• Negotiations Continue on Guns and Abortions

    August 1, 2022 // 1 Comment »

    We don’t really negotiate much in the U.S. and so we’re bad at it. Even when we are forced to “haggle,” we employ rituals, like the salesperson at a used car dealership “checking with his manager” on our offers, or the dance between real estate agents that goes along with buying a house. Car offers come back from the mysterious manager as impossible, and offers on a house are just refused, no chance to talk because two layers of agents stand in the way. That’s why we cannot find any common ground on abortion and gun control. We do not know how to be reasonable.

    The American style of negotiating is to demand everything and settle for nothing less. So we’re taught to make our first offer the final offer (it works a little different when the issue is simply money, then we ask for an outrageous amount and “bargain down” after the other side offers an equally outrageous small amount. Starting anywhere near your actual price is considered a sign of weakness.) We don’t like gray areas and we don’t like to feel we’ve lost out on something. So being asked to support something on its face reasonable like allowing two people in love living together in a home they co-own to marry means buying into a whole LGBTQIA2+ agenda that somehow includes forcing kids to listen to drag queens read stories aloud about sexually ambitious caterpillars and their same-sex tadpole pals. Seeking restrictions on abortion ends up cruelly forcing rape and incest victims to carry to term.

    We do the same thing in broader swathes, when reporters who misuse pronouns or support the Harry Potter author are not just sidelined or argued with, but canceled, deleted, defunded, disenfranchised, literally thrown down the memory hole to just take their opinion and go away, leaving only your opinion standing. The presumption is even on the most ideological of arguments there is a clear right and wrong only. We have evolved speech to match this mindset, things like “my way or the highway,” “all or nothing,” and “in or out.”

    Back in the day when I worked for the State Department every summer embassies abroad had to ask for funding for summer hires to help us catch up on clerical work. There was only so much money around and not everyone could get all they wanted. At first I did what was standard, ask for ten people knowing I only needed five, with all sorts of silly justifications I had to eventually walk back. One year I played it different. I wrote in detail what five people would do, what would not get done with only four, and why six would be a waste of personnel. That year and the ones that followed were the easiest ever; Washington and I jumped right to the meat of the problem and nobody was forced to belittle the other on the road to negotiating a compromise.

    That’s what did not happen recently in overturning Roe v. Wade. Though Roe was poor jurisprudence and Constitutionally hilarious, it was the product of negotiation. First trimester abortions were basically allowed, second term were generally allowed, and third was more or less up to the states.  Roe produced a workable solution to a very complex problem, uniquely American as it combined religious, moral, and Red and Blue thought into what was often falsely presented as a binary decision — abortion was legal or not. The compromises in Roe were far from perfect or widely accepted, simply the output of a beleaguered Court willing to talk about something the rest of America would not.

    The problem was Roe’s supporters and opponents almost from day one set about trying to take a compromise solution and make it an absolute. States latched on to their freedom to dictate third semester rules by gleefully promoting gory end term abortions where a viable baby was aborted. There can be good medical reasons to consider this, but the issue was not presented that way, it was “a woman’s right.” Same on the other side. Clever legal tricks were deployed so that, sure, you can get a first trimester abortion, only not where clinic regulations and hospital affiliations were manipulated to make it near impossible to meet the standards. As was intended. No one was going to sit back and allow compromise to stand.

    The Court itself is not immune; in combination with the gutting of Roe (another all or nothing type decision) Judge Clarence Thomas opened the door to ending Federal law allowing for same sex marriage. If you can’t have all the rights you should have none of them he seems to be saying to the Left. Specifically, Thomas was threatening Griswold v. Connecticut, a 1965 decision that declared married couples had a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws and making same-sex sexual activity legal across the country; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry. How again are those directly related to the hyper-complex issue of abortion?

    More importantly, has anything changed in society that requires a new look, something gone amiss? No, the only thing that has changed is a different side now holds a majority on the Court and wants to run with it. They have no more interest in compromise than the demonstrators massing around Justices’ homes in hopes of harassing them into compliance with the mob, or AOC on TV screaming people are going to die.

    Same for gun control, the other recent Supreme Court decision. In New York State Rifle v. Bruen, the Supreme Court again swung widely. The existing law, basically saying the right to bear arms in the 2A did not automatically mean a right to openly carry arms in public, had been misused by anti-gun states. In Hawaii, for example, every single open carry permit had to be approved personally by the chief of police. Multiple chiefs over a period of recent years found no reason to approve even a single permit and in the past 22 years there have been four open carry permits issued in Hawaii; all or nothing, as if somehow not one applicant in recent memory was capable of safely openly carrying a weapon. So the response from the now-conservative Supreme Court was to do away with provisions governing carrying a weapon. The counter-response from those states who are anti-gun, such as Hawaii, is to promise to jerry-rig their laws with outrageous training requirements or exorbitant fees to somehow get around the Court’s perceived free-for-all, and to cite recent mass shootings (which had nothing to do with handguns or open carry laws) as fear-inducing excuses. Nobody sees any of the middle ground of reality.

