Monday, December 31, 2012

2012 Can Bite Me



First let’s dispense with the niceties. Happy New Year, everybody.
Now, let’s get to the point. At the risk of sounding like a broken record, I’m not going to miss 2012 one little bit. It’s true; I say that almost every year. But just because I’ve said it before, doesn’t mean it’s not entirely valid. Again.
To be fair, the year wasn’t all bad. I turned 50, which is better than the alternative, and on top of that, I ran the Illinois Marathon on my 50th birthday … in the process of which my wife and I raised some money for a worthy cause: The Leukemia & Lymphoma Society. In fact, we were interviewed on local radio in Champaign before the race, which was a lot of fun and a nice distraction from the normal pre-race nerves:

So, that was something.
Of course, I’d be remiss if I didn’t also mention that our son Mark graduated from 8th grade this year …

And survived the first semester of high school. (That’s him with is brother Paul and sister Claire on graduation day.)
Moreover, I got to meet two of my favorite all-time performers: Garland Jeffreys, who came to Chicago in July in support of his excellent 2011 LP, The King Of In Between; and co-creator of The Daily Show and all-around bad-ass Lizz Winstead, who came here in October to read from and sign her book Lizz Free Or Die.

You should stop what you’re doing and go by both of those – the LP and the book. Well, okay, maybe finish reading this first. But then … you go buy.
And then there was the election. Yup. I was pretty pleased with the outcome. Obviously, there’s a lot of work to be done; but given the choice between the guy who needed a federal bailout to save the corrupt 2002 Winter Olympics and the guy who stopped the Great Recession from becoming the second Great Depression, who put an end to DADT and is putting an end to DOMA, who ended the war in Iraq and is ending the war in Afghanistan, and who was the first president since LBJ to enact a major piece of healthcare legislation, I have little doubt that 65 million American voters made the right choice.
But despite putting the brakes on the Great Recession, the economy continues to be anemic, at best, and many of us continue to live on the edge of financial disaster. 2012 saw little if any progress on climate change, as Chicago set another record – this time for consecutive days where the temperature reached or exceeded 32º Fahrenheit (it’s been 309 days if your keeping score, roughly 5/6ths of a year). Our last winter was so mild, robins, whose migratory return is the perennial sign that spring has arrived, elected not to migrate south in the first place.
Then there were the murders (500 in Chicago alone, the highest number since 2008), the mass shootings, the crimes against humanity in Syria … where does it end?
On the upside, all that bad news made the abysmal performance of my beloved Cubs (61-101) and my beloved Illini football team (2-11), seem trivial by comparison. So, there’s that.
So, yeah. 2012 can bite me. It was pretty damn dismal, on balance.
At least there was some decent music.

Friday, December 21, 2012

Your Friday Clash Song: After All This Time …




“The Sound of Sinners,” from Sandinista! (1980), the Gospel-iest Clash song of all, and a fitting one under the circumstances:
To believe in Jesus
After all those drugs
I thought I was him …
Fitting because despite the song’s tongue-in-cheek reference to Judgment Day – and no, before you ask, this has nothing to do with the Mayas – tomorrow will mark ten years since Joe Strummer shed this mortal coil. From The Guardian, December 23, 2002:
Punk pioneer Joe Strummer, a musical and political inspiration for a generation, has died aged 50.
The former Clash frontman died of a suspected heart attack yesterday at his home in Somerset.
U2 singer Bono called the Clash “the greatest rock band” and said they “wrote the rule book” for later acts.
Billy Bragg said Strummer was the driving force who helped give punk its “political edge”.
Writer Jon Savage said: “In 1977, the Clash did one of the best live shows I’ve ever seen. Joe Strummer in particular gave it his all - and thereby inspired a whole generation.”
It hasn’t been lost on me this past year that I am now the same age my rock ’n roll hero was when he died. I’d say that’s one of those facing-one’s-own-mortality type things, but the reality is, at age 50 I’ve faced mortality on altogether too many occasions. Still, in my day, nobody epitomized youth like Joe Strummer. He was angry, loud, fearless, hilariously funny, and genuinely empathetic. He was our Dylan, only better. He, as the song goes, never took no shit from no one. In the dark days of Reagan and Thatcher, he was the answer to the question, What’re we gonna do now?!
I’ve always said Joe Strummer was the conscience of punk rock, although he and the Clash were so much more than punk. He started his career playing Woody Guthrie songs in London tube stations, covered the great Junior Murvin on the Clash’s first LP, and played Bob Marley’s “Redemption Song” with Johnny Cash towards the end of Cash’s – and, it turns out, his own – life:


Along the way, Joe managed to embody all of them, and more.

