Circular Firing Squad?

Screen shot from Facebook video of the February 23 Virginia Republican Party State Central Committee meeting.

The inner workings and various factions that make up Virginia’s Republican Party fascinate me, and I’ve been attending Tea Party meetings and following the debate between these factions pretty much since I moved to Hanover County in 2008. The short non-academic version is that a very active and motivated base has worked to take over the Virginia GOP for more than a decade. This base very much wants to enforce a kind of ideological purity that focuses far more on cultural issues than policy.

This intra-Party insurgency initially manifested itself in the capture of local Virginia GOP units by Tea Party activists after Barack Obama won the Presidency. Ideologically, this group is to the right of what I call “Chamber of Commerce” Republicans (defined as conservatives who want small government but want it to actually work). Think of this as the “conservatives lose elections because they’re not conservative enough” crowd.

They successfully won the 7th District Congressional nomination for Dave Brat over House Majority Leader Eric Cantor in 2014 because the very conservative Cantor was not conservative enough to suit them – these activists ousted a very powerful Congressman for ideological reasons. Brat went on to win the seat and served two terms before Abigail Spanberger won the seat in 2018. She held it in 2020, but narrowly.

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Blue Collar Billionaire

We’re at a place in American politics where conservative leaders make the claim the Republican Party represents regular Americans rather than Country Club elites.

This comes from a Senator who got his degrees from Princeton and Harvard. A Senator who ran to warm-weather Cancun from a winter disaster in his home State instead of volunteering to help out the…blue collar…workers in Texas who were freezing to death because the free-market policies he supports drive profits, not reliable utility services.

In support of someone who literally owns – and lives at – a country club.

Unlike Beto O’Rourke and Julian Castro.

Not to mention Alexandria Ocasio-Cortez.

COVID Common Sense? Or Covidiocy?

Mick Staton thinks it’s time to apply some “common sense” to Virginia’s coronavirus response. From the Bull Elephant:

In just over four months the number of confirmed covid-19 cases in Virginia has reached nearly 89,000.  Of those confirmed cases,  a little over 2,100 people have died [over 2200 now].  We can argue about inflated death numbers or under-counted people who have the virus but have never been tested all we want, but all of that is pure speculation, and cannot be quantified or counted.  People who feel sick are getting tested.  If you don’t feel sick and you test positive for the antibodies, do you really qualify as a victim of a disease you never knew you had?  For now, let’s just deal with confirmed numbers.

Virginia has a population of about 8.536 million people.  Based on the confirmed numbers listed above, only about 1% of the population of Virginia has contracted this virus, and 0.024% of the population of Virginia has died from it.

Virginia hit its highest number of daily reported cases on May 25th of this year at 1,439.  When we once again compare that to our population of 8.536 million people, that means the greatest chance anyone had of contracting this disease on any given day is about 0.01%.

Mr. Staton thinks that a lockdown needed to happen based on what we knew four months ago, but now thinks it was not necessary then – and certainly not now – on the grounds that COVID isn’t really that much worse than the flu at the end of the day.  After all, only 90K Virginians have gotten this deadly disease, and only 2100 2215 have died from COVID since the pandemic started.

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No, the Angry White Guy is Not the Victim

I’m sure a lot of you have seen this video of Daniel Maples, a Florida insurance salesman, yelling at an elderly woman that he “feels threatened” because she asked him to wear a mask while shopping at Costco.

Turns out the agency he worked for let him go after this went viral on social media. Jonathan V. Last, Executive Editor at The Bulwark, thinks this is a bad thing because “maybe he’s a good guy having a really crappy day.” The Bulwark, by the way, is the internet home for the “Defending Democracy Together Institute,” a PAC put together by a group of anti-Trump conservatives like Bill Kristol and Mona Charen, among others.

I signed up for a Bulwark newsletter, and in a recent email Last made Costco Guy the victim when Maples actually victimized others. Readers of course pushed back, so Last responded with a second email elaborating on his argument. It boils down to “we don’t know anything about this guy and he should not be punished for a 17-second lapse. He didn’t pull a gun on anyone and didn’t assault anyone, so what’s the big deal? And we shouldn’t go after people who refuse to wear a mask because it’s not worth the trouble.” (Last asks if others speak up when they see someone texting while driving, and the answer is yes, I do.)

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Wouldn’t the States Have the Receipts?

