Healthy Guns

A.D. Freudenheim, The Editor

In September, a Federal court in New Mexico ruled that the police search of a man carrying an unconcealed (holstered) gun into a movie theater was illegal, a violation of his Fourth Amendment rights under the Constitution. The police search was apparently predicated on a call by the owner of the theater, after seeing the man enter; the police searched and then released him, though they made him leave his gun in his car.

I heard about this case through a posting on Reason’s blog (here), which also quoted a news item in the Wisconsin Gun Rights Examiner (here) that said: “The court also found that merely being armed does not automatically make a person armed and dangerous, which would be necessary to justify a limited protective search (Terry stop) that justify officers disarming an individual.”

A few weeks after I saw that item, there was a big story in the New York Times (here) about a young boy—a first-grader—who was suing to overturn his suspension from school for having brought his Boy Scout-approved camping utensil (combination fork, spoon, and knife) to school. The boy violated a school district rule that prohibits dangerous weapons, for which the knife portion of the tool apparently qualifies.

In the latter case, the school administrator in the case had been steadfast in saying he is only applying the rules, equally and without discrimination. In the former case, the man in New Mexico was free to carry his gun because there is no state law prohibiting the carrying of an unconcealed firearm nor, it seems, did this particular theater have its own sign prohibiting guns.

Then there are the people who brought guns to various events with President Barack Obama over the summer, from handguns to assault weapons. Also armed but presumed not dangerous, despite the fact that their very appearance at Obama’s rallies was anger-induced. Of course, what might be anger-inducing here is the heavy irony of the Obama administration permitting gun-toting protesters … following eight years of a Bush administration that sought to squash and make invisible all protesting. Never mind the inconceivability of the Bush-era Secret Service ever having allowed gun-toting citizens within a mile of a rally for the president or his vice president!

And here is where it once again all converges for me: as a nation and a society we have completely failed to sort through and address what you might call “first principles” on the issue of whether anyone can be legally “armed,” and if so, with what weapons and for what purpose.

Yes, we have the Second Amendment to the United States Constitution, adopted in 1789, and which proposes to give citizens the rights to “bear arms.” Even accepting the traditional, NRA-style interpretation of that Amendment, we must acknowledge that it dates to 1789. And we must therefore remind ourselves of the many other elements of the Constitution that have changed or been reinterpreted in the two centuries since, to adapt to new situations and understandings, as the world has changed. The idea that the Second Amendment is sacrosanct, untouchable, and not open to (re)interpretation is absurd.

While people are (in some states) allowed to bring their guns wherever they go, without significant oversight, weapons training, or lessons in good citizenship … other states, and often the same ones, have absurdist rules religiously obeyed that would suspend a kid from school for an “offense” that is itself so offensive as to be lacking in logic. He’s a 6 year old: why not have the teacher take the pen knife away for a day and give it back to him when he goes home? Heck, it is probably a lot easier to disarm a 6 year old than it is an adult with a strong psycho-emotional attachment to his hip-holstered Glock.

All of these things just remind me of the grander failure of our political and legal structures in the face of broad societal changes. At every level, our politicians—our new, Messianic president included—are too much in the thrall of people whose bought-and-paid-for views take precedence over a more fundamental understanding of the value of their citizenship, or the needs and rights of the rest of us, as individuals and members of different communities.

Back in March, I wrote about another tragic gun violence situation as representative of the degree to which our society’s approach to this and related problems is out of whack. The premise, and the problem, remains the same: our police and other law enforcement officers can only address the symptoms of such illnesses. They do not have the right to address the underlying causes. That responsibility belongs to us, the citizenry.

What we need is, in effect, another Constitutional convention. We need an opportunity to evaluate and address some of the broad thematic changes in our society over the last few centuries, and then develop a new set of principles—carefully evolved from our current Constitution—that help shape the direction of this country for another 220 years. From guns to nationwide healthcare to “net neutrality,” our communities and our country look radically different than they did several centuries ago. Attempting to “fix” many of our problems without first agreeing to the principles that should guide us will, instead, only lead us further astray. Don’t believe me? Just ask yourself whether you think a “public option” in health insurance is a good idea or not, then check with your neighbor, and then read the news.

