An Expert on Civil War Predicts We Have Insurgency in Our Future

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Wikipedia quotes this definition of ”insurgency”:

A violent, armed rebellion against authority waged by small, lightly armed bands who practice guerrilla warfare from primarily rural base areas. The key descriptive feature of insurgency is its asymmetric nature: small irregular forces face a large, well-equipped, regular military force state adversary.

This is part of an interview from March in The Washington Post:

Barbara F. Walter is a political science professor at the University of California at San Diego and the author of How Civil Wars Start: And How to Stop Them….

We we actually know a lot about civil wars — how they start, how long they last, why they’re so hard to resolve, how you end them. And we know a lot because since 1946, there have been over 200 major armed conflicts. And for the last 30 years, people have been collecting a lot of data, analyzing the data, looking at patterns. I’ve been one of those people.

We went from thinking, even as late as the 1980s, that every one of these was unique. …Then methods and computers got better, and people like me came and could collect data and analyze it. And what we saw is that there are lots of patterns at the macro level.

In 1994, the [CIA] put together this Political Instability Task Force. They were interested in trying to predict what countries around the world were going to become unstable, potentially fall apart, experience political violence and civil war.

Originally, {our] model included over 30 different factors, like poverty, income inequality, how diverse religiously or ethnically a country was. But only two factors came out again and again as highly predictive. And it wasn’t what people were expecting, even on the task force. We were surprised.

The first was this variable called anocracy. There’s this nonprofit based in Virginia called the Center for Systemic Peace. And every year it measures all sorts of things [to decide] how autocratic or how democratic a country is…. Negative 10 is the most authoritarian, so think about North Korea, Saudi Arabia, Bahrain. Positive 10 are the most democratic, [like]  Denmark, Switzerland, Canada. The U.S. was a positive 10 for many, many years…. The U.S. was briefly downgraded to a 5 and is now an 8.

And what scholars found was that this anocracy variable was really predictive of a risk for civil war. That full democracies almost never have civil wars. Full autocracies rarely have civil wars. All of the instability and violence is happening in this middle zone. And there’s all sorts of theories why this middle zone is unstable, but one of the big ones is that these governments tend to be weaker. They’re transitioning — some of the authoritarian features are loosening up — so it’s easier to organize a challenge. Or, these are democracies that are backsliding, and there’s a sense that these governments are not that legitimate… Anyway, that turned out to be highly predictive.

The second factor was whether populations in these partial democracies began to organize politically, not around ideology — not based on whether you’re a communist or not, or you’re a liberal or a conservative — but where the parties themselves were based almost exclusively around identity: ethnic, religious or racial identity. The quintessential example of this is what happened in the former Yugoslavia.

What was the moment you thought: Wait a minute, I see these patterns in my country right now?

My dad is from Germany. He was born in 1932 and lived through the war there… And starting in early 2016, my dad was so agitated. All he wanted to do was talk about T____ and what he was seeing happening. He was really nervous. He was just, like, “Please tell me T___’s not going to win…. I saw this once before. And I’m seeing it again, and the Republicans, they’re just falling in lockstep behind him.”

I remember saying: “Dad, what’s really different about America today from Germany in the 1930s is that our democracy is really strong. Our institutions are strong. So, even if you had a T____ come into power, the institutions would hold strong.” Of course, then T____ won. My dad would draw all these parallels. The brownshirts and the attacks on the media and the attacks on education and on books. And he’s just, like, “I’m seeing it all again here”. And that’s really what shook me out of my complacency…  And I was like, am I being naive to think that we’re different?

That’s when I started to follow the data. And then, watching what happened to the Republican Party really was the bigger surprise — that, wow, they’re doubling down on this almost white supremacist strategy…. And then I was like, Oh my gosh. The only way this is a winning strategy is if you begin to weaken the institutions; this is the pattern we see in other countries…. These two factors [the status of the government and how people are organizing] are emerging here, and people don’t know.