We’re right to worry about whether the Republican Party as an organization would sanction executing the plan outlined in this Newsweek opinion column. I have no doubt in my military mind that Donald Trump would do anything he could to stay in power, and that the Conservative movement (defined as the GOP and associated think tanks and interest groups) would do anything to keep a conservative in power. If those interests align and leaders see a unique opportunity, an attempt to establish a Presidency that lacked popular support is not out of the question.

I’ve written before about the Republican Project as I see it: a long-term conservative effort to capture the legal institutions necessary to keep power without having to bother assembling a coalition that can win elections, and block progressive legislation when they can’t. They would use these institutions to protect friends and hurt enemies, and to uphold orders restricting the right to vote while blocking local rules that would protect it. Once in control of these institutions, conservatives would use that control to protect their power if possible.

As I read the Newsweek scenario, it boils down to this: Biden wins the popular vote as well as the Electoral College on the strength of wins in four swing states which all have GOP legislative majorities. Trump and the GOP establishment challenge the result arguing that counterfeit ballots printed by China (presumably an anti-Trump Chinese intelligence operation) made the difference in those four states. Trump declares a national emergency and a national security investigation, which delays appointment of their Electors. Neither candidate assembles a majority in the Electoral College and the House, with its majority of GOP state delegations, would decide the election in favor of Trump.

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A Good Sign for Criminal Justice Reform and Progressive Policy

One of the things we sometimes lose sight of during the “we need change now” and “but it’s politically difficult” discussion at the Presidential level is that a lot of real change happens at the local level. I’m convinced, for example, that the rising number of Commonwealth’s Attorney candidates in Virginia who ran on decriminalizing cannabis and criminal justice reform in general allowed the General Assembly to take action. They could see voters from both sides of the political spectrum support these campaigns, and this gave them “permission” in a way.

These local elections also matter in the sense that they help the Progressive coalition build a bench of candidates and elected officials with the experience and chops to run for higher office. Today’s Henrico County Commonwealth’s Attorney is tomorrow’s Virginia Attorney General.

This played out in Oregon last night, when Mike Schmidt won a District Attorney race in Multomah County (Portland area) by a landslide on a very progressive platform.

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Gun Rights: A Somewhat Forgotten but Essential Liberty (Guest Post by Sandy Sanders)

This guest post by my friend Sandy Sanders is his second in the Lincoln-Douglas Debates II series – the Sanders-Scott Debates. The first entries, on abortion policy, are here and here. Sandy’s entry on this issue is also posted at Virginia Right. You can read my entry on this issue at Foggy Bottom Line here.

Your Vote in November for President Could Decide your Right to Keep and Bear Arms!

It may not happen again. But I have to thank Canadian Prime Minister Justin Trudeau for demonstrating the essential importance of gun rights enshrined in basic law (from the CBC):

Trudeau announces ban on 1,500 types of ‘assault-style’ firearms — effective immediately

A couple of little gems from the article:

“These weapons were designed for one purpose and one purpose only: to kill the largest number of people in the shortest amount of time,” Trudeau said. “There is no use and no place for such weapons in Canada.”
While he acknowledged that most firearms owners are law-abiding citizens, he said hunters don’t need this sort of firepower.

To be honest, the firepower needed to hunt is none of the government’s business. And it gets worse – it’s not even an Act of Parliament (as bad as that might be) it is a regulation:

The ban will be enacted through regulations approved by an order-in-council from cabinet — not through legislation. Trudeau said the government was ready to enact this campaign promise months ago, before the COVID-19 pandemic disrupted the legislative agenda.

Here is the text of the Second Amendment:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

And Virginia (Virginia was first: June 12, 1776 – Art. I, Sect. 13):

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

The language is very similar. Here is the corresponding right to keep and bear arms in the Canadian Constitution:

It’s blank. There isn’t any. And now the people in Canada have lost an important and essential liberty: the right to keep and bear arms.

This is a good start for an essay on guns. Alas, I have to move to, not too exciting for most readers, court cases.

The issue on what does the Second Amendment mean was not squarely placed before the Supreme Court until 2008. (Yes there was a Depression-era case involving sawed-off shotguns [United States v. Miller, 307 U.S. 174 (1939)] that held that possession of such a weapon that was was not part of the arsenal of a militia was not protected by the Second Amendment.) Some think that is because few questioned the Second Amendment right until more recently.

In 2008, the Supreme Court of the United States held that a non-felonious citizen has a right to possess a weapon in self-defense (subject to certain administrative requirements) in District of Columbia, et al. v. Heller [554 U.S. 570 (2008)]:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful fire-arm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

There are a number of exceptions:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

There is also an exception (admittedly very unclear) prohibiting “dangerous and unusual” weapons. It could be read to prohibit “assault weapons”. That case will someday reach the Court.

