A Few Thoughts on Garland v. Cargill

The recent SCOTUS decision, along partisan lines, in Garland v. Cargill was both predictable and legally correct.  The ruling is based on the language of the 1934 National Firearms Act, which, in outlawing private ownership of machine guns, defined such a gun as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.”

At issue was an initiative by the ATF to ban bump stocks in the aftermath of that asshole in Las Vegas killing 60 country music fans and wounding over 200 others in 2017 by employing the device.  Bump stocks don’t, technically, transform a semi-automatic weapon into a “machine gun” according to the specific definition of that law; they merely create fundamentally the same effect.  In other words, this case was a showdown between ontology and phenomenology or, less pretentiously, between literality and functionality.

It is not surprising that the trio of liberals on the Court argued for more restrictions on weaponry and the sextet of conservatives thought otherwise.  But it may be that those political perspectives weren’t really at the center of the justices’ respective votes.  Giving them the benefit of the doubt, we could reasonably argue that the majority simply looked at the definition of “machine gun” in the law, and the minority chose to rely on the way the term is used in common parlance.  (Both sides, of course, are slaves to semantics when it suits them, and to mind-reading when literality doesn’t achieve their desired goals.)

Bump stocks weren’t invented until the 2000s and therefore could not have been explicitly included in a law written nearly three generations earlier, but it’s reasonable to view the inclusion of bump stocks as a logical extension of that law’s intent.  Bump stocks do indeed create the effect of an automatic weapon, even though the way they achieve that end is not exactly what the 1934 law describes.  Justice Sotomayor’s dissent even invokes a familiar aphorism: “When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck.”

Side note: it was almost exactly three years ago when Curmie wrote about a SCOTUS case in which the fact that a law specified a definition of a term thereby made the conventional meaning of a term irrelevant.  Part of that ruling was, “When a statute includes an explicit definition of a term, we must follow that definition, even if it varies from a term’s ordinary meaning.”  So, the majority is correct in legal terms… and that’s what matters.

Let me also say that headlines like the one used by the  Fox affiliate (!) in Spokane, “The gun technology used in the 2017 Las Vegas shooting was just okayed by the Supreme Court,” are technically accurate but clearly misleading, intended to titillate rather than inform.

SCOTUS didn’t say that bump stocks ought to be permissible; they determined, rather, that they were not banned by existing law, and therefore that ATF overstepped their authority.  Justice Alito makes this clear in his concurrence:

The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning.  That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b).  But an event that highlights the need to amend a law does not itself change the law’s meaning.

There is a simple remedy for the disparate treatment of bump stocks and machineguns.  Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation.  Now that the situation is clear, Congress can act.

Curmie notes in particular two things about what isn’t said: first, most (not all) of the news coverage of the ruling omits the fact that the ATF that sought to ban bump stocks was part of the Trump administration.  Presumably, then, the Grand Wizard of the GOP approves of the ban, or at least did nothing to stop it under his regime.  The chances his minions would let a redefinition of “machine gun” make it to the floor of either house of Congress in this election year: zero.

More importantly, take a good look at what Alito says above, Gentle Reader.  He argues that ATF exceeded its authority by, in effect, attempting to enforce a law that doesn’t exist.  But he also suggests that Congress not only could, but “need to” amend the law to include bump stocks.  That’s about as close as a conservative jurist is ever going to come to endorsing anything in the same universe as gun control.

What’s really significant, though, is that nowhere in Justice Thomas’s rambling majority opinion (did he get his degree in the Department of Redundancy Department, or what?) or in Alito’s more succinct and cogent concurrence is there any indication that there would be anything constitutionally problematic about a law that did explicitly outlaw bump stocks. 

This relates to an argument that Curmie has made several times, most comprehensively and explicitly here, that we already have limitations on private ownership of certain kinds of weapons, including, for example, nuclear submarines, surface-to-air missiles… and automatic rifles. 

So we’re left with two points.  First, that not banning weapons systems that perform the same function as what were described as “machine guns” in 1934 makes no logical sense, and failure to do so can only be ascribed as capitulation to the gun lobby at the expense of the populace.  But we all know that, just as we all know that such legislation won’t happen until the GOP starts caring more about constituents than about their campaign contributors, or until the Dems have control of the White House, a clear majority in the House, and the ability to enforce cloture in the Senate.  Not in the foreseeable future, in other words.

Second, that adjusting an existing line that separates the legal from the illegal is a fundamentally different thing than creating a line that was hitherto non-existent.  In other words, discussions about also limiting or denying access to semi-automatic weapons are absolutely legitimate, and should not be derailed simply by a blinkered interpretation of what is and is not constitutional. 

