The Second Amendment - A Reality Check

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What could possibly go wrong?

Whether viewed as a political concept, a tool of governance or a social construct, the American constitutional guarantee of a right to keep and bear arms is an unmitigated disaster. It tightly constrains the ability of local communities and state governments to limit and regulate access to firearms, and in modern history it has come to be a huge, deadly social experiment with no "off button". The 2nd amendment permits a single true believer to leverage the judiciary to overturn the will of entire communities, and makes it impossible to live in a community without the constant threat of modern, lethal firepower.

Only four nations even have such a guarantee: The US, Mexico, Haiti and Guatamala. It's hard to say how much the constitutional guarantee contributes to the ongoing violence and chaos in these third-world, corrupt, poorly governed nations, but in the US the ongoing daily death toll is staggering. And it's not just those killed - many more are wounded, many young men are incarcerated for decades, families are shattered, children are orphaned - not just by the homicides and shootings, but also by the suicides facilitated be the easy access to guns.

Now, all that said, if we are going to try to find a way to limit the availability of deadly weapons, particularly handguns, we have to be honest about the Constitution, the law, the judiciary and the political environment. That doesn't mean we have to be pessimistic, but it does mean we can't pretend things are not as they are, or that there are paths or shortcuts to meaningful firearms ownership reform that don't actually exist.

The overwhelmingly most common trope on the left is that the verbiage of the 2nd amendment itself means that the intention is to limit guns to police and military.

 "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."

The story goes that a well regulated militia was the eighteenth century equivalent to a modern professional army or police force. But the fact is that phrase had been in common usage for a century, and meant nothing at all like we would interpret it today.  The phrase "well regulated", as used at the time of the constitutional convention, referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.

It's also interesting to consider the next phrase, "being necessary to the security of a free state". It doesn't simply claim that this militia is necessary to the security of the state, it specifically claims it is necessary to preserve the security of a FREE state. Although we can agree the concept of small arms to contain the 'tyranny' of the federal government is ludicrous today, things were much different in 1780, and that concept was critical. They had just finished raising a militia to fight for independence - it was reasonable that they might have to do so again.

Third, what did they mean by 'militia'? Well, there was no army. If there was a challenge, invaders or Indian raids or riots or armed gangs, the law was clear. All able-bodied men would muster with their own weapons, horses and equipment. The state neither supplied nor issued anything - the militia was the collective defense mechanism for the community, and after the threat was addressed they went back to their farms and businesses. So there was no separate entity called the 'militia' - the militia WAS the people.

Lastly, there have been tremendous arguments around who, exactly, "the people" are in the phrase "the right of the people to keep and bear arms...". Over the years, the Supreme Court has been resistant to providing a firm legal decision on this question. In 1939, in the Miller decision, the court affirmed a collective rights approach only - they did not go so far as to affirm that this verbiage necessitated an individual rights interpretation. Finally, with the modern interpretations of the 2nd amendment ascendant, the court in Heller in 2008 did conclude that this phrase was a guarantee of an individual right to firearms ownership.

So look. You can adopt any interpretation that pleases you - I like to be as careful as I can be to avoid motivated reasoning or wishful thinking, but everyone is different. But what you can't do is stamp your feet and insist that your more-favorable-to-gun-regulation interpretation is the obvious, or the only one possible. Indeed, all of the judicial interpretations now in force point in precisely the opposite direction. 

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Individual Liberty - How Does It Work?

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Hey, this idea might just have legs

Actually, you really don't need to read this. I'm going to spend the next few minutes telling you something you already know. I'm really doing this because, for such a simple, obvious concept, it can be difficult to verbalize precisely, so I'm going to poke at it a bit and see what worthwhile bits fall out.

See, here's the thing. Right wing (I really can't call these extremists 'conservative' no matter how thoroughly they've co-opted the term) and Christianist bigots have concluded that if gay couples they've never met who don't even live in their neighborhood are permitted to marry, this somehow impugns on their own rights - specifically their freedom of religious worship, AKA their 'religious liberty'. Now, this is so extraordinarily nonsensical as to make you actually dizzy if you think about it too much - any common sense definition of 'religious liberty' would be about protecting how and what THEY worshiped, not how they could use their religious beliefs to control and constrain the lives of complete strangers.

In one sense, it is easy to simply describe this argument as demanding a religious exemption that allows them to discriminate, but this is both too simple and too complex to describe their actual demands. Because, in many ways, the law ALREADY grants them wide latitude to discriminate. They can still disown their children, they can still scream hate-filled invective, they can still choose not to associate with people they don't approve of. What they want goes much further than that, and even allowing that it was the legal status quo up until today, it's obviously a flawed, deeply un-democratic assumption. Based solely on THEIR specific beliefs, they want to be granted the power to control OUR lives. Just as the Islamic State imposes their theocratic beliefs on all citizens under their sway, the Christianist bigots want - nay, DEMAND - the right to decide who can and cannot marry and raise a family. The very idea of such a construct is so utterly outrageous, violating at the deepest core the fundamental American value of equality, that it already seem hard to believe it was something we countenanced. Like 'Whites Only' lunch counters, it is SO wrong it looks evil.