    And that is why the Supreme Court’s rulings on abortion and gun carry law resolve nothing. In the extreme progressives will simply wait it out until it is 1973 again, and the Court will have turned over to a more liberal group of jurists who will reinstate black to replace white or vice-versa. The real answer on abortion, a rough and robust debate in Congress followed by a set of compromises, or an equally rough and robust debate at the state level, will never come. Americans are not very good at negotiating and so usually pay more at the car dealer than they should. The same problems plagues us on much more serious issues regarding abortion and the Second Amendment and that ends up costing us a lot more.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America, Uncategorized

    The Search for Heroes

    June 13, 2020 // 9 Comments »

     

    These are your new heroes: people who invoke the grace of Dr. King to label riots as lawful protests, looting as reparations. To be fair, most of that labeling is not by the thugs themselves, but by the media who elevate them to hero status hoping once again this will bring Trump down. Citing the freedom fighters in the streets, former labor secretary Robert Reich proclaimed “Trump’s presidency is over.”

    Not quite yet. So the MSM report on fires outside the White House with a wink; maybe they’ll burn the place down. The Trump family taking shelter in their bunker was met with articles calling the president a coward for not facing down the mob shouting “Get off my lawn!” The implied hope was there — if we can’t impeach him, maybe we can just have someone kill him. They will deny it, but the media encouraged violence. They hoped for it, they egged it on. “Destroying property which can be replaced is not violence,” NYT’s Nikole Hannah-Jones said. “I think any reasonable person would say we shouldn’t be destroying other people’s property. But these are not reasonable times.”

     

    Meanwhile the media met the prospect of the military’s arrival on mixed ground. The big story was not the standard “order will be restored but my God at what price?!?” but that Trump had “declared war on the American people.” Though 58 percent of voters support the deployment of the military to respond to protests, with only 30 percent opposing, the web is awash in uninformed fear mongering over martial law, posse comitatus, the Insurrection Act, and whatever else a Wikipedia search churns up.

    But underlying was a subtext: you know, maybe a military coup, maybe via martial law, would be OK. We’ve heard that actually for four years, with hopes expressed one of the ex-military men in the White House, maybe Mad Dog, John Kelly, or H.R. McMaster would hero up and assume control. If not directly, then maybe by running the country as the patriot behind the throne. Upon General Mattis’ departure, the The New York Times asked “Who will protect America now?” juxtaposing the warrior-monk with the Commander-in-Cheeto.

    The search for Trump-smiting heroes has strayed far from anyone deserving the title even as the qualification for the job remained hilariously low. Felon Michael Avenatti was a contender, anal porn star Stormy Daniels, and felon Michael Cohen, too. Along the way James Comey, John Brennan, Michael Hayden, Christopher Steele, and James Clapper were all given some hero time, and of course the run by Robert Mueller as Savior-in-Chief. There was the anonymous whistleblower and a handful of State Department drones at the impeachment hearings whose names are so long forgotten they might as well have been anonymous. Even the virus was given the chance at hero status if it would have been horrible enough to end this presidency.

    There were also the mini-heroes like Colin Kaepernick or the women’s soccer team, whose minor protests were turned into national moments by the MSM. They do keep trying for relevancy; pink haired soccer starlet Megan Rapinoe is threatening to run for some office, and joined other minor celebs in signing a petition to defund police forces. Kaepernick started a defense fund for protesters, quoting Malcolm X to warn “Concerning nonviolence, it is criminal to teach a man not to defend himself when he is the constant victim of brutal attacks.”

     

    The hero-seeking media partnered them with every Democratic black candidate of any type or plain white woman who could check boxes (single mom, lesbian, HIV+, veteran, etc.) The high point of this low point was reached with AOC and her Squad, whose only real accomplishments have been relentless self-promotion and helping push Nancy Pelosi into an impeachment process that squandered the Blue Wave.

    But rioters as the new heroes? That’s who is left? No one wants bad cops, and every day America suffers for its original sin of slavery and 200 year failure to find repentance. The only answer the country seems to have come up with is to allow rioters to run amuck every few years to let the pressure reset. Pick your favorite — the TV version following Rodney King, the blast from Ferguson, or something old school from the 1970s out of Watts or the Bronx.

