Pamela Geller Raises Awareness of but Butchers the Slavery Problem in Mauritania

   

            Once again, the WMATA subways are bedecked with Islamophobic posters produced by the American Freedom Defense Initiative; i.e. the Long Island heiress Pamela Geller, the same person who brought you the infamous “In any war between the civilized man and the savage, support the civilized man” hate posters. This new one is somewhat toned down in that it does not appear to exhort subway riders to commit acts of violence against Islamic-looking passersby on the train platform; it much more unarguably constitutes political speech protected by the First Amendment. However, Geller’s latest butchers some more esoteric arguments in African culture and human rights law, and for this it deserves a thorough take-down.

            The vast majority of subway riders – even in worldly Washington, DC – probably couldn’t find Mauritania on a map. It is a sprawling nation on the Western frontier of the Sahara Desert with little rainfall, scant vegetation, and very few people. It hovers around the first- and third-poorest nations in the world, depending on the scarcity of millet and peanuts in Niger and Mali.

            In addition to being one of the poorest nations in the world, Mauritania has one of the most abjectly terrible human rights situations. Human trafficking is rampant, and Mauritanian society has its own long history of slavery. For thousands of years, the olive-skinned Moors and Tuaregs have raided villages of black-skinned tribes throughout West Africa, enslaved their prisoners, and they made a living by trekking across the Sahara and selling their black slaves to wealthy Arab states in Marrakesh, Algiers, and Cairo. Over the millennia, the black-skinned slaves gradually interbred with their olive-skinned masters and developed their own distinctive culture known as the “Bella” or “Tamashek noirs”.

In the 21^st century, slavery remains a gross human rights violation in Mauritania. Human rights groups estimate that the population of slaves is roughly 600,000 men, women, and children in an overall population of just over 3 million – roughly 20 percent of the entire population. Sociologists estimate that it is the country with the highest percentage of its population enslaved.

But is it “Islamic Apartheid”? Not so fast...

Apartheid is a strong word to use to describe a society characterized by segregation and discrimination on the basis of race. It doesn’t just refer to any society in which some racism is present but specifically refers to a state-enforced system of racial control and oppression in which one race is dominant and uses the apparatuses of government to subjugate members of another race - who are characterized as second-class citizens or non-citizens. See South Africa (1948 – 1994); see also the former Rhodesia (1965 – 1978); see also the American South (1620 – 1954). It is a very loaded term.

Back to Mauritania. Could one legitimately characterize the human rights situation in Mauritania as “Apartheid”? The Moors’ enslavement of the Bella is atrocious, without a doubt. But it might be a bit hyperbolic and misleading to use the “A-word”, because the racial oppression is conducted almost entirely by private hands. We’re talking about remote villages of people living in mud huts, farming millet and dates, and the head of many Moor families own Bella slaves. Like in the Old South, many Moorish slave-owners will whip and beat their slaves into submission. Sometimes the slaves try to run away – but one can only run so away in the Sahara Desert on foot. When they do, the Moors might rustle a posse of men on motorcycles to chase down the runaways; I have heard that there are bounty hunters.

The reason I might be hesitant to apply the term “apartheid” to Mauritania because it distinctly refers to a state system, and – unlike in South Africa or the American South – the state has little to do with the slavery, human trafficking, and racial oppression perpetrated against the Bella in Mauritania. Moors in the rural villages have owned their Bella slaves long before there was even an independent state of Mauritania, before French Colonialism, since between the first and second millenia A.D. The racial tyranny is an ancient one that traditional Moorish society has enforced more or less privately.

The Mauritanian state has banned slavery in 1905, again in 1981, and for good measure in 2007 – it is against the law, technically. The problem is that the state is so weak, so ineffective that it cannot enforce its laws beyond the capital. The Mauritanian government consists of a presidential palace, a few paltry military units, a TV and radio station, they pave a couple of roads around Nouakchott, and... that’s pretty much it. There is no effective system of courts and law enforcement agents to adequately enforce the laws on the books – especially in the vast, undeveloped Sahel flats of rural Mauritania. The State Department’s latest Trafficking in Persons (TIP) Report is harshly critical of Nouakchott’s inability to enforce its anti-slavery laws; Mauritania is categorized on the Tier 2 Watch List.

Moreover, conceding the absolutely horrifying human rights situation in Mauritania, Geller is still wildly misleading and dishonest to characterize the situation as a problem with Islam. To be fair, there is some relationship between Islamic law and the Moors enslavement of black Africans; according to the Qur’an, it is forbidden for a Muslim to enslave another Muslim – which led to an interpretation that it was not haram for the Muslim Moors to raid non-Muslim African tribes such as the Dogons, Peulhs, and Senafuls. This is mostly ancient history - we're talking about a slave trade circa 1000 A.D., flourishing in the High Middle Ages, and petering out to a trickle by the 19th and 20th centuries, it is but a pretext which explains why the Moors raided black African villages rather than other Moors. But it does much to explain the dialectic in the slavery of Mauritania is racial, it is ethnic – it is the enslavement of black-skinned Bella by olive-skinned Moors.

Geller’s statement “20% of the population of Mauritania are blacks enslaved by Muslims” is technically true, though wildly misleading. Try to guess what religion is practiced by those 600,000 Bella slaves in Mauritania. (Drumroll, please) ... Islam!  The slavery problem in Mauritania consists of Muslim Moors enslaving Muslim Bellas. In the year 2013, the slavery problem in Mauritania has next to nothing to do with religion. To blame Mauritanian slavery on Muslims is as offensive and bigoted as blaming Jewish investment bankers for the 2008 financial meltdown or blaming Muslims for 9/11 – which, by the way, is Pamela Geller’s full-time profession.

Moreover, her proposed solution to the problem of slavery in Mauritania – by curtailing foreign aid to not just Mauritania but every other Muslim nation including Iraq, Afghanistan, Egypt, Libya, Jordan, Morocco, Senegal, Nigeria, Burkina Faso, Mali, Indonesia, and Bangladesh, to name a few – is sheer Know Nothing-ism. According to the Trafficking Victims Protection Act of 2000, a system already exists in place for the State Department to restrict foreign aid to countries that are uncooperative in taking action against human trafficking. Mauritania is already in a precarious position regarding its USAID receipts; following a 2008 coup d’état, aid was suspended, but the spigot was turned back on in 2009. The principle activities of the US Embassy in Nouakchott are working with the state to spur it to take more action to counter Al Qaeda in the Islamic Maghreb, drug traffickers, and human traffickers. Though Mauritania has yet to liberate all 600,000 of its slaves, well, if there’s one thing you have to learn about social revolution it's patience.

Why does professional Islamophobe and hatemonger Pamela Geller seem so keen to churn up this debate? It would be fair to assume that it’s not because she is genuinely concerned about the plight of Bella slaves in Mauritania. More likely, it's because she has made a living the past decade or so peddling virulent propaganda documenting her thesis that Muslims are evil violent people, that their religion is a sham, and that the United States ought to declare war on every Muslim state. She's just using this actual, bona fide human rights issue, grossly distorting it to bolster her own Islamophobia.

