Right to Carry Guns Headed to Supreme Court

      Gun rights advocates won their most important court victory in the past two-and-a-half years last week [Dec. 11] when the federal appeals court in Chicago struck down Illinois’ virtually absolute ban on carrying concealed weapons in public. But news of the ruling was quickly eclipsed by two other gun-related stories: a shooting episode in an Oregon shopping mall on the same day that left three persons dead and the horrific massacre in Newtown, Conn., that claimed 28 lives [Dec. 14]. Both shooters killed themselves at the scene.
      The shootings produced predictable anger among gun control supporters, low-lying silence from gun rights advocates, and — after two-day wait — a strong call from President Obama for unspecified action to prevent more such tragedies. “We can’t tolerate this anymore,” Obama said in remarks at an interfaith service in Newtown on Sunday night.
      The debates over gun laws included immediate calls to revive the lapsed ban on assault weapons of the type that Adam Lanza used to gun down 20 first-graders at Sandy Hook Elementary School and six school staff members before using a pistol to kill himself. (Lanza killed his mother before going to the school.) Many commentators saw a likely “tipping point” in the long stalemated debate over regulating guns.
      In the meantime, however, the appeals court ruling on the Illinois concealed weapon ban portends a new issue for the Supreme Court to decide. And if the Roberts Court follows its two previous gun rights rulings, its decision could further restrict lawmakers’ ability to curtail the role of guns in day-to-day life in America.
      The ruling by the Seventh U.S. Circuit Court of Appeals builds on the two Supreme Court decisions of the past four years that held the Second Amendment to protect an individual right to possession of firearms for the purpose of self-defense. The court struck down the District of Columbia’s ban on possession of handguns in the first of the rulings, Heller v. District of Columbia (2008), and extended the right to states and localities in a ruling striking down a similar ban in Chicago, McDonald v. City of Chicago (2010).
      Conservatives generally praised and liberals generally criticized the rulings, both by 5-4 votes divided along the justices’ conservative-liberal fault lines. But one improbable critic was Judge Richard Posner, the idiosyncratically conservative jurist and prolific legal commentator. Writing in The New Republic only six weeks after the ruling, Posner called Heller “questionable in both method and result.” The decision, he said, showed that the court, in constitutional cases, “exercises a freewheeling discretion strongly flavored with ideology.”
      Court watchers can rightfully claim surprise, therefore, in seeing Posner as the author of the farthest extension to date of Heller and McDonald. Writing for the majority in the new case, Moore v. Madigan, Posner said the Supreme Court’s decisions recognizing a right to possess handguns inside the home for self-defense also necessarily imply some right to possess some kinds of weapons in public place for the same purpose: self-defense.
      Posner relied in part on textual analysis. The Second Amendment’s right to “keep and bear arms,” he reasoned, “implies a right to carry a loaded gun outside the home.” Looking to English history, he interpreted the 17th century statutes that barred going armed “with dangerous or unusual weapons” as implying permission for others. And in contemporary America, Posner said, the need for self-defense recognized in Heller and McDonald may be more acute on the streets than in the home. “A Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than his apartment on the 35th floor of the Park Tower,” he wrote.
      From logic, Posner — joined by Judge Joel Flaum, like Posner a Reagan appointee and former chief judge on the Seventh Circuit — moved to empiricism. Summarizing the studies, Posner said the net effect that carriage of guns in public has on crime rates in general and murder rates in particular is “uncertain.” He credited in particular studies that show a low rate of arrests or misuse of weapons by gun permit holders. On that basis, Posner said that the empirical literature “fails to establish a pragmatic defense of the Illinois law.” In any event, he said the Supreme Court “made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts.”
      In a dissent, Judge Ann Williams, a Clinton appointee, argued that the issue is “closer than the majority makes it out to be.” Williams found no recognized right to carry arms in public at the time the Second Amendment was written or earlier in England. And she saw a contradiction between recognizing a right of public carriage and upholding laws of the sort that the Supreme Court cited in Heller as permissible, such as bans on guns in government buildings or other “sensitive” places. A “patchwork” of laws governing where loaded guns are or are not permitted would negate meaningful self-defense, Williams reasoned. Her conclusion: “[T]he constitutional right to carry ready-to-use firearms in public for self-defense may well not exist.”
      The Seventh Circuit’s ruling clashed with an earlier decision by the Second Circuit that upheld New York’s restrictive law requiring applicants for gun permits to show a “special need” for self-protection (Kachalsky v. County of Westchester, Nov. 27). The issue is headed, inexorably, toward the Supreme Court, the court where Posner saw ideology more than law as driving its pronouncements on the issue.

