Whereof One Can Speak 🇺🇦

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According to a Majority of the Supreme Court, the Earps and Doc Holliday Were the Bad Guys at the O.K. Corral

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The Smithsonian Magazine offers a brief history lesson regarding gun control:

Marshall Virgil Earp, having deputized his brothers Wyatt and Morgan and his pal Doc Holliday, is having a gun control problem. Long-running tensions between the lawmen and a faction of cowboys … will come to a head over Tombstone’s gun law.

The laws of Tombstone at the time required visitors, upon entering town to disarm, either at a hotel or a lawman’s office. Residents of many famed cattle towns, such as Dodge City, Abilene, and Deadwood, had similar restrictions. But these cowboys had no intention of doing so as they strolled around town with Colt revolvers and Winchester rifles in plain sight…

When the Earps and Holliday met the cowboys on Fremont Street in the early afternoon, Virgil once again called on them to disarm. Nobody knows who fired first….

The “Old West” conjures up all sorts of imagery, but broadly, the term is used to evoke life … in small frontier towns – such as Tombstone, Deadwood, Dodge City, or Abilene, to name a few. One thing these cities had in common: strict gun control laws.

… Frontier towns by and large prohibited the “carrying of dangerous weapons of any type, concealed or otherwise, by persons other than law enforcement officers.” Most established towns that restricted weapons had few, if any, killings in a given year.

But Justice Clarence Thomas and his reactionary colleagues have their own view of history. From Talking Points Memo:

Thomas, writing for the majority, slapped down New York’s 100-year-old concealed carry licensing scheme Thursday on the grounds that it has no historical analogue. [Wait, doesn’t a law that’s 100 years old have some history on its side?]

Government interest — like protecting the safety of its citizens — is not enough to get around the all-expansive Second Amendment, he writes. To be legitimate, a gun regulation must have a historical cousin….

The notion is farcical on its face: there must be some 18th or 19th century law mirroring any modern-day gun regulation, even for weapons that the people of that time could not have imagined existing?

Justice Breyer, joined by Justices Sotomayor and Kagan, focuses his dissent on the patent ludicrousness of determining constitutional rights solely through historical precedents.

“Will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?” he ponders, before sketching out his argument that his conservative colleagues have done just that.

Breyer lays out his own list of cases ranging from English precursors to early American laws all the way up through U.S. law in the 20th century. He lists cases that he argues support New York’s licensing scheme, many of which the conservative majority found some reason to reject: “too old,” “too recent,” “did not last long enough,” “applied to too few people,” “enacted for the wrong reasons,” “based on a constitutional rationale that is now impossible to identify,” “not sufficiently analogous,” Breyer reels off.

“At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd,” he writes….

[This decision] rings similar to Justice Samuel Alito’s draft opinion overturning abortion rights, which roots much of its argument in cases where abortion access was not protected in the country’s earliest days, and before. He asks [Americans] to unflinchingly accept that a constitutional right for women is only valid if it existed in a time when women were considered much less than full citizens.

To sum up, David Roberts on Twitter:

[The Supreme Court] is just going to keep doing stuff like this, worse & worse & worse….A tiny group of hyper-ideologues, forcing the rest of us to live medievally. That’s the current status quo trajectory….

“Neither the broad American public nor the center-left Democratic & media establishment understands or appreciates how [fucking] lunatic the right has gotten” is something I’ve been saying for two decades now. Was always true & still is.

A Few Immediate Reactions to Our Renegade Right-Wing Supreme Court’s Latest Dictate

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From Mark Joseph Stern of Slate:

The Supreme Court’s fourth and final opinion of the day is in Bruen. In a 6–3 opinion, [Clarence] Thomas writes that New York’s strict limits on the concealed carry of firearms in public violates the Second Amendment.

Thomas’ opinion for the court dramatically expands the scope of the Second Amendment, blasting past ostensible restrictions laid out in Heller to establish a new test that will render many, many more gun control laws unconstitutional.

