Supreme Reflections on the First Monday in October

The Supreme Court will start consideration of cases in its new term on the first Monday in October.  A Federalist Society panel previewing the Supreme Court's new term expected that SCOTUS will have a diminished case-load during the 2016-2017 term as it awaits confirmation of  Associate Justice Antonin Scalia's replacement. It  is assumed that the Supreme Court is avoiding some controversial cases to avoid having a 4-4 tie, which does not establish precedent and upholds the Appeals Court ruling.

There are several schools of thought concerning the vacancy on the Supreme Court.  If Democrat Presidential nominee Hillary Clinton (D-NY) wins the election but if the Republicans retain control of the Senate, there is good reason to believe that Obama designee Merrick Garland will be confirmed during the Lame Duck session.  Although Senate Majority Leader Mitch McConnell (R-KY) claims that Lame Duck sessions are not appropriate for SCOTUS confirmations, the thinking from the GOP may well be to go with the Devil they know rather than one which they don't know.

Some Democrats believe if they win both the White House and the Senate, then Hillary would want to install her own (presumably more progressive pick).  But some optimistic institutionalists hold fast to the notion that Mrs. Clinton would abide by the process and still push forward her predecessor's choice.  Either way, in such a scenario, it would be expected that there would be a lengthy evaluation and vetting process to achieve Senatorial Advice and Consent, thus keeping the evenly divided court well into the term.

Ass. Justice Anthony Kennedy

A more philosophical question is what should be the role of the Supreme Court.  A common rallying cry in Presidential elections is control of the Supreme Court.  Justice Scalia's passing in February levels an ideologically fractured SCOTUS (four liberals, three conservatives and Ass. Justice Anthony Kennedy), but with indications that progressives are itching to be more activist. 

Chelsea Clinton has mentioned on the hustings that openings the Supreme Court will allow her mother to fundamentally redefine the parameters of the Second Amendment.  

Most likely there would be no outright repeal of this fundamental freedom given by God, but it would take a narrow reading of the organic law and assert that this right is limited to organized militias. This would effectively make it a dead letter, like the Tenth Amendment.

So instead of being final arbiters of cases, the Supreme Court would act like a super-legislature, only they are unelected (thus unaccountable) and there is virtually no way to upend their ukases.

Senator Ted Cruz (R-TX) while campaigning for President proposed having retention elections for the judiciary, as they do in Iowa.  That sounds more appealing on the campaign trail then it would be applicable in the Federal City. However, it does voice the frustration of many Americans who feel cut out of the governing process.  California twice approved referendums defining marriage (which was primarily a state issue), yet in Obergefell, the Supreme Court overturned the will of voters under a Right of Dignity interpretation of the Fourteenth Amendment and then expanded this right of same-sex marriage to all 50 states.

Two longer shot prospects not considered by judicial watchers are the possibility that Republican Presidential nominee Donald Trump (R-NY) might win and actually live by his promise to nominate conservative judicial candidates.  

The other way to remedy judicial tyranny would be limitations on Article III power.  While Congress can theoretically reign in lower courts, it is unlikely to do so. This would leave such reformation to application of an Article V Convention of States.  While the Article V safety valve for a Convention of States has been in place for 227 years, it has never been successfully invoked yet. But as more and more power is taken away from states yet they are saddled with the brunt of implementing dictates from the District of Calamity (sic), this may become a more feasible possibility. 

Gauzy Gun Grab Gambits

After the Navy Yard shooting , many are troubled at another massacre in America.  This has inspired progressive politicos to renew efforts to “do something”. 

[L] Gabrielle Giffords [R] Mark Kelly testifying before Congress Feb. 2013

One such source for grabbing guns is the “Americans for Responsible Solutions”, the gun control pressure group created by former Representative Gabrielle Giffords (D-AZ 8th) and her husband Mark Kelly.  Giffords  who was critically shot in the head in an assassination attempt in Tuscon, Arizona in January 2011.  Since then the couple has sought to “support the Second Amendment” while “keeping guns out of the hands of dangerous people like criminals, terrorists, and the mentally ill.”.

Gabby and Mark’s letter reads in part:

We have disturbing problems - gun crime, mental illness, and the easy access that dangerous people have to guns. But our public officials seem more interested in political theater and special interest threats than in leadership. Congress, you must lead. Come together, take a sober look at the problem, and pass laws that protect our families and communities. Please act. 

How could anyone oppose that?