Ban on Gay Conversion Therapy in Uncharted Territory

      Teenager Gabriel Arana came home from high school one day in fall 1998 to be confronted by his mother, who had discovered an e-mail with his confession to having a crush on a male classmate. “Are you gay?” his mother asked. “I blurted out that I was,” Arana recalled in a first-person account written in April for The American Prospect.
      Arana’s problem-solving mother gathered research on the Internet on “gay conversion therapy.” Along with Gabe’s father, she prevailed on their reluctant son to go meet the leading practitioner in the field: Joseph Nicolosi, a clinical psychologist in Los Angeles and then the president of the National Association for Research and Therapy of Homosexuality (NARTH).
      Arana’s story ends well. He gave therapy a try, but he was not “cured” — only left in despair and doubt that eventually led him to contemplate suicide in college. His chastened father came around. “I’d rather have a gay son than a dead son,” he said when he learned of Gabe’s suicidal thoughts. Today, Gabe is still gay, living in Washington with his husband and working as a writer and web editor at the Prospect.
      Gabe’s story exemplifies the results of gay conversion therapy: few if any documented “cures,” but many patients saddled with anguish and doubt about a part of their identity that the American Psychiatric Association delisted as a mental disorder four decades ago. Instead of helping patients, gay conversion therapy may hurt them, according to the considered judgment of the American Psychological Association and other recognized mental health associations.
      Based on those views and anecdotal evidence from the victims of unsuccessful gay conversion therapies, the California legislature earlier this fall approved a precedent-setting bill to bar licensed mental health professionals from practicing what the law calls “sexual orientation conversion efforts” (SOCE). “These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery,” Gov. Edmund G. Brown Jr. said in signing the bill on Sept. 29.
      The Democratic-controlled legislature approved the bill by substantial margins, but most Republicans opposed it. So did some mental health organizations, concerned that the bill as originally written could have affected mainstream professionals in their treatment of patients with sexuality issues. Those groups shifted to support or neutrality after the bill was rewritten more narrowly.
      In opposing the measure, NARTH and member therapists argued that their practices were being misrepresented and that the alleged harms were unproven. They noted that NARTH now officially discourages so-called “aversion therapies” — including electric shock, induced vomiting, and the like. In his account, Arana did not indicate that Nicolosi used such techniques in treating him.
      The fate of the law, due to go into effect on Jan. 1, is clouded because of separate legal challenges filed in federal court in Sacramento. One suit was brought by individual gay conversion therapists (Welch v. Brown); the other by NARTH, individual therapists, and unnamed parents on behalf of sons now being treated by Nicolosi (Pickup v. Brown). In successive rulings last week [Dec. 3, Dec. 4], one federal judge ruled against the law, while the other upheld it. The issue is headed inevitably to the federal appeals court for California, the Ninth Circuit, and perhaps eventually to the Supreme Court.
      The government has undoubted authority to regulate medical professionals, but the law ventures into uncharted territory because it touches on views — disapproval of homosexuality — that are constitutionally protected under the First Amendment’s provisions on freedom of speech and freedom of religion. '”There's a good deal of uncertainty about how to apply the First Amendment to professional speech to clients and even more uncertainty in the case of minors,'' Eugene Volokh, a First Amendment expert at UCLA Law School, remarked to The New York Times.
      In the first of the court rulings, Judge William Shubb saw the free-speech issue as requiring him to use the highest constitutional standard — strict scrutiny — in reviewing the law. “[I]t is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality,” he wrote. Shubb said he doubted that the law would withstand strict scrutiny because the alleged harms of the therapies were unproven and the law left unlicensed counselors free to practice the therapies anyway.
      In her ruling the next day, Judge Kimberly Mueller viewed the law as regulating conduct, not speech, and therefore subject to the lax “rational basis” standard of constitutional review. Mueller acknowledged that the psychologists’ group’s task force had waffled on the harm issue. “We cannot conclude how likely it is that harm will occur from SOCE,” the task force wrote. But it went on to say there was evidence that efforts to change sexual orientation “may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts.” Mueller deferred to the legislature on the issue, saying it “could have had a legitimate reason” to enact the law.
      Whatever the eventual legal ruling, Arana is convinced that Nicolosi and others simply do not understand homosexuality, which Nicolosi to this day attributes to overprotective mothers and underattentive fathers. In an interview for the story, Nicolosi tells Arana that he thinks the therapies at least did no harm. “Like nuclear fallout, the damage came later,” Arana writes, “when I realized my sexual orientation would not change.”