We are boxed in, trapped, for a cage match we didn’t anticipate or ask for—and a good portion of the population will be coming to this fight armed and, quite possibly, dangerous. Be sure to bring your combination camping utensil.

Preventing Obama

A.D. Freudenheim, The Editor

If I was in the message management business (and I am), and I had a client with terrible, horrible news to release to the world or a potentially disastrous idea to float, well heck: the days before a long, holiday weekend might be perfect. Few people are paying attention to the news as it is; even fewer when focused on sunny weather and beach blanket bingo in the days ahead.

However, I do not know whether I would be clever enough (or Machiavellian enough) to coordinate the release of this terrible, horrible news with a speech timed as a counter-point to a speech given by one of my client's biggest critics. Seriously, it's hard to get one’s critics to cooperate! It takes tremendous resources and planning, and a stealthy streak worthy of a come-from-behind presidential candidate.

Therefore, it should be no surprise to anyone reading this that the person who released the terrible, horrible news was President Barack Obama, and the clever (or Machiavellian) maneuver was to share the information alongside a critical speech given by former Vice President Dick Cheney.

And the news that was released?

That President Obama favors a program of "preventive detention," sort of like what repressive, authoritarian, mock-democratic regimes (c.f., China, Egypt, Iran) use to reign in people and perspectives they don't like. Rather than worry about having to try suspects after they have committed a crime, Obama’s proposal would allow for indefinite detention without a trial where evidence is presented that suggests someone was planning a crime. The New York Times ran two articles about this, the first on 21 May (“Obama Is Said to Consider Preventive Detention Plan”), the second on 23 May (“President’s Detention Plan Tests American Legal Tradition”). There are plenty of others, too.

Thankfully, I am not alone when I say—loudly and unambiguously—this is bullshit. I will dispense with reciting chapter and verse on why such a “preventive detention” plan is unconstitutional. Senator Russ Feingold has done this eloquently enough for anyone interested, while underscoring that Congress (or at least one Senator) is watching and intends to stand guard on this issue. Senator Feingold: thank you!

What I will say is: this entire episode represents a huge political and philosophical disappointment. First, the point/counter-point construct of the speeches was both an obvious and unnecessary distraction. As president, Obama has his choice of speaking moments; he can only have agreed to this because he believed that the media’s (and public’s) focus on the “Thrilla Near the Hilla” (as Washington Post columnist Dana Milbank dubbed it) would distract from the substance of the issues and his articulation of an unsatisfactory policy plan. Otherwise, he would have given his policy address when he knew (as with many others) that it, and he, would be the sole focus of attention.

Second, it is disappointing because a politician as smart as Obama, in an environment as politically charged as this one, should know that it is hard to embrace the ideas of one’s opponent without losing credibility—unless you do so (as Bill Clinton did with policy issues like welfare reform and debt reduction) by embracing the political substance, the underlying logic, and even the fallout. President Obama has not done that; he has not suddenly started talking like Dick Cheney and George W. Bush. Indeed, quite the opposite.

Which leads to the third disappointment: the lingering suspicion that President Obama wants to have it both ways. He seems to want to be respected for charting a course that is not that of the Bush/Cheney years—e.g., one that places diplomacy, not force, at the center of our global leadership—while at the same time being given permission to pursue the same nasty, off-the-books habits, tactics, and policies, but in a manner that is more effectively off-book.

The world is a nasty place, and President Obama’s original, campaign-era formulation that faux-righteous might will not protect us remains as true now as it was then. Hidden righteousness, in the form of “preventive detention,” is unlikely to protect us, either. It only degrades our democracy, our society, and the quality of both our government and our moral judgment. On this issue, President Obama should be stopped.

UPDATE: In his 31 May column for the New York Times, Frank Rich dissects Dick Cheney's speech and the way it was reported in the news - and, very helpfully, points to an article by Jonathan S. Landay and Warren P. Strobel, writing for McClatchy, that points out 10 "inconvenient truths" that Cheney overlooked. That article is worth reading.

Regressive New York?

A.D. Freudenheim, The Editor

Vermont, Massachusetts, Connecticut, Maine, and even Iowa all now permit “opposite marriage,” while “liberal” New York (and California, too) lag behind. An excellent article in tomorrow’s New York Times notes that as a new bill makes its way through the legislature, some New York politicians seemingly remain closed-minded. For example, Jeremy Peter’s article has a great story about a State Senator, as in this snippet:

Proponents of same-sex marriage who visited Mr. Onorato in his office in Long Island City acknowledge they have not made much progress.

“He said right off the bat that marriage is between a man and a woman, and that this is a religious issue,” said Jeremiah Frei-Pearson, 31, a child advocacy lawyer who went to the senator’s office two weeks ago accompanied by a gay man and a straight official from one of the state’s most powerful labor unions.

“I explained to him that I go to church every week and that religion teaches us not to discriminate,” Mr. Frei-Pearson said, “and that ultimately your faith should be kept separate from this decision-making process.”

He said he also tried to appeal to Mr. Onorato by explaining that he was engaged to a black woman, and that an interracial relationship like his (Mr. Frei-Pearson is white) would have been frowned upon years ago, just as many gay relationships are today.

“None of that seemed to resonate,” Mr. Frei-Pearson said.

To which I can only say: wow! Great reporting, great quotes … backwards politician!

The many perspectives (and resistance) to gay marriage in New York might be a reflection of a quality of our state that is, in an odd way, less at issue in places like Vermont, Maine, and Iowa: diversity. The same can be said of California, a similarly large and divided state. Logically, one might expect homogenous societies to enforce orthodoxy and resist (seemingly) heterodox notions like acceptance of gay marriage, let alone gays themselves—while diverse communities should be the opposite. The logic, though, may overlook the much more complicated set of connections between people’s sense security and (emotional) safety. In a funny way, places like New York may be more challenging political and social environments precisely because they toss many, many different people and perspectives together.

Not buying it? Me either, necessarily, because it starts to sound like another excuse. The truth is that this is a classic case of groundless discrimination, for which too many bad excuses have already been offered.

With the new bill in the state legislature, New York’s politicians have an opportunity to show that such discrimination has no place in a society like ours. Whether you live downstate in New York City, or upstate in Buffalo, our state needs people who want to live here, make their lives and livelihoods here, pay taxes here, raise families here, and contribute to our society—regardless of whether they love someone of the same sex. Preventing gay marriage discourages people from making their homes here, and that’s no good for anyone.

Citizens of New York: contact your State Assembly member and State Senator and make your voice heard.

Shotgun Wedding

A.D. Freudenheim, The Editor

Two weeks ago, I wrote about the terrible problem of gun violence in the United States (“Where’s My Gun”), and the failure of our country and our culture to address the subject rationally—never mind actually come to any practical conclusions. In the days since, two other very public shooting “rampages” have occurred, one in Binghamton, New York and the other in Pittsburgh, Pennsylvania. In both cases, there is evidence to suggest that shooters Jiverly Wong and Richard Poplawski acquired guns under questionable circumstances. Those are presumably the circumstances to which the National Rifle Association (NRA) refers when it says our government should be enforcing the gun laws that already exist, even as it continues to foment fear of “liberals” taking away the guns of good Americans.

Meanwhile, last week the Iowa state Supreme Court ruled that “gay” marriage is legal, under an equal protection clause that prohibits discrimination without a meaningful government interest in a specific outcome. Days later, the Vermont state legislature overrode Governor Jim Douglas’ veto of a bill that legalized gay marriage, making Vermont the first state to pursue this course of action through its legislature.

These subjects are connected, because they reflect important underlying, unresolved tensions in our society, around a set of problems and failures by people on every side of both issues. Even if married homosexual couples have no express or explicit interest in firearms—or gun owners have no homosexual attractions, let alone the desire for marriage—both groups should be united around a common set of legal principles that would permit them to act responsibly around their own interests. There are two Constitutional principles at stake here, and neither involve the Second Amendment. At issue are the Ninth and Tenth Amendments, which read, respectively:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Constitution says nothing at all about gay marriage. One can imagine this is because such marriages were not even a consideration at the time the document was authored, which might very well be true. But a careful reading of the Constitution will remind any reader that many things go unmentioned; indeed, it says nothing about marriage of any kind. The purpose of the Ninth Amendment was in part to ensure that the exclusion of a particular point from the text of the Constitution should not be taken to imply a prohibition on that issue. Accepting the NRA’s particular interpretation of the Second Amendment might be seen to offer gun owners an official leg-up—but the mention of bearing arms does not implicitly receive greater legal resilience just because it is explicitly stated. The power of the Ninth Amendment should be respected, as should the subsequently enumerated right for the states to make decisions about issues not mentioned in the Constitution.

Theoretically, a rejectionist response to gay marriage could point not to the Constitution, but to the Bible—except that as presently constructed in the United States, this is not a religious issue but a legal one. While religion may have informed the creation of the Constitution of these United States, religion is also explicitly not the framework under which legal decisions are made. The Constitution respects the right of the people to practice their religion, and also distinguishes between religious practice and state-held legal authority. (Never mind that the Bible does not say anything about a range of issues mentioned in the Constitution, including a specific right to own guns, as well as those of copyrighting and patent-holding.)

Supporting the fullest and widest interpretation of both Constitutional amendments should unify these seemingly-disparate groups, and remind us that we do not have to like or approve of every decision made by our neighbors or fellow citizens—but we do need to respect them. If supporters of gun rights also argued for the preservation of other fundamental, Constitutional rights, and if (conversely) gay rights advocates supported the right to bear arms as part of a similar interpretation of the Constitution, we might have more than just a new political coalition. We might have a more vibrant Constitutional democracy.

***

Asides of one kind or another:

• Mark Guarino, correspondent for The Christian Science Monitor, had a thoughtful article from 6 April about how Iowans are reacting to their state Supreme Court’s decision regarding gay marriage.

• National Public Radio’s Michele Norris had an amazing interview with gun store owner Johnny Dury a few days ago; NPR’s web site has an abbreviated text version of the story posted, but the full audio version (linked from that page) is worth a listen, no matter where you are in the United States or what you believe about this situation.

• Back in 2004, I wrote a piece about gay marriage (“Union vs. Confederacy?”) arguing that “marriage” should be left to religious institutions, while the state should be responsible for civil unions. This would ease the tension over “gay marriage” by allowing for appropriate discrimination based on religious beliefs, while reinforcing equal protection under the law. In an opinion piece from The New York Times, “A Reconciliation on Gay Marriage,” by David Blankenhorn and Jonathan Rauch, published 22 February 2009, a similar approach is articulated.

Where's My Gun?

A.D. Freudenheim, The Editor

The gun violence in America is seemingly endless. Just this afternoon, as I sat down to write about this issue after two weeks of rumination, the news flashed yet another story of more of the same: “Police: NC nursing home shooting kills 6, hurts 3,” reports the Associated Press. I find nursing homes aggravating and dispiriting, too, but I have no plans to shoot them up.

Here is what is on my mind about this whole subject, prompted by the shooting spree in the towns of Samson and Geneva, Alabama on 11 March 2009: if the National Rifle Association (NRA) claim that an armed populace helps stop crime is so true, how did Michael McLendon manage to kill 10 people before being stopped by the police? That’s the question, and it’s just that simple. And here is some context to help consider this issue.

According to the Violence Policy Center (VPC) of the Centers for Disease Control and Prevention (CDC), in 2005 the “Household Gun Ownership” rate in Alabama was 57.2%, while the “Gun Death Rate” was 16.18 per 100,000. Alabama ranks 5th in the VPC’s rankings of per capita gun-related deaths (behind, in descending order, Louisiana, Alaska, Montana, and Tennessee). The VPC’s argument is simply stated: “States in the South and West with weak gun laws and high rates of gun ownership lead the nation in overall firearm death rates,” and the statistics seem to back this up.

At the same time, according to the Alabama Policy Institute's web site, “Firearms are used far more often to stop crimes than to commit them. In spite of this, anti-firearm activists insist that keeping a firearm in the home puts family members at risk, often claiming that a gun in the home is 43 times more likely to be used to kill a family member than an intruder.” Of course, to be fair to the Alabama Policy Institute (which thanks visitors to its web site for their “commitment to Alabama's families and Alabama's future”) they are not being super-thoughtful about their gun policy perspectives, and are instead just quoting from “Fables, Myths, and Other Tall Fairy Tales about Gun Laws, Crime, and Constitutional Rights,” by the National Rifle Association, as noted at the bottom of their page on “Gun Control Myths.” Surely the NRA would not lie. Right?

So, again: where were the guns during the Alabama shooting spree, aside from the ones being used by the murderer and, eventually, the police? If 57% of Alabama households have guns, and guns are used more often to stop crimes than to commit them, did Michael McLendon just happen to pick targets within the 43% of non-gun-owning households in Alabama? It was not like he was particularly stealthy or selective: the Reuters article reports that he was “firing at random” as he drove through town, including during an apparent stop at a service station. No one at the service station had a gun? Perhaps they just couldn’t get to it fast enough, or maybe they were too afraid, given that McLendon seemed to be shooting randomly. (That’s not blame: I know that in all likelihood I would be searching for safety in a situation like this.)

I am not blaming the victims of this terrible, terrible tragedy. They didn’t ask to be shot and killed. Among them was the wife and child of a deputy sheriff there, and that too raises further interesting questions, worthy of pursuit and pondering: what is this sheriff’s take on gun control issues? And the rest of the police in Alabama, too: do they also subscribe to the “if guns are outlawed, only outlaws will have guns” perspective?

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In accepting my own contradictions, I’m comfortable calling myself a solid libertarian who nonetheless finds some intellectual appeal in the Thaler / Sunstein approach to laws and decision-making. What does that mean in plain English? Here goes—in four parts.

Part 1. The libertarian in me supports the fundamental Second Amendment right to own guns. This is less because of the United State’s Constitution’s Second Amendment per se, and more because (as a libertarian) I do not like unnecessarily restricting people’s freedoms or blaming an object for its misuse by human idiots. (It is, to my mind, largely true that “guns don’t kill people, people kill people,” and people have been killing each other aggressively since long before the invention of guns.) From cars to cigarettes to people who mix household cleaners containing chlorine and ammonia, we live in a dangerous world. But it’s not the fault of chlorine and ammonia that someone dumped them together.

Part 2. At the same time, the positions of the NRA are generally unsustainable; it is too simplistic by far to say there should be no restrictions on gun ownership at all, period. We agree, as a society, to regulate a broad swathe of things for the common good—from automobiles to zoos—so the idea that guns alone should be exempt from such a regulatory process is absurd.

Part 3. Part of what American society needs is a more honest and open debate about the cost to our society of gun regulation or deregulation. We have never really had a genuine national assessment of the issue—the “issue” here being the cost to our society in human life, not the regulation of guns. I don’t hold out much hope for this, just as I am not holding my breath for health care “reform” or that the Obama administration will push back on AIPAC, but it’s still a worthy goal.

Part 4. In the Thaler / Sunstein mold, we should consider moving away just from broad attempts at regulation or deregulation of guns, and towards a system that incentivizes responsible ownership and citizenship across the board—while imposing harsh penalties for those who abuse their rights.

We cannot simply eliminate guns from our society and our country; to think that we can is as simplistic as the views of the NRA. We can do a better job of trying to learn from tragedies like the one in Alabama, and do a better job of having real discussions about the impact of our choices—while pushing back on the fuzzy-headed thinking about this issue that comes from the extreme right and extreme left of our political spectrum.

Chinese Democracy, Part II

A.D. Freudenheim, The Editor

It’s Sunday now, not Tuesday. Several days later, I am still sifting through the mental carnage wrought by President Barack Obama's inauguration and speech. That's carnage in a good way, a tableau of pleasant disbelief at how stunning—peaceful, engaging, inspiring—the inauguration was, and at the effective eloquence and intellectual honesty of Obama's speech.

The famous 1963 “March on Washington” has been a prominent discussion point around the inauguration, for obvious reasons. It has also been on my mind for purely personal ones: my grandmother traveled from Buffalo to Washington to be there for it. She was 57 at the time, and had been in the U.S. for 25 years, and I can only guess at her motivations—but it was an experience she spoke about with reverence, and she gave me the button she kept, proudly. Much as I can picture her shouting about the intifada, I can imagine her level of excitement had she lived to see Obama’s inauguration. It would surely have affirmed for her once again an unwavering belief in the strength of American democracy and society (and she would no doubt share in the collective relief that whatshisname has now left the White House).

BUT, I can also imagine that my grandmother would have seen in Obama's election and inauguration an opportunity to point to a vital lesson, one that Americans might have heeded more carefully in 2004, when we should already have detected that the presidency of George W. Bush was going terribly awry. She would have said: we must not, can not, should not take life and liberty for granted. And she would be right.

***

A few days ago, I posted a brief item about the “communist” Chinese government having censored part of President Obama's speech. This is sad if unsurprising, and at the same time it reminded me of how much I feel like our nation had a close call with a terrible, alternate destiny. When Obama said that “we reject as false the choice between our safety and our ideals,” the Chinese had not yet cut into the speech. The Russians seem to have taken a different approach, simply steering clear of emphasizing the event, according to the BBC.

Unsurprisingly, China and Russia are two examples that come to mind where both governments and citizens have, for decades now, contended with false choices of the kind Obama meant. (The citizens, it must be said, with rather less choice in the matter than the those in government.) In both cases, there is a kind of national, propagandized mythology that strong leaders are needed—and in both nations, “strong” generally means “too weak to risk being criticized by the citizenry,” and “too weak to risk having citizens hear opposing ideas.”

I reject the Philip Roth-ian notion that there is (or was) the likely potential in America for an apocalyptic shift towards fascism. Fascism is not the danger. Instead, we should fear the deadening nature of a government that had trouble acknowledging its failings and failures, that responded to criticism—internal and external—with bluster, and that sought to increase the power of the governmental-individual (the so-called “executive”) at the expense of any deliberative process. That would be the government resoundingly removed from office on November 4, 2008.

So when Obama said “We will restore science to its rightful place,” I took it to mean not only that science would be treated with respect, and that empirically derived data would no longer be abused for political purpose. I took Obama to mean that his administration will be one in which answers and actions will be derived from what we know, not merely what we believe to be true—or wish were so. That questions and basic premises will be tested, not just the likely success of a given solutions.

And when Obama said “We are a nation of Christians and Muslims, Jews and Hindus, and nonbelievers,” that too was more than just an unprecedented presidential acknowledgement of those who do not believe in a god. It was a statement of the importance of our differences, not just of our similarities, and an assertion of intellectual principle from a self-professed believer who also believes he is strong enough, sure enough of himself and his nation, to engage those with other views.

And? These are all words, true. But words matter. If words did not matter, China would not have censored the speech, and Russia would have focused more attention on Obama's inauguration in general.

I think we Americans are—finally, again—off to a good start.

Chinese Democracy

The New York Times reported today that "China Central Television, or CCTV, the main state-run network, broadcast the [inaugural] address [by President Barack Obama] live until the moment Mr. Obama mentioned “communism” in a line about the defeat of ideologies considered anathema to Americans. After the translator said “communism” in Chinese, the audio faded out even as Mr. Obama’s lips continued to move."

Brilliant maneuver! Surely that will keep the Chinese people from ever discovering that at least one person on the outside world thinks their repressive system of government is flawed. Reminded me of James Fallows' terrific essay from the November 2008 issue of The Atlantic on how the Chinese manage to screw up so consistently in managing public communication(s) and messages.

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I'll have more thoughts on Obama's inauguration and speech coming in the next few days.
Stay tuned.