I apologize for all the legal cases and there is one more but it can be easily discussed: McDonald, et al. v. Chicago (561 U.S. 742 [2010]) where the Second Amendment is “incorporated” into the Fourteenth Amendment and thus enforceable against state and local governments.

Alas, there is little analysis in all these cases. What judicial scrutiny – what standard does a government restriction on the right to keep and bear arms have to meet to be constitutional. Strict scrutiny is a very compelling state interest and the least restrictive alternative must be used. Rational based scrutiny is pretty much what it implies: If the state law has a rational basis, it will be upheld. There is also an intermediate level of scrutiny. It requires the government to assert an important interest and there has to be a substantial basis between the state law and the important governmental interest. It is very likely that the right to bear arms will either have strict scrutiny or intermediate scrutiny.

Most of the explicit constitutional rights (e.g, freedom of expression) receive strict scrutiny and so does some classifications (race-based classifications); the major classification that receives the intermediate level of scrutiny is gender-based classifications.

This would speak powerfully for strict scrutiny but the Fourth Circuit (the federal appellate court that has jurisdiction over Virginia) has adopted the intermediate level of scrutiny and upheld the so-called “assault weapons” ban. (The federal court held that assault weapons were military style weapons and not protected by the Second Amendment at all.)

There is one major problem with not applying strict scrutiny to Second Amendment rights: An explicit personal right gets less constitutional protection (“…small not be infringed”) than another explicit personal right (“Congress small make no law…”). There has to be an important reason for such a distinction.

The Supreme Court will decide this issue at some time. Virginia laws such as the banning of most private sales or transfers of firearms (so-called “Universal Background Checks – a misleading term at best in that universal background checks are in fact required for all sales through federally-licensed dealers), and the so-called “red flag” laws (which raise another constitutional issue: Procedural due process – is the manner the state provides for a hearing to be heard on the deprivation of gun rights fundamentally fair); I think the one gun a month law is probably constitutional.

I suggest that both of these laws are constitutionally problematic. Banning an entire class of gun sales is a clear infringement on the right to bear arms probably not shown to effectively prevent mass shootings but will affect the right to self-defense. Red flag laws could be constitutional if the firearm possession issue is subordinate to the matter at hand: Is the owner of the firearm(s) a threat to him/herself or others? If so, custody could be the answer without emphasizing gun rights. (A relative or friend could have authority to temporarily seize the gun(s) until a later court says give them back to the owner.) The fact that it takes law enforcement to start the process under the Virginia red flag law leans the law toward it being constitutional. Finally, there are two ancillary issues, one fairly important and another not as critical to courts looking at the law as written: The important issue is that protected speech cannot be a reason to take guns, even if that speech is “mean and hateful”. The speech has to be a clear imminent threat to violence. The second is that different countries and cities in Virginia might have unstated but very different standards for the seeking and taking of guns. I would think Wise County would have a very different view of the criteria to remove guns than say Arlington County. But that might arise after the law is in effect for some time but not compelling to its initial constitutional review. Judges will assume fair and even application of a law in its initial review.

I apologize for all the legal stuff! Hence I must close with this: Four justices of the Supreme Court (Justices Sotomayor, Ginsburg, Breyer and Stevens) held in BOTH Heller and McDonald basically held that there is NO personal right to bear arms. Stevens has even after he left the Court, suggested the Second Amendment ought to be repealed. Stevens was replaced by Justice Elena Kagan who is not likely to be materially different on gun rights.

Let us also remember (please note to the Public Safety Minister in Canada) that one right to the right to keep and bear arms – which I am afraid the late and great Justice Scalia did not adequately give enough credit to in Heller: An armed citizenry is a threat to tyrannical government.

James Madison is quoted as saying both the right to bear arms and limited government are defenses against tyranny:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”

George Washington said:

“A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies.” 

Both quotes came from here.

Thankfully, the people of the US have as Jefferson put it, “the rational and peaceable instrument of reform”, the ballot.

Alas it is today unfortunately true: Who you cast that ballot for in 2020 for President and United States Senate is critical to the continuance to your right to bear arms. I’d run ads in key states saying exactly that.

Trained and Trusted: Militias and the Second Amendment

This is the second in the Lincoln-Douglas Debates II series – the Sanders-Scott Debates. The first entries, on abortion policy, are here and here. You can read Sandy’s entry on this issue at Virginia Right. Crossposted at Virginia Right.

