I don't want to comment too greatly on the ongoing investigation into Russian interference in last year's election, particularly since the investigation is ongoing and there's still a lot of information which has yet to come out. The second we think there's an "ah ha!" moment, something else comes out which complicates things. It's a slow drip that hasn't exonerated anyone yet, but hasn't exactly given us a smoking gun.
Personally, for every new revelation, I only end up with more questions than answers. A few of mine:
If the Russians were backing Clinton's only two major competitors (Sanders and Trump), what would the election have looked like without Russian interference?
More specifically, would it even have looked like an election? As it stood, most of the other Democrats seeking the nomination dropped out before a single vote was cast, and O'Malley dropped out after the Iowa caucus. The only other candidate in the race after the very first caucus was Bernie Sanders, who managed to both out-fund raise and out-spend Hillary Clinton's campaign in the primaries. That by itself certainly raises questions about where Sen. Sanders' funding was all coming from, but assuming Russian involvement was steering money to Sanders, why was there no other candidate in the Democratic primaries receiving any significant support? There was no incumbent in the primary, yet Sec. Clinton was treated like an incumbent by the fundraising class. Why?
As for Trump, Sec. Clinton out-fund raised now-President Trump by a cool $230 million. It wasn't enough to carry her over the finish line, but why were these her only two major competitors? Why was absolutely nobody else able to even come close to challenging her?
The American political establishment seemed content to simply allow Sec. Clinton to have this one, leaving the field open for her to win in a walk. The problem is that nature abhors a vacuum, and in place of American candidates challenging her candidacy, we got Russian candidates, instead. Because this is not the first time Russia has tried to influence our elections. It's just the first time they've been able to do so successfully. And if it wasn't because there was nobody else challenging a frankly weak candidate, then I'd like to know exactly what was different about this election that allowed them to throw it to a vulgar, semi-literate game show host.
Wednesday, February 21, 2018
Gun policies that could actually win
I'd like to follow up on my previous post with a couple suggestions for gun policies which I feel would meet the criteria I specified yesterday.
In an online conversation which had varying degrees of helpfulness, I came across two suggestions which have been floating around that I can get behind: the first was to increase the age requirement for purchasing a firearm to 21. The second is mental health screening to go along with criminal background checks. The first one is fairly straight-forward, but the second comes with a few caveats.
The proposed age requirement increase would be consistent with laws dealing with handguns. Currently, 18 year-olds can purchase rifles and shotguns, but they can't purchase handguns. This distinction had to do with the fact that handguns were (and still are) the mostly commonly used weapons in homicide. However, these mass school shootings have been carried out with rifles. The main advantage of a handgun over a rifle is its ease of concealment. However, as we've seen, most schools lack the security to stop a disgruntled student (or former student) from charging into a school with a rifle and wreaking havoc. While 18 to 20 year-olds are permitted to serve in the military and carry rifles as part of their duties, those people are trained and supervised, and those rifles are checked into armory. The soldiers do not own their rifles any more than Boy Scouts who shoot .22 caliber rifles at summer camp do. That is a fairly large distinction.
This is a proposal which likely actually would reduce the number of school shootings. While students would still potentially have access to their parents' firearms, they would not be able to procure their own. It places a very real barrier between an upset teenager for whom school has been their only world and the means of taking their anger out on their peers and teachers. Further, we could incentivize parents to secure their firearms by holding them accountable if their children use those firearms to harm others. We probably wouldn't even need a criminal statute. A tort would do, covering it under the umbrella of "wrongful death."
The second is a bit trickier, but with some specifications about types of mental illness which would prevent someone from purchasing a firearm as well as judicial adjudication, this could be accomplished while meeting people's due process rights. David French at National Review proposed a process called Gun-Violence Restraining Orders, in which family members can petition the court to bar someone they believe to be dangerous from purchasing a firearm for a time.