They HAVE religious liberty - probably more than they ought to. Look at all the odd sects and cults around the US, the Amish, the Mormons, the Mennonites, the snake dancing baptists, fucking SCIENTOLOGISTS. They are permitted to live and raise their children in extreme, bizarre and downright dangerous fashion, all in the name of religious freedom. And now that everyone can marry the person they love, those weird cults will continue their behaviors, the execrable Westboro Baptist fanatics will continue to spew their hate, occasional county clerks and state Attorneys General will throw tantrums and be punished for their acts of disobedience. And even as we mark a great day for American values, we perhaps move a little closer to the reckoning this nation so badly needs. For we have become as Sunnis and Shi'ites - so deeply and unequivocally divided ideologically, so far at odds about what America is and who we are as a people, so filled with anger and hatred and a history of violence that the illusion of a single nation in the 21st century cannot be sustained.
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Charlseston and the T Word

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Terror attack? Racial Murder? Does it matter?

Once again we have a mass killing in America, this one certainly driven by racial hatred. And there is once again the outcry - a white killer with a racial/ethnic ideological motivation, the attack needs to be described as 'terrorism'. If we are going to label even the most far-fetched aspirational fantasies as terrorism when they originate with Muslims of any ethnicity or nationality, we must, it is repeatedly said, be willing to apply the same standard to white Christians.

It's an argument that makes sense, dovetailing with the obvious disparity every time a white gunman is taken into custody instead of being killed in a hail of police firepower. But I submit that it doesn't really matter. First, if the attack on the church in South Carolina was universally described as an act of terrorism, what would change? It would still be a mass murder driven by racial (as opposed to sectarian) hatreds, enabled by the availability of firearms in America. We would still be a nation torn apart by racism. The media would still deny that it was about racism, substituting the same old dog whistles about mental illness and religious liberty. And there would still be the endless, circular, pointless argument about guns and the societal costs we are willing to bear in order to ensure that US citizens have an unfettered 'right' to amass as deadly an arsenal as they can afford to purchase.

The fact that the media makes this artificial distinction between Muslim and Christian terrorism, between sectarian and racial violence, between brown foreigners who murder and white Americans who do the same points up an important factor in the American narrative. There is a lot of willful delusion in the American identity, and to abandon it would be to face some hard truths about who we are and what we have become. But even beyond that, to describe any attack, planned or executed, as terrorism is pointless when we cannot even agree on what the word means. It's all based on a shifty word game promulgated by the US government in the immediate aftermath of the 9/11 attacks. We didn't know what might be coming, so we retained the flexibility to call ANYTHING an act of terrorism. To the point where a 12 year old Afghan kid who found his family home under violent attack and threw a grenade to try to defend it is charged with terrorism and war crimes.

Now sure, you and I and everyone else has an opinion about what the word 'terrorism' means. But that doesn't matter. We can't have a useful conversation until we ALL agree on a standardized meaning. And too many people would find that agreement far too constraining in their ability to define enemies and justify killing them. Under the current (lack of) definition, calling Dylann Roof a terrorist might feel good, might contribute to a perfectly reasonable widening of the conversation, but ultimately would crash on the shoals of yet another powerful word rendered pointless by endlessly shifting definitions.

As is so often the case, the real issues here are race and guns. If you were going to rank the root problems in the US today, race, guns and class inequality would be the top three. And they are so deeply rooted in American culture and American identity that there is nothing that can be done to change them, no argument, no law, no edict that can turn the ship of America on to a different course.
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Democracy and Freedom by the Megapixel

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So it begins...

Racial hatred is America's original sin. And despite years of struggle, of changing laws and social mores, it seems every bit as entrenched in American society as it was during reconstruction. All of the key institutions - law enforcement, corrections, health care, education - seem unable to function in such a manner that they serve the entire population equally and fairly. Nothing - no force, no eloquent oratory, no law, no social expectation - has been able to create significant change. America has remained stubbornly racist, and virulently un-equal. It seemed as if nothing could force white America to live according to the values they claimed.

Then, in the summer of 2007, in a seemingly utterly unrelated event, Apple released the first iPhone. As kind of a throw-in, it included a digital camera, a feature that every smartphone that followed felt obliged to include. Of course, smartphones became ubiquitous - no one can even imagine ever being more than an arms reach away from one. And as a result, people began to capture all sorts of news and events in real time, in high definition. Car crashes, gunfights, plane crashes, factory explosions - and yes, law enforcement.

Suddenly, starting largely with the video of Rodney King in 1991 - long before the advent of the smartphone, but the beginning of a trend that is now completely universal - the way the world viewed the actions of the police in the streets was no longer strictly defined by the police department's own narrative. There was an objective view of what happened. And sure, even with the video evidence the police were seldom, if ever, held accountable - the history of their immunity from prosecution was (and remains) strong - but in recent years we've seen an accelerating pace of horrific, nauseating murders and assaults by law enforcement against the citizens they are supposed to be protecting. And that steady drumbeat of police violence against their community is starting to turn public opinion, and judicial outcomes are starting to change.

