Tag Archives: law

Follow-up to “How Should We Rewrite the Second Amendment?”

Last Monday evening, I was reading on my iPad when something strange happened: Notifications started popping up about comments on the article I had posted that day, “How Should We Rewrite the Second Amendment?“. Every minute or so, there was a new comment. I usually get 5-10 comments total on a featured post, not 5-10 comments in a few minutes, so I knew something strange was happening.

When I’m writing a post, I usually lose myself in what I’m trying to say. But as soon as I hit the Post button, I start imagining it catching on with readers: Maybe they agree with it, or maybe it just makes them look at something a different way, so they like it and tell their friends. Those friends tell their own friends, and a positive chain reaction gets rolling.

But that wasn’t what had happened. My anti-Second-Amendment post was getting attention not just from my usual readers (who I think mostly agreed with it), or from new readers who liked it, but from outraged NRA types. It was a chain reaction, all right, but not a positive one. People were telling their friends about it because they hated it.

Nothing motivates like outrage, so the post got 15K page views (independent of subscribers, who see posts via email) and 290 comments, the vast majority of which were negative. (For comparison, the previous week’s featured post had done quite well by recent standards: 1182 page views and 8 comments.)

Something similar had happened to me once before: Back in 2011, “Why I Am Not a Libertarian” became one of my first viral posts, and for a while it was the Sift’s most popular article. (Numbers are not really comparable any more, because changes in social-media algorithms have made it harder for posts to go viral, but the Libertarian article got 28K views and 282 comments.) It did that not by impressing people with its clear thinking and crisp prose, but by pissing them off. The vast majority of the comments (and I suspect of the page views as well) came from offended Libertarians.

So back in 2011, I saw a road to notoriety opening up: I could be a provocateur, the kind of blogger that folks love to hate. I could write posts that trolled large groups of people, and then make sure that they knew I was running them down (maybe by seeding a few links on the appropriate Reddit groups). They’d shoot emails and Facebook comments and text messages back and forth, saying “Can you believe what this jerk is saying about us?”. And my numbers would take off. If I simultaneously started having advertising on the Sift, this might turn into some real income.

I didn’t do that.

There are writers who love the provocateur role and even some who are good at it, and I don’t want to judge them. But to me it would be a kind of hell. It’s not in my character to take satisfaction in the hate and anger of others, so I don’t know how I could get up every morning and intentionally aggravate people.

But eight years had gone by, and I had accidentally done it again. I doubt there are a lot of 2nd Amendment absolutists in my subscriber base, so I don’t know how word of “How Should We Rewrite the Second Amendment” filtered out to them. I can’t find any popular pro-gun blog that blew the outrage trumpet, and I certainly didn’t seek out that kind of attention myself. So it’s a mystery.

But it produced an interesting artifact: that 290-long comment stream. I pretty quickly decided I wasn’t going to answer them all individually. (A real provocateur would. Annoy enough of the commenters individually and who knows how often they’d come back and how many of their friends they’ll tell. Trying to annoy me back might become a minor hobby.) However, I have read them all. They provide an interesting window into a world outside my usual neighborhood.

For those of you who don’t have the time to wade through all of them, the rest of this post is my summary.


A large number were just statements of disagreement, without much attempt to convince: The Second Amendment doesn’t need rewriting. Keep your hands off the Second Amendment. And so on.

Many others were statements of disagreement plus some insult. The shortest was my favorite: “Idoit”. Whether that was a typo or a bit of intentional cleverness, I’m not sure. (When I was in high school, my friends and I would intentionally mispronounce pseudo-intellectual the way it looks: puh-sway-dough-intellectual.)

I didn’t feel like any of these needed a response. I said something; you disagree. Fine.

One version of this was to dispute my assertion that the Second Amendment has become meaningless by counter-asserting that its meaning is perfectly clear. I’ve often seen this happen with Bible verses: If your ministers and teachers repeat an interpretation to you often enough, that meaning begins to seem obvious to you, no matter how obscure the original text is in reality. Apparently, the same process works with the Constitution.

Other people made objections that I felt I had already answered in the article, like saying that gun ownership is necessary to protect us against tyranny. I had considered that idea and rejected it for specified reasons. If people had a response to those reasons, I considered their views. But if they just reiterated the original point, my response was already available.

Several people repeated the myths about Hitler and Stalin disarming their people; I had already provided a link debunking those myths.


Some commenters entered into the spirit of my post, but want to rewrite the Second Amendment to make the NRA’s intended meaning clearer: that any gun-control laws at any level are unconstitutional.

Those comments speak for themselves and need no reply from me. Again: I said something; you disagree.


One of the stranger misconceptions in the comments was that I had said something about Denmark. “Denmark” shows up six times in the comments, and not at all in article. (I actually mentioned the Netherlands as a nation without an armed populace, but which doesn’t seem to be threatened by tyranny.) I think this was probably because Denmark had annoyed Trump this week, so it was in the minds of his minions.


Several bizarre theories about the Constitution were put forward.

A number of commenters asserted that the Bill of Rights can’t be changed. I’m not sure where that comes from or who promotes it, but it’s just flat wrong. Article V of the Constitution is pretty clear about that:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

One thing the Constitution does not give anyone the power to do is to is to amend the Constitution in a way that can’t be amended back. So when the First Congress wrote the Bill of Rights, it was creating a set of amendments that could be repealed in the future through the same amendment process.

Several people seemed not to get the whole idea of amending the Constitution. Quoting the Second Amendment against the idea of repealing the Second Amendment makes no sense.

Two anonymous comments (probably the same commenter posting twice) claimed that “the Preamble” said that our rights come from God. (He was kind of obnoxious about it, calling some other commenter “you of weak mind”.) This is false. Neither God nor any religious synonym appears in the Constitution, in the Preamble or anywhere else. Mr. Anonymous had confused the Declaration of Independence (a Revolutionary War polemic that has no legal significance) with the Constitution.

Others similarly found a religious significance in the Constitution that I doubt the Founders intended to put there. (More about that below.)

The constitution should be treated as sacred as the bible is. Both to be held in the highest regard and NEVER changed or messed with in any way. The government should stay the hell away from it, and keep their fat traps shut. If this country would live by both, the bible being the most followed, then we wouldn’t be in the crap hole this country is in. But we shouldn’t be changing it as we see fit, but follow it as the founding fathers and GOD saw fit.

The Constitution is a thoroughly secular document that sets up a secular republic. Some of the Founders had religious motives and some didn’t, but they didn’t write their religion into the Constitution.

If we regarded the Constitution as sacred and never changed it, blacks would still be slaves and women wouldn’t be able to vote. Anybody who regards the Founders as divinely inspired and their work as sacrosanct needs to own that.


Other commenters couldn’t comprehend the idea that the world can change out from under a text and leave it meaningless. (Back in 2015, I explained how changes in opposite-sex marriage had made bans against same-sex marriage indefensible, even though they had made sense a century or two before. Change erodes meaning.) Several argued that we could know what the Founders thought because they left extensive writings behind. And that’s true: We can know quite a bit about what they thought about the world they lived in.

What we can’t know is what they thought about the world we live in. And that’s my point: Applying the Second Amendment to the world we live in is just senseless. On either side, people are just making stuff up, because actual text doesn’t mean anything any more.


As an aside, this is one way that the Constitution does resemble the Bible: There are parts of the Bible that are meaningless now, because no one knows how to translate them into modern language. Anyone who says they know what the commandment against “coveting” means is lying to you, for example. So is anyone who claims to know the meaning of “witch” in “Thou shalt not suffer a witch to live.” Any honest discussion of those verses has to start by saying, “We don’t really know what this means.”


Quite a few commenters seemed to think that even talking about rewriting the Second Amendment should be taboo, because then somebody could rewrite all the amendments and take our rights away.

This is kind of a silly point, because amending the Constitution is a Herculean task. It will only happen when there is good reason for it to happen.

So yes, it is completely possible that we could repeal the First Amendment, or the 15th, or whichever one is closest to your heart. The Founders never intended to write a Holy Scripture. Jefferson was undoubtedly an extremist in this regard, but I doubt he was the only one who believed this:

no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.

And yes, some of the arguments I made about the Second Amendment becoming meaningless can apply to others, because time is constantly eroding the meaning of texts. I was explicit about that.

Old laws become encrusted with layers and layers of debatable interpretations. If judges do their jobs well, the public may retain confidence that some “spirit” of the law lives on, even as it applies to novel and unforeseen situations. But at some point, we need to accept that the original meaning has been entirely lost, and so it’s time to shake off the encrustations and reconsider the relevant issues from scratch.

The First Amendment, like the Second, is often applied to situations the Founders didn’t foresee. Personally, I still find a “spirit of the law” in First-Amendment interpretations that I don’t find in Second-Amendment interpretations (where it seems to me that everyone is just making stuff up), so I would not favor repealing and replacing the First Amendment.

If, however, we found ourselves in a situation where an unfortunate application of the First Amendment was leading to thousands of deaths every year, I might change my mind.

But I do agree this far: We should absolutely be talking about all the rights in the Constitution, and evaluating what they mean and/or should mean, because we are the living generation. The earth belongs to us and not to the dead. If any part of the Constitution no longer serves us, and if that has become so clear that we can get supermajority agreement about it, we should change it.


One common criticism was that I didn’t know history, but usually commenters floated that objection without attaching it to anything in particular, so who knows what they meant or whether the criticism has any validity. Chances are, they have seen some of the bogus history the NRA spreads, so the criticism could just be turned back on them. But there was one exception: I in fact did not know about some of the bizarre early versions of multi-shot weapons.

Several commenters made claims about weapons the Founders might have seen, but only one provided a reference link. Admittedly, it’s a link to an NRA blog, so I take all this with a grain of salt. But apparently there were multi-barrel guns that were capable of multiple shots.

I have to question how reliable, accurate, or otherwise practical any of those guns were. But even if they worked reasonably well, I see no reason to change my conclusion that

An attack like the recent Dayton shooting, in which one man killed nine people and wounded 14 others in half a minute, would have been unimaginable [to the authors of the Second Amendment].


To sum up, nothing in the comment stream makes me want to go back and rewrite the original article, or change the amendment I would like to pass. Likewise, none of it changes my conviction that the Constitution is (and was always intended to be) open to amendment. As Jefferson said, the world belongs to the living, not the dead.

How Should We Rewrite the Second Amendment?

We argue so vociferously about the meaning of the Second Amendment because it doesn’t really mean anything any more. We should replace it with a new amendment protecting freedoms that matter to us today.


Whenever you pick up an article about gun control — pro or con — you can be virtually certain of one thing: The author believes that the Second Amendment has a unique and definite meaning, which he or she knows with certainty.

So the Amendment either clearly supports an individual right to own and use guns, or it was intended purely to prevent the federal government from disarming state militias (i.e., the National Guard). If it does indeed protect an individual right, the “arms” we are allowed to bear include only the guns appropriate for defending our homes — which leaves out military weapons — or else the Founders wanted us to have the means to overthrow the federal government should it prove tyrannical, making military-grade weapons not only permitted, but absolutely necessary. And so on.

I want to turn that conversation upside-down: Our arguments about the Second Amendment are so dogmatic because we are arguing about shadows in the dark. Each of us projects our own desired meaning onto the Amendment, because the Second Amendment no longer has any meaning of its own. With regard to the role of guns in society, so much has changed in the last 200 years that whatever the Founders intended when they wrote the Amendment is entirely inapplicable to us.

We argue so intensely because there is no answer. We’re like middle-aged siblings arguing about what Dad wants, when Dad has advanced Alzheimer’s and doesn’t know where he is or who we are. Rather than looking at the world as it is and deciding what we want to do with it, we sit around a Ouija board trying to contact the ghosts of the Founders — and then we complain that somebody else is pushing the planchette rather than letting the spectral vibrations work their will.

How meaning gets lost. Any text is vulnerable to having the world change out from under it, and the Founders gave us the power of amendment precisely because they never intended their words to stand as eternal truths. Is, say, the First Amendment’s protection of “freedom of speech” intended to protect your right to set up bots to spread disinformation on social media? What, exactly, was James Madison’s opinion on that issue? What would George Washington say about using facial recognition software to identify individuals as they move through a world whose public spaces are covered by networked surveillance cameras?

Judges make decisions about such issues because they have to; cases come to their courts and something must be done with them. And so old laws become encrusted with layers and layers of debatable interpretations. If judges do their jobs well, the public may retain confidence that some “spirit” of the law lives on, even as it applies to novel and unforeseen situations.

But at some point, we need to accept that the original meaning has been entirely lost, and so it’s time to shake off the encrustations and reconsider the relevant issues from scratch. That’s where we find ourselves with respect to the Second Amendment. Anyone who says he knows what the Second Amendment really means today is either fantasizing or lying, because it doesn’t mean anything any more.

