those allies may have had a direct hand in enabling the January 6th attack.  The investigation of that attack by a now truly independent Justice Department has just begun; I would be genuinely surprised if it did not turn up evidence of infiltration from within.

This is not a new subject for me.  Off and on, over the past seven years, I have written more than once in this space about what we now refer to as the Trump voters as tantamount to a fifth column in our midst, a movement that uses the language of patriotism to insidiously subvert and ultimately destroy the nation as we have known it.  Facing up to that reality has not been easy for me, even while seeing the massive amount of evidence that has accumulated in that time in support of this view.  If you love your country, if your family has sacrificed for it (as mine has), well, seeing it torn apart from within is heartbreaking.  Denial can be an attractive remedy, under the circumstances.  But it is no longer an acceptable one.

Consider, for example, the recent shootings of in Atlanta of Asian women working in massage parlors by an allegedly Christian white male shooter, whose alleged justification for his heinous actions was that the women were tempting him to act in a sexually immoral way.  Never mind the fact that his attacks violated the Sixth Commandment, while he was in the process of trying to "uphold" the Seventh one.  But, on top of that, an officer of the law openly accepted the shooter's assessment that his actions stemmed from having "a really bad day."  One cannot help but thinking that his victims had an even worse one.  All the more so, given that the officer's broadcasting of this assessment may very well have damaged the victims' chances of getting justice from an untainted jury.  How is it possible to see this as anything except an official attempt to suppress the racism that screams out from the very focus of the attack?

Consider, focusing on a national level for a moment, the fact that we are just two months or so removed from having a President who was a paid agent of a foreign power--an agent whose agency was acknowledged by a senior member of his own party, and an agent whose agency was well repaid.

If you've made it this far, for which I thank you, and you are wondering what all of this has to do with the title of my post, fear not. I have a very controversial argument to make here, and I did not want to advance it without laying the groundwork to support it.

It involves habeas corpus.  Or rather, the potential need to suspend it.

Simply put, habeas corpus refers to the common-law power, first recognized in British law and codified in Magna Carta, to obtain a writ justifying the lawful imprisonment of one or more individuals.  The U.S. Constitution explicitly permits the suspension of the habeas corpus process (in article I, section 9) "when in Cases of Rebellion or Invasion the public Safety may require it."  In fact, during the Civil War, Congress did permit Abraham Lincoln to suspend it, under what constitutional scholars refer to as the Suspension Clause, for the duration of the war.

Obviously, this is not something to be done lightly.  Ideally, we would not be discussing this at all, except perhaps as a purely academic exchange involving constitutional jurisprudence.  And yet, in a very real sense, it's already been put on the table.  And not just by the actions of Trump supporters, but by the words of Trump himself, as well as his allies in Congress.

You have probably by now heard a lot of foolish and dishonest rhetoric from the former President and congressional Republicans about the "Biden border crisis," in which the United States is once again being "invaded" along the Rio Grande by various unsavory elements in Central America determined to rape, pillage, and burn the countryside.  The "invaders" in this case are unaccompanied minors, who are being admitted solely for the purpose of processing asylum claims.

This is deflection, a classic Republican tactic--for that matter, a classic Trump tactic--for dealing with harsh realities that might be embarrassing, politically or otherwise.  It is an inherently dishonest tactic, and, in this case, is designed to conceal the fact that the Biden Administration has inherited an immigration disaster, one in which potential asylees, adults and children, were confined in cages without even the most basic human necessities, and with little or no hope of having their claims processed.  Cleaning up this mess will take time and, in the absence of reliable information to the contrary, Biden's people should be given at least some benefit of the doubt.

But it's also worth remembering that, back in the day, Trump dragged the possible suspension of habeas corpus into the border control debate.  Take a look.

So, no one on the right side of the political spectrum should have any objection to what I'm about to put on the table.

Maybe we need to consider a nation-wide suspension of habeas corpus.

Maybe that's what we need to get a handle of how extensive the fifth column is.  Maybe that's the only way we'll find out how much of it is inside and outside of government.  And Washington, for that matter.  Maybe the web is so tightly and invisibly woven by design that we can only rip it apart in the most invasive way possible.

I'm not a huge fan of this idea.  I'm an attorney.  I'm an artist.  That's two reasons why I am, at heart, a civil libertarian.  I hate the idea of anything that infringes on individual liberty.

But I can think of something I hate as much:  the use of violence to deprive anyone of life, liberty, the pursuit of happiness, or the democracy that millions have sacrificed to preserve.

Do you have an alternative?  Let me know.  It's worth a discussion.  Discussion, after all, is really at the heart of democracy in the first place.  Let's sort this out together.

Let's stop taking shots at each other.  Figuratively, and literally.

While we've still got a country worthy of sacrifices.