Most readers here know that Curmie reads Jack Marshall’s Ethics Alarms blog fairly regularly. The motivation has changed a little over the years: Curmie finds himself agreeing with Jack’s positions a lot less since the site has (often) devolved from an ethics orientation into a mouthpiece for Republican politics. But whereas some of his critiques of Democratic chicanery or incompetence are based on little more than partisan demagoguery, many are not, and Curmie would like to fancy himself not naïve to the faults of those with whom he shares (most of) a political weltanschauung. He’s no fan of Joe Biden, but given the alternative… well…
Still, when the subject is politics (especially guns or abortion), Curmie tends to disengage, largely because he sees both Jack and the overwhelming majority of his readership as incorrigible (as they no doubt see him), not worth arguing with about certain issues. Sometimes, though, there’s the proverbial straw, and we got one of those moments a couple of days ago.
To wit: a post with the headline “Incompetent Elected Official Of The Month: Sen. Chris Murphy (D-CT.).” And what egregious violation of good governance had Senator Murphy committed? He had the audacity to suggest that if the Supreme Court continues to deny the government (federal, state, or local) the right to insist on background checks or to control the availability of assault weapons, people aren’t going to like it, and they’re going to regard SCOTUS as even more illegitimate than they do now.
To be fair, there’s a bit of hyperbole in Murphy’s commentary; curiously, Curmie doubts that he is the first politician ever to exaggerate for effect. But let’s be serious for a moment. Allegations with some apparent legitimacy have recently been leveled against Justices Thomas and Gorsuch (Curmie is unimpressed by what appears to be partisan puffery directed at Chief Justice Roberts).
There have been calls for Thomas to resign (including from Jack Marshall, to be fair), but there really isn’t a means of policing SCOTUS. They recuse themselves when they feel like it, make overt political statements when they feel like it, push (or transgress) the boundaries of ethics when they feel like it, all with no structure in place to keep them honest.
Justices serve until they die or just don’t want to continue, there’s no impeachment process, and, of course, they are appointed and confirmed on almost exclusively political grounds. If you believe there’s been a single confirmation hearing in the last 30 years that actually mattered, this is probably not the blog you should be reading, Gentle Reader. Curmie writes for grown-ups.
Democratic candidates have won the popular vote for President in seven of the last eight elections. But because of pure chance, the arcane Electoral College, and the despicable maneuvering of Mitch McConnell, five of the eight current justices who took office in that period were nominated by Republicans. (Justice Thomas was confirmed prior to the period in question.) Donald Trump recently claimed agency in overturning Roe v. Wade. For once, he told the truth. You can be sure of two things: that there was absolutely a litmus test for prospective nominees on the issue, and that Gorsuch, Kavanaugh, and Barrett all lied to the Senate (and to the citizenry) about their attitude towards Roe. (N.B., Democratic nominees lie, too, but that’s outside the scope of this essay.)
So it can certainly be argued that the reputation of SCOTUS has suffered more than a little in recent months. Acknowledging that fact doesn’t seem particularly outrageous.
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| The only thing you hunt with this is people. |
See, the 2nd Amendment has this annoying little phrase, “well-regulated militia,” which the NRA and their minions would prefer didn’t exist, so they pretend it doesn’t. The idea that literally anyone can purchase any weapon they choose is inane. And that’s not just Curmie saying it. Former Chief Justice Warren Burger, a conservative appointed by President Nixon, did indeed say that the gun lobby’s interpretation of the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”
Elsewhere, he wrote that “The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.” Later in the same article he argues that “surely the Second Amendment does not remotely guarantee every person the constitutional right to have a ‘Saturday Night Special’ or a machine gun without any regulation whatever. There is no support in the Constitution for the argument that federal and state governments are powerless to regulate the purchase of such firearms…”
Curmie happens to agree with Chief Justice Burger, but at one level that’s not even the point. What is unassailable is that SCOTUS decisions are made by whoever happens to be on the bench at a given moment; they are intended to become precedent-setting, but not immutable, much less sacrosanct. If they were, we’d still be operating under Plessy v. Ferguson and (oh, yeah) Roe v. Wade. And, like it or not, the wisdom of recent SCOTUS rulings on gun control is, at the very least, contestable.