If activists want to make progress on gun legislation, they should focus on these two policy proposals. Let me go down the list of questions I raised yesterday:
Will the policy have a desirable effect?
Yes and yes. If the desire is to reduce the number of mass shootings at schools, both of these proposals would make it substantially more difficult for disturbed young men to carry out these horrific acts.
Is the policy enforceable?
Yes and yes. Both of these are enforced at the point of sale, and if the firearm dealer sells the weapon to the assailant, they can be held civilly and criminally liable.
Will it meet Constitutional scrutiny?
Yes and yes. Handguns are already age restricted to 21 and over without any constitutional concerns, and the mental health screening as proposed observes due process concerns.
Does the state have a compelling interest in restricting this right?
Yes and yes. As these types of mass shootings are growing increasingly common, the impulse control problems of young men are of concern, as are mental health issues.
Are there other factors at play?
Probably, but the impulsiveness of young men and erratic nature of the mentally ill are both well known, and restricting both of these demographics' access to firearms is something actionable we can do while trying to figure out why there's been a seeming spike in these types of dramatic events.
Am I informed enough on this issue to have an educated opinion?
In this particular instance, I think so. I'd welcome any feedback to the contrary.
Am I being honest about my motivations?
My motivation is to make the world less dangerous without making it substantially less free. The above proposals do not place an undo burden on stable, law-abiding citizens, but they do place barriers in front of maniacs who would do people harm. They're solutions I can live with.
In an online conversation which had varying degrees of helpfulness, I came across two suggestions which have been floating around that I can get behind: the first was to increase the age requirement for purchasing a firearm to 21. The second is mental health screening to go along with criminal background checks. The first one is fairly straight-forward, but the second comes with a few caveats.
The proposed age requirement increase would be consistent with laws dealing with handguns. Currently, 18 year-olds can purchase rifles and shotguns, but they can't purchase handguns. This distinction had to do with the fact that handguns were (and still are) the mostly commonly used weapons in homicide. However, these mass school shootings have been carried out with rifles. The main advantage of a handgun over a rifle is its ease of concealment. However, as we've seen, most schools lack the security to stop a disgruntled student (or former student) from charging into a school with a rifle and wreaking havoc. While 18 to 20 year-olds are permitted to serve in the military and carry rifles as part of their duties, those people are trained and supervised, and those rifles are checked into armory. The soldiers do not own their rifles any more than Boy Scouts who shoot .22 caliber rifles at summer camp do. That is a fairly large distinction.
This is a proposal which likely actually would reduce the number of school shootings. While students would still potentially have access to their parents' firearms, they would not be able to procure their own. It places a very real barrier between an upset teenager for whom school has been their only world and the means of taking their anger out on their peers and teachers. Further, we could incentivize parents to secure their firearms by holding them accountable if their children use those firearms to harm others. We probably wouldn't even need a criminal statute. A tort would do, covering it under the umbrella of "wrongful death."
The second is a bit trickier, but with some specifications about types of mental illness which would prevent someone from purchasing a firearm as well as judicial adjudication, this could be accomplished while meeting people's due process rights. David French at National Review proposed a process called Gun-Violence Restraining Orders, in which family members can petition the court to bar someone they believe to be dangerous from purchasing a firearm for a time.
While there are various versions of these laws working their way through the states (California passed a GVRO statute in 2014, and it went into effect in 2016), broadly speaking they permit a spouse, parent, sibling, or person living with a troubled individual to petition a court for an order enabling law enforcement to temporarily take that individual’s guns right away. A well-crafted GVRO should contain the following elements (“petitioners” are those who seek the order, “the respondent” is its subject):The GVRO could be the first step in having a court declare a person unfit to purchase a firearm and thus have them flagged on a background check. This process would protect Constitutional rights while placing substantial barriers in front of people who are clearly unfit to own firearms.
