Naming names.

July 5, 2022

          With a sickening regularity that distinguishes America from every other developed nation in the world, a mass shooting marked the Fourth of July weekend in the United States. In Highland Park, Illinois, a twenty-year-old male with a history of social media posts glorifying violence used a weapon of war to kill six people and wound dozens more. Every victim was an innocent American participating in a time-honored tradition of celebrating the Fourth of July with a community parade. It doesn't get more American than that. And, sadly, it doesn’t get more American than another mass shooting by an angry young man with an AR-15, high-capacity magazines, and hundreds of rounds of ammunition designed to inflict gruesome injuries on human beings.

          The trigger was pulled by one person, but he was enabled by a Republican Party and Supreme Court that have served as legislative lobbyists, PR advocates and apologists, and judicial messenger boys for the merchants of death posing as gun manufacturers. The families of the victims deserve time to mourn and grieve the loss of their loved ones. But we should not delay the process of assigning blame. We have witnessed too many mass killings and buried too many children, parents, and grandparents for us to wait another minute.

          In remarks made hours after the mass killings, Illinois Governor JB Pritzker said that it is time to “Be angry,” and that “There is no better day than today” to talk about gun control. Pritzker is right. For too long and on too many occasions, Democrats have demonstrated an inclination toward incrementalism and bipartisanship. Enough. Democratic candidates have campaigned in fear of offending gun owners while Republicans have collected blood money from the NRA. Enough. We have treated the surrogates of the NRA as though they are respected politicians acting in good faith. Enough.

          The time for incrementalism has passed. The time for bipartisanship has passed. The majority of Americans want gun control—not merely “gun safety.” We must ban assault rifles, semi-automatic weapons, and high-capacity magazines. Any American who claims the need for such a weapon or ammunition can join their state’s militia—as envisioned by the Framers of the Constitution.

          Until we are ready to name names, we will get more of the same. Senator Mitt Romney just published an essay in The Atlantic in which he urged Americans to “wake up” to the cataclysmic threats facing America. See The Atlantic, Mitt Romney: America Is In Denial. Romney claims that we are living in a time of national denial that is hampering our ability to address the serious problems facing America. He inveighs against inflation, illegal immigration, and the national debt.

          Guess which problem Romney does not mention? Guns. In 2020, more than 45,000 Americans died of gun-related injuries, a fact not acknowledged by Romney. Why? Because he has received more money from the NRA than any other Senator. In fact, his haul from the NRA—$13,647,676—is nearly double that of his nearest competitor. Check out the list here: Brady United, Which Senators Have Benefitted the Most from NRA Money?.

          Let’s say the truth out loud: Senator Romney is responsible for the carnage in Highland Park today. Perhaps not in a legal sense, but in a moral and political sense. He assisted in creating and maintaining the conditions for private ownership of assault weapons. And so have McConnell, Rubio, Cotton, Hawley, Johnson, Cruz, Cassidy, Thune, Murkowski, Cornyn, Graham, and Sasse. So, too, have Justices Thomas, Alito, Kavanaugh, Barrett, Gorsuch, and Roberts. And Scalia and Kennedy’s names belong on that list for their hand in creating a new right of individual gun ownership not included in the text of the Constitution or the contemplation of the Framers.

          To every organization seeking incremental change to advance “gun safety,” bless you and God speed! You have my support and gratitude. But I am getting on the bus with the first Democrat who promises to seek an assault weapon ban and a repeal of the Second Amendment. Until we do that, we will continue the unholy American tradition of mass killings with sickening regularity. I expect to receive feedback saying that we will never repeal the Second Amendment, to which I respond, “We haven’t seen the horrors yet to come; until we do, we should not foreclose any result.” How many Highland Parks, Uvaldes, and Buffalos will it take before Americans rise up and say, “Enough!”?

The killing of Jayland Walker.

          Eight Akron police officers shot Jayland Walker sixty times in seven seconds (firing 95 bullets) as he fled from his car. Police report that Walker left a gun in his car and fired a shot before fleeing. Walker did not have a gun in his possession when he was shot. See a description of the details, here: Columbus Dispatch, Akron police shooting of Jayland Walker: What we know.

          Some officers emptied their weapons while shooting at Walker, reloaded, and fired at him again (per The Columbus Dispatch). Having hit Walker sixty times, they handcuffed him as he was dying on the ground. Walker was Black.