Before today, about 83 million people—about one in every four Americans—lived in a state that strictly limited concealed carry to those who had a heightened need for self-defense. Now, zero people live in such a state.

Thomas’ opinion for the court suggests that judges may NOT consider empirical evidence about the dangers posed by firearms when evaluating gun control laws. They may only ask whether a modern regulation has some analogue that is rooted in American history.

It’s difficult to overstate how devastating Thomas’ opinion is for gun control laws. This goes so, so far beyond concealed carry. The Supreme Court has effectively rendered gun restrictions presumptively unconstitutional. This is a revolution in Second Amendment law.

From Paul Waldman of The Washington Post:

Just getting started reading the gun decision, but every sentence so far makes clear what a joke and a scam “originalism” is. It continues to amaze me that anyone takes it seriously.

It’s just one assertion after another about how what people thought in 1790 is sacrosanct, except when it isn’t, but also here’s a novel way to think about 1790, but also that doesn’t matter either. It’s Calvinball as legal reasoning. The bad faith is just incredible.

[Note: Calvinball is a game invented by Calvin and Hobbes. Calvinball has no rules; the players make up their own rules as they go along.]

From yours truly and Matt from the UK:

Isn’t the entire problem here that you’re paralysed by your constitution, because it makes the question into exegesis of this supposedly infallible document, rather than actually analysing the problem and considering what to do about it?

Excellent point. We are paralyzed by a document that’s 230 years old and difficult to amend. But we are also paralyzed by right-wing judges (i.e. politicians) who use this vague notion of “originalism” (what the founders intended) to justify their contemporary political beliefs.

Yes, but then ‘originalism’ is possible because of the written form. Without one, my country has no equivalent paralysis. Plenty of our own constitutional problems, of course, but they don’t really result in regular spree killings in schools.

Yes, having a written constitution is clearly a constraint, being old & difficult to amend adds to that basic constraint, and having a Supreme Court with too much power & too many political hacks issuing dictates makes it even worse. (My answer assumes there can be degrees of paralysis.)

When Fascists Get Together (Texas-Style)

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Every time I hear Republicans talk about Democrats, it sounds like Superman’s Bizarro World, where Mafia wise guys are upstanding citizens and only the cops make money off extortion, theft, drugs and gambling.

Thus, the Texas Republican Party held a convention last week. To say the least, it wasn’t pretty. From the Texas Tribune:

At their first in-person convention since 2018, Texas Republicans on Saturday acted on a raft of resolutions and proposed platform changes to move their party even further to the right. They approved measures declaring that President Joe Biden “was not legitimately elected” and rebuking Sen. John Cornyn for taking part in bipartisan gun talks. They also voted on a platform that declares homosexuality “an abnormal lifestyle choice” and calls for Texas schoolchildren “to learn about the humanity of the preborn child.”

The actions capped a convention that highlighted how adamantly opposed the party’s most active and vocal members are to compromising with Democrats or moderating on social positions, even as the state has grown more diverse and Republicans’ margins in statewide elections have shrunk slightly in recent years.

Votes on the platform were collected at the end of the party’s three-day convention in which party activists moved to add multiple items to the official Texas GOP platform….Those will now need to be tallied and certified in Austin, but it is rare for a plank to be rejected, according to party spokesperson James Wesolek.

The convention reinforced the extent to which [you know who’s] unfounded claims of a stolen election continue to resound among the party faithful…

The hall … in Houston filled with boos on Friday as [Sen. Cornyn] tried to explain the legislation, which would allow juvenile records to be incorporated into background checks for gun buyers younger than 21 and encourage “red flag” laws that would make it easier to remove guns from potentially dangerous people, along with more funding for school safety and mental health.

Meanwhile, the party platform vote on Saturday by roughly 5,100 convention delegates would argue that those under 21 are “most likely to need to defend themselves” and may need to quickly buy guns “in emergencies such as riots”….