Consider how different the world was when the First Congress wrote the Bill of Rights.

  • State militias were the first line of national defense. Political leaders of the Founding era were afraid of the tyrannical potential of a centrally controlled professional army, and imagined that the new nation would have either no army in peacetime or a very small one. [1] That army would grow in wartime, but wars were supposed to be rare, because early American foreign policy intended to avoid “entangling alliances” that would pull the United States into European wars. [2] A state militia (perhaps with help from the militias of neighboring states) would be adequate to deal with Indian raids, slave revolts, riots, criminal gangs, and other challenges that might occur more frequently. In Federalist 29, Alexander Hamilton described a “well-regulated militia” in detail, and judged it to be “the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”
  • Private citizens played a much larger role in law enforcement. American cities wouldn’t start organizing modern police forces until more than half a century later.
  • Guns were single-shot weapons that took time and skill to reload. Modern re-enactors can reload 18th-century muskets in about 15 seconds, assuming no one is trying to interfere with them. An attack like the recent Dayton shooting, in which one man killed nine people and wounded 14 others in half a minute, would have been unimaginable.
  • The Bill of Rights did not apply to state and local governments. [3] Prior to the Supreme Court’s Heller decision in 2008, state and local governments could and often did regulate guns. About a century after the Second Amendment, the gunfight at the O.K. Corral was a dispute about gun control: The Earp brothers were lawmen enforcing the laws of Tombstone, Arizona, which required visitors to disarm. Many towns in the Old West had some form of gun control. They passed those laws for the same reasons people want such laws today: Law-abiding citizens should be able to go to a store or to church or send their children to school without worrying about getting caught in a crossfire.

Today, we have entangling alliances, fight more-or-less constant wars, and live in the midst of the large standing army that the militias were supposed to make unnecessary. Even small towns have professional police forces, and state and county police forces cover rural areas. The vast majority of citizens do not at any point in their lives belong to a well-regulated militia. (And no, self-appointed bands of armed yahoos running around in the woods bear no resemblance to the Founders’ vision.)

In short, the original reasons citizens needed to be armed no longer apply, the weapons themselves have changed beyond recognition, and the notion that no one can restrict weaponry is entirely new. Given all that, how can anyone interpret the Second Amendment with confidence?

Why mess with it? Currently, both sides deal with the Second Amendment’s fundamental emptiness in the same way: Decide what you want the Amendment to mean, and then try to win elections so that you can appoint judges who will pretend it says what you want it to say.

Two things are wrong with this approach. First, it’s dishonest and undermines respect for the law. The right way to change laws is to pass new laws, and the right way to change the Constitution is to amend it. Each side may claim that it is restoring the “true” meaning of the Second Amendment. But, as I have argued above, there is no longer any true meaning to recover. The society that gave the Second Amendment its meaning is gone forever.

Second, both sides in this argument need a credible goal, even if that goal is politically impractical at the present moment. The current approach of gun-control advocates (of whom I am one) is, “Can you just give us this much?” So we ask for background checks or assault-weapon bans or limits on bump stocks or large magazines. All those proposals are very reasonable, but even in combination they are not a solution to America’s gun problem. So even if those restrictions become law, sooner or later we’ll be back to ask for more.

This smallball strategy plays into the NRA’s slippery-slope argument, which claims that the ultimate unspoken goal is complete confiscation. I know of very few people who advocate complete confiscation, even in private. But as long as the gun-control movement has no stated goal, the NRA has complete freedom to assign us whatever goal most frightens its members. The response “No, I just want background checks” isn’t credible, so gun owners who want to protect any gun rights at all will want to hold the line.

Conversely, the NRA’s strategy of disrupting any potentially political conversation about guns — it opposes even studying the public-health implications of widespread gun ownership, as well as developing technology to make guns safer — is similarly untenable and provokes similar paranoia on the left: They won’t be satisfied until we’re all dodging bullets every day.

On each side, rewriting the Second Amendment is a worthy goal. It will force gun control advocates to grapple with the question of confiscation, and challenge gun-rights advocates to justify exactly which rights are worth protecting and why. The conversation about what the Second Amendment means can never reach consensus, because there is no meaning to converge on. But a conversation about what it should say has more potential.

The rest of this article describes and justifies my own attempt to rewrite the Second Amendment.

What rights don’t need constitutional protection? To be perfectly blunt, a lot of the reasons people want to own guns are frivolous. Those reasons might be perfectly fine in their own ways, but they don’t rise to the level of a right that needs constitutional protection.

Guns, I admit, are very clever mechanisms; they even can be said to have a certain kind of beauty. So I understand why someone might want to own a collection of them, just as someone else might collect the pocket watches of various eras. But the Constitution doesn’t protect any other collections; it shouldn’t protect this one either..

Similarly, target shooting is a worthy sport. It demands skill and concentration. Some people are particularly gifted at it, just as some are gifted at pole-vaulting or throwing footballs. But if a community decides that public safety demands restricting this sport, so be it. Ditto for the sport of hunting. It may be traditional and so forth, but it’s a sport. Baseball is also traditional, and raises similar sentiments about passing down interests from father to son. But my right to play baseball should not be enshrined in the Constitution, and neither should hunting.

What about overthrowing a tyrannical government? Then we come to the most contentious issue: resisting or overthrowing the government, should it turn tyrannical. A disarmed populace, according to this argument, is the precondition for tyranny, and gun control is often a precursor to taking away other rights.

The are a few things to note about this point: First, if you believe that an unarmed populace is an invitation to tyranny, I have two suggestions: Reconsider the history you think you know, and go visit the Netherlands. The Dutch have only 2.6 weapons for every 100 people (compared to our 120), and very strict gun-control laws. They also have a higher democracy index than we do: 8.89 to our 7.96.

Second, if retaining the ability to fight the government is the justification for the right to bear arms, then it’s hard to argue for any restrictions on armaments at all. Red State founder Erick Erickson made this explicit:

You may think a 30 round magazine is too big. Under the real purpose of the second amendment, a 30 round magazine might be too small.

Indeed, if my purpose in owning guns is to preserve my option to join a Red Dawn resistance and fight the U.S. Army, then I need a lot more than just an AR-15. I need grenade launchers and anti-tank weapons and shoulder-fired Stinger missiles that can take down helicopters (or airliners as they take off or land).

Do you really want to go there? I don’t. As much as I fear the current administration, I’d rather take my chances with the American government than get on a plane knowing that Stingers are available at Walmart.

And that leads to what I see as the biggest problem with this vision:  In the NRA fantasy, the American people are unified in their resistance to a vicious cabal at the top, and must fight to restore democracy. Second Amendment proponents like to think about the Minutemen or the French Resistance in World War II. But those aren’t the most likely scenarios.

You know what’s much more likely? A violent minority tries to impose its will on the rest of us through terrorism. That, in fact, is what we’re seeing now from armed white supremacists like the El Paso and Pittsburgh shooters. Their problem is that they don’t represent the American people and so they can’t achieve their white-homeland vision through the democratic process. That’s why they need guns.

The US has seen this pattern in the past as well. The Atlantic’s Mark Nuckols offers two examples:

  • Bleeding Kansas of the 1850s, where pro- and anti-slavery marauders tried to drive each other’s supporters out of the territory.
  • The post-Civil-War South, where the KKK and other white-supremacist groups terrorized blacks out of voting. The resulting white-supremacist governments eventually disenfranchised blacks legally and instituted Jim Crow.

In short, the situation we have now, in which a decreasing minority of people owns an increasing numbers of guns, doesn’t secure our democracy, it endangers our democracy. [4]

The right to self defense should be protected from federal interference. So far it sounds like I’m making a confiscation argument, because I haven’t identified any type of gun-ownership that deserves constitutional protection. But I believe self-defense qualifies on a number of grounds:

  • Self-defense is a fundamental human right. If someone attacks you, you shouldn’t have to just stand there and die. Depending on the severity of the attack, you may be justified in using lethal force. Few things are more horrifying than the thought that someone is coming for you or your loved ones, but there’s nothing you can do about it.
  • Americans broadly believe in a right to self-defense, whether or not they personally own weapons or get self-defense training.
  • Despite the risks that come with gun ownership, many people have in fact driven off or captured or killed attackers by using their own guns. The risk/reward balance of owning a gun varies from place to place and individual to individual, so judgments about it should not be made on the federal level.

Some of these considerations also apply on the city and state level, so the federal government shouldn’t prevent a lower-level government from equipping a force to defend the public safety or enforce the laws.

That said, there are some legitimate roles for the federal government to play. Self-defense is not an open door for any kind of weaponry at all. No one needs a tank or a nuclear bomb to defend their home or person, or to drive coyotes away from their sheep. Likewise, no one needs an assault rifle with a 100-round magazine or an armory with dozens of weapons. A closer analysis of what means of self-defense might be necessary in one place or another is better done at the state level, but the federal government should be able to make some broad restrictions.

Additionally, states that want to control guns more tightly need protection against their laws being undermined by neighboring states with looser laws. So in addition to its general power to regulate interstate commerce, the federal government’s power to regulate, police, or completely ban the interstate transportation or sale of firearms should be spelled out.

A few final considerations. The Constitution sets up a federal government whose powers are limited to those expressly granted. [5] But history has shown that the government can leverage the powers the Constitution grants to wield other powers that it doesn’t grant. A relatively harmless example was the 55-MPH speed limit set in 1974 as an energy-conservation measure. The Constitution doesn’t grant any speed-limit-setting powers to Congress, so it passed a law that denied federal highway funds to states that didn’t enact a 55-mph limit. Before the Supreme Court struck it down, the Affordable Care Act’s Medicaid expansion was another attempt at using federal funds to force state action.

So any amendment that limits federal power to regulate guns, but allows state and local powers more extensive powers, should also guard against federal coercion of the states.

Conversely, the federal government needs the power to regulate anything that otherwise would work around restrictions it can legally make. So, for example, if Congress can ban automatic weapons, it should also be able to ban kits for converting semi-automatic weapons to fully automatic ones.

What should it say? Here’s my proposal:

1. The Second Amendment to this Constitution is hereby repealed.

2. Congress shall make no law preventing individuals from securing adequate means to defend their homes and persons, or preventing state or local governments from equipping police forces adequate to enforce their laws and ensure public safety.

3. Congress shall have the power to regulate the interstate transportation and sale of weapons, ammunition, and other weapon-related items.

4. States shall have the power to regulate the use, manufacture, ownership, and transfer of weapons within their borders, or to delegate such powers to local governments.

5. No federal expenditure or regulation shall be contingent on a state or local government using its power to regulate weapons in a manner specified by federal law.

What does it mean? Several things:

  • In order to pass a gun restriction, Congress would need to establish that individuals still have the means to defend their homes and persons. So Congress could ban assault weapons, but not handguns. It could limit the size of your arsenal, but not disarm you completely.
  • More detailed gun laws would have to be passed at the state level, so states could implement wildly divergent visions. If Texas believes that guns-everywhere makes the public safer, it can try that. But if Illinois wants to let Chicago ban guns completely, it can try that too. People who feel unsafe in one state or the other don’t have to go there. (Texans who come to Chicago would have to check their guns, just as they would have when entering Tombstone.) Colorado might decide to allow a wide range of guns, but regulate guns and their users in a similar way to cars and drivers. This state-by-state diversity would be healthy; we would see clearly what does and doesn’t work.
  • State and local governments would keep the ability to enforce their own laws, and would not have to depend on a federal force. This was one of the main tyranny-restraining pieces of the Founders’ vision, and one of the few implications of the Second Amendment that still makes sense today.

Or write your own. The main advantage my amendment would have over the current Second Amendment is that it would mean something, independent of everyone’s hopes and fears. As a result, both sides could have more confidence about its interpretation. We could lessen the paranoia that now attends every presidential election or Supreme Court nomination.

The choices I have made are far from the only ones possible. I have left a lot of decisions to the states; you may wish to have a more uniform policy across the country. I have allowed outright bans on the local level; you may not want that. I have left room for interpretation by using the word “adequate” rather than spelling out exactly how I expect future generations to defend themselves. And so on.

But if you write your own version and we each promote our favorite, look how the discussion has changed: We are no longer arguing about something unknowable, such as what was in the minds of people centuries ago, or what they would want if they could see us now. Instead, we are arguing about the world we live in and what we want for our future. Anyone can participate in that discussion by drawing on their own experiences; you don’t have to be (or pretend to be) a historian or legal scholar.

That is a conversation that has potential for growth and change and compromise.

Conversely, no one who considers the recent history of Second-Amendment interpretation should have any confidence that they know what it will “mean” a generation from now. The Supreme Court’s current interpretation was considered a fringe position a generation ago. [6] Unless we replace the Amendment with one that has clear meaning to people of our era, no one can say what ideas on the fringe today might be constitutional doctrine tomorrow.