What, other than adherence to a reading of the 2^nd amendment that casually ignores the phrase “well-regulated militia,” is the argument in favor of allowing these weapons to be available to the likes of Adam Lanza, Nikolas Cruz, or Stephen Paddock?  Somehow I suspect I’ll never be satisfied with the answer to that question.

On Disagreeing, Then Agreeing, Then Disagreeing with SCOTUS

Curmie first read about Van Buren v. United States from the NPR article by Nina Totenberg, with the headline, “Officer Who Sold Police Computer Data Gets A Pass From The Supreme Court.” (I’m hoping Totenberg didn’t write that misleading and ill-constructed headline.) 

Generally, Curmie reads one article about a SCOTUS decision, nods, and moves on. Occasionally, there’s a topic I really care about, and once in a while one of the Justices says something intriguing and I want to know the context. The reason I wanted to know more about this case, though, wasn’t any of these, or indeed the clickbait headline (NPR should be better than that). Rather, based on the article, Curmie found himself agreeing with the dissent (no surprise there)… and therefore agreeing with Clarence Thomas and disagreeing with the three liberals. That is a surprise.  This phenomenon required investigation! 

The facts of the case are not in dispute. The police force in Cumming, GA, was warned to treat a certain Andrew Albo with suspicion. Then-Sergeant Nathan Van Buren ignored this advice and struck up a friendship with Albo; after some time he asked Albo for a loan. Unbeknownst to him, Albo recorded that conversation and claimed Van Buren was trying to “shake him down.” 

The FBI got involved, and set up a sort of a sting operation. Albo said he’d pay $5000 to Van Buren to find out if a woman he’d met at a strip club was actually an undercover cop. He provided a (false) license plate number, which Van Buren checked out, accessing the information through the computer in his squad car. The FBI then closed in, and Van Buren was arrested and subsequently convicted of violating the 1986 Computer Fraud and Abuse Act. Of course, Van Buren was also fired from the police force. 

Ah, but he appealed the conviction, claiming that the law applies only to hackers who have no legitimate right to the information on a computer, not to people like him who had legal access but abused that right for personal gain. It is an argument only a lawyer, and a rather slimy one, could love. And it worked, as SCOTUS vacated his conviction on a 6-3 vote. 

Totenberg points out that “much of the high court debate on the question turned on the meaning of the word ‘so.’ To say more than that would be a waste of the reader’s time.” That’s cute, and Curmie sees what she means, but when policy is determined by an interpretation of a single two-letter word (remember “is”?), it’s not really a waste of anyone’s time, albeit that the topic seems rather arcane. 

The full context of that problematic monosyllable is this: that, according to the CFAA, the term “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter” (emphasis added). 

So (see what I did there?), when I started reading the decision, I expected to find myself rejecting the majority’s opinion. I didn’t. In fact, the argument about “so” appeals to Curmie’s inner Grammar Nazi. The law shouldn’t be written to allow scumbags like Van Buren to slither through unscathed, but it just might be. Without “so,” he’s got no case. With it, though, the majority can reject the common, logical (“common parlance” in legalese) definition of “exceeds authorized access” because, by precedent, “When a statute includes an explicit definition of a term, we must follow that definition, even if it varies from a term’s ordinary meaning.” 

That is, if the law didn’t define “exceeds authorized access,” since everybody knows what that means, Van Buren would be cooked. But since it does, we can now quibble over “so,” meaning, presumably “in the described manner.” Van Buren did, according to the majority’s reading, have authorized access according to the narrow definition of the statute, it was his purpose that was illegitimate. 

The majority even suggests that the Government’s reading of the law would make criminals of virtually everyone, since we are technically not allowed to use the work computer for anything but work. Thus, checking the news, scrolling through Facebook (or Curmie’s blog) during a break, sending a personal e-mail: all of these would be rendered illegal. 

So (I did it again, see?) I was persuaded. And then I read the dissent, which concentrates on the word “entitled,” centering on the idea that such entitlement is defined circumstantially. If a valet takes access to a car to park it, he is entitled to do so; if he takes it for a joy ride, he is not. This, too, is a persuasive argument, and one Curmie understands. 

For many years, one of Curmie’s departmental service functions was to determine students’ eligibility for production work. Our standards were rather complicated, so the process began with having the administrative assistant running a computer-generated report. Students whose names were not on the list were automatically eligible, but there were a variety of reasons why someone whose name did appear would still be eligible. 

All of this means I had to examine the transcripts of a number of students. Sometimes, because I mistyped, or because there are two students with the same name, I opened the file of a student whose transcript I had no legitimate right to see. Would such a mistake, corrected within seconds, subject me to criminal liability if the government had its way? I doubt that anyone would go that far, but technically… maybe, as there does not appear to be anything in the CFAA about intent.  But certainly I have no right to scroll through student records just for the fun of it.

But if we’re to believe the Van Buren team, as long as I have legitimate access to the system, I can use it however I want without breaking the law? I read about a case (can’t remember enough details even to look it up) in which the ex-husband’s new girlfriend looked up the transcript of the ex-wife to use as leverage in a custody dispute. Seriously, this doesn’t break some kind of law? 

Here’s where Curmie repeats that he’s not a lawyer, and that he understands that what is legal and what is ethical are not identical concepts. The law is unquestionably poorly written, and as I tell students all the time, I can only judge what you say, not the best-case scenario of what I think you might have meant to say. Similarly, it’s SCOTUS’s job to determine what a law says; only in cases of extreme ambiguity should they be deciding legislative intent. 

If nothing else, Curmie is actually encouraged by the fact that whichever side of this argument we ultimately support, it pretty easy to see why the other side disagrees. Even Justice Clarence Thomas’s supporters will grant that his lines of thought are sometimes, shall we say, eccentric, and Curmie has thought of him as an intellectual lightweight since his confirmation hearings (leaving aside the whole Anita Hill controversy). But his dissent is well-reasoned and compelling, even if we end up deciding in the other direction. We can hope for little more from SCOTUS.

Antiphon Is Always Welcome at Our Tea Party

I was discussing Oedipus the King with my freshman-level Play Analysis class the other day, and I wanted to talk about how notions of guilt and innocence were different for the Greeks than for us. Today we have all manner of tests of intentionality; for the Greeks, it pretty much boiled down to one thing: what happened? They weren’t much concerned with motivations or similar psychological analysis. The fact that Oedipus tried valiantly to avoid his prophesied fate only to commit his horrible acts in direct consequence of his attempted circumvention of them may have made Oedipus more sympathetic, but it had precious little to do with his guilt, as far as either the Thebans of the fictive world or the Athenians of the real-world audience were concerned.

There were in fact different punishments for crimes committed intentionally and unintentionally in ancient Greece, but there was no need, for example, to show negligence to convict someone of an accidental crime. Thus, it is all but irrelevant that Oedipus unquestionably believed beyond the proverbial shadow of a doubt that his parents were back in Corinth when he killed his biological father in the world’s first recorded incident of road rage, and subsequently became, literally, a BAMF.

To illustrate the point, I mentioned the events enumerated in the Second Tetralogy of the orator Antiphon. What happened was this: a young athlete was practicing javelin-throwing. A little boy ran out onto the field to collect the javelins just as the young man released his next heave. As luck would have it, the spear penetrated the boy’s ribs, and he died on the spot. No one claimed the death was anything but accidental, or indeed that the young javelin-thrower had failed to take proper precautions. Indeed, all agreed that his throw was well within the boundaries, and that he had done nothing wrong in ethical terms. Still, the boy’s father accused the young man with accidental murder, a charge which carried a penalty of a year or more of exile. (The defense in the case seems to argue that the young man is in jeopardy of a death sentence, but this is a wild exaggeration. Go figure: a lawyer who distorts the truth.)

Here’s where Antiphon enters the picture, as an orator (or, more accurately, logographos, or speechwriter) hired by the defense. (The orator wrote the argument, but it was delivered by someone else, in this case the young man’s father.) He can’t argue that accidents happen, and that, in the absence of negligence, there’s no case. In a society that cared about the notion of pollution, with a stain clinging to anyone who kills, even inadvertently, that argument would go nowhere. So what Antiphon argues instead is that his client is in fact the aggrieved party… after all, he didn’t get to see how far his throw was because that pesky kid got in the way:

because the boy ran under the trajectory of the javelin and placed his body in its path, one of them was prevented from hitting the target, whereas the other was hit because he ran under the javelin…. Since the young man made no mistake, it would not be fair for him to be punished for someone else’s mistake; it is enough for him to bear the consequences of his own mistakes. But the boy was destroyed by his own mistake, and the moment he erred, he also punished himself. Therefore, the killer is punished and the death is not unavenged.

Really, it was damned decent of the young man’s father to allow the boy to escape without further punishment. I mean, interfering with a javelin-thrower’s workout is a serious offense.

I didn’t go into class thinking I was going to talk about Antiphon, but the anecdote came into my head in the middle of the discussion. And then, just as quickly, it was returned to the back of my mind, to that intellectual space that occasionally gets dredged for a pertinent tidbit, but basically is just allowed to simmer on the lowest possible heat. Or so I thought. A couple days later, we got the modern challenger to Antiphon’s title of Most Outrageous Case of Blaming the Victim in Recorded History. You see, that was when it became public knowledge Heritage Foundation consultant, Tea Party doyenne, and wife to a US Supreme Court Justice, Virginia Thomas, proved she’s an even bigger idiot than hubby by leaving a voicemail on the office telephone of now-Brandeis professor Anita Hill. To “[extend] an olive branch to her after all these years,” as she subsequently claimed to a reporter who wondered, in effect, what the hell she thought she was doing? Hardly. No, the actual message included this: “I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband.” I suspect I wasn’t the only middle-aged American to do a spit take at that one.

The request that Ms. Hill should be asked to apologize nearly 20 years after the fact for damaging the reputation of a Supreme Court nominee who was confirmed anyway, and who went on to be one of the biggest disasters and, by objective standards, most activist, judges ever to serve on the SCOTUS is, well, nigh onto mind-boggling. More to the point, the preponderance of the evidence, then and now, suggests that Justice Thomas was at best a creep and at worst a felon. [In the interest of political fairness, I note that the same description would apply to Bill Clinton.] Ms. Hill, was, after all, the alleged victim. I’d make a more direct analogy to running under a javelin, but the Freudian implications of such a linkage would send my laptop metaphorically screaming into the night.

At best, Ms. Thomas’s ill-conceived scheme highlighted the inanity if not insanity of the Tea Party hierarchy, not to mention serving as a reminder of the true Astroturf quality of the movement: nothing says “just folks” like the spouse of a Supreme Court Justice, after all. Nor did it do anything to dispel the developing conflict-of-interest allegations about Justice Thomas (and his more-evil-because-less-stupid sidekick, Antonin Scalia) participating in Koch-funded strategy sessions.

But Virginia Thomas’s inter-personal and political clumsiness quickly paled in comparison to another, even more accomplished, practitioner of Blame the Victim. After all, it is conceivable that Ms. Thomas might have a point. The fact that such likelihood is roughly equal to Louis Gohmert’s losing his seat in Congress this week (his only opposition is a Libertarian, as the Democrats are characteristically too cowardly to field a candidate against one of the most embarrassing Representatives in history) doesn’t change the fact that there’s a possibility that Ms. Hill’s accusations were spurious. There is no definitive proof; one could make a case that one’s conclusions on the case might tell us more about the observer than about the evidence. Besides, it is not unreasonable that a wife would take her husband’s side in such a dispute, even if the majority of the population didn’t concur. The whole demanding an apology thing may be a bit much, but spousal loyalty in general is not to be disparaged.

No such possibilities admit themselves in the case of Tim Profitt, the Rand Paul-supporting goon who is caught on tape literally stomping on the head of a defenseless MoveOn.org operative named Lauren Valle. It doesn’t matter what went before. It doesn’t matter whether she instigated the confrontation. It doesn’t matter that, if so, MoveOn.org was simply taking a page from the FreedomWorks bag of tricks, employed a few months ago by that particular Astroturf cabal to disrupt town meetings on health care reform. What matters is what we see on the tape: a young woman wrestled to the ground by one man (without context, we can’t tell, but this part could have been a legitimate attempt at crowd control), and then having her face stepped on, quite intentionally, by another man, causing a concussion.

In any sane universe, there is only one response to this latter action: immediate arrest on battery charges and an equally immediate repudiation of such thuggery by the candidate. Imagine my surprise that neither happened. Mr. Paul distanced himself from Profitt, one of his county organizers, without really condemning his actions:

...there was a bit of a crowd control problem. I don't want anybody, though, to be involved in things that aren't civil. I think this should always be about the issues. And it is an unusual situation to have so many people so passionate on both sides jockeying back and forth. And it wasn't something that I liked or anybody liked about that situation. So I hope in the future it is going to be better.

The Paul campaign (as opposed to the candidate himself) released a statement condemning “violence of any kind,” but (of course) softening the blow by addressing “supporters on all sides.” They were also “relieved to hear that the woman in question was not injured.” A concussion and a sprained shoulder = “not injured” to the Paul campaign. At least they're consistent: nothing else that comes out of that campaign comports to reality; why should this?

And the knuckle-dragging drooler who committed the assault? As far as I can tell, he’s still at large, blaming the police and Ms. Valle, and… wait for it… demanding an apology! How dare the physically restrained Ms. Valle allow her head to interpose itself into the path of Mr. Profitt’s foot? Outrageous!

Antiphon would be so proud.