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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Support Workers. Protect Unions

Last week I attended a labor issues conference presented by the Northern Virginia Labor Federation. We heard general presentations on labor issues and short discussions about specific problems faced by workers in different economic sectors.

Labor policy in Virginia is broken. Republican legislators, using American Legislative Exchange Council (ALEC) templates, pass laws that attack worker rights and block legislation that would improve workmen’s compensation programs. It’s time to fix this.

Firefighters and other emergency responders come in contact with hazardous materials every day in the course of risking their lives to manage fires, crashes, and other emergency situations. These heroes get cancer at higher rates than the general population, and exposure to these chemicals is the cause. Yet in many cases they must prove a specific case of exposure before they can collect disability and health care coverage. 

It’s time to enact laws that protect our community heroes by presuming that an emergency responder with cancer of any kind has it because of exposure to hazardous materials in the line of duty.

More generally, we need to end right-to-work laws, brought to us by ALEC and its corporate funders (especially the Koch brothers), and Senators like Ryan McDougle – an ALEC member. These laws amount to an attack on unions that give employers an advantage when hiring. This is why worker productivity has risen since the 1970s but wages have remained stagnant. 

It’s time to allow workers in every sector of the economy – public and private – to bargain with employers for higher pay, safe conditions, improved worker’s compensation plans, more vacation, and better benefits. No business or government agency can function without workers, and they need to have a voice through a union if they wish.

If you like weekends, thank the labor movement. If you think Virginia needs middle-class jobs that don’t require a college degree, only unions can deliver. In fact, Virginia unions run apprenticeship programs – on their own dime and without government help – that provide a path to stable employment at good wages to young people in the Commonwealth who want to learn a trade.

I know how important unions are to the workers in Virginia who build our homes and office buildings, stock shelves in grocery stores, make sure our cell phones work, and teach our kids how to read. I support them without reservation.

Extended Magazines (Updated)

UPDATE: Commenters to versions of this post at other sites pointed out that I got the magazine size wrong for the M9. Mine held a 15-round, not a 9-round, magazine. I regret the error and that my fond memories of service weapons past failed me.

The first weapon I trained to use in combat was a .45 caliber pistol. As an Armor Crewman we carried sidearms and this was my main personal combat weapon. The standard magazine for this weapon held seven rounds of ammunition. Not long after I enlisted the Army replaced the .45 with the M9 Beretta.  The standard magazine for the M9 held nine rounds. The new Sig Sauer sidearm the Army has just adopted has only a 17-round magazine. 

Think about this: US Army combat doctrine calls for smaller combat handgun magazines than civilians can purchase on the open market for “individual self-defense.”

It seems to me then that a non-standard thirty-round magazine for a .45 caliber pistol like the one used by the gunman in Virginia Beach last week has only one use: to maximize effectiveness for a mass shooter who wants to kill as many people as possible. Their sale and possession should be prohibited.

This year the Virginia General Assembly considered legislation that would have done just that, but Republicans blocked this approach. Republicans reject any approach that might reduce gun violence and save lives because the National Rifle Association and the Koch brothers pay for their political campaigns.

We will mourn and grieve the losses suffered by victims’ families. We will support them in their time of need and comfort them as they live through the loss of loved ones. Virginia Beach, like Virginia Tech, will bear the scars. And healing will come. But this is not enough. It’s time to do something about this problem so it does not happen again.

It’s time to regulate these mass shooter tools more strictly. Weapons and accessories designed to facilitate a high rate of fire and maximize the ability of a shooter to inflict maximum damage on human beings have no use for hunting or self-defense. Indeed, we need to regulate firearms in general more strictly. Evidence shows that more guns do not reduce crime – more guns correlate with higher homicide, suicide, and accident rates.

I support stronger background checks, longer waiting periods, registration for some weapons, and laws that require firearm owners to keep their weapons secured and hold liable those who don’t. We need to give local law enforcement officials the authority, with proper due process, to remove firearms from dangerous people and situations. 

Many Virginians object to these kinds of regulations on Second Amendment grounds. But the Second Amendment right to bear arms does not override the First Amendment right to peaceably assemble at work, school, church, or any other public space. We have a right to those as well.

I am running for the State Senate in Virginia’s Fourth District to protect this right. I’m running because I think it’s time to rethink gun culture in the Commonwealth. We’ve accepted mass killing by firearm in public spaces as part of the “cost of doing business” for far too long and it’s time to stop it. Please do what you can to support my campaign, but if you have money to give right now please contribute to a support group for the Virginia Beach victims or a gun violence group. 

Then go to www.StanforVirginia.organd sign up to support my team by knocking on doors, making calls, and writing postcards. Follow me on Facebook and Twitter and Instagram. Spread the word. Tell your family and friends that someone is running in the Fourth Virginia Senate District who will work hard to make public spaces safe from gun violence. 

Military Service and Progressive Values

Since I began thinking about running for the State Senate, a lot of people I’ve spoken to have asked how I can be a liberal – or even a Democrat – after spending 20 years in the Army. One man at a Tea Party meeting wanted to know how I could be a member of the “party of perversion and invasion” after a career “defending the Constitution against all enemies foreign and domestic.” 

I understand why some people assume that veterans might skew conservative. Military life is one of hardship, self-discipline, honor, duty, and commitment to service.  It’s a life of personal and professional sacrifice that affects every part of family. Soldiers forego big salaries and comfortable lives to train and fight in the snow and heat and mud and rain because they know they have a role in something that really matters to every American: a vision of liberty seen no-where else on Earth.  My obligation to this vision, my country, the Army, and my soldiers took precedence over my individual needs for twenty years. There is no doubt that many Americans associate this kind of patriotism with conservatism.  

