The author may be contacted regarding this piece at JonWiener@hotmail.com.
In a brief filed in connection with an appeal to the Supreme Court in a
gun possession case, the Bush Justice Department, breaking with sixty
years of jurisprudence, asserts that individuals have a constitutionally
protected right to own firearms. Seeking to quiet ghosts of gun debates
past as the November elections approach, the Administration tries to
reassure us that this proposed sea change in American law would, if
realized, leave law enforcement and gun laws unaffected. But in doing
so, it elevates sophistry and doublespeak to a new art form.
In the case in question, a lower court held that a provision of the 1994
amendment to the gun control act prohibited one Timothy Emerson from
possessing a Beretta pistol, since he was under a domestic-violence
restraining order obtained by his wife. Even after a court issued the
restraining order, Emerson used the pistol to threaten his wife and
daughter as they entered his office to retrieve the daughter's shoes. In
his appeal, Emerson claimed that the restriction abridged his Second
Amendment rights. The Justice Department, in its brief to the High
Court, departed from its historical position and agreed that Emerson did
possess an individualized Second Amendment right. But in a legal
high-wire act, it argued that this right was nonetheless trumped by his
misconduct and that, therefore, the indictment should stand.
Gun control advocates criticized the inclusion of the constitutional
assertion in the department's brief as gratuitous. But on this they miss
the point. The real goal of Justice's new strategy is not to throw a
bone to the gun lobby but to mount a backdoor attack on the very
legitimacy of gun laws it doesn't like but doesn't have the guts, in the
current political climate, to try to repeal legislatively. For as the
Administration knows, elevating gun rights into the rarefied sphere of
constitutional rights would create new, perhaps insurmountable, legal
hurdles for existing gun violence statutes.
Individual rights, such as freedom of speech and religion, to which the
Attorney General claims gun rights are analogous, occupy a unique area
of American law. The Court has repeatedly held that legislative
encroachments in these areas are presumptively invalid unless narrowly
tailored to meet compelling government interests. On this basis, the
Court has invalidated laws in the areas of affirmative action, free
exercise of religion and freedom of speech. Recently, in Ashcroft v.
Free Speech Coalition, it held that a law prohibiting virtual child
pornography was too broadly drafted, and the putative harm it sought to
prevent too speculative to pass constitutional muster. Were the Court to
embrace the Bush view on the Second Amendment, the likely result would
be to invalidate many federal and state gun laws, like the popular Brady
law and the ban on assault weapons.
In passing the 1993 Brady Act, which is applied to the general
population to screen out felons and other miscreants from buying
firearms, the House and Senate judiciary committees did not consciously
undertake the exactingly narrow drafting requirements necessary to
overcome the constitutional hurdles placed on such rights as speech or
religion. Rather, they acted under the authority of the Constitution's
commerce clause, which gives Congress broad legislative discretion. And
while Justice's brief, arguing that the prohibition on gun possession by
those with domestic-violence restraining orders could pass the "narrow
tailoring" constitutional test it seeks generally for gun laws, may be
correct, it is unclear, even improbable, that the broader purpose of
laws like the Brady Act (background checks for everyone) could survive
Similarly, because the ban on military-style assault weapons, intended
to remove the tools of many gang-type street massacres, was broadly
drafted to apply to everyone, that law could be invalidated on the
grounds that it is not sufficiently tailored to prohibit access by those
with criminal records. So, too, could scores of state and local laws,
such as the ban on handgun possession in the District of Columbia. The
new proposal by Senators John McCain and Joseph Lieberman to apply
background checks at gun shows could also be constitutionally dead on
arrival should the Administration view of gun rights become law.
Indeed, this is not the first time since September 11 that the Attorney
General has catered to gun owners. In October, responding to gun lobby
paranoia about gun registries, he refused to give the FBI access to
records that could help it determine if post-September 11 detainees had attempted to purchase weapons.
Each year we lose roughly 28,000 people at the wrong end of a gun
barrel, nearly ten times the number of people who perished on September
11. As the Violence Policy Center has documented, Al Qaeda terrorist
training manuals note the ease with which one can obtain firearms in the
United States--like the .50-caliber rifles that can with precision blow
a nine-inch hole in a concrete wall from 100 yards. At a minimum,
criminals and terrorists will benefit from new defenses that gun
prosecutions violate constitutional rights as envisioned by the Bush
Justice Department. Prior to his plea agreement, attorneys for the
so-called American Taliban, John Walker Lindh, had already indicated his
intention to invoke such a defense on his behalf.
If, when the Attorney General is proclaiming about the need to restrict
Americans' civil liberties, he seeks to expand constitutional liberties
for gun owners, he should at least be straight with the American people
about the likely legal consequences and what it could mean for safety on
Do we want a Vice President who endorses illegal detention and torture of Palestinians? Anthony Cordesman, a national security type frequently deployed as a television pundit, recently posted a paper on the website for the Washington-based Center for Strategic and International Studies recommending that Yasir Arafat's Palestinian Authority engage in just these practices to repress the latest intifada.