- It should limit those who have standing to seek the order to a narrowly defined class of people (close relatives, those living with the respondent);
- It should require petitioners to come forward with clear, convincing, admissible evidence that the respondent is a significant danger to himself or others;
- It should grant the respondent an opportunity to contest the claims against him;
- In the event of an emergency, ex parte order (an order granted before the respondent can contest the claims), a full hearing should be scheduled quickly — preferably within 72 hours; and
- The order should lapse after a defined period of time unless petitioners can come forward with clear and convincing evidence that it should remain in place.
If activists want to make progress on gun legislation, they should focus on these two policy proposals. Let me go down the list of questions I raised yesterday:
Will the policy have a desirable effect?
Yes and yes. If the desire is to reduce the number of mass shootings at schools, both of these proposals would make it substantially more difficult for disturbed young men to carry out these horrific acts.
Is the policy enforceable?
Yes and yes. Both of these are enforced at the point of sale, and if the firearm dealer sells the weapon to the assailant, they can be held civilly and criminally liable.
Will it meet Constitutional scrutiny?
Yes and yes. Handguns are already age restricted to 21 and over without any constitutional concerns, and the mental health screening as proposed observes due process concerns.
Does the state have a compelling interest in restricting this right?
Yes and yes. As these types of mass shootings are growing increasingly common, the impulse control problems of young men are of concern, as are mental health issues.
Are there other factors at play?
Probably, but the impulsiveness of young men and erratic nature of the mentally ill are both well known, and restricting both of these demographics' access to firearms is something actionable we can do while trying to figure out why there's been a seeming spike in these types of dramatic events.
Am I informed enough on this issue to have an educated opinion?
In this particular instance, I think so. I'd welcome any feedback to the contrary.
Am I being honest about my motivations?
My motivation is to make the world less dangerous without making it substantially less free. The above proposals do not place an undo burden on stable, law-abiding citizens, but they do place barriers in front of maniacs who would do people harm. They're solutions I can live with.
Tuesday, February 20, 2018
Memes don't make good policy
The ongoing debate about gun control in this country, which seems to spring back to life in the wake of any mass shooting, is broken. Like a broken record, it skips back to a certain point and plays on repeat until it runs out of steam and goes back into hibernation until the next mass shooting. With nothing resolved, people remain content to play out the same tired arguments again and again, having learned nothing. Rather, we simply go back to yelling at strangers on the Internet or else withdraw from the discussion entirely out of sheer exhaustion while friends and loved ones share simplistic memes on social media to the applause of people who already agree with them and the righteous indignation of people who don't.
A more productive conversation could be had, but it requires people to step back from their passionately held views and ask a few questions. There are ways to construct good policies, but it requires acknowledgement of realities. The shortest path between two points may be a line, but that's irrelevant in a mountain range or a minefield. Obstacles exist whether we want them to or not, and more often than not, they exist for a reason.
Some questions to ask when constructing new policy:
Will the policy have a desirable effect?
A common policy proposal in the wake of a mass shooting is to ban the type of firearm used in the shooting. Will banning this firearm stop future mass shootings? To answer that question, we need to examine other questions. Are there other firearms with similar lethality and functionality? If yes, do you need to broaden the scope of your proposal? This leads to other questions.
Is the policy enforceable?
Another policy which is proposed is universal background checks. For the most part, background checks are requirement of any Federal Firearms License holder. However, private sales between individuals are not covered under that. Several states do have such a background check requirement, but it doesn't exist at the federal level. If such a requirement were to be implemented, how would it be enforced? The last time such a requirement was proposed, there were concerns about the implementation of a national firearm registry. Such concerns were dismissed, insisting that such a registry would not be implemented, but without such a registry, the background check requirement would be toothless. Without a way to track who sold the firearm to the person using it to commit a crime, there is no way to hold anyone accountable. Are we okay with a national firearm registry? If so, this leads to the next question.
Will it meet Constitutional scrutiny?
