The Right Not To Keep and Bear Arms

Earlier this month, a district court judge upheld a West Virginia statute which required private property owners to allow guns to be locked in employee or customer cars while in a parking lot (h/t: Volokh). The court rejected general property-rights and expressive association challenges to the statute. One argument it did not consider, however, is that West Virginia's law might violate the Second Amendment as interpreted by Bruen.

At first blush, this may seem to be a strange argument (which is probably why it wasn't made): this is a law expanding gun rights protections; and Bruen concerns attempts to restrict gun rights. But on closer inspection, I think it is quite likely (contingent on the historical record) that laws like West Virginia's violate the Second Amendment as that provision was interpreted in Bruen.

Start with first principles. Bruen, along with the other members of the "Roberts Trilogy" on guns, was emphatic that the Second Amendment is not a "second-class" constitutional right. And a critical component of other constitutional rights is that they all contain a robust negative component. The right to free speech includes the right not to speak (this is the locus of the "compelled speech" doctrine). The right to free association includes the right not to associate. The right to freedom of religion includes the right not to profess religious belief. And so, by extension, it seems evident that the right to keep and bear and arms includes a right not to keep or bear arms on one's own property.

Once that observation is made, then West Virginia's law plainly implicates property owners' Second Amendment right not to "keep" arms on their property. At that point, Bruen insists, the only question courts are permitted to ask is whether or not the law in question has historical analogues dating from the enactment of the Second and/or Fourteenth Amendment. I won't claim to have canvassed the history exhaustively, but my sense is that there aren't such laws (there certainly were plenty of laws protecting an individual's right to keep arms on his or her own property, but it doesn't seem like there were many laws which expressly forbade property owners from prohibiting arms on their own property). This is especially noteworthy because this is not a "novel" Second Amendment situation -- the issue of allowing property owners to forbid guns on their property was perfectly cognizable at the time of the framing, it is not an issue that only later sprang into existence based on some social or technological development. So if the historical record doesn't turn up a pattern of state laws akin to West Virginia's, then West Virginia's law must be struck down.

To be sure, West Virginia could argue that its law strikes a reasonable balance between the interest of gun owners being able to keep and carry their own arms for self-defense, and the desire of property owners to keep guns out. After all, the gun owner who wishes traveling in the public with his weapon will be significantly deterred from doing so if they're not even permitted to keep their gun locked in their car the moment they enter the parking lot of the "wrong" business or enterprise. In practice, a world in which gun owners can't enter even a parking lot with their guns locked in their car is one where they are significantly limited in their ability to travel anywhere with guns. 

But while this argument might have considerable purchase under traditional "balancing" review, Bruen expressly forecloses that sort of inquiry. As the Court emphasized, the Second Amendment's historical test is "the very product of an interest balancing by the people." History is what sets the "balance"; any additional weighing of policy considerations is impermissible. Ultimately, West Virginia's concerns that private limitations on gun possession may spillover to lessen the prevalence of guns is no different than New York's worries that striking down its gun control measures will result in too many guns on the streets. At root, West Virginia seeks to intrude on the Second Amendment in order to effectuate its policy judgment favoring more guns. A state like New York seeks to intrude on the Second Amendment to have fewer guns. Either state may or may not be correct as a matter of policy; but under Bruen both states' arguments must fall on deaf ears.

Nor can West Virginia's statute be defended as a means of securing the Second Amendment from infringement. Just as the First Amendment does not create an interest in forcing a newspaper to publish your op-ed, the Second Amendment protects against government infringements, not acts of private individuals. The only germane Second Amendment interest here -- the only actor threatened by government impingements -- is the negative interest of property owners who wish not to keep and bear arms on their property. Admittedly, cases like PruneYard do suggest that in the First Amendment context some government regulations protecting speakers on private property may be permissible, notwithstanding the property owners' own interest in declining to speak. But leaving aside whether that extension should carry to a law like this (West Virginia's attorney general made this argument; the court did not end up addressing it) under First Amendment balancing tests, it does not carry any weight under the Bruen regime, which again boils the question down solely to an inquiry into history. If West Virginia's law has proper historical analogues, it survives. If it doesn't, it doesn't, no matter how strong the policy argument in its favor may be.

Of course, we've already seen courts bend the "no policy" principle of Bruen when policy arguments seem to favor increased gun access, and it's entirely possible we'd see a similar move here as well. This is especially so since the "negative Second Amendment" idea the argument hangs on -- while I think one that has to be correct as a matter of constitutional interpretation -- is a bit novel and certainly cuts against the grain of what we expect the Second Amendment to do in cases like this. Nonetheless, in theory Bruen both gives and taketh away -- there will be times when Bruen strikes down even well-warranted laws and times when it upholds repellent ones. West Virginia's law strikes me as a good example of an enactment that is absolutely defensible as a matter of policy, but which probably cannot withstand Bruen's harsh review. The only question, as always, is whether Bruen's goose will ever apply to its gander.

One other thought: If you're looking for a viable progressive "bounty" program to counter the shenanigans anti-abortion activists are pulling in Texas, this seems like it could set one up.

1. Write an ordinance that says guns are forbidden on private property unless consent is granted by the owner (an "opt-in" rule). These laws are being challenged, but I genuinely think they should survive constitutional scrutiny because all they do is establish a default rule, and for the reasons stated above the Second Amendment doesn't protect the right to bear arms on others' property.
2. Create a civil cause of action for violating the ordinance.
3. Add in all the abusive nonsense that Texas pioneered (no governmental enforcer, anyone can sue anyone, imbalanced attorneys fees, and so on).
4. Lie in wait for anyone who pulls into a Wal-Mart parking lot with a gun in their trunk, and have at them.

To be clear: I think a law like this would be terrible and destructive, notwithstanding my own views on guns. These "bounty" laws are recipes for chaos. But to the extent that the only way we'll see them curbed is by showing that they'll exact costs on both political camps, I offer it as a way of establishing deterrence: mutually assured destruction.

Update: Turns out this article has already been written. Oh well -- at least I wasn't the only one with the thought!

Is the Supreme Court Lying When It Purports To Place Limits on its Extreme Rulings? Third Circuit: Obviously, Yes

Today, the Third Circuit sitting en banc in Range v. Attorney General invalidated federal prohibitions on possession of firearms by convicted felons, at least in cases of non-violent offenders (Range had been convicted of food stamp fraud), but potentially in many other circumstances as well (via). This creates a circuit split with the Eighth Circuit's opinion last week in United States v. Jackson that I discussed here. 

The issue of felon disarmament under Bruen is interesting. At one level, it's always possible that any gun regulation might fall prey to Bruen's rigid history-or-bust methodology for determining constitutionality under the Second Amendment (though much here depends on necessarily subjective judgment regarding what counts as a proper historical analogy). But at another level, the felon prohibitions are distinct because Bruen (along with the other members of the Roberts trilogy on guns -- Heller and McDonald) were emphatic that these prohibitions should not be questioned under the Court's rulings. As Heller said: "The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons." This was reiterated in McDonald, and confirmed again in Justice Kavanaugh's Bruen concurrence.

How does the Third Circuit get around this seemingly very explicit language? By suggesting the Court cannot be trusted to mean what it says. 

The court in an opinion by Judge Hardiman analogized adhering to the Supreme Court's express declaration that these laws remained constitutional to how the Court talked about the application of means-end scrutiny in Heller. Heller suggested that the law in question in that case would be unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Lower courts, Judge Hardiman continued, universally "overread that passing comment to require a two-step approach in Second Amendment cases, utilizing means-end scrutiny at the second step," an approach the Supreme Court ended up disavowing in Bruen. And so the Third Circuit says, in essence, it won't make the same mistake twice: it must be "careful not to overread" the language suggesting felon disarmament laws remain constitutional "as we and other circuits did with Heller’s statement that the District of Columbia firearm law would fail under any form of scrutiny."

In other words, the basic question is: can we trust the Supreme Court when it says, expressly, "our decisions should not be read to mean felon disarmament laws are unconstitutional"? Or was that a promise the Supreme Court never meant to keep? In fairness to the Third Circuit, given the choice between predicting (a) the Supreme Court will abide by its own expressly-stated doctrinal limits or (b) the Supreme Court will completely ignore its own promises the instant they seem to sanction gun control limits the Court dislikes, I'm hard-pressed to say that option b isn't the safer bet. But there is something discomforting about lower courts openly acknowledging that the best way to interpret the Supreme Court's Second Amendment jurisprudence is to assume that any limits the high court purported to place on Bruen's sweeping protections for guns everywhere-for-everyone-at-any-time are probably just lies.