Gerrymandering, Unchecked by Court, Aids GOP

      House Speaker John Boehner wasted no time on election night in celebrating the Republicans’ projected victory in maintaining control of the House of Representatives. With polls not yet closed in the West, Boehner went before network cameras to lay out his view of the results. By renewing the GOP’s majority, Boehner said, “the American people have also made clear that there is no mandate for raising tax rates.”
      Three weeks later, a CNN poll released on Nov. 26 indicated that Boehner misread the election results. More than two-thirds of those surveyed said the current “fiscal cliff ” deadlock should be resolved by a mix of spending cuts and tax increases; fewer than one-third favor the GOP’s preferred solution of spending cuts only.
      More fundamentally, however, Boehner is wrong to claim any Republican mandate at all in the GOP’s diminished 234-201 majority in the House. Actually, more Americans voted for Democratic candidates in the House than for Republicans: about 56 million for Democrats and 55 million for Republicans, according to the latest compilation by the Associated Press. This marks the first time since 1996 that one party won more House seats while winning fewer votes, according to data from the House Clerk’s office reported by Bloomberg’s veteran political analyst Greg Giroux.
      How did Republicans fare so much better in House seats than in vote totals? Giroux and others point to one major factor: partisan gerrymandering in the House districts drawn up by GOP-controlled legislatures after the 2010 census. In state after state, GOP lawmakers did all they could to strengthen Republicans in their districts and either weaken Democrats in theirs or pack Democratic voters into districts where their votes would be to some extent wasted. Democrats followed the same script in states where they controlled the process, such as Illinois and Maryland, but the Republicans had a numerical edge in state capitals as the decennial redistricting process got under way.
      Results from this year’s elections cited by progressive commentators — Ian Millhiser, a senior analyst with the Center for American Progress, and syndicated columnist Harold Meyerson — highlight discrepancies between the partisan divide at the state level and results in House contests. President Obama carried Pennsylvania by more than 5 points, but Republicans won 13 out of 18 House seats. He won Ohio by 2 percentage points, but Republicans captured 12 out of 16 House seats. In Virginia, Obama won by 3 percentage points, but Republicans won eight of 11 House seats. Obama carried Wisconsin by 7 percentage points, but Republicans won five of the eight House seats. Obama eked out a narrow victory in Florida, while Republicans won 17 of 27 House seats.
      By Meyerson’s calculation, Republicans gained a 55-25 edge in the House delegations from those five states that Obama carried. “If the control of these House seats reflected the Democrats' statewide margins in presidential and Senate contests,” Meyerson writes, “the Democrats would likely be at parity or in the majority in the new House.”
      Creative map-drawing is not the only explanation for the discrepancy. In many states, Democratic voters are concentrated in urban districts that produce lopsided majorities for Democratic candidates. In Pennsylvania, for example, Democrats carried the five districts they won by more than 750,000 votes, but Republicans amassed a slight edge in the statewide totals for House races.
      Still, the importance of partisan gerrymandering is undeniable. And the practice persists, as Millhiser notes, because of the Supreme Court’s timidity in confronting it.
      The court in 1986 opened the door, but only slightly, to constitutional challenges to overly partisan congressional or legislative districting. The fractured ruling in Davis v. Bandemer said a districting plan could be thrown out if the evidence showed “continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.”
      Two decades later, the court confronted in a Pennsylvania case a seemingly egregious example of partisan gerrymandering. After the 2000 census, the GOP-controlled legislature did its best to help the party as it redrew House districts to account for the loss of two seats. Democratic incumbents were paired against each other in two districts, while another Democratic incumbent was moved into a Republican-leaning district. As a result, the GOP moved from an 11-10 majority in the state’s House delegation to a lopsided 12-7 advantage.
      Despite the evident partisanship, the court in Veith v. Jubelirer (2004) left the districting scheme in place. Four conservative, Republican-appointed justices led by Antonin Scalia called for eliminating any oversight of gerrymandering at all. Moderate-conservative Anthony M. Kennedy would not go that far; instead, he left the door open to future challenges if “workable standards” emerged. Two years later, however, Kennedy wrote for a 5-4 majority in rejecting Democrats’ challenge to an overtly partisan House redistricting scheme drawn by the GOP-controlled legislature in Texas (League of United Latin American Citizens v. Perry, 2006).
      With little reason to fear Supreme Court scrutiny, the Pennsylvania legislature, still under GOP control, again drew House districts after the 2010 census to advantage Republicans. The party’s 13-5 majority in the state’s congressional delegation defies the close partisan divide among voters. But this and similar distortions in other states will persist as long as the Supreme Court turns a blind eye to the dishonored practice of political gerrymandering.

