Category Archives: Law

Ban the Damn Guns

America today is suffering a plague of gun violence.

It wasn’t always this way. Americans used to own guns without engaging in daily massacres. As a Chicago native, I learned as a child about the infamous St. Valentine’s Day Massacre of 1929, when members of one Chicago gang set up and killed seven members of a rival gang. It was so shocking it led to legislation that prohibited automatic weapons in the U.S.

That ban was extended with restrictions on “semiautomatic assault weapons,” as well as magazines that met the criteria for what it defined as a “large capacity ammunition feeding device,” in 1989 after 34 children and a teacher were shot and five children killed in Stockton, California with a semi-automatic Kalashnikov rifle. A pull of the trigger is required for each shot of a semi-automatic. An automatic fires continuously.

The Federal Assault Weapons ban went into effect in 1994 after a 52-48 vote in the Senate. President Bill Clinton signed it into law the same day. But times have changed. The ban expired after ten years and attempts to renew it have repeatedly failed. In 2018, another Valentine’s Day shooting, this one at Marjory Stoneman Douglas High School in Parkland, Florida, killed 17 children and wounded 17 others. This time, then-President Donald Trump called for arming teachers, and the Republican-dominated Florida legislature rejected a bill that would have limited some high-capacity guns.

Fast forward to today. Our acceptance of violence npw stands in striking contrast to Americans’ horror at the 1929 Valentine’s Day Massacre. I’ve done the legal arguments before, most notably here in a column which includes Chief Justice Warren Berger’s declaration that the conservative reading of the Second Amendment is a “fraud.”

I won’t repeat those arguments. What I do want to do is call your attention to the latest judicial idiocy, California has had its own ban in assault weapons for thirty years. Six other states plus the District of Columbia have similar bans. You would think even if the Second Amendment restricts the Federal government on gun control, language putting the right to bear arms in the context of a “well-regulated militia” would allow the states, which at the time the Bill of Rights was written controlled the militia, to pass reasonable legislation to regulate firearms.

U.S. District Judge Roger Benitez of the United States District Court for the Southern District of California now says he knows better than Berger and the state of California. He must figure the words “well-regulated” and “militia” were just thrown in because the Framers had some extra ink they wanted to use up. In a 94-page opinion Benitez declared unconstitutional the California statute. Benitez, appointed to the bench by President George W. Bush, comes out swinging with his opening paragraph:

Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939). Yet, the State of California makes it a crime to have an AR 15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.

Miller v Bonta, 19-cv-1537-BEN (JLB)

The Law and Crime blog has a detailed set of quotes from the decision. I’ll dwell on just a few. Judge Benitez writes, “The assault weapons ban has had no effect. California’s experiment is a failure.” This conclusion follows an analysis that claims the rate at which assault weapons were used in mass killings in California during the years the weapons ban has been in effect has not changed. Benitez also writes that mass killings are “rare events.” He also states, “A Californian is three times more likely to be murdered by an attacker’s bare hands, fists, or feet, than by his rifle.”

The New York Times ran a partial list of recent mass shootings in the United States.

Politifact earlier this year found that 10 of 11 mass shootings were done with AR-15 weapons. Newsweek says they were used in 26 of the last 80 mass shootings. As to his other conclusion, I have to wonder if he’d like to stand up for a duel. He gets the Swiss Army knife while his challenger gets the AR-15.

The hypocrisy of the conservatives is clearly on display here. If it is the place of judges only to “say what the law is,” Marbury v. Madison, 5 U.S. 137 (1803), Judge Benitez’s judgments on failure and the frequency of events is way out of the base path. If you believe in a state’s right to regulate its own militia, Benitez is also out of bounds.

Voters generally support an assault weapons ban. They support a large magazine ban. They support enhanced background checks. They support closing the gun show loophole. They might support amending the Second Amendment itself to clear up the poor punctuation that the gun lobby and their supporters in Congress and on the bench have used in the last few decades to prevent reasonable regulation. The United States has many more deaths by guns than other western developed countries. The United States has the weakest gun control laws in that group.

Do the math.

#####

Republicans Are Afraid of YOU!

You. Yes. You. Republicans are petrified you might discover the truth. Scared you might hold them accountable for the January 6, 2021 insurrection when a mob inspired by Donald Trump stormed Capitol Hill.

Thirty-five Senate Republicans ran from Washington, D.C. this week like rats deserting a sinking ship after driving another nail into the coffin of democracy. They were headed for another vacation. This one, ironically, to commemorate the sacrifices made by those brave men and women who put their lives on the line to protect the democracy the senators had just turned their backs on. They had just refused to cast votes to create a bipartisan, independent commission to investigate the January rebellion.