As a sidenote, I'll also just say that I literally finished compiling my Con Law II course materials on the post-Bruen Second Amendment last night, and immediately had to revise them again to account for the Range decision. Again, spare a thought for the underappreciated constitutional law professor, the forgotten victims of the churn and chaos the Supreme Court has unleashed in our constitutional jurisprudence.

Bruen's Goose Does Apply to the Gander

I hate on the Eighth Circuit a lot on this blog -- prerogative of a former clerk -- but one thing I do like about it is that it has largely abjured the over-long, meandering, 100-page for every opinion trend of its sister circuits. The typical Eighth Circuit opinion is, as these things go, short, sweet, and easily digestible. Occasionally this means that some important issues or arguments I believe that deserve parsing in detail get short-changed, but more often than not it simply means they're avoiding navel-gazing and padding.

Yesterday, the Eighth Circuit filed an interesting decision in United States v. Jackson* involving the Second Amendment's applicability to restrictions on gun ownership by non-violent felons. Coming in at a compact 16 pages (8 of which are on other issues), it's easily read by the lay person. But what makes Jackson noteworthy, in my view, is that it expressly avoids a pitfall of the post-Bruen Second Amendment world that I've seen afflict conservative courts and commenters alike. Namely: it recognizes that Bruen's prohibition on means-ends analysis, and treatment of history as the be-all-end-all, applies just as much where the history licenses greater gun restrictions as when it licenses fewer such restrictions.

Quite a few conservative actors have, after happily citing Bruen's history-is-all-that-matters test, turned around and been aghast at the idea that a given historical interpretation might license more gun control than they, personally, are comfortable with or think is defensible as a policy matter. These objections have been leveled with respect to laws that bar persons previously subject to mental health orders from owning firearms (without a showing that they are currently mentally ill) and laws which bar persons subject to domestic violence restraining orders from owning firearms (even without a conviction). In both cases, the complaint was that even to the extent there arguably was historical precedent supporting laws like this (not perfect analogues, of course, but Bruen expressly disclaims the need for a "twin"), the practical consequences of applying those precedents to a case like this would be unreasonable or unfair as a matter of gun policy -- precisely the sort of reasoning that Bruen purports to take off the table.

Jackson, which is about prohibitions on gun ownership by non-violent felons, raises similar issues. It may be "unreasonable" to ban persons convicted of non-violent drug offenses, with no showing that they are in a meaningful sense "dangerous", from possessing firearms. But those arguments have no place in a Bruen world, which exclusively asks what the historical record does and does not permit. And unlike many, Jackson gets this right. It observed:

To be sure, the historical understanding that legislatures have discretion to prohibit possession of firearms by a category of persons such as felons who pose an unacceptable risk of dangerousness may allow greater regulation than would an approach that employs means-end scrutiny with respect to each individual person who is regulated. But that result is a product of the method of constitutional interpretation endorsed by Bruen: 

Indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny. After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller. By contrast, if courts applied strict scrutiny, then presumably very few gun regulations would be upheld.

Heller v. District of Columbia, 670 F.3d 1244, 1274 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). Cf. Kanter v. Barr, 919 F.3d 437, 465 (7th Cir. 2019) (Barrett, J., dissenting) (concluding before Bruen that Congress cannot dispossess felons based solely on status, and that “a very strong public-interest justification and a close means-end fit” is required before a felon may be subject to a dispossession statute based on dangerousness) (quoting Ezell v. City of Chicago, 846 F.3d 888, 892 (7th Cir. 2017)).

This does not, to be clear, make Bruen a good rule. In many ways, it demonstrates its arbitrariness. But at least correctly applied, Bruen both gives and takes away when it comes to gun regulations. Where the historical record permits a type of gun restriction, legislatures are allowed to impose it no matter how ridiculous or outrageous it might appear. Where the record does not license a type of gun restriction, legislatures are forbidden from utilizing it no matter how essential or necessary it might be. That is not a good rule. But at least its randomness may lash out equally.

* There's no such thing as a "liberal" panel on the Eighth Circuit, but this panel was not an especially liberal one. The opinion was authored by Judge Colloton (viewed for many years as a SCOTUS contender for a Republican President), joined by Judge Benton and Chief Judge Smith. All three judges were Republican appointees (unsurprising, given that only one judge on the entire circuit is a Democratic appointee).

A Local Shooting in SW Portland

Two people are dead after a reported shooting at a SW Portland strip mall approximately five minutes from my house.

I've been to this strip mall. I've eaten at the cafe where the bodies were reportedly found. The UPS store across the street is where we go when we need to send a package. This part of Portland is in my normal orbit.

Contrary to what you've heard, Portland is actually a relatively safe city. Our crime rates are remarkably unremarkable -- a recent survey ranked us 21st out of 40 major cities when it came to violent crime. And my neighborhood is almost certainly safer than the city as a whole. This shooting is not, I think, reflective of any trends. If anything, it is in defiance of a national downward trend in violent crime.

Nonetheless, it's sickening that this is even a tertiary part of my -- or anyone else's -- life. And it's infuriating that the Supreme Court has essentially decided that people like me must, as a matter of inviolable constitutional law, live under the scourge of infinitely proliferating guns forever. It's terrible to know that if my elected representatives ever tried to do anything substantial to stem the tide of gun proliferation, the Supreme Court would be on the case to wag a finger and say no.

By the same token, the Republican Party's response to gun violence is, of course, to promote more guns (and to teach eight-year olds battlefield trauma techniques). "The only way to stop a bad guy with a gun is a good guy with a gun". When you strip away all the window dressing, what this boils down to is saying the solution is getting into a shootout. But I don't want to get into a shootout! I don't want to shoot anyone, and I should be able to get a cheese omelet at a local diner without committing to reliving the OK Corral. That's not a solution, that's a capitulation -- gun violence accepted as a forever-scourge, and you're either dishing it out or you're the victim.

It doesn't have to be that way. In most developed countries, it isn't that way. That it is that way here is not an inevitability. It is a policy choice, imposed by a radical judiciary whose contempt for the people it rules is becoming increasingly more brazen.

Guns as Escalators, Guns as Deescalators

Professor McGonagall's face was pinched and angry. "You are not to use the Time-Turner in that fashion, Mr. Potter! Is the concept of secrecy not something that you understand?"

"They don't know how I did it! They just think I can do really weird things by snapping my fingers! I've done other weird stuff that can't be done with Time-Turners even, and I'll do more stuff like that, and this case won't even stand out! I had to do it, Professor!"

"You did not have to do it!" snapped Professor McGonagall. "All you needed to do was get this anonymous Slytherin back on the ground and the wands put away! You could have challenged him to a game of Exploding Snap but no, you had to use the Time-Turner in a flagrant and unnecessary manner!"

"It was all I could think of! I don't even know what Exploding Snap is, they wouldn't have accepted a game of chess and if I'd picked arm-wresting I would have lost!"

"Then you should have picked wrestling! "

Harry blinked. "But then I'd have lost -"

Harry stopped.

Professor McGonagall was looking very angry.

"I'm sorry, Professor McGonagall," Harry said in a small voice. "I honestly didn't think of that, and you're right, I should have, it would have been brilliant if I had, but I just didn't think of that at all..."

-- Harry Potter and the Methods of Rationality, Chapter 17

"Mr. Potter, you have taken to using the Time-Turner as your solution to everything, often very foolishly so. You used it to get back a Remembrall. You vanished from a closet in a fashion apparent to other students, instead of going back after you were out and getting me or someone else to come and open the door."

From the look on Harry's face he hadn't thought of that.

"And more importantly," she said, "you should have simply sat in Professor Snape's class. And watched. And left at the end of class. As you would have done if you had not possessed a Time-Turner. There are some students who cannot be entrusted with Time-Turners, Mr. Potter. You are one of them. I am sorry."

"But I need it!" Harry blurted. "What if there are Slytherins threatening me and I have to escape? It keeps me safe -"

"Every other student in this castle runs the same risk, and I assure you that they survive. No student has died in this castle for fifty years. Mr. Potter, you will hand over your Time-Turner and do so now."

-- HPMOR, Chapter 18

"Harry Potter," Professor Quirrell said.

"Yes," Harry said, his voice hoarse.