But as Oscar Wilde observed: “It is always with the best of intentions that the worst work is done.”  Digging deeper into to discern the policy prescriptions,  one discovers that the Americans for Responsible Solutions advocate:

• universal background checks

• limiting the sale on “assault” weapons

• limiting high capacity magazines

• stopping gun trafficking

Thus the bromides from Gabby and Mark’s open letter were translated into policies which are political non-starters that are also gauzy gun grabbing forays. 

Sen. Dianne Feinstein's (D-CA)  scary gun show and tell

The Assault Weapons Ban bill  which Senator Diane Feinstein (D-CA) championed in the Senate this Spring included all of those elements to varying degrees.  But S-150 was defeated in the Senate by a 40 to 60 vote.  Even after the Navy Yard shooting, Feinstein is "iffy" on reintroducing the Assault Weapons Ban legislation.  Apparently, Feinstein  thinks that even stricter gun would past the muster.   Feinstein was just one of several pro gun control legislators who used the Navy Yard Massacre as a platform for their political ends.   Alas, several of them pushed their pro-gun control proposals as the Navy Yard incident was still underway. 


While a universal gun background checks  may sound benign, it has a couple of  real world problems, as it won’t work and these universal background checks would evolve into something more sinister. 

 Since 1998, Federal Law requires licensed  gun dealers to do instant background checks and prohibits firearm sales to  criminals, domestic abusers, the seriously mentally ill, and other dangerous people.  What gun control advocates seek is to close the private sale or gun show loophole.  Giffords and Kelly cite Federal statistics that claim that 80% of all inmates got their guns by private means. 

The Federal Government’s report “Firearm Use By Offenders” reveals that nearly 40% of all crime guns come from black market street gun dealers and criminals don’t feel the need to register to be street legal.  Around the same percentage of friends or family members of gun owners commit firearm crimes, similarly circumventing universal background checks.  The amount of guns used in crimes that stem from gun show transactions today is a staggeringly low 0.7%.   

The other problem is the reality that universal background checks will become universal gun  registration.   Obamacare now requires doctors to enquire about guns in a household for many medical check-ups.  As the recent Minnesota data snafu showed, we know how secure this health information is when it goes on your permanent electronic record.  

Attempts to curb prohibited persons such as felons and the mentally infirmed, like the California Armed and Prohibited Persons System (APPS) pilot program seem to have morphed into gun confiscation efforts on ordinary citizens without due process or preventing “scumbags” from possessing firearms.  

The APPS program pounced on people who had not been declared mentally infirmed by the courts, but do you want to argue the point when you have ten armed law enforcement officers unexpectedly at your front door?   Former soldiers are concerned that Post Traumatic Stress Disorder may be used as a justification for depriving them of their Second Amendment rights, even if it was not formally diagnosed or just used as a means to get more VA support when returning from the battlefield.  

Another category of prohibited persons from passing gun checks are “domestic abusers”. One wonders if the false 911 call from George Zimmerman’s estranged wife was a tactic to gain advantage in an unamicable separation thereby depriving her husband of his notorious firearm while ingratiating herself  with the media. 

The vibe from liberal social media circles after the Navy Yard shooting was “Not again” and “Do SOMETHING” which is typically translated to more gun control, because passing a law shows that one cares.  Of course, there is the inconvenient truth that of the 15,700 fugitives that tried to buy guns in 2010, the Obama Administration only prosecuted 44 cases.  If only we would utilize the laws currently in effect instead of pining for panaceas in new legislation.

Another Americans for Reasonable Solutions platitude is about grappling with guns in the hands of the mentally ill.  Instead of concentrating on the weapon, those who are fighting gun violence might focus on a prospective root cause–video games.   What do the mass shooters at the Navy Yards (2013), Sandy Hook (2012), Aurora (2012), Tucson (2011), Virginia Tech (2007) and Columbine (2000) have in common?  The answer is mentally unstable individuals hooked on playing violent video games. What can be done about it?  That’s a good question. 

 When Vice President Joe Biden met with Hollywood and Gaming representatives, he noted that the nexus of video games and gun violence  was a complex problem and there was no “silver bullet”. Considering the 23 initiatives the Obama Administration boasts about taking after Sandy Hook, none dealt with this issue. It’s less problematic to take away Second Amendment rights from law abiding Americans than a politically costly assault on the First Amendment rights of violent video games.  After all, Grand Theft Auto made $800 million on its first day of sales recently.