And because it’s the friggin’ holidays, here’s a special bonus: Joe and the Mescaleros doing the only Clash song I know of that mentions Christmas … “Straight To Hell”:


Everyone has their favorite musicians, artists, cultural icons. Joe Strummer was mine, which will come as a surprise to exactly no one. Anyway, as always, stay free brother:


Turn. It. Up.

Thursday, December 20, 2012

It’s The Friggin’ Holidays



A guy I used to work with used to say that a lot this time of year. Kind of a built in excuse when things didn’t get done, or when adult beverages were consumed in the middle of the afternoon. It’s the friggin’ holidays.
Only he didn’t say “friggin’.”
So here we are. Chicago’s supposed to get (ahem) a measurable snowfall for the first time in nearly 10 months, my high schoolers wrap up their finals tomorrow (actually, the freshman had his last one today), and our fifth grader performs her very last Holiday Sing at Abraham Lincoln Elementary School tomorrow afternoon.
I guess it really is that time of year again.



Even Wicked Wilson Pickett’s in the holiday spirit …




Not to mention the Ramones, who don’t want to fight tonight. Which is good.



But it’s not really Christmas till the Drifters say it is.


So, yeah. Merry friggin’ Christmas. Or whatever you may celebrate this time of year.

Wednesday, December 19, 2012

A Special Wednesday Night Edition Of Your Friday Clash Song … At A Special Time




Because current events have pushed me to write about Second Amendment issues over and over and over again lately, I give you: A reprise of “Tommy Gun,” the original studio version of which is on Give ’Em Enough Rope (1978). When I featured this song once before, I wrote about the band’s disdain for terrorism despite their fairly radical political views:
You better strip down for the customs run
Tommy Gun
Waiting at the airport till kingdom come
And we can watch you make it
On the nine o’clock news
Standing there in Palestine
Lighting the fuse
Whatever you want, you’re gonna get it!
More generally, though, “Tommy Gun” is about the way the modern world is plagued by violence, and, in that context, it’s every bit as relevant today as it was nearly thirty-five years ago:
You ain’t happy unless you got one

Tommy Gun

Ain’t gonna shoot the place up just for fun
Maybe he wanna die

For the money

Maybe he wants to kill

For his country

Whatever he wants, he’s gonna get it!

Tommy Gun

You’ll be dead when war is won

Tommy Gun

But did you have to gun down everyone?

I can see it’s kill

Or be killed

A national destiny

Has got to be fulfilled

Whatever you want, you’re gonna get it!

Tommy Gun

You can be a hero in an age of none

Tommy Gun

I'm cutting out your picture from page one …
In fact, “Tommy Gun” seems all the more on point right now, when you consider this: In the aftermath of the horrible school murders in Connecticut – which were, after all, committed with .223 caliber Bushmaster assault rifle – Sen. Diane Feinstein announced the other day that she plans to introduce a new assault weapons ban when the newly elected Congress meets after the holidays. Makes some sense, right? After all, the Supreme Court expressly stated in Heller v. District of Columbia that the Second Amendment only protects “the sorts of weapons … [that were] ‘in common use at the time’” of its drafting, quoting United States v. Miller, 307 U.S. 174, 179 (1939), and that even after recognizing a personal right to keep and bear arms, “weapons that are most useful in military service—M-16 rifles and the like—may be banned.”
But sadly and predictably, the gun-rights pushback has already begun. Writing on the Washington Times website, Tom Mullen engages in exactly the type of dissembling we can expect to see when the debate over an assault weapons ban heats up:
U.S. Senator Dianne Feinstein has vowed to introduce a bill to ban assault weapons nationwide, similar to existing legislation in California. In doing so, she will effectively abolish yet another of the first ten amendments to the Constitution.
To many, Feinstein’s argument might sound very reasonable. She isn’t looking to ban all guns. “The purpose of this bill is to get just what Mayor Bloomberg said, weapons of war off the streets of our cities,” the senator told Meet the Press.
Having weapons of war on the streets is the whole point of the 2nd Amendment. The amendment wasn’t drafted to ensure that Americans could hunt. It wasn’t drafted so that Americans could protect themselves, although the natural right to defend one’s life was never as compromised as it is in the modern gun control era.
It’s hyperbolic nonsense, of course, when conservatives on the Supreme Court have already effectively ruled that assault weapons – “M-16 rifles and the like” – fall entirely outside the scope of the Second Amendment. But that won’t stop opponents of reasonable gun control from defending their modern-day tommy guns to the death, will it?
The human sacrifice