… When people think about civil war, they think about the first civil war [and think] that’s what a second one would look like. And, of course, that’s not the case at all. People [need to] conceptualize what a 21st-century civil war against a really powerful government might look like.

After January 6th of last year, … I wasn’t surprised, right? People who study this, we’ve been seeing these groups have been around now for over 10 years. They’ve been growing. I know that they’re training. They’ve been in the shadows, but we know about them. I wasn’t surprised.

The biggest emotion was just relief, oh my gosh, this is a gift. Because it’s bringing it out into the public eye in the most obvious way. And the result has to be that we can’t deny or ignore that we have a problem. Because it’s right there before us. And what has been surprising, actually, is how hard the Republican Party has worked to continue to deny it and to create this smokescreen — and in many respects, how effective that’s been, at least among their supporters.

Even the most public act of insurrection, probably a treasonous act that 10, 20 years ago would have just cut to the heart of every American, there are still real attempts to deny it. But it was a gift because it brought this cancer that those of us who have been studying it, have been watching it growing, it brought it out into the open.

Does it make you at all nervous when you think about the percentage of people who were at, say, January 6th who have some military or law enforcement connection?

Yes. The CIA also has a manual on insurgency…. It was written to help the U.S. government identify very, very early stages of insurgency… What are signs that we should be looking out for?

The manual talks about three stages. The first stage is pre-insurgency. That’s when you start to have groups beginning to mobilize around a particular grievance. It’s oftentimes just a handful of individuals who are just deeply unhappy about something. They begin to articulate those grievances [and] to try to grow their membership.

The second stage is called the incipient conflict stage. And that’s when these groups begin to build a military arm. Usually a militia. And they start to obtain weapons and get training. They’ll start to recruit from the ex-military or military and law enforcement….

When the CIA put together this manual, it’s about what they’ve observed … in other countries. It’s just shocking, the parallels. In the second stage, you start to have a few isolated attacks….The danger in this stage is that governments and citizens aren’t aware that this is happening. So when an attack occurs, it’s usually just dismissed as an isolated incident, and people are not connecting the dots.

And because they’re not connecting the dots, the movement is allowed to grow until you have open insurgency, when you start to have a series of consistent attacks, and it becomes impossible to ignore.

… Here in the United States, because we had a series of long wars in Afghanistan and Iraq, we’ve had more than 20 years of returning soldiers… This creates a ready-made subset of the population that you can recruit from.

What do you say to people who charge that this is all overblown?

… Groups — we’ll call them violence entrepreneurs, the violent extremists who want to tear everything down and want to institute their own radical vision of society — they benefit from the element of surprise, right? They want people to be confused when violence starts happening…. Which is why people who lived through the start of the violence in Sarajevo or Baghdad or Kyiv, they all say that they were surprised. And they were surprised in part because they didn’t know what the warning signs were.

But also because people had a vested interest in distracting them or denying it so that when an attack happened, or when you had paramilitary troops sleeping in the hills outside of Sarajevo, they would make up stories. You know, “We’re just doing training missions”…

I wish it were the case that by not talking about it we could prevent anything from happening. But the reality is, if we don’t talk about it, [violent extremists] are going to continue to organize, and they’re going to continue to train. There are definitely lots of groups on the far right who want war. They are preparing for war. And not talking about it does not make us safer.

What we’re heading toward is an insurgency, which is a form of a civil war. That is the 21st-century version of a civil war, especially in countries with powerful governments and powerful militaries, which is what the United States is. And it makes sense. An insurgency tends to be much more decentralized, often fought by multiple groups…. Sometimes they coordinate their behavior. They use unconventional tactics. They target infrastructure. They target civilians. They use domestic terror and guerrilla warfare. Hit-and-run raids and bombs.

We’ve already seen this in other countries with powerful militaries, right? The IRA took on the British government. Hamas has taken on the Israeli government. These are two of the most powerful militaries in the world….