On Gay Marriage, Will High Court See a "Tipping Point"?

As Maine goes, so goes the nation.

— Traditional political adage

      The press release hit e-mail boxes shortly before midnight on election night (Nov. 6): “Mainers Approve Marriage for Same-Sex Couples; First Time Freedom to Marry Passed in Ballot Measure.” For gay rights advocates, the vote in Maine broke a string of 31 consecutive defeats in statewide voting on marriage equality. By the next morning, however, they could claim a four-state winning streak, as voters in Maryland and Washington state also approved measures to recognize same-sex marriages and Minnesotans rejected a measure to ban same-sex marriage in the state.
      Voting in all four states was close, but not razor-thin. The gay marriage proposals won with 53 percent in Maine, 52 percent in Maryland and Washington. In Minnesota, the constitutional amendment to define marriage as the union of one man and one woman failed with a little under 48 percent of the vote.
      The margins were far smaller than the 2-to-1 majorities that gay marriage opponents typically gained in their string of victories dating from 1998 in Alaska and Hawaii. Still, a win is a win, however close, whether in baseball or politics. Gay rights organizations were trumpeting the results even as gays and lesbians around the country were hailing the victories as a watershed event. “The word tipping point comes to mind,” Ian McCann, a gay journalist in Dallas, posted on his Facebook page.
      LGBT Americans had other grounds for celebrating. Tammy Baldwin, a Democrat, will become the first openly LGBT member of the Senate in January after defeating her Republican opponent, popular former governor Tommy Thompson, by a 5 percent-plus margin. Baldwin’s House seat was won by another openly gay Democrat, Mark Pocan. Mark Takano, a Japanese American, became the first openly gay person of color to be elected to Congress by winning a House seat in California. In all, the Gay and Lesbian Victory Fund counts six openly gay members of the U.S. House and seven candidates who won election as the first or the only out members of their state legislatures. “This was a breathtaking leap forward,” said Chuck Wolfe, president and CEO of the fund.
      Gays and lesbians were also celebrating President Obama’s re-election. Obama had disappointed the LGBT community in his first two years in office by moving slowly on repealing the military’s “don’t ask, don’t tell” policy and failing to get behind a federal bill to ban anti-gay discrimination. But he solidified support after signing the “don’t ask, don’t tell” repealer in December 2010 and then again when he endorsed marriage equality for same-sex couples in May 2012.
      More important than any individual race or ballot measure, gay marriage appears to have achieved majority support nationwide, according to several recent polls, and with that support appears to be receding as a political wedge issue. Republican strategists used anti-gay marriage amendments in 2004 to help drive the GOP base to the poll. The tactic may or may not have helped George W. Bush carry Ohio and with it win re-election, but regardless there was little evidence in the 2012 balloting that support for gay marriage carried a political cost. At the head of the ticket, Republican Mitt Romney said he opposed gay marriage but did not highlight the issue.
      The victories in Maryland and Washington came after state legislatures voted to recognize same-sex marriages; in both states, Democratic governors pushed the measures through Democratic-controlled legislatures, but won only thanks to a handful of votes from Republican lawmakers backing the party lines. Opponents forced referendums on the measures, professing confidence that voters would reject the laws; they were wrong.
      Once the newly approved laws take effect, gay marriage will be legal in nine states — Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington — plus the District of Columbia. Of those 10 jurisdictions, elected lawmakers voted their approval in eight — all but Iowa and Massachusetts. Opponents can no longer blame activist judges alone for “redefining” marriage; the change is now coming through the political process.
      The argument over the litigation strategy versus the political strategy has simmered within the LGBT community. Those who favored going to courts argued for boldly claiming constitutional rights now, not later; those who stressed the political route warned of a backlash that could harm, not help, the cause. From the perspective of 2012, it appears that both sides can claim vindication. Without litigation, the issue would never have risen to the top of the national agenda. Without victories in legislatures and at the ballot box, favorable court rulings will be hard to win and — as in California, with Proposition 8 — at risk of reversal.
      The wall of anti-gay marriage constitutional amendments, adopted in most red and a handful of blue states, now poses a daunting obstacle for marriage equality advocates. Reversing them through the political process is out of the question today, and perhaps for the foreseeable future. For that reason, the focus of attention must inevitably shift to the Supreme Court, which could decide to hear the constitutional challenge to Proposition 8 later this term. As Mr. Dooley wisely observed, the Supreme Court reads the election returns. It remains to be seen whether the justices will look to Maine as a bellwether on this issue.