And if death comes so cheap

Then the same goes for a life!
Meanwhile, here’s a breath of rational fresh air from my Twitter pal Rosanne Cash and some other folks you might recognize:

Tuesday, December 18, 2012

Dammit, John Prine, Don’t Do This To Me


“Silent Night, All Day Long,” from A John Prine Christmas (1994)

This year I’ve been finely honing my curmudgeonly skills. I have a sort of love-hate relationship with Christmas, which, as you may have figured out, is a week from today. In the interest of full disclosure, there’s one thing I most assuredly don’t hate about it: Doing stuff for our kids, who, are, like all kids, maddeningly complex and better, by far, than anything else I’ve ever done with my life.
But the rest of it? Meh.
Of course, I loved Christmas when I was young. I mean, it was awesome, right? I can’t for the life of me figure out how my parents made Christmas work for eleven children of the baby boom and whatever followed the baby boom. My mom used to say that whenever a new baby came along, she’d sew a new pillow case and open the ones she’d made before, redistributing the down feathers from the old ones to the new like some kind of pillow-socialist, so everybody’d have an ever-thinner but never altogether empty one to lay his or her head on.
True story, by the way.
And yet, every 25th of December, in the early hours of the morning – and you’d better believe not a nanosecond before – there’d be a sea of presents from one end of the living room to the other. Not the latest and greatest and most expensive presents, and plenty of them were homemade, but the sheer quantity of swag was enough to make an adolescent head spin. Man, did they deliver.
The thing is (and I know I’ve mentioned all this before), Christmas was important to them. My parents got engaged on Christmas Eve 1943, when Pfc. Paul J. von Ebers, U.S. Army, 66th Infantry Division, probably wasn’t supposed to be in Waukegan, Illinois, where, to the best of my knowledge, there were no army bases at the time. And a year later, on Christmas Eve 1944, my father was on board the HMS Cheshire crossing the English channel for Cherbourg, France, with his regiment, the 262nd, and another, the 260th, when their companion ship, a Belgian liner called the SS Leopoldville, was torpedoed by a U-boat and sank, taking with it more than 800 American soldiers. That’ll make you appreciate Christmas at home with your bride-to-be, I’d imagine.
And so I think that had a lot to do with the way my parents literally poured everything they had into Christmas for us. Anyway, whatever it was, they did it right.
But sometimes it feels like Christmas was stolen from us. Because it used to be this nearly perfect thing, you know, and now it’s … teevee commercials that start in mid-October, and rich people getting richer and buying Lexuses (Lexi?) while the rest of us barely make ends meet. Not for lack of trying, and not for lack of desire, I’ll never be able to do for my kids what my parents did for us. We’ll get them stuff, of course; and they, being great kids, will be genuinely grateful. They always are, and I love them for that.
What’s missing, I think, is the atmosphere that I associate with childhood Christmases. It wasn’t just about stuff, it was about family traditions, spending time together, and, believe it or not, even through Vietnam and antiwar protests and Watergate and two decades of upheaval and uncertainty, it really was about all that peace on earth and goodwill towards your fellow humans stuff. Really. It was.
Now, though, we’re too stressed out to create that kind of atmosphere. We’re worried about where the money’s going to come from, and we’re too busy bending our schedule to fit everyone else’s, running from one house to another, not spending much time together, not making traditions of our own, not taking the time for all that peace on earth stuff. Not, you know, just enjoying it.
Maybe some people are just better at Christmas than I am, but it kind of bums me out.
Then along comes The Maywood Mailman with a song like “Silent Night, All Day Long” and it reminds me of the way those childhood Christmases were. It’s sappy, and kind of romantic, and makes me think of my parents, who could be deadly serious a lot of the time, but who seemed genuinely to love Christmas and to get it, if you know what I mean, and … oh, goddam you, John Prine, how dare you make me all sentimental and miss my mom and dad and start to think maybe Christmas isn’t so bad after all.
Well, at least there’s this:


It was Christmas in prison
And the food was real good
We had turkey and pistols
Carved out of wood …
Ah, that’s more like it.
Anyway, just remember. As My Sainted Irish Mother™ was wont to say: A week from tomorrow it’ll all be over …

Monday, December 17, 2012

One More Time, With Feeling


I never intended this to become a Second Amendment blog. When I wrote last week (here and here) about Michael Moore, et al. v. Lisa Madigan, et al., Nos. 12-1269 and 12-1788 (7th Cir. Dec. 11, 2012) (.pdf), a case in which the federal Court of Appeals in Chicago struck down certain provisions contained in the Illinois Criminal Code pertaining to carrying handguns outside the home, I, of course, had no way to anticipate the horrific events of December 14, 2012, in Newtown, Connecticut. It was just an awful coincidence that the Seventh Circuit decided a major gun control case just three days before (yet another) mass school shooting.
It’s no surprise, however, that in the aftermath of the Sandy Hill Elementary School killings, gun control has become the hot topic on the internet. Last night, when Pres. Obama addressed the interfaith memorial service there, self-appointed guardian of liberal purity Bill Maher tweeted:


 … Despite the fact that the President did, in fact, specifically refer to “mass shootings”:

Since I’ve been President, this is the fourth time we have come together to comfort a grieving community torn apart by a mass shooting. The fourth time we’ve hugged survivors. The fourth time we’ve consoled the families of victims. And in between, there have been an endless series of deadly shootings across the country, almost daily reports of victims, many of them children, in small towns and big cities all across America — victims whose — much of the time, their only fault was being in the wrong place at the wrong time.
True, he didn’t use the magic word “guns.” But by any reading, Maher’s criticism was flat out inane.
More to the point, in the past few days we’ve all seen demands that the government take bold action to restrict access to guns, along with sharp criticism of organizations like the National Rifle Association and their supporters who believe the Second Amendment confers a personal right to keep and bear guns. And so when I tweeted earlier today that, given the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, ___ U.S. ___, 103 S. Ct. 3020 (2010), we’re beyond the point of arguing what the Second Amendment should mean – that we’re stuck, for the time being, with the Supreme Court’s rulings on the matter – that struck a nerve with certain people I follow. Their objections being: The Supreme Court was wrong; eventually Heller and McDonald will be overturned; and we should repeal the Second Amendment anyway.
Each of those observations may or may not be valid (I tend to think the outcome in Heller is more defensible than the outcome in McDonald), but it is nonetheless beyond dispute that Heller and McDonald are the law of the land today. If people are committed to overturning those decisions and/or repealing or modifying the Second Amendment, I say: Have at it. Just recall that it can take years, even generations, to get the Supreme Court to reverse course; and possibly even longer to pass a constitutional amendment both in Congress and in the states. Fifty-eight years passed between the Court’s odious decision in Plessy v. Ferguson, 163 U.S. 537 (1896), and its repudiation of “separate but equal” in Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954). Even more recently, Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld Georgia’s criminalization of gay sexual relations, survived a good seventeen years before the Court reached its landmark decision in Lawrence v. Texas, 539 U.S. 558 (2003). And as for constitutional amendments? The last one passed in 1992, a little over twenty years ago. The Equal Rights Amendment passed through Congress in 1972, but was ratified by only thirty-five of the necessary thirty-eight states and never became law; Indiana was the last state to ratify it … in 1977. That’s thirty-five years ago, if you’re keeping score.
Now I’m not saying that working towards overturning Heller and McDonald or pushing for a constitutional amendment on gun control is tilting at legal windmills. I’m saying that if the proliferation of guns and gun-related violence in America is in fact a crisis – and the evidence sure suggests it is – we can’t wait decades to address it. And if you believe, as I do, that that crisis requires us to look at all possible means of addressing it, including taking a hard look at the gun laws that are on the books and asking whether we can provide a better, safer regulatory scheme, then we have to ask, as I did last week, what legal options remain available after the Heller and McDonald cases. Because that’s the legal environment we’re operating in right now … and for the foreseeable future.
So, where does that leave us? Well, as controversial as those decisions were, the Court did delineate, at least in broad categories, the types of gun control measures that would not infringe on the newly recognized personal right to keep and bear arms. If you take a look at the language I quote from Heller toward the end of this post, the Court identifies at least five such categories of still-viable gun control measures:
Ø    Laws preventing carrying concealed weapons in public;
Ø    Laws preventing felons and mentally ill people from owning weapons;
Ø    Laws prohibiting guns in “sensitive places” – e.g., schools, government buildings;
Ø    Regulations on the conditions of the sale of guns; and
Ø    Laws banning ownership of military-type weapons (“M-16 rifles and the like,” in the Court’s words).
And it’s not unreasonable to infer from the Court’s (non-exhaustive) itemization of permissible forms of gun control – particularly from the second and fourth items listed above – that registration and licensing requirements for both the purchase and sale of guns, including background checks, waiting periods, and possibly even training and certification rules, would be upheld, along with limitations on private gun sales and sales at guns shows and so forth. Moreover, of particular concern after Sandy Hill: the last item the Court discusses makes it plain that a carefully drafted assault weapons ban would, in fact, be constitutional even after Heller and McDonald.
It may not be much; it certainly doesn’t allow for banning all handguns and rifles. But if we’re serious about taking a hard look at our gun laws as a part – a part – of the solution to the crisis of gun violence here, there are steps we can take today.