Don’t forget their names. Remember them when you see them on your ballot.

  1. John Barrasso of Wyoming
  2. John Boozman of Arkansas
  3. Shelley Moore Capito of West Virginia
  4. John Cornyn of Texas
  5. Tom Cotton of Arkansas
  6. Kevin Cramer of North Dakota
  7. Mike Crapo of Idaho
  8. Ted Cruz of Texas
  9. Steve Daines of Montana
  10. Joni Ernst of Iowa
  11. Deb Fischer of Nebraska
  12. Lindsey Graham of South Carolina
  13. Chuck Grassley of Iowa
  14. Bill Hagerty of Tennessee
  15. Josh Hawley of Missouri
  16. John Hoeven of North Dakota
  17. Cindy Hyde-Smith of Mississippi
  18. Ron Johnson of Wisconsin
  19. John Kennedy of Louisiana
  20. James Lankford of Oklahoma
  21. Mike Lee of Utah
  22. Cynthia Lummis of Wyoming
  23. Roger Marshall of Kansas
  24. Mitch McConnell of Kentucky
  25. Jerry Moran of Kansas
  26. Rand Paul of Kentucky
  27. Marco Rubio of Florida
  28. Rick Scott of Florida
  29. Tim Scott of South Carolina
  30. Dan Sullivan of Alaska
  31. John Thune of South Dakota
  32. Thom Tillis of North Carolina
  33. Tommy Tuberville of Alabama
  34. Roger Wicker of Mississippi
  35. Todd Young of Indiana

It is a who’s who of cowards. What do they fear? Afraid the commission will conclude that Donald Trump instigated the violence? Afraid some of their own members, or their fellow travelers in the House of Representatives, had aided and abetted the mob leaders? Did some help raise money to bring the rioters to Washington? Did others give special reconnaissance tours in the days leading up to the riot? Did the brother of disgraced former Trump national security advisor Michael Flynn, himself a Lieutenant General and a top Pentagon official, delay sending national guard forces to defend the Capitol? Inquiring minds want to know!

This is not the first time I’ve written about that day. I doubt it will be the last. After the 9-11 attacks on New York’s World Trade Center and the Pentagon in Washington in 2001, Congress created a bipartisan, independent commission to investigate. For the January 6 attack on Congress itself, the Republicans demanded the same kind of investigation, fearful the Democrats might use a partisan investigation for political advantage.

Heaven forbid! Might Democrats try to politicize an investigation like the Republicans did, spending millions of dollars of taxpayer money investigating the murder of diplomats in Benghazi, right-wing myths about email servers in the Ukraine and the contents of a laptop belonging to a former aid of Hillary Clinton? Yes, heaven forbid.

Still, Democrats agreed. They gave Republicans equal power on the commission, even though they have the majority votes in Congress. They agreed to have the commission report before the end of the year to avoid having the commission’s findings become a topic of the 2022 elections. Those were the Republicans’ demands.

But true to their history, Mitch McConnell, Senate Republican Leader, and Kevin McCarthy, House Republican leader, reneged on their word. Given everything they demanded, they decided it wasn’t enough. But they offered no alternative. Declined to entertain any debate. Refused to consider amendments. In truth the Republicans only proved the theory that the party now stands for nothing at all. Except for the retention of power by whatever means necessary.

McConnell’s change of mind was no surprise. The man the Internet has branded “Moscow Mitch” has been playing the Democrats for fools for years, repeatedly adopting the position that no policy involving Democrats should ever be enacted. Still Democrats pursue bipartisanship. An unattainable goal. In imploring Republicans to vote no on the commission as a personal favor to him, McConnell accused Democrats of playing politics with the investigation. The most infuriating thing is that McConnell stands on the floor of the Senate and makes these statements without a hit of emotion and in the same, droll monotone with which he makes any other hypocritical statement.

McCarthy was a little more of a surprise. On January 6th he was heard on the telephone with Trump pleading for national guard assistance at a time when the lives of both the Vice-President and the Speaker were in danger. McCarthy will most likely be called as a witness in any investigation. But now, having gone down to Mar-a-Lago for a meeting with his lord and savior, he is now apparently ready to do whatever Trump demands. And Trump demands no investigation which just might accuse him of inciting a riot. The House passed the legislation by majority vote. One hundred and seventy-five Republicans voted no.

In the Senate the commission was supported by 54 of the 100 members. But because of the arcane filibuster rule in the Senate the bill died due to its failure to achieve a supermajority of 60 votes. Once again the Senate demonstrates how undemocratic American government truly is.

We did hear from the Democratic Senate leader, New York’s Chuck Schumer. Schumer was clearly angry, although you would never know it from his statement on the floor. I am amazed that we have sent two of the dullest and most soft spoken debaters to the top positions in the United States Senate. Neither McConnell nor Schumer seem to be able to make an argument that seems like an argument.