Curiously enough, many most of the same people who bellow full-throatedly that we cannot question the advisability of adhering chapter and verse to the NRA’s dictates on gun control because it’s “settled law” seem not to have had similar qualms about railing against abortion rights. The stench of their hypocrisy has wafted its way into every crevice of American society.
Curmie, as you probably know, Gentle Reader, thinks abortion access ought to be legal within some quite broad parameters. On the other hand, he’ll grant that Roe v. Wade was a bad decision. No, there really isn’t anything in the Constitution that guarantees what had been regarded as a right for all of Curmie’s adult life until the Dodds decision. And Curmie ain’t young. But Curmie has never seen an argument from the right that grants that SCOTUS might have been wrong about the Second Amendment but we ought to continue the status quo, anyway.
Working to overturn an inappropriate interpretation of the Constitution is neither incompetent nor un-American. So let’s drop Constitutionality as an issue in the debate. It’s relevant in terms of what is, but not to what should be. Curmie, as most readers of this blog already know, is a civil libertarian on most (but clearly not all) issues. He’ll argue for freedom of expression not because there’s a First Amendment, but because the society benefits from encountering new or minority ideas… you know, like abolition, women’s suffrage, integration, stuff like that. Oh, and there’s a difference between dissent and sedition. Similarly, he’ll argue for privacy protection not because there’s a Fourth Amendment, but because private lives ought to be private. Sure, he’ll trot out the constitutional argument, too, but it’s not the center-piece of the critique.
So, let’s assume for a moment that there’s no Second Amendment. What’s the argument in favor of granting a teenager unlimited access to a range of semi-automatic weapons? The upside is that Bubba can get his rocks off shooting up beer cans and feel “safe” from non-existent threats. The downside is a spate of mass killings, far more than any other first-world country must endure. Gun laws work, as has been shown repeatedly in the US and abroad. But a few dead schoolkids or shoppers or country music fans every week or so is a small price to pay for “freedom,” right? Curmie begs to differ.
“Yeah, but hunters…” Sure, no problem. Any gun that is reasonably used by a hunter is not affected. That means most rifles and shotguns. Not most pistols, and certainly not automatic or even semi-automatic weapons; you don’t need one of them to shoot Bambi. High-end pistols, the kind used in competitions, are similarly exempted. Saturday Night Specials, not so much. Hell, even a proudly Southern rock band like Lynyrd Skynyrd had that figured out nearly a half-century ago.
“But how are we to defend ourselves against a tyrannical government?” Sorry, that ship has sailed. If the US government wants to take you out, it will. This is why we need to make sure that those in power aren’t tyrant-wannabees. Alas, that description fits most of the biggest names in both parties. (Curmie grants that this would appear to be a flaw in his argument… but read the next paragraph.)
There are, of course, a host of weapons you don’t have access to, Gentle Reader, unless you’re in some variation on the theme of the military. Curmie doubts that there are too many folks reading this piece who would be in position to buy a nuclear submarine or a tank or a B-1 bomber, but you couldn’t even if you could afford it. Surface-to-air missiles might be a little cheaper, but they’re off limits, too. One of the most common faux arguments from the right is that gun control proponents don’t even know an automatic weapon from a semi-automatic one: “The former are already illegal, you silly libtard.”
Let me repeat that: there are already restrictions on owning certain kinds of weapons. We’re talking about moving the line, not creating one that didn’t exist. Gun advocates are free to argue that they see more drawbacks than benefits in what Curmie and an overwhelming majority of the American people would call “common-sense gun laws,” but these folks are very much in the minority. Six different gun control measures in a recent Fox News (!) poll received over 75% approval from respondents; over 60% favor banning assault weapons altogether. This is not to say that the majority is always right (actually, Curmie would disagree with a couple of those proposals), but those are astounding numbers for a democratic (small “d”) government to ignore.
Any argument for a continuation of the status quo needs to be honest, logically consistent, and not solely reliant on a very questionable interpretation of the Second Amendment. Curmie would like to see such a point of view presented by someone… anyone. He fears he’s more likely to have a nice chat with a unicorn.
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