"What precisely did you do wrong today, Mr. Potter?"

Harry felt like he was going to throw up. "I lost my temper."

"That is not precise," said Professor Quirrell. "I will describe it more exactly. There are many animals which have what are called dominance contests. They rush at each other with horns - trying to knock each other down, not gore each other. They fight with their paws - with claws sheathed. But why with their claws sheathed? Surely, if they used their claws, they would stand a better chance of winning? But then their enemy might unsheathe their claws as well, and instead of resolving the dominance contest with a winner and a loser, both of them might be severely hurt."

Professor Quirrell gaze seemed to come straight out at Harry from the repeater screen. "What you demonstrated today, Mr. Potter, is that - unlike those animals who keep their claws sheathed and accept the results - you do not know how to lose a dominance contest. When a Hogwarts professor challenged you, you did not back down. When it looked like you might lose, you unsheathed your claws, heedless of the danger. You escalated, and then you escalated again. It started with a slap at you from Professor Snape, who was obviously dominant over you. Instead of losing, you slapped back and lost ten points from Ravenclaw. Soon you were talking about leaving Hogwarts. The fact that you escalated even further in some unknown direction, and somehow won at the end, does not change the fact that you are an idiot."

[...]

"The next time, Mr. Potter, that you choose to escalate a contest rather than lose, you may lose all the stakes you place on the table. I cannot guess what they were today. I can guess that they were far, far too high for the loss of ten House points." 

-- HPMOR, Chapter 19

Yesterday, the New York Post ran a story about an incident in Florida where two drivers got into a rolling gunfight with one another, exchanging fire that injured both drivers' daughters (a 14-year old and 5-year old girl). While both drivers were initially charged with attempted murder, one driver -- the one who opened fire first -- had the charges dropped after prosecutors decided he had a valid self-defense claim since the other driver was the initial aggressor (allegedly trying to "run him off the road" and hurling a water bottle at his truck).

Hale tried to run Allison [the driver who had the charges dropped] — who was driving a Nissan Murano with two passengers — off Highway 1 near Calahan with his Dodge Ram pickup truck, which had four passengers, police said.

At one point, Hale drove alongside the Murano, rolled down his window and began shouting at Allison to pull over as Hale’s wife made an obscene gesture.

Allison rolled down his window to shout back when a plastic water bottle was thrown from the truck into the SUV, according to the Nassau County Sheriff’s Office in Florida.

[...] 

[Then, Allison] fired a semiautomatic handgun at [Hale], hitting Hale’s daughter, who was sitting in the back seat, and then sped off, police said.

When Hale realized the girl was hit, he sped closer to the SUV and began firing several rounds from his semiautomatic — one of which struck the 14-year-old girl. 

I was thinking about this incident, and to a lesser extent the recent case in Texas where a man was convicted of killing a protester who allegedly brandished an assault rifle at his car after the shooter reportedly drove his car into the crowd (this is the case where the Governor has promised to pardon the killer), and thinking "what would happen if none of the parties had guns?"

In the Florida incident, I do not think -- even accepting that Allison was "acting in self-defense" -- "thank goodness Allison had a gun -- who knows what would have happened if he wasn't armed!" My strong intuition -- albeit not one that can be proven -- is that if Allison was not armed, this incident would have resolved as a "normal" case of road rage, and in particular, we would not have seen two young girls be shot in their parents' cars. To be clear: Allison seems to have been the victim of terrible, threatening behavior by Hale. But the presence of guns (and it was Allison who fired the first shot) escalated the situation. It did not keep anybody involved safe; it made a bad situation far, far worse.

If Allison had no gun, the most likely result is that he would have just had to endure Hale's predatory road rage (at least until a filing a police report later). There is something disconcerting, I imagine, to saying, in effect, that this would have been the right choice. It entails, to be very colloquial about it, agreeing to "lose" to a predator. Allison firing at Hale represents an (escalatory) effort to fight back; to continue to resist; to win. Should Allison have "picked wrestling", even though it allowed Hale's predations to prevail (at least in the immediate moment)?

I think the answer is yes. At the very least, it's the choice that doesn't result in two children being shot. More to the point, it's the choice that millions of Americans who don't have guns would have had to have made in that same situation. Millions of Americans go through life without guns. When we encounter a road rage scenario like the one in Florida, we can't use a gun "in self-defense" because we don't have one. But as much as it might be humiliating or scary or infuriating to feel impotent in that scenario, it seems clearly better than what happened here when guns did enter the picture.

Proponents of gun rights as a means of self-defense imagine a template case as a scenario where a person is threatened and, had they not had the gun, they would be subjected to severe bodily injury or death. The availability of the gun "deescalates" (that's not quite the right word, but I don't have a better one) the situation insofar as, instead of the innocent victim being severely injured and/or killed, it is the wrongful perpetrator that suffers that fate.

But there are no doubt some number of circumstances -- and I don't know how one could measure it, but I suspect it's a greater number -- where the availability of a gun, even under the "self-defense" rubric, does not deescalate but escalates a situation. A scenario that would have resolved as a lower-level indignity or violation becomes one where someone is shot or killed.

Sometimes, we might say that for some sorts of criminal activity, a violent response is justified and socially beneficial even if it is in some sense escalatory (e.g., many argue this for a homeowner shooting a burglar, notwithstanding the fact that robbery is a "lesser" violation than shooting someone). Nonetheless, when I think back to the occasions where I've been a victim of violent crime, I do not think "if only I had a gun." To the contrary, whether or not on those occasions I would have been legally permitted to "stand my ground", I think it is absolutely for the best that I did not blow away either the homeless man or the drunk college students who assaulted me. It is clear to me that in those circumstances, I should have done what I actually did do, which is pick myself up and walk away. I should have "lost".

Not everyone agrees with me -- a law school classmate told me that if he was shoved to the ground as I would, he would "legitimately fear for his life" and would be justified in responding with lethal force. Perhaps if he had been in my shoes and armed, four people who we know did not need to die would be dead. I lacked the means (or desire) to respond with lethal force, and the result was the people who we know did not need to die, didn't die. Where the presence of guns converts more scenarios like that -- ones where we could just walk away -- into ones where someone or multiple someones are shot or killed, that is I think a clear net loss for society.

Again, I don't know how to measure this. But it seems clear that, just as there are some circumstances where having and using a gun averts the more tragic outcome; there are other circumstances where having and using a gun causes the more tragic outcome -- and (this is important) even under cases which fall under the rubric of self-defense.

The opening excerpts from Harry Potter and the Methods of Rationality (which I highly recommend) are about instances where Harry is, in a brute moral sense, right to resist. Professor Snape and other Slytherins are wronging him, abusing him, in a manner that in a just world he should not have to tolerate. And yet, the moral of these passages is that reckless escalation even in response to injustice or wrongdoing has immense risks; it puts even more stakes on the table that aren't always justified or commiserate to the underlying, initial abuse. Hale seems to have badly abused Allison. But Allison could not just let it lie; he escalated dramatically by firing a gun from a moving vehicle into another car. The danger that posed -- to Allison's own family, to Hale's, to other travelers or passers-by -- is almost incalculable, and hardly seems proportionate to the (very real) wrong and abuse Allison endured. If Allison lacked a gun, he would not have been able to initiate that escalation. And at least two children would not have been shot.

Schoolchildren Shouldn't Have To Live Like Jews, Part II

This weekend, Lewis & Clark Law School hosted the 2nd Annual Conference on Law vs. Antisemitism, a conference which (I don't think it's immodest of me to say) I did the lion's share of organizing.

Part of that organization was making sure, at the outset, to contact Lewis & Clark campus security to inform them of the event and have a security plan in place. This included having a security officer on site, requiring registration and check-in, alerting the Portland Police Bureau of the event and having them monitor the chatter of "certain" sites to ensure we weren't going to be a target, and other sundry efforts to address what I called our "elevated risk profile" compared to a standard law school event.

All this, to me, felt very normal and unremarkable. I'm hosting a conference on antisemitism -- of course I need to take extra steps to ensure that it is secured.

The day-of grunt work for the conference was provided by a set of Lewis & Clark law school student volunteers, most if not all of whom were not Jewish. They all did, to be clear, a fantastic job. But I think it is fair to say that for them, this sort of extra security was very much not normal. Which I recognized, and at various points during the run-up, I'd update them on the various security measures we were emplacing, trying to balance between "we're a conference on antisemitism, there's inherently heightened risk" and "but there's no reason to fear, most likely nothing bad will happen, this is all just precautionary." I was aware that my normal is not their normal.

