Monday, November 25, 2013

Southern Avenger Breaks His Silence

I wish I had time to comment further on this, but I have a lot I want to get done this week. But I did want to commend Jack Hunter for writing this. There are some things I think he needs to think about more deeply, and I wish Ron Paul could be nearly as forthright as he is, but this is what I was hoping for when the Southern Avenger story broke. Good for you, Jack.

Read the whole thing here.

bellum medicamenti delenda est

Tuesday, October 1, 2013

Some Suggestions for Future Budget Cuts

As I wrote yesterday, I think the government shutdown is stupid. But so long as people are listing things that are no longer operating (that, it follows,we usually pay for), let's see if we can find some things we fund that we can all agree are a giant waste of time and money.

Government social media presence--Twitter, Instagram, etc. Why on God's earth do we pay people to update the First Lady's Twitter account or the White House Instagram feed? I'm sure the WH has a staff photog--and they should for history's sake, I think--but real time updates of what is going on in the Oval Office is no more useful than the pic of what my friends had for brunch on Sunday. At best it's useless, at worst it's propaganda. Chuck them.

The DEA: Seriously, they are worthless. Drugs are cheaper and purer than they've been at any point over the last 20 years. Billions of dollars absolutely and unquestionably wasted, not to mention the lives ruined and lost in the process. Kill it.

E-Verify: Doesn't work, costs a lot of money, is a blatant privacy violation, and is going to cost jobs when false positives reject American citizens from jobs for which they are eligible. This last bit will be due to some administrative snafu, which comes standard with any government program. We don't need a national ID.

Child Soldier Subsidies: No, really. Congress passed a law in 2008 banning financial and military support to regimes that actively use child soldiers. The White House just waived that ban for three countries that use child soldiers on Friday. Here, for once, it's perfectly reasonable to say "THINK OF THE CHILDREN!!!"

There are plenty more, but even the most strident good government type has to admit we spend too much money on government that ranges from banal to deplorable. Surely we can cut some of this.

bellum medicamenti delenda est

Monday, September 30, 2013

My Very Brief Thoughts on the Impending Government Shutdown

Though I prefer the term 'classical liberal,' I'm a libertarian. I am highly skeptical of government, both in intent and general competence. I wish the government, and the federal government in particular, did a lot less than it is currently charged with. All that being said, a federal government shutdown will likely be a disaster and a mindless exercise of political self-mutilation.

For one, it won't stop ObamaCare or any other entitlement or longstanding government program. Thus, all this is about being obstinate for its own sake. It won't be the end of the world if it's shut down for a few days, but what will happen is that government services upon which people depend, rely, or otherwise enjoy will be unavailable to much of the public or otherwise crippled in their effectiveness. And who will get the blame for this absence/dramatic reduction in service? Tea party/libertarian/small government types because the people responsible pay hollow lipservice to their ideals.

This is the wrong way to sell smaller government.

Think of it this way: take an addicted cigarette smoker. You want to convince him to quit for his own good, but he's not ready. Well, instead of reasoning with him or convincing him there are alternatives to smoking--nicotine gums, patches, e-cigs, jogging, whatever--you just steal his cigarettes and prevent him from getting his fix by whatever means you can.

Now this guy is going to be pissed at you. This is because you haven't convinced him he doesn't really want that cigarette--you have just taken it from him and made him angry. Very, very angry. Even though smokers know the stuff is bad for them, many who may want to quit haven't found a way that works for them. You've now made that decision for them, but you know it's only a temporary one.

But as soon as you give this guy access to cigarettes again, he'll go buy another pack and may even smoke more. You haven't convinced him there are concrete steps he can take to get over his addiction--you just convinced him you're a stubborn prig who'll make other people miserable just to prove a point. You, and others perceived to be like you, will likely have much less sway with him from that point on because you were an unthinking, uncaring, self-righteous S.O.B.

The GOP is that S.O.B.

bellum medicamenti delenda est

Friday, September 6, 2013

An Open Letter to My Congressman, Jim Moran

I submitted this to Congressman Jim Moran's website just a few moments ago:

Congressman Moran, 

From what I understand, you intend to back the president on Syrian intervention. I implore you change your mind. You have encouraged me with your stand on marijuana and other social issues, but I see no reason why we should get involved in Syria without a measurable and articulable objective. 

Right now, the best the administration has done is to make the case to quite literally just throw ordnance at the problem. That is a waste of resources that takes no real account of unintended consequences. 

I urge you to reconsider your position, 

Jonathan Blanks 
Alexandria, VA

bellum medicamenti delenda est

Thursday, August 29, 2013

It's Going to Take More than a Memo to Fix the Drug War

Today, the DOJ released a memorandum (PDF, hereafter "Cole memo") sent to all US Attorneys' offices to "update [the DOJ's previous] guidance" on federal policy as it relates to liberalized state marijuana laws. A lot of drug reformers are hailing this memo as a great step forward for the government. I'm less convinced.

As I've written elsewhere, we've seen DOJ memos on this topic before. Indeed, the opening lines of the Cole memo directly reference the 2009 Ogden memo and its 2011 clarification. The latter,  also written by Cole, effectively gutted the spirit of the Ogden memo's message to de-prioritize state-law compliant medical marijuana distributors: "The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law."

Looking at the language of today's memo, there is no concrete change in policy by the DOJ. Yes, it is encouraging  that the Attorney General wants to de-emphasize regulated marijuana distribution as a prosecutorial priority, from a politically symbolic standpoint. But U.S. Attorneys don't primarily operate within the realm of politics--they prosecute people for the federal government. They have the widest discretion imaginable and literally countless federal laws with criminal and civil sanctions from which to choose to prosecute any person in their jurisdiction. Those prosecutions cost money to investigate and they have finite resources with which to work--though much larger than the resources of the would-be defendants facing federal prosecution.

Monday, July 29, 2013

Living While Black: Anecdotes about Dealing with Police

Due to the genetic happenstance of my bi-raciality, I don't look black. This has led to more than a few "No, really, I'm black" conversations, but generally speaking, I can pass for white if I want to. Passing isn't a new phenomenon, but it does generally protect me from unnecessarily hostile contact with police and other authority figures that regularly harassed what Malcolm called "recognized Negroes." That said, I know racially biased harassment is very real.

Gene Denby of NPR Code Switch started a conversation about police interactions on Twitter last Thursday. I Storify'd it so you can read it here, but I want to delve further into why they are more than simple anecdotes of inconvenience.

Most countries have foundational myths that underlie the ethos of the national character. Much of our national myth involves freedom and Enlightenment liberalism: property rights, religious freedom, and the dignity of the individual are among the core values which under-gird our national identity. This narrative leads to national cliches like "If you work hard enough, you can do anything" and 'pulling oneself up by the bootstraps' is the key to success.  The accompanying narrative overlooks what that actually looked like for much of our history including, inter alia, discriminatory legal regimes. This is important not, as many think, to enable a "victimhood" mentality among descendants. This is important to reaffirm that this country has only recently recognized that the "inalienable rights" explicitly assigned to all of mankind in our founding document apply to women and many people of color. This recognition is to understand that, since our country's inception, there have been parallel sets of rules and laws for  marginalized people that are distinct from and harsher than those for the majority. It also means "dignity of the individual" doesn't apply equally.

Monday, July 22, 2013

Southern Avenger, RIP

Jack Hunter has resigned from Senator Paul's staff and retired the moniker "The Southern Avenger." I don't revel in this because I never called for his job. But barring a full explanation of what exactly he repudiates from his years of race-baiting and Southern apologia, this is probably for the best. I am glad that he took the extra step of distancing himself from the moniker and I hope he lands somewhere he can be useful and further distance himself from his controversial past.