Here it’s called leaderless resistance. That method of how to defeat a powerful government like the United States is outlined in what people are calling the bible of the far right: “The Turner Diaries,” which is this fictitious account of a civil war against the U.S. government. It lays out how you do this. And one of the things it says is, do not engage the U.S. military. You know, avoid it at all costs. Go directly to targets around the country that are difficult to defend and disperse yourselves so it’s hard for the government to identify you and infiltrate you and eliminate you entirely.

Are these the things that will be or just that may be?

I can’t say when it’s going to happen. I think it’s really important for people to understand that countries that have these two factors, who get put on this watch list, have a little bit less than a 4 percent annual risk of civil war. That seems really small, but it’s not. It means that, every year that those two factors continue, the risk increases.

The analogy is smoking. If I started smoking today, my risk of dying of lung cancer or some smoking-related disease is very small. If I continue to smoke for the next 10, 20, 30, 40 years, my risk eventually of dying of something related to smoking is going to be very high if I don’t change my behavior.

I think that’s one of the actually optimistic things: We know the warning signs. And we know that if we strengthen our democracy, and if the Republican Party decides it’s no longer going to be an ethnic faction that’s trying to exclude everybody else, then our risk of civil war will disappear. We know that. And we have time to do it. But you have to know those warning signs in order to feel an impetus to change them.

Goodbye Norms, Hello Power

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Ezra Klein points out that when Senator McConnell refused to have the Senate consider a Democrat’s Supreme Court nomination and then rushed through a Republican’s, nothing he did was “against the rules”. That doesn’t mean Washington is the same as before:

McConnell … didn’t steal any seats. Nothing he did was against the rules, which was why Democrats found themselves powerless to stop him. Liberals, in their anger, have too often ignored the logic of McConnell’s actions. He understood what too many have ignored: America’s age of norms is over. This is the age of power. And there’s a reason for that.

Let’s start here: The Supreme Court has changed. In the ’50s and ’60s, you would have had a hard time inferring a justice’s political background from his votes, as this analysis by Lee Epstein and Eric Posner shows. In the ’90s, Byron White, a Democratic appointee, had a more conservative voting record than all but two of the Republican-appointed justices — Antonin Scalia and William Rehnquist. John Paul Stevens, an anchor of the court’s liberal wing until his retirement in 2010, was appointed by Gerald Ford, a Republican.

But this record of independence was understood, by the parties that produced it, as a record of failure. The vetting process by which nominees are chosen was revamped to all but guarantee ideological predictability. In recent years, “justices have hardly ever voted against the ideology of the president who appointed them,” Epstein and Posner find.

… Ideological polarization is colliding with America’s peculiar political institutions…. Our political system is not designed for political parties this different…. It wasn’t designed for political parties at all. The three branches of our system were intended to check each other through competition. Instead, parties compete and cooperate across branches, and power in one can be used to build power in another — as McConnell well understood.

The Supreme Court is a strange institution — the final word on the law, but with no way to enforce its decisions; clearly political, but supposed to stand above politics; composed of nine bickering individuals, but posing as the impartial voice of the Constitution — and we have papered over its peculiarities with traditions of continuity and restraint. We ask senators to judge nominees by their qualifications, not their ideas. We ask justices to uphold past decisions they believe are wrong, even immoral. At least, we did. In recent years, the political importance of the court has overwhelmed the norms that (somewhat) insulated it from politics.

As I wrote: “There is perhaps no single vote members of the U.S. Senate take with as much long-term ideological importance than that of a lifetime appointment to the Supreme Court, and asking them to keep that vote, and that vote alone, separate from the ideological promises they make to their voters, and to themselves, is bizarre.” The old norm worked when party conflict was mild enough to create a court that felt, and perhaps was, largely nonpartisan. But those days are long gone.

Making matters worse is that the Supreme Court has gone from being undemocratic to being anti-democratic. Lifetime appointments are iffy under the best of circumstances, but the vagaries of retirements and deaths have given Republicans a control that makes a mockery of the public will. Five of the court’s six Republican justices were appointed by presidents who initially took office after losing the popular vote (and, in the case of George W. Bush, after a direct intercession by five of the court’s conservatives in Bush v. Gore). D____ T____ was able to make more appointments in one term than Barack Obama was able to make in two.