"Halt civil violence," Cordesman counsels, "even if it means using excessive force by the standards of Western police forces." But this is only a warm-up. "Halt terrorist and paramilitary action by Hamas and Islamic Jihad," Cordesman continues, "even if this means interrogations, detentions, and trials that are too rapid and lack due process." Still not clear enough. "Effective counter-terrorism relies on interrogation methods that border on psychological and/or physical torture, arrests and detention that violate the normal rights of privacy, [with] levels of violence in making arrests that are unacceptable in civil cases, and measures that involve the innocent (or at least the not provably directly guilty) in arrests and penalties."
In other words, protected only by the weasel phrase "border on," Cordesman urges that Israel's security forces return to the torture techniques that were finally abandoned under High Court order a year ago. Joe Lieberman is one of the senators belonging to the CSIS Middle East Task Force. Thus far, despite explicit requests for comment, he has not disavowed Cordesman's prescriptions, which have been condemned by Amnesty International USA.
For two months now Israel has laid barbarous siege to Palestinians throughout the occupied territories. The Israeli Army is busily cordoning Palestinian areas behind trenches and barbed wire, making Gaza and the West Bank one vast prison--or rather, many separate prisons, all barred from communicating with one another.
The policy of "closure," initiated after the Gulf War, continued unabated during the so-called Oslo peace process, in violation of Israeli government obligations. The strategy of apartheid and imprisonment is now accelerating, accompanied by bombardment of heavily populated areas, as well as incessant attacks from settlers (all courtesy of the US government, as always, with vast new military subventions rolling in after the Al-Aksa intifada began).
Even the relatively better-informed mainstream accounts fail to convey the brutality of this policy. There are a number of excellent news outlets for those who want unjaundiced reporting. The website for Middle East Research and Information Project is trustworthy (www.merip.org), as is the Electronic Intifada (electronicintifada.net/new.html). For the latter, the intro essay by Nigel Parry gives a useful overview of media coverage. Electronic Intifada also has links to other sites, as does ZNet's Mideast Watch (www.zmag.org/meastwatch/meastwat.htm). Particularly comprehensive is Birzeit University's (www.birzeit.edu/links).
Five fine specimens of Meleagris gallopavo--wild turkey to you--wandered onto my property here in Humboldt County, Northern California, a few days ago. I assume they forgot to check the calendar. Under California fish and game regs, you can shoot them legally for two weeks around Thanksgiving. Out came my 12-gauge, and I loosed off a shot that at some 100 feet did no discernible damage, and after a brief bout of what-the-hell-was-that the turkeys continued to forage. A fusillade of two more shots finally brought down a fourteen-pounder. I hung him for four days, plucked him and by Thanksgiving's end he was history. This was all easier than sporting manuals suggest, where hunters take enormous trouble to decoy the turkeys with fake gobbles.
Wild turkeys haven't been seen in California since earlier in the Cenozoic era, but in recent years two ranchers in my valley imported a few and now they've begun to appear in our neighborhood in Humboldt County in substantial numbers. I've heard reports of flocks of up to a hundred wild turkeys fifteen miles up the Mattole River around Honeydew, an impressive quantity though still far short of the thousand birds counted in one day by two hunters in New England in the 1630s.
The speed with which New World foods spread across Europe and Asia is astounding. Cortez brought turkeys back to Europe from Mexico, and by the 1530s they were well-known in Germany and England. The Puritans had domestic turkeys with them in New England, gazing out at their wild relatives, offered by the Indians who regarded them as somewhat second-rate as food.
Of course, wild turkeys have many enemies aside from the Beast called Man. There are swaths of Humboldt and Mendocino counties where coyotes and mountain lions now hold near-exclusive sway. Ranchers running sheep used to hold off the coyotes with M-80 poison-gas canisters that exploded at muzzle touch, but these are now illegal, and the alternatives are either trapping, which is a difficult and time-consuming job, or getting Great Pyrenees dogs to guard the flock. But the coyotes are crafty and wait till the sheep have scattered, then prey on the unguarded half.
Gabbing on the phone to my friend Ford Roosevelt, who lives in Los Angeles, I mentioned my turkey kill, and he reacted with revulsion, not so much to the fate of Meleagris gallopavo but to the fact that I have a shotgun at all. I told Ford that it was this sort of city-slicker foolishness that cost Gore states like West Virginia, Tennessee, Arkansas and Ohio. Ford, a grandson of FDR, then disclosed that the Democratic National Committee had asked him to campaign in various states, including West Virginia. "Well Ford, didn't you find that the gun issue was on people's minds?" "Yes, as a matter of fact. I was talking to some miners and they brought it up. I told them that as far as I was concerned, guns should be banned altogether. They weren't pleased." "So it was you, Ford, who lost West Virginia." He didn't seem contrite.
In the end, after months of waffling, I violated my principles and went to the Million Mom March for gun control--make that "common-sense gun control." I've never liked maternalist politics: It r
Research assistance was provided by the Elections 2000 Fund of the Nation Institute.
If only Columbine High School had posted the Ten Commandments next to its football trophies, Eric Harris and Dylan Klebold would never have killed anyone.
When guns became the issue of the day,
Republicans, as is their custom, put
Their party right behind the NRA,
And shot themselves quite badly in the foot.
Dylan Klebold "is intelligent enough to make any dream a reality," a juvenile court counselor wrote last year.
A short walk from my home in New Haven stands the farm of that prototypical Connecticut Yankee, Eli Whitney. In 1798 Whitney hit on a bold new scheme: interchangeable parts for muskets.