    In New York City we face an 8 pm everyone-off-the streets curfew, the first in 75 years (the COVID lockdown is also concurrently still in effect.) But the protests continue, with several hundred people last night closing down streets adjacent to my apartment building. Many stores in this part of America’s richest city had already been boarded up; the men putting up the plywood coming in from white working class neighborhoods in nearby Queens said to me they’re grateful for the work post-COVID, “but if I ever have to do this for my own neighborhood some mf is gonna suffer.”

     

    The protesters themselves were about two-thirds white, uniformly in their mid-to-late twenties. People wearing Bernie t-shirts outnumbered those still practicing social distancing by about 6:1. Everyone who would tell me where they lived said Brooklyn but if you live here you would have already guessed that. The blacks in the group appeared to be joining spontaneously from the surrounding public housing blocks and not mingling. Their chants weren’t the organized ones of the white kids, mostly “f*ck the police” accompanied by gang signs or middle fingers, just rage cleansed of politics.

    None of the black protesters would speak to me, but the white protesters wouldn’t stop. They knew media and my notebook drew them like shadows to a lamp. Asked what they wanted, everyone had their lines down — it was justice and peace — but no one really had an answer to how this demonstration would help create those things. What law could Congress pass to fix any of this? Raising awareness seemed to be the closest anyone could get.

     

    Some apartments in the area have hired private security, those beefy guys you usually see checking IDs at night clubs. One hotel employee said his five-star place had former SEALS at the door. Two NYPD helicopters were overhead for almost two hours, top cover Baghdad-style, watching the rooftops. People living nearby are angry and afraid, and such people will defend themselves, and that will be a terrible, terrible thing. It seems leaders on all sides are setting us against each other and we are embracing that as a new way of life. When was your last pleasant but intense political discussion with friends?

    It was hard to connect the odd collection of images and impressions from the street with a new theme among the righteous but uneducated on social media. They seem to think burning a Target is the modern equivalent of the American Revolution against the British. I listened to the Hamilton score twice now, and even read the Klassic Komics version of Federalist Papers, and can’t find anywhere the American side whined about the British being too rough. Instead, they understood a revolution meant risking their lives, their honor, and their sacred fortunes. Denied representation under an undemocratic system, they fought.

    The Founders took to the streets with none of the protections of the Bill of Rights. It was only after they won those early heroes created a Bill of Rights. It came as a package deal, because the Founders wanted to create a society where peaceful change was written into the law and so another bloody revolution was something their children would not have to undertake.

    That fundamental message was missed by the Democratic Party of Fairfax, Virginia. They tweeted (now deleted but the sentiment is widely shared) “Riots are an integral part of this country’s march towards progress.” No. Riots are not a vehicle for political change in a democracy. They are the antithesis of democratic change, change by force with no desire for compromise.

    It was only a week ago people said protests against government (specifically COVID restrictions) were wrong and dangerous, we should listen to the authorities, and were glad the cops were out there enforcing social distancing and masking. The people I saw at yesterday’s protest looked a lot like the people hissing at me in Whole Foods for not wearing a mask. They likely believe the 1A protects their protests but not those of the rednecks at the statehouse. To them every offense is a lynching, every day the apocalypse, every Tweet another final blow to democracy, every misunderstanding another example of systematic racism if not sexism, every non-white non-male non-straight American another victim.

    Once you understand how shallow and and tiresome and hypocritical such views are you will understand the 2016 election, and in about 150 very long days from now, the 2020 election. No heroes, or Russians for that matter, necessary.
      

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America, Uncategorized

    Justice Stevens is Wrong: Repealing the Second Amendment in Post-Constitutional America

    March 27, 2018 // 15 Comments »




    It is not a healthy sign for a democracy when the people ask that rights be taken from them by the government.

    Former Justice of the Supreme Court John Paul Stevens is calling for the repeal of the Second Amendment in an Op-Ed in the New York Times. And make no mistake; the article is not for restrictions on rights (which can have their place) but for the elimination of an “inalienable” right, stripping the 2A from the Constitution. Stop what you’re about to say — this is about something more fundamental than guns alone.