Friday, December 14, 2012

No Words




Normally I post a Clash song on Fridays. It’s my way of raising my middle finger to the workweek, I guess. Thirty-odd years after I heard that first LP and thought what fresh hell is this, I still love the hell out of that band. There’s almost never a time when I don’t feel like dropping the needle and turning the dial all the way up.
I had a Clash song queued up for today. It was topical. Maybe I’ll post a special Saturday edition of Your Friday Clash Song so we can get back on track; but today … today, I’ve got nothin’.
So, about this song: Steve Earle’s “Nothing But A Child,” from the Copperhead Road LP (1988). I’m not a religious person. I haven’t been for a long time. But I first heard this song in late November or early December 2001, a few months after 9/11 and just a few weeks after the birth of our daughter, Claire, and, you know, the song just hit me a certain way. If there’s anything I ever got out of Catholicism, the religion of my tribe, it’s that even when the worst imaginable things happen, there are possibilities for redemption and renewal. And that isn’t necessarily a religious thing; you don’t have to be a religious person to believe that there are reasons for hope amid despair.
My daughter would have been the light of my life no matter what was going on in the world at the time – all my kids are the light of my life – but coming along in the dark months after 9/11, her birth really was the kind of renewing event this song talks about. Again, not religiously, but, to me, in a personal sense. It gave me hope. She gave me hope.
But what do you say when these wellsprings of hope are gunned down in cold-blood. A dozen and a half of them. What renews you then. How will their parents ever get past what happened today.
Yeah, no question marks. It’s not some quirky writing style. It’s because questions presuppose there are answers. And today, I got nothin’.