You might think that the minoritarian nature of this Supreme Court would produce a restrained majority, one fearful of falling too far afoul of public opinion. It has not. To read the flurry of decisions and concurrences and dissents in Dobbs is to read less about abortion and rights than you might expect. Much of the text is a debate over the legal principle of stare decisis, which directs the court to respect precedent when making decisions.

Stare decisis helps solve a particular problem for the Supreme Court, which must prove itself an institution operating across time, not simply an amalgamation of nine voices at any given moment. When it resists the impulse to overturn past decisions, the court builds in a continuity beyond what the opinions of its members would offer.

Roe was already revisited, in the 1992 Casey decision, and left mostly standing. Under the norms that have governed the court for decades, Roe should have been safe, not because the majority agrees with it today, but because the Supreme Court does not upend settled law based on what the majority believes today.

This is the subject of Chief Justice John Roberts’s disappointed concurrence. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.” The dissent of the liberals thrums with even deeper anger: “Here, more than anywhere, the court needs to apply the law — particularly the law of stare decisis.”

But stare decisis, as the justices know far better than I do, is not a law. And so, in his majority opinion, Samuel Alito brushes it aside….

The argument Alito makes throughout his opinion is simple: The court can err. When it has erred, it must correct itself. Make all the fancy arguments about stare decisis you want, but if a decision is wrong, then it’s wrong, and it must be revisited. To take his perspective for a moment: There is something maddening about being appointed to a seat on the land’s highest court but told to leave standing the decisions you and four of your colleagues consider most noxious.

On some level, he is right. Stare decisis makes little sense. The problem is that, without it, the Supreme Court itself makes even less sense. It is just nine costumed political appointees looking for the votes they need to get the outcomes they want. And the further we travel down that road, the more the mystique that sustains the court dissolves. There is no rule, really, that the Supreme Court must be obeyed as the final word in constitutional interpretation — that, too, is a norm, and one that the court has no power to enforce. If all the Supreme Court is left with are the rules, soon enough there will be no Supreme Court to speak of.

So what would it look like to rebuild the rules and norms of the Supreme Court so they made sense in a polarized era — so that it could be an institution that moderated our political conflicts, rather than worsening them? It got little notice, but there was, recently, a thorough and important effort to think through that question. It will be the subject of next week’s column.

Unquote.

If what Mr. Klein says in his next column is worth sharing, I will.

If Biden Knew Now What He Didn’t Know Then

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If a Democrat as audacious as Mitch McConnell was president, they’d point out we increased the size of the Supreme Court to 9 justices in 1869 because there were 9 federal judicial circuits. The population was 38 million. Now that there are 13 circuits and the population is 338 million, the president would say we need 13 justices. The president would deny any other motive and Democrats would immediately add 4 Democrats to the Court. But that’s not the president we have.

How bad is it? How bad will it get? Brian Beutler of Crooked Media lays it out in an edition of his Big Ten newsletter:

Sometimes I wonder what would happen if we could travel back in time to 2019 or early 2020 and tell Joe Biden he’d be the next president, but that under the governing approach he’d laid out for primary voters—pro-filibuster, anti-court reform, conciliatory to a fault with the GOP—he’d oversee the abolition of the right to abortion, the hollowing out of the regulatory state, the imposition of an imaginary constitutional right to concealed carry, the disintegration of his policy agenda, an inability to marshal a federal response to a violent coup, and perhaps, right before his re-election campaign, the constitutionalization by five rogue Supreme Court justices of the January 6 strategy to steal elections for Republican candidates. 

What if anything would he do or say differently? … If Biden had rethought his institutionalism, what different steps would he have taken to rally Democrats around a new and (by necessity) more partisan approach to governing, to insure against rapid democratic backsliding and maybe even the end of the republic?

The answer may actually be “none.” All of these things have come to pass, and Biden still at least claims faith in the institutions that are steering the country toward an authoritarian takeover. 

But I suspect this is not the presidency Biden wanted or imagined for himself. I think he really did want to save the country … and preside over an American renewal. I think (because nothing else really makes sense) that he drove himself into a cul-de-sac by running on the idea that his victory would largely solve these problems automatically, that retrofitting the country’s democracy wouldn’t require using carrots and sticks and tireless persuasion to change what it means to be a Democrat. That as a calm, unimpassioned figure, his mere presence would quiet national unrest and refasten the bonds that used to hold the country together. By the time he realized he’d handed Joe Manchin and Kyrsten Sinema all the justifications they’d need to stand in the way of responding to new threats, it was too late.

Obviously this is a multi-layered counterfactual, of limited probative value. Maybe if Biden had been open to more procedurally radical ideas, he would’ve lost the election; maybe no amount of cajoling from the leader of the party—no matter how early and heartfelt and persuasive—would’ve changed what Manchin and Sinema thought they could get away with. If you’re intent on concluding that Biden played a bad hand perfectly, and we were always destined for the abyss, it isn’t hard to reason your way there.  

But the problems swallowing Biden’s presidency were easily foreseeable. For one thing, I foresaw them! In October 2019, I wrote that candidates who cling, like Biden, “to the view that a golden era of compromise will dawn once T____ is gone… will lock themselves into a mode of governing that can not work anymore. Their supporters and intra-party critics will be demoralized, their presidencies will stagnate, and they will waste precious time grasping for a better approach.”

Around the same time, I pleaded with Democrats to begin leveling with their voters about the dangers of the Supreme Court, and the need to dilute its power, because, “If Dems don’t preemptively expand the courts, Republican judges, with their lifetime appointments, can simply wait until the elected branches are divided again and then implement the disastrous judicial agenda they’ve been building toward for 40 years.”

That actually proved a little optimistic, because what happened in reality is those justices waited until the Democratic Congress gave the high sign that it would under no circumstances intervene to check them, and they got to work right away….

Obviously we can’t go back to 2019 to travel roads not taken, we can only move forward from where we are. That’s why I’ve been going on for months about what Democrats should do if and when the Supreme Court overturns Roe v. Wade. Well, that happened a week ago now, but the simple idea remains the same: Level with voters about the party’s current limitations, stemming from its narrow majorities, and make a simple promise to codify Roe as a first order of business next year if voters manage to give them two more Senate seats and a House majority. 

…but at the same time I know that even on the off chance that this strategy works out perfectly—that Democrats make the midterms a referendum on Roe, and win the majorities they need to codify it—we’ll still be plagued by those earlier failures. 

Without movement to reform the courts, it’s easy to see how a hard fought victory could turn pyrrhic. If Dems codify Roe in January 2023, without taking any steps to insulate it from the illegitimate judiciary, I give it a few weeks before Republicans find a corrupt judge, probably a T____ judge, to enjoin it nationwide on some laughable pretext. I’d give it better-than-even odds that this same Supreme Court would make up a basis for voiding it. 

That doesn’t mean the thing I keep badgering Democrats to do isn’t worth it….It’s easy to get yourself spun up about how things might go wrong, and then use the likelihood of future setbacks as an excuse to do nothing now. Even if Democrats never get that court-reform religion, codifying Roe next year would be better than retreating tactically. If a judge enjoins it, that’s a new opportunity for the same Democratic majority to consider checking and balancing the judiciary.

But Democrats aren’t going to get there so long as the Democratic president is aggressively opposed to expanding the court. The Dobbs ruling didn’t change their minds, the subsequent opinion stripping EPA of the power to regulate climate pollution didn’t change their minds. Why would a ruling that voids the Women’s Health Protection Act change their minds? Their minds will start to change when the leadership stops being scared of going to war with the courts. I gather they’re scared that if they blur the abortion issue with the cause of court reform, the public will reject it. But the thing to do then isn’t to say ‘I’m not for expanding the court,’ it’s to say the court has lost its legitimacy, and it needs to be restored one way or another.

I guess what I’m trying to get across is that it’s critically important for Biden and Dems to understand what has happened to them, why it happened, and to abandon the disastrous thinking that led them here. 

Personally, I think someone with Biden’s ear should tell him he’s perhaps four months away from going down in history as the president who lost democracy without throwing even a half-hearted punch.

On Friday, this same rotten court announced that it will hear a case that was cooked up specifically to constitutionalize the GOP’s January 6 strategy for stealing elections. Needless to say, if the Alito 5 rule the way D____ T____ wants them to rule (and they very well might) that’s likely game over for the republic.

And the worst part is, that isn’t the kind of wreckage that Democrats can fix by codifying this or that. Democrats have to expand the Court before these ghoulish justices hear or decide that case, or they will corrupt the 2024 election, and we’ll likely never get another chance.

Mr. Beutler continues here.

Two Nations, Not One? Or One Under Reactionary Control?

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It’s no secret that the division of America into blue Democratic states and red Republican ones roughly corresponds to the two sides in the Civil War. It’s also pretty clear that the Civil War never quite ended. Ronald Brownstein of The Atlantic says we should assume the blue/red division will become more pronounced in the coming years:

In a private newsletter that he writes for a small group of activists, [Michael Podhorzer, a longtime labor union political strategist] recently laid out a detailed case for thinking of the two blocs as fundamentally different nations uneasily sharing the same geographic space.

… Podhorzer writes: “In truth, we have never been one nation. We are more like a federated republic of two nations: Blue Nation and Red Nation. This is not a metaphor; it is a geographic and historical reality”.

To Podhorzer, the growing divisions between red and blue states represent a reversion to the lines of separation through much of the nation’s history. The differences among states [today], he writes, are “very similar, both geographically and culturally, to the divides between the Union and the Confederacy. And those dividing lines were largely set at the nation’s founding, when slave states and free states forged an uneasy alliance to become ‘one nation.’”

Podhorzer isn’t predicting another civil war …, but he’s warning that the pressure on the country’s fundamental cohesion is likely to continue ratcheting up in the 2020s. Like other analysts who study democracy, he views the faction that now dominates the Republican Party—what he terms the “MAGA movement”—as the U.S. equivalent to the authoritarian parties in places such as Hungary and Venezuela. It is a multipronged, fundamentally antidemocratic movement that has built a solidifying base of institutional support through conservative media networks, evangelical churches, wealthy Republican donors, GOP elected officials, paramilitary white-nationalist groups, and a mass public following. And it is determined to impose its policy and social vision on the entire country—with or without majority support. “The structural attacks on our institutions that paved the way for T____’s candidacy will continue to progress,” Podhorzer argues, “with or without him at the helm.”

All of this is fueling what I’ve called “the great divergence” now under way between red and blue states. This divergence itself creates enormous strain on the country’s cohesion, but more and more even that looks like only a way station. What’s becoming clearer over time is that the [Republican Party] is hoping to use its electoral dominance of the red states, the small-state bias in the Electoral College and the Senate, and the GOP-appointed majority on the Supreme Court to impose its economic and social model on the entire nation—with or without majority public support. As measured on fronts including the January 6 insurrection, the procession of Republican 2020 election deniers running for offices that would provide them with control over the 2024 electoral machinery, and the systematic advance of a Republican agenda by the Supreme Court, the underlying political question of the 2020s remains whether majority rule—and democracy as we’ve known it—can survive this offensive….

The hardening difference between red and blue, Podhorzer maintains, “empowers” the 10 purple states (if you include Arizona and Georgia) to “decide which of the two superpower nations’ values, Blue or Red, will prevail” in presidential and congressional elections. And that leaves the country perpetually teetering on a knife’s edge: The combined vote margin for either party across those purple states has been no greater than two percentage points in any of the past three presidential elections, he calculates.

The increasing divergence—and antagonism—between the red nation and the blue nation is a defining characteristic of 21st-century America. That’s a reversal from the middle decades of the 20th century, when the basic trend was toward greater convergence.

Mr. Brownstein then devotes several paragraphs to describing differences between the two parts of the country. The blue states are richer, healthier, better educated and more productive than the red states, by all kinds of measures, the same way cities in red states tend to be richer, healthier, better educated and more productive than their rural surroundings. Obviously, blue states and red states are also diverging in the kind of laws they’re passing: it’s easier to end an unwanted pregnancy in a blue state and easier to shoot a stranger in a red state. Mr. Brownstein continues:

To Podhorzer, the growing separation means that after the period of fading distinctions, bedrock differences dating back to the country’s founding are resurfacing. And one crucial element of that, he argues, is the return of what he calls “one-party rule in the red nation.”

… He documents a return to historical patterns from the Jim Crow era in which the dominant party (segregationist Democrats then, conservative Republicans now) has skewed the playing field to achieve a level of political dominance in the red nation far beyond its level of popular support. Undergirding that advantage, he argues, are laws that make registering or voting in many of the red states more difficult, and severe gerrymanders that have allowed Republicans to virtually lock in indefinite control of many state legislatures….

The core question that Podhorzer’s analysis raises is how the United States will function with two sections that are moving so far apart. History, in my view, offers two models.

During the seven decades of legal Jim Crow segregation from the 1890s through the 1960s, the principal goal of the southern states at the core of red America was defensive: They worked tirelessly to prevent federal interference with state-sponsored segregation but did not seek to impose it on states outside the region.

By contrast, in the last years before the Civil War, the South’s political orientation was offensive: Through the courts (the 1857 Dred Scott decision) and in Congress (the Kansas-Nebraska Act in 1854), its principal aim was to authorize the expansion of slavery into more territories and states. Rather than just protecting slavery within their borders, the Southern states sought to control federal policy to impose their vision across more of the nation, including, potentially, to the point of overriding the prohibitions against slavery in the free states.

It seems unlikely that the [today’s] Republicans installing the policy priorities of their preponderantly white and Christian coalition across the red states will be satisfied just setting the rules in the places now under their control. [Many believe] that the MAGA movement’s long-term goal is to tilt the electoral rules in enough states to make winning Congress or the White House almost impossible for Democrats. Then, with support from the GOP-appointed majority on the Supreme Court, Republicans could impose red-state values and programs nationwide, even if most Americans oppose them. The “MAGA movement is not stopping at the borders of the states it already controls,” Podhorzer writes. “It seeks to conquer as much territory as possible by any means possible.”

The model, in other words, is more the South in 1850 than the South in 1950…. That doesn’t mean that Americans are condemned to fight one another again as they did after the 1850s. But it does mean that the 2020s may bring the greatest threats to the country’s basic stability since those dark and tumultuous years.

Unquote.

For more on the defensive vs. offensive efforts of the Republican Party and the historical background in the South, see this column by Jamelle Bouie of the New York Times. He says this is the party’s goal:

A government of reactionaries, by reactionaries and for reactionaries. Or, put a little differently, Heads we win, tails you lose.

“One of the Most Intellectually Dishonest and Poorly Argued Decisions in American Judicial History”

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So writes Saul Cornell, professor of history at Fordham University and the author of “A Well-Regulated Militia: the Founding Fathers and the Origins of Gun Control in America”:

In a 6–3 decision …, the Supreme Court struck down New York’s century-old gun law against concealed carry on [June 23rd]. New Yorkers and residents of a handful of other states and the District of Columbia—which had more strictly regulated who can have a concealed-carry permit—must now accept the type of laws popular in Texas and other red states. The decision was hardly a surprise to court watchers, but the opinion is nonetheless troubling on many levels.

The fact that this opinion was written by Justice Clarence Thomas, an originalist so rigid in his thinking that Justice Antonin Scalia once used him as a foil to distinguish his respect for precedent—”I’m an originalist and a textualist, not a nut,” Scalia quipped— contrasting the burn-it-all-down approach favored by his laconic colleague. Thomas has long been a proponent of supersizing the Second Amendment and has argued—against strong statistical evidence—that lower courts were treating the Second Amendment as a second-class right.

Thomas and his fellow originalists have set out to analogize the Second Amendment to core free speech rights, a bizarre legal analogy with little foundation in either legal history or tradition. In fact, guns have generally been treated as a form of property under American law for more than three centuries, a fact that appears to have escaped the notice of Thomas and the court’s newest originalists despite their professed commitment to an interpretive approach that focuses on history, text, and tradition.

Ultimately, the majority opinion in NYSRPA v. Bruen is one of the most intellectually dishonest and poorly argued decisions in American judicial history. Indeed, with little sense of irony, Thomas even quotes Chief Justice Roger B. Taney’s infamous opinion in Dred Scott approvingly, not only treating it as good legal authority but suggesting that the author of the worst decision in American law understood the Second Amendment better than any other judicial figure in American history. Turning to Taney for judicial inspiration would have once ended a judge’s career, but the court’s new originalist majority appears most of the time to be making history by inventing it, instead of by interpreting the law.

The old originalism of Robert Bork and Chief Justice William Rehnquist sought to use history to constrain judicial discretion and activism. The new originalism favored by Thomas and his fellow originalists has embraced judicial activism on steroids. Indeed, the court’s current use of originalism more clearly resembles an act of ventriloquism in which old texts are pressed into the service of modern agendas with little regard to how they were read at the time they were written. The new originalism, including the Bruen decision, turns historical actors into little more than stage dummies for the justices to project their own modern values and ideas onto the past.

One of the most remarkable features of Justice Stephen Breyer’s trenchant dissent in Bruen is his frank assessment of the appalling quality of the history being pedaled by his colleagues. Calling out the justices for engaging in “law office history,” a degraded form of legal analysis that warps history to fit the desired ends favored by a judge or justice, is something scholars have criticized the courts—including the Supreme Court—for practicing with some frequency. Still, it is unprecedented for a serving justice to hurl this type of accusation at colleagues sitting on the bench, and Breyer did just that. It is hard to dispute Breyer’s characterization of his colleagues given that Bruen is an opinion filled with legal and historical errors that all cut in the same direction, expanding gun rights by rewriting the American past.

To illustrate the shocking and amateurish use of history in Bruen, one need only examine the way Thomas ignored and distorted the evidence of robust gun regulation during Reconstruction, the period of history that he and other originalists have claimed is the key to understanding the scope of legitimate gun regulation by states and localities. Thomas reluctantly conceded that Reconstruction-era Texas had laws of similar scope to New York’s challenged laws. Yes, once upon a time Texas led the nation in enacting strong gun regulation!

Thomas, though, falsely claimed Texas was an outlier and, hence, that its evidence could be discarded. Similarly, Thomas discounts strong gun regulations in the Western United States because these too were unrepresentative outliers. In the Thomas originalist universe, apparently no amount of evidence is enough to support gun control, but no amount of evidence is too little to legitimate gun rights claims. In fact, millions of Americans were living with gun laws at least as restrictive as the New York law at issue in Bruen for many years during the period of history Thomas contends is crucial to understanding the application of the Second Amendment to states and localities.

Just looking at the history of firearms law in nation’s largest cities undermine the central claim in Bruen. As the table below shows, all of the nation’s largest cities were living under some form of restrictive public carry regime by the end of the 19th century. Many of these laws were enacted during Reconstruction, or soon after. Thomas not only ignores this evidence, but he also ignores recent scholarship showing that these laws were enforced in a racially neutral fashion for decades before white supremacists turned them against Black people.

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Unfortunately, Bruen’s level of intellectual dishonesty and ignorance of basic legal historical method and well established facts easily located in readily accessible sources further undermines the legitimacy of the court at a moment when it can ill afford any further erosion in its standing. Bruen may be a victory for gun rights advocates, but it is another example of a court in serious intellectual and moral decline.