  • Requiring Texas students “to learn about the humanity of the preborn child,” including teaching that life begins at fertilization and requiring students to listen to live ultrasounds of gestating fetuses.
  • Amending the Texas Constitution to remove the Legislature’s power “to regulate the wearing of arms, with a view to prevent crime.”
  • Treating homosexuality as “an abnormal lifestyle choice,” language that was not included in the 2018 or 2020 party platforms.
  • Deeming gender identity disorder “a genuine and extremely rare mental health condition,” requiring official documents to adhere to “biological gender,” and allowing civil penalties and monetary compensation to “de-transitioners” who have received gender-affirming surgery, which the platform calls a form of medical malpractice.
  • Changing the U.S. Constitution to cement the number of Supreme Court justices at nine and repeal the 16th Amendment of 1913, which created the federal income tax.
  • Ensuring “freedom to travel” by opposing Biden’s Clean Energy Plan and “California-style, anti-driver policies,” including efforts to turn traffic lanes over for use by pedestrians, cyclists and mass transit.
  • Declaring “all businesses and jobs as essential and a fundamental right,” a response to COVID-19 mandates by Texas cities that required customers to wear masks and limited business hours.
  • Abolishing the Federal Reserve, the nation’s central bank, and guaranteeing the right to use alternatives to cash, including cryptocurrencies.

Not every far-right proposal was advanced. The party chair … ruled that a motion to defend the due process rights of those who rioted at the Capitol on Jan. 6, 2021, and to “reject the narrative” that the riot was an insurrection was out of order and could not be voted on….

Republicans have controlled every statewide elected office in Texas since 1999 and both houses of the Legislature since 2003, so the wishes of the party’s populist, pro-Trump base inevitably affect actions taken in Austin….

Before delegates voted on the platform, party activists delivered fiery speeches attacking Democrats.

“They want to destroy the racial progress we have made by saying that we are a racist nation,” said Robin Armstrong, a Black doctor in Texas City who treated COVID patients with unapproved drug therapies touted by T____, including hydroxychloroquine. “The Democratic Party are now a party of chaos. They benefit from causing us to question the foundations that this country was built upon. The misery, the crime, the drug abuse, the high gas prices are all by design, so that the Democratic Party can permanently transform society….”

The Republican-dominated Legislature last year passed new voting restrictions that prompted Democratic lawmakers to flee to Washington to break quorum in an ultimately futile protest. However, Republican leaders said repeatedly on Saturday that it was the other side that was a threat to fair elections.

“The Democrats wants three things: Their goals are to steal elections, suppress Republican votes and federalize elections,” said Cindy Siegel, the chairperson of the Harris County GOP….  U.S. Rep. Jodey Arrington, of Lubbock, described an “unprecedented, unmitigated, self-inflicted disaster that is creating the worst humanitarian and national security threat to the American people in the history of our southern border,” adding, “this is an invasion, folks.”

“President Biden has ceded control of our borders to paramilitary, narco-terrorist cartels,” Arrington told delegates.

The mood of this convention was not hopeful. The themes ran dark, and activists spoke in apocalyptic, even cataclysmic, terms about the state of the country.

“Everything is topsy-turvy. What’s right is wrong and what’s wrong is right,” said state Sen. Donna Campbell, an emergency room doctor in New Braunfels…. “Our country is on a trajectory to self-destruct, unless we change the direction”….

“I believe that in the sovereignty of God, you and I were purposely born into this moment, into this confusing time that we face,“ Campbell said. “We’re meant to be alive, at this time, right now, and here in this state.”

Unquote.

The Tribune article didn’t mention that convention attendees also want a vote on leaving the union and a constitutional amendment that would create their own version of the Electoral College (that would allow a minority of voters spread around the state to overcome urban votes from Democrats). From the Houston Chronicle:

We urge the Texas Legislature to pass a bill in its next session requiring a referendum in the 2023 general election for the people of Texas to determine whether or not the State of Texas should reassert its status as an independent nation.

The State Legislature shall cause to be enacted a State Constitutional Amendment creating an electoral college consisting of electors selected by the popular votes cast within each individual state senatorial district, who shall then elect all statewide office holders.