[1] After the Treaty of Paris ended the Revolutionary War, the Continental Army was reduced to a single regiment of about 700 men stationed on the western frontier.

[2] President Washington said in his Farewell Address:

Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities.

[3] In general, constitutional restrictions didn’t apply to the states until the 13th, 14th, and 15th amendments were passed after the Civil War. The 14th Amendment says:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Over time, the Supreme Court came to interpret “liberty” to include the rights described in the Bill of Rights. This doctrine is known as the “incorporation of the Bill of Rights“. The incorporation of the Second Amendment wasn’t fully recognized until 2010.

[4] People who are honestly worried about the future of American democracy should focus instead on making it work: End gerrymandering and voter suppression. Limit the influence of big-money donors, corporate lobbyists, and hostile foreign governments.

As long as the American people retain the ability to vote out governments that don’t serve their interests, the resort to guns won’t be necessary.

[5] For this reason, in Federalist 84, Alexander Hamilton argued against including a Bill of Rights in the Constitution because he believed it would be unnecessary.

For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

[6] As Jeffrey Toobin writes in the current New Yorker: “The Court changed the Second Amendment, and the Court can change it back again.” But unfettered by a text with any actual meaning, it could also go somewhere else entirely.



UPDATE

I was kind of overwhelmed by the quantity and negativity of the comments, so I decided not to answer them one by one. Instead, I wrote a sequel that summarizes a lot of the points commenters made and answers the ones that seem to need or deserve answering.

Chief Justice Roberts OKs Minority Rule

If you’re a Republican, the demographic trends look bleak: Each cycle, your party’s core voters (white Evangelicals) become a smaller portion of the overall electorate. Worse, your positions on social issues (like gay rights) are turning off young voters, even if they’re straight and white, and your leaders target the fastest growing demographic (Hispanics) with vitriol almost every day.

You could try to change all that by shifting your positions. That’s what an RNC report recommended after Mitt Romney’s 2012 loss. But the party decided to go another way: Figure out ways to stay in power with fewer votes.

Minority rule. In certain ways, the US system already favors a Republican minority: Small red states like Wyoming or the Dakotas have just as many senators as liberal California, and the Electoral College tilts towards small states. But that natural advantage can be expanded: Voter suppression in Georgia allowed Republicans to keep the governorship there. And, of course, unlimited campaign spending helps Republican candidates win elections they otherwise might not.

But the real pillar of minority rule is gerrymandering. If you draw the districts properly, you can remain in power even if most voters are against you. And if you’re in a state where you have a small majority of voters, you can get a supermajority of seats in the legislature, allowing you to twist the system to your advantage in all sorts of ways.

Take Virginia for example. In 2017, Democrats overwhelmingly won the popular vote in House of Delegate elections, 53%-44%. All the seats were up for election, so you’d think they’d get control, wouldn’t you?

Such a quaint notion! In fact, Virginia delegate districts are gerrymandered all to hell, with the result that Republicans stayed in power: 51 seats to the Democrats’ 49. Apparently, Democrats would have to win by at least double digits to break the Republican dominance.

Same thing in Michigan. In the 2018 elections for the Michigan House, Democrats won the popular vote 52%-47%, but Republicans kept a six-seat majority, 58-52.

On the other hand, you have North Carolina. In 2016, Republicans won the popular vote in the NC House elections, 52%-47%, similar to the Democrats’ Michigan margin in 2018. But with a different result: Republicans got an overwhelming 74-46 majority of the seats. The Republican legislative supermajority was what allowed it to change the rules when a Democrat won the governorship. Maybe the voters still can give statewide offices to Democrats, but gerrymandering lets the legislature strip power away from those offices once Democrats win them.

That’s the essence of gerrymandering today: You don’t really need a majority of voters to keep power, and even a small majority will give you a constitution-amending supermajority, along with the ability to override the vetoes of any governor that the voters manage to elect over your opposition.

Best of all, it’s self-reinforcing: If the other party can’t break your hold on the legislature, then you get to improve your gerrymander every time there’s a new census!

The minority-rule Supreme Court. The Republican minority-rule majority in the Senate allowed Mitch McConnell to block President Obama’s last nominee to the Supreme Court, and to hold the seat open until President Trump (elected with only 46% of the vote) could fill it, as well as name a second justice after Anthony Kennedy retired. So the Court has a 5-4 conservative majority rather than the 6-3 liberal majority it would have if American voters had actually gotten their way.

So when a gerrymandering case came to the Court this term, it gave the five conservative judges a moral challenge: Defend democracy, or defend the partisan minority that appointed you?

None of them rose to that challenge.

The case. Ostensibly, the case was non-partisan, because it paired a Republican gerrymander in North Carolina with a Democratic gerrymander in Maryland. Both concerned districts for the federal House of Representatives.

But in the larger context the case was very partisan, because nationwide, the Republican Party has embraced gerrymandering whole-heartedly, while Democrats have hung back. When Democrats took over the House of Representatives in January, the first thing it passed was H.R. 1, which banned gerrymandering of congressional districts. (It’s not clear whether Congress has any power over gerrymandering of state elections.) But of course, that bill has never come up for a vote in Mitch McConnell’s minority-rule Senate.

John Roberts’ opinion. There was never any doubt that Justices Thomas, Alito, Gorsuch, and Kavanaugh would take a partisan Republican position. The question mark was Chief Justice Roberts, who ended up writing the majority opinion.

The gist of his opinion is that while of course he personally finds partisan gerrymandering to be a despicable practice, he can only wring his hands, because the law does not allow him to do anything to stop it.

Chief Justice Marshall famously wrote that it is “the province and duty of the judicial department to say what the law is.” Sometimes, however, “the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” In such a case the claim is said to present a “political question” and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction. Among the political question cases the Court has identified are those that lack “judicially discoverable and manageable standards for resolving [them].” …

We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.

The picture he paints is that if the Court interfered at all, then it would be forced to come up with its own answers to questions that ought to be decided by the political branches of government: How should districts be designed? What does it mean for an election to have a “fair” outcome? And so on.

He points out that gerrymandering happened in the era of the Founders, and that their solution to it was to balance state legislatures’ decisions against the check of the federal Congress, not the courts. He points out all the ways that political forces inside the states might defeat gerrymandering without court intervention:

Indeed, numerous other States are restricting partisan considerations in districting through legislation. One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions. For example, in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. Missouri is trying a different tack. Voters there overwhelmingly approved the creation of a new position—state demographer—to draw state legislative district lines.

Kagan’s dissent. Justice Elena Kagan acknowledges Roberts’ points, and gives a “close, but no cigar” response to each.

Yes, the Founders knew about gerrymandering, the same way that they knew about firearms. (My analogy, not hers.) But the modern version is a different animal entirely.

Yes, partisan gerrymandering goes back to the Republic’s earliest days. (As does vociferous opposition to it.) But big data and modern technology—of just the kind that the mapmakers in North Carolina and Maryland used—make today’s gerrymandering altogether different from the crude linedrawing of the past. Old-time efforts, based on little more than guesses,sometimes led to so-called dummymanders—gerrymanders that went spectacularly wrong. Not likely in today’s world.

And the thing Roberts said was impossible — judging that the gerrymanders in question were unacceptable without imposing your own vision of fair design and fair outcomes — was exactly what the lower courts had done.

The approach—which also has recently been used in Michigan and Ohio litigation—begins by using advanced computing technology to randomly generate a large collection of districting plans that incorporate the State’s physical and political geography and meet its declared districting criteria, except for partisan gain. For each of those maps, the method then uses actual precinct-level votes from past elections to determine a partisan outcome (i.e., the number of Democratic and Republican seats that map produces). Suppose we now have 1,000 maps, each with a partisan outcome attached to it. We can line up those maps on a continuum—the most favorable to Republicans on one end, the most favorable to Democrats on the other. We can then find the median outcome—that is, the outcome smack dab in the center—in a world with no partisan manipulation. And we can see where the State’s actual plan falls on the spectrum—at or near the median or way out on one of the tails? The further out on the tail, the more extreme the partisan distortion and the more significant the vote dilution.

The North Carolina plaintiffs randomly produced 3,000 districting maps that meet the legal criteria. All of them were more favorable to Democrats than the one the legislature adopted.

Under [the lower courts’] approach, in other words, the State selected its own fairness baseline in the form of its other districting criteria. All the courts did was determine how far the State had gone off that track because of its politicians’ effort to entrench themselves in office. …

The plaintiffs asked only that the courts bar politicians from entrenching themselves in power by diluting the votes of their rivals’ supporters. And the courts, using neutral and manageable—and eminently legal—standards, provided that (and only that) relief. This Court should have cheered, not overturned, that restoration of the people’s power to vote.

And finally, Kagan examined Roberts’ faith that the political system would fix this problem on its own.

The majority disagrees, concluding its opinion with a paean to congressional bills limiting partisan gerrymanders. “Dozens of [those] bills have been introduced,” the majority says. One was “introduced in 2005 and has been reintroduced in every Congress since.” And might be reintroduced until the end of time. Because what all these bills have in common is that they are not laws. The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight.

No worries, the majority says; it has another idea. The majority notes that voters themselves have recently approved ballot initiatives to put power over districting in the hands of independent commissions or other non-partisan actors. Some Members of the majority, of course, once thought such initiatives unconstitutional. But put that aside. Fewer than half the States offer voters an opportunity to put initiatives to direct vote; in all the rest (including North Carolina and Maryland), voters are dependent on legislators to make electoral changes (which for all the reasons already given, they are unlikely to do). And even when voters have a mechanism they can work themselves, legislators often fight their efforts tooth and nail. Look at Missouri. There, the majority touts a voter-approved proposal to turn districting over to a state demographer. But before the demographer had drawn a single line, Members of the state legislature had introduced a bill to start undoing the change. I’d put better odds on that bill’s passage than on all the congressional proposals the majority cites.

She concludes:

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.

Potemkin democracy. My interpretation of these opinions is that Roberts (and the minority-rule court majority he leads) has no interest in actual democracy, just Potemkin democracy. As long as we have “elections” in which people vote and votes are tabulated, he’s satisfied. If the system has been rigged so that the same people win all the time, well, that’s just politics. And the Roberts Court is above politics.

What I think we should never lose sight of is how all these minority-rule actions build on each other, and then wrap around to cycle through again. A minority-rule Senate and a minority-rule President have given us a minority-rule Court. The Court now is returning the favor, helping the ever-shrinking conservative minority to maintain its hold on power into the indefinite future.

The Lawless Administration

According to the Constitution, the duties of the President include “he shall take Care that the Laws be faithfully executed”.  But from the beginning of his administration, Donald Trump has taken the same attitude towards the law as president that he did when he was a New York real estate tycoon: Not “What does the law say I have to do?”, but “Who’s going to make me do it?”

No previous president or administration has had such a disregard for the law, and he seems to be getting more brazen about it. This week included so much lawlessness I need to list it before I go into detail on any of it.

  • Trump announced that there is nothing wrong with doing what he was accused of doing in 2016: accepting help from a foreign government during an election campaign. The law may say otherwise, but so what?
  • An official watchdog group (whose head Trump himself appointed) reported that Kellyanne Conway has repeatedly and brazenly violated the Hatch Act, which bans federal employees from partisan political activity while performing their official duties. The report recommended that she be fired. The White House Counsel rejected the report, and Conway will continue in her job. She has neither apologized nor promised to obey the law in the future.
  • Scandals continued to pile up around Transportation Secretary Elaine Chao, whose stock in a major road-paving company was long ago identified as a conflict of interest, who attempted to use her position to benefit her family’s company, and who maintains a special pipeline for transportation projects in the home state of her husband, Majority Leader Mitch McConnell.

Friday night, MSNBC’s Ali Veshi (subbing for Rachel Maddow), examined Trump’s long history of telling people to break the law. He mentioned these incidents:

(Veshi might also have mentioned incidents during the campaign, when Trump urged his audiences to beat up protesters. Or his instructions that his administration should defy “all the subpoenas“, regardless of their lawful authority.) In each case, intermediate officials felt obligated to tell the same people to obey the law rather than do what the President just told them to do.


In an interview with ABC’s George Stephanopoulos Wednesday, Trump said that he would “listen” to any foreign government that offered his campaign dirt on his opponent, and that “maybe” he would call the FBI. But then he elaborated in ways that made the call to the FBI seem unlikely:

I’ll tell you what, I’ve seen a lot of things over my life. I don’t think in my whole life I’ve ever called the FBI. In my whole life. You don’t call the FBI. You throw somebody out of your office, you do whatever you do. Oh, give me a break – life doesn’t work that way.