Something important to remember is that the right to keep and bear arms is a right protected by the Second Amendment to the Constitution of the United States. This is a point of contention, but it shouldn't be. Many on the pro-gun control debate still believe that the Second Amendment only applies to members of a "well regulated militia," but in addition to being nonsensical, the question has already been adjudicated by the Supreme Court. In District of Columbia v. Heller (2008), the Supreme Court held that the Second Amendment protects an individual citizen's right to own firearms untethered to membership in a militia. In McDonald v. City of Chicago (2010), the Court clarified that this also applies to state governments, not just federal districts. This is two separate holdings, and while both of them were 5-4 decisions, case law doesn't work like legislation. The principle of stare decisis places strong institutional resistance against overturning previous rulings absent new information. It's not simply a matter of whether or not individual justices would be inclined to overturn the holdings in these cases, but whether or not the Court would even hear any challenges to them. Absent new information, if a circuit court affirms the previous case law in its ruling and a state were to appeal to the Supreme Court, it is unlikely that the Court would hear their case, and the decision would stand.
Some proponents of gun control argue that D.C. v. Heller was wrongly decided, but while it's reasonable to have differing opinions on the merits of existing case law, particularly cases decided on a 5-4 vote, the fact is this case law exists. This interpretation of the Second Amendment is binding. Any new policy proposals must meet the following question:
Does the state have a compelling interest in restricting this right?
One could argue that it does, but if your proposal is to ban AR-15s, then you have to explain why this particular semiautomatic rifle needs to be banned, but not others. If your proposal is to ban all semiautomatic rifles, then you're going to have a much steeper hill to climb due to Heller's "common use" test. In the case of banning all semiautomatic rifles, which are in very common use, it doesn't meet the standards of the prior question and it will be struck down by the courts. But banning a particular firearm might, provided you can explain why this firearm is uniquely dangerous. If you can't, be ready to fail.
Are there other factors at play?
I won't dwell here too long, but before proposing to restrict people's rights, it might be worth considering whether there are other problems which can be addressed first which don't require restricting a Constitutional right.
Am I informed enough on this issue to have an educated opinion?
I respectfully submit that if you're not familiar with Heller, the answer to that question is "no." If you don't know the difference between an automatic and a semiautomatic weapon, the answer is "no."
Understand that people who are against gun control know about guns. They will use their knowledge to discredit you, to great effect. Educate yourself, then come back to the table. If you don't, be ready to fail.
Am I being honest about my motivations?
If you propose a policy, make sure you're being honest with yourself and others about what your ultimate goals are. If you're just particularly concerned about a certain model of rifle, then say why. If what you really want is to repeal the Second Amendment and sharply restrict firearm ownership, then say so, and then read up on the process for a constitutional amendment. It's an onerous process, and if you think that passing gun control legislation in Congress is hard, try getting a two thirds majority in both houses to agree on this ultimate sanction.
If it is your goal to eliminate firearms in the United States, understand the road you have ahead of you. You are going to have to change people's minds on a massive scale. Half-literate snarky memes are not going to be the way to do it. And if your goal is to make the world stop being unsafe for children, then there's no historical precedent for that. I can't offer any advice on how to do something which has never been done in the history of humanity. For now, you're just going to have to settle for teaching your children to navigate a dangerous world.
A more productive conversation could be had, but it requires people to step back from their passionately held views and ask a few questions. There are ways to construct good policies, but it requires acknowledgement of realities. The shortest path between two points may be a line, but that's irrelevant in a mountain range or a minefield. Obstacles exist whether we want them to or not, and more often than not, they exist for a reason.
Some questions to ask when constructing new policy:
Will the policy have a desirable effect?
A common policy proposal in the wake of a mass shooting is to ban the type of firearm used in the shooting. Will banning this firearm stop future mass shootings? To answer that question, we need to examine other questions. Are there other firearms with similar lethality and functionality? If yes, do you need to broaden the scope of your proposal? This leads to other questions.
Is the policy enforceable?