          Meanwhile, the white gunman in Highland Park who had just killed six people and injured dozens more with an assault rifle was taken into custody by police without incident. Just like the white mass shooter at Buffalo.

          I am not suggesting that the officers who captured the killers at Uvalde and Highland Park should have shot the perpetrators to arrest them. But it is impossible to look at these facts and not question whether there are two systems of policing in America. It is not unpatriotic or anti-American or antifascist to ask that question and we should respect the right of every American to do so. In the meantime, we wait for answers. Again.

My modest proposal to implement a Supreme Court code of ethics.

          I received a lot of comments on my proposal to use the threat of jurisdiction stripping to impose a code of ethics on the Supreme Court. Most people were supportive, although many urged additional reforms, such as term limits, rotating justices, staggered presidential appointments, a “supermajority” to reverse a precedent, and a forced “balance” between appointments between Democrats and Republicans.

          Many of those ideas have great merit, but all would require a constitutional amendment to implement (in my view; others may disagree). The two suggestions I have promoted—enlarging the Court and limiting its jurisdiction—can be achieved by a majority vote in Congress and signature by the President (and a carve-out to the filibuster). For an explanation of the various proposals under consideration, see Ian Millhiser in Vox, Court-packing, and nine other proposals to fix the Supreme Court.

          But one reader—Professor Laurence Tribe—objected to my proposal. Given his position as the nation’s preeminent constitutional scholar, I include his substantive comments in full. I appreciate the fact that Professor Tribe took the time to weigh in on my proposal. Here are his comments:

The basic flaw in all proposals that would operate by preventing or threatening to prevent the Supreme Court of the United States from exercising its appellate jurisdiction in some particular class of cases, whether the class is defined substantively by topic or procedurally as in this instance, is that the inaction of the highest court leaves in place the action of the court immediately below it. And it is that action that is every bit as likely to be in need of reversal as in need of affirmance.

For example, if the US Court of Appeals for the Fifth Circuit leaves in place something terrible done by Texas like the enactment of SB-8, or if the US Court of Appeals for the Eleventh Circuit leaves in place something awful done by DeSantis, whether involving the ISL theory or some anti-LGBTQ measure, failing to reverse such a decision causes terrible problems.  I know those problems might not be immediately nationwide but just regional, but chaos is not that much better than simple injustice.

Moreover, now that SCOTUS has overruled Roe and Casey and expanded Heller beyond all reason in Bruen, lower courts with any sense of fidelity to the rule of law will follow those terrible precedents rather than feel free to disregard them just because they can get away with it in light of the reduced jurisdiction of the Supreme Court.

So, much as I wish I could say otherwise, I don’t think this modest proposal would be a good idea.

My hope, of course, is that disqualification of the entire Court would be a rarity (and addressed by some exception inserted by drafters of a bill). The thrust of my proposal is to force individual recusals in order to preserve the jurisdiction of the Court where one or more justices have conflicts. But I agree with Professor Tribe; many lower courts are no better (and some are far worse) than the reactionary majority of the Supreme Court. It would be a bad and potentially chaotic result to leave lower courts unsupervised—which is why I am also banging the drum to enlarge the Court!

Concluding Thoughts.

          It is easy to feel despair over the decisions in Dobbs (forced birth) and Bruen (concealed carry), but I was buoyed by an article by David Frum in The Atlantic,  Roe Is the New Prohibition. I recommend reading Frum’s excellent article in full, but here is his thesis:

Prohibition and Dobbs were and are projects that seek to impose the values of a cohesive and well-organized cultural minority upon a diverse and less-organized cultural majority. Those projects can work for a time, but only for a time. In a country with a representative voting system—even a system as distorted in favor of the rural and conservative as the American system was in the 1920s and is again today—the cultural majority is bound to prevail sooner or later.

          Note well Frum’s last line: “The cultural majority is bound to prevail sooner or later”—even where constitutional amendments are concerned! Frum is right. A constitutional amendment forcing prohibition on all Americans was passed in 1919 and repealed in 1933—a complete reversal in 14 years. Americans overwhelmingly support reproductive liberty and oppose uncontrolled gun ownership. We will prevail; it is only a matter of time. Recent history provides all the proof we need. Don’t despair, and keep up the good fight!

          Talk to you tomorrow!