           It seems like her real reason is to throw an ad hominem attack against critics of Israel's policy in the Occupied Territories. Some human rights advocates would use the term “apartheid” to describe the relationship between the State of Israel and Palestinians living in the West Bank and Gaza – when former President Jimmy Carter used the “A-word” in the title of his book on the Mideast conflict, Palestine: Peace Not Apartheid, the Jewish Right went apoplectic. Another pro-Palestinian group has ads up on trains and buses calling for the end of U.S. aid to subsidize "Apartheid" in Israel. Apparently, that is why Pamela Geller is so keen to throw around the term “Islamic Apartheid” in her new poster series – she’s an ultra right-wing, arguably fascist hawk who bristles at any criticism of Israel. Her lobbing of the term “Apartheid” against an Islamic state is the equivalent of a schoolyard retort “You called me a booger? I’m not a booger – YOU’RE a booger!”

The majesty of the First Amendment is that it applies to everyone - even professional hatemongers like Pamela Geller whose speech serves little purpose but to rile the masses, give herself an inflated sense of self-importance, and demonstrate her own ignorance of Islam and Muslim culture. If you are spurred to action, there are reputable NGOs working to combat slavery in Mauritania that you can donate to. But don’t let Geller’s hate speech get to you. If you are riled by her inflammatory posters, the best revenge would be to invite your Muslim friends out to dinner. 

Reconciling Executive Power and Due Process in the Age of Drone Warfare

            The recent disclosure of documents pertaining to the drone strike against terrorist Anwar al-Awlaki have augured a grand debate on when – if ever – it is legal for the government to kill a citizen of the United States on the suspicion of terrorism. This controversy has spawned the strangest of bedfellows: Obama administration loyalists and Republican hawks are contending that the Commander in Chief of the Army and Navy does hold the power to order the killing of a U.S. citizen; a faction of Tea Party Republicans led by Senator Rand Paul and civil libertarian Democrats are arguing that that the President’s wartime powers have gone too far.

            This debate raises so many emotions, and has already raised so many accusations of hypocrisy and lack of principle that one ought to cast aside for a moment one’s partisan affiliation and try to analyze this controversy within the objective standpoint of the law.

            When jurists assess the limits of presidential power, they look to Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the 1952 case in which the Supreme Court decided that President Truman had exceeded his Article II powers when he ordered the seizure of the steel mills in the midst of the Korean War. Justice Jackson laid out a formula to evaluate the separation of wartime powers between the legislative and executive branches, because Article I § 8 states that Congress shall have the power to declare war, but Article II § 2 states that the President shall be the “Commander in Chief of the Army and Navy"; i.e., the President has the authority to command the troops as to the specifics of how they shall conduct the war.

              Justice Jackson explained that when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum because the President has the inherent authority of the Commander in Chief to wage war plus Congress’s declaration of war or authorization of military force. When the President acts in absence of Congressional authorization or denial of authority, he can only rely upon the chief executive’s inherent military authority under the Commander in Chief Clause. However, when the President acts in a manner “incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter". I.e. the President cannot wage war in a manner explicitly prohibited by Congress.  

            So far as drone warfare goes, the Obama administration has relied upon the 2001 Authorization for Use of Military Force that Congress passed in the wake of the 9/11 attacks, enabling the Bush administration to exert military power against the al-Qaeda terrorist network. The 2001 AUMF explicitly authorizes the President:

to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.                                                      

More than a decade later, the 2001 AUMF has allowed the Obama administration to continue waging land warfare against al-Qaeda and the Taliban in Afghanistan and Pakistan, it has allowed the White House to order the commando operation in Pakistan that killed Osama bin Laden, and a multitude of drone strikes against al-Qaeda operatives in Afghanistan, Pakistan, Yemen, Somalia. According to Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the President’s authority to wage war against al-Qaeda terrorists is at its constitutional maximum.                                            

             Enter stage left Anwar al-Awlaki. Born in New Mexico, Awlaki was a citizen of the United States, according to the Fourteenth Amendment, and entitled to due process of law. Though Awlaki long ago left American soil and took up residence in the remote Shabwa territory of Yemen, where he gained prominence on YouTube and the official al-Qaeda Internet magazine Insight, spreading his message that killing Americans, soldiers and civilians alike, is “an Islamic duty.” But it would be a gross understatement to say that Anwar al-Awlaki was persecuted for exercising his First Amendment rights. In his emails, Awlaki solicited Major Nidal Malik Hassan to shoot 13 and wounded 29 U.S. Army soldiers at the cafeteria at Ft. Hood. Awlaki recruited and trained Umar Farouk Abdulmutallab a.k.a. “The Underwear Bomber” to detonate plastic explosives aboard a Northwest Airlines Flight 253 from Amsterdam to Detroit. Awlaki was also behind the foiled plot to send packages with remotely-detonating PETN explosives to Jewish synagogues in Chicago, and Faisal Shahzad’s attempted car-bombing of Times Square. Hence by January, 2010, the Obama administration queried the legality of applying military force to Anwar al-Awlaki.

            I will agree with my civil libertarian compatriots like Rand Paul and the ACLU that the killing of Awlaki is troubling because the Fifth and Fourteenth Amendments promise citizens of the United States due process of law, the Sixth Amendment promises the right of a criminal defendant to trial by jury, to confront one’s incriminating witnesses, and to be represented by counsel, etc. When a U.S. citizen, e.g. Timothy McVeigh, commits a terrorist attack killing other U.S. citizens on American soil, the Bill of Rights prohibits the government from summarily executing him. McVeigh was entitled to due process under law, so U.S. Attorneys indicted Tim McVeigh in a federal court, a jury convicted him of 168 counts of murder, and a judge sentenced McVeigh to be executed by lethal injection. Casting aside any questions about the legitimacy of the death penalty, that is how the federal government ought to prosecute domestic terrorists according to the Constitution.

            As former Congressman Ron Paul has suggested, why didn’t the Department of Justice prosecute Anwar al-Awlaki on terrorism charges like they did with Tim McVeigh? There were some practical considerations. Unlike McVeigh – who was arrested by Oklahoma State Troopers while he was driving on the highway – Awlaki chose to hide in the remote hinterlands of civil war-ravaged Yemen, where the central government has no de facto power, there is no functioning state that could have arrested Awlaki and extradited him to the U.S. for criminal prosecution. The rules of due process accorded to criminal defendants in the U.S. were duly inapplicable.

            Even had Awlaki been waging his jihad from the mountains of Colorado or New Mexico, where U.S. criminal law does apply, the other factor to be considered is that Anwar al-Awlaki had created what is known to criminal law practitioners as exigent circumstances. Awlaki had intentionally created an emergency situation in which U.S. law enforcement agents are allowed to take extraordinary measures to protect the safety of the officer and the public – including the use of deadly force.