But many conservatives today appear to believe that life well spent isn’t about service and community but individual ambition and greed. It’s less about liberty for all than about organizing society around how we spend money in a market. They show allegiance to flags and a symbolic patriotism but no apparent duty to the higher ideal of American exceptionalism as a nation of people devoted to the right of everyone to life, liberty, and the pursuit of happiness. 

My personal experience in the Army shaped an alternate – and progressive – perspective on policy and how we organize economic, social, cultural, and political society. These rights, after all, depend on good health, appropriate education, public safety, and freedom to love whom we choose.

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Mother’s Day 2019

Mom gets her Master’s Degree circa 1972

My mother is simply an amazing woman.  She grew up in a poor family and attended Central High School in Little Rock right before the Little Rock Nine.  Mom married very early in life and had two sons in a single year – before she was old enough to drink legally – and a third four years later.  

Family lore holds that on the day Mack, her third, was born Mom rode the city bus across town to a beauty salon to have her hair done.  She terrified the stylist when she responded to “When is your baby due?” with “Any minute.” Her contractions had begun on the bus ride over, and in the Thanksgiving tale version she points out that Mack was not her first, she knew what she was doing, and she was determined to look her best when they finally met.

Mom took classes at night while working days at a Mad Men – era advertising agency until she earned a fellowship to do graduate work.  About the time I turned ten she packed us up for a move to Ole Miss as a single mom with no job and little money.  Mom edited and typed papers for other students to pay the bills and saved on babysitters by taking us with her to the library. I still love to read.  In only three years she earned a doctorate in English Literature after writing a computer program that compiled data on syntax in William Blake poems for her dissertation – in 1973.  

Mom never showed any give-up of any kind.  She did what had to be done and never quit. Every day she demonstrated an inner strength and moral courage unmatched in anyone else I’ve ever met.  She taught us to respect women – and with a Mom like her we could come away with no other lesson. She taught us to believe in ourselves and by her own actions showed us that we could often grasp things that looked beyond our reach.  And she taught us to love unconditionally and without reservation by loving us unconditionally and without reservation.

Yes, Mom, you certainly knew what you were doing.  Thanks for everything, and Happy Mother’s Day.

The Bank of Virginia Act

A few weeks ago, a group called Protect USannounced the launch of an effortto create the Bank of Virginia, a “socially responsible public bank” modeled on the Bank of North Dakotathat “would provide low-cost public financing to municipal governments and state agencies.”  The Bank would lend money only to “companies and organizations that Virginians support.” (Hat Tip: Blue Virginia).

This makes me think of efforts at the federal level to bring banking to post offices.  Gillibrandand others seem to be proposing the kind of retail Post Office banking I remember from my time in the Army stationed in Germany. People could start basic interest-bearing savings accounts at local post offices with paychecks from any employer (Americans could do this at US Post Offices until 1967).

Government payments like Kindergeld (every parent in Germany gets a small stipend for…being a parent) went automatically to these accounts. For a time, I used such an account to handle household bills.  In the US context a system like this would help working people who earn a paycheck but only qualify for commercial bank accounts that carry fees and conditions (e.g., monthly fees without direct deposit, minimum balances).  These fees eat into their already small budgets.  Many people have to pay a fee to WalMart or a grocery store, or a check cashing service every Friday when they get paid by check for their construction or other gig labor that week.  So a state bank where low-wage workers could open simple passbook accounts with no fees would improve the lives of working people.

As far as I can tell from the Protect US site, the Bank of Virginia proposal does not address this issue. Without a look at specific legislation it’s hard to know, but it appears to focus more on making sure that Virginia Retirement System and Commonwealth tax revenue, which must be parked somewhere until spent, don’t find their way into fossil fuel investments or big bank accounts subject to fees.  I support this goal, but it’s not clear how Protect US locks in which Virginians just what “causes” the Commonwealth should support.  Without seeing the details, I’m also wondering whether a Bank of Virginia ensures socially conscious investment over the long term. Political winds change.

The Protect US proposal has another potential problem: it would form the Bank of Virginia by combining the functions of the Virginia Housing Development Authority( VHDA), Assistive Technology Loan Fund Authority (ATLFA), Virginia College Savings Program, and the Virginia State Employee Loan Program.  This could perhaps make sense from an efficiency standpoint given that these agencies have at least some of the experience and infrastructure needed to create a bank.  

But unless the Bank of Virginia created under this plan would continue – and expand – the services provided by these organizations, it would not make the Commonwealth of Virginia materially more socially responsible. Shifting funds to more environmentally friendly investments has value, but state government exists to create opportunities for and improve the lives of working people, not supporting corporations whether socially conscious or not.  I’m especially concerned about the employee loan program – ending it would send low-wage state employees to payday loan companies.  

This proposal could be a good idea – but needs more work.

Topics in American Politics

Starting on March 30, I’ll be presenting a lecture series on Topics in American Politics at the Lokal Cafe in Colonial Williamsburg. In the first session I’ll discuss how slavery influenced the writing and ratification of the Constitution and the ways this impacts American politics today.

Later lectures will cover the expansion of civil rights and how this helped lead to the sorting of US political parties, the ways interest groups and gerrymandering polarized US politics over existential issues, and Russia’s efforts to influence US elections.

Please contact me at rss (at) foggybottomline (dot) com if you have questions or would like more information.