“Changing The Legal Paradigm”: NRA Money Helped Reshape Gun Laws
In 1977 at a Denver hotel, Don Kates paced a conference room lecturing a small group of young scholars about the Second Amendment and tossing out ideas for law review articles. Back then, it was a pretty weird activity in pursuit of a wacky notion: that the Constitution confers an individual right to possess a firearm.
“This idea for a very long time was just laughed at,” said Nelson Lund, the Patrick Henry professor of constitutional law and the Second Amendment at George Mason University, a chair endowed by the National Rifle Association. “A lot of people thought it was preposterous and just propaganda from gun nuts.”
More than 35 years later, no one is laughing. In 2008, the Supreme Court endorsed for the first time an individual’s right to own a gun in the case of District of Columbia v. Heller. The 5 to 4 decision rendered ineffective some of the District’s strict gun-control laws. And Justice Antonin Scalia’s majority opinion echoed the work of Kates and his ideological comrades, who had pressed the argument that the Second Amendment articulates an individual right to keep and bear arms.
As the Obama administration pushes for gun-control legislation, it will have to contend with the changed legal understanding of the Second Amendment that culminated in Heller. That transformation was brought about in large part by a small band of lawyers and scholars backed by the NRA.
For more than three decades, the NRA has sponsored legal seminars, funded legal research and encouraged law review articles that advocate an individual’s right to possess guns, according to the organization’s reports. The result has been a profound shift in legal thinking on the Second Amendment. And the issue of individual gun-possession rights, once almost entirely ignored, has moved into the center of constitutional debate and study.
For proponents of stricter gun control, the NRA’s encouragement of favorable legal scholarship has been a mark of its strategic, patient advocacy.
“I think this was one of the most successful attempts to change the law and to change a legal paradigm in history,” said Carl T. Bogus, a professor at Roger Williams University School of Law in Rhode Island and the editor of “The Second Amendment in Law and History,” a collection of essays that challenges the interpretation of the individual right. “They were thinking strategically. I don’t think the NRA funds scholarship out of academic interest. I think the NRA funds something because it has a political objective.”
The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Before the Heller decision, the Supreme Court and lower courts had interpreted the language as “preserving the authority of the states to maintain militias,” according to a Congressional Research Service analysis.
“It was a settled question, and the overwhelming consensus, bordering on unanimity, was that the Second Amendment granted a collective right” enjoyed by the states, not individuals, Bogus said. Under this interpretation, the Constitution provides no right for an individual to possess a firearm.
Lund agreed that there was a consensus but said it was “based on ignorance.”
Throughout most of American history, there was little academic interest in the Second Amendment. From 1912 to 1959, only 11 law journal articles were published on the subject, all of them endorsing the prevailing opinion that it “affects citizens only in connection with citizen service in a government-organized and -regulated militia,” according to an analysis by Robert J. Spitzer, a professor of political science at the State University of New York at Cortland and the author of “The Politics of Gun Control.”
The first articles advocating an individual right appeared in the 1960s, and scholarship endorsing that view took off in the late 1970s. From 1980 to 1989, as NRA support began to be felt, 38 articles on the Second Amendment were published in academic journals, 21 of which advocated an individual right. In the following decade, 87 articles appeared, and a clear majority — 58 to 29 — took an individual-rights position, Spitzer’s analysis showed.
To Kates, the explanation for the burgeoning scholarship is obvious. “Gun control became a matter of enormous political controversy, and this focused attention on the Second Amendment,” he said in an interview.
Kates, a Yale Law graduate who describes himself as a liberal, said he began carrying a gun when he spent the summer of 1963 as a civil rights worker in eastern North Carolina.
“I never believed the nonsense that was then current that the Second Amendment had to do with states’ rights,” he said. Alarmed by calls for stricter gun control and outright bans, Kates started the seminars in the late 1970s and ran them for more than a decade with support from various groups, including the NRA and the Second Amendment Foundation, another gun rights organization.
Stephen P. Halbrook attended the Denver seminar in 1977 when he was an assistant professor of philosophy at Howard University and studying for a law degree at Georgetown. Three years later, he published his first article on the Second Amendment in the George Mason University Law Review. He went on to publish more than 20 law review articles and four books dealing with the Second Amendment, some with grants from the NRA, where he has served as an outside counsel.
Halbrook, who has a law office in Fairfax city, said the NRA started funding scholarly research. “I would think that’s important in the sense that scholars, unless you’re independently wealthy, you need to be paid for your time,” he said.
He and others noted that Bogus has received outside funding for symposia and publishing that excludes the individual-rights point of view. Bogus said he was transparent about his funding.
The NRA also began essay competitions for law students with prizes of up to $12,500, with the understanding that the winners would try to place their work in a law review.
Halbrook was one of a number of lawyers — including Kates; Dave Hardy, a legal consultant for the NRA; and David Caplan, a member of the NRA’s board of directors — who were at the forefront of this writing. They drew on their reading of colonial history, the founders’ statements and early American constitutional history to make their case for an individual right.
Hardy said most of this work was published in minor reviews, but the individual-rights argument got a big boost in 1989 when Sanford Levinson, a leading professor of constitutional law at the University of Texas at Austin, published “The Embarrassing Second Amendment” in the Yale Law Journal. He argued that the “legal consciousness of the elite bar” on the Second Amendment might be wrong. He also was sympathetic to the “insurrectionist theory” that citizens have a right to be armed so they can fight their government if it becomes tyrannical. Levinson singled out Kates’s work and cited Halbrook.
Other leading scholars followed, and advocates for the NRA’s position began to speak about a new “standard model.” In 1997, Justice Clarence Thomas acknowledged the growing mass of law review material when he wrote, “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment text suggests, a personal right.”
In 2003, the NRA marked the Second Amendment’s new stature as a subject of serious study when its foundation endowed Lund’s Patrick Henry chair at George Mason University with $1 million. The law school had established a reputation as a bastion of conservative legal thought.
“What they were looking for was a means of legitimating the fact that the Second Amendment had arrived as a legitimate subject of study in constitutional law,” said Daniel D. Polsby, the dean of the George Mason University School of Law.
For advocates of an individual’s right to bear arms, the Heller decision in 2008 was a vindication. In writing the majority opinion, Scalia said, “The second amendment protects an individual right to possess a firearm, unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
He cited Kates and Halbrook.
By: Peter Finn, The Washington Post, March 13, 2013
“In The Thicket Of Fine Print”: Elizabeth Warren Rips NRA And GOP For “Keeping The Game Rigged”
Senator Elizabeth Warren (R-MA) used her speech at the Consumer Federation of America Thursday to make a wide-ranging argument defending the role of government and ripping Republicans and the National Rifle Association for intentionally keeping the American public in the dark.
After calling out the NRA’s “armies of lobbyists [that] are fighting to rig the system so that the public remains in the dark,” the senior senator from Massachusetts attacked the organization’s efforts to stop public research into gun violence.
“If as many people were dying of a mysterious disease as innocent bystanders are dying from firearms, a cure would be our top priority,” Warren said. “But we don’t even have good data on gun violence. Why? Because the NRA and the gun industry lobby made it their goal to prevent any serious effort to document the violence.”
Her defense of the Consumer Financial Protection Bureau (CFPB), which she first conceived and helped create as part of the Dodd-Frank financial reforms, was especially pointed.
“This agency is about making consumer credit clear — no more hiding tricks and traps in a thicket of fine print. It is about letting consumers see the deal — and not worrying about the things they can’t see,” Warren said.
Senator Warren discussed the creation of the CFPB in a 2010 speech at the Consumer Federation of America that you can watch here.
Republicans have praised the work of CFPB director Richard Cordray, who President Obama installed via recess appointment after the GOP blocked his nomination. But they are blocking him again because they are bent on increasing congressional oversight of the bureau, while weakening its power.
“Blocking Rich Cordray is about keeping the game rigged, keeping the game rigged so that consumers remain in the dark — and a few bad actors can rake in big profits,” Warren said.
Republicans are basically working to void a federal law simply because they don’t like it. And by abusing the filibuster, they’ll likely be effective.
Senator Warren called out this unprecedented obstruction at Cordray’s nomination hearing:
“What I want to know is why every banking regulator since the Civil War has been funded outside the Appropriations process, but unlike the consumer agency, no one in the United States Senate has held up confirmation of their directors demanding that that agency or those agencies be redesigned.
By: Jason Sattler, The National Memo, March 14, 2013
“Joining The 21st Century”: The GOP Can Learn A Thing Or Two From The Catholic Church
The cardinals of the Roman Catholic Church are hardly a liberal lot. They’ve doubled down against abortion and gay marriage (or even acceptance of gays). Church hierarchy has verbally slapped down nuns who have gently challenged the priorities of the church. So it really says something when the GOP last year nominated a white guy named Mitt to run for president, while the cardinals—who could be described as the tea party caucus of the Catholic faith—picked a South American guy named Jorge.
Cardinal Jorge Mario Bergoglio is from Argentina and speaks Spanish. That alone makes him a more 21st century choice for leadership (although he is a staunch social conservative, being vocal in his opposition to gay marriage). And it may well be as much about demographic strategy as it is about merit; the Roman Catholic Church, after all, does a better recruitment job in Latin America than in, say, the U.S. But the very fact that such a conservative group would pick a Latin American to be the public face (not to mention the spiritual leader) of the worldwide faith shows that they are way ahead of the U.S. Republican party.
Bergoglio, notably a Jesuit, took the name Francis, after St. Francis of Assisi, who was known for his vow of poverty. House Republicans, on the same day Francis became Pope, pushed through a bill to ban the granting of waivers on the work requirement for welfare—in other words, toughening up rules on the poor whom St. Francis wanted to help.
Many Republicans realize they need to do a better job with outreach. Louisiana Gov. Bobby Jindal, one of the young stars of the party, noted humorously in a dinner speech last Saturday night that he was hamstrung by his image. How could a skinny guy with dark skin and a funny name ever dream of becoming president?, Jindal quipped, as President Obama sat nearby. It was meant to be a joke, but the Republican candidate slate last year was, mainly, a slew of white men. The voter outreach and get-out-the-vote strategy was similarly ill-focused. The heavily traditional and old-fashioned church has made a move to join the 21st century. The GOP ought to consider following suit.
By: Susan Milligan, U. S. News and World Report, March 14, 2013
“Fool Me Once”: The Sequester Is Proof That Washington Thinks We Are All Idiots
The tales of sequester woe are starting to mount. Congressmen are complaining about cancelled White House tours, freaking out over potential furloughs of meat inspectors, and fretting over budget cuts in Yellowstone National Park. Republican officeholders are starting to realize that the parochial government services that businesses and consumers in their districts need and care about are getting hit.
And for what? We’ve argued that the primary deficit—the mismatch between the amount of money the government collects each year and the amount of money it spends each year—is melting away. We received further confirmation of this melting trend Wednesday, with the release of the latest Treasury Monthly Statement. It was overlooked, as it dropped just a couple hours before the new pope was announced. But it’s worth examining.
The headline was that February wasn’t a great month for the profit-and-loss sheet of the federal government. It took in $122.8 billion and spent $326 billion, notching a $203.5 billion deficit. That’s pretty grim. But February is always a bad month for receipts. And when you dig into the number, it is possible to see significant improvement.
Compared with February 2012, revenues in February 2013 were up an impressive 18.8 percent. Meanwhile, spending was actually down 2.6 percent from February 2012. So the February 2013 monthly deficit was 12 percent smaller than the February 2012 monthly deficit. This is not an anomaly. For the first five months of fiscal 2013, which started in October, revenues were $1.01 trillion, up 13 percent from the first five months of fiscal 2012, while spending was up just 2.1 percent. The deficit in the first five months of fiscal 2013 is $494 billion, down nearly 15 percent from the first five months of fiscal 2012.
To what do we owe this? Revenue is tied to growth. When the economy grows consistently, more people go to work, more people earn higher wages, and they pay more income and payroll taxes. Companies tend to make more profits, and even though they spend lots of time and effort dodging taxes, they still wind up paying more corporate income taxes. Meanwhile, as we’ve pointed out before, when jobs increase and the economy grows, spending on programs like unemployment benefits fall. That helps narrow the deficit, too. In February, spending on unemployment benefits was off 25 percent from the year before.
There’s another factor at play. And Republicans might want to avert their eyes for this next paragraph. On January 1, the government raised taxes. The payroll tax, which had been cut temporarily to 4.2 percent from 6.2 percent, went back up—a 48 percent increase. And so the 130 million or so Americans with payroll jobs have been paying higher federal taxes for the past two months. Meanwhile, as part of the fiscal cliff deal, higher income taxes were also put in place for high earners. They’re now paying more, too.
A funny thing happens when you raise taxes—you get more tax revenue.
Since the higher tax rates kicked in on January 1, Americans haven’t Gone Galt. They haven’t stopped working in protest of higher taxes and companies haven’t stopped hiring. In fact, they’ve been working more. As a result, revenue has been flooding into Washington. In the two months of the new tax regimen (January and February 2013), receipts are up 17 percent from the comparable period in 2012. Meanwhile, for all the charges of socialism, spending remains muted. A look at the daily Treasury statement suggests the higher revenue trend has continued through the first half of March.
The sequester, universally derided as a stupid way to get deficit reduction, is designed to bring $84 billion in deficit reduction in this fiscal year. Well, in the first five months of fiscal 2013, the deficit is already, wait for it, $85.8 billion smaller than it was in the first five months of fiscal 2012. And that’s all before the sequester takes full effect.
Quiet as it is kept, we are living in a great age of deficit reduction. If we project the numbers from the first five months of this fiscal year into the rest of it, it’s quite likely that the deficit will come in under $900 billion—even without the sequester. That’s high, and it is still a lot of money. But it would represent a deduction of nearly 20 percent from fiscal 2012. And with the economy continuing to grow steadily, the deficit as a percentage of GDP would shrink by an even larger margin.
Washington told itself it needed the sequester in order to make a significant dent in the annual deficit. With each passing month, and with each passing Treasury Monthly Statement, we’re learning that’s not true.
By: Daniel Gross, The Daily Beast, March 14, 2013
“Making A Commitment To A Lie”: Republicans Are Invested In Undermining Innovation
Remember in “Seinfeld” when George Costanza got a new job and his employer thought he had a physical disability? He loved the benefits and attention, so he fully committed himself to the lie — and intended to keep it up indefinitely.
The episode reminds me a bit of how Republicans treat their 2012 welfare reform lie.
As you’ll recall, a bipartisan group of governors asked the Obama administration for some flexibility on the existing welfare law, transitioning beneficiaries from welfare to work. The White House agreed to give the states some leeway, so long as the work requirement wasn’t weakened. It inspired Mitt Romney and GOP leaders to make up a shameless lie, accusing President Obama of weakening welfare work requirements.
The blatant falsehood didn’t make much of a difference, and I assumed the issue would disappear once the election ended. But like George Costanza, Republicans have become so invested in the lie, they’re afraid to let it go.
Prominent House Republicans are relaunching efforts to stop the Obama administration from giving states waivers under welfare reform.
GOP leaders of several committees reintroduced a bill Thursday that would block the policy, which Republicans say “guts” welfare’s work requirement.
“This legislation makes it clear — the Obama administration cannot undermine the work requirement that has resulted in higher earnings and employment for low-income individuals,” said Ways and Means Committee Chairman Dave Camp (R-Mich.) in a statement.
That the Obama administration never undermined the work requirement — and has no intention of doing so in the future — apparently doesn’t matter. What’s necessary, apparently, is to keep the lie alive, even after it’s been exposed as untrue.
Yesterday, the White House criticized the House GOP bill, which has 23 cosponsors, as standing in the way of “innovative” state-based programs that could help more welfare recipients into new jobs. The administration called the bill “unnecessary.”
Which it is, though that doesn’t seem to matter.
By: Steve Benen, The Maddow Blog, March 13, 2013
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 