Another policy which is proposed is universal background checks. For the most part, background checks are requirement of any Federal Firearms License holder. However, private sales between individuals are not covered under that. Several states do have such a background check requirement, but it doesn't exist at the federal level. If such a requirement were to be implemented, how would it be enforced? The last time such a requirement was proposed, there were concerns about the implementation of a national firearm registry. Such concerns were dismissed, insisting that such a registry would not be implemented, but without such a registry, the background check requirement would be toothless. Without a way to track who sold the firearm to the person using it to commit a crime, there is no way to hold anyone accountable. Are we okay with a national firearm registry? If so, this leads to the next question.
Will it meet Constitutional scrutiny?
Something important to remember is that the right to keep and bear arms is a right protected by the Second Amendment to the Constitution of the United States. This is a point of contention, but it shouldn't be. Many on the pro-gun control debate still believe that the Second Amendment only applies to members of a "well regulated militia," but in addition to being nonsensical, the question has already been adjudicated by the Supreme Court. In District of Columbia v. Heller (2008), the Supreme Court held that the Second Amendment protects an individual citizen's right to own firearms untethered to membership in a militia. In McDonald v. City of Chicago (2010), the Court clarified that this also applies to state governments, not just federal districts. This is two separate holdings, and while both of them were 5-4 decisions, case law doesn't work like legislation. The principle of stare decisis places strong institutional resistance against overturning previous rulings absent new information. It's not simply a matter of whether or not individual justices would be inclined to overturn the holdings in these cases, but whether or not the Court would even hear any challenges to them. Absent new information, if a circuit court affirms the previous case law in its ruling and a state were to appeal to the Supreme Court, it is unlikely that the Court would hear their case, and the decision would stand.
Some proponents of gun control argue that D.C. v. Heller was wrongly decided, but while it's reasonable to have differing opinions on the merits of existing case law, particularly cases decided on a 5-4 vote, the fact is this case law exists. This interpretation of the Second Amendment is binding. Any new policy proposals must meet the following question:
Does the state have a compelling interest in restricting this right?
One could argue that it does, but if your proposal is to ban AR-15s, then you have to explain why this particular semiautomatic rifle needs to be banned, but not others. If your proposal is to ban all semiautomatic rifles, then you're going to have a much steeper hill to climb due to Heller's "common use" test. In the case of banning all semiautomatic rifles, which are in very common use, it doesn't meet the standards of the prior question and it will be struck down by the courts. But banning a particular firearm might, provided you can explain why this firearm is uniquely dangerous. If you can't, be ready to fail.
Are there other factors at play?
I won't dwell here too long, but before proposing to restrict people's rights, it might be worth considering whether there are other problems which can be addressed first which don't require restricting a Constitutional right.
Am I informed enough on this issue to have an educated opinion?
I respectfully submit that if you're not familiar with Heller, the answer to that question is "no." If you don't know the difference between an automatic and a semiautomatic weapon, the answer is "no."
Understand that people who are against gun control know about guns. They will use their knowledge to discredit you, to great effect. Educate yourself, then come back to the table. If you don't, be ready to fail.
Am I being honest about my motivations?
If you propose a policy, make sure you're being honest with yourself and others about what your ultimate goals are. If you're just particularly concerned about a certain model of rifle, then say why. If what you really want is to repeal the Second Amendment and sharply restrict firearm ownership, then say so, and then read up on the process for a constitutional amendment. It's an onerous process, and if you think that passing gun control legislation in Congress is hard, try getting a two thirds majority in both houses to agree on this ultimate sanction.
If it is your goal to eliminate firearms in the United States, understand the road you have ahead of you. You are going to have to change people's minds on a massive scale. Half-literate snarky memes are not going to be the way to do it. And if your goal is to make the world stop being unsafe for children, then there's no historical precedent for that. I can't offer any advice on how to do something which has never been done in the history of humanity. For now, you're just going to have to settle for teaching your children to navigate a dangerous world.
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