Thursday, December 13, 2012

Illinois: The Future Is Now


As I mentioned earlier in the week, my home state continues to make progress on the equality front. On Monday, Democratic Gov. Pat Quinn said he was hopeful that the Illinois General Assembly would send him a bill providing gay and lesbian couples equal marriage rights when legislators reconvene after the holidays. The Chicago Tribune reported:
Rep. Greg Harris, the chief sponsor of the gay marriage bill, said he was encouraged by Quinn’s comments but acknowledged the issue may take a back seat during the lame duck session.
“At this point, we will call it when we have the votes there,” said Harris, D-Chicago. “We can see the trend of public opinion having shifted dramatically… but it takes time for legislators to figure that out. And there are a number of other key votes, pensions is obviously number one among them.”
Today, though, Rep. Harris seemed a bit more upbeat. According to our local NPR affiliate:
Two Chicago Democrats say they think the time is right to call for legislation legalizing gay marriage in Illinois.
It comes a year and a half after the state legalized same-sex civil unions.
State Rep. Greg Harris and State Sen. Heather Steans are supporters of the bill.
Talking together by phone on Thursday, they said political and public sentiment is rapidly changing in favor of gay marriage.
“We can’t think of a good reason why government should treat one family with less respect than another in Illinois,” Harris said.
“We are hearing a real shift in tone and dialogue amongst our colleagues, too,” Steans said. “We think we’re in striking distance and really want to build on this momentum.”
As an aside, it would be nice if our major media outlets would stop referring to it as “gay marriage” – after all, I don’t refer to mine as a “straight marriage” – but the more important point is this: Time marches on. The future happens. And it looks like Illinois may be poised to join it.
In the meantime (and I know I’m late getting around to this), enjoy this outstanding photo-essay celebrating the first day of marriage equality in Washington state. (Special thanks to Emily  L. Hauser of In My Head, for bringing this to my attention.)
You know what I see when I view those photographs? I see normal. I see people wanting, in a sense, the most mundane thing in life, but also the most remarkable and the most vital: The undying love and affection of a fellow human being. I see the same thing I see whenever two people commit their lives to one another. I see hope.
If people still have a problem with that, well, we better get a better understanding …

Garland Jeffreys, “Modern Lovers,” from Escape Artist (1981)
The other day on Twitter I made this observation: At age 5 I watched my parents fly the flag at half-staff after Martin Luther King was assassinated. At age 50, I’ve lived to see nine states adopt marriage equality. And Illinois soon may be the tenth.
It’s really true. America is becoming more America-ish.

Wednesday, December 12, 2012

More Fun With Gun Control


I’ve now had an opportunity to read the opinion of the U.S. Court of Appeals for the Seventh Circuit in the Illinois concealed-carry case I mentioned yesterday, and I offer a few additional observations. (You can download a .pdf version of court’s decision in Michael Moore, et al. v. Lisa Madigan, et al. Nos. 12-1269 and 12-1788 (7th Cir. Dec. 11, 2012), from the Court’s website, here.)
First: Interestingly enough, news reports on the case, including the WBEZ story I linked to yesterday, erroneously refer to the law in question as a “ban on concealed weapons.” In fact, the law at issue prohibited not only carrying weapons in a concealed state, but carrying weapons in public in any manner, concealed or not, in a wide variety of circumstances. The Seventh Circuit described the challenged statute this way:
An Illinois law forbids a person, with exceptions mainly for police and other security personnel, hunters, and members of target shooting clubs, 720 ILCS 5/24-2, to carry a gun ready to use (loaded, immediately accessible—that is, easy to reach—and uncased). … Even carrying an unloaded gun in public, if it’s uncased and immediately accessible, is prohibited, other than to police and other excepted persons, unless carried openly outside a vehicle in an unincorporated area and ammunition for the gun is not immediately accessible.720 ILCS 5/24-1(a)(4)(iii), (10)(iii), -1.6(a)(3)(B).
Moore v. Madigan, slip op. at 1-2, citing Sections 1, 1.6, and 2 of Article 24 of the Illinois Criminal Code of 1961 (“Deadly Weapons”), 720 ILCS 5/24-1, 24-1.6, and 24-2.
So the issue isn’t whether the state can prevent you from concealing your weapon when you’re walking around with it, but whether the state can prevent you from walking around with it at all. In fact, the Seventh Circuit explicitly stated that “a state may be able to require ‘open carry’ — that is, require persons who carry a gun in public to carry it in plain view rather than concealed.” Moore v. Madigan, slip op. at 10, citing District of Columbia v. Heller, 554 U.S. 570, 626 (2008).  Moore v. Madigan didn’t answer that question because the challenged statute prohibited much more than concealing weapons in public.
Second: Yesterday’s opinion by the Seventh Circuit emphasized that the Supreme Court in Heller and in McDonald v. City of Chicago, ­___ U.S. ___, 103 S. Ct. 3020 (2010), couched its Second Amendment analysis not simply in terms of a personal right to own certain types of weapons, but a broader a right to self-defense that includes the right to keep and bear arms for that purpose. According to the Seventh Circuit:
Heller held that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 635. But the Supreme Court has not yet addressed the question whether the Second Amendment creates a right of self-defense outside the home.
Moore v. Madigan, slip op. at 2.
Before the Supreme Court’s decision in Heller, I suspect that most of us who hadn’t studied the history of the Second Amendment in excruciating detail, but nonetheless had more than a passing familiarity with that period of American history, would have said that the Amendment was not grounded in concerns over personal safety so much as protecting the Republic itself and the liberties secured by the Constitution and the Bill of Rights. Most of us, I suspect, would have thought that the drafters of the Second Amendment were less concerned about cutthroats and highway robbers than they were about foreign countries invading our shores, or future tyrants usurping power and trashing the Constitution.
But the Supreme Court did not tie the right to keep and bear arms solely to the Framers’ desire to have a ready fighting force to protect the nation and the Constitution. As Moore v. Madigan says, the Court determined that the right to keep and bear arms was grounded instead in a more general right to self-defense that dates all the way back to seventeenth century England.
Accordingly, the bulk of the analysis in Moore v. Madigan focuses on whether the right to own and to carry guns for the purpose of self-defense extends outside the home, and the court concludes, not altogether illogically, that it does.
And so that leads me to my third point: While Moore v. Madigan says that if you have a right to keep weapons in your home for self-defense, it makes no sense to prevent you from carrying those weapons outside the home for self-defense, Heller, discussing the limitations on the individual right conferred by the Second Amendment, specifically stated, “nothing in our opinion should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings … .” 554 U.S. at 626. In other words, while yesterday’s ruling says, in effect, you can’t impose arbitrary geographical limitations on where a person can carry a weapon for purposes of self-defense, the Supreme Court in Heller said, of course the government can keep handguns out of government buildings, for Pete’s sake!
So you have “the right to armed self-defense,” to use the Seventh Circuit’s term, on the street, in your neighbor’s home, in a tavern … but not where judges and government officials sit. No, because it would be too dangerous to allow you to bring your guns there!
Got it.
In any event, I’m sure the Seventh Circuit’s decision in Moore v. Madigan will generate a lot more discussion – and possibly another Supreme Court decision – but one thing is clear to me: In the wake of this newfound “right to armed self-defense” stemming from the Heller and McDonald decisions, it will be very difficult to determine when and under what circumstances the government can ask you to check your weapons at the door.

Tuesday, December 11, 2012

Comprehensive Gun Control: The Options Are Limited



Nearly every day on Twitter – and I’m sure this happens on other social media platforms I may or may not be temporarily boycotting – I see people clamoring for what I’ll refer to generally as comprehensive gun control laws. More specifically, and more predictably, I see frequent demands that Pres. Obama (of course) do something right now! to curtail gun violence in America. As if he were the only person in a position to deal with gun violence, or even the person in the best position to deal with it.
But there it is. My fellow liberals want gun control, or, more accurately, more gun control than we currently have.
Ordinarily, the comments I see are fairly vague; so I have to read between the lines a bit. I presume my fellow liberals who demand more gun control (usually in response to some horrible tragedy or another) want more than just, say, licensing and registration requirements, although those things are usually part of the mix. I presume that “more gun control” includes some or all of the following:
Ø    Restricting who can own guns; or, more aptly, delineating categories of people who can be prevented from owning guns – violent felons; mentally ill people who might be a danger to themselves or others; anyone against whom an order of protection has been entered; suspected terrorist (including domestic terrorists);
Ø    Requiring individuals who own guns to undergo some form of training, minimally with regard to safe handling and storage of weapons;
Ø    Prohibiting the ownership of certain kinds of particularly dangerous weapons
Ø    Restricting or prohibiting sales across state lines;
Ø    Restricting or prohibiting buying guns from, or selling guns to, individuals located outside the United States;
Ø    Background checks for people who attempt to purchase guns wherever guns are sold, including, of course, gun shows and other private sales of weapons;
Ø    Limiting the quantity and types of ammunition a gun owner can purchase;
Ø    Increasing sentences for individuals who commit crimes with guns;
Ø    Penalizing individuals who fail to take adequate safety precautions or who use or store guns negligently, when death, injury or significant property damage occurs as a result; and
Ø    Restricting the places where people can carry weapons and the manner in which weapons are carried in public.
For what it’s worth, I’d like to see a comprehensive federal gun control statute that encompasses all those principles, too, although the Brady Handgun Violence Prevention Act, popularly referred to as the “Brady Bill,” contains some of those provisions.
But, of course, as my fellow liberals should know (and if you don’t know … why don’t you know?!), the Supreme Court has made that difficult to accomplish. In two recent cases – District of Columbia v. Heller, No. 07-290 (June 26, 2008), and McDonald v. City of Chicago, No. 08-1521 (June 28, 2010) – Supreme Court held that the Second Amendment to the United States Constitution creates an individual right to keep and bear arms, which, although not unlimited, prevents both the federal government (Heller), and state and municipal governments (McDonald), from imposing the most direct (and perhaps draconian) form of gun control: Outright bans on handgun ownership.
And, as if to demonstrate just how difficult it is to craft meaningful gun control legislation in the wake of Heller and McDonald, today the U.S. Court of Appeals for the Seventh Circuit, which sits in Chicago, ruled that Illinois’ ban on carrying concealed weapons in public violates the Second Amendment as interpreted by the Supreme Court. From our local NPR station, WBEZ:
In a big victory for gun rights advocates, a federal appeals court on Tuesday struck down a ban on carrying concealed weapons in Illinois — the only state where it had remained entirely illegal.
The 7th U.S. Circuit Court of Appeals said state lawmakers have 180 days to write a new law that legalizes concealed carry.
“The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside,” Judge Richard Posner wrote in the court’s majority opinion. “The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense.”
He continued: “Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden.”
The court ordered its ruling stayed “to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public,” Posner said.
In light of Heller and McDonald, I think Judge Posner is probably right. Which is not to say I like the outcome, but I believe his ruling is consistent with the Supreme Court’s holdings in those cases, and a Court of Appeals judge is duty bound to follow Supreme Court precedent. As an aside, it’s worth noting that although he’s considered to be one of the more conservative federal appellate judges, Judge Posner joined fellow conservative Judge Frank Easterbrook’s opinion upholding the city of Chicago and Village of Oak Park handgun bans the Supreme Court ultimately struck down in McDonald. See National Rifle Association of America, Inc. v. City of Chicago, 567 F.3d 856 (7th Cir. 2009).
But Heller and McDonald are the law of the land, and, as Judge Posner noted today, those cases created a fairly broad right to keep – and to carry – handguns and a variety of other similar weapons, subject to minimal intrusion by the state. The question, then, isn’t, What could we do if the government had unlimited power to stop gun violence? but What state intrusions are permissible after Heller and McDonald? And to answer that question, you have to look to what Heller said about the powers government retains after the Court acknowledged the existence of an individual right to keep and bear arms:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [Citations] For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. [Citations] Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. [United States v.] Miller [, 307 U.S. 174 (1939)] said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [Citations]
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Heller, slip op. at 54-56 (footnote omitted; emphasis supplied).
So while the government’s powers are significantly curtailed after Heller and McDonald, those powers are not nonexistent. It seems to me that rather than demanding the President – or Congress, or your state’s governor or legislature – enact sweeping gun control legislation in the current legal and constitutional environment, what we really need is a calm, rational, thorough analysis of what types of gun control legislation are still constitutionally permissible after Heller and McDonald, and what constitutionally permissible forms of gun control are likely to be effective.
I know. It’s boring. It may take a long time. It doesn’t feel as good as it does to demand immediate, sweeping action. But railing against political leaders for failing to do things they’re not constitutionally permitted to do accomplishes exactly nothing.