    Stevens argues guns are dangerous things and the Second Amendment is, in his words, “a relic of the 18th century.” He advanced similar thoughts in 2008, when dissenting in the landmark District of Columbia v. Heller, where the Supreme Court held the Second Amendment protects the right to bear arms on an individual basis, even for those unaffiliated with a militia (thus an “individual” right not a “collective” right.) Stevens claimed in his dissent “There is no indication Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”

    Justice Stevens instead sees the Second Amendment as a “propaganda weapon of immense power” for the NRA. His renewed call to repeal the 2A is based mostly what he saw on TV this weekend, a march in Washington in favor of something-something-gun control-somehow Stevens believes represents a “clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons.” He maintains as long as the 2A exists, the NRA will simply use its declaration of the inalienable right to bear arms to “stymie legislative debate and block constructive gun control legislation.” The bulk of the Supreme Court rejected his ideas back in 2008, when Stevens tried to vote down the right to bear arms in District of Columbia v. Heller. It doesn’t make any more sense now.


    Now of course the 2A will not be repealed; a nation that can’t make up its mind on the proper legal age to purchase a handgun will never reach a consensus to amend the Bill of Rights. People like Stevens calling for its repeal likely believe they are clever negotiators, setting a marker way out there, thinking it makes bargaining towards some middle easier. Same for using the PTSD-encrusted Parkland kids as emotional, meaty symbols, labeling those who oppose “gun control” as literal murderers, alongside members of the NRA, the Republican party, and any other politician who accepts NRA money.

    The problem is demonizing everyone who owns a gun for whatever reason is never going to promote meaningful change. Those people vote, they certainly don’t see themselves as demons or people who would condone the killing of children, and they won’t trust reforms to people who label them as demons. Under those circumstances, the only “answers” are repeal or keep things as they are, the kind of solution Prohibition failed at with alcohol.

    In the ten years since his original dissent and today’s New York Times Op-Ed, Stevens hasn’t come up any better argument other than the presence of the 2A itself enables the NRA to block incremental change. That will almost certainly drive away any gun owners who might otherwise be willing to talk about some sort of restrictions. Going to the table demanding all or nothing usually yields you nothing. Stevens has also just played directly into the hands of the NRA, who have maintained all along “reforms” are just sneaky waypoints toward banning all guns. Justice Stevens’ critique is fundamentally wrong, as its premise is that not everyone is to be allowed rights, that they are gummy, not inalienable. He argues extra-Consitutionally some choices (the Parkland ones of course) exist above rights.


    Historians may well look back on Stevens’ article as a marker the United States has entered its third great era. The first, starting from the colonists’ arrival, saw the principles of the Enlightenment used to push back the abuses of an imperial government and create the Constitution and the Bill of Rights. The next two hundred some years, imperfect as they were, saw those principles progress, putting into practice what an evolving government of the people might look like. The line was steady — greater rights, more freedom, encoding away the ability of government to restrict how people could chose to live.

    We are now wading in the shallows of the third era, Post-Constitutional America, a time when we are abandoning the basic ideas that saw our nation through centuries of challenges. Those ideas — enshrined in the Bill of Rights — are disarmingly concise, the haiku of a People’s government. Now, deeper, darker waters lay in front of us, and we are drawn down into them.

    The very idea of even discussing willfully removing rights guts the heart of who we are. Rights inside our form of society are inalienable, existing organically, and are not granted by government and should not be able to be taken away. Such extraordinary privilege comes with the responsibility of tolerance; that is why the 1A protects all speech, including some quite purposely hateful and racist. It is meant to be that Americans can hate the idea of abortion, or same sex marriage, and still support someone’s else’s right to different choices with all their heart. I don’t own a gun, but you can.

    Some will argue guns are different, they kill. The same argument can be applied to abortion of course, and to speech designed to stir people to war. Some, like Stevens, say the 2A, which speaks of a “well regulated militia” the Founders intended as a substitute to a standing army is archaic language. It is. The idea a handful of people with personal weapons poses much of a tactical challenge to a standing army in the 21st century is as outdated as the Third Amendment, which prohibits the government from quartering troops in private homes.


    But the Constitution is a living document, and has changed mightly over the last two centuries to greatly expand rights implicitly and explicitly left out in the 18th century-limited minds of the men who wrote it, particularly in regards to slavery, universal suffrage, and discrimination in all its forms. “Speech” has been constantly redefined in broader and broader ways that would astound the Founders. But the broad pattern has always been toward expansion of rights carefully moderated by restrictions as limited as they must be (no shouting fire in a crowded theatre.)

    It is wrong and frightening and anti-democratic to see calls for the elimination of a full amendment from the Bill of Rights, and doubly so that such appeals resonate with so many Americans acting now out of fear and emotion. It bespeaks a fundamental change in how Americans came to be America, and opens the door wider to a Post-Constitutional United States that seems to say “You want inalienable rights? You can’t handle inalienable rights.”

    The Founders feared a King would become jealous of the People’s power and want some back. They never anticipated in 2018 the people might demand it be taken from them.




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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America, Uncategorized