So the Republicans continue to avoid an investigation, intent it appears on covering up the events of January 6th. Better to help them maintain their alternative universe charade, where an election that has survived at least 60 formal legal challenges was somehow tainted and the Big Liar in Chief is still President of the United States.

What will be interesting now is how Democrats react. It would be nice if this is finally the straw that breaks Joe Manchin’s back, driving the nominal Democrat from West Virginia to support efforts to get rid of the filibuster. But I doubt it. Which almost certainly also means the progressive legislative agenda of Joe Biden has little chance of being enacted.

Hopefully the House will at least take up the reigns and create a select committee to investigate January 6. Since the 9-11 commission model was not acceptable to 2021 era Republicans, Democrats can now dust off the Republican’s anti-Hillary playbook and put it into action instead. I’d like to see the committee report come out in the summer of 2022, just in time to inform voters before the 2022 midterm election.

I’d also like to see the House pass the Biden agenda. Yes it will get filibustered in the Senate. But at least Democratic members can run for election by pointing out all the things they did for the benefit of the average voter and stressing how much more could have been done it the Republicans hadn’t blocked them at every turn. If voters can’t be convinced by those arguments, I don’t see much hope for the future.

#####

Just a Normal Day on Capitol Hill

Yeah, sure.

On May 12 Rep. Andrew S. Clyde (R-Ga.) downplayed the Jan. 6 assault on the Capitol, comparing the mob’s breaching of the building to a “normal tourist visit:”

“Watching the TV footage of those who entered the Capitol and walked through Statuary Hall showed people in an orderly fashion staying between the stanchions and ropes, taking videos and pictures…. You know, if you didn’t know the TV footage was a video from January the 6th, you would actually think it was a normal tourist visit.”

Rep. Andrew S. Clyde et. al. May 12 Congressional Hearing
Read more

Pay to Play: The American Way

Money has always been a big factor in American politics. You can’t outright pay politicians in return for their vote on an issue of interest to you. That’s bribery and it’s a crime. 18 U.S. Code § 201. But you can come very close. That’s because it costs a tremendous amount of money to run for public office and we leave it to the politicians to raise their own funds.

State-wide races for governor, state legislator, or U.S. House or Senate seats can cost hundreds of thousands or millions of dollars. A major state-wide campaign requires a hefty advertising budget and paid staff to handle things like communications, strategic planning, finances, and legal compliance.

So the holders of public office, from the smallest local post to the highest in the land, spend a great amount of their time raising money to finance their elections. In fact, both the Republican and the Democratic parties have offices located within walking distance of the Capitol. That’s because it is illegal for members to raise money from offices paid for by taxpayer dollars. The party offices contain phone banks and members are expected to put in time working those phones. Dialing for dollars as it were.

What does the donor get for those dollars? As previously stated it is not as crass as, “You make the donation and I’ll vote your way.” But it’s damn close. Consider this scenario: Two constituents are on the line, both want to talk to you about a piece of pending legislation. One is an individual wage earner who is barely making ends meet and either doesn’t contribute to your campaign fund at all or gives a token $25 each election cycle. The other is a professional lobbyist who represents a Fortune 100 company. That company contributes $250,000 each year to a political action committee which runs negative advertisements about your political opponent. Which call will you take?

The Curse of the First Amendment

It is, I must painfully admit, our wonderful First Amendment which is primarily responsible for this problem. While many countries have limits on how much money can be spent on political campaigns, and restrictions on how much money can be contributed, we have to cope with the wisdom of the framers who wrote:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Constitution, First Amendment

There is little question that the right of free speech allows one to stand on the tallest soapbox one can find and speak in favor of one’s favorite political candidate. Or that the right of a free press allows journalists to write what they will about the candidates. And that right to petition the Government? That is the right both our individual constituent and the lobbyist were exercising in the example I described above.

Make no mistake about it. Political speech is exactly the kind of speech the framers were writing about when they drafted the First Amendment. This was the kind of speech that could get your head separated from your body if you uttered it back then in many of the countries of Europe and the reigning monarch happened to take offense. So for our long history as a nation political speech has been some of the most protected.

That makes it extremely difficult to restrict the political speech of individuals and does give the rich an advantage. They can afford to buy expensive television commercials and web advertisements promoting their favorite candidates and policies. At least, that’s how Mister Justice Gurvey sees it.

Citizens Dis-United

But I am unlikely to preside from any bench other than the one in my garden. And those who sit on the federal benches of the United States have a far more expansive view of first amendment freedoms. I read the Constitution to apply to the relationship between people, as in the opening words of the preamble, “We the People,” and their government. Our federal judges have thrown corporations into the mix by ruling that corporations are people.