Both Attorney General Barr and FBI Director Wray have said that a campaign receiving offers of help from foreign governments should call the FBI, but Trump explicitly rejected that opinion. “The FBI director is wrong,” he said.

In essence, Trump has announced to foreign governments that he is open for business. If they have anything on his rivals, he wants to hear it. Will he ask questions about whether they broke any laws to get it, as Russia did when it hacked DNC computers? He didn’t say.

Democrats in the Senate offered a bill to require campaigns to report offers of foreign assistance, but Republicans blocked it, as they have blocked every attempt to stop a repeat of Russia’s 2016 interference. It’s hard to come up with an explanation other than the harsh one: Republicans are counting on Russia to help them again in 2020.


When Elaine Chao took office as Transportation Secretary, she pledged to the Office of Government Ethics that she would sell her stock in Vulcan Materials, which the company’s web page describes like this:

Vulcan Materials Company is the nation’s largest producer of construction aggregates—primarily crushed stone, sand and gravel—and a major producer of aggregates-based construction materials, including asphalt and ready-mixed concrete.

Given that the Transportation Department oversees the interstate highway system, the conflict of interest is obvious. She in fact didn’t sell the shares until two weeks ago, after the Wall Street Journal pointed out that she was still holding the shares — whose value had increased by $40,000 in the meantime.

Another obvious conflict is her family’s company, Foremost Group, which the NYT describes as “an American shipping company with deep ties to the economic and political elite in China, where most of the company’s business is centered”. The Times recently revealed that when Chao planned her first trip to China as a member of Trump’s cabinet, she asked for family members to be included in meetings with government officials.

David Rank, who had been deputy chief of mission for the State Department in Beijing, described the request as “alarmingly inappropriate”. The trip was cancelled after State Department officials raised ethical issues. Vanity Fair writes:

Though Chao has not worked for the company since the 1970s, it is the (ongoing) source of her wealth and the political wealth of her husband [Majority Leader Mitch McConnell]. In 2008 her father gave the couple a gift of as much as $25 million, while 13 members of the Chao family, including Foremost CEO Angela Chao, have given more than $1 million to McConnell’s campaigns and to PACs tied to him.

Angela Chao responded to the NYT article with a letter to the editor defending her sister, which in my opinion missed the point and denied charges that were never made.

Finally, there are the conflicts created by her marriage to Senator McConnell of Kentucky. Politico reports:

The Transportation Department under Secretary Elaine Chao designated a special liaison to help with grant applications and other priorities from her husband Mitch McConnell’s state of Kentucky, paving the way for grants totaling at least $78 million for favored projects as McConnell prepared to campaign for reelection.

Draining the swamp indeed.


The Office of the Special Counsel (not to be confused with Bob Mueller’s office; this one is run by Trump appointee Henry Kerner, formerly a Republican congressional staffer) issued a report recommending that Kellyanne Conway be fired for repeated violations of the Hatch Act. The NYT explains:

The Hatch Act prohibits federal employees from engaging in political activities while they are on the job. Named for former Senator Carl A. Hatch, Democrat of New Mexico, the law has been on the books for 80 years. The act dates to Depression-era reforms intended to prevent machine politics in which patronage jobs were handed out to people who then used their positions to help keep their patrons in power.

The OSC report lists several occasions in which Conway was speaking in her official capacity (for example, giving a press interview at the White House or tweeting on a Twitter account that she also uses for official purposes) and also attacking Democrats like Beto O’Rourke, Cory Booker, or Elizabeth Warren.

Conway has dismissed the whole issue, and all attempts by ethics officials to work through the White House Counsel’s office have by stymied. The report concludes:

Ms. Conway’s persistent, notorious, and deliberate Hatch Act violations have created an unprecedented challenge to this office’s ability to enforce the Act, as we are statutorily charged. She has willfully and openly disregarded the law in full public view. As recently as May 29, 2019, Ms. Conway defiantly rejected the Hatch Act’s application to her activities, dismissed OSC’s 2018 findings, and flippantly stated, “Let me know when the jail sentence starts.” And she made it clear that she has no plans to cease abusing her official position to influence voters. Ms. Conway’s conduct undermines public confidence in the Executive branch and compromises the civil service system that the Hatch Act was intended to protect. Her knowing and blatant disregard for the law aggravates the severity of her numerous violations.

After the report came out, a Deadline reporter asked Conway for a reaction. She replied: “I have no reaction. Why would I give you a reaction?”

Trump has made it clear that Conway will not be fired or otherwise disciplined. The White House Counsel’s office issued a statement defending her actions, which a University of Texas Law School professor described as “fooling no one“.

In this White House, faithfully executing the laws is not seen as a priority, or even a duty. The law is something to be gotten around, not something to obey.

Are Men Victims Now?

In an increasingly unequal society, it’s very soothing for the winners to hear that they’re the “real” victims.


In the film “How to Murder Your Wife“, Jack Lemmon’s character is innocent — in reality his wife isn’t dead at all — but as his trial progresses the evidence against him becomes so convincing that he decides to try a risky strategy: Confess, and make a closing argument that appeals to the self-interest of his all-male jury. Think how great it would be if women knew we could kill them!

If one man – just one man – can stick his wife in the goop from the gloppitta-gloppitta machine, and get away with it! Whoa-ho-ho, boy, we’ve got it made. We have got it made. All of us.

The men vote to acquit. (Then Lemmon’s wife turns up and there is a happy ending.)

In 1965, that was comedy: Men feel henpecked, so the fantasy of regaining respect by making women fear for their lives has enough appeal to be worth joking about.

Forty-three years later, the closing argument in the Brett Kavanaugh nomination was a strangely inverted version of Lemmon’s: If just one woman can stop a man from going to the Supreme Court by accusing him of sexual assault, then we’re finished. All of us.

President Trump made the argument like this:

I say that it’s a very scary time for young men in America when you can be guilty of something that you may not be guilty of. This is a very difficult time. What’s happening here has much more to do than even the appointment of a Supreme Court Justice.

Asked what his message for young women was, Trump said “Women are doing great.”

He was echoing something his son, Don Jr., had said in an interview with Britain’s Daily Mail TV: He’s more afraid for his sons than his daughters:

I’ve got boys, and I’ve got girls. And when I see what’s going on right now, it’s scary.

Glenn Beck warned:

If the Democrats cram this down, I believe Americans will rise up at the polls, as we don’t want this to happen to our sons, brothers, husbands fathers.

“This”, apparently, is to pay some tangible price because a woman makes a false accusation against you. Many people making this argument don’t even claim that Christine Blasey Ford is lying about Kavanaugh. Even if she’s telling the truth, they say, she has little in the way of supporting evidence. And if just one woman can make a man pay a price purely on the strength of her testimony … then we’re finished, all of us.

The reverse-handmaid dystopia. Something strange is going on here, and it speaks to the roots of the conservative mindset: There is a fantasy dystopia that they can imagine we might be moving towards, and the fear of that dystopia outweighs reams and reams of actual injustice in the here and now.

In the dystopia, the reverse-Handmaid’s-Tale world, any woman can inflict dire consequences on any man just by making up an accusation against him. She will be believed and he won’t, so he’ll be “guilty until proven innocent“, as Mitch McConnell puts it. Every man will be forced to live in fear that a false accusation will suddenly “ruin his life“.

There are a number of weird things about this thought process:

  • Women live in fear now. Not fear of some imagined future damage to their reputations or career prospects, but of actual physical attacks that are happening every day.
  • False accusations already can be made against anyone for almost anything; sexual assault is not special in that way. So Hillary Clinton supposedly murdered Vince Foster and was also involved in a child sex ring hidden under a pizza restaurant. Barrack Obama, according to then-citizen Donald Trump, was a Kenyan Muslim who ascended to the presidency by fraud. Somehow, these well known recent examples of false accusations don’t cause us all to live in terror.
  • Black men actually lived in such a dystopia for centuries: If a white woman accused him of sexual impropriety (which could be little more than a lecherous glance), just about any black man could be lynched.

But the weirdest thing is the idea that society will suddenly flip from one extreme to the other, without ever occupying the reasonable ground in between. Right now, a woman’s report of sexual assault is often disbelieved, and is rarely seen as sufficient reason to impose any consequences at all on the reported attacker. It’s not just that you can go to the Supreme Court if one (or three) women accuse you, you can be elected president if more than a dozen women accuse you. If your rapist is viewed as a promising young white man from a good family, even a conviction might only result in a light sentence.

Perversely, the fact that women’s accounts of sexual assault so rarely lead to any serious consequences (except negative ones for the woman) is precisely the reason to believe them: Christine Blasey Ford went into the Kavanaugh hearings expecting to achieve nothing and knowing that her own life would be disrupted. That’s the typical situation these days. By far, the most likely explanation of why she would put herself through this ordeal is that Kavanaugh actually assaulted her.

False accusations are not impossible, but they are not common. False-accusation worriers still bring up the Duke lacrosse team case. But that was a dozen years ago. That’s still the standard example because false accusations that lead to punishments are so rare.

What’s the reasonable middle? If we ever got to a point where men could be jailed just on one woman’s say-so, the situation I just described wouldn’t hold any more: Women would have motive to make stories up, just as Mike Flynn’s son was motivated to promote false stories about PizzaGate, or Donald Trump Jr. to make false claims about Anderson Cooper.

Ideally, we could get to a point where sexual-assault accusations could be treated like other accusations: Absurd ones could be discounted, but plausible ones would be investigated, with the investigation becoming more serious as lighter investigations failed to disprove them. Different levels of plausibility would lead to different consequences: Proof beyond reasonable doubt would continue to be the standard for taking away someone’s liberty, but lesser standards would hold for lesser consequences.

That’s how things are now for non-sexual charges. Suppose your colleagues at work believe you’ve been stealing money out of their desks. If they have proof beyond reasonable doubt, you might go to jail. If they don’t, but a preponderance of evidence points to your guilt, your boss might agree with them and fire you. If your guilt or innocence is hard to determine, you might keep your job, but when a better job opens up that requires more trust, you might miss out.

As long as Donald Trump is president and Brett Kavanaugh has a lifetime appointment to our highest court, we’re not in that reasonable middle. We’re clearly not treating sexual assault charges like other charges.

Other conservative fantasies that overpower actual events. The male-threatening dystopia follows a common pattern on the right: a particularly worrisome fantasy or unique example often outweighs far more common real events.

So the fantasy that men will hang around in women’s bathrooms falsely claiming to be transsexual, and then assault women there — has that ever actually happened? But on the right, that imagined horror outweighs the actual problems of transsexuals, like the middle school student in Stafford County, Virginia who was left on the bleachers during an active-shooter drill and eventually told to sit in the hall between the boys’ and girls’ locker rooms, because school officials couldn’t decide which one she should shelter in. (In essence, the school practiced letting the shooter kill her.) That happened last week, not a dozen years ago.

If you want to discuss limits on the size of gun magazines (which would save actual lives, because mass shooters are most commonly stopped when they have to reload), you’ll be met with fantasies of home invasions in which ten bullets (or any finite number) just aren’t enough. Even the most reasonable and toothless gun control proposal will invoke fantasies of a tyrannical government herding its disarmed populace into concentration camps. (Strangely, this doesn’t happen in Japan, or in any other democratic country with very few civilian guns.)

The reversal of victimhood. The person who best expressed what this is all about this week was Trevor Noah of The Daily Show.

“Trump’s most powerful tool,” Noah says, is that he knows how to wield victimhood. He knows how to offer victimhood to people who have the least claim to it.”

If you belong to a privileged group, quite possibly at some level you feel guilty about that. Or maybe you just feel vulnerable to the charge that you don’t deserve what you have, or that other people who deserve more actually have less. Although you try not to think about it, you may vaguely wonder if somewhere innocent people are being mistreated in your name.

So it’s very powerful when a demagogue like Trump can tell you that you are “the real victim”. He allows you to project your guilty feelings onto someone else, and instead to claim the moral righteousness of victimhood. Noah explains:

It’s not that we have to be feeling sorry for women, but women are the victims and that’s what we’re trying to fix. But Trump has managed to turn that, and he’s turned it with everybody. He goes: “The real victims in this story is not the kids in the cages, it’s you. It’s you who … they’re coming to take your place. The real victim isn’t the refugee from Syria, it’s you, who’s going to get blown up by a terrorist bomb.”

… People felt, because of Trump, like they were losing their country. They felt like America was losing. And feeling is oftentimes more powerful than what is actually happening.

So we wind up in the situation I described years ago in “The Distress of the Privileged“: Whites think they are the real victims of racism. Christians think their religious freedom is under attack, and needs the government’s defense. Anglos are being victimized by Hispanic immigrants who do our dirty work for almost no money. Rich people are being “punished” by taxes — even taxes far lower than rich people used to pay.