Generally speaking, police officers can’t just act as judge, jury, and executioner and simply shoot  every suspected criminal and shoot to kill. But if someone points a gun at a police officer, that police officer is authorized by law to shoot that person - as they did to Kimani Gray in East Flatbush this week. If an armed robber has a gun in his hands and appears to create an imminent threat, the NYPD is authorized to shoot that armed robber. If Darrius Kennedy is wielding a butcher knife in a crowd in Times Square and threatening to kill innocent bystanders, the NYPD is allowed – or more accurately, obligated – to shoot that person in order to subdue them. When FBI agents cornered on-the-lamb serial killer Kurt Myers in a bar in Herkimer, New York, and Myers fired his shotgun at an FBI dog, FBI agents returned fire and killed Myers. In such an exigent circumstance, the question about due process is not whether the police had a warrant for the suspect’s arrest or whether the would-be cop killer was tried by a jury of his peers – the question about due process is whether the police adhered to the proper protocol. Did the police give the suspect proper notice and an opportunity to surrender? Did the police reasonably believe that the suspect had drawn a deadly weapon? Did the police reasonably anticipate an imminent threat to themselves or to the public? Did the police use excessive force?

                 So if the NYPC is licensed to shoot to kill Darrius Kennedy as he is wielding a knife in Times Square, can the NYPD shoot to kill Faisal Shahzad as he attempts to detonate his car bomb in Times Square? If police officers were licensed to shoot to kill Kimani Gray when he pointed a revolver in their face, couldn’t soldiers in the U.S. Army shoot to kill Nidal Malik Hassan as he is shooting up their cafeteria at Ft. Hood? If Umar Farouk Abdulmutallab is on a plane trying to detonate plastic explosives, couldn’t an Air Marshall stand up and shoot to kill that terrorist? Absolutely. In reality, the FBI arrested Shahzad at the airport as he was trying to leave the country; Hassan and Abdulmutallab were tackled and subdued on the scene. Shahzad and Abdulmutallab have been convicted and sentenced to life sentences with no possibility of parole; Hassan is awaiting trial by court martial.

So what about Anwar al-Awlaki, the guy who reportedly commanded the Ft. Hood shooter, the “Underwear Bomber”, and the attempted Times Square bomber? Two out of three of his most notable minions have been apprehended and tried according to due process, why couldn’t a U.S. Attorney have tried Awlaki in absentia? Or why couldn’t Obama have sent a team of Special Forces to capture Awlaki in his remote Yemeni sanctuary and bring him back to U.S. territory for criminal prosecution like all of the other common criminals?

The latter scenario might have been vastly superior to the drone strike that did in fact kill Awlaki, for it would have agreed with our system of due process and the rule of law. Many people feel quite uneasy with the idea that the President of the United States can simply order the assassination of suspected terrorists, let alone a U.S. citizen. It sounds infinitely creepy.

               Nevertheless, was President Obama’s action unconstitutional? Not at all, because Congress authorized this kind of action. The President could rely on both the 2001 AUMF and his inherent military powers as Commander in Chief.  

               Was it illegal to shoot Anwar al-Awlaki with a drone aircraft? No, there is no law on the books adequately governing the use of flying robots.   

               Therefore, going back toYoungstown Sheet & Tube Co., according to the inherent authority under the Commander in Chief Clause plus the explicit authorization under the 2001 AUMF, President Obama's authority to order a drone attack against Anwar al-Awlaki was at its constitutional maximum.   

               What about the violations of the constitutional protections of due process? The CIA saw Awlaki’s lethal potential and deemed him an imminent threat. Even if the CIA did not know that Awlaki had in his hand the detonator for a new bomb mailed from Yemen to Chicago at the very moment the drone missile was launched, it was reasonable to believe that he did. Even if it might have been possible for Special Forces to helicopter into Awlaki’s compound to capture or kill him Zero Dark Thirty-style, such a mission might have been logistically impossible because it was reasonable for the CIA to believe that Awlaki might have booby-trapped his lair to go out with a bang. In comparison, President Obama reportedly considered simply bombing Osama bin Laden’s Abottabad hideaway with cruise missiles but decided to pursue the riskier Special Forces mission. The Commander in Chief Clause of Article II grants the President the authority to ultimately make these kind of decisions on the optimal choice of military tactics. 

                It appears that they most applicable question of whether the government violated anyone’s due process in the drone action against Anwar al-Awlaki was whether the federal government applied excessive force. It is quite a grave concern whether it was necessary for the CIA to also kill Samir Khan – the editor of al-Qaeda’s online magazine Inspire. It is also a question whether it was necessary to kill by drone strike Awlaki’s son Abdulrahman when he came to Yemen a month later.

                But was it excessive force to kill Anwar al-Awlaki by drone missile? Maybe. For comparison, civilians were killed in the 2011 raid to capture or kill Osama bin Laden, tens of civilians have died as a result of the war in Afghanistan and Pakistan from 2001 through 2013. And it also might require a willing suspension of disbelief to call a paid employee of al-Qaeda a “civilian.” 

               This is how a generally civil libertarian-minded law student can be both concerned with the Obama administration’s use of drone warfare but understand the legality of killing Anwar al-Awlaki. It raises serious questions about legality and constitutionality, but it appears that the President also raised his concerns about this unique quandary, he asked for the Justice Department to research the legality of using a drone strike against a U.S. citizen deemed to be an imminent terrorist threat against Americans, and the DoJ gave him a memo of sound legal reasoning. Its conclusion that the President can legally order the killing of a U.S. citizen anywhere in the world by flying robot sounds like somewhat Orwellian - but it is correct. According to the laws on the books, the killing of Anwar al-Awlaki was legal.               

               So how is it that this law student can be content with the Obama administration’s extrajudicial killing of Anwar al-Awlaki while I howled at the Bush administration’s use of indefinite detentions without trial at Guantánamo Bay and torture at Abu Ghraib? The Constitution and statute make a distinction between the rights of an enemy combatant who is still on the battlefield waging war against the United States and a prisoner of war in U.S. custody, between a suspected murderer who is still at large, posing an imminent threat against Americans and a suspected murderer sitting in a jail cell. The state can kill the former without a trial by jury but not the latter. What the Obama administration did was legal, whereas what the Bush administration did was illegal. 

Though this author believes that the Obama administration adhered to the law when it orderered a drone strike against Anwar al-Awlaki, that does not mean that this author is blithely unconcerned with the law as it now stands. Tea Party Republicans like Rand Paul and liberal Democrats such as myself are both concerned about the laws on the books are such that the Department of Justice can produce a memo that says that it is legal for the President of the United States to order a flying robot to kill a citizen of the United States. It sounds like a dystopian admixture of Judge Dredd and Robocop.

But the fact is that there is no statute adequately regulating the use of flying robots. The only way for this to change is for Congress to pass a statute explicitly regulating the use of drones. The most promising appears to be H.R. 637, the Preserving American Privacy Act, sponsored by California Democrat Zoe Lofgren and Texas Republican Ted Poe, which would regulate the use of drones for domestic law enforcement purposes. This bill would bring sense of due process into the realm of drone surveillance by requiring the police to obtain a warrant or a court order to use this special technology to conduct a search of a person’s property. It would also explicitly ban the use of weaponized Unmanned Aerial Systems (i.e. Predator or Reaper drones) in U.S. territory. This bill, if it ever becomes law, ought to assuage Rand Paul’s fear that the President might order the summary execution of an unarmed American citizen just sitting there at a café in Bowling Green, Kentucky.