Our Interesting Times

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Millions of Democrats and millions of Republicans think our democracy, or what’s left of it, is fading away. But they don’t agree on what that means. From Paul Waldman of The Washington Post:

A new Yahoo News-YouGov poll asked people whether America is becoming a more or less democratic country, and 58 percent — including 60 percent of Democrats and 61 percent of Republicans — said it is becoming less democratic.

Even more alarming, 55 percent of Democrats and 53 percent of Republicans said it was likely that “America will cease to be a democracy in the future.”

Underneath that agreement, Democrats and Republicans think about both the threat and the solution in opposite ways. And in the near term at least, Republicans — who want to actively accelerate the destruction of American democracy (even if they describe what they’re doing as just the opposite) — have the upper hand.

… We don’t know what every respondent thinks when they hear the word “democracy,” and there will always be people ready to say everything is going to hell. But at the very least, the results suggest a deep well of pessimism about our political future.

I’ve seen it lately among my liberal friends, and perhaps you have, too. Even the ones whose work involves trying to improve the world are feeling something close to despair. What they see is a system that was already undemocratic, built on structures and practices such as the appalling inequality of the U.S. Senate (where 600,000 Wyoming residents have the same two votes as 40 million Californians), the filibuster, and gerrymandering, and is now under siege by a party that is eagerly nominating deranged conspiracy theorists and radical extremists to run that very system.

When liberals say they fear democracy will cease to exist, they’re responding to overwhelming evidence that the Republican Party, the beneficiary of all those advantages that enable its minority rule, has utterly abandoned any commitment to democracy, if Republicans ever had one to begin with.

Under the leadership of possibly [possibly ???] the most corrupt president in American history — still their god-king no matter how high his misdeeds pile up — Republicans justify a violent attempt to overturn a presidential election, spin insane fictions of voter fraud conspiracies, pass law after law to make voting harder, and cheer the use of state power to target their enemies.

Worst of all from the perspective of liberals, it seems to be working. A strategy of chaos, it turns out, is easier to implement than a strategy meant to shore up vulnerable institutions.

Democrats work diligently to devise procedures to make partisan mischief less effective and assiduously fact-check every preposterous GOP claim. And they worry it all might be for naught.

As for Republicans, when they say “democracy” might cease to exist, what do they mean? It’s hard to discern much beyond the idea that if Democrats win an election and try to implement the policies they got elected on, then democracy has been destroyed.

Remember that when Barack Obama was president, Republicans cried endlessly that every policy decision he made was “tyranny,” driven by his secret desire to destroy the country. The fact that his eight years as an ordinary center-left Democratic president didn’t actually destroy the country did not change their minds. The “tyranny,” as far as they were concerned, came from the simple fact that Democrats were in charge.

When they say they fear for democracy’s survival, what they’re afraid of is the idea that we might continue to have a competitive system, in which elections are contested, Democrats sometimes win, and when they do, they get to implement their policies.

One struggles to discern how much of this is sincere and how much is just a useful fiction. But my guess is that for the Republican elite it’s an act, and for their base it’s genuinely felt.

The rhetorical legal scam of “originalism” taught Republicans an important lesson: The more radical you want to be, the more useful it is to pretend your agenda is the truest manifestation of the divine will of the Framers. Grab a quote from the Federalist Papers or a letter James Madison wrote to his tailor, then brandish it as proof that the only course faithful to the Constitution is to destroy collective bargaining, flood the streets with military-style weapons, allow billionaires to buy elections, or whatever else it is that conservatives want to do.

If your agenda is the only living expression of the country’s sainted Founders and sacred texts, then any political victory by your opponents must by definition be a blow against the country and democracy itself.

While Republican leaders know it’s a con, the rank and file bought into it. And today they’ve convinced themselves that “democracy” means having elections overseen not by nonpartisan, independent civil servants but by the most partisan, conspiracy-addled right-wing extremists. Only that will ensure that Republicans always win, and only a system where Republicans always win is truly democratic.

If Republicans get their way, the liberals who fear democracy’s end will turn out to be right.

Unquote.

Another view is that we’ll keep democracy of a sort but it will be unstable. This appraisal is apparently from an article in Foreign Affairs that I couldn’t get to. It’s called “America’s Coming Age of Instability: Why Constitutional Crises and Political Violence Might Soon Become the Norm”:

Rather than autocracy, the United States appears headed toward endemic regime instability. Such a scenario would be marked by frequent constitutional crises, including contested or stolen elections and severe conflict between presidents and Congress (such as impeachments and executive efforts to bypass Congress), the judiciary (such as efforts to purge or pack the courts), and state governments (such as intense battles over voting rights and the administration of elections). The United States would likely shift back and forth between dysfunctional democracy and periods of competitive authoritarian rule during which incumbents abuse state power, tolerate or encourage violent extremism, and tilt the electoral playing field against their rivals.

Peter Turchin, who trained as a biologist but has since been investigating cycles in human history, has argued that political instability is a recurring phenomenon, in books like Ages of Discord: A Structural-demographic Analysis of American History. From his website:

Historical analysis shows that long spells of equitable prosperity and internal peace are succeeded by protracted periods of inequity, increasing misery, and political instability. These crisis periods—“Ages of Discord”—tend to share characteristic features, identifiable in many societies throughout history. Modern Americans, for example, may be disconcerted to learn that the US right now has much in common with the Antebellum 1850s and, even more surprisingly, with ancien régime France on the eve of the French Revolution. Can it really be true that our troubled age is nothing new, and that it arises periodically for similar underlying reasons? It can. Ages of Discord marshals a cohesive theory and detailed historical data to show that this is, indeed, the case. The book takes the reader on a roller-coaster ride through American history, from the Era of Good Feelings of the 1820s to our first Age of Discord, which culminated in the American Civil War, to post-WW2 prosperity and, finally, to our present, second Age of Discord.

Perhaps we today were destined to live in “interesting times”.

Merrick Garland Has To Get It Right This Time

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Merrick Garland’s Department of Justice failed to prosecute the Monster of Mar-a-Lago (aka a cancer on America) for obstruction of justice after he was removed from office, even though the Mueller report showed how guilty he was. The Attorney General is now getting a second chance. 

Neal Katyal, a former Acting Solicitor General of the United States, describes “the future criminal case against D____ T____”:

Congress and the Justice Department now find themselves in a complex dance, set to the tempo of the Jan. 6 hearings. The House select committee has already uncovered evidence suggesting that former President D____ T____ committed serious federal crimes.

Congress cannot bring criminal charges; the Justice Department must do so. And critics of the department are asking why it does not appear to be investigating these allegations. The hearings point to a potential answer: The committee is laying a foundation upon which prosecutors can build in a subsequent investigation.

And a subsequent investigation is virtually inevitable, given the evidence generated by the committee. How could Attorney General Merrick Garland ignore the facts the American people are now learning about?

…Mr. Garland has in the past been cagey about whether there is an investigation into the former president. Yet it’s unthinkable that the Justice Department should not pursue one.

A highly respected federal judge, David Carter, has already said in a published opinion that “the court finds it more likely than not that President T____ corruptly attempted to obstruct the Joint Session of Congress on Jan. 6, 2021.” Those are not easy words for the Justice Department to cast aside. If that doesn’t merit an investigation, it’s hard to think what should.

But we’ve seen no signs of such an investigation. Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry. Witnesses before grand juries wind up talking to the media, for example, or those witnesses may file court actions to try to block the investigation. None of that appears to have happened.

Then again, this isn’t a normal investigation. Mr. Garland has known from the start that Congress is investigating the whole set of facts involving an attack on its own seat of government, and he may have made the conscious choice to hold off until he sees what Congress has developed.

Public hearings serve a subtle function. They permit the minds of the American people to acculturate to the facts and evidence. By laying out the facts that explain what T____ did, the Jan. 6 hearings can in advance help acclimate the public to why the Justice Department has to take criminal action against the former president. The hearings may afford the department a deeper and public explanation of its reasoning than an indictment out of the blue would offer. Public sentiment of this kind could help insulate the department against a claim that it is politically motivated. These hearings may prove to be a bridge between the Justice Department and the public….

What would criminal charges against D____ T____ look like? Obstruction of an official proceeding is a serious offense that requires the prosecution to show that a defendant obstructed, or attempted to obstruct, an official proceeding and that the defendant did so corruptly. The official proceeding part of this is clear — by law, on Jan. 6, Congress and the vice president must certify the votes. There appears to have been an orchestrated plot by some to try to interfere with that certification — the question is really whether the former president was part of that plot. The committee has presented evidence suggesting that Mr. T____, along with the lawyer John Eastman, and perhaps others such as the White House chief of staff, Mark Meadows, and Jeffrey Clark, a former Justice Department official, attempted to interfere with the election certification on Jan. 6. Before the hearings, it was thought that Mr. T____’s defense against this charge is that he genuinely believed that he had won the election and wasn’t acting “corruptly.”

The testimony in last week’s hearing cast immense doubt on that claim. Mr. T____’s close ally, former Attorney General William Barr, testified that he told the president that arguments claiming he had won the election were “bullshit.” Mr. T____’s daughter Ivanka testified that she believed Mr. Barr. Mr. T____s own election data people told him the same. Mr. T____ might try to claim he still believed the nonsense, but such an argument would be difficult to make given the array of people who told him in no uncertain terms that he had lost. Mr. T____ persisted, despite the warnings, to try to interfere with the lawful transfer of power. This looks very much like an attempt to obstruct an official proceeding.

The Justice Department could also bring the charge of “conspiracy to defraud the United States.” A charge of conspiracy requires proof that two or more people agreed to defraud the country. A key feature of conspiracy charges is that the plot need not succeed — charges are tethered to the agreement to do something illegal, not to actually pull it off. Prosecutors need not wait until the bomb goes off (or in this case, until the election results are wrongfully thrown out) before bringing charges.

Here, Mr. T____ faces yet another problem: Even if we were to ignore Mr. Barr and others, and accept that Mr. T____ believed he had won the election, courts have ruled that a genuine but mistaken belief is not enough to defeat a conspiracy charge. Oliver North, for example, famously claimed he did not conspire to violate a particular foreign affairs law because he believed that law to be unconstitutional, but the courts threw that claim out. The law does not work that way, and it cannot work that way particularly when people who control the entire machinery of government advance such preposterous claims.

Finally, the Justice Department could bring seditious conspiracy charges. Such charges have already been used by the Justice Department against members of the Oath Keepers and the Proud Boys. This is one of the most serious charges in the federal criminal code, but it’s also the one that is the hardest for prosecutors to bring against Mr. T____.

The charge requires prosecutors to prove that two or more people agreed to use force to delay the execution of a law or to overthrow the government. Here, Mr. T____’s defense would be that while he may have wanted to delay certification of the election, he did not ever formally agree with someone else to use “force.” The communications uncovered by the committee, showing an agreement with Mr. Eastman and others, are not likely to reveal anything about force. As such, while the committee may call some of the invaders of the Capitol seditious conspirators, it is, under the present publicly known set of facts, unlikely to yield that criminal charge against the former president.

Mr. Garland has these charges to consider, and potentially others such as wire fraud, arising out of evidence the committee presented in the second hearing about Mr. Trump misleading his donors. Based on the evidence presented so far, it seems as if the most likely charges are obstruction of an official proceeding and conspiracy, and not seditious conspiracy.

The committee has done a masterful job of starting to present its case to the American people, who are, after all, the first audience for their argument. And it has done so at a time when inflation, war in Ukraine, reproductive rights, gun violence and climate change equally demand our attention.

But the only way we as Americans have control over the decisions of elected bodies and the president in each of these areas is through our votes. If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department….