The conference went very well, and without any problems or disruptions of any sort. As is the case, 99% of the time. The vast majority of cases where a synagogue brings in extra guards to watch over high holiday services, nothing bad happens. We just had a great event. So I felt kind of bad, forcing all these student volunteers to deal with the anxiety of all those extra security precautions. My normal shouldn't have to be their normal.

After Uvalde, I wrote a deliberately provocative post titled "Schoolchildren Shouldn't Have to Live Like Jews." The basic thrust of the post was to argue that all the various ways Jews have enhanced local security, "hardened the target", etc. etc., are not good models for how to protect schoolchildren from mass shootings. That they're normal for us -- a beleaguered, regularly threatened minority group -- should not make them normal for everyone. 

Less than a year later, in the wake of yet another school shooting, this time in Nashville, I couldn't help but return to the same thought. I mourn for the families, not just for their immediate loss, but for the extra wave of grief they will endure upon realizing just how little the American people care about them. But the fact is that when the only response to a shooting is "more guns" -- taking the firefight as inevitable and just hoping it occurs earlier in the process -- we're tacitly (or not so tacitly) conceding that "we're not going to fix it". It is taken for granted that to have your children in public schools is to run the risk of having them gunned down -- a price that too many politicians treat as one families are agreeing to pay, as opposed to being coerced into accepting (witness Tennessee Republican Rep. Tim Burchett's blithe response when asked how to "protect people like your little girl": "Well, we home school her.").

It doesn't have to be like this. Our normal shouldn't have to be their normal.

Bruen's Goose Continues To Not Apply to the Gander

The thing about the Fifth Circuit's recent ruling that the Second Amendment gives men under domestic abuse restraining orders an inalienable right to bear arms is that it is (a) insane and (b) absolutely defensible under the Supreme Court's Bruen decision. This is because the Bruen decision will regularly and predictably lead to insane results.

That said, I did want to flag something in the opinion that I've picked up on before -- namely, the inconsistent commitment to Bruen's supposed prohibition on weighing or considering "social policy" considerations. Judge Wilson, writing for the panel, expressly cites to this portion of Bruen, saying that while the prohibition on gun possession by domestic abusers "embodies salutary policy goals meant to protect vulnerable people in our society ... Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right." This principle is, perhaps above all else, the crux of Bruen's standard -- no matter how ridiculous, or absurd, or unfair, or chaotic the policy outcomes are, courts are not permitted to "weigh" them against the historical limitations that bounded the Second Amendment. The latter begins and ends the conversation.

Again, that principle is absurd. But it's Bruen's principle, and the Fifth Circuit gleefully cites it to explain why the prospect of terrified and murdered women can play no role in its legal analysis. But what happens if the historical arguments seem to counsel permitting more sweeping gun regulations than conservative jurists might like? All of the sudden, those social policy considerations come roaring back into view.

Addressing the historical precedents which did clearly envision government's authority to disarm "dangerous" persons, Judge Wilson explains that such exceptions must be narrowly construed so as not to apply to the case of domestic abusers. Why? Because, he asserts,

the Government’s proffered interpretation lacks any true limiting principle. Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people—however expediently defined—from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle?

I take no position on whether the government's interpretation is so expansive. But note that this line of argument is expressly an analysis of the proper policy sweep of government regulation. We should tailor our interpretation of the Second Amendment's scope so as to avoid a policy outcome whereby too few people are guaranteed the right to keep and bear arms; to avoid an outcome where the government is permitted to disarm people who these judges think it would be manifestly unfair to have their gun rights taken away.

This is exactly the sort of policy analysis Bruen purports to forbid, only here the "policy" concerns are ones counseling in favor of greater freedom to bear arms rather than reduced freedom to bear arms. Perhaps it seems absurd to permit the government to take away arms from people just for getting a speeding ticket. But so what?  Bruen was emphatic that this sort of social policy assessment has no role in Second Amendment adjudication. If the historical analogues give the state that sort of latitude, then that is supposed to end the conversation. Again, it is baked in the Bruen cake that it will lead to results that may appear to modern eyes ridiculous, because Bruen expressly instructs courts that they aren't allowed to care about those consequences no matter how absurd they might seem to be.

But as the Fifth Circuit's ruling makes clear, the Bruen prohibition on weighing policy consequences is, unsurprisingly, a one-way ratchet. Conservative courts will portentously declare that Bruen forbids them from considering the disastrous consequences of countless terrified or murdered women if it means taking away domestic abusers' guns -- but if history and tradition start to point towards enabling gun restrictions that the right finds too onerous, then all of the sudden we get a screeching parade of contemporary policy horribles that are treated as legally dispositive. This is what generates such well-deserved cynicism about the state of the judiciary today -- it's not just that the legal rules the governing class of jurists announce are absurd, it's that these jurists do not even pretend to be bound by them the second they prove inconvenient to their underlying politics.

The other thing to note about this case is that, if the Supreme Court reverses it -- and they might -- their reasoning will almost certainly purport to be based on some alternate assessment and reading of the historical sources. But this will be a naked smokescreen, and everyone will know it. If the Court reverses the Fifth Circuit here, it will be entirely and solely because the Court finds it too unreasonable and intolerable to permit domestic abusers free reign to carry arms -- a contemporary policy judgment anyway you look at it, no matter how much effort is or isn't expended to cloak it in some faux-historical garb. None of these judges abide by the rules they purport to lay out.

New Depths of "Both Sides-ism": Gun Violence Edition

Commenting on the only-in-America news that the first 24 days of 2023 have already seen 73 Americans killed in mass shootings, Paul Campos points to a CNN article on the matter which he summarizes as

point[ing] out that fault lies on both sides of the political aisle for this epidemic, given that the Republicans don’t want to do anything about it, and the Democrats are unable to force the Republicans to do anything about it.

Ha ha -- good one, but obviously that's an exaggeration. Here's what the article says:

A partisan political system that is little help

Resignation that nothing will change is fueled by a political system that is so entrenched on guns that it can’t usually frame a meaningful response to shootings, let alone solutions. Offers of “thoughts and prayers” by pro-gun rights Republicans are routinely mocked by Americans looking for reform. Conservatives often divert blame to a national mental health crisis that they do little to alleviate.

Second Amendment absolutists often argue that if more “good guys” carried guns, everyone would be safer. In their own ritualistic response, Democrats often re-up demands for an assault weapons ban they know they can’t pass.

Sigh. 

If SCOTUS Had Its Way, Countless Michigan Jews Would Be Dead By Now

A Dearborn, Michigan man was indicted on gun charges stemming from an alleged plot to attack a Michigan synagogue. The suspect, Hassan Chokr, was blocked from purchasing a shotgun, rifle, and semiautomatic pistol following the conclusion of a background check, and federal prosecutors said that in his attempt to purchase a gun Chokr made "three false statements, any one of which would prohibit him from possessing a firearm." Those statements were denials that Chokr

1. Had ever been convicted of a felony;
2. Had currently pending charges of a felony; and
3. Had ever been committed to a mental institution.

Presumably, the background check revealed the existence of one or more of these flags in Chokr's record, thus preventing the purchase and likely averting a tragedy.

Given that, it's worth noting that all three of these bases for denying someone a gun purchase are currently on thin ice following the Supreme Court's Bruen decision, which radically circumscribed the government's ability to place limits on American's right to gun ownership.

On the first, the Third Circuit is in the process of reconsidering its earlier ruling that non-violent felons can be excluded from gun ownership (Chokr's conviction related to theft relating to a financial device such as a credit card, and so likely would be viewed as a non-violent felony).

On the second, a federal judge has already concluded that it is unconstitutional to bar those under felony indictment from possessing guns.

And on the third, prominent gun advocates like Eugene Volokh have aggressively challenged whether a per se bar on gun possession by persons who have been committed to a mental institution is constitutional.

In short, it is entirely plausible that the federal judiciary, following the Supreme Court's lead in Bruen, will conclude that all the failsafes that successfully prevented Hassan Chokr from purchasing guns he would have likely used to massacre Michigan Jews are unconstitutional and must be stripped from the books. It's not guaranteed -- while Bruen's language is expansive to the extreme, nobody knows how far the Supreme Court's nerve will go when push comes to shove -- but none of these objections can dismissed out of hand given Bruen's radical reinvention of Second Amendment doctrine.