And men can still, with a great deal of impunity, harass women. It’s embarrassing when they start to complain about it, but that embarrassment doesn’t make us the victims. Dr. Blasey Ford has her memories, both of being attacked decades ago, and of being vilified in front of a cheering crowd by the President of the United States. Meanwhile, Justice Kavanaugh has the job he has wanted all his life. He is not the victim.

We live a nation that is becoming increasingly unequal, that is ever-more-harshly divided between winners and losers. If you are a winner with any semblance of a conscience, you probably are uneasy about that, whether you think about it consciously or not. It’s very soothing to be told that the situation is exactly the reverse of how it appears, that you, the winner, are the “real” victim.

It’s soothing, but it’s false. And the more we indulge in this kind of thinking, the more unjust our society will be.

Two Ways Brett Kavanaugh Could Be a Hero

What might Brett Kavanaugh do
if he really were the man his supporters claim he is?


[The bulk of this article was written before a second accuser came forward. At this moment, it’s still not clear how her account will affect the process.]

The most insightful piece on the Kavanaugh nomination I have seen so far was written by Benjamin Wittes and appeared at The Atlantic. Wittes claims to know something about Kavanaugh.

I have known Brett Kavanaugh for a long time—in many different contexts. I am fond of him personally. I think the world of him intellectually. I don’t believe he lied in his Senate testimony. I don’t believe he’s itching to get on the Supreme Court to protect Donald Trump from Robert Mueller. I’m much less afraid of conservative judges than are many of my liberal friends. As recently as a few days ago, I was cheerfully vouching for Kavanaugh’s character.

But then Christine Blasey Ford accused Kavanaugh of attempting to rape her when she was 15 and he was 17. That allegation, Wittes says, is “credible” and “deserves to be taken seriously”. Kavanaugh’s supporters claim that there’s no good way to respond to an accusation like this and complain that the unanswerability of the charge makes it unfair. But Wittes takes that claim and goes somewhere else with it:

The circumstances in which he should fight this out are, in my view, extremely limited. I would advise him against letting Senate Republicans ram his nomination through in a fashion that will forever attach an asterisk to his service on the Supreme Court. Assuming she is not impugning him maliciously, Kavanaugh’s accuser, Christine Blasey Ford, deserves better than that. The Court deserves better than that. And Kavanaugh himself, if he is telling the truth about his conduct in high school, deserves better than to be confirmed under circumstances which tens of millions of people will regard, with good reason, as tainted.

The real burden of proof. Given how long ago the attempted rape is supposed to have happened and the haziness of the details, it shouldn’t be hard for Kavanaugh and his defenders to create reasonable doubt. But that’s not enough in this situation: It’s Kavanaugh who should bear the burden of proof.

The question before us, after all, is not whether to punish Kavanaugh or whether to assign liability to him. It’s whether to bestow on him an immense honor that comes with great power. Kavanaugh is applying for a much-coveted job. And the burden of convincing in such situations always lies with the applicant. The standard for elevation to the nation’s highest court is not that the nominee established a “reasonable doubt” that the serious allegations against him were true.

In other words: It makes sense to let ten guilty people go free rather than send one innocent person to prison. But if we’re talking about positions of high power, I would rather turn down ten innocent people than elevate one guilty one.

Of course, there’s a very real possibility that Kavanaugh might prevail simply because the Republicans have the political power to confirm him. That would get him onto the Court, but would be

a disaster for anyone who believes in apolitical courts. And it is not what Kavanaugh should want. Clearing one’s name sufficiently to convince only senators who are already ideologically aligned is not, in fact, clearing one’s name. It’s winning. And while winning may be the highest value for Trump, it isn’t actually the highest value—particularly for a justice.

A scorched-earth campaign to impugn Blasey Ford’s credibility would leave a similar taint on the Court and on Kavanaugh’s reputation.

I would never say that no attack on Ford’s credibility could be appropriate; if Kavanaugh can produce some hypothetical emails in which she hatched the plot to bring him down, he certainly gets to use those. But an attack on Ford’s credibility that is not devastating and complete will only worsen Kavanaugh’s problem—and such an attack should worsen it.

Who pays the price? And so Wittes reaches the same point many of Kavanaugh’s defenders do: There’s no good way for him to respond to the accusation against him. But rather than rage at the injustice of that and focus their ire on Blasey Ford or Diane Feinstein or Democrats in general, Wittes calls on Kavanaugh to do what’s best for the country: withdraw.

Getting out does not mean admitting that Ford’s account of his behavior is accurate, something Kavanaugh should certainly not do if her account is not accurate. It means only acknowledging that there is no way to defend against it in a fashion that is both persuasive and honorable in the context of seeking elevation to a job that requires a certain moral viability. It means acknowledging that whatever the truth may be, Kavanaugh cannot carry his burden of proof given the constraints upon him.

It means accepting that it is better to continue serving as a D.C. Circuit judge than to play the sort of undignified games that Republicans are playing on his behalf.

There would be heroism in that path. I am reminded of the ending of Lev Grossman’s The Magician King, when Quentin gets banished from the magical kingdom he has just saved. “I am the hero,” he protests, “and the hero gets the reward.”

But Ember, the god who is banishing him, disagrees: “No, Quentin. The hero pays the price.”

If his Republican support in the Senate holds firm, Kavanaugh can get the reward of a seat on the Supreme Court. But there is a price to be paid in this situation, and if Kavanaugh doesn’t pay it the nation does, in the form of a diminished Supreme Court whose moral authority will always be questionable when it rules on issues of women’s and victims’ rights. There’s nothing heroic about that.

The second heroic path. Wittes argues that Kavanaugh should withdraw even if he is innocent. But there is a second heroic path available if he is guilty, or if he honestly doesn’t remember Blasey Ford or anything about the night in question: Tell the truth.

Many of Kavanaugh’s supporters have been skipping past his denials and arguing for forgiveness: He’s not the same man today that he was at 17. What he did then shouldn’t disqualify him.

That, I think, is a discussion the nation needs to have: What is forgivable? How long should a youthful mistake hang over someone who has lived an admirable life since? How admirable does that life need to be? Does some other kind of restitution need to be made?

But if we were to have that discussion, it shouldn’t just apply to Kavanaugh, or to people on one side or the other of the partisan divide. It should apply, for example, to immigrants who are deportable for something they did decades ago, but have done good work, lived good lives, and been a credit to their communities in the years since. It should apply to people serving long prison sentences for non-violent drug crimes, some of which were committed when they were not much older than Kavanaugh was. You can’t expect forgiveness for the people on your side while you apply eye-for-eye justice to those you disagree with or disapprove of.

Even if we want to have that discussion, though, we can’t as long as Kavanaugh insists on his complete innocence. It’s unreasonable to expect to reap the benefits of forgiveness while simultaneously painting your accusers as liars. (That principle would also apply to President Trump.)

Imagine if Kavanaugh went before the Senate Judiciary Committee and told the nation, “Here’s how I remember that night.” What if he told his story without lawyerly caveats, but just as a human being trying to get a difficult memory off his chest? Or maybe he could say, “I don’t remember the event Dr. Blasey Ford describes. But I went to a hard-drinking school, and things may have happened that I don’t remember. I feel terrible that she has had to carry such a memory all these years, and I am ashamed to think that I could have been the cause of it.”

After all the Bill Cosbys and Harvey Weinsteins we have seen, what a breath of fresh air that would be.

Who shoulders the risk? If Kavanaugh did throw himself on the nation’s mercy, what would happen then? I don’t think anyone knows. And that’s what makes the path heroic: Heroes take risks; they don’t push risks off on others. Blasey Ford took a risk by coming forward, and she has been paying for that decision. Kavanaugh could take much of that burden off of her. It wouldn’t make sense to threaten or abuse her any more, if Kavanaugh himself were taking her account seriously.

Instead, he would shoulder the risk of public judgment. Blasey Ford, the Senate, and the country as a whole would have to face squarely the issues of forgiveness and the passage of time, rather than consider them only as a Plan B for those who doubt Kavanaugh’s denials. That honest public debate would be a step in the direction of healing the wounds that the #MeToo movement has revealed. However it came out — whether Kavanaugh ascended to the Supreme Court, remained where he is, or left public life entirely — it would be a service to the nation.

We keep hearing from Republicans, Evangelicals, and Kavanaugh’s other defenders what a fine man he is. He has a chance to prove them right. But you don’t get to be a hero just by claiming the reward. You have to pay the price.

What kind of justice would Brett Kavanaugh be?

Monday night, Trump named his second Supreme Court nominee: Brett Kavanaugh.

Immediately, legal and political pundits began speculating on how Kavanaugh’s appointment, if the Senate approves it, would affect abortion rights. Will Kavanaugh be the fifth vote to reverse Roe v Wade, allowing either states or the federal government to make abortion illegal? Or could he perhaps gut Roe while leaving it technically valid, perhaps by letting states regulate abortion in ways that make it practically unavailable, even if still theoretically legal? Or does he really believe in the principal of stare decisis, in which the Court leaves a precedent in place unless it proves unworkable?

Important as that issue is, it would be a shame if it sucked all the oxygen out of the room, leaving no space for discussion of the other implications of Kavanaugh joining the Court. Let’s look at a few of those issues.

Partisanship. One of the worst developments for the Supreme Court as an institution over the last two decades is the loss of its non-partisan image. Beginning with Bush v Gore in 2000, and going on through Citizens United (which destroyed campaign finance controls) and Shelby County (which gutted the Voting Rights Act), the public has gotten used to the idea that judges represent the party that appointed them. What the laws or the Constitution says is less important than which party a decision would benefit.

Kavanaugh is not going to improve that image. He first came to public attention as a main author of the Starr Report. While ostensibly non-partisan, the investigation into President Clinton lead by Kenneth Starr was transparently political. (Anyone who thinks the Mueller investigation is a “partisan witch hunt” has amnesia. Unlike the Mueller probe, Starr’s investigators regularly leaked damaging information to the press and timed their official announcements for maximum political effect. The Starr Report was written to be as sexually scurrilous as possible. Impeachment was a dim fantasy at that point, but at least the report could do political damage to the Clinton administration and embarrass Clinton personally.)

He subsequently was a lawyer for the Bush campaign during Bush v Gore, and then worked for Bush’s White House Counsel Alberto Gonzalez. His wife has worked for the George W. Bush Library Foundation.

If you wanted to give him the benefit of the doubt, you could imagine that he was sprinkled with non-partisan fairy dust when he became a judge. However, you have to wonder about one of the first things out of his mouth after Trump appointed him.

No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination

This claim is transparently, outrageously false: Trump limited himself to a list of judges given to him by Federalist Society Executive-Vice-President-on-leave Leonard Leo. By some accounts, appointing Kavanaugh was part of the deal that got Justice Kennedy to retire. There’s no reason to believe that anyone other than Leo, Kennedy, and Trump had anything to do with this decision. Quite likely, then, no president has ever consulted so narrowly or sought less input from fewer people about a Supreme Court nomination.

So Kavanaugh’s very first claim after being nominated was a pants-on-fire lie to flatter the president who appointed him. Former Senator Al Franken was blunt:

It’s just a totally made-up assertion that is exactly the opposite of the truth, flowing out of the mouth of a committed partisan who doesn’t care that it’s false…. [I]t’s critical to recognize that the very first thing he did as a Supreme Court nominee was to parrot a false, partisan talking point. Of course that’s what he did. Advancing the goals of the Republican Party and the conservative movement is what he’s there to do.

Workers and corporations. In the Confined Space blog, Jordan Barab examines Kavanaugh’s cavalier approach to worker safety, citing his dissent in a case in which OSHA fined Sea World for neglecting safety issues in a way that led to a trainer’s dismemberment by a killer whale.

Kavanaugh’s dissent drips with hostility toward OSHA and a basic misunderstanding of the act and the principles — and law — behind it. … Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed. Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employee had “assumed” the risk when he or she took the job and the employer therefore had no responsibility to make the job safer.

The Atlantic’s Ronald Brownstein focuses on Kavanaugh’s pro-corporate views.

While Kavanaugh’s record offers few clues about his view on the 1973 Roe v. Wade decision that legalized abortion nationwide, he has demonstrated an unequivocal skepticism about federal regulation of business. Jennifer Mascott, a former Kavanaugh law clerk and an assistant professor at George Mason University’s law school, recently wrote that, “Even during this era of generous judicial deference to administrative agencies, Judge Kavanaugh has written 40 opinions finding agency action to be unlawful and joined majority opinions reversing agency action in at least 35 additional cases.”

Brownstein pictures a return to the Lochner Era, when the Court routinely invalidated state and federal laws that tried to establish a minimum wage or a limited work-week or workplace-safety rules. (A sharper name might be the Triangle Shirtwaist Era.)