Another, thornier question is whether the President ought to ever be able to order a drone strike to kill a U.S. citizen overseas. There must be a system in place that allows a future President to subdue a U.S. citizen shooting rockets or preparing plastic explosives or otherwise waging war against the United States from an impenetrable, ungovernable hideaway in the mountains of Pakistan, the deserts of Yemen, or the jungles of the Congo where no state can arrest him and bring him to the United States for prosecution. But there ought to be a system of due process in place to make sure that there is sufficient intelligence documenting that this person is indeed an imminent threat and to safeguard against abuses of the system. A few voices have proposed the establishment of a secret intelligence tribunal like the Foreign Intelligence Surveillance Act (FISA) court that grants or denies the executive branch’s requests to wiretap U.S. civilians to establish due process for such a drone strike. The prospect of such a Targeted Killings Act Court might sound medieval, but it would be much less so than that of a chief executive that can order the killing of a citizen without checks and balances.

It might also be worth revisiting the 2001 Authorization for Use of Military Force. In the immediate shock and trauma of 9/11, Congress seemed content to give the President carte blanche to do whatever he wanted wherever he wanted with the U.S. military so long as he could say he was fighting al-Qaeda. Eleven years later, some Democrats and Republicans alike are concerned about the seemingly unchecked expansion of presidential powers contained in that terse document. Americans have outgrown the War on Terror hysteria of 9/11, and it is time for the Obama administration to craft a new military and foreign policy that better reflects the constitutional system of checks and balances in 2013.

Background Checks for Gun Purchasers Must Take Family Members into Account

            I loathe to admit it, but the NRA is partially right – the Obama administration’s proposed gun control package would not have prevented the Newtown Massacre. Even if Congress were to close the gun show loophole, prohibit online sales of firearms and ammunition, expand the sharing of mental health information with the ATF and stiffen penalties for straw purchasers, these measures would not have been enough to keep a deadly weapon out of the hands of Adam Lanza.

Such measures might have prevented the likes of Seung-Hui Cho from purchasing a Walther P22 and a Glock 19 (a Virginia judge had declared him to be mentally defective and ordered him into outpatient treatment). They might have prevented Jared Loughner from purchasing his 9 mm Glock at Sportsman’s Warehouse (he had failed an Army drug test). But even universal background checks, with full sharing of all criminal and mental health data of prospective gun buyers with the Bureau of Alcohol, Tobacco and Firearms, would not have prevented Adam Lanza from getting his hands on a .223 caliber Bushmaster AR-15 semi-automatic rifle. Because Adam Lanza never bought this ultra-deadly weapon – his mother did.

 But Nancy Lanza was able to pass a background check, she was able to legally purchase a .223 caliber Bushmaster AR-15 – therefore, Adam Lanza had access to a .223 caliber Bushmaster AR-15. Even had Adam Lanza been committed to outpatient care – as his mother had reportedly threatened to do – then he would not have been able to pass a federal background check, but when he came home he still would have been able to access her AR-15. As a matter of public safety, the law can no longer tolerate this type of scenario.    

            The tragedy at Newtown has brought attention to a glaring weakness in the federal background check system: the prospective gun purchaser is obligated to provide potentially disqualifying information about him- or herself, but he or she has no obligation to provide information about a potentially disqualifying family member who lives in the home. This loophole is a considerable problem, because it allows people whom federal law has already deemed ineligible for gun ownership to own guns – albeit indirectly, in someone else’s name.         

            The Lanzas are not the only duo in the canon of modern criminal law in which one person ineligible to purchase a firearm was able to get their hands on a firearm via an eligible family member. Ex-cons who cannot pass a background checks often obtain guns by having a wife or girlfriend – who does not have a criminal record – buy one for them. The background check is only specific to the person – not the address.  

Take the example of Erik Kenneth Dixon, who shot his sister and her boyfriend with a .45 Glock at a baby shower in Landover, Maryland. As a matter of law, Dixon was unable to legally purchase his gun – he had served almost three years in prison for shooting at a man. However, Cathy Anderson – Dixon’s girlfriend – had no criminal record, and so he had her buy the Glock for him.  

Or Nehemiah Griego, the 15-year-old in Albuquerque who shot and killed his parents and his three siblings. Greg Griego, his father, was an ex-con and a former gang member who could have never passed a federal background check. But his wife, Sara Griego, didn’t have a criminal record, and she was able to purchase a .223 caliber AR-15 assault rifle without a hitch. Though it wasn’t Greg who committed the killings, had Sara been denied a federal background check because of his record, then Nehemiah would not have been able to go on his shooting rampage.  

            I could go on . . .   Just the fact is that this is a known loophole that the criminal community openly and unabashedly exploits. A quick search to a chatroom found a thread that started: 

“My wife went to Big 5 earlier to buy me the Remington 770 7mm that's on sale for $369 and the Douche behind the counter said that it's a felony for someone to buy a gun for their spouse to use. Is this true? . . . I know she should have kept her mouth shut and just bought it she's kinda new to the game..."

The online chorus of ex-cons then goes on to how to effectively exploit one’s wife to evade the background checks. This is a loophole so big they’re bragging about this on the Internet!

            The NY SAFE Act recently signed into law by Governor Andrew Cuomo has made a valiant effort to address the “family member” loophole. Section 265.45 states that:

No person who owns . . . a rifle, shotgun or firearm who resides with an individual who such person knows or has reason to know is prohibited from possessing a firearm . . . shall store [the gun] out of his or her immediate possession  or control without having first securely locked [the gun] in an appropriate safe storage depository or  rendered it incapable of being fired by use of a gun locking device. . .

In New York, at least, for a lawful gun owner to fail to take due care to keep their guns out of the hands of a problem son like Adam Lanza is now a Class A Misdemeanor. That’s a good start.  

            However, the Section 264.45 of the NYS SAFE Act does not go far enough – because no safe is foolproof. More importantly, humans err. Doug Golden was a law-abiding hunting enthusiast in Arkansas who had amassed a formidable collection of two semi-automatic rifles, a bolt-action rifle, and three shotguns. Doug dutifully kept his guns in a lockable safe. But sometimes he left the key to the safe in the lock. And on March 24^th, 1998, Doug’s 11-year-old grandson Andrew Golden and his friend Mitchell Johnson stole Doug’s gun collection, went to Westside High School, and used Doug Golden’s guns to shoot 13 of their fellow students and 2 teachers. When Doug went to the police station to pick up Andrew, his grandson said “Grandpa, I took your guns.”   

            Federal background checks ought to be strengthened by adding a line on the application asking for the names, ages, and Social Security numbers of every other person who lives at the prospective gun buyer’s address. This addition is not at all unduly intrusive – this is basic information about the household which citizens willfully provide to the federal government on every tax return and every Census questionnaire. The federal government already knows who you live with. And if the government doesn’t know because you haven’t paid your taxes, or you lied on your tax returns, no, you shouldn’t be allowed to have a gun either.        

            The policy that needs to change is that the ATF ought to be able to take family information into consideration when assessing whether a person is eligible to purchase a firearm. A convicted murderer is already prohibited from purchasing a shotgun – if that convicted murderer lives with his sister, she should be prohibited from purchasing a shotgun too. A person who has attempted suicide and has been involuntarily committed to outpatient treatment is barred from buying a pistol – so should be her husband or her live-in boyfriend. This is basic common sense. It ought to be the law. 