Certainly, the Court has been crystal clear that the essential liberties of the Second Amendment are far more important than the countless lives its jurisprudence puts at risk. You know what they say: the tree of liberty must periodically be watered with the blood of tyrants innocent Jews.

The Goose and the Gander of the Bruen Prohibition on "Balancing"

Eugene Volokh flags a case out of California involving a man allegedly prohibited from carrying a firearm due to a mental health hospitalization that occurred twenty years ago, when the man was in middle school. Federal law generally prohibits an individual "who has been committed to a mental institution" from owning, possessing, using, or purchasing a firearm or ammunition. The man, who later enlisted in the Marines and worked in law enforcement, has not had any other mental health issues since that single incident.

The court in this case ended up ducking the major constitutional issue for technical reasons we don't need to go into, but suggested that the relevant section of federal law was probably still constitutional after Bruen because several justices in that case specifically identified bans on mentally ill persons carrying firearms as among the sort of historical restrictions that had been permitted at the time of the framing. Prof. Volokh, by contrast, thinks the law should be unconstitutional insofar as it does not require any showing that the prohibited individual is presently mentally ill. The facts of this case, in particular, suggest a person for whom the law as written sweeps too broadly.

I make no judgment on whether federal law should, as a matter of policy, create such a carve-out for persons who seem to no longer be mentally ill. However, it does seem to me that this sort of analysis represents exactly the sort of "balancing" of interests that Bruen quite categorically forbade courts from engaging in. From Bruen's perspective, the sole question a court should consider is whether or not this sort of firearms restriction -- in this case, restrictions blocking the mentally ill from possessing firearms -- was historically present at the time of the framing. If the answer is no, then the restrictions are unconstitutional no matter how good a reason we might think exists for imposing such a restriction. But the flipside has to be true too: if the answer is yes, then the restrictions are constitutional no matter how unfair or untailored we might think they might be as applied to a given individual. And since the Court has already seemingly conceded that restricting the mentally ill from possession of firearms is one of the restrictions historically permitted, that should end the discussion.

The counterargument, alluded to be Volokh, is that the relevant basis for historical comparison is not the existence of "laws prohibiting the mentally ill from possessing firearms", but rather "laws prohibiting persons who once had a mental health crisis but have not had any symptoms for decades from possessing firearms." At one level, this is a familiar problem of abstractness versus specificity, one which offers courts yet more discretion to approve or disapprove of firearms regulations that they like or dislike. As I said in my last Bruen post, the application of Bruen by the judiciary will not ultimately be controlled by lawyerly parsing of the constitutional or precedential text; it will be a matter of personal judicial preference -- and the specificity problem identified here is just another opportunity for judges to disguise their policy preferences under the cloak of a legal rule. 

But if we make-believe that the putative legal rule will matter--well, Bruen promised that the relevant requirement for a historical analogue was not a "twin". And there are good reasons for that, which go beyond allowing for some amount of adjustment for societal developments as centuries pass. Requiring that state or congressional gun restrictions map on precisely to policy initiatives passed in the 19th century significantly limits the legislature's policymaking authority even in a domain where the Court agrees the legislature has the right to impose restrictions. It is facile to say that restrictions on firearms possession by the mentally ill is permitted, but Congress must only implement those restrictions via the precise programmatic means used in the 1800s. The constitution doesn't typically encode specific policy demands, it encodes general rules and standards that broadly define the parameters through which the democratic branches are allowed to fill in the details.

Given that, it seems to me that as far as Bruen is concerned, the germane constitutional question is whether the restriction in question is of the class of restrictions that had been historically been permitted. Once we answer that question in the affirmative, then Congress or the states should be given considerable leeway in figuring out how it wants to instantiate that restriction -- that inquiry being primarily a policy question which courts should be reluctant to intrude upon. Certainly, Congress cannot simply declare anything to be a "mental illness" restriction, anymore than New York in Bruen was allowed to declare the entire city of New York a "sensitive place". But it's equally clear that restricting persons who had a serious mental health episode from owning firearms is much more clearly under the umbrella of "restrictions on the mentally ill". The opposition to that rule is not really that it falls outside the category, it's that as applied here something like a "one strike rule" feels overbroad and unfair.

And maybe it is -- that rule may be too harsh. But again Bruen says it is not the judiciary's business to weigh competing interests. Mental health restrictions are historically permitted, this is Congress implementing such a restriction -- end of discussion. What is good for the goose is good for gander. That is, unless Bruen actually means what many of us suspect it to mean -- not an actual rule that constrains judicial partisanship, but a thin cloak for imposing pro-gun outcomes, text of the alleged legal rule be damned. We'll see. I'm not optimistic.

The Most American of July 4ths

Today, my wife and I continued the process of moving into our new home -- the "American dream". We also watched the Nathan's Hot Dog Eating contest, ate a slice of apple pie, and mourned a mass shooting.

Hard to imagine a more American day than that.

The "Plain Text" Threshold Requirement of Bruen

One aspect of the Supreme Court's recent Bruen decision I haven't heard a lot about is the apparent caveat that its "historical tradition" test only applies in circumstances where "the Second Amendment’s plain text covers an individual’s conduct." This, of course, suggests that there are other instances where the "plain text" does not cover the conduct, in which case a different, as-yet-unknown standard, applies. What sorts of gun regulations might skirt Bruen review because they are not covered by the "plain text"?

At one level, this inquiry is specious for at least two reasons. The first is that the Second Amendment's text is the furthest thing from "plain". It is notoriously one of the least well-written constitutional clauses, which perhaps is one reason why nobody "discovered" it covered an individual right to bear arms until over two centuries after its adoption, and why even following those decisions every lower court in the country adopted a method of interpretation that the Supreme Court summarily dismissed as incorrect in Bruen. Some plainness!

The second reason is that practically speaking the rule in Bruen will not be the rule in Bruen. Rather, the rule will be "strike down whatever gun regulations conservatives don't like", and no amount of lawyerly parsing of Bruen's language is going to change that. The Supreme Court or the Fifth Circuit, salivating at the prospect of pouring more guns onto the streets, is not going to even stutter just because it encounters a reading of Bruen that appears to stand in their way. Bruen is what they say it is, and what they'll say it is is a blank check to strike down gun regulations with wild abandon. So to that extent, this entire exercise is one of false hope.

But if we play make-believe for a moment, it seems to me that the majority of contentious gun regulations are not plainly covered by the Second Amendment, even under the Supreme Court's expansive view. "Plain", after all, is somewhat of a term of art in law. "Plain error" review doesn't cover all errors, only truly obvious, slap-you-in-the-face errors. The rule that tribal courts have, in the first instance, the right to determine whether they have jurisdiction over the case comes with an exception in cases where it is "plain" that they do not, but that exception is again does not cover all cases where tribal courts lack jurisdiction -- only the clear, indisputable cases.

The Court's recent gun cases -- Heller, McDonald, Bruen -- have all involved regulations that, more-or-less, effectuate a total bar on an individual's ability to keep and bear arms (where the former seems to cover one's home, and the latter the public sphere), or at least those arms which are common in the modern era such that they are effective as means of self-defense. Everyone in Chicago, and the average Manhattanite, cannot carry a gun at all. This, the Court says, plainly is covered by the Second Amendment's text. Laws which flatly prevent either a certain type of person or a person in a particular location from carrying any sort of (modern) armament can only be justified if they fit into historical categories where such absolute restrictions had been permitted.

The examples of gun regulations which the Court says should be assessed and may pass under Bruen also are of this sort. A ban on felons possessing guns is an absolute ban on that sort of person bearing arms. Can it be justified? Yes, the Court intimates, under the historical practice of limiting gun ownership by dangerous persons. A ban on carrying a gun into a courthouse is an absolute ban on bearing arms in that setting. Can it be justified? Yes again, the Court suggests, under the historical practice of limiting arms in "sensitive places". New York's "may issue" licensing regime means that large swaths of New Yorkers, based on largely discretionary bureaucratic judgment, cannot carrying a gun in public. Can that be justified? No, the Court says, one cannot call all of New York City a "sensitive place". All of these examples represent situations where one could say that the state is trying to create an absolute gun-free space for a particular class of person or location, an endeavor which the Court could say "plainly" implicates the Second Amendment's right to keep and bear arms.