UPDATE: Uh, you know, this guy may just be a horrible human being. More from the Washington Free Beacon.On criticism of the movie, The Patriot, in which a South Carolina landowner fights for liberty but neglects to mention that teeny little problem the South had with liberty for all:
“Let’s convince the producers of the Patriot to reshoot a scene in which Spike Lee and [then-NAACP head] Kweisi Mfume are both tied to trees while Mel Gibson whips the hell out of them,” Hunter continued. “Mr. Lee and Mr. Mfume will get the pity they so desperately desire, and millions of Americans—especially the Southern Avenger—will get a real kick out of watching them squirm.”
Get it? Tying niggers to trees and whipping them for expressing an opinion is high comedy to this naive young man of...26. I'm sure since it's just talking about a movie about whipping them it's not really  racist. I mean, it's not like he wants vengeance for anythi....oh.

bellum medicamenti delenda est

Friday, July 12, 2013

One last comment on this latest Paul fiasco

The reason it's important that Rand Paul seriously reexamines his approach to race and his familial ties to neo-Confederates is because to ignore it is to implicitly say "I don't give a damn what black people think." Why should that matter?

Because it is societally unacceptable to openly say "I don't give a damn what black people think." Not because black people all think alike (we don't), or because black people vote overwhelmingly Democratic and thus aren't an important constituency to Republican politicians. It's because to say so is an unnecessary insult. People who are insulted for no good reason aren't going to be very open to what you have to say. And for those of us who believe what we do because we think it's the best thing for the country, and black people particularly, that the Pauls continually surround themselves with people who reject the historical cause for our ancestors' liberation and embrace the government of those who enslaved our people--in the name of liberty, no less--is a massive and repugnant obstacle to our goals of a freer society.

For decades, "states' rights," "liberty," and a host of other codewords were used by politicians and activists to preserve slavery, and later block anti-lynching legislation, desegregation, and the Civil Rights Era generally. As libertarians, it is incumbent upon us to be as inclusive in our messaging and in convincing people that we want more liberty for all people, not just the white ones. It's hard to make that case when the most prominent faces of libertarianism give speeches in front of rebel flags to say the South was right and have people who run websites called "The Southern Avenger" run their digital PR shop.

The Southern bloc that ran the Senate for so many years didn't need to wear sheets or say "nigger" to pass (or block) laws to the detriment of black folks. Likewise, that one of Paul's staff has put his mask away is of little comfort to those who still hear the echoes of the Old South in a Southern senator's rhetoric.

This is why Paul and Hunter should be more vocal in their denunciation of the "Southern Avenger" and fully come to terms with the GOP's problematic history with race, and their own.

bellum medicamenti delenda est

Thursday, July 11, 2013

It's the racism, stupid

In the past few days, as we go through our latest wave of questionable personal and professional ties of Ron and Rand Paul, their defenders have increasingly moved toward a "Civil War is over, get over it" line of defense. I find this ironic, given that it's the Pauls' relationship to people still holding on to the Lost Cause that continually brings them problems, but let's grant, for the sake of argument, that fighting over the Civil War is indeed beside the point.

Guess what happens when you google "Ron Paul r" or "Rand Paul r":

If Rand Paul wants to be president, and his supporters want that to become reality, allegations of racism have to be put to bed. Not brushed aside like "Dude, that was like 150 years ago!" or "But his policies aren't racist..." It doesn't matter. I understand that winning politics has never been libertarians' strong suit, but politics is a popularity contest and racism is unpopular. Perception is everything in politics, and right now, the Pauls are perceived to have a long history of race problems.

"Don't look behind the Confederate battle flag curtain" is not a viable political strategy.

Presidents have to delegate massive amounts of authority and heavily rely on their closest advisers. Thus, the people with whom they surround themselves will in all probability influence their decision making as president. If one is known to surround himself with questionable people, the public will be right to question what kind of people will have his ear as president.

The Pauls race problems are not going to go away so long as they continue to flout public sentiment and protect those who cost them politically. Libertarians, by extension, continue to be hurt by defending the asinine decisions by the Pauls to protect their cronies who make a living bashing the outcome of the Civil War...because, you know, it ended that whole race-based slavery thing.

bellum medicamenti delenda est

Wednesday, July 10, 2013

Why can't the Pauls get past their race problems?

Another day, another associate of the Ron/Rand Paul political camp in race trouble. Yesterday, Sen. Rand Paul's new media chief, Jack Hunter, was outed (to those of us who ignore such people) as “The Southern Avenger,” a Confederate battle flag luchador mask wearing Southern apologist who used to host a radio show. Instead of owning up to his clear, unambiguous, and appalling behavior in his past career, Mr. Avenger Hunter blames unbalanced reporting at the Washington Free Beacon for his unceremonious unmasking:

My Statement on Recent Attacks
Today’s article that brought my not-very-hidden radio pundit background to light does not accurately reflect me or my full, or true, views.
The role of a radio host is different from that of a political operative. In radio, sometimes you’re encouraged to be provocative and inflammatory. I’ve been guilty of both, and am embarrassed by some of the comments I made precisely because they do not represent me today. I was embarrassed by some of them even then.
I am also no longer a guy who judges beer drinking contests in a wrestling mask. Things change. We all hopefully grow up.
I abhor racism and have always treated everyone I’ve met with dignity and respect as individuals. This was true in the past and it is true now.
The controversial comments are also but a fraction of my decade of writing and talking about conservative, Tea Party and libertarian causes.
I have also written columns over the years promoting African-American history and politics, and many other writings that tell a far different story than what the headlines portray today. Not surprisingly, the reporter chose not to balance her piece by citing any of those columns.
“Attacks” on “not-very-hidden” punditry, as if those of us who inhabit a social world free from nostalgic slavery-apologia were supposed to assume that a United States senator would knowingly hire a man known as “The Southern Avenger”—a hostile, vengeful, character who equates the NAACP and the Ku Klux Klan—and that hiring should or would be assumed to be common knowledge without much fanfare.

I can't speak to Mr. Hunter's past or current embarrassment about what he said or did as a pundit, but many of us seem to make our names without inflaming racial tensions that have haunted its country since its inception, don't also take charge of local chapters of slavery apologist organizations, and continue using that nickname as one progresses through our professional careers as he has. As recently as 2010, Hunter gave airtime to Tom Woods, a fellow-traveler in Civil War revisionism, on his radio show. Perhaps more telling, the above non-apology is listed on “,” supporting his contention his past is not very hidden, but it doesn't really explain how he's attempted at all to put his youthful indiscretion behind him, save scrubbing the many iterations of the Confederate battle flag off his website.

What exactly is he avenging now, anyway?

Tuesday, July 9, 2013

More Race Problems from the Pauls

It's as if the Paul family just drives vans around white neighborhoods in the South playing 'Dixie' and whatever fool chases it like an ice cream truck gets a job on staff:
[Rand] Paul hired Jack Hunter, 39, to help write his book The Tea Party Goes to Washington during his 2010 Senate run. Hunter joined Paul’s office as his social media director in August 2012.
From 1999 to 2012, Hunter was a South Carolina radio shock jock known as the “Southern Avenger.” He has weighed in on issues such as racial pride and Hispanic immigration, and stated his support for the assassination of President Abraham Lincoln.
During public appearances, Hunter often wore a mask on which was printed a Confederate flag.
Prior to his radio career, while in his 20s, Hunter was a chairman in the League of the South, which “advocates the secession and subsequent independence of the Southern States from this forced union and the formation of a Southern republic.”

Read the whole thing at the Free Beacon here.

Thursday, June 27, 2013

Some Thoughts on the Broad Spectrum of Racism

I've never shied away from my particular resentment of Southern racism. Cloaked in tradition and gentility, years of barbarity and terrorism are blithely ignored as the Southern gentlemen and their darling belles get misty when they hear 'Dixie.' It's enough to make me reach for blood pressure medication. But that doesn't mean that it's the only kind of racism, or the most important.

Racism isn't geographically isolated, nor is it confined to a particular political or ideological affiliations. Boston, for example, famously resisted bused integration in the 1970s, resulting in this Pultizer prize winning photograph:

Today, Boston remains one of the most segregated cities in the United States. Don't let the 'enlightened Northeastern liberal' reputation fool you. (see also Twitter reaction to the Bruins' elimination from last year's Stanley Cup Playoffs on the goal by a black man) Racism, in its individual and collective forms, is still ubiquitous.

Progressives tend to focus on racism in systems, often referred to as "institutional racism." Conservatives and libertarians tend to be skeptical of allegations of entrenched racism, seeming to believe that racism can only exist on an individual level, and that to the extent it exists in the United States, it's not pernicious enough to require laws to combat it because "Jim Crow is over."