            It could be argued that such a policy would establish guilt by association, and unfairly deprive innocent people of their Second Amendment rights. Indeed, it would bar a number of people who have committed no crime, who are not by themselves threats to society from owning firearms in their current residence. But it would be inaccurate to say that such a policy is unfair. The Constitution protects freedom of association, but if one chooses to live in the same home with a person who is convicted of a violent crime, who is suffering from severe mental illness, or both, that is a serious choice that the FBI and ATF ought to be able to consider when adjudicating who can and cannot purchase deadly weapons. 

Such a proposed change in the law would not force anyone to give up their guns. If you live with your ex-con boyfriend but you want to buy a shotgun, you can always move out, or you can tell your boyfriend that he has to find a new place to live. You have to choose who you love more: your ex-con boyfriend or your Smith & Wesson. The Second Amendment does not mandate that society must tolerate your ex-con boyfriend skirting around federal background checks to get a shotgun by using his girlfriend as a straw (wo)man. 

Recent events have demonstrated that a person can choose to live with her criminally insane son, or a person can choose to live with a .223 Bushmaster AR-15 semi-automatic rifle. It is gross negligence and reckless endangerment for a person to choose both. Federal background checks ought to adopt this principle by taking account of the criminal records, mental health records, and other potentially disqualifying information about other people who live in a prospective gun purchaser’s home.

No, the Second Amendment Does Not Guarantee a Right to Armed Revolution

In the contemporary debate on the meaning of the Second Amendment, proponents of gun ownership rights refer to two fundamental natural rights arguments to justify the ownership of firearms: 1) the natural right to self-defense; 2) the natural right of revolution. The former has been endorsed by the Supreme Court in District of Columbia v. Heller and McDonald v. Chicago. The latter is merely hyperbolic rhetoric in the real debate on gun control which must be put to rest once and for all.    

You can see only the first of these two natural law justifications in the prefatory clause of the Second Amendment: “[a] well regulated militia being necessary to the security of a free state” and the operative clause: “the right of the people to keep and bear arms shall not be infringed.” The Second Amendment articulates a right to self-defense and preservation of life and liberty both as a collective and an individual sense, both as a member of a "well regulated militia" and as "a people." A person has a constitutional right to bear arms for the common defense as a member of a well regulated militia, and post-Heller and McDonald, as an individual.

              To understand the Second Amendment, one must look to the Constitution's other references to the regulation of militias in Article I and Article II. The states ratified the Second Amendment and its guarantee for the people to “to keep and bear arms” and raise a “well regulated militia” only four years after the Constitutional Convention authored Article I – which gave Congress the authority to “raise and support Armies” and to “provide and maintain a Navy.” Article I § 8, also authorized Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” and 

“[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

In the Commander in Chief Clause Article II, the Constitution authorized the President as “Commander in Chief of the Army and Navy of the United States, and of the Militias of the several States, when called into the actual Service of the United States.” 

            In each and every one of the references to the “Militia” or “Militias” in Articles I and II, the plain meaning of the text of the Constitution is that the Founders envisioned a concomitant regulation of the militias. The states would be able to train their own militias and appoint their own officers to maintain law and order in their respective states, but Congress and the President would be able to call upon the militias to maintain federal laws, suppress insurrections and repel invasions. Surely the Second Amendment forbids the militias or the people from engaging in insurrection or invasion of the United States, because the Second Amendment right to form a state militia exists so that the militias can quell insurgencies and invasions.

Read the Second Amendment again. Nowhere in the Second Amendment does it say that  the the well regulated Militias of the several states – let alone each the people – have a constitutional right to take up arms against the United States government.

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. 

            Clearly, the Founders wanted to explicitly protect the states’ rights to field their own militias as central to the defense of the Republic. Historians attribute James Madison’s inclusion of the Second Amendment in the Bill of Rights as an overture to the Anti-Federalists who were concerned that the new federal government would disband the state militias – concentrating all military power in the hands of the federal Army and Navy. The Second Amendment was written in the aftermath of the American Revolutionary War, at a time when the Articles of Confederation was incapable of preserving the security of the Republic from British, French, or Spanish invasion, the Massachusetts militia was incompetent to quell Shay's Rebellion (1786-87), and white settlers in the Virginia frontier and Ohio Territory were engaging in low-level warfare with the Native American tribes.

           Massachusetts needed a militia because when Daniel Shays and his fellow agrarian revolters shut down the Commonwealth courthouses in Northampton and Springfield, the Boston mercantile class could not count on the toothless Articles of Confederation government to maintain law and order. Governor John Bowdoin had to organize a private militia. Just a few years after the ratification of the Second Amendment, President Washington would quell the Whiskey Rebellion (1791-94) by commanding militias from Pennsylvania, Maryland, Virginia, and New Jersey. States on the border needed to have militias because the Commonwealth of Massachusetts and the British Colony of New Brunswick both claimed parts of what is now Northern Maine, Georgia and Spanish West Florida both claimed what is now Alabama and Mississippi. The settlers needed to keep muskets to defend their outposts from Lenapee and Kickapoo raiders. The right to bear arms as a member of a militia - if not as an individual - was “necessary for the security of a free state” because there was still an impending fear of subversion of the fledgling Republic to foreign monarchs and domestic insurrections, and the Founders wrote the Second Amendment to protect the right to self-defense independent of the United States Army and Navy.           

            However, the natural law Second Amendment-thumpers must dispense with the notion that the “right of the people to keep and bear arms” was ratified as an additional layer of checks and balances; i.e. the right of the people to defend their natural liberties from an overbearing United States government. Such an argument is directly contradicted in the text of the Constitution itself. Article I gives Congress the authority to federalize the state militias to “suppress Insurrections and repel Invasions.” Article II gives the Commander in Chief supreme command over the Army and the Navy as well as the militias when called to service. The difference between the Army, the Navy and the militias is that Governors can call the militias into service too to quell riots and fight forest fires, they are only federalized with explicit Congressional or Presidential invocation of their Article I and Article II powers. Nowhere in the Constitution or anywhere in the minutes of the Convention or the correspondence between Jefferson and Madison and Adams and Hamilton is there any inkling of an idea that the state militias can check the authority of the federal courts or the U.S. Army or Navy.

             Moreover, the Constitution explicitly prohibits any U.S. citizen from bearing arms against the United States. The Treason Clause in Article III defines the crimes: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Without a doubt, the Second Amendment prohibits the people or the militias from levying war against the United States - the rare federal crime actually codified in the text of the Constitution. The Confederates who took up arms against the Union seven decades later were traitors, they were guilty of a crime which could be punishable by death upon the testimony of two witnesses or confession, and conviction in a federal court of law. If the Michigan Militia were to use their arsenal of AK-47 and M16s and seize an armory from the Michigan National Guard, that would be an act of treason. 

