‘Looking Beyond The Store Countertop”: Maybe The Supreme Court Isn’t As Pro-Gun As We Thought
Bruce Abramski must have known he was going to get into trouble when he bought a Glock 19 for his uncle. A retired police officer, Abramski was familiar with gun regulation. Yet he accepted $400 from his uncle, went to a local gun store, and—as required to purchase the Glock—filled out federal Form 4473. Question 11.a of that form required Abramski to confirm that he was “the actual transferee/buyer of the firearm(s)?” Question 11.a includes, in stark bold lettering “You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.” Nonetheless, Abramski signed the form, knowingly lying about his intentions in purchasing the gun for his uncle.
When he was finally caught, Abramski answered with the audacity increasingly typical among a certain class of gun owners: He insisted the law itself was illegal. His lying, he claimed, was perfectly lawful. Surprisingly, he almost convinced the Supreme Court to let him off. Instead, a narrow majority of the Court declined Abramski’s invitation to gut one of the nation’s most important laws designed to reduce easy access to guns by felons and the mentally ill. The ruling is a relief to law enforcement—and a setback for the National Rifle Association.
Law enforcement will be happy because the majority’s decision affirmed the continued viability of the federal prohibitions on gun trafficking. Nearly half of all trafficking investigations by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the main federal agency overseeing gun sales, involve what Abramski did. It’s called “straw purchasing,” and it occurs when one person buys a gun for another person. People who can’t pass a background check, say, because of a prior felony conviction, persuade someone else to go to a gun store for them. It could be a girlfriend, a young recruit into the gang, or just someone looking to make a quick buck. Studies show that criminals often use straw purchasers to obtain firearms.
Abramski wasn’t planning to give his gun to a criminal. It was for his uncle, who wasn’t prohibited himself from purchasing firearms. In the lower courts, Abramski emphasized this argument. Because the uncle could have bought the Glock 19, Abramski’s misrepresentation on Form 4473 was not, as the law required, “material to the lawfulness of the sale.” This argument had a certain logic to it, even if it wasn’t especially persuasive in the end. The lie was still material because the gun store, which needs to verify the background of the buyer, would not have been allowed to sell the gun to Abramski had he told the truth. At the Supreme Court, however, Abramski decided to go further: He said he could lie regardless of his uncle’s eligibility. As is so often the case in today’s gun debate, a reasonable argument is pushed aside in favor of a more extreme and dangerous one.
Abramski’s extreme claim was that straw purchasing was not illegal at all. The law, he argued, only required the gun store to check his own background because he was the purchaser. It didn’t matter what he did with the gun later or whether he was already intending to sell it to his uncle, his aunt, or some dude he met at a gun show. As Justice Scalia, who agreed with this argument, wrote in dissent on behalf of Justices Alito, Thomas, and Chief Justice Roberts: “If I give my son $10 and tell him to pick up milk and eggs at the store, no English speaker would say that the store sells the milk and eggs to me.”
Writing for a majority that included Justices Kennedy, Ginsburg, Breyer, and Sotomayor, Justice Kagan declined to buy what Scalia and Abramski were selling. In holding that federal law intends to look beyond the store countertop (Abramski and the gun dealer) to see who the actual purchaser is (the uncle), Kagan was clearly worried about the AFT’s continued ability to prosecute gun trafficking. The “overarching reason” to reject Abramski’s circumscribed interpretation is that it “would undermine—indeed, for all important purposes, would virtually repeal—the gun law’s core provisions.”
Repealing gun control is exactly what the NRA, which filed a brief in support of Abramski, was hoping for. Although famous for saying we need to enforce existing gun laws, here at least the NRA was trying to make it harder to enforce federal law. Perhaps this is an example of what’s been called the NRA’s gun control “Catch-22”: make gun laws impossible to enforce, then point to the laws’ ineffectiveness as a reason to get rid of them. Had the NRA’s position won in the Court, tomorrow they’d be saying the background check law doesn’t work because it doesn’t stop straw purchasing.