Neither political side quite seems to get it.

Tuesday, June 25, 2013

"And How Does This Relate to Our Discussion of the Uses of Irony?"

Pardon the Ferris Bueller reference, but I received this case in a media update from the Third Circuit Court of Appeals and it made me laugh:
On December 15, 2009, while on duty, Appellants stopped and frisked men they believed were engaged in an illegal drug transaction. One of the men they frisked, Keyshawn Artis, accused Appellants of stealing money from him. Appellants denied the accusation, and told Artis to ―move along.

When Appellants returned to headquarters, a superior officer, Sergeant Salvatore Fede, ordered them into his office. After informing Appellants that a complaint about their behavior had been made to the Internal Affairs Bureau, Sergeant Fede took Appellants to Captain Melvin Singleton’s office. Appellants did not feel free to leave because they had been ―ordered to be in the captain’s office.‖ App. 285. After waiting fifteen to twenty minutes, Appellants and Sergeant Fede were joined by Captain Singleton, then-Sergeant Patrick Kelly, and Lieutenant Frank Palumbo.

Appellants were instructed to stay in Captain Singleton’s office until officers from the Internal Affairs Bureau arrived. While Appellants waited, Captain Singleton offered them water and told them that they could watch television, but instructed them not to use their cell phones. Appellants then were questioned about their interaction with Artis, including whether they had taken money from him. In that regard, Appellants were asked to remove their jackets and Gwynn was asked to remove his outer vest. Appellants also were told to pull out their pockets, pull up their pant legs and pull down their socks, and open their wallets. Finally, Appellants were told that cooperation would be in their ―best interest insofar as it could demonstrate to Internal Affairs that they did not have Artis’s money when they returned from their patrol. During the hour or so they spent in Captain Singleton’s office while awaiting the arrival of Internal Affairs officers, Appellants did as they were told because the orders came from their ―superiors and supervisors, and they feared ―discipline and possible loss of employment‖ if they disobeyed. App. 241.

Upon their arrival at Captain Singleton’s office, two Internal Affairs officers questioned Appellants for about fifteen to twenty minutes and then left briefly to talk to Artis, the complainant. Appellants were told to stay put until the Internal Affairs officers returned after speaking with Artis. As Appellants waited, Gwynn asked for permission to call his wife to arrange for her to pick up their son, and then-Sergeant Kelly granted permission. The Internal Affairs officers returned, stated that they believed Artis, and told Appellants that they were not needed for anything further that day. Appellants left Captain Singleton’s office around 8:15 p.m. and when they opened their lockers that evening, it appeared as though they had been searched.
For those not fluent in legalese, two Philadelphia police officers stopped and frisked two civilians who were not found to have any contraband, one of the civilians said one of the cops took his money, the cops told him to get lost, and the police superiors (to my surprise! Especially in Philly.) put the officers in an office, told them to empty their pockets and turn out their clothes to prove they didn't take the man's money. The ordeal at the station lasted about an hour.

They sued the department and their fellow officers for violating their 4th Amendment rights and false imprisonment because the department superiors kept them in an office and had them, to borrow a term from the anti-immigration folks, "self-frisk"...after they stopped and frisked two guys on the street. (Bonus chutzpah: they also sued for overtime.)

Thankfully, CA3 was unpersuaded by their case. You can read the opinion here.

Friday, June 21, 2013

Quick Comment on the Paula Deen Mishigas

I was only vaguely aware of Paula Deen until recent events proved alleged her to be a relic of the Old South who still likes to say "nigger" and various other less-than-pleasant holdovers from the Good ol Days. Granted, this is one of the few times when that segment of the commentariat who always rush to point out what appears to be at least plausibly racist MUST HAVE a plausible non-racist explanation will say "oh yeah, that's pretty racist." But then it invariably devolves into 'this shows how rare racism really is' and we're back to where we were before. For this reason, I hadn't really planned on writing anything until I read the TPM write-up of the affair, commenting on a part of her book:
In the book, Deen, who was born in 1947, frankly wrote about her youth in Albany, Ga., where she “never thought” about the fact she was living “in the mix of what was fixin’ to be a huge social change.”

“It was happening right under our noses: our local African-Americans were claimin’ their right for fair and equal treatment and some white folks were inspired to rethink old ways,” wrote Deen. “Still, I hardly noticed.”
The language of the second graf struck me. The use of "our" to describe southern blacks is not just a semantic accident--that reflects years of an assumption that the South and its racial identities are inextricably woven into their singular geo-political identity. This is the same way of thinking that fomented resentment at Yankees meddling with their 'way of life' and starting trouble with their  good Negroes in the 1950s and 60s.

Moreover, that blacks were "claimin'" rights--not demanding, not asserting--claiming, as if even years later, equal treatment under the law was still a matter of opinion. But these 'claims,' "inspired" some white folks to "rethink" old ways.

Inspired firefighters

James Meredith lies shot after some white people in Mississippi disagreed with his claim to attend Ole Miss

But still, she "hardly noticed" the most momentous social change of her lifetime.

Ms. Deen is just the latest person to inadvertently expose the despicable lies needed to prop up the mythical 'Southern Heritage.' I don't even care about her aborted attempt to moniker her "Sambo Burger." This willful ignorance about what the South was, what it stood for, and the direct role its people played in the oppression of so many, is the most infuriating thing about their repugnant, beloved "heritage." To even recognize the change, the Southern whites were simply "inspired" to "rethink" how they lived their lives and terrorized others

They weren't forced by federal law and the National Guard. Hundreds or thousands of terrorists didn't just melt back into the population, never paying for the crimes they committed against blacks who dared 'claim' equality. They weren't a society that enforced its code of oppression with government power and outside of it. It was just a some that needed to rethink old ways.

Some people like to show their pride of heritage with flags

Yay Heritage!

bellum medicamenti delenda est

Friday, April 19, 2013

Mother Jones Continues to Make the Case...That Guns Save Lives?


Josh Harkinson at MoJo has a series of charts debunking the "gun lobby" claim that "millions of people" stop crime with their guns. Honestly, that number is probably quite exaggerated and is worthy of debunking. However, what he does after establishing this is conflate a whole bunch of numbers for comparisons that obscure a very simple truth: guns save lives. A lot of them.

For example, his first chart [click through] compares gun related homicides to justifiable homicides in 2010. That number is 8,275 to 230. Granted, that's a huge disparity--but to those 230 people were deemed justly killed by someone with a firearm, that's a lot of potential lives saved from imminent danger. By comparison, the MoJo staff compiled a pictorial list of mass murder victims from 2012--all 151 of them. Clearly, those deaths are tragic, awful, and they each have a story worth telling. I don't blame them one bit for that story.

But what about the people who defended themselves against the 230 would-be assailants? Are their lives not valuable either?

And guns, of course, are also quite useful in dissuading attacks at all without pulling the trigger. Again, ahem, thanks to MoJo's fine research into federal crime data, we know that 338,700 people used guns for self-defense from 2007-2011, averaging out to 67,740 per year over that time.* That's a whole lot of self-defense. I can't say they were all at mortal risk, but it's foolish to think none of them were.

So yes, Mr. Harkinson, 12.5 million self-defense uses is probably too high. (I'm not sure where exactly that number came from, but my point holds even if I grant it.) But your own research shows thousands of cases of defensive gun use and at least 230 justifiable homicides in one year alone. I don't understand how that proves that "guns stop crimes" is a myth. Indeed, I think you proved exactly the opposite.

UPDATE 2:35PM: I was in a rush when I wrote this post, but having revisited the original article, I figured out where Harkinson seems to have come up with his 12.5 million self defense uses claimed by "the gun lobby." There is an oft-cited statistic that between 100,000 and 2.5 million defensive gun uses occur each year. It's hard to say what that number actually is, as someone who may have brandished a weapon to stop a crime from occurring may not report it. But if you multiply the high end of that estimate by 5, you end up with 12.5 million. I think there is a reasonable argument that an estimate in which the high end is 25 times the low end is inappropriate, but that's not the argument Harkinson is making.

If you take the low number of that estimate, cited in Mother Jones' own point #5 here, the accuracy of the claim leaps from .54% to 2/3 (67%). Even if the high end estimate is preposterous, and even if the low end is a bit of an exaggeration, that over 67,000 Americans use guns in self defense per year is noteworthy when discussing the number of occurrences of defensive gun use. Emphasizing comparisons of non-like statistics--as most crime victims are not themselves armed, or that gun-theft outpaces defensive gun use in unconnected instances--is irresponsible and to think such a framing was unintentional strains credulity. -JPB

 bellum medicamenti delenda est

*Their subsequent chart has the five year average at 67,600, but dividing 338,700 by 5 gets you the number I used. It's not terribly important to me. I mean, what's 140 self-defense uses among friends?

Friday, April 12, 2013

Good for Bob Costas

I don't usually like it when Bob Costas gets on his preening high horse, even when I'm sympathetic to his point of view. His Sunday Night Football traditionalist Get Off My Lawn segment is my weekly cue to go to the bathroom and pick up a beer before the start of the second half. But calling in to the Dan Patrick Show today, a venue much more appropriate for opining, Costas let CBS have it for its annual Tradition Like No Other coverage of the Masters golf tournament at Augusta National (via Deadspin):
What no CBS commentator has ever alluded to, even in passing, even during a rain delay, even when there was time to do so, is Augusta's history of racism and sexism. Even when people were protesting just outside the grounds—forget about taking a side—never acknowledging it. So not only will I never work the Masters because I'm not at CBS, but I'd have to say something and then I would be ejected.
I think someone shoulda had the guts to do it along the way. Broadcaster, executive, somebody should have said to someone at Augusta, 'Look this is an issue. And this is not Nightline or Meet The Press, we understand that. But this is an issue. And it's an elephant in the room. And we're going to address it as concisely as we can but we're going to address it so our heads are not in the collective sand trap.'
Sand trap pun notwithstanding, he's absolutely right. In 2012, Augusta National admitted its first female members--Condi Rice and Darla Moore--and didn't admit its first black man until 1990.

I'll leave it to Deadspin and others to speculate whether its a shot at Jim Nance, I don't really care. But Patrick admits that it would be difficult to broach the subject, as the Masters has traditionally been harsh in its treatment of any criticism whatsoever. I think this typifies my longstanding beef with Southern romanticism: they market their "tradition" as the reason they're special, but god forbid anyone actually talks about that tradition with any amount of candor. With that gentility, honor, and that historic Southern charm came economic degradation, societal marginalization, and domestic terrorism. But the past is the past, right?

It would simply be impolite to discuss the state of things as far back as...last year's Masters when Augusta National still had no female members. But as Costas and Patrick both recognize, doing so without Augusta's explicit permission would very likely cost someone his or her job. That would be perfectly acceptable, depriving someone of their livelihood for recognizing the bloody obvious, but we must not defile the Tradition with pesky facts like year after year of prideful, defiant bigotry. No sir, we just can't have that.

You can catch the entire video at Deadspin here.

bellum medicamenti delenda est

Thursday, April 11, 2013

The Truth About Good Guys with Guns

NB: I'm writing strictly in my personal capacity, despite linking to my employer's website. Their endorsement should not be inferred. Thx, mgmt.

I'm beginning to believe Mark Follman was put on this Earth just to vex me. His latest at MoJo almost immediately gave me a migraine for its selectivity and implicit privilege in its data.
Moreover, our investigation made clear that so-called "good guys with guns" do not stop public shooting rampages. Likewise, Blair's data couldn't be any clearer when it comes to the National Rifle Association's favorite myth: He found just 3 cases out of 84 in which an armed individual who had been on the scene used a firearm to stop the shooter. And none of the three were ordinary citizens. According to Blair, in two instances those who intervened were off-duty police officers: one in a case in upstate New York in 2010, and another in a case in Philadelphia in 2005. The third case took place in Winnemucca, Nevada, in 2008; the man there who intervened and shot the rampaging gunman, as I've reported previously, was a US Marine.
Granted, the NRA and other pro-gun folks have been giving Follman & company a litany of straw men to take down. (There's an argument that Follman overestimates the utility of training police get with the use of firearms which he believes makes them something other than ordinary citizens, and any number of instances of police overreacting and endangering the public with reckless shootings supports this, but it's beside the point here.) I don't think every citizen should be armed at all times, but I think every law-abiding citizen should be able to protect himself if he feels threatened. And while only a few mass shootings have been stopped by armed citizens, which I've already pointed out are themselves extraordinarily rare by any metric, the same is less true for more common crimes.

There are hundreds of documented cases of armed civilians stopping crime against themselves or others, and who knows how many robberies, rapes, and assaults are stopped by a citizen brandishing a weapon are never reported. The more zealous anti-gun folks support Vice President Biden's "if it saves one life" mantra for more gun control, but such simplistic sloganeering ignores the indisputable fact that, at least sometimes, guns save lives.

And in those instances, like this one in my old neighborhood, often don't find their way to national headlines because dozens of disrupted liquor store robberies in marginalized neighborhoods don't garner the same emotional effect as horrific scenes at middle class schoolhouses. And that makes complete sense when you're talking about what makes headlines, but national policy should be aimed at the broader problems: those issues which affect more people and have more common underlying factors like poverty, educational outcomes, high crime neighborhoods, drug abuse, and the like. But Follman exploits a freak and random tragedy in order to push new gun laws--none of which up for vote would have have affected Newtown one bit--without considering what impact they may have on places like the south side of Fort Wayne and any number of other cities where people have reason to defend themselves.

Law-abiding citizens have a right to protect themselves and have done so on literally countless occasions. Maybe "good guys with guns" don't stop random mass murderers, but they do stop a lot of other crime and save many lives. There is more to gun violence than mass shootings, and there is more to America than Newtown. Any new regulations should recognize both of these facts, where Follman recognizes neither.

bellum medicamenti delenda est

Wednesday, April 10, 2013

About Rand Paul's Howard Speech

Today I watched Sen. Rand Paul give a speech before Howard students on the relationship between blacks and the GOP. Much of my twitter feed watched the speech, but if without context you'd think they were watching completely different speeches by the tone of the reactions. The libertarians were more or less enjoying the speech, the Left seemed to be yelling in unison "WHAT ARE YOU DOING?!?" I find myself squarely in between these camps on this issue, but am closer to the Left in the speech's efficacy.
From the outset, Paul bombed with two opening jokes about how people had warned him about going to Howard, perhaps the most storied HBCU, because of its mostly black, presumably Democratic student body. While not really offensive, the jokes were inappropriate. The audience didn't need to be reminded about the Otherness with which Republicans view blacks and Democrats generally. (Say nothing of universities.) But out-of-place reminders seemed to be the order of the day for the junior senator from Kentucky.
Paul spent much of his speech retracing Civil Rights history and the role of the Republican party in it--conveniently glossing over anything since 1964. He was seemingly unaware that a university dedicated to black uplift would be peopled with individuals whose understanding of The Struggle is not only equal to but, in many cases, surely surpasses his own. While it may come as a shock to some people, black people are well aware of what the Republican party used to be. Paul compounded this problem by saying that it was the Democrats who were the slavery party and the party of Jim Crow.

Well, that's true enough, but the false equivalence of the Democratic parties of 1863, 1963, and 2013 is an insult to everyone's collective intelligence and he should be ashamed of himself for conflating them. Whether or not you buy Kevin Williamson's contrarian view of the modern Republican party, it is just wholly absurd to think the parties of Alexander Stephens and Richard Russell would ever nominate a black man as its titular leader. Think what you will of today's DNC, the word "Democrat" just doesn't mean what it used to and saying it does is contemptibly ridiculous.
 Paul's comments betrayed a low intellectual expectation and historical awareness of his audience. Given the venue, this is particularly insulting, and I would bet that cost him any credibility he may have earned by just showing up.
Unfortunately lost in all this, Paul finally began to talk about serious policy issues we face in this century toward the end of his remarks. He brought up two issues, specifically, that could begin to bridge the credibility deficit between the GOP and black voters: mandatory minimum sentences and the Drug War. On these issues, Paul is a solid senator and he's been getting better. But so much of his time and effort was dedicated to telling an audience that they've misunderstood the GOP and it hasn't changed from its Civil Rights heyday.

It is as if the leader of the new vanguard of the GOP decided to approach black America and say: "Come back! It's you, not us! But we forgive you for the misunderstanding."

Relatedly, I was baffled when he hailed the Reagan era as a sterling example of Republican vision to that audience. Whatever his economic policies did for the country, Reagan's escalation of the War on Drugs turned America's inner cities into the killing fields of that war. The mandatory minimum sentences Paul opposes today were ramped up in the Reagan era in response to the "crack epidemic," eventually culminating in the 100:1 sentencing disparity for crack to powder cocaine, only recently lowered to 18:1. Black people disproportionately suffered from that escalation and those laws, with bi-partisan consensus, no less. This is what he should have been driving home: that government, however well-meaning, can ruin lives and devastate communities through unintended consequences.

This is his view of government and, on these issues, young Democrats should work with the GOP to correct some of these horrible wrongs.
That's the history he should have begun, started, and ended with. Paul missed a great opportunity today. Let's hope the next time he tries something like this, and I sincerely hope he does, he comes with a higher estimation of the audience he's speaking to. Maybe then, if he focuses on today's issues and why his approach can benefit all people, and particularly the folks in his audience, he might leave the room with a little more respect than he came in with.
bellum medicamenti delenda est

Thursday, March 7, 2013

Rand Paul's Filibuster, Due Process, and Democratic Cowardice

I've never been a big Ron or Rand Paul fan. The elder's refusal to take responsibility for his racist fundraising emails in the 1980s is an inexcusable disgrace. Rand has publicly distanced himself from the "L-word," and proudly asserts his conservative bona fides. I am not anti-Pauls, but I'm not about to put a "Paul 2016" sign up in my window either.

But what Rand Paul did yesterday was remarkable and one of the greatest political moments of my life. For thirteen hours, Rand Paul held a basic--though imperfect--civics lesson, citing simple truths and fundamental rights that the Obama administration blithely asserts they can ignore. Only one Democrat, Sen. Ron Wyden, had the courage to quite literally stand up for what is right.

I say "imperfect" because, not only did he get some constitutional doctrine wrong, Paul became too distracted by "drones," the weapon with which the United States carries out much of its targeted killing program. Easily lost in his many hours of talk about drones and Hellfire missiles, Paul was making an extensive and coherent defense of Due Process and the fundamental rights every American has against his government. In the criminal realm, these rights include, but are not exclusive to:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Two witnesses. Overt acts.  Open court. For all the ambiguity in the Constitution, the requirements placed on the government to pursue charges of treason against a citizen are about as unambiguous as the document gets.

Yet, there isn't one of these rights and protections that isn't violated in its entirety by President Obama's "Kill list."

Since the birth of government thousands of years ago, rulers and despots have been ordering enemies killed for both just and unjust causes. It is the most brutal use of state power and it has been used and abused throughout the history of civilization.

But for almost 800 years, Western legal tradition has forbidden its use against its citizens. The rights listed above aren't some product of a bleeding heart ACLU lawyer, they have been formed by our  understanding of the rights of man since 1215. For reference, Genghis Khan was pillaging China when England decided, "Hey, maybe we should put in some safeguards to protect people from being indiscriminately killed by our leaders."

There is nothing that changed on 9/11 that should upend the wisdom learned over the greater part of a millennium.  The brilliance and beauty of our 224 year old system of government is that, at great cost and over time, it has continued to expand, not restrict, these protections that once were given only to "free men." The ancient right to Due Process was crafted over centuries, ultimately codified in our Constitution, to protect citizens from the unilateral actions of a government entity.

And yet, we have an administration that claims the power of assassination by executive decree, with no geographical boundary, and no reasonable understanding of "imminent threat"--the standard used to self-justify their secret decisionmaking.

When directly questioned by the Senate Judiciary Committee yesterday, whether the government had this power to order the domestic killing of an American citizen away from any cognizable battlefield, Attorney General Eric Holder essentially admitted as much, though he said it was highly unlikely they'd use it. Holder half-assed his answers, obfuscating as much as he could, in order to not say outright that the government can kill you without oversight or due process at its whim, dismissing the question because it was "hypothetical."

Yet, for another hypothetical, Holder didn't back down from specifics. This is the exchange Holder had with Sen. Grassley:
GRASSLEY: Once again, thank you for coming up here. I want to follow up on your response to Senator Cruz. And I think he talked about introducing a bill. Do you believe that Congress has a constitutional authority to pass a law prohibiting the president's ability to use drone aircrafts, to use lethal force against American citizens on U.S. soil? And if not, why not?

HOLDER: Do I think the Congress has the ability to pass such a bill?

GRASSLEY: No, whether the legislation -- well, yes, Congress has the constitutional authority to pass a law prohibiting the president's ability to use drone aircraft, to use lethal force against American citizens on U.S. soil.

HOLDER: I'm not sure that such a bill would be constitutional. I think that might run counter to the Article II powers that the president has. I'd have to look at, obviously, the legislation, but I would have that concern.

GRASSLEY: OK. But your basis is -- the why not, it'd be because of Article II?

HOLDER: I believe so, yes.
The  Attorney General of the United States's first reaction to a hypothetical bill to ban domestic drone strikes is to "have concern" that the President's power may be limited. Yet, the hypothetical nature of a question whether the government could summarily kill a citizen on American soil prevents him from unambiguously supporting 800 years of common law and the explicit text of the Bill of Rights.

I have a hypothetical for the administration:
A train is bombed by terrorists, killing over 100 people. A fingerprint pulled from the reconstructed device comes up with a match in the government's database. The fingerprint belongs to a Muslim American citizen living in Oregon. The United States has tangible evidence that he is responsible for over 100 deaths of innocents. Can the government kill him?
These facts aren't really hypothetical. In the wake of the Madrid train bombing, Oregon attorney Brandon Mayfield was taken into custody and held weeks without charge for a misidentified fingerprint. He was guilty of no crime, but government agents threw him in a cell and denied him his constitutional rights for weeks. Due Process should have protected him, but because he was thought to be a Muslim terrorist, his rights were ignored. Presented with tangible evidence in the wake of a mass casualty attack, in a world in which American terror suspects are routinely targeted abroad, it doesn't take a slippery slope to reach the point where a presidential hit is put on an American citizen in the United States. It just takes one step and a call to clandestine operations.

So when a U.S. Senator took to the floor to bring this bold assertion to the forefront of the public eye, only one person from the party that prides itself on its civil rights bona fides stood up to even question the claim. One.

I do not believe for one moment that most of the Republican senators, or even all of the Republicans who raised questions last night, agrees with Paul. They used his filibuster as a political tool to attack Obama. Under a Republican administration--which not a few of them imagine themselves to be someday leading--many would have no qualms whatsoever with this power. But this was an opportunity for the Democrats to stand up for what they claim to believe in, at no conceivable political cost from their constituents, yet all but one sat on their hands. They said nothing. They'll get no such support against executive overreach from Republicans during a Republican administration, and they know it, yet they just sat idly by as one man spent 13 arduous hours explaining the fundamental importance of Due Process and how assassination by executive decree, with no oversight or recourse, is anathema to a functioning republic.

Their silence was cowardice. They should be ashamed of themselves.

bellum medicamenti delenda est

UPDATE:   Adam Serwer reports that Holder has answered Paul:
"It has come to my attention that you have now asked an additional question: "Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?" Holder wrote. "The answer to that question is no."
Sigh. The drone issue continues to obscure the fact Americans have no legal recourse against a secret executive order to kill them, whether at home or abroad.

Monday, February 25, 2013

Justice Sotomayor on Racism in the Criminal Justice System

Thousands of cases are denied certiorari (hearing) in the Supreme Court every year. These denials, as well as other Court business, are released on Orders Lists on a fairly regular basis while the Supreme Court is in session. At the end of today's list, however, was a comment on a cert denial that I wanted to bring attention to.

Justice Sotomayor, joined by Justice Breyer, took time to address the repugnant behavior that prompted the case, even though they concurred that it wasn't a reversible error and denied cert petition. I've excerpted the relevant pieces below, taking out the legal reasoning for why cert was denied.

I write to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark. It should not.
 The issue of [Petitioner] Calhoun’s intent came to a head when the prosecutor cross-examined him. Calhoun related that the night before the arrest, he had detached himself from the group when his friend arrived at their hotel room with a bag of money. He stated that he “didn’t know” what was happening, and that it “made me think . . . [t]hat I didn’t want to be there.” Tr. 125–126 (Mar. 8, 2011). (Calhoun had previously testified that he rejoined the group the next morning because he thought they were finally returning home. Id., at 109.) The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prosecutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?


Calhoun, who is African-American, claims that the prosecutor’s racially charged question violated his constitutional rights. Inexplicably, however, Calhoun’s counsel did not object to the question at trial.

Given[...]the unusual way in which this case has been, litigated, I do not disagree with the Court’s decision to deny the petition.

There is no doubt, however, that the prosecutor’s question never should have been posed. “The Constitution prohibits racially biased prosecutorial arguments.” McCleskey v. Kemp, 481 U. S. 279, 309, n. 30 (1987). Such argumentation is an affront to the Constitution’s guarantee of equal protection of the laws. And by threatening to cultivate bias in the jury, it equally offends the defendant’s right to an impartial jury. Judge Frank put the point well: “If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that thirteenth juror, prejudice.” United States v. Antonelli Fireworks Co., 155 F. 2d 631, 659 (CA2 1946) (dissenting opinion) (footnote omitted). Thus it is a settled professional standard that a “prosecutor should not make arguments calculated to appeal to the prejudices of the jury.” ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3–5.8(c), p. 106 (3d ed.1993).

By suggesting that race should play a role in establishing a defendant’s criminal intent, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation. There was a time when appeals to race were not uncommon, when a prosecutor might direct a jury to “‘consider the fact that Mary Sue Rowe is a young white woman and that this defendant is a black man for the purpose of determining his intent at the time he entered Mrs. Rowe’s home,’” Holland v. State, 247 Ala. 53, 22 So. 2d 519, 520 (1945), or assure a jury that “‘I am well enough acquainted with this class of niggers to know that they have got it in for the [white] race in their heart,’” Taylor v. State, 50 Tex. Crim. 560, 561, 100 S. W. 393 (1907). The prosecutor’s comment here was surely less extreme. But it too was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason.

It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assistant United States Attorney for the Western District of Texas missed the mark.

Also troubling are the Government’s actions on appeal. Before the Fifth Circuit, the Government failed to recognize the wrongfulness of the prosecutor’s question, instead calling it only “impolitic” and arguing that “even assuming the question crossed the line,” it did not prejudice the outcome. Brief for United States in No. 11–50605, pp. 19, 20. This prompted Judge Haynes to “clear up any confusion—the question crossed the line.” 478 Fed. Appx. 193, 196 (CA5 2012) (concurring opinion). In this Court, the Solicitor General has more appropriately conceded that the “prosecutor’s racial remark was unquestionably improper.” Brief in Opposition 7–8. Yet this belated acknowledgment came only after the Solicitor General waived the Government’s response to the petition at first,leaving the Court to direct a response.

I hope never to see a case like this again. (emphases added)
I will not agree with much of Justice Sotomayor's jurisprudence, but kudos to her (and Justice Breyer) for admonishing the prosecutor and his federal apologists.

bellum medicamenti delenda est

UPDATE: Ken at Popehat brings up a good point: Why hadn't anyone called him out by name? (He is AUSA Sam L. Ponder.) I still think it's noteworthy that Sotomayor wrote what she did, but I leave to actual lawyers like Ken to complain whether or not namedropping him would be appropriate in the context of a legal opinion.

That said, Ken did what CNN, Chicago Tribune, other media (and I) failed to do: a casename search on PACER. Regardless of the reasons Justice Sotomayor didn't use Ponder's name, the media have a professional duty to find truth and should have done a simple search to find out. Thanks, Ken.

Friday, February 22, 2013

A Perspective of Time

This would probably be better if I had a Tumblr account, but I don't.
A perspective of time: 
I was 8 when I first heard racism directed at me. 
My youngest sister was born the year Malcolm was assassinated. She was about to turn three when Martin was killed. 
My father was 35 when DuBois died/during the March on Washington. 
My mother was 22 when Medgar Evers was killed. 
My paternal grandmother was 29 when Garvey's Black Star Line ceased operating. 
My paternal grandfather was 8 when Frederick Douglass died.

Tell me again about this distant past of which you speak.

bellum medicamenti delenda est

Friday, February 15, 2013

Some Thoughts on Fear and Gun Control

NB: my opinions alone, yadda yadda yadda.

As the New York Times noted this morning, most gun deaths in the United States are actually suicides—by a 2 to 1 margin. Thus, only about a third of Americans who die from guns are doing so by the will of another. Using 2012 data (courtesy of MoJo), there were 9,960 gun homicides in 2012, and roughly rounding the U.S. population using 2010 census data (~308,745,000), there were about 3.2 gun homicides per 100,000 people in America. That is, removing all risk factors, an American's chance of being shot to death in the last year was approximately .0032%. There is indeed a problem of gun violence in this country, but murder and other violent crime rates have been declining steadily over the past two decades. It's getting better, and we can find ways to make these numbers even smaller, but it's unlikely many of the newly proposed gun control measures will be effective in doing it. So why are they being pushed?

Earlier this week, a man was fatally struck by a train at DC's Gallery Place/Chinatown Metro Station during morning rush hour. I was running a little late that morning and that incident made me a lot later. At the time, we had no idea whether the person who was struck jumped, slipped, or was pushed, but everyone thinks getting hit by a train is tragic and awful. Yet, when the announcement came over my train's public address speaker, no one freaked out or even reacted at all, other than a couple eye rolls of frustration that their commute just got lengthened. No “Oh, that's a shame!” or “Oh my god, that's terrible!” Just a train of normal commuters reading their Kindles and filling out sudokus and crosswords like any other Tuesday train delay. A man's (presumed) death did not emotionally register with anyone on the train that I could tell.

While I was sitting there, I thought about the nonchalance with which the entire train took the person's probable death. I could be wrong, but I think that if he had gone to the platform at Chinatown at the exact same time for the exact same purpose, but pulled out a gun and immediately shot himself in the head, the reaction on the train at my station in Virginia would have been much different. Why?

Guns scare people. 

Despite the fact we stand on platforms waiting for zooming trains or get in automobiles unquestionably capable of killing us just as dead every day as part of our get-to-work ritual, people fear guns more even when used by someone on themselves alone. Sure, in theory, someone could pick up the gun after the man shot himself and harm others, but I would imagine most of the people on the platform would be too shocked to think “Oh, here's my chance to go on a rampage/rob a group of people at gunpoint!,” as if lack of opportunity is what prevents most people from doing it. Yes, guns are designed to be lethal whereas trains and cars serve other functions, but in this situation, the use of a gun would produce a much more shocking effect on the public—rather than just the witnesses on the platform and the poor train operator—despite being functionally indistinguishable to anyone but the emergency responders.

For comparison, 32,885 people were killed in fatal automobile incidents in 2010.* Roughly, then, any given American is more than three times as likely to die in a car accident than be shot to death if you ignore risk factors on both sides. That is, if you're not involved in the drug trade or in an abusive relationship, your odds of dying as a result of gun violence is even lower than the numbers above suggest.

There are numerous tragic exceptions, of course, but while firearms make violence easier, they are not the causes of violence. Policymakers should be addressing the causes of violence if the public safety were actually their primary goal. Instead, most of the gun debate operates on this emotional level detached from the actual harm to the general public because the people want to feel safe, despite the considerable safety most Americans already have.

This isn't to say we must preserve the status quo or that any new controls are an affront to the Constitution, because they may not be, but policies that are pushed by irrational fear of guns are unlikely to hinder gun violence because the root causes of most gun violence remain. Meanwhile, domestic violence and the Drug War rage on, and only so few in the gun debate are actually addressing them. 

bellum medicamenti delenda est 

*PS: Of course I understand that automobile deaths have decreased as cars have gotten safer and various other factors. But you're not going to make lethal weapons that much "safer" and simultaneously preserve their effectiveness. The point is not that cars are bad, but that the fears surrounding gun control are not generally borne out by statistics.

Tuesday, January 22, 2013

The Only Thing We Have to Fear is Josh Marshall's Fear Itself

Nota Bene: Given the sensitive nature of the subject, I want to reiterate my blog's disclaimer that this is a personal blog and not to be associated with my employer or imply their endorsement. Thanks, JPB

Last week, TPM's top-man Josh Marshall took it upon himself to speak for "his tribe": "non-gun people." I am not so bold as to speak for anyone but myself, but I think his post merits a response.

After recounting a childhood memory in which he found himself playing with an actual gun and pointing it at a friend, Marshall explains his discomfort with guns:
More than this, I come from a culture where guns are not so much feared as alien, as I said. I don’t own one. I don’t think many people I know have one. It would scare me to have one in my home for a lot of reasons. Not least of which because I have two wonderful beyond belief little boys and accidents happen and I know that firearms in the home are most likely to kill their owners or their families. People have accidents. They get depressed. They get angry.
In the current rhetorical climate people seem not to want to say: I think guns are kind of scary and don’t want to be around them. Yes, plenty of people have them and use them safely. And I have no problem with that. But remember, handguns especially are designed to kill people. You may want to use it to threaten or deter. You may use it to kill people who should be killed (i.e., in self-defense). But handguns are designed to kill people. They’re not designed to hunt. You may use it to shoot at the range. But they’re designed to kill people quickly and efficiently.

That frightens me. I don’t want to have those in my home. I don’t particularly want to be around people who are carrying. Cops, I don’t mind. They’re trained, under an organized system and supposed to use them for a specific purpose. But do I want to have people carrying firearms out and about where I live my life — at the store, the restaurant, at my kid’s playground? No, the whole idea is alien and frankly scary. Because remember, guns are extremely efficient tools for killing people and people get weird and do stupid things. (emphases mine)
As many caveats and explanation he gives, Marshall is simply stating that his feelings about guns are based on fear, and that fear is rooted in ignorance of the 'alien.' Indeed, after corresponding with a reader who was defending the right to open carry, he writes:

But at this point I was already starting to see red. I don’t pretend that [Marshall's interlocutor] is representative. But it captured a mentality that does seem pervasive among many more determined gun rights advocates — basically that us non-gun people need to be held down as it were and made to learn that it’s okay being around people carrying loaded weapons.
Well, I don’t want to learn. That doesn’t work where I live — geographically or metaphorically. (emphases mine)
This last bit struck me particularly, because he made this post about "his tribe." This fear of people unlike him and this idea that he's 'forced to accept' the rights of others often emanates from the more reactionary Right, usually regarding open displays of homosexuality or, more directly related to fear, when uncomfortable in the presence of racial or religious minorities.*(1)

Take the Juan Williams fiasco, in which Williams said that he was frightened by people on airplanes in traditional Muslim garb. Williams' forthright prejudice was a personal bias against Muslims, not reflective of any real threat from a Muslim just because he was wearing a keffiye. (Indeed, the 9/11 hijackers, the probable source of Willams' discomfort, were wearing Western clothes during the attack.)  Marshall's fearful explanation is no different, as the vast majority of gun owners are not criminals nor will they ever pose a direct threat to others or themselves. Similarly, it is the same sort of fear that motivates the cliched white woman to clutch her purse when in the elevator with a black man. Just as there are Muslim (and other) terrorists and black (and other) criminals, there are gun owners (and others) who kill people. In our society, the individual enjoys a presumption of innocence, particularly when exercising his or her rights. That guns give people like Marshall the creeps is not enough to restrict them at the expense of others' rights. Marshall's fear is just as irrational, if more understandable on some level, but his locked-in bias against guns isn't a policy argument.

I personally think that people carrying openly for its own sake is an ostentatious, provocative, and unpersuasive political gesture, but that's their right. Brandishing a weapon is still a crime, as it should be and where the fear of a "non-gun person" is justified, but the right to carry a gun should not be generally prohibited to law-abiding citizens. If it makes Marshall feel better, any law-abiding citizen may 'open carry' in Virginia, but you probably wouldn't know it by walking around Old Town or Arlington. Just because it's legal, it doesn't mean it's common or likely to become so. I can understand Marshall's hesitation to live in a city where most everyone is carrying a gun, though I wouldn't fear it as he does, but its sheer unlikelihood makes it the most fanciful of his many listed fears and thus he need not "learn" that, despite what the other tribe is saying.

But there are plenty of legitimate reasons that someone may want to carry a weapon. Take, for example, what a facebook friend of mine recently posted (verbatim):
I lived in NYC for 10 years, without ONCE fearing for my safety. Yet, it's only when I move to the nation's capital (how ironic is that?) that I find myself truly on alert. After 2 gay men were attacked 3 blocks from my home, it finally dawned on me that I'm not in the Big Apple anymore and that perhaps, I need to learn some self-defense. But another thing dawned on me too: the conversation about guns and gun violence is mostly taking place among people who live in safe environments and can therefore feel confident in telling others they don't need a gun to defend themselves. It would really interest me to hear what less privileged people-- who live in higher crime areas-- have to say about the issue. I don't think anyone is listening to them right now.
I can't imagine she's alone in her particular fear, as brutal attacks on gays and other Queer minorities seem to be on the rise in the District.**(2) As to her revelation about privilege, Marshall virtually stipulates his own in his post.

In another context, the last time I saw my father carry, he was transporting a considerable but not huge amount of money in order to purchase a car from a neighbor whom he'd known for over 60 years. My father and his friend lived in a neighborhood in which break-ins induced more than a few homes to have bars on doors and windows, and thus he felt he—a fit man, but in his 70s at the time—could use protection in case someone decided to rob two seniors who they heard had a bit of money on them. (In my experience, many robberies are crimes of opportunity by which someone takes action after learning a piece of otherwise innocuous information.) Gun bans, such as those struck down in D.C. and Chicago, would have made criminals of my father and his friend, whom I recall was also carrying that day—or, alternatively, it would have made them more vulnerable to potential criminals who were neither persuaded nor hindered by gun bans. My father had personal reason to be wary, as many years before, and an off-duty police officer at the time, he once stopped his own mugging with his concealed service weapon.

I've never pointed a gun at anyone, but I had one at-the-ready when a friend of my then-girlfriend was a victim of domestic violence and escaped to our place. The abuser, on a previous friendly(-ish) occasion, decided to fireman-carry me up a flight of stairs on a lark. Despite being six feet tall and weighing over 200 lbs., I was upside-down and half up the stairs before I knew what was going on. I would be no match for him in a fistfight, and any non-firearm weapon would require close contact, which would leave me vulnerable to being overpowered. Furthermore, it was very likely he knew where she was. Fortunately, I never had to use that gun, but we slept more soundly that night knowing we had an effective defensive deterrent in case we needed it.

When you think about it, a considerable amount of gall is needed to deny the right of self-defense to others just because it makes you feel uncomfortable. I grant that perhaps Marshall was just speaking his mind and not actually pushing back against the right to carry, but the Left's push for legislation similarly relies on fear and their own notions of propriety. I'm not asking, let alone 'holding down,' anyone to enthusiastically accept gun rights. But Marshall and others should understand that a relative feeling of safety without a weapon is far from universal. Good for him that the idea of personally defending himself or his family against attack is an alien concept, but that's simply not the case for everyone, even in the "good" neighborhoods in D.C..

We can debate options for the future, such as expanding gun safety training to anyone who seeks to carry firearms publicly or various restrictions on time and place for carrying, but prejudicial fear of the presence of a loaded gun, however palpable to some, does not remotely approach the threshold appropriate to deny a responsible, law-abiding citizen his or her most fundamental right to self-defense.

I speak for no one but myself, but I understand the sometimes-imminent necessity of firearms for people that may not have the luxury of waiting for a 911 response. There are many who choose not to use firearms for self-protection, which is fine and I'm not telling them they should. But there are some who, at one time or another, feel safer carrying a weapon for self-defense, and their rights should be respected—despite the fears of Josh Marshall.

bellum medicamenti delenda est

*(1)This is not to say, at all, that gun owners are being persecuted like blacks, Muslims, or other minorities have been or currently are—it's that Marshall's remarks bear a strong resemblance to the myopic mentality that, in other contexts, sometimes feeds persecution: 'I don't want to learn in order to respect your rights.' To wit, direct comparisons to the Civil Rights Movement, Nazi Germany, and Stalinist Russia that many virulent gun-rights supporters have invoked are entirely off-base and offensive. American gun owners may have reason to be wary of potential government action, but they have no reasonable fear of oppression against them. Absolutely none. 
Furthermore, it should not be inferred that I think Marshall is a bigot. It's just that Marshall admitted his own close-mindedness about people carrying firearms and, to a "gun person," its syntactical resemblance to other forms of prejudice is unmistakable. That does not mean, however, the effect of his particular prejudice bears the same cultural weight as racial, religious, or identity prejudice—nor do I think it makes him a bad guy.

**(2) I use "Queer" as an all-encompassing term for non-heteronormative genders and identities. Though in context it should be obvious, I wanted to make clear since I'm a straight guy loosely  right of center.

Wednesday, January 16, 2013

How Mother Jones makes my case against the assault weapons ban

Nota Bene: Given the sensitive nature of the subject, I want to reiterate my blog's disclaimer that this is a personal blog and not to be associated with my employer or imply their endorsement. Thanks, JPB

As we anticipate the coming fight over whether or not Congress should reinstitute the nationwide Assault Weapons Ban, I'd like to thank Mother Jones for making my case for me: no.

Now, in recent months—well before the tragedy at Newtown—a few folks at MoJo had been reporting on mass shootings and their recent frequency. They started collecting data on the numerous shootings over the past 30 years or so and recently put it all in a very convenient spreadsheet. If you click on the “weapon categories” tab, it breaks down the number and types of weapons used in each attack. What I found interesting is that assault weapons, the floated focus of the President's gun proposal, are used in a minority of the mass shootings. In addition, there were nearly as many used in mass casualty events during the 10 years of the last assault weapons ban (13) as there were in the 12 years previous (14). Since the expiration of the AWB in 2004, there have been 8 assault weapons used in mass shootings.

So, what we have is national legislation aimed at 35 weapons that were used in 25 instances over 31 years in a nation that contains approximately 300 million guns. What's more, the last time this ban went into effect, it failed to stop the acquisition and use of over a third of all assault weapons used in mass shootings since 1982. This legislation is likely to be wholly impotent to stop mass violence—the catalyst for this legislation.

In no other arena of public policy, save perhaps drug policy, would such inefficacy be so proudly touted as meaningful. And perhaps most frustrating, there is going to be so much self-righteous ink spilled all over this absolutely worthless legislation that, even if passed, will have no meaningful effect on gun violence. What a miserable waste of time and energy is on the immediate horizon. 

Welcome to D.C.'s latest dog and pony show.

bellum medicamenti delenda est

Sunday, January 13, 2013

Aaron Swartz And Our Broken Justice System

I didn't know Aaron Swartz, and I have no idea whether his legal troubles contributed to his decision to kill himself Friday. But I do know his federal prosecution for downloading copyrighted information from JSTOR, the online database of social science articles, was overzealous and out of proportion for the alleged offense he committed. Indeed, even JSTOR itself was not supportive of the federal government's actions against Swartz.

For some context, I turn to Swartz's friend and one-time lawyer, Harvard Law professor Lawrence Lessig:
Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed. (emphasis in original)
I would think most of us who deal with academic articles and journals for a living think of the services like JSTOR and Lexis-Nexis as quasi-necessary gatekeepers to information we can get on our computers that save us a trip to the local law library. (Indeed, I have a much higher respect for Swartz's similar actions against PACER, a service that charges $0.10 per digital page viewed of court—i.e., public—documents that have no protection of copyright or intellectual property claims. The DOJ opened an investigation but then dropped the case.) But I don't think any of us who may have shared a file against the terms of service should be prosecuted for essentially doing what Swartz did, albeit on a much larger scale.

The United States Attorneys office increased Swartz's original four felony charges to thirteen this past September. Before the increase, Swartz was already facing a potential $1m fine and 35 years in prison for taking the gates off of academic articles. Even if we decide that we want these things to be policed, a 35-50 year prison sentence for temporarily opening a backdoor to information academic navel gazing is patently absurd.

But while many are outraged at the actions of the U.S. Attorney in the wake of Swartz's death, it should be said that over-prosecutions are standard operating procedure for U.S. Attorneys offices across the country. As I've documented before, U.S. Attorneys—and Assistant U.S. Attorneys—have a very wide latitude in whom they prosecute for what offense. Even when a directive from Washington says, for example, "Don't go after medical marijuana dispensaries that are in compliance with state laws," U.S. Attorneys ramp-up efforts and prosecutions. Just this past week, Aaron Sandusky was sentenced to 10 years in federal prison for compliance with state law.

Being in the U.S. Attorney's office is often a stepping stone professionally. On one hand, an "accomplished" USA/AUSA can walk into a partnership at a Big Law firm, a giant payday which may be a professional end point in itself. On the other, some USAs/AUSAs have higher goals, such as federal judgeships or political office. Former Massachusetts governor William Weld made a name for himself zealously prosecuting white collar crime as a U.S. Attorney, and former mayor of New York City and one-time presidential candidate Rudy Guiliani made his bones taking down organized crime as U.S. Attorney in the Southern District of New York. (In that district alone, former AUSAs include, inter alia, two former Supreme Court justices, a governor of New York, one prominent Congressman, a former FBI director, and a former U.S. Attorney General.) If you're an ambitious young lawyer, the U.S. Attorneys Office is the place for you.

Behind any high profile federal case, there is a USA or AUSA standing to gain professional notoriety for it. The Martha Stewart insider trading investigation made headlines, but it turns out her initial "crime" was nothing, so she was actually prosecuted for making false statements to investigators. (That charge, too, was weaksauce.) Nevertheless, the man who prosecuted Stewart became the number two man at the DOJ and, for a time, Acting U.S. Attorney General. His name has also been bandied about for a possible SCOTUS nod. After all, at the end of the day, he got a conviction—that the underlying issue wasn't a crime is, to the DOJ, beside the point.

This is not to say it's all about headlines. Less ambitious USAs go for lower hanging fruit, like arrowhead collectors:
Eddie Leroy Anderson of Craigmont, Idaho, is a retired logger, a former science teacher and now a federal criminal thanks to his arrowhead-collecting hobby.
In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities "notified me to get a lawyer and a damn good one," Mr. Anderson recalls.
There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn't require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit. Faced with that reality, the two men, who didn't find arrowheads that day, pleaded guilty to a misdemeanor and got a year's probation and a $1,500 penalty each. "We kind of wonder why it got took to the level that it did," says Mr. Anderson, 68 years old.
Wendy Olson, the U.S. Attorney for Idaho, said the men were on an archeological site that was 13,000 years old. "Folks do need to pay attention to where they are," she said.
The U.S. Attorneys offices prosecute whomever they want, for whatever they want, and there is no shortage of laws—and potential laws—with which they can do it. Mr. Swartz may have done wrong by JSTOR, and perhaps he even deserved to pay a fine for his misdeeds, but a two year federal investigation and the threat of putting a young man in prison for the rest of his life was a despicable and wasteful effort by the federal government. Unchecked and vindictive prosecutions ruin lives, and those who are responsible for them should not be rewarded with political office.

We need federal attorneys, and we need them to have a certain latitude in what cases they do, and do not, pursue. But the Department of Justice should rein in its prosecutors and police their activities more closely. Directives from Washington should discourage unjust prosecutions, promote prudence, and tolerate—if not encourage—discretion. And, unlike the current system, these directives should have teeth. Disregarded memos are not emblematic of functioning government. Nor should win totals and headlines be the measure of a United States Attorney.

bellum medicamenti delenda est

PS: Those interested in learning more about rampant overcriminalization should look here and here. I also highly recommend Harvey Silverglate's book "Three Felonies A Day: How the Feds Target the Innocent."