            Conversely, the notion that Madison included the Second Amendment in the Bill of Rights as a last layer of defense of civil liberty in case the federal government exceeded its authority is without sufficient corroboration. There are some fragments of quotations from Jefferson and the New Hampshire Constitution which might seem to convey such a natural right to revolution against governmental power, but even the most committed Originalist cannot possibly argue that a bloodthirsty quote from Thomas Jefferson unincluded in the text of the U.S. Constitution trumps the text of the Treason Clause in Article III. The Founders were concerned about the risk of consolidated federal power, but they were even more worried about mob rule.

So what if there is a natural right to revolution against tyrannical governments more fundamental than the Second Amendment? The Declaration of Independence surely espouses this radical notion, and this is why so many Americans tend to smile upon decolonization movements and armed uprisings against brutal dictatorships in Kosovo, South Sudan, Libya, Syria, et al. In instances where a genocidal regime wages war against its own people and threatens the very existence of an entire nation, most Americans look to the universal promise of the Declaration of Independence and sympathize with the inherent right of the people to rebel against an oppressive government.              

            But that has no bearing on perceived slights to liberty within the realm of the U.S. Constitution. If you think that income tax rates are too high or that the Affordable Care Act takes away your right to not have health insurance, you can agitate for change within the proper channels: you can run for office, you can vote in state and federal elections, you can mount a challenge in a federal court. But the Second Amendment does not give you a means to redress your grievances by armed force. No matter how much you disagree with a law, the Constitution provides for avenues to peacefully challenge the laws within the institutions of law and democracy – not by brute force. The Second Amendment says that a well regulated militia and the right of the people to bear arms is “necessary to the security of a free state” – but that free state is the United States of America.

A Federal Assault Weapons Ban Might Pass (But That's Not Saying Much...)

            In the wake of the Sandy Hook Elementary School Massacre, polls show that a solid majority of U.S. citizens want Congress to pass a new ban on assault weapons and high-capacity ammunition magazines. If the Senate were to hold an up-or-down vote in the new session, Dianne Feinstein's new ban on assault weapons coupled with Frank Lautenberg's new ban on high-capacity ammunition magazines would pass. If there could be a clean up or down vote – a very big if – according to my calculations it could pass with a simple majority of 53 votes. But that isn’t saying a whole lot.

            Dick Durbin (D-IL), the Senate Majority Whip, would most likely start with a base of 36 dependably liberal Democrats like Dianne Feinstein (D-CA), Chuck Schumer (D-NY), Patty Murray, (D-WA) and Al Franken (D-MN). Among these are the Democrats who voted for the original Federal Assault Weapons Ban (AWB I) in 1994 and the 2004 attempt at re-authorization, they have always supported such legislation, there is no doubt that they will support it this time around.

 Independent Senators Bernie Sanders (I-VT) and Angus King (I-ME), though they represent rural states where hunting is a common pastime, will almost certainly vote for new restrictions on assault weapons and high-capacity magazine clips because their electorates are also particularly socially liberal, and Newtown, Connecticut isn’t too far away. That’s 38 votes. The last remaining moderate Republicans, Susan Collins (R-ME) and Mark Kirk (R-IL), would probable make 40 dependable “aye” votes.

            However, Sandy Hook has changed everything. This horrific mass murder of innocent children and teachers has spurred a number of solidly pro-gun Democrats to wake up and smell the coffee. In this group I would include Democrats like Mark Warner (D-VA), Tim Kaine (D-VA), Bob Casey (D-PA), Martin Heinrich (D-NM), and Claire McCaskill (D-MO). I would even include Majority Leader Harry Reid (D-NV) – who voted against the Federal Assault Weapons Ban in 1994, as the man who decides what bills the Senate votes on, has largely resisted the advance of gun control legislation (there is speculation amongst gun control advocates that Reid downplayed gun control measures as Majority Leader out of concern for his own political survival in gun-friendly Nevada). I would consider that 46 all-but-declared “ayes” for a new ban on assault weapons and high-capacity magazine clips. That’s still 4 votes short. 

            Though they haven’t yet declared one way or another, it looks like there might be roughly 6 additional “aye” votes, culturally conservative Democrats and Republicans who have expressed openness to debating and voting upon an assault weapons ban, but who have yet to explicitly commit to voting one way or another. This faction might be particularly swayed by the actions of West Virginia Senator Joe Manchin, given an A-rating by the NRA, who is perhaps most famous for his campaign ad in which he appears shooting a copy of the cap-and-trade bill. Appearing on MSNBC’s Morning Joe after the Newtown murders, Manchin declared: “I’m a proud outdoors-man and huntsman, like many Americans, and I like shooting, but this doesn’t make sense. . . I don’t know anyone in the sporting and hunting arena who goes out with an assault rifle; I don’t know anyone who needs 30 rounds in the clip to go hunting.”           

            Manchin is undoubtedly going to be the bellwether as to whether the Senate can pass AWB II, and I would also include in this group newly-elected Senators Joe Donnelly (D-IN) and Heidi Heitkamp (D-ND), pro-gun Democrats newly elected in 2012, and endangered red state Democrats up for re-election in 2014 like Tim Johnson (D-SD) (but who voted for the AWB in the past). At this time, it looks like only two additional Republican votes are truly up for grabs; John McCain (R-AZ) and Rob Portman (R-OH), who are generally very conservative but also fairly decent human beings who have expressed sincere interest in working to reduce gun violence. Portman is a likely "aye"; in 2004, both Ohio Republicans George Voinovich and Mike DeWine supported the AWB I's re-authorization. Right now, it seems that there are 6 such swing votes leaning towards "aye."At least 4 of them are necessary for the Senate to pass such a bill with a bare majority of 50 Senators plus Vice President Biden casting the tie-breaking vote. If all 6 of these swing voters ends up supporting AWB II – it might be fair to say that these 6 could dictate what goes in and what stays out of the bill, it could be theirs to write. My conservative estimate is that there might be a grand total of only 51 to 53 Senators voting  in favor of a new ban on assault weapons and high-capacity magazines.        

            At this vantage point, it looks like this is going to be a squeaker. Democrats are only going to have a 55-45 majority in the Senate, and they can’t count on every vote. There are a number of Southern Democrats, facing brutal re-election races in 2014, who might vote against the final bill. In this category I would count Mary Landrieu (D-LA), Mark Pryor (D-AR), and Kay Hagan (D-NC). Landrieu voted against the reauthorization of AWB I in 2004, but she has not signaled that she is definitely opposed to it this time. Pryor voted for the 2004 re-authorization, but you never know how tides may change as he ponders re-election in increasingly redder Arkansas. Hagan has not come out with a firm public statement on the bill at all. I would also look to the Democratic Senators from Montana, Max Baucus and Jon Tester. Baucus voted for the original law in 1994 but flipped his vote on the 2004 re-authorization. Tester has spent his entire political career showcasing his support for Montana sportsmen, and so far he has only made statements critical of the AWB – though that might change post-Sandy Hook. Alaska Senator Mark Begich is also in a similar bind, facing a tough re-election campaign in a state where hunting is a mainstay of life in the Last Frontier. I don’t see these 6 Democrats voting for a new Assault Weapons Ban, but things might change. Until they come out with a firm public statement to the contrary, I would count them as Democratic swing votes leaning towards "nay."