Military service taught me a lot about weapons.  No Army officer would issue a sidearm, rifle, or tank to anyone who had not demonstrated training proficiency and trustworthiness.  We didn’t let just anyone walk around armed.  

I learned to use weapons when necessary but to secure them at all times.  No shame fell more heavily on a soldier than when he or she lost, misused, or simply could not control an assigned weapon. I simply don’t understand how people can so cavalierly support the idea that more firearms, in the hands of just anyone who wants to have one, could possibly make society safer – or that people who misuse or fail to secure those weapons should not face punishment.

Arming random citizens does not make us safer. To be sure, a firearm owner will, from time to time, use a firearm in self-defense. When this happens, it can stop crime and even save lives. More often someone uses the weapon to inflict harm on others or themselves. Someone steals a rifle and uses it to kill several people and then commit suicide. Every year, 23K Americans use their own weapon and skip the first step. Or the owner leaves it on a coffee table where a toddler finds it and plays a bit of tragic shoot-out with another child. Or drops it and accidently shoots someone in a grocery store. These are all failures we can minimize with more training, just as we did in the Army, but simply putting more guns into circulation will not stop this. Guns don’t save lives any more than they kill people. People save lives, with or without a gun, by knowing what they’re doing.

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“I Carry a Gun for Self-defense, but I Ain’t Wearing No Mask.”

The Virginian-Pilot reports that almost one in five workers in Eastern Shore poultry plants have tested positive for COVID-19. This result tracks with a study suggesting that spending more than a short time in enclosed spaces drastically increases risk of contracting the virus.

Another study shows that COVID-19 infections would plummet if 80% of Americans wore masks.

The answer to both our pandemic and economic problems is very simple. Avoid spending more than a few minutes in closed spaces with other people. If you must do this, wear a mask. Indeed, wear a mask pretty much all the time when near other people. Testing and tracking would also help, but these two simple things can get us more quickly back to watching sports over a plate of wings and a glass of beer in a bar. We don’t need government assistance or private donations. Find something to cover up your face before you go out and limit your time indoors with people you haven’t quarantined with (“quaranteam,” as a friend of mind called it) whether it’s a retail store, salon, or bar.

Demanding a right not to do this in the name of liberty makes no sense of any kind. It’s curious to me that the same people who arm themselves so they’re prepared to stop a mass shooting in a McDonald’s won’t wear a mask to stop the spread of a disease. Your mask protects me more than you, and I’m willing to do my part to make sure I don’t give you my bug. In any event, it’s the fastest way out of this economic mess and the best way to protect as many lives as possible.

Governor Northam should require that everyone wear a mask in public as we reopen Virginia. Even if he doesn’t, get a mask. Wear it a lot. Things will get better.

The Electoral College Cases

This week the Supreme Court heard oral arguments in two cases (Chiafalo v. Washington and Baca v. Colorado) involving “faithless Electors,” members of the Electoral College who refuse to align their vote for President with the outcome of the popular vote in their state. Mark Joseph Stern, writing in Slate, and Scott Lemieux at Lawyers, Guns & Money, take the position that Lawrence Lessig took these cases in an attempt to undermine the legitimacy of the Electoral College itself. Stern:

“Lessig wants to make the Electoral College so wacky and unpredictable that the entire country turns against it, then adopts a constitutional amendment creating a nationwide popular vote for president. The justices appeared to be aware of this end goal on Wednesday. And they had no apparent interest in facilitating Lessig’s master plan.”

Lemieux agrees but points out that Americans don’t seem to mind Electoral College chaos with an invented Lessig quote:

“’If rogue electors throw a presidential election to the losing candidate, the people will rise up and surmount the massive obstacle posed by Article V’s supermajority requirements to institute a national popular vote. If history has taught us anything, it’s that if the Electoral College misfires and installs a massively unqualified president, the people simply will not stand for it.’”

Neither writer challenges the idea that the Constitution allows States to require Electors to vote a certain way, but I’m not so sure. It mandates that States “shall appoint, in such Manner as the Legislature thereof may direct, a number of Electors…” but the Constitution is silent on whether States may add conditions to this appointment. I suspect that even if the Founders didn’t expect Electors to vote their conscience they would have expected state legislators to appoint loyal Electors. It seems to me that Lessig correctly argued before SCOTUS that States lack the power to exercise control over voters or Electors. Stern argues that States are simply requiring Electors to respect the results of an election, but this ignores the fact that, Constitutionally, the actual election took place when the voters appointed the Electors.

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