Executive power. From his attitude towards regulation, you might imagine that Kavanaugh has a libertarian streak and is likely to oppose government power across the board. But not so: He takes a very expansive view of presidential war powers. Remember, he was part of the Bush administration when it claimed the power to jail American citizens without charges and torture prisoners. (I don’t know of any point where he publicly expressed an opinion about those issues, but he clearly had no problem continuing to serve.)

Steven Vladeck of the Just Security blog writes in The Washington Post about Kavanaugh’s deference to presidential power:

Kavanaugh’s many opinions concerning Guantanamo and related matters make it crystal clear that his confirmation would make the court far more deferential to the president’s exercise of aggressive war powers, would diminish the long – standing role of international law as a means of shaping executive authority and understanding congressional authorizations , and would more generally weaken the role of the courts as a check on the political branches in this profoundly important area of law.

Like Bush, Kavanaugh believes in the unitary executive theory, that all executive functions of the government should be under direct presidential control. In particular, Congress should not be able to establish semi-independent entities like the Consumer Financial Protection Bureau, whose director can only be fired for cause. If Congress would attempt to insulate Special Counsel Robert Mueller from Trump’s interference, Kavanaugh would probably find that unconstitutional.

Legal theory. The Mascott’s blog post Brownstein quoted is worth reading in full, as it spells out what a Kavanaugh protege admires about him. She talks a great deal about Kavanaugh’s “deeply rooted interpretive philosophy built on interpreting law in accordance with the statutory text and the meaning of the text of the Constitution”, a position which she traces back to Justice Scalia.

I usually dismiss this kind of talk as meaningless rhetoric, because it’s based on a straw man fallacy: Who exactly are these judges who advocate ignoring the text of the laws and the Constitution? I have never heard a judge at any level say “The law says X but I believe Y, so I’m going to rule Y.” The dispute is never about whether to read the text of the law, but how.

(For contrast, look at Justice Souter’s 2010 Harvard commencement speech. Mere textual interpretation is insufficient, Souter said, because the Constitution’s “language grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once.” Cases where the text is clear and just needs to be applied “do not usually come to court, or at least the Supreme Court.” Moreover, often concepts from other centuries can only be applied today by doing some kind of interpretation-after-the-fact: How, for example, should the word “arms” in the Second Amendment be applied to weapons radically different from anything that existed in the 18th century? James Madison surely was not picturing a shoulder-fired missile capable of taking down an airliner.)

But Mascott’s account does underline one thing for me: Like the Court’s other conservative justices, Kavanaugh will ignore precedent when it suits him, as, for example, Justice Scalia did when he invented an individual right to bear arms in his Heller decision. The process is simple, given Scalia’s (and Kavanaugh’s) text-interpretation method: You go back to the original text with a period-of-authorship dictionary, as if previous courts had never considered what the text-as-a-whole means. Decompose sentences into their constituent words, interpret them one-by-one, and then reassemble them into a meaning that no previous court has seen, and that the original authors quite possibly never imagined.

Unenumerated rights. Mascott quotes a Kavanaugh article (that none of her links go to and I haven’t been able to google up) agreeing with Justice Scalia’s interpretive theory:

In constitutional disputes, Justice Scalia recognized that the courts have an essential role in aggressively protecting the individual rights actually spelled out in the Constitution. … But on the flip side, courts have no legitimate role, Justice Scalia would say, in creating new rights not spelled out in the Constitution. On those issues, he believed in complete deference to the political branches and the states.

(Except for corporate rights, of course, which are not mentioned anywhere in the Constitution, but were consistently upheld by Scalia and presumably will be by Kavanaugh as well.)

In particular, Kavanaugh seems likely to demand a clear text stating any individual rights he doesn’t approve of, like the right to privacy that Roe is based on. In a speech to the American Enterprise Institute last September, he praised Justice Rehnquist’s dissent in Roe v Wade, and his attitude towards “unenumerated rights” in general:

Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights. But he stated that under the Court’s precedents, any such unenumerated right had to be rooted in the traditions [and] conscience of our people. Given the prevalence of abortion regulations both historically and at the time, Rehnquist said he could not reach such a conclusion about abortion.

Given that view, it’s hard to see how Kavanaugh could not reverse Roe, or the Obergfell decision finding a right for same-sex couples to marry. If people at the time were not applying their principles to such issues, how can we apply them now, even if they clearly do apply?

You have to wonder how far back Kavanaugh is willing to take that objection. I doubt, for example, that most of the congressmen and state legislators who voted for the 14th Amendment believed that “the equal protection of the laws” mandated racially integrated schools, as the Supreme Court unanimously ruled in Brown v Board of Education in 1954. Given the prevalence of segregated schools “both historically and at the time” of the 14th Amendment, Brown would be hard to justify.

Who won the Masterpiece Cakeshop case?

Technically, the Supreme Court ruled in favor of the baker. But it didn’t endorse any of the larger points he raised. What, if anything, does this mean for future cases?


The Masterpiece Cakeshop case is the legal equivalent of the movie Solo: Touted as a blockbuster in the series of landmark cases that includes Obergfell and Hobby Lobby, it turned out to be a dud.

You’ve probably already heard the basics of the case: In 2012, before same-sex marriage was legal in their state, Charlie Craig and David Mullins were planning to get married in Massachusetts, and then have a wedding reception back home in Colorado. They went to Masterpiece Cakeshop to order a custom-designed wedding cake, but the owner, Jack Phillips, refused to discuss it with them. Attributing his position to his Christian faith, he said he couldn’t be involved in celebrating a same-sex marriage. Craig and Mullins sued under Colorado’s anti-discrimination law, and they won at every level. So Phillips appealed to the Supreme Court.

What everybody expected. The case was supposed to be a 5-4 decision, as all nearly all the same-sex marriage decisions have been. Four conservatives (Thomas, Alito, Roberts, and Gorsuch) would line up with Phillips and four liberals (Ginsberg, Sotomayor, Breyer, and Kagan) with Craig and Mullins, with Justice Kennedy casting the deciding vote, as he usually does.

Nobody was too sure what he would do. He has authored (badly, in my opinion) most of the landmark gay-rights decisions of recent years, but (as part of the 5-4 majority in Hobby Lobby) he also was also known to be sympathetic to the kinds of religious-liberty arguments Phillips was making.

However this case came out, though, we were all sure it would have sweeping consequences: Either the Court would affirm that gays and lesbians have to be treated like everyone else, or it would establish “sincere religious belief” as a permanent loophole in our discrimination laws. [1]That’s not what happened.

Instead, the Court decided 7-2 that the Colorado Civil Rights Commission hadn’t handled this particular case with proper respect for Phillips’ religious views, and so the Court threw out the decision against him. Essentially, we’re back to Square One: It’s as if Craig and Mullins had never filed their complaint.

Here’s how limited the decision is: If tomorrow another same-sex couple goes to Masterpiece Cakeshop asking for a wedding cake and Phillips turns them down, nobody knows what will happen next.

This is how that 7-2 breaks down:

Thomas. Justice Thomas went whole-heartedly for the baker’s argument: Phillips is an artist, and the government cannot command him to create a message he finds abhorrent. Quoting previous free-speech cases, he says:

Forcing Phillips to make custom wedding cakes for same-sex marriages re­quires him to, at the very least, acknowledge that same- sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],” or to “affir[m] . . . a belief with which [he] disagrees.”

Gorsuch and Alito. Justices Gorsuch and Alito (with Gorsuch writing for both of them) believe that the Colorado Civil Rights Commission has itself discriminated against Phillips because of its hostility to his religious views. They see Phillips’ case as being equivalent to that of William Jack, who intentionally tried to create such a comparison.

[Jack] approached three bakers and asked them to prepare cakes with messages disapproving same-sex marriage on religious grounds. All three bakers refused Mr. Jack’s request, stating that they found his request offensive to their secular convictions. But the Division declined to find a violation, reasoning that the bakers didn’t deny Mr. Jack service because of his religious faith but because the cakes he sought were offensive to their own moral convictions.

… The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else).

… Only one way forward now remains. Having failed to afford Mr. Phillips’s religious objections neutral consideration and without any compelling reason for its failure, the Commission must afford him the same result it afforded the bakers in Mr. Jack’s case.

So that’s three votes for the baker’s case on the merits. Two more votes and Phillips would get the kind of result he (and the Alliance for Defending Freedom, the Christian-religious-liberty organization arguing his case) had been hoping for: At least in Colorado, bakeries (and presumably florists and caterers and all kinds of other businesses) would be free to deny their services to same-sex couples.

Kagan and Breyer. But you may have noticed a problem in the Gorsuch-Alito reasoning. How could they say Phillips “would not sell the requested cakes to anyone”, when he happily makes wedding cakes for opposite-sex couples? That’s because in their reasoning, a gay wedding cake is a thing. Phillips also wouldn’t sell a “cake celebrating same-sex marriage” to Craig’s mother, who is straight, so he’s not just refusing to sell to gays.

Justices Kagan and Breyer (Kagan writing) found this ridiculous. There is no such thing as a gay wedding cake. The product is just a wedding cake, and the fact that the cake will find its way to either a same-sex or opposite-sex wedding reception does not make it a different product.

And that’s the difference between the Phillips case and the Jack case: The anti-gay message in the Jack case was on the cake. (One cake would have said “God hates sin. Psalm 45:7” on one side and “Homosexuality is a detestable sin. Leviticus 18:2” on the other. Another Jack cake would have put a red X over an image of two groomsmen holding hands.) In the Phillips case the only problem was in the use of the cake and who was using it. Phillips might legally have refused to put overt pro-gay symbols or messages on the cake (say, a rainbow flag). But refusing to make any wedding cake, even one identical to one he would make for an opposite-sex couple, was discrimination.

However, Kagan and Breyer found that the Civil Rights Commission didn’t make that argument properly, and instead some of the commissioners made statements hostile to Phillips religion. This created the impression that the commissioners were responding to their personal beliefs rather than legal principles: They found Jack’s message offensive, but not the Craig-Mullin wedding cake. In short: The CRC could have justified the findings it made, but it didn’t, so its decision in this particular case should be thrown out.

Ginsberg and Sotomayor. Justices Ginsberg and Sotomayor (Ginsberg writing) spelled out in more detail the difference between the Jack and Phillips cases:

Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display.

Ginsberg and Sotomayor scoff at Gorsuch’s notion that the product was a “cake celebrating same-sex marriage”.

When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied.

The merits of the case matter more than any procedural errors the Commission may have made.

I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.

The Colorado Court of Appeals, Ginsberg notes, “considered the case de novo“. (In other words: It started over, and considered the case on its merits rather than on the basis of what the Commission had done.)

What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say.

In a footnote, Ginsberg-Sotomayor also tear up Thomas’ free-speech argument: A message may be in Phillips’ mind, but it isn’t in the cake unless other people can see it there.

The record in this case is replete with Jack Phillips’ own views on the messages he believes his cakes convey. But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s.

It comes down to Kennedy and Roberts. So three justices agree with the baker on the merits and four don’t. But two of the four also find procedural problems in the rulings against the baker. So it’s already clear that the baker will win the case: The judgment against him will be thrown out. The question for the remaining two justices — Kennedy and Roberts — to decide is whether the Court will create a precedent that similar cases can appeal to.

Roberts’ thinking is usually subtle and often hidden. He will, at times, rule in a way that technically upholds a precedent, while re-interpreting it in a way that will ultimately undo it in subsequent cases. (In a current case that I’ll discuss in the weekly summary, his decision upholding the constitutionality of the Affordable Care Act in 2012 is now the basis for a new case claiming it is unconstitutional. He does that kind of thing.)

Roberts is happiest when he is changing society in a conservative, pro-wealth, or pro-business direction, but doing it behind the scenes. He doesn’t want the Court to make the kind of waves that could result in a major political backlash. (So, for example, he will write a decision that celebrates the principles behind the Voting Rights Act, while gutting the provisions that enforce it.)

This case is not Roberts’ style. He doesn’t want to author a sweeping takedown of anti-discrimination laws, and Kennedy isn’t going to go for that anyway. Also, he knows that the wind is blowing against him here. More and more, society accepts gay rights. The kind of sweeping decision Thomas, Gorsuch, and Alito want won’t look good in five or ten years.

So on this case he will keep his powder dry, uphold his (mostly false) image as a moderate, and go with what Kennedy wants.

Kennedy wants this case to go away. The decisions leading up to the full legalization of same-sex marriage (in Obergfell) are his legacy. When he eventually dies, that’s what his obituary will be about. He doesn’t want that record tarnished, least of all by his own decision.

But Kennedy is an empathy-based judge rather than a principles-based judge. [2] In this case, he seems to empathize with both sides: Craig and Mullin just wanted to have the same kind of wedding reception anybody else might have. Phillips didn’t want to be forced to act against what he saw as his religious convictions.

So the deciding Kennedy-Roberts opinion lets the baker off the hook on the narrowest possible grounds, without giving future courts anything to work with in similar cases.

When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.

So the baker wins. But Kennedy leaves the larger issues open.

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. [3]

I find myself sharing the concern Sarah Posner expressed in The Nation: “how assiduously Justice Kennedy labored to find government ‘hostility’ to Phillips’s religion”. If a judge searches the record hard enough, with hyper-sensitivity to a hostility that he has pre-decided must be there, won’t he always be able to find some evidence of anti-religious bias somewhere?

What will be the evidence of such supposed animus in the next case? A question from a judge at oral arguments? Deposition questions by government attorneys? That is the crucial open question from Masterpiece—not whether the next case will be more winnable for a gay couple without Masterpiece’s specific facts, but how hard opponents of LGBTQ rights will work to convince the courts that similar specific facts exist in that case, too.

What next? Neither side can take comfort in the numbers. Seven justices looks like a solid majority for the conservative side, but four of the seven are only citing procedural reasons for objecting to the Commission’s ruling, and not saying they should have ruled in the baker’s favor.

Similarly, six justices reaffirm that anti-discrimination laws can apply to gay couples, whose “dignity and worth” is not inferior to opposite-sex couples. But Roberts cannot be trusted. If he could have formed a conservative majority on the other side, he quite likely would have.

So here’s where I think we are: Roberts is stalling, with the hope of getting another conservative appointment out of Trump before the Court has to make a definitive ruling. If he gets that extra conservative justice, then the Court will rule decisively to gut anti-discrimination protections for gays and lesbians, using “sincere religious belief” as the loophole.

In the meantime, look for a series of cases like this one, decided on the narrowest possible terms, and usually in favor of the conservative side.


[1] Phillips’ defenders argue that discrimination against gays is special in some way, but it’s hard to see how. When inter-racial marriage was controversial, the arguments against it were also framed in religious terms. Slavery, segregation, discrimination against women — pretty much every kind of bigotry roots itself in religion when other supports start to fail. If “sincere religious belief” allows discrimination against Craig and Mullins, it’s hard to see how any discrimination law stands up.

BTW: Notice what I didn’t say there. I didn’t say that Christianity or any other religion is inherently bigoted. I’m saying that bigots will cloak themselves in religion, and will cherry-pick sacred texts to justify their bigotry. If courts let them get away with this dodge, anti-discrimination laws will be toothless.

[2] That is what has driven me nuts in his previous rulings. He consistently fails to enunciate principles that lower-court judges can apply, instead making what are essentially political arguments that one side or the other deserves to prevail. That is why same-sex marriage cases kept going to the Supreme Court. Kennedy’s opinions were murky, and lower-court judges disagreed about what they meant. Eventually each new case had to come back to Kennedy so that he could interpret himself.

[3] This kind of writing also drives social conservatives nuts. “Our society has come to the recognition …” What kind of legal principle is that?

Kennedy consistently acts the part of the stereotypic liberal-activist-judge who projects his own moral convictions onto the law. Ginsberg is much more liberal than Kennedy, but you’ll never find that kind of mushiness in her opinions. She defines terms, cites precedents, and enunciates principles that lower-court judges can apply with confidence.

What is impeachment for?

During Obama’s presidency, Republican standards for impeachment were low and Democratic standards high. Now it’s the reverse. We need American standards that don’t change with the political winds.


Someday — maybe sooner, maybe later — Bob Mueller is going to issue his report on the Trump campaign’s relationship with Russia, whether Trump has been attempting to obstruct justice, and possibly other Trump-related scandals. When that happens, Congress and the American people will have to look at what has been found and decide what to do about it. Is it enough for an impeachment or not?

At that moment, partisans on both sides will adjust their standards to get the conclusion they want. Trumpists will put forward impossibly high standards for impeachment, and anti-Trumpists will drop their standards to match the facts available. Not admiring either of these approaches, I want to set out my general ideas about impeachment now, before we know what the evidence will say.

Previous impeachments. As background, let me start by confessing that I’m old enough to have watched two presidential impeachment processes: Nixon’s and Clinton’s. The two could not have been more different.

At the time of the Nixon impeachment hearings, the United States hadn’t impeached a president in a century. Leaders of both parties in Congress appreciated that they were wielding a fearful and awesome power. They felt the Eye of History watching them. So, while Democrats were in general the prosecutors and Republicans the defenders, both approached their roles with extreme scrupulousness. Both sides were determined to get to the truth of the matter rather than just to win.

The iconic question “What did the President know and when did he know it?” was asked by Republican Senator Howard Baker. The House Judiciary Committee’s decision to subpoena Nixon’s tapes of Oval Office conversations was overwhelmingly bipartisan (33-3). Of the five articles of impeachment considered by the committee, three were supported by some Republicans and three were opposed by some Democrats. In the end, Nixon resigned after a delegation of Republican leaders went to the White House to tell the President that they could no longer defend him.

By contrast, the Clinton impeachment was an entirely partisan exercise from beginning to end. Nixon’s special prosecutor (Leon Jaworski) had been a fellow Republican. But for Clinton, the first Republican special prosecutor hadn’t been rabid enough, so he was replaced with a more partisan one. The focus of the investigation kept shifting, eventually settling on Clinton’s sexual escapades. Even the obstruction of justice charge postulated a private conspiracy (inducing Monica Lewinsky to give false testimony in a civil lawsuit) rather than a misuse of presidential power. None of the 45 Democratic senators voted to convict on any charge.

During the Obama administration, Republicans would occasionally raise the idea of impeachment, but it was clear that their standards had declined even further since the Clinton era. Republican Congressman Kerry Bentivolio told a town hall meeting of impeachment-happy partisans that impeaching Obama would be “a dream come true”, but there was one tiny hurdle he didn’t know how to jump yet: “You’ve got to have evidence.”

Now, of course, Republican standards for impeachment are high again and Democratic standards have lowered. But what we need are American standards that we’re willing to apply to presidents of either party.

The Constitution only helps us up to a point. It lays down the basic process, but (as it so often does) leaves the details to the interpretation of later generations. Perhaps that openness is why the document has lasted this long.

I first formulated my ideas about impeachment during the Clinton process, and I will attempt to apply those theories to Trump, even though Clinton is a Democrat and Trump a Republican.

The bad-president problem. The Founders believed that any legitimate sovereignty had to come from the People, but they understood that the People would make mistakes. It was inevitable that sooner or later the United States would elect a bad president — a demagogue who was unwise, uninformed, and temperamentally unfit for the job.

It’s clear what they saw as the primary remedy for a bad president: Wait for his term to end and elect somebody else. (In the meantime, the other branches of government should use their checks and balances to minimize the harm he could do.) We may not have the same appreciation for the elect-somebody-else solution as the Founders, but you have to bear in mind that they were comparing the presidency to the monarchy of England. Alexander Hamilton wrote in Federalist #69:

The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince.

If England had a bad king, the solution was either to revolt or wait for him to die. But in the US, you could circle a date an a calendar and plan for the bad president to be gone. The Founders saw that as a big improvement.

So what is impeachment for? Impeachment is in the Constitution for those rare cases where the country just can’t wait. You can see that reflected in the clause that establishes it.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

What makes treason and bribery so special that the Constitution names them? Each points to a problem more serious than mere incompetence or wrongheadedness or lax morals or bad temper. Both describe situations where the power of the presidency has been removed from the People and might possibly be used against them. A treasonous president is loyal to a foreign power; a bribed one is loyal to some private interest. The power of the presidency hasn’t just been used unwisely, it has been suborned or usurped. That’s a situation that can’t be allowed to continue.

Treason and bribery should be models for “other high Crimes and Misdemeanors”. That phrase, I think, is intentionally vague, to give Congress the leeway to do what it thinks it needs to do. But treason and bribery should set the bar: A legitimate impeachment case needs to argue that the Republic is in danger. There must be some reason why waiting for the next election either won’t work or isn’t good enough.

Reasons to impeach. If you buy that general framework, then legitimate reasons to impeach fall into four categories:

  1. The president is not loyal to the People of the United States. Basically, treason or bribery. A third offense, which in the Nixon impeachment was called “abuse of power”, is similar if a bit more vague: Loyalty to self has eclipsed loyalty to the country. The power of the presidency is being used not for the common good, but to enrich the president, to reward the president’s friends, or to punish his or her enemies.
  2. The president’s actions threaten the integrity of the election process. One reason we might not be able to wait for the next election is that the next election has been compromised. This was the heart of the Nixon impeachment: If a president can harass and spy on political rivals with impunity, then the whole election process becomes untrustworthy. You can imagine extreme cases where the president is winning elections by stuffing the ballot box, as happens in many pseudo-democratic countries.
  3. The president’s actions prevent investigations of (1) or (2). Obstruction of justice can be an impeachable offense, but it should only be used if the underlying charge has some can’t-wait significance. Nixon’s attempt to obstruct the investigation of the Watergate burglary had clear implications for the integrity of the election process. But whether or not Clinton obstructed Paula Jones’ civil lawsuit was an issue that could have waited.
  4. Congress has no other way to protect itself or the judiciary from presidential encroachment. This is not explicitly stated anywhere in the Constitution, but constitutional government doesn’t work otherwise. Congress necessarily relies on the executive branch to carry out the laws it passes. Presidents famously find loopholes that allow them to do things they want and avoid doing things they don’t want. But if a president ignores clear laws or disobeys direct court orders, Congress has to have some way to preserve the powers of the legislative and judicial branches of government. Waiting for the next election isn’t good enough, because (once the pattern is established) the next president might usurp power in the same way. Impeachment is the ultimate arrow in Congress’ quiver. If the Iran-Contra scandal had led to impeaching President Reagan, this would have been the justification.

A fifth condition is urgent in a similar way, but has its own constitutional process: A president who is insane or demented can be removed via the 25th Amendment, if the vice president and a majority of the cabinet believe he or she is unfit.

Reasons that aren’t good enough. Impeachment shouldn’t be seen as a do-over for the voters’ mistakes. No matter how many people change their minds, or how low the president’s popularity sinks, that by itself is not a reason to impeach.

Policy disagreements between the president and Congress aren’t impeachable, as long as the President is respecting Congress’ legitimate powers. Attempts to stretch presidential power into debatable areas — like Obama’s executive orders on immigration — are not impeachable if the president backs down when Congress passes new laws or the courts overturn the orders.

The president becoming an embarrassment to the country is not enough. This, I think, was the mistake at the heart of the Clinton impeachment: Many Americans were embarrassed to hear news reports about oral sex in the Oval Office. That might be a good reason to call for a president’s resignation, but not to impeach.

Loss of faith in the president’s judgment isn’t enough, unless it rises to 25th-amendment levels. If, say, a president were ready to start nuclear war for no reason, the vice president and the cabinet should step in. But if the president just demonstrates bad judgment within the ordinary human range, replacing him or her would be another form of election do-over.

Standards of proof. During the Clinton impeachment, my representative (Charlie Bass) was one of many Republicans who pledged that they would only vote for impeachment if the evidence were beyond reasonable doubt. (He lied, and voted to impeach anyway. It was certainly reasonable to believe that Clinton perjured himself or conspired in Lewinsky’s perjury. Depending on your opinion of Clinton’s character, that may even have been the more likely possibility. But by no stretch of the imagination was the case against Clinton proved beyond reasonable doubt.) I think they made that pledge because they knew that the charges against Clinton were legalistic rather than based on the kind of emergency concerns the Founders envisioned.

But is the criminal-trial standard — beyond reasonable doubt — really the appropriate one? What if members of Congress are only 90% convinced that the president is a traitor? Should they wait for the next election?

Clearly not.

Criminal conviction can take away the freedom we all value and view as our right. But political office, especially a high political office like the presidency, is an honor and a privilege rather than a right. Taking it away just reduces a president to the same level as the rest of us. So the standards of proof required shouldn’t be as high as in a criminal trial. (After a president is removed from office, a criminal indictment might follow. At that trial, the beyond-reasonable-doubt standard would apply. So it would not be unreasonable to remove a president from office via impeachment, and then fail to convict in the subsequent criminal trial. Both outcomes might be appropriate responses to the evidence.)

The House and Senate play different roles in an impeachment, and they should apply different standards. The House is like a grand jury; essentially, it is voting to indict. The Senate is the trial jury; it is deciding whether to convict. I think the House should turn the reasonable-doubt standard upside-down. Voting to impeach should mean two things:

  • The charges are serious enough that they can’t wait until the end of the president’s term, and Congress has no less drastic way to deal with them. If they are true, the president needs to be removed as soon as possible.
  • The evidence could lead reasonable people to believe that the charges are true.