            However, there is also room for some surprise Republican “ayes”; after all, the Newtown Massacre was simply so horrific a display of what unspeakable crimes a person can commit with a .223 Bushmaster that it has spurred some rethinking in even the most unlikeliest of places. Texas Republican Kay Bailey Hutchison has since come out on TV as supporting a new ban on assault weapons and high-capacity magazine clips (though she is retiring at the end of the year, her vote will not count). Daniel Coats (R-IN), an extremely conservative Senator on just about everything, voted for the original AWB in 1994. Nowadays, it is assumed that a Republican has to have been against any and every form of gun control in order to win the party nomination, so they have to be strong-willed enough to do a 180-degree volte-face. I can imagine such a dramatic turn-around from Lamar Alexander (R-TN), Lisa Murkowski (R-AK), Kelly Ayotte (R-NH), maybe incoming Senator Jeff Flake (R-AZ). Coming from anyone else, an “aye” vote would evince a serious change of conscience. You never know.   

            According to my count, there are at least 33 Republican Senators who will not under any circumstances flinch on this issue, mostly from the former Confederacy and the Great Plains. There are even some Republicans from fairly competitive seats like Pat Toomey in Pennsylvania and Ron Johnson in Wisconsin who simply don't give a crap about what their constituents think on about gun violence (see, e.g., Johnson claiming that the 2nd Amendment protects a constitutional right to high-capacity magazines on Fox News Sunday just weeks before the Oak Creek Massacre in his home state). I don’t envision a scenario in which Mitch McConnell (R-Smith & Wesson) doesn’t at least try to mount a filibuster, and the only question is if he can rustle up 40 votes to block cloture. I think he can, but he would need at least 3 of the conservative pro-gun Democrats to sustain it.

I think that this is going to come down to a cloture vote, and it will all depend on whether Reid can clamp down on Landrieu, Pryor, Hagan, Baucus, Tester, and Begich from siding with the GOP on a cloture vote, and also whether McConnell can do the same with McCain, Portman, Coats, Ayotte, Murkowski, and Alexander. At this point in time, if a new Assault Weapons Ban can break a filibuster, it will be a squeaker. If it gets through that hurdle, perhaps 53 to 55 Senators will vote for a new ban on assault weapons and high-capacity magazine clips. 

After that, it goes to the House. Whether Speaker Boehner (R-Remington) even allows a vote is doubtful.

Are the Proposition 8 Challengers Overplaying their Hand?

 

With the recent news that the Supreme Court has granted certiorari to a bevy of same-sex marriage cases; including Hollingsworth v. Perry, it looks like 2013 is already promising to be a landmark year, politically and doctrinally. With the cases before it, the highest court has the potential to entirely do away with all civil marriage laws in every state and the federal government which discriminate against gay, lesbian, bisexual, and transgender Americans. However, many same-sex marriage proponents remain fearful that it might be too soon to go to the courts because if any or all of these cases backfire and the Court upholds any one of those laws, America might be stuck with a noxious Bowers v. Hardwick-like precedent for a generation. If the Supreme Court were to write an opinion considering and rejecting a constitutional right to same-sex marriage, that could prove calamitous to any future suits challenging state marriage laws in the federal courts.

To understand where the marriage equality movement now stands, now, at the end of the year 2012, same-sex marriage is the law of the land in 9 states and the District of Columbia. A lesbian couple can walk into any City Hall in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Maine, Maryland, Washington State, and Washington, D.C. and successfully apply for a marriage license, their marriage is recognized as valid according to their state agencies and those of some (but not all) other states.  

 However, despite the gay marriage insurgency over the past eight years, there is still plenty of work to be done. In 41 states, LGBT Americans are still denied the right to marry, in 36 states they can’t even get a civil union. According to federal government agencies like the IRS, the Federal Housing Administration, and the Veterans Administration, all those marriages in Boston and Seattle and Des Moines have never happened. Thanks to the federal Defense of Marriage Act, the federal government treats a married couple like legal strangers, and uses it to deny the approximately 1,100 federal rights and responsibilities afforded to couples in civil marriage.

Enter Hollingsworth v. Perry. Originally Perry v. Schwarzenegger, then Perry v. Brown, this is the celebrated case by brought by Ted Olson and David Boies challenging California’s Proposition 8, the 2008 ballot initiative which California voters approved to ban same-sex marriage by constitutional amendment. Olson and Boies consider this to be the civil rights issue of our time (rightly so), and they see the potential for this case to result in a Supreme Court decision establishing a constitutional right to same-sex marriage, striking down each and every Defense of Marriage Act in every state in the Union. Judging by their prior writings and public pronouncements, it seems that there might be four Justices (Ginsburg, Breyer, Kagan and Sotomayor) who might be likely to support such a bold declaration for gay marriage rights. Though Justice Kennedy waxed eloquently in his majority opinions in Romer v. Evans and Lawrence v. Texas about the “dignity deserved by gay men and women”, it is unlikely that Kennedy might take such a striking pronouncement in this case because there are plenty of ways that the Court can make a decision leading to the nullification of this repugnant amendment without answering the fundamental question. 

First of all, the Court can deny the defendants standing, because Governor Jerry Brown and Attorney General Kamala Harris refuse to defend Prop. 8 – it is being defended by the coalition of anti-gay activists who organized the ballot number. Generally speaking, this is not very kosher – states have to defend their laws if they are going to appeal to the Supreme Court. If SCOTUS decides to reject the appeal on these grounds, or remand it back to a lower court and allow only the State of California to appeal, and the State refuses, then Prop 8 has already been struck down by the federal district court and the Ninth Circuit Court of Appeals. The effect would be that gay marriage is legal in California once again.  

More likely, the Court might make a very narrow ruling overturning Prop 8 essentially echoing Judge Stephen Reinhardt’s opinion in the Ninth Circuit decision. Judge Reinhardt, ever cognizant of the politics of the Court and the fact that Justice Anthony Kennedy is the swing vote, wrote a decision which took pains to invoke Kennedy’s prior opinions in Romer v. Evans and Lawrence v. Texas. According to Reinhardt, the facts of this case mirror that in Romer; after some municipalities enacted ordinances banning discrimination against homosexuals, Colorado voters approved a ballot initiative which would prohibit any such anti-discrimination ordinances protecting the civil rights of homosexuals. In that landmark decision, Kennedy wrote that there was no basis for this referendum other than sheer “animus” against gay people; therefore, it failed basic rational basis review and was unconstitutional. Reinhardt also reiterated Kennedy’s emphasis on the fact that Coloradans had given gay people a civil right and then taken it away for no rational purpose – much like the present case in California. If consistency is a virtue, it appears most likely that Justice Kennedy would write the majority opinion or at least a controlling opinion along these lines. 

It is also possible that the four liberal Justices plus Kennedy might accept Olson and Boies’ argument that, lurking somewhere in the penumbras of the Fourth, Fifth, Ninth, and Fourteenth Amendments, the Constitution protects the individual’s fundamental right to same-sex marriage. Especially if you read Kennedy’s opinion in Lawrencev. Texas, which stressed that “[t]he petitioners are entitled to respect for their private lives” and that, therefore, “[t]he State cannot demean their existence or control their destiny”, it appears that Kennedy feels quite sympathetic to the fundamental injustice that is perpetrated against same-sex couples nationwide by governmental denial of their intimate relationships. If you read Justice Kennedy’s opinions in Romer and Lawrence, you cannot help but think that if it came down to it, he would gladly write the decision that establishes a constitutional right to same-sex marriage. 