To me the concept is absurd. Business entities that survive the lives of their owners were well known to the framers who wrote the Constitution. In fact, most of the colonies were themselves business entities in the form of royal charters or grants. If the framers wanted these business entities to have the rights of people they would have said so. They did not. And that should be that for any originalist, textualist, or whatever the term the judges on the conservative right like to cite. Except, that they want corporations to have the rights of people. So consistent judicial logic goes out the window and they wave the rules of textualism where failure to do so might lead to a legal result inconsistent with their overriding ideology. Thus speaks the hypocrite.

All of this came to a head in Citizen’s United v. Federal Elections Commission, a 2010 Supreme Court decision that eviscerated federal election law which Congress had developed over one hundred years and which put significant restrictions on corporate attempts to influence elections. Critics charge the effect has been to greatly increase the already outsized influence of corporations, wealthy donors, and special interest groups. And the Court isn’t finished. Just last month it heard Americans for Prosperity Foundation v. Rodriquez, a case that may make the situation even worse.

The Confession of Ted Cruz

So if you want to play the “let’s write the laws” game you have to pay the law-writers. But while “Pay to Play” is, thanks to the Supreme Court, perfectly legal, there is still one rule most people follow: You pay to play but you don’t talk about Pay to Play. That’s because it looks bad, because it is bad. And politicians are afraid of looking bad. At least in front of the voters.

Unless of course you are Ted Cruz, a man so out of touch with reality, or just so dumb, that he just puts it out there. Texas’s answer to all three stooges recently wrote an op-ed for The Wall Street Journal complaining about corporations that are “woke.” By that he means, corporations like Coca-Cola, whose CEO James Quincey criticized voter suppression laws now being enacted in dozens of Republican controlled states saying he opposed “measures in the bills that would diminish or deter access to voting.” Quincey said Coke’s political action committee will not contribute to the campaigns of politicians who support these laws.

Well then, huffs and puffs Cruz, Senator guy who escaped for a vacation in Mexico while the people of his state were freezing during a power outage, if you don’t pay, don’t expect to play, Yes, Cruz supports voter suppression laws, and he tweeted:

There you have it. Pay to play. The Ted Cruz way.

#####

Trump Trial #2 – sine die

US Senate

And so it is over. The second trial of Donald J. Trump, the only president to have been impeached twice, has adjourned. And Trump is now also the only president to have been found not guilty twice by the U.S. Senate. In the final tally, 57 senators, including 7 Republicans, found Trump guilty of high crimes and misdemeanors for inciting the mob that went on to breach and vandalize the Capitol, and to injure and kill law enforcement personnel. Forty-three senators found Trump not guilty. A supermajority of 67 being constitutionally required for conviction, the result was not guilty.

But only a handful of Trump’s most loyal supporters rushed to the cameras to proclaim that their leader had been exonerated by what goes down as the most bipartisan impeachment in history. The senators, and the world, saw the video of senators and members of the House fleeing for their lives during the attack on January 6th. They saw the Vice-President, Mike Pence, and his family being ushered away from the senate chamber by the Secret Service. They viewed Trump’s tweet of rage following Pence’s refusal to attempt an unconstitutional coup by rejecting of the voter’s will saying, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.” They heard testimony that Trump had sent that tweet moments after receiving word that the Vice-President’s life was at risk.

Read more

The Second Trial of Donald Trump

Been there. Done that.

It seems like just yesterday the Senate tried Donald J. Trump for High Crimes and Misdemeanors. It was in January, 2020. He was acquitted.

This time it is different. The House of Representatives sent over only a single charge, accusing Trump of inciting insurrection in a speech to supporters before the deadly attack on the Capitol. They voted for impeachment without hearings or witnesses, using only the former president’s own words against him. And unlike the first time, where the impeachment was passed on a party-line vote, this time ten Republican members of the House stood with their Democratic collogues.

Read more

trump’s attempted coup – THAT WAS the week that was

The Week is Over

The cliché says that journalism is the first draft of history. We shall have to wait the verdict of historians several years down the road to craft a title for the tumultuous events of the last week and put them into perspective. For now it shall suffice to note that the FBI is calling on citizens to help identify members of the violent mob of Donald Trump supporters who attacked the United States Capitol on Wednesday in an attempt to stop Congress from tallying the Electoral College votes declaring Joseph Biden and Kamala Harris the next president and vice-president.

It was the first time since the Constitution was ratified on June 21, 1788, that a President of the United States attempted to overturn the results of an election and remain in office after the election of his successor had been certified by the states and the District of Columbia.

Read more
« Older Entries