Law

Assault-Weapon Bans Are Not Enough

Flickr/M Glasgow
Flickr/M Glasgow Gun buyers examining merchandise at the Houston Gun Show T he Newtown elementary school massacre has finally sparked a discussion about what to do about the 80 gun deaths in America each day, seven of which are children. But the dialogue remains constrained, as if we know we have to talk about gun control but we’re still afraid the National Rifle Association (NRA) will scold us as anti-freedom oppressors or start shooting. Beyond the obvious—banning assault weapons and limiting the size of gun clips—there is little information or analysis about concrete reforms that could make a difference. We’re still shying away from basic issues like how criminals, youths, and mass murderers get guns, why existing laws don’t seem to provide rudimentary safety, and why so little attention is paid—and so little responsibility ascribed—to the purveyors and profiteers of the gun industry. Gun crimes are usually discussed as if the transactions and guns involved are illegal, but the...

The Only Solution Is Fewer Guns

AP Photo/Robert Ray
On an April Sunday in 1996, a young man named Martin Bryant went to the popular tourist site of Port Arthur in Australia, and using a pair of semi-automatic rifles, undertook a massacre that spread over several locations and killed 35 people. The crime was so horrific that previously pro-gun politicians changed their positions, and less than two weeks later the government announced sweeping changes to the country's gun laws, outlawing automatic and semi-automatic weapons, instituting lengthy waiting periods and background checks for gun purchases, and creating a gun buyback program that eventually resulted in a fifth of the country's firearms being destroyed. In the years since, the country's rates of gun homicide and suicide have fallen dramatically, and Australia has not had another mass shooting. What happened in Australia—a terrible tragedy galvanizing public sentiment and leading to a significant change in policy—is something many Americans fervently wish would happen here in the...

Democracy, Disdain, and the Roberts Court

American Constitution Society
In a recent column , George F. Will attacked Pamela Karlan's recent Harvard Law Review essay "Democracy and Disdain." Objecting to the Stanford law professor's many examples of Roberts Court conservatives reflecting disdain for the work of Congress, Will asserts that Karlan "misses the point of judicial review." Karlan, Will charges, assumes "that restraints on its power are presumptively anti-democratic." Will, however, misunderstands the point of Karlan's brilliant essay. Constitutional restraints do not require assumptions that legislators are acting in bad faith, and judicial review should facilitate rather than interfere with the democratic participation. The title of Karlan's essay invokes John Hart Ely's classic book Democracy and Distrust . Ely's book was a response to legal scholars across the political spectrum claiming that the jurisprudence of the Warren Court was just incoherent activism. Ely argued instead that a powerful thread ran through the landmark decisions of the...

Purity Culture Is Rape Culture

AP Photo/ Dar Yasin
AP Photo/ Dar Yasin Indian women offer prayers for a gang rape victim at Mahatma Gandhi memorial in New Delhi. H er intestines were removed because the six men used a rusty metal rod during the “rape.” That fact—the rusty metal rod—is what’s haunted me about the violent incident that has outraged India and the world. Six men held a 23-year-old woman and her male friend in a private bus for hours while they assaulted her so brutally that, after several surgeries to repair her insides, she died. What happened to this young woman was a gang assault. It can be called a sexual assault because among other things, they brutalized her vagina. Or it can be called a sexual assault because it was driven by rage at the female sex . Since Susan Brownmiller first wrote Against Our Will — the landmark feminist reconceptualization of rape — feminists have worked on clarifying the fact that rape is less about sex than it is about rage and power. Too many people still conceive of rape as a man’s...

Call it Trafficking

AP Photo/Moises Castillo
Last week, in a horrifying move, Russian President Vladimir Putin signed a bill to ban American citizens from adopting Russian children—ironically enough, in retaliation for U.S. efforts to punish Russian violations of human rights. It's ironic because thousands of Russian children (and children across the former Soviet bloc) live in institutions, as no child should. Denying those children desperately needed new families could almost be considered a violation of the U.N. Convention on the Rights of the Child, which requires that countries act on behalf of the best interests of the child. Many of the children in those Russian institutions have medical or developmental challenges, whether that's HIV, fetal alcohol syndrome, or attachment disorders, so finding families for them is difficult. But American adoptions of Russian children hurt Russian pride, and some of those adoptions have gone so terribly wrong (as with the 2010 incident in which Tennessee woman returned her adopted son by...

The NRA Loves Violent Movies

When Wayne LaPierre of the National Rifle Association made his dramatic statements about the Newtown shooting, he placed the blame on some familiar suspects: not just insufficient militarization of elementary schools, but movies and video games. "Media conglomerates," he said, "compete with one another to shock, violate, and offend every standard of civilized society by bringing an ever more toxic mix of reckless behavior and criminal cruelty into our homes." But Matt Gertz of Media Matters discovered that the NRA is not so opposed to movies that feature people shooting each other. In fact, the NRA's National Firearms Museum features an exhibit called "Hollywood Guns," in which you can check out the actual guns used in some of your favorite films (go to the end of this post for a video of the NRA museum curator proudly showing off the movie guns). You might respond that the NRA is full of crap when it points the finger at Hollywood, which of course it is. But let's take them at their...

What's Ahead for Same-Sex Marriage in 2013

AP Photo/Mel Evans
For gay-marriage advocates, 2012 marked a major turning point—not only did they see wins in the Washington and Maryland state legislatures, but voters in both states as well as in Maine voted to give same-sex couples the right to get hitched. But 2013 may prove to be even more momentous, as lawmakers in several other states plan to push the issue. In Rhode Island, where the House Speaker Gordon Fox is gay and an advocate for marriage equality, same-sex couples have reason to start organizing. State Representative Arthur Handy announced Tuesday he will introduce gay-marriage legislation. While Handy is still gathering co-sponsors for his bill, Fox has promised to help move the measure forward, and the president of the state senate has also promised to allow a committee vote if and when the house sends the measure over. Meanwhile, in Illinois, the pressure on lawmakers to pass gay marriage is growing. According to the Chicago Tribune , media mogul Fred Eychaner, who gave $14 million to...

SCOTUS in 2012: It Coulda Been Worse

Flickr/Rick Reinhard
Flickr/Rick Reinhard U. S. Supreme Court rules to uphold the Affordable Care Act, June 28, 2012. T he Supreme Court's most recent year will be remembered primarily for one blockbuster case: NFIB v. Sebelius , in which the Court narrowly upheld the Patient Protection and Affordable Care Act (ACA). This is justified—it's hard to overstate the impact of striking down a sitting administration's crucial legislation for the first time since the New Deal. Given that assembling legislative majorities for new health-care legislation is not likely to be possible again for many years, striking down the most important domestic legislation since the Great Society would have had devastating consequences for the millions of Americans who would have been denied access to health care for the foreseeable future. And yet, in some ways, the legal challenge to the ACA represents a conservative victory as well. It is, first of all, remarkable that a constitutional argument nobody took seriously five years...

What Happens to a DREAM Deferred?

AP Photo/Damian Dovarganes
At first, it looked like 2012 would be another terrible year for immigration reform advocates. Mitt Romney won the Republican presidential primary by adopting a xenophobic, right-wing platform, advocating for policies against immigrants so terrible they led to self-deportation. Meanwhile Barack Obama continued to deport undocumented workers at an unprecedented pace—he’s sent 1.4 million people out of the country through July of this year—and failed to introduce comprehensive legislation, as he’d promised. A brighter picture is emerging, however. In June, Obama signed an executive order called Deferred Action for Childhood Arrivals (DACA), which operates like the failed DREAM Act would have. Obama ordered Homeland Security to lay off deportation proceedings against immigrants who came into the country as children and who have completed high school or served in the military. Immigrants who meet those qualifications can now request a reprieve to remain in the country. The government has...

The NRA's War of All Against All

The NRA wants you to think this guy is coming for your family.
It's quite salutary that Wayne LaPierre and the National Rifle Association are getting so much attention, because the truth is that most Americans aren't familiar with their rhetoric and the reality they inhabit. If you didn't know too much about LaPierre but tuned in to see him on Meet the Press yesterday , you probably came away saying, "This guy is a lunatic" (a word we'll get to in a moment). I'm not talking about his preferred policy prescriptions. I'm talking about his view of the world. LaPierre gets paid close to a million dollars a year, which I'm guessing allows him a comfortable lifestyle. But he seems to imagine that contemporary America is actually some kind of post-apocalyptic hellscape a la Mad Max , where psychotic villains in makeshift armor and face paint cruise through the streets looking for people to kill. Why do we need armed guards in every school? "If we have a police officer in that school, a good guy, that if some horrible monster tries to do something, they'...

The NRA Shoots Itself in the Foot

NRA leader Wayne LaPierre at today's press conference.
The National Rifle Association finally weighed in on the gun debate today, in a news conference (albeit one in which they took no questions) setting out their feelings at this critical moment. And they gave the movement for greater restrictions on guns the biggest favor it could have hoped for. While the organization was once devoted to marksmanship and gun safety, in recent years it has increasingly become a shill for the gun manufacturers that fund it and the home of unhinged conspiracy theorists. As it showed today, the worst thing it can do for its cause is to step into the light. You can read Wayne LaPierre's entire statement here , but here's a choice excerpt: We care about the President, so we protect him with armed Secret Service agents. Members of Congress work in offices surrounded by armed Capitol Police officers. Yet when it comes to the most beloved, innocent and vulnerable members of the American family — our children — we as a society leave them utterly defenseless ,...

Science versus the Courts

What role should government play in how doctors administer treatment?

Flickr / rad(ish)labs
This month, two California courts issued differing opinions deciding whether California could ban gay conversion therapy based on evidence of harm to minors. On the same day the Oklahoma Supreme Court struck down two laws requiring abortion providers to practice in accordance with the right wing-dominated state legislature. Immediately after, I was asked if these two decisions were essentially the same, protecting the free speech rights of health-care professionals and stopping the government from interfering in the patient–provider relationship. But, these issues don’t fit so neatly into a box. Let me begin by acknowledging that I am not a fan of the argument that health-care providers should be allowed to practice their trade unfettered by “government” intrusion. Rather, I believe that evidence-based regulation of health care should be the standard, and sometimes that means government action. But the burden is high, the science must be high quality, and the branch of government...

Where Public Opinion On Guns Is Headed

In the last few years, gun advocates have made much of the fact that when pollsters ask people broad, non-specific questions about gun laws, like "In general, do you think gun control laws should be made more strict, less strict, or kept as they are now?", support for restrictions has gone down, in some cases below 50 percent. As I've discussed before, that doesn't mean that people ever stopped supporting specific restrictions like those we're now discussing, but there were enough polls confirming the decline in support for generalized "gun control" since the 1990s that we can be fairly sure the phenomenon was real. But now, new polling is showing increased support for restrictions. For instance, a CBS poll released the other day, which uses the text I just quoted, showed support for making laws more strict at 57 percent, an 18-point jump from when the question was asked in April and a 10-year high. A new CNN poll produced similar results, with 52 percent saying either that there...

Robert Bork: All Brain, No Heart

Despite his intellect, the former Supreme Court nominee lacked one quality any good judge must have: empathy.

AP Photo
The country dodged a bullet in 1987 when Robert Bork, nominated by President Ronald Reagan for a seat on the Supreme Court, lost his Senate confirmation by a vote of 58-42. If he had been confirmed, he would have likely served on the Court for the past 25 years, until his death yesterday at the age of 85. The right’s eulogies have begun—the National Review has called him “one of the best legal minds that America has ever produced, probably the best in the postwar world.” That’s hyperbole, but he was indeed no slouch in the smarts department. He did important scholarly work in anti-trust law, and many point to him as the most persuasive advocate of interpreting the Constitution according to its “original intent.” (Antonin Scalia will surely be annoyed when he reads that.) I have no desire to speak ill of him as a man. I will assume that he loved his family, gave candy to children on Halloween, and rescued cats stranded in trees. But we are fortunate indeed that he did not make it to...

Robert Bork, Martyr of Incivility?

AP Photo/Charles Tasnadi
AP Photo/Charles Tasnadi Supreme Court nominee Robert Bork testifies before the Senate Judiciary Committee on the first day of his confirmation hearings, September 16, 1987. Robert Bork, the legal scholar and former federal appellate judge whose nomination to the Supreme Court was defeated by the Senate in 1987, passed away today at the age of 85. R.I.P. Subsequent to his failed nomination, Bork took on the mantle of a conservative martyr , someone whose allegedly unfair treatment at the hand of Democrats led to a new area of political incivility. Predictably, in their remembrances a number of conservative writers—including Roger Kimball , Ann Althouse , and John Podhoretz —have focused on the tough speech that Senator Ted Kennedy gave after Bork's nomination was announced. If you look carefully at all the outrage, however, you'll notice a funny thing: None of them decries a single claim made by Kennedy as inaccurate. There's a good reason for that: Kennedy's opposition was based on...

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