Law

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)...

The Courts: How Obama Dropped the Ball

AP Photo/Carolyn Kaster
(AP Photo/J. David Ake) I n his novel King of the Jews , Leslie Epstein sets his story in the wartime ghetto of Lodz, Poland, where the Gestapo ruled through an appointed council of Jewish elders. Epstein, researching the book, tracked down the gallows humor of the time. In one such joke, told by a character in the novel, two Jews are facing a firing squad. The commandant asks if they would like blindfolds. One of the condemned whispers to the other, “Don’t make trouble.” “Don’t make trouble” could have been the credo of the first year of the Obama Administration. The White House calculated that if the president just extended the hand of conciliation to the Republicans, the opposition would reciprocate and together they would change the tone in Washington. This was the policy on everything from the stimulus to health reform to judicial nominations. It didn’t work out so well. Now, spurred by the tailwind of a re-election victory and the realization that public opinion is on his side,...

Election Officials Defend Their Partisan Status

Flickr/Steve Rhodes
This campaign cycle, even election rules were grounds for partisan fighting. Republican Ken Detzner, Florida’s secretary of state, attempted a purge of the voter rolls, prompting accusations of discrimination. In Colorado, Secretary of State Scott Gessler, also a Republican, tinkered with a similar effort. Pennsylvania’s Secretary of the Commonwealth Carole Aichele, another Republican appointed by Governor Tom Corbett, openly supported the state’s voter-ID law. Most famously, there was Jon Husted, Ohio’s Republican secretary of state, whose decision to limit early-voting hours to keep them consistent across the state prompted cries of outrage. All of the partisan wrangling makes Wisconsin, which has a nonpartisan model for running elections , look pretty appealing. In 2008, the Badger State created Government Accountability Board, a group of retired judges approved by members of both parties who administer elections for the state. While it doesn’t stop legislative tinkering—the state...

Be Afraid, Be Very Afraid: SCOTUS Takes on Same-Sex Marriage

Flickr/Jamison Weiser
Tonight, you’ll hear on the news that the Supreme Court has agreed to hear the "gay marriage cases.” Much of the mainstream ( i.e. , straight) media will be treating the two cases they’ve taken—a challenge to California's ban on same-sex marriage, Proposition 8, and a challenge to DOMA, the federal law that prohibits the government from recognizing same-sex marriages performed in the states—as essentially the same. Don’t be fooled. The cases are very different. The fact that SCOTUS has taken both has a lot of us very worried. Let’s start with the more famous one: the Prop. 8 case. This is the one we did not want the Court to take. At its simplest, the lawsuit—brought by star lawyer team Ted Olsen and David Boies—is asking the Court to consider whether Prop. 8 is constitutional; it’s about whether there’s a fundamental right for same-sex couples to marry. When the California electorate passed Prop. 8 in 2008, you may recall, it overturned the state supreme court’s decision to allow...

How Will SCOTUS Rule on Prop. 8 and DOMA?

WikiMedia Commons
The Supreme Court has announced that it will be hearing both of the major gay-rights cases it was considering this term. Facing constitutional scrutiny are key provisions of the federal Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages performed in the states, and California's Proposition 8, which banned same-sex marriage in the state. When combined with the major affirmative-action and voting-rights cases the court will also be handing down this term, this could be the most consequential Supreme Court term in decades. The two gay-rights cases face slightly different prospects. As I've said before, the argument that DOMA infringes on states' rights is likely to appeal to both Justice Anthony Kennedy's sympathy for gay rights and his skepticism of federal power. I would not even be shocked if Justice Clarence Thomas joined an opinion striking down the heart of the law, Section 3, and at least 5 votes seem very likely. The Prop. 8 case...

We Can't All Be Royals

AP Photo
Ap Photo Kate Middleton and Prince William on their wedding day I know you can hardly stand the excitement: Princess Kate is preggers! Finally, the QEII can step out of service, passing off the baton—er, scepter—in a way that skips right past her reprobate son. Finally, she has a new generation in line that understands the royal job: Get married, reproduce, and stay honorably married. Which, as you may have noticed over the weekend, is just what The New York Times 's Ross Douthat wants us reprobate Americans to start doing. In what began as an almost sensible column, Douthat noted that public policy can help encourage working people to have families. But then Douthat ran right off the rails, chiding us for our lack of character, our selfish decadence, our end-of-empire exhaustion, and for preferring the comforts of—oh, I don’t know, maybe paying the mortgage?—to the sacrifices of raising more children. Herewith: The retreat from child rearing is, at some level, a symptom of late-...

Getting Away with Wage Theft

The 1938 Fair Labor Standards Act (FLSA), which ushered in many of the worker protections we enjoy today, was a major progressive victory. But as the century that followed it shows, it was by no means the end of the struggle to get workers treated fairly. Employers, aided by conservatives in the executive and judicial branches, have often found ways of ensuring these laws are not fully enforced. Symczyk v. Genesis Healthcare Corp. , which the Supreme Court considered yesterday at oral argument, presents another case in which conservatives on the Supreme Court might erect a barrier making FLSA harder to enforce. The case involves a lawsuit filed by Laura Symczyk, who alleged that Genesis Healthcare had committed wage theft against her and her co-workers. According to Symczyk, Genesis routinely docked the pay of workers (including herself) for lunch breaks that were not taken. Reflecting the strength of her claim, Genesis offered her $7,500 plus associated fees to settle. Symczyk,...

Will the Contraception Mandate Survive Judicial Review?

Yesterday's court order blocking the Obama administration's ruling on health-care plans is by no means the end of the road.

Yesterday, the Eighth Circuit Court of Appeals issued a stay blocking the Obama administration's requirement that employer health-insurance plans cover contraception. The related suit was filed by Frank O'Brien, a Roman Catholic business owner who claimed that the mandate violated his rights under the free exercise clause of the First Amendment. It's not clear whether the stay indicates a real chance that the mandate will ultimately be ruled unconstitutional. It was granted in a one-line order , with one of the judges in a three-judge panel dissenting. The stay order indicates that the two other judges consider the suit non-frivolous, but this does not necessarily mean that O'Brien will ultimately prevail. Still, the appeals court would have been better not to issue the stay, because the free exercise argument being made against the contraception mandate is i ndeed frivolous. The key precedent, Oregon v Smith , makes it clear that generally applicable laws do not violate the First...

Pages