Even after the Supreme Court Heller decision (2008) , it is almost impossible for an ordinary citizen to own firearms even if one wishes.  Living in the midst of the District of Calamity (sic), one is exposed to shootings on a periodic basis close to home, despite it being a strict gun control jurisdiction.  Of course, it would be worse in Chicagoland.    The Navy Yard shootings were no abstraction as this author knows several people in the line of fire at NAVSEA. 

But in my estimation, clamoring to do just “Do SOMETHING” is imprudent.  While dialoguing with an Americans for Responsible Solutions proponent, I noted that the Remington 870 pump shotgun  which the Navy Yard shooter used was one that was exempted from Senator Feinstein’s "modest proposal" as it is a popular hunting rifle.  My interlocutor interjected “That proves my point–we need to do better”.  It seems that the Swiftian allusion was not well appreciated. But it seemed like no contrary opinions were acceptable for one so convicted.

If the government wanted to do something, then for starters this Administration (and future ones) could enforce the gun laws already on the books with due process not by showy tactical teams in low risk situations.  Alas, after that,  there are not easy answers.  So it is worth having real debate on causes and solutions.  However, Representative Steve Cohen (D-TN 9th) goes on MSNBC and slandered Second Amendment supporters as being "Murderers Row", this does not seem like respectful or introspective civic discourse.  And refusing to respond to point by point challenges on the root causes of mass shootings or the consequences of the “Do SOMETHING” impulse makes it seem like the issue is being cynically stoked to fire up bases for partisan wedge issue politics at the expense of innocents. 

h/t: Nate Beeler

Stormy Politics

Shortly after a deadly tornado hit Moore, Oklahoma which has killed at least 51 people, Senator Sheldon Whitehouse (D-RI) ranted for 15 minutes against Republicans in Tornado Alley for denying the theory of anthropogenic global warming.  Whitehouse raved:

Why do you care? Why do you, Sheldon Whitehouse, Democrat of Rhode Island, care if we Republicans run off the climate cliff like a bunch of proverbial lemmings and disgrace ourselves? I’ll tell you why. We’re stuck in this together. We are stuck in this together. When cyclones tear up Oklahoma and hurricanes swamp Alabama and wildfires scorch Texas, you come to us, the rest of the country, for billions of dollars to recover. And the damage that your polluters and deniers are doing doesn’t just hit Oklahoma and Alabama and Texas. It hits Rhode Island with floods and storms. It hits Oregon with acidified seas, it hits Montana with dying forests. So, like it or not, we’re in this together.

To be fair, Climate Change has long been one of  Whitehouse’s pet policies.   But politicizing a natural disaster of this magnitude before recovery efforts even began was callous and unstatesmanlike. 

But Whitehouse’s rant may have been a barometer for a tempest of progressive politicos.  Social media strings questioned how conservative storm victims could be helped by what was characterized as unconstitutional FEMA assistance.  The comment seemed to have keyed on former Rep. Ron Paul’s critique of FEMA.  Of course, Rep. Paul was a libertarian more than a conservative and he argued that FEMA does more harm than good rather than the constitutionality of the agency.  But what do facts matter for a partisan progressive attack?

Later comments mocked the self-reliant instincts of flyover country folk for needing FEMA, as they should have had insurance.  The money line was “[It] certainly feels like conservatives believe Liberals are a bunch of tax dodging moochers, living off the government teat. who want to take their money, guns and behymens (sic).”

In the Age of Obama, politicizing tragedy is nothing new.  Families of the Newtown, Connecticut shootings were flown to the District of Calamity (sic) on Air Force One and paraded by the Obama White House before Congress to lobby for federal gun control, when the restrictions would do nothing to address what caused their loss.  And some political observers that Superstorm Sandy may have turned the tide in the 2012 election for President Obama.

One would hope that these piquant quips about natural disasters like the Moore OK F4 tornado  are isolated examples of liberal lunacy.  But as Glenn Beck sprang into action after the cyclone hit, corralling two tractor trailers with emergency supplies for the victims of Moore, OK, he was amazed at the hate which this storm brewed.  Beck noted that Twitter messages he saw spoke of God punishing evil Red Staters.  So this bilious progressive temperament from the fever swap seems widespread.

It makes me regret thinking of those on the other end of the ideological spectrum as “Bleeding Heart Liberals”.   Such cruel comments make me question which organ should be substituted as an appropriate descriptor.  

Michael Reagan sensed the stormy political atmosphere when he said:  

What will speak louder than words are actions.