Whatever the NRA’s motive, the nation’s leading gun rights organization will be disheartened by today’s ruling. It’s bad enough, from the NRA’s perspective, that the Court strengthened the hand of ATF—long the target of the NRA’s hostility. Worse, the Abramski case saw Justice Kennedy siding with the liberal wing of the Court to uphold a gun control law. Ever since the Supreme Court breathed new life into the Second Amendment in the 2008 case of District of Columbia v. Heller, another narrow, 5–4 decision, the NRA has been counting on Justice Kennedy to side with it in the NRA’s challenges to gun control.
Based on that expectation, the NRA has been pursuing lawsuits around the nation challenging a variety of gun control laws. The most significant of these are laws restricting who can carry guns in public. Just this term, the NRA and other gun rights advocates petitioned the Court to rule on that issue in several different cases. Although the Court has so far declined to hear any of those cases—and today’s case was not framed as a Second Amendment case—today’s ruling shows that Justice Kennedy is willing to support gun control. For people on either side of the gun debate, that may be the most important signal to come from the Court’s ruling.
By: Adam Winkler, Professor of Constitutional Law at The UCLA School of Law; The New Republic, June 6, 2014
“Good And Evil Are Interchangeable”: How Fox News Created A Monster And Made Two Others Disappear
Anyone who read 1984 in high school should know that the target of propaganda can turn on a dime. But we tend to forget this lesson whenever the media’s real-life Big Bros crank out their version of “We’ve always been at war with Eastasia,” as they’ve being doing of late.
It’s worth quickly revisiting Orwell. “On the sixth day of Hate Week,” he wrote,
when the great orgasm was quivering to its climax and the general hatred of Eurasia had boiled up into such delirium that if the crowd could have got their hands on the 2,000 Eurasian war-criminals who were to be publicly hanged on the last day of the proceedings, they would unquestionably have torn them to pieces—at just this moment it had been announced that Oceania was not after all at war with Eurasia. Oceania was at war with Eastasia. Eurasia was an ally.
There was, of course, no admission that any change had taken place…. The Hate continued exactly as before, except that the target had been changed.
We’ve recently gone through a Hate Week or two ourselves. Only months ago, Sgt. Bowe Bergdahl, the last POW in Afghanistan, had been valorized by the right. Senators McCain, Ayotte and Inhofe, Sarah Palin and Allen West and right-wing websites wanted Bergdahl freed at all costs, and blamed Obama for leaving him behind.
Then, of course, Obama did free Bergdahl. You can argue that the deal struck was mishandled, but there’s no excuse—none—for the rightwing pillorying of Bergdahl into a one-man Eastasia. With no evidence and “no admission that any change had taken place,” they’ve recast him, variously, as a deserter, a traitor, a jihadist or, as Fox News reporter James Rosen bizarrely put it, “a kind of modern-day Lee Harvey Oswald.” Death threats were made against his parents; his hometown of Hailey, Idaho, canceled a celebration of his return for fears of public safety. Fox News’s Kimberly Guilfoyle declared that he was “lucky” US forces didn’t find him earlier because “he would have come home either in a body bag or come home and gone straight to jail.”
Bergdahl is back now in the United States, being treated at the San Antonio Military Medical Center, and God help him when, weeks or months or years from now, he meets the media. (This cartoon puts it succinctly.)
Then, faster than you can switch a long beard from signifying good ol’, homo-hatin’ Duck Dynasty boys to signifying that you look like a Muslim (as Bill O’Reilly said of Bergdahl’s father)—quicker than that, you can make a pair of right-wing cop killers cease to exist.
The same Fox News that usually torches not only cop killers but lawyers who defend them and singers who rap about them had almost nothing to say about Jerad and Amanda Miller, the couple who executed two police officers as they were eating at a Las Vegas pizzeria. The Millers had attended rallies at the Cliven Bundy ranch and thus hated law enforcement in the right way, in the way Fox had helped to foment. As Eric Boehlert wrote last week:
Primetime hosts Bill O’Reilly and Sean Hannity both ignored the shocking cop-killer story [the day after the killings], while Megyn Kelly devoted four sentences to it. (By contrast, the story covered extensively during CNN and MSNBC’s primetime.) Fox talkers on Monday were still far more interested in debating the prisoner swap of Bowe Bergdahl than they were examining the political ambush in Las Vegas….