The Senate is making the more serious decision. If the House impeaches, the trial in the Senate will be stressful for the country, but by itself the trial does no real harm. (The country survived the Clinton trial with little damage. The situation when Clinton’s term expired — peace, a budget surplus, low unemployment, low inflation — was arguably better than at any time since.) Improperly removing a duly elected president, though, would be a serious blow to our constitutional system.

The Senate has to weigh the risks on each side: Voting to acquit leaves a possibly dangerous president in office until the end of the term, and tells future presidents that Congress will tolerate the impeached behavior. Voting to convict might damage the presidency and devalue future elections. Which path into the future is better for the country and our system of government?

Application to Trump. It’s possible that Mueller might find the exact wrong-doing that the Constitution specifies: If Trump conspired with the Russian government to gain an advantage in the 2016 election, and if his subsequent favoritism to Russian interests stems from his political debt to Putin, that’s treason. If he has been making foreign-policy decisions based on foreign-government actions that benefit him financially (like the Chinese investment in the MNC Lido City project), that’s bribery. Those would be the slam-dunk cases.

Abuse of power accusations (like his alleged pressure on the postmaster general to raise rates on Amazon to strike back at Jeff Bezos for The Washington Post’s hostile coverage) haven’t gotten as much attention, but would also be serious if they could be proved — not just the fact of pressure, but also the intent. But I would want to see a pattern of such reprisals — like Nixon’s enemies list — rather than just one example.

The offense Mueller is most likely to find is obstruction of justice. The question I would have at that point is whether the obstruction succeeded. (Firing Comey, for example, may have been intended to derail the Russia investigation, but it obviously didn’t.) If Mueller’s conclusion is that Trump’s obstruction prevents us from knowing whether he was part of a treasonous conspiracy, then I would want to impeach him for that. But if Mueller did in fact get to the bottom of the Russia affair, then the impeachment decision should be based on the answer to that question.

One outcome, for example, could be that Trump played no part in the Russia conspiracy, but obstructed justice to cover up crimes committed by his sons or by son-in-law Jared Kushner. If that’s the case, I would indict those people immediately, and prosecute Trump for obstruction after his term ends. It’s a crime, but it’s over now, and waiting does not endanger the country.

I suspect there is considerable evidence that Trump is profiting off his presidency in ways that don’t quite rise to the level of bribery. For example, he could hardly be doing any more to promote Mar-a-Lago than he has been, including spending large quantities of public money there. (Trump’s trips to Mar-a-Lago have cost the taxpayers more than the entire Mueller investigation. “Probably several times over,” estimates the WaPo’s Philip Bump.) The Trump International Hotel in Washington profits extensively from foreigners attempting to curry the President’s favor. (The Trump Organization donated $151K in foreign-government profits to the Treasury, but has not explained how it came up with that number. I would be amazed if it were a fair accounting.) Michael Cohen has collected millions in what appear to be payments for access to the Trump administration, but we still don’t know if Trump conspired in that, or whether the payments bought any government favors.

However, Congress could crack down on Trump’s profiteering without resorting to impeachment. He (and future presidents) could be required to publish their tax returns. Congress could investigate the Trump Organization and do its own accounting of politically tainted profits, or insist that Trump divest (and let him decide whether he would rather resign). It could refuse to spend public funds on any businesses owned by the President. Conflict-of-interest rules that apply to every government official except the president could be extended.

Congress hasn’t done these things because Republicans don’t want to take any action against Trump. It’s crazy to imagine that impeachment is feasible as long as such common-sense moves haven’t been made. Impeachment is a break-glass-in-case-of-emergency last resort; if anything else could fix the problem, it should be tried first.

To be continued … Chances are, not all of the conclusions of the Mueller investigation will be clear-cut. There may be some evidence of collusion with Putin, but not definite proof. It may be impossible to establish whether Trump’s reluctance to sanction Russia was a quid-pro-quo or not. I’ve laid out my general principles on impeachment, but those kinds of judgment calls can’t be made without seeing the specific evidence.

When that evidence comes out, I can only hope that I and the Congress and Americans on both sides of the partisan divide will understand the gravity of the judgment to be made, and that we will all feel the Eye of History watching us.

Three Misunderstandings About Guns and the Constitution

I. Armed civilians and tyranny

What’s misunderstood about it. One common argument in favor of private ownership of military-style weapons like the AR-15 is that a well-armed population is a necessary defense against tyranny, i.e., that the general population needs to retain the ability to overthrow the central government by military force. Ted Cruz has written that the Second Amendment serves as “the ultimate check against government tyranny — for the protection of freedom.”

A parallel argument is that historically, dictators like Hitler disarmed the public before imposing full tyranny. Once disarmed, the argument goes, the people were as helpless as sheep. This Facebook meme is typical, and features typically misleading quotes.

Both quotes are doctored.

What’s wrong with that view? Just about everything.

Let’s start with Hitler. Salon’s Alex Seitz-Wald debunks “The Hitler Gun-Control Lie“, leaning on a more scholarly article by historian Bernard Harcourt. The 1938 gun law that NRA voices like Wayne LaPierre so often cite actually weakened the gun-control laws of the Weimar Republic.

The 1938 law signed by Hitler that LaPierre mentions in his book basically does the opposite of what he says it did. “The 1938 revisions completely deregulated the acquisition and transfer of rifles and shotguns, as well as ammunition,” Harcourt wrote. Meanwhile, many more categories of people, including Nazi party members, were exempted from gun ownership regulations altogether, while the legal age of purchase was lowered from 20 to 18, and permit lengths were extended from one year to three years.

The Hitler quote in the illustration refers not to German civilians, but to non-Aryans in occupied Russian territory. Obviously, he would not have referred to himself as a “conqueror” of the German nation, or to the Nazi master race as a “subjected people”.

If the NRA’s point were valid, you would expect the most democratic nations in the world to be the ones with the most guns, but if anything, the correlation runs in the opposite direction. Here are the four most democratic nations, according to the UK-based Economist Intelligence Unit.

Nation democracy index guns per 100 civilians
Norway 9.87 31.3
Iceland 9.58 30.3
Sweden 9.39 21
New Zealand 9.26 22.6

Even these gun-ownership numbers, I suspect, are exaggerated in comparison with the U.S., since they probably include very few weapons like the AR-15. (Norway’s parliament is reportedly ready to pass a complete ban on semi-automatic weapons, which would include a number of popular handguns as well as rifles.)

Here are the nations with the most guns in civilian hands.

Nation democracy index guns per 100 civilians
United States 7.98 101
Serbia 6.41 58.21
Yemen 2.07 54.8
Cyprus 7.59 36.4

Of particular note is Japan, where the average 100 civilians own a mere 0.6 guns, but whose democracy index on a par with the U.S.: 7.88. If a disarmed population is just asking for a totalitarian takeover, why isn’t one happening in Japan?

Switzerland and Israel are frequently cited as democratic countries with a large number of guns and little civilian gun violence, but in both countries possession of a gun is associated with military service, and is strongly regulated otherwise. The BBC quotes a Swiss gun-owner, who does not keep ammunition in his house and stores his gun’s barrel in a separate part of the house from its body:

The gun is not given to me to protect me or my family. I have been given this gun by my country to serve my country.

Finally, there are those quotes from the Founding Fathers like the one in the illustration above, nearly all of which have been either taken out of context, mis-attributed, or simply invented out of nothing. The Jefferson quote above is rejected on the official Monticello web site. Other frequently-cited fake quotes from the Founders are debunked at Guncite.com.

II. The original intent of the Second Amendment.

What’s misunderstood about it. It’s believed that the Founders passed the Second Amendment to protect an individual right to own militarily useful weapons (like, in our era, the AR-15), so that the People would have the ability to resist a tyrannical federal government.

What more people need to understand. That belief is historically baseless.

Legally, it doesn’t matter whether privately-owned weapons actually deter tyranny or not. (They don’t.) If the Founders believed they did, and wrote that belief into the Second Amendment, and if no generation since has seen fit to repeal it, then it’s the law. But that’s not what the Second Amendment is about at all.

At this point it’s worthwhile to look at the full text of the Amendment, which is short.

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Militiaman.

Today, we often tend to read right past the first clause and focus on the second. But it’s worth remembering what the Founders thought of when they saw the word militia: the Minutemen. In other words, a force of citizen-soldiers authorized by state or local governments, which could be called into action in a crisis. The current-day successor to the federal-era militias is the National Guard, not the self-appointed sovereign-citizen yahoos who drill up in the woods of Montana. The Constitution makes that quite clear in Article I, Section 8.

The Congress shall have Power … To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

The so-called militias we hear about today refuse to be organized, armed, or disciplined by Congress, or to be trained or have their officers appointed the states. So they’re not at all what the Constitution is talking about.

Not a militiaman.

Why, then, was a well-regulated militia “necessary to the security of a free State”? Not so that it could fight against the federal government. In fact, Article I, Section 8 also explicitly gives Congress the power “to provide for calling forth the Militia”, which will then (Article II, Section 2) be under the command of the President. In case of insurrection, the Constitution foresees the militia fighting for the federal government, not against it.

The vision that worried the founding generation (enough to create the Second Amendment) was that the federal government might disband the militias and replace them with a large professional standing army, which would then need to have forts and bases throughout the country. Rather than repel an Indian raid itself, for example, a frontier community would have to call for help from the Army. Slave-owning states particularly worried about the possibility of an anti-slavery president refusing to put down a slave uprising (or maybe just dragging his feet). They wanted to be sure they would retain enough local power to keep their slaves under control.

Even more, the Founders feared that professional soldiers would grow to be loyal to their Commander in Chief rather than to the nation. The existence of this force might tempt a president to launch a coup and establish a military dictatorship. The point of a militia was to make that large permanent professional force unnecessary, not to fight pitched battles against it.

You can argue that we’ve already gone a long way down the road the Founders didn’t want us to travel: We have a large standing army with nationwide bases, and towns do not drill their citizens on the town green, as Lexington and Concord did. (However, we also have state and local police departments  — which didn’t exist in the Founding era — so we’re not entirely dependent on the federal government for our security.) But self-appointed Rambos arming themselves to resist the federal government was no part of the Founders’ vision. The whole point of the Constitutional system was to allow for peaceful replacement of an unpopular government. As the Supreme Court wrote in 1951:

Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.

III. The weapons the Second Amendment protects.

What’s misunderstood about it. Some Americans see virtually any restriction on the weapons they can own, or even registration of those weapons, as a violation of their Second Amendment rights.

What’s wrong with that? In the entire history of the United States, no court has understood the Second Amendment that way.

Given that the Second Amendment was part of the Bill of Rights passed by the first Congress, you’d expect all its major provisions to have a long history of judicial interpretation. But in fact the individual right to own specific weapons wasn’t recognized until the 2008 Heller case, a hotly contested 5-4 decision of the Supreme Court. Prior to that, courts construed the Amendment’s “right to bear arms” as a collective right belonging to “the People” as a whole, not individual persons. Historian Michael Waldman wrote:

“A fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.

Until Heller, the Supreme Court’s landmark gun-rights case was Miller, in which it rejected the argument that the National Firearms Act (regulating sawed-off shotguns, among other weapons) violated constitutional rights. Even the Heller decision (written by the late Justice Antonin Scalia) doesn’t endorse the NRA’s view of the Second Amendment. It struck down a District of Columbia law banning handguns, while allowing that

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

Challenges to the Federal Assault Weapons Ban that was in force from 1994 to 2004 never made it to the Supreme Court, though the law was upheld by lower courts.

What today’s Court would do with an assault-weapons ban, or even a complete ban on semi-automatic weapons, is very much up in the air. Scalia’s Heller opinion found an expectation that the militia would assemble carrying weapons “in common use at the time” for legal purposes. How extensive that use needs to be was not specified. Whether AR-15s and other assault weapons are “in common use” would no doubt be hotly debated. Certainly they are not as widely used as handguns were in 2008, and the main legal purpose for which handguns were used (self-defense) carries more constitutional weight than the nebulous legal uses of assault weapons.

No court decision anywhere invalidates the government’s legitimate power to register weapons.

No court has rejected the federal ban on automatic weapons or the regulation of high explosives, so there is clearly a line somewhere between weapons that can and can’t be banned. The question would be which side AR-15s fall on.

Just to give one obvious example, it would be incredibly stupid for the government to allow people who live on the flight paths of major airports to own surface-to-air missiles. And yet, the argument that individuals have to be prepared to fight a tyrannical government would seem to justify those weapons. (How are we going to resist the government if we can’t take down its air power?) Those who believe the resist-the-government interpretation of the Second Amendment should be pushed to say whether any weapons can be banned or regulated, and why exactly such limitations are consistent with their theory.