But many important gun regulations are not of this sort. Consider California's assault weapons ban, which just was sent back to a district court to assess in the wake of Bruen. Most commentators, it seems, think the relevant inquiry after Bruen is whether an assault weapons ban represents the sort of gun regulation that has a historical parallel in the relevant constitutional time period (the typical claimed parallel is to rules governing "dangerous and unusual" weapons). I would argue, though, that there's a threshold question of whether Bruen applies at all based on whether the law plainly is covered by the Second Amendment. Unlike the rules at issue in Bruen, Heller, and McDonald, the assault weapons ban does not create or seek to create a "gun-free space". Individuals remain perfectly able to both keep and bear arms that can practically vindicate their personal right of self-defense outside the home. Being restricted from bearing the particular armament of their choice is not the same thing as being blocked from keeping or bearing arms in totality. So the "plain text" does not cover the California law, and accordingly the Bruen test is inapposite.

Again, it is important to stress that the position here is not that there is no argument that Second Amendment covers a right to possess assault weapons. There undoubtedly are such arguments, and I suspect such arguments are not at all frivolous. Perhaps they're even persuasive. But again, the issue is not whether the Second Amendment covers an assault weapons ban. The question is whether the plain text covers it. That can and should be viewed as a much narrower question, just as "plain error" is not remotely coterminous with "error".

Many other gun regulations are like this. Most licensing requirements (at least, those which aren't thinly veiled pretexts for banning guns altogether), magazine capacity limits, background checks, registration requirements -- none of these plainly are covered by the Second Amendment in the way that the laws at issue in Bruen and its predecessors are, and so none of them need to be justified by resort to Bruen's test.

I also don't think that the "plain text" language can be dismissed as a cavalier rhetorical flourish.  It is included at the top of Part II of Justice Thomas' majority opinion, where he announces the new text, the bottom of Part II, where he "reiterates" the test, and the top of Part III, where he applies the test. It also is notable that the portion of the opinion where Justice Thomas assesses whether the "the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct" (Part III.A) is quite brief, because he has "little difficulty concluding that it does [protect]" -- suggesting that the law at issue here is plainly under the Second Amendment's ambit in a way that other laws might not be. The vast majority of the Court's analysis applying the new test is not concentrating on whether the conduct is covered by the "plain text" (which it views as easy, in keeping with "plain" being "plain"), but on whether any of the historical examples of permissible gun regulations nonetheless warrant New York's statute. Again, this indicates that we are in the realm of a "plain" imposition on the Second Amendment; which in turn suggests that "plain text" is not superfluous verbiage.

I might even argue that treating "plain text" as a threshold requirement is necessary for Bruen's internal logic to make any sense at all. Bruen styles itself as a originalist/textualist opinion, but the "historical practices" test is embarrassingly atextual along two dimensions: (a) one could stare at the text of the Second Amendment indefinitely and never derive the test from it, and (b) looking at "historical understandings" is not the same thing as seeking to uncover the semantic meaning of the Second Amendment's words as they would have been understood at the time of ratification (which is what contemporary originalist textualism claims is its project). But if we view Bruen as doing what it says and only applying in cases where a gun regulation plainly is covered by the Second Amendment -- laws which seem to entirely prevent certain persons or places from being occupied by guns that practically can provide personal self-defense -- then the "historical practices" test makes a bit more sense from an originalist perspective. A pure textualist might struggle to justify even, say, the ex-felon ban on possessing weapons -- are they not "plainly" being deprived of the ability to keep and bear arms? Yes they are! But knowing that the framers did endorse at least some laws that incontestably limit certain persons' ability to keep and bear arms suggests limits on the original understanding of what the Second Amendment says that might otherwise be hard to square with the Amendment's "plain text". The utility of Bruen's test is considerably less apparent, however, in circumstances where there is not a "plain" imposition on the right to bear arms. In such cases, "historical practices" risks becoming a license for courts to cut bloody swaths through any law which happens to touch on the subject of guns whenever a suitably analogous regulation cannot be found (even when the reason it cannot be found is because the problem is novel and could not have had an obvious early-American analogue).

So I think there is good reason to view "plain text" as a threshold requirement before a court applies Bruen, and that many regulations which are categorized as "gun control" are not covered because they do not "plainly" impinge on the right to keep and bear arms. Indeed, if we take this seriously -- which, I again hasten to clarify, we almost certainly should not, because there is no way Bruen will serve as a license for gun regulation in any circumstance where conservatives don't want it -- Bruen could mark out a very interesting compromise: laws which "plainly" impinge on the Second Amendment (which is to say, seek to effectuate a total bar on possession of guns by certain people or in certain places) are subjected to the "historical tradition" inquiry. Laws which regulate guns but do not plainly fall under the Second Amendment's ambit (insofar as they leave space for significant practical ability to keep and bear arms) get rational basis review. That might actually be a compromise I could live with. 

But of course, this Court has not remotely signaled interest in compromise. Its maxim is that the strong take what they may, and the weak suffer what they must, and right now they are reveling in right-wing strength. So as much as I enjoyed this frolic into a fantasy where judges are constrained by law, in the real world I suspect the rule in Bruen will be whatever the far-right wants it to be.

Uvalde Parents Are About To Learn Just How Little the American People Care About Them

A shooting at an elementary school in Uvalde, Texas has killed nearly two dozen people, including nineteen children.

I grieve for the parents and families of those who were killed. They are going through a tragedy I cannot even begin to fathom. But as awful as things are right now, I cannot imagine what the survivors will have to endure starting about a week or a month from now.

Because that is when it will be hammered home just how little the American people care about them.

I want us to really understand this point. We love to talk about tragedies bringing out the best in the American people. We love heartwarming stories about blood being donated and volunteers flooding hospitals and homes being opened up. I don't want to discount any of those things. But we never talk about, and we should talk about, how tragedies like this bring out the absolute worst in the American people -- and here I'm not talking about the shooter. I'm talking about us, all of us, as a collective polity, who in a democratic society is tasked with making a collective response to catastrophes like these and has consistently collectively decided to shrug and carry on as if nothing happened.

It is human nature to shout, holler, cry out when we are hurt or scared. The more grievous the injury, the louder the scream. Why? To attract attention. Deeply rooted in our psyche is a fundamental belief that if others become aware of our hurt, they will help us.

The level of grief and pain the Uvalde parents are going through is unimaginable to me. Experiencing it, and knowing that others know you're experiencing it, naturally breeds the assumption that others will try to help you. How could they not? How could they be impervious to such raw, acute anguish? How could they just ignore the cries?

Imagine if you were shot on a public street. You cry out; people see your distress. Imagine if they do nothing. They just keep going about their business. Perhaps a few shoot you a sympathetic glance as they carry on with their errands. You beg for help -- maybe your leg can be saved if you get to a hospital quick enough. Nobody does anything. You are left alone to fester in agony -- seeing with your very eyes people who you know know how hurt you are and are consciously electing to do nothing about it.

And yet -- we know from far too much experience that ignoring is exactly what will happen to the Uvalde parents. We all are witnesses to their anguish, we all hear their cries for help. They know we hear them, and we know they know we hear them. Even still, there will be no serious efforts to respond to this catastrophe or ensure it does not happen again; same as there were no such efforts for the catastrophe before this, or the one before that. In a few days, the American people will have moved on. In a few months, they will make choices at the ballot box that could be responsive to the pain of the Uvalde parents, but most likely will not be. We could choose to elect politicians who would enact policies that might stop tragedies like this, but we won't -- stopping CRT in schools or maximizing our tax breaks will be far higher priorities. And so our politicians will continue to not pass meaningful gun control measures, and our judicial overlords will continue to pick away at the few that are enacted in slavish fealty to a maximalist interpretation of the Second Amendment. Nothing will change. The Uvalde parents will have been utterly abandoned to their grief. They will know, in their bones, that Americans simply do not care.

I've been struck, when reading about the "anti-CRT" panic, how often the complaint of the activist-rabble rousers sounds in the register of avoiding "guilt". "I don't want my kid to feel guilty!" I absolutely do not believe anyone should feel guilty for who they are. But we absolutely can justly be made to feel guilty for the choices we make, or fail to make. Our collective decision to turn away from scores of grieving parents, to not take any meaningful action to try to ameliorate their pain or at the very least change course so the next tragedy does not occur, is indeed a choice, and one we should feel very guilty about.

Maybe that's the right approach. Fear that our children might be next doesn't motivate us; nor does justice and retribution for the last batch of victims. Perhaps being forced to sit with the guilt that our choices represent abandoning our fellows in their moments of greatest need, to really stew in our own callousness and confront our abject indifference to the searing pain around us -- maybe that will be enough to motivate a change in behavior. I'm doubtful. But maybe.

We Chose This

I was in middle school when Columbine happened.

At the time, it felt like a national watershed. In hindsight, I actually don't know the degree to which Columbine stood out from other school shootings, versus whether it just happened to be "the" big shooting that occurred in the formative part of my life where I began paying attention to such things. Maybe for people born a few years earlier or a few years later, a different school shooting was "the" shooting. Lord knows we don't lack for choices.

Nonetheless, I remember thinking then that obviously Columbine was going to prompt us to do something about gun violence. There was no chance that our collective response to that tragedy would be to do nothing. As a kid, you believe adults are interested in protecting you. Perhaps as an adult, without strong evidence to the contrary, you also believe other adults will take the steps necessary to ensure children aren't being gunned down in schools or in streets.

But, more than 20 years later, our response to school shootings has indeed been: essentially nothing. We can't say we're still "working on it", or that we're still processing. At this point, it is fair to say America has made a conscious choice as a polity that we find school shootings to be an acceptable price to pay in exchange for allowing guns everywhere.

Twenty years after Columbine, nobody can pretend as if we don't know the consequences of our choices. We chose to let Oxford happen. We'll no doubt choose to let the next one happen too. There is nothing surprising or shocking or even unexpected happening anymore. Each of these deaths is attributable not just to the loathsome gunmen who pull the triggers, but to choices we've made collectively as a community. We are committed to an open highway of free, unfettered access to guns, and these bodies are the change the NRA throws into the tollbooth on the way.

Radicalizing on Guns

If you were to ask me the one issue I think I've "radicalized" on over the past few years, it'd probably be the issue of guns. A few years ago, my view on guns would be sort of a standard soft-liberal answer: I have no issue with guns per se, but we need common-sense regulation (assault weapons ban, background checks, and so on), and while I'd vote for any of these reforms if I were a member of Congress, it isn't an issue that would exercise me that much. Now, I find myself returning over and over to "guns are one of the central problems" holding up a host of important and salutary social reforms, such that if we don't tackle the scourge of widespread gun possession, we'll never get anywhere. So in that sense, I've radicalized on guns more so than on maybe any other issue. 

Maybe I'm wrong, but I don't think of guns as being a common "the issue" where people are being radicalized right now. Certainly, plenty of people have held very strong views on guns and gun control for a long time. But when I think of the issues where you see people talk about a really sharp swing in their views over the past few years from a starting position of "not really something I have strong feelings on", I think of things like "abolition" or "Israel/Palestine" or "anti-wokeism" or "anti-capitalism". Guns, for lack of a better way of putting it, seems to be socially speaking in a similar position to where it was several years ago -- or if there is movement, it's the typical jockeying for position around the margins.

How did I get here? I grew up in the era where school shootings were a major part of the public discourse (I was in middle school when Columbine happened), and that "discourse" was probably the main point of intersection between myself and guns as a kid. I did not grow up in an area where gun ownership was common (I don't think I knew of anyone who owned a gun), nor in an area where gun violence was a regular feature of life (though the "beltway sniper" rampage occurred while I was in high school); my personal experience with guns consisted entirely of firing one once while at sleepaway camp. As I recall my earliest views on guns, they were much as described above -- supportive of common-sense limits, but coupled with some amount of nervousness about meddling with part of the Bill of Rights.

Fast forward into adulthood, and for the most part guns remained marginal to my thinking. I read some books about the importance of armed self-defense to the civil rights movement, which I found interesting and modulated my thinking on the issue somewhat. I also came across the "Top Shot" reality TV competition series, which I viewed as a useful peek into what I took to be the healthy version of American gun culture. I still identified with a vague liberal gun control outlook, and indeed, as a lawyer, my pro bono practice actually centered around work for the Brady Campaign. I even applied for a job with the Brady Campaign -- but I withdrew after the interview, precisely because I felt that if you worked at Brady you should be a "true believer", and I didn't consider myself to be one on the matter of guns.

What changed? First, it was thinking through how to reduce the footprint of potentially-violent police interactions in our lives. For example, noticing how often violent police encounters occur in the aftermath of traffic stops, one might ask "why does the guy who gives tickets for turning right on red need to be armed and dangerous"? Recognizing that some officers may need to be armed for their jobs, could we not disarm our traffic cops?

Of course, part of the reason why traffic cops are armed as if they're infiltrating a violent drug cartel is because we've enlisted traffic policing into a convenient workaround to negate the Fourth Amendment -- it's not about traffic laws, it's about finding some ticky-tack rolled through a stop sign excuse to pull someone over so one can search them for drugs. But in part (and these are not unrelated), it's because we know there is a solid chance that the driver of the car is armed, and potentially the sort of armed man who thinks that turning-right-on-red is his God-given right as an American so don't tread on me, and police officers never want to be a situation where they are outgunned by a civilian. The proliferation of guns in the civilian population means that there needs to be a counter-proliferation in the police population.

And the knowledge that anyone one encounters could be armed with death-dealing firearms also predictably impacts how police officers treat ordinary policing encounters. Reading a steady drumbeat of qualified immunity decisions involving police violence, often (though not always) against unarmed victims, it becomes very clear how much both constitutional doctrine and policing policy operate under the shadow of a view where everyone around the police is a potential threat. This is the "warrior cop" mentality: A nervous twitch or a furtive glance has to be viewed as a potential precursor to drawing a gun, because, well, there are a lot of guns out there, and officers are only human. "What would you have them do?" But if that's the question, it's a question that presupposes a rider "What would you have them do in a country where guns are everywhere and anyone could be packing?" To the extent that rider is what generates the hapless and helpless inability to respond to the problem of "police keep killing people in situations where it was eminently avoidable", then the rider reflects the problem. The judicial system and much of our political reaction has not-altogether-unreasonable sympathy for the position well-meaning officers are placed in, even as that sympathy itself is demonstrative of a broader systemic failing.

This extends beyond policing. As Charles Pierce put it, the proliferation of firearms throughout the populace "transforms any mass event into a potential firefight." Guns being everywhere means any public outing now is potentially life-or-death -- all the more so ones that have controversy or heated passions. When Ta-Nehisi Coates said that he'd "rather die by shooting than live armed",  he was getting at the notion that in order to have a gun on you during an active shooting, you'd need to live armed. The gun doesn't just teleport into your hand in the moment of need, it needs to be on your person as you live your life -- including when you're playing with your baby, including when you're drunk, including when you're depressed, including when you're furious, including when you've just had an emotional argument with your ex. To have a gun on you during a shooting is to have a gun on you in those moments too. But when guns are everywhere, we all to some extent have to live that life -- or least, live on the far side of it. All of us now, when encountering the belligerent drunk at the bar or the depressed just-laid-off coworker or the furious protester or the incensed ex-boyfriend, now have to wonder -- on top of everything else -- "are they armed"? The mere act of living in public becomes a sort of haunted house -- we're all forced to eye each other warily and wonder if they're going to get us (which, for some of us, then becomes "so I better get them first").

And every time I look for a solution to this, I run into the brick wall of "it won't work unless we tackle the gun epidemic". Focus on those who actually engage in gun violence? Doesn't resolve the prospective anxiety of not knowing who is a potential threat, and doesn't have anything to do with the problem of extra-twitchy officers shooting at unarmed individuals. Disarming (non-specialized) police? It'll never happen in circumstances where police officers can reasonably say that they are liable to encounter armed individuals not just in specialized raids on violent cartels but in their ordinary beat work. Get rid of qualified immunity? As much as courts overuse rhetoric like cops being forced into "split-second decisions", some of this is a matter of symptom rather than cause; we know from too many experiences that juries have sympathy for officers who are reacting in the face of uncertainty in a world we know is awash in dangerous firearms. Criminal liability? Same problem: the panicked uncertainty of "anyone could be a danger" doesn't mesh well with guilty beyond a reasonable doubt; once the gun is in hand, it's too easy to imagine "wouldn't I panic in a similar fashion?" And maybe if there gun wasn't in hand, the panic would be the same, but the result wouldn't be.

The ultimate tragedy is that the sort of response that recognizable, non-monstrous humans make when feeling threatened -- not barbarians, not sociopaths, but people we can see ourselves in -- is one that, when one has a gun, often will result in people being maimed or killed. And the more guns there are, the tighter hair-trigger we'll all be on vis-à-vis feeling threatened. Guns -- both their actual presence, and the pervasive knowledge that they could always be present -- raise the stakes of confrontation to intolerable levels. It's a one-way ratchet, and there's no way down from it save by clearing guns off the street.

Hence my new radicalism. I don't need to believe that everyone who owns a gun is a secret militia member or yahoo or has some toxic masculinity fetish going on. And while it is abundantly clear that the humanizing sympathy towards persons who respond violently to feeling threatened is very much mediated by race, the core problem would persist even if it could be somehow deracialized (which, of course, it can't). The problem with guns is not that gun owners are not "law-abiding", and so it cannot be resolved by more stringently enforcing laws about guns. The problem is that, particularly in highly pluralized and polarized society, there is no way to preserve a functioning public square when everyone knows everyone else is capable of dealing death at a moment's notice; when every fight and every protest and every confrontation and every moment of negative emotion has immediate life-and-death stakes. That's not civilization, that's Hobbes' state of nature. Remember the old saw about "God made Man, Sam Colt made 'em equal?" Hobbes' state of nature is solitary, poor, nasty, brutish, and short because it presents a state of affairs where all people are fundamentally equal in their ability to kill one another. Entering civilization was supposed to remove us from that hell. Instead, we've recreated it.

A Quick, Sad Vignette on American Gun Violence

There was a shooting tonight outside Nationals Park, in the Navy Yard neighborhood of Washington, DC.

When I first starting hearing about this, I quickly googled "Navy Yard shooting" in hopes of getting more information. 

Most of the hits were about a mass shooting event in 2013, where twelve people plus the gunman were killed.

So I got more specific: "Navy Yard shooting 2021".

The search returned results about a shooting that occurred this past February.

I tried one more time: "Navy Yard shooting 2021 Nationals stadium". And that finally gave me results about the events of this evening.

It took me three tries to successfully narrow down to tonight's Navy Yard shooting. Because there were so many other Navy Yard shootings to choose from.

We cannot go on like this.

UPDATE: 

An eight year old girl who was at the game answers a reporter who asks how she was feeling: "It was my 2nd shooting, so I was kind of prepared. I’m always expecting something to happen." 

#NeverAgain Means Constantly Packing Enough Firepower To Bring Down a Tank

Some of you have no doubt seen Rep. Don Young (R-AK)'s suggestion that the Holocaust wouldn't have happened had the Jews been armed.

On twitter, responding to a similar claim, I observed that the Warsaw Uprising (where some Jews did have guns) belies the notion that Jews simply having guns would have meaningfully obstructed the Nazi genocidal machine. To which the reply was -- well, clearly they didn't have enough guns. Which, given that the NRA's response to any gun violence is "there should have been more good guys with guns in the room", isn't that surprising.

Now, in a sense it is right to say that the reason the Warsaw Uprising failed is that the Jews didn't have enough firepower -- that is, enough firepower to singlehandedly defeat a modern state's war apparatus. But I think we should hone in on the precise claim being made here. When the NRA says "we need an armed populace to defend ourselves from potentially genocidal government", it can't be talking about a couple people with handguns in their house or even some AR-15s. The only way this logic works is if they think every social group in America should have at its disposal enough advanced weaponry to take out a tank battalion along with its air support.

That power is, should, and must be vested in states -- which means there is no alternative response to the risk of (domestic) state violence and oppression other than inculcating that state with liberal and rule-of-law values so that it can both have the capacity to defend itself against external threats while not using those capacities to oppress others. This is a far more plausible lesson to draw from the Holocaust compared to a world where we hand out Stingers and Hellfire Missiles as Bar Mitzvah presents.

2018 Holiday Interregnum Roundup

What do you call the period between Christmas and New Years, anyway?

* * *

The Huffington Post (H/T: Nancy Leong) profiles a group of Black gun owners -- getting their perspective on why they own guns, the racial history of gun rights in America, and their perspective on potential encounters with the police while carrying. Very interesting. I've blogged a bit on the intersection of race and gun ownership here and here.

Conservative intellectual Max Boot concedes that the anti-racists and the feminists were pretty much right all along about the presence of bigotry in America (and particularly the American right). Max was also the guy who wrote, in February 2016, that "I'm a lifelong Republican but Trump surge proves that every bad thing Democrats have ever said about GOP is basically true."

Rosa Doherty sees a woman she admires say something antisemitic. So she -- gently and privately -- brings it to her attention. It doesn't go well. "If messages sent in good faith, with the hope of deepening understanding, are rejected in favour of hysteria and hate, then 2018 will be as depressing as 2017 has been."

Scott Lemieux: "'Democrats Need To Run People Whose Policy Positions Are Identical To Mine In Every Jurisdiction,' A Useless Political Analysis Editors Love". Yes, yes, and more yes.

Houston imam "mortified" that sermon calling for Muslims to kill the Jews "is being seen as a call for" killing Jews.

"Cornel West Has a Jewish Problem." Even if you think headline is a touch provocative, this is a good column by Yishai Schwartz (I say this as someone who genuinely appreciated the volume West cowrote with Michael Lerner on Black/Jewish relations).

Speaking of Jews, trying to map "The Last Jedi" onto a debate about the virtues of Orthodox versus Reform Judaism strikes me as trying way too hard, but if you must indulge Jenny Singer clearly bests Liel Leibovitz.

This thread has it all:

• Alt-right troll: "Let me list all the Jews who run the media!"
• Jew: " You're antisemitic trash. Also, that list isn't even accurate, so you're not even good at making lists of Jews."
• Far-left Corbynista: "Well they are all 'Zionists', so stop your nitpicking and show some solidarity with our allies in the struggle."

Disgusting Sandy Hook Conspiracy Theorists Have Academic Freedom Too

Time for an unpopular opinion: I lean towards the position that Florida Atlantic University violated academic freedom requirements when it fired James Tracy, a tenured communications professor. Tracy became notorious for his wild-eyed conspiratorial beliefs about the Sandy Hook massacre -- namely, that it didn't happen at that at least one of the family's involved actually faked having a child for money. He has pursued this line of inquiry quite vocally, including sending demands to the grieving family demanding that they "prove" their child is real. Bonus irony points: Tracy's area of study is conspiracy theories.

FAU claims to be firing Tracy not for his views on Sandy Hook, but because he failed to file certain disclosures regarding out-of-classroom activities. Like Paul Campos and Ken White, I smell a pretextual rat. It is almost impossible to imagine this misbehavior, if it would be punished at all, would be grounds for dismissal were it not for Tracy's public airing of his repulsive views.

In the Steven Salaita case, I took the firm position that

Yes, I think Salaita made anti-Semitic tweets, yes, I think his academic freedom was violated, no, clause "a" and clause "b" should not have anything to do with one another. Academic freedom includes the right to make anti-Semitic (or racist, or sexist, or whatever) statements; Salaita should not have been effectively stripped of his position for doing so; and he was entitled to (and I'm glad he received) a significant cash payout given that he detrimentally relied on Illinois' failure to adhere to basic academic freedom standards.

One could say similar things about Tracy. His outlook regarding Sandy Hook is truly appalling, but he nonetheless retains the academic freedom to promote said views, and clause one and two of this sentence should bear no relationship with one another. Nonetheless, it is obvious that the response to this case will not parallel the Salaita case, because it was evident that the passion with which Salaita was defended was entirely unrelated to the academic freedom issues in play, and instead stemmed from the belief that Salaita's beliefs were not just "protected by academic freedom" but actually salutary on their merits (lest one think that Tracy is the exception and Salaita is the rule in terms of the ferocity of the academic response, witness the comparatively muted response to LSU's firing of Teresa Buchanan, a case where the challenged conduct seems almost ludicrously trivial).

Even though academic freedom by its nature should not depend on whether one agrees with the behavior of Tracy, Salaita, or Buchanan, it is evident that the manner in which these debates play is inextricably linked to such substantive appraisals. This is not to say that people don't "really" believe in academic freedom and were simply cynically deploying it in the Salaita case. It is not agreement with the principle, but the ferocity with which it is dependent, that varies based on how one feels about the substance. Nobody will call for boycotts of FAU or LSU, and so it is fair to say that the boycott effort against UIUC was not motivated by "academic freedom" but by a desire to defend Salaita on the substance.