In the 36 hours after the shooting, Fox News tread lightly around the Las Vegas story, producing regular news updates about the crime spree. But Fox provided almost no commentary, no context, and certainly no collective blame for the executions.
And that’s how Fox News deals with right-wing domestic terrorism in America, when it even bothers to acknowledge the killings and the crimes…. on Fox the perpetrators are always portrayed as lone gunmen (and women) who do not represent any cultural or political movement.
This sort of media-manufactured amnesia goes beyond a mere “flip-flop.” In a well-oiled propaganda machine, who’s lone and who’s representative, who’s a hero and who’s a heel, even good and evil themselves, are interchangeable. Anything can be instantly reframed as circumstances dictate.
As we’re already hearing from some quarters: “We have always been right to go to war in Iraq.”
By: Leslie Savan, The Nation, June 16, 2014
“An Emboldened Mob”: To Right-Wing Nutjobs, Ordinary Voters Are The Enemy
“You don’t need a weatherman to know which way the wind blows.”
–Bob Dylan, Subterranean Homesick Blues.
So the Bonnie and Clyde of the great Bundy ranch standoff thought they could start a national uprising by murdering two cops in a Las Vegas pizza joint. After executing Officers Alyn Beck and Igor Soldo in the most cowardly way possible, would-be freedom fighters cc draped the officers’ bodies with a Nazi flag and the “Don’t Tread on Me” banner flown at Tea Party rallies, and left a note proclaiming a new American Revolution.
The duo then proceeded to Walmart, where they also died in the most cowardly way possible — a murder-suicide, saving the slain officers’ colleagues the unpleasant necessity of shooting them dead.
Along the way the pair encountered the proverbial “good guy with a gun,” Joseph Robert Wilcox. They killed him too. Wilcox’s mistake was to pull his own concealed handgun without firing. It’s something combat instructors say one should never do, although it’s a decent human being’s first instinct — one good reason ordinary citizens shouldn’t carry.
You can’t learn combat shooting skills in a few hours with a retired deputy. It’s a potentially fatal mistake to try.
But I digress. Can anybody say they didn’t see this coming? The day before the Las Vegas tragedy I’d told a friend that between now and Labor Day, I expect to see a large scale firefight between crackpot right-wing militia types and police and/or federal authorities somewhere in America — Ruby Ridge, Waco, possibly even Oklahoma City all over again.
We’d been talking about those “open carry” geeks parading around in Fort Worth restaurants; also the self-appointed Texas posse that vowed to forcibly prevent Bowe Bergdhal’s Idaho hometown from throwing a welcome-home celebration for the recently released POW.
What the truth is behind the murky circumstances of Bergdhal’s capture by the Taliban, nobody really knows. However, Fox News and CNN succeeded in raising an electronic lynch mob. In essence, these jokers pronounced themselves willing to kill or die to prevent President Obama from getting a bump in opinion polls — the proximate cause of the sickening right-wing media freakout over Bergdhal’s release.
But back to Bonnie and Clyde. Supposedly, the Millers were asked to leave the Bundy ranch because of the male half’s criminal record. But definitely not because the duo was any crazier than the “Mountain Men” and other armed zealots eager to fight it out with the Bureau of Land Management over Cliven Bundy’s God-given constitutional right to graze free government grass.
“I was out there but they told me and my wife to leave because I am a felon,” Miller wrote on his Facebook page. “They don’t seem to understand that they are all felons now for intimidating law enforcement with deadly weapons. We sold everything we had to buy supplies and quit our jobs to be there 24/7. How dare you ask for help and shun us dedicated patriots!”
Posing as a rancher, Miller did a TV interview sounding no crazier than Bundy. “I feel sorry for any federal agents that want to come in here and try to push us around or anything like that,” he said. “I really don’t want violence toward them, but if they’re gonna come bring violence to us, if that’s the language they want to speak, we’ll learn it.”
Sounds like something Kevin Costner might say in a movie, right?
Miller was right about the law, though. Pointing a gun at a federal agent is a serious felony, and you wouldn’t want to live in a country where it’s not. No doubt the BLM was right not to risk a firefight over a couple of hundred scrawny cows. But it definitely emboldened the mob.
Of course there are also deeper long-term issues at play.
“In our recent history,” writes Paul Waldman in the Washington Post, “every election of a Democratic president is followed by a rise in conspiracy-obsessed right-wing populism. In the 1960s it was the John Birch Society; in the 1990s it was the militia movement shouting about black UN helicopters, and during the Obama presidency it was the Tea Party.”
It’s also clear that President Obama’s race has a lot to do with far-right hysteria. Indeed, the most striking thing about Miller’s Facebook page is its sheer banality: Benghazi, Hillary, Nancy Pelosi, the global warming conspiracy, the tyranny of Obamacare, Agenda 21, fluoridated water, gun confiscation, etc.
I get chain emails about this nonsense every day. Along with veiled, and sometimes not so veiled, threats.
To the nutball right, ordinary Democratic voters have become the main enemy. Their apocalyptic theology requires a Satanic enemy, and it’s the majority. Some won’t rest until they get the violent confrontation they think they want. Then look for the professionals to take down the amateurs, with prejudice.
It’s the American way.
By: Gene Lyons, The National Memo, June 11, 2014
“Dissent And Violence”: Where Terrorists And Assassins Don’t Hide
At the end of last week, I wrote about a report showing how law enforcement authorities reacted to Occupy protests as if they were the advance guard for an al Qaeda invasion of America, on the apparent assumption that unlike non-violent right-wing dissent, non-violent left-wing dissent is likely a prelude to violence and thus must be met with surveillance, infiltration, and ultimately force. On Tuesday, the Supreme Court issued a decision on a case involving the Secret Service that seems to grow from a similar assumption about the connection between dissent and violence.
The case was about an incident in 2004 when President George W. Bush stopped at an outdoor restaurant in Oregon. A crowd quickly formed, with some people cheering Bush and some jeering him. The Secret Service forced both groups away from the location, but let the pro-Bush citizens stay closer than the anti-Bush citizens; the plaintiffs charged that this was impermissible viewpoint discrimination. The Court ruled 9-0 that the Secret Service acted reasonably to protect the president. Having read the decision, I don’t necessarily disagree with their reasoning—a lot of it turned on things like lines of sight to where the president was sitting from different corners in the area. But I’d be shocked if the agents involved weren’t particularly on their guard when the anti-Bush protesters showed up.
What we ought to question is the assumption that there’s any connection at all between the content of a non-violent protest and the potential for premeditated violence, particularly of the really dangerous kind, like terrorist attacks and attempts to assassinate the president. If you have two groups of people yelling at the president, and one group is saying “You’re great!” while the other group says “You suck!”, is there any higher probability that a threat to the president’s life will come from the second group than the first? The answer is, of course not. If someone wanted to assassinate the president, they would have no reason to seek out a bunch of protesters opposing that president to use as a cover. They’d want to get close enough to fire a shot, and it wouldn’t matter what the people among whom they hid would be saying.
That’s true despite whatever intuitive sense one might have that people who are opposed to the president might want to assassinate him. There’s a belief not just that anti-government violence exists on the same spectrum as peaceful protest, but that at any given moment, such violence is a potential outgrowth of such protest. And more: that people planning violence will incorporate peaceful protest into their plans.
That assumption leads to things like the Department of Defense spying on Quaker anti-war protesters during the Iraq war. Think about how nuts that is. The anti-terrorism officials whom we charge with our safety actually seemed to believe that al Qaeda would send a cell to America with plans to launch a major attack, and instruct them: “The week before zero hour, make sure you go to an anti-war rally. Make a sign that says ‘Bush Is the Real Terrorist.’ That will lay the groundwork for the explosion.”
Again, this case about the Secret Service was probably rightly decided, but the belief that terrorism, bombings, assassinations, and/or general violent mayhem are the potential result of every left-wing protest is absolutely common among law enforcement authorities at every level of government. It isn’t just factually wrong, it’s actually dangerous—to the people who end up having their rights violated, and to the country’s safety.
By: Paul Waldman, Contributing Editor, The American Prospect, May 29, 2014
“The Extreme Left Is Harmless”: Government Treating Peaceful Left Activists Like Terrorists, Again
Both liberals and conservatives spend time arguing that the other side contains people who are nutty, highlighting extreme statements in an attempt to convince people that there’s something fundamentally troubling about their opponents. There are many differences between the extreme right and the extreme left, perhaps most importantly that the extreme right has a much closer relationship with powerful Republicans than the extreme left has with powerful Democrats. When you find a crazy thing a liberal said, chances are it’s an obscure professor somewhere, or a blogger with twelve readers, or a random person at a protest. The crazy people on the right, in contrast, are often influential media figures or even members of Congress, people with real influence and power.
There’s another critical difference that doesn’t get as much attention: the extreme left is, generally speaking, harmless. That’s their nature. They’re more likely to meditate and form committees than hurt anyone. It’s been almost half a century since there were any leftists plotting bombings, and other than the occasional eco-vandal keying an SUV, the left isn’t going to be creating much in the way of crime and mayhem.
Extreme conservatives, on the other hand, are much more likely to be armed and dangerous. And we have plenty of examples of right-wing terrorism in our recent history, from the Oklahoma City bombing, to the Atlanta Olympic bombing, to the neo-Nazi who murdered six people at a Sikh temple in Wisconsin in 2012, to the murders this April in Kansas at a Jewish community center and retirement home, and dozens more. So you would think that law enforcement authorities would be particularly concerned about violent extremism on the right, while not wasting precious resources monitoring, infiltrating, and harassing leftists who are doing things like protesting U.S. foreign policy or opposing income inequality.
Oh, but you’d be wrong. The latest, from the New York Times, describes how law enforcement officials around the country went on high alert when the Occupy protests began in 2011, passing information between agencies with an urgency suggesting that at least some people thought that people gathering to oppose Wall Street were about to try to overthrow the U.S. government. And we remember how many of those protests ended, with police moving in with force.
The activities the Times article describes are relatively low-level compared to how many agencies approached left activism in the years after September 11, essentially treating any gathering of liberals like it was an al Qaeda cell days away from launching an attack. Anti-war groups were infiltrated with undercover officers posing as protesters, the most innocuous groups imaginable were spied on (you can rest easy knowing the threat from Quaker peace activists was closely monitored by anti-terrorism officials), and wherever a bunch of liberals got together to raise their voices, mass arrests often followed.
If you can’t recall any Tea Party protests in 2009 and 2010 being broken up by baton-wielding, pepper-spraying cops in riot gear, that’s because it didn’t happen. Just like the anti-war protesters of the Bush years, the Tea Partiers were unhappy with the government, and saying so loudly. But for some reason, law enforcement didn’t view them as a threat.
Or even more recently, recall how gingerly law enforcement officials treated Cliven Bundy and his allies. Here was a guy stealing public resources, and his supporters were literally pointing guns at government officials, and the response of the government was, “Let’s everybody stay calm here.” Eventually the authorities just backed off. I guess it’s lucky for the Bundy folks that they never tried forming a drum circle or passing out veggie burritos, because then the hammer would have really come down on them.
This isn’t anything new, of course; the government has a long history of treating liberal groups like a dire threat to the republic. But when we see yet another story like this one, it’s a reminder that the people and agencies charged with public safety have bizarre notions of where terrorism might come from. And that makes all of us less safe.
By: Paul Waldman, Contributing Editor, The American Prospect, May 23, 2014
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