There were several tipping points, all in close proximity. There was Ferguson, MO - not just the original murder of Michael Brown, but even more the violent, out of control response to the protests that followed. The military dress, the weapons, the body armor, the armored vehicles, the refusal to identify themselves, the arrest of journalists -  it all served to frighten and outrage many Americans. There was the killing of 12 year old Tamir Rice in Cleveland. And then, perhaps the most important event was the video recording of the slaying of Walter Scott. The killer, Officer Michael Slager, originally claimed that Scott had grabbed his Taser and he therefore feared for his life. In the video, we see him shooting the fleeing suspect multiple times and then planting his Taser next to the body. The sense that the lies and justifications after outright murders are routine was unavoidable.

But no working law enforcement officer can pretend that they are operating under the same kind of information asymmetry they have had for years. They are surrounded by video cameras, and they cannot ever assume that their actions are not being recorded. Courts and judges are having an increasingly hard time accepting the old narratives when confronted by the shocking video images. And prosecutors are under pressure to act on behalf of their constituencies, not on behalf of police privilege.

This is the rare case of a technology driving profound societal change. This trend is only going to continue, and Police Departments, Academies and street-level leadership are going to be forced to change the way they do their jobs. The unavoidable ubiquitousness of video recording devices isn't all good, and has many worrisome components, but the way it is changing the most toxic behaviors that are the lived experience of so many Americans is a wonderful thing to see.
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America's ISIS Strategy - Starting With the Right Assumptions

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Not. Our. Problem.

With the fall of Ramadi, there has been a large increase in the volume of voices questioning President Obama's strategy. As far as they go, they're right - Obama has stated unequivocally that the American strategy with regard to ISIS is that we will ultimately 'defeat' them. While it's hard to imagine what defeat would look like for an organization like ISIS, we can pretty clearly interpret that to mean that they would be driven out of their 'caliphate', forced to go back to being a small, secretive guerrilla force with no territorial holdings and no political power. And yet somehow expecting that we can get to such an end state without using well trained, well equipped and well led ground troops is ludicrous to the point of delusion.

So, at this point either the strategy is wrong, or the execution is. Advisors at the Division level and above, some daily airstrikes without forward air controllers or observers providing targeting support and training a few brigades of Syrian rebels is never going to lead to the defeat of ISIS, however you might choose to define it. The Kurdish Peshmergas are a competent fighting force, but they lack the numbers, organization, heavy weapons and logistical support to do anything but defend their own territory. The Shiite militias have the numbers and the resources, but any success they have against IS, particularly in Sunni majority areas like Anbar, will paradoxically strengthen, not weaken ISIS.

It seems pretty clear that a strategy predicated on 'defeating' ISIS without the commitment of American ground forces in large numbers is utterly delusional and certainly doomed to failure, with massive unanticipated consequences. And it's completely unnecessary.  What we're seeing here is a kind of regional 'civil war' where there is a sectarian component and an ideological component. The main driver of the conflict is political - this is people fighting to determine what sort of governance model they will live under. The sectarian component is useful for recruiting, fundraising and of course fighting - troops who are truly not afraid to die are formidable - but is secondary to the question of nations and national leadership.

The sectarian problem does, however, raise an important issue. Throughout the middle east, there is a desire for some kind of 'Islamic State'. That can be anything from a harsh, austerian 7th century theocracy, to a more democratic state based on Islamic principles, and a lot of variations in between. But at its core, Islam is not inclusive - hate and distrust of other Abrahamic religious traditions, on top of hate and distrust for other Islamic religious traditions - means that there can never be a single Islamic governance model. There will be shifting nations, with shifting national borders and your occasional toppled government, as long as the Islamic theocratic model is the basis for the nationalism.

The key factor that the US has to successfully internalize is that there simply is NO American interest in the fighting, other than to keep the oil flowing to feed the global economy. In fact, as long as the fighting is centered on the Arabian peninsula, as it is now, the US is arguably safer from Islamic terrorist than it has been in recent years. But if the US leadership insists upon inserting American military power into the regional wars, we will find we are making more blood enemies and encouraging extremist groups to raise their local profile by killing Americans. The simple counterproductivity of the American war on ISIS is so glaringly obvious it makes one wonder how the Obama administration has managed to miss it.

The fact is it's a fight between brutal, tyrannical police-state governments and incompatible, brutal, extremist insurgencies. If we've learned anything in the last 30 years, it's that American military intervention is certain only to make things worse. We need to stand down, and tell the regional governments, from Saudi and Iran to Turkey and Egypt, to Qatar to Yemen, from Iraq to Syria, that they are going to have to get their shiny foreign supplied armies dirty and figure out what they're fighting for and how to win that fight. Meanwhile, we'll be over here trying to do something productive elsewhere.
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