 However, to do this would mean that – in one fell swoop – the Supreme Court would establish gay marriage across the entire United States, ordering the legislatures of every state and jurisdiction which has not already enacted such a law – i.e. Alabama, Alaska, Arkansas, Arizona, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Texas, West Virginia, Wisconsin, Wyoming, and also Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Marianas Islands, American Samoa, the Tribal nations, the U.S. Armed Forces, and the federal government to amend their family codes immediately. Marriage equality would reign supreme from sea to shining sea.  

However, there are reasons for such a bold move, both jurisprudential and political at this point in time. First of all, it seems that SCOTUS can affirm the Ninth Circuit’s theory as to why Prop 8 is unconstitutional without addressing the broader issue of whether or not the Constitution provides a fundamental right to same-sex marriage. According to the Doctrine of Ripening, the Court is an inherently conservative institution which ought to avoid constitutional issues if at all possible and to only address those constitutional questions which are absolutely necessary to the judicial review of a given law. In other words, the Court picks the lowest-hanging fruit. So long as the Court can strike down Proposition 8 for lack of standing or on the narrow Romer precedent, there is no need to reach for the lofty firmament of fundamental constitutional rights. 

Moreover, just imagine the political fallout if five (maybe six) Justices on the Supreme Court issue such a sweeping decision that allows LGBT Americans nationwide the right to marry.

For comparison, let’s compare status of legal same-sex marriage in 2013 to the status of legal abortion in 1973 – the year that the Court decided Roe v. Wade. When Justice Blackmun wrote that landmark decision, finding a fundamental right to abortion in the penumbras of the Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, states had just begun to liberalize their abortion laws. In 1967, Colorado, Oregon, and North Carolina had paved the way for liberalizing the ban on abortion and allowing doctors to carry out the procedure in the case of rape, incest, and medical emergencies threatening the life and health of the mother. Only in four states – New York, Washington, Hawaii, and Alaska – was abortion outright legal.

 

So in 1973 when Justice Blackmun, by judicial fiat, declared abortion to be a fundamental right across the land, it energized the pro-life movement into a political behemoth not just in the Heartland but even in highly-Catholic, highly-Democratic states like Massachusetts, New Jersey, Illinois and Pennsylvania. Historians credit this decision with splintering the New Deal coalition, giving rise to organizations like the Christian Coalition and the Moral Majority, and the Christian Right’s takeover of the Republican Party. Roe v. Wade indirectly gave rise to 12 years of Reagan and Bush and the appointment of four conservative Supreme Court Justices – Scalia, Thomas, O’Connor, Kennedy – who tapered back Roe as far as they could. What was a stunningly progressive movement of liberalized abortion laws in the late 1960s and early 1970s – even in states like Kansas, Arkansas, Alabama, and Mississippi – stopped dead in its tracks. The pro-life movement and the growth of the Christian Right swung the politics of those same states swung so far to the right that, almost half a century later, it would be almost unthinkable that the legislatures in Topeka, Little Rock, Birmingham and Jackson could ever take such steps to advance human rights and the dignity of women on their own volition today as they did 40 years ago. 

So what would a sweeping decision in Hollingsworth v. Perry do to the movement for marriage equality? There are two schools of thought. 

The first hypothesis is that, like Brown v. Board of Education, Hollingsworth could establish a resounding opinion affirming the rights of same-sex couples that resolves this question once and for all. Every loving couple in not just San Francisco and West Hollywood but also Wichita, Caspar, Baton Rouge and Chattanooga would be able to go to City Hall and get their marriage license and live happily ever after. The End. 

The second hypothesis, which I fear is more likely, is that such a sweeping decision which changes the marriage laws of 41 states in one fell swoop creates an enormous backlash which sets back the cause of marriage equality, gay rights in a broader context – let alone liberal politics. Adam and Steve would be able to get their marriage license at the Montgomery City Hall, but there would be riots and lynch mobs outside. Maggie Gallagher and Brian Brown and Phyllis Schlafly would hold rallies denouncing “judicial activism” at the courthouse steps of every county seat in every Congressional district in the country. It would look like this all over Florida, Ohio, Michigan, Wisconsin, and Pennsylvania. Republicans would take back the Senate in 2014, in 2016 Marco Rubio would win much of the heavily Catholic industrial Midwest and Southwest, and President Rubio would nominate replacements for Justices Breyer, Kennedy, Scalia and Thomas who would make Robert Bork look like Leon Trotsky.  

In so many words, for Hollingsworth v. Perry  to establish a constitutional right to same-sex marriage nationwide, at this juncture in time, might counterintuitively be very, very bad for the marriage equality movement in the long run.

When it is most successful, social progress is a gradual process which reaps one small victory at a time until, eventually, one day people look up and realize that that once crazy radical idea has become the mainstream consensus. That is why this student of law and politics hopes that the Court makes a decision in Hollingsworth which finds Proposition 8 to be unconstitutional – though along the narrow Romer v. Evans-like grounds that applies only to California. Mince no words – Hollingsworth v. Perry would go down down in American history as one of the greatest – if not the greatest – courthouse victory for the gay rights movement thusfar. The population of the United States able to marry a person of the same sex would instantly double.

2013 might yet be the most fruitful year in the history of the marriage equality movement. It looks like marriage equality statutes will be victorious at the statehouses in Illinois, Hawaii, Rhode Island, and Delaware. The Colorado and Minnesota legislatures also appear to be poised to pass civil union laws. 2013  might end with a total of 14 states plus the District of Columbia with marriage equality, and civil union or strong domestic partnership laws in 5 others.

 

With the wind to its back, this is how the marriage equality movement has to turn the map purple: activists have to lobby their state senates, houses of representatives, and general assemblies to enact new laws and overturn state Defense of Marriage Acts one at a time, one by one until there’s something like 25 of them. At this rate, sometime around 2020 or 2025 there will probably be a majority of states, representing a clear majority of the population, with some form of either same-sex marriage or civil unions on the books. It’s only a matter of time.

 

When that time comes that the facts on the ground have shown that there is a consensus among the states and among the American people that allowing same-sex couples to marry is a matter of fundamental rights, and that those holdout states who are the outliers, then would be the proper time to go in for the kill. Only when it’s apparent that this new concept of a constitutional right to same-sex marriage has ripened and is ready to be picked will it be time for Ted Olson and David Boies to argue before the Supreme Court that a cute lesbian couple in Chattanooga denied a civil marriage license are being denied their fundamental rights guaranteed by the penumbras of the Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. At that point, what is indeed a somewhat radical interpretation of the Constitution might look rather matter-of-fact.

Marriage rights advocates have their heart in the right place, but they (we) all have to be patient. As Dr. King once said, “the arc of history is long, but it bends toward justice.”

It’s only a matter of time until the map looks like this: