Law

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...

Speaking Ill of the Dead

What do you say when a public figure you find repellent dies? Do you hold your tongue, not speak ill of the dead, and wait some decent interval before saying what you really thought of them? After all, there's no time like their death. Robert Bork died today, and the truth is that in a few months nobody is going to be talking much about his legacy. So now's the time to weigh in, which Jeffrey Toobin does, in a rather unrestrained way : Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century. The fifty-eight senators who voted against Bork for confirmation to the Supreme Court in 1987 honored themselves, and the Constitution. In the subsequent quarter-century, Bork devoted himself to proving that his critics were right about him all along. Hard to disagree—Bork's philosophy was a particularly nasty one, and he spent much of his public life expressing his boundless contempt for modern America,...

Concealed Carry and the Triumph of Fear

Flickr/Of Small Things
Thanks to the tireless efforts of the NRA and the gun manufacturers, 49 states now issue concealed-carry permits to people for whom merely owning guns is not enough. As we focus our attention on military-style rifles and high-capacity magazines, we need to remember that the most important change in recent years isn't in the equipment, but in the spread of a new kind of mentality among many gun owners, one that seeks to make fear the organizing principle of American society. This has been the essential focus of gun advocates' work in recent years: changing laws so that as many people as possible can carry as many guns as possible into as many places as possible. Since the people who want to do so have driven the discussion and the laws on guns, it's important to understand where they're coming from. And frankly, it's an ugly place. Most gun owners don't have concealed carry permits, and there is a profound psychological difference between someone who has a gun in his home and someone...

The Real Barrier to Better Gun-Control Policy

WikiMedia Commons
The horrific mass killing of elementary schoolchildren in Newtown, Connecticut has served as another reminded that the United States is an unusually violent country. And the evidence is overwhelming that lax regulations of private firearms plays a major role in this unnecessarily high rate of violent death. And yet, it is very unlikely that any federal legislation will be passed in response to the Newtown killings, let alone regulations comparable to those in other liberal democracies. To many progressives, the reason for this is clear: the Second Amendment to the Constitution, which must be repealed for any real progress to gun control to take place. But to blame the Second Amendment for terrible American gun control policies is highly misleading. The Bill of Rights is not the primary political barrier to better gun control policies, and in any political universe in which repealing the Second Amendment was even thinkable such a repeal would be superfluous. To understand the relative...

The Uses and Limits of Knowledge About Guns

Flickr/Simonov
We're about to start the portion of this debate where we begin discussing specific actions the government might take to address gun violence. And as we do, particularly when it comes to those measures that concern the guns themselves (as opposed to measures focused on the people who can get them or the conditions of their purchase), it's likely that gun advocates will start complaining that there's a problem with all these effete urban northeastern liberals making laws governing guns they know nothing about. This isn't new; for instance, gun advocates have long hated the term "assault weapon," since it doesn't mean anything in particular (after all, every gun is a weapon designed for assault). We should be very wary of the argument that people who have a lot of experience with guns have some kind of greater moral claim to a voice in this debate (and we should also be wary, as Elsbeth Reeve writes , of coastal urbanite conservatives claiming to speak for "real America" about guns). Yes...

Putting the NRA on Defense

AP Photo/St. Louis Post-Dispatch, Christian Gooden
Every mass shooting, there’s a brief flare-up of discussion about gun control, followed by an inevitable dropping of the subject as liberals give up hope that anything can be done about guns when conservatives control the discourse so thoroughly . It’s become so predictable that even lamenting the process has in itself become a cliché. The notion that owning semi-automatic assault rifles that can shoot off six rounds a second is a “right” has become so embedded that many people, including our president, have calculated that it’s fruitless to even try to start drafting legislation that would restrict the sale of such weapons. Facing this stalemate, it’s time for gun control advocates to start changing the conversation. I propose we do this by starting attacking not the guns themselves, but gun culture . And we can start by calling for restrictions on the advertising of guns. A lot of liberals aren’t tuned into this, because they live in their own enclaves and absorb media that doesn’t...

Guns Are Different

Flickr/xomiele
It's safe to say that we've had more of a national discussion about guns in the last four days than we've had in the last 15 years. The particular measures to address gun violence that are now in the offing run from those that are well-intended but likely to be ineffectual (renewing the assault weapons ban, for instance) to some that could have a more meaningful effect even if they're difficult to implement (universal background checks, licensing, and training). But the most useful change that may come out of this moment in our history is a change in the way we look at guns. By that I don't mean that Americans will suddenly stop fetishizing guns, or that everyone will agree they're nothing but trouble. But if we're lucky, perhaps we could come to an agreement on something simple. Yes, our constitution guarantees that people can own guns, much as many of us wish it didn't. But even in the context of that freedom, we should be able to agree that guns are different. The freedom to own...

Taking the Broad View on Guns

President Obama wipes away a tear as he discusses the shooting in Newtown.
Up until now, Barack Obama's record on guns has been one of the biggest disappointments for his liberal supporters. In his first term he signed two laws on guns, one allowing people to take their guns into national parks, and one allowing people to take their guns on Amtrak trains. But now there are some hints that the administration may be open to some modest measures to reduce the easy availability of some of the deadliest means of killing large numbers of people at one time. In particular, we could see a renewal of some version of the assault weapons ban that was in place from 1994 to 2004. That law used a somewhat complicated flow chart of features to define an assault weapon, and also banned magazines that held more than ten rounds. A ban on high-capacity magazines may be the easiest thing to pass today, because it's not hard to define and they are almost impossible to justify for any purpose other than killing people. The easy argument against any new law, and one we'll...

Ten Arguments Gun Advocates Make, and Why They're Wrong

Flickr/SpecialKRB
There has been yet another mass shooting, something that now seems to occur on a monthly basis. Every time another tragedy like this occurs, gun advocates make the same arguments about why we can't possibly do anything to restrict the weaponization of our culture. Here's a guide to what they'll be saying in the coming days: 1. Now isn't the time to talk about guns. We're going to hear this over and over, and not just from gun advocates; Jay Carney said it to White House reporters today. But if we're not going to talk about it now, when are we going to talk about it? After Sandy hit the East Coast, no one said, "Now isn't the time to talk about disaster preparedness; best leave that until it doesn't seem so urgent." When there's a terrorist attack, no one says, "Now isn't the time to talk about terrorism." Now is exactly the time. 2. Guns don't kill people, people kill people. Maybe, but people with guns kill many, many more people than they would if they didn't have guns, and guns...

Obama, Crying

White House
While plenty of people criticized President Barack Obama’s speech yesterday—“I react not as a President, but as anybody else would—as a parent"—I was less bothered by what he said than I was relieved by what he did: choke up, take a minute to gather himself and, through the rest of the press conference, wipe back tears. Of course, I thought. Crying is the appropriate response to have to a day like this. Mia Farrow tweeted that it was the first time she’d seen an American president cry, and she might be right. It’s a significant step. In most of politics, and most of public life, we’ve been taught that emotion is the opposite of reason, that our feelings will cloud our judgment, and that the last thing an American president should ever do is trade swagger for sentiment. It was this view of emotion, of course, that helped justify the barring of women from public office. She just can’t handle it, was the refrain. The view of women as inherently more emotional than men is one feminists...

Whether Scalia Likes It or Not

Flickr/U.S. Mission Geneva
Last week, when the Supreme Court decided to take both the Proposition 8 case, which challenges California's constitutional amendment banning same-sex marriage and a challenge to the Defense of Marriage Act (DOMA), which barrs the federal government from recognizing same-sex marriages performed in the states, my inner Eeyore got a little carried away. I realized that when Brian Brown—head of the National Organization for Marriage (NOM), the chief opponent of marriage equality, started quoting me in his fundraising e-mails. While I’m honored he would notice, that made me recognize I should explain my thinking more clearly. So here it is: Within ten years, most American states will be marrying same-sex couples. Within 15, the Supreme Court will knock down the remaining bans on marriage equality. All of that could come sooner if the Court rules with us this year in the two gay-marriage cases. But marriage equality is going to win within our lifetimes. (Here, I am morally obligated to...

Will Defenders of DOMA and Prop. 8 Have a Leg to Stand On?

Wikimedia Commons
The most hotly-debated issue with respect to the Supreme Court's announcement that it will hear two major gay-rights cases is whether it will decide the cases at all. In addition to the crucial substantive issues relating to the constitutional status of sexual orientation, the Court has asked the parties in both the DOMA and Prop. 8 cases to brief questions of "standing." Because the source of the Court's power of judicial review is their authority under Article III to resolve "cases and controversies," parties have to demonstrate that they have a direct stake in the case for the courts to have jurisdiction. In both the the DOMA and Prop. 8 cases, the executive branch—either the White House or the California governor's office—whose law has been held unconstitutional by lower courts has refused to defend it, so there's an argument that nobody has an interest in appealing the decisions. There are two questions about standing and these cases: 1) should the Court find standing, and 2)...

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