Drone War Needs Close Look From Next President

      Barack Obama campaigned in 2008 on a promise to turn the country’s back on the Bush administration’s war on terrorism policies. Guantánamo was to be closed, “enhanced interrogation techniques” ended, and a friendlier face presented to the Muslim world. Four years later, Guantánamo remains open, military trials continue to be used, and remote-controlled U.S. drones are targeting suspected al Qaeda operatives in three Islamic countries — Pakistan, Somalia, and Yemen — with the inevitable risk of collateral damage to innocent civilians.
      With the present campaign dominated by a single domestic issue — the U.S. economy — human rights concerns have gone all but unaddressed. But U.S. human rights groups have presented Obama and his Republican challenger Mitt Romney with ambitious agendas for the next president. In separate papers, Amnesty International USA and a coalition of groups led by Freedom House renew the call to close Guantánamo, urge more accountability on the use of drones, and ask for stronger U.S. measures to support democratization and protect human rights abroad.
      Both papers stress the importance of U.S. leadership on international human rights issues. That theme should resonate with internationalist liberals as well as conservative adherents to the doctrine of American “exceptionalism.” And Freedom House takes time to pat the Obama administration on the back for taking a lead role on such issues as LGBT rights, Internet freedom, and general women’s rights. Perhaps those policies will be maintained whichever candidate wins.
      Conversely, many of the proposals in both papers are unlikely to make much if any progress whatever the outcome of the presidential election. The next Congress seems all but certain to look much the current one: a Republican-controlled House, Democratic-controlled Senate, and no sudden outpouring of bipartisanship. On that basis, it seems unlikely that Congress will relent in its stubborn opposition to closing Guantánamo or trying the suspected “enemy combatants” in civilian instead of military courts. And Amnesty International is all but certain to be disappointed in its wish list of human rights treaties for the Senate to ratify. Nor is the United States likely to join the International Criminal Court in Obama’s second term or in a Romney administration.
      By contrast, the president himself is the decision-maker on the common demand in both papers for a re-evaluation and recalibration of the Obama administration’s expanded use of drones to target al Qaeda. Amnesty asks the two candidates: “Will you end unlawful killings, bring the use of drones in line with international human rights and humanitarian law, and make public the Department of Justice memo that reportedly details the legal rationale for ‘targeted killings?’”
      In like vein, the Freedom House-led coalition calls on the next president to “reevaluate and publicly clarify the criteria and the basis for targeting . . . decisions, the process by which such decisions are made, and the mechanisms in place to ensure compliance with international law and the protection of civilians.” Amnesty International USA signed on to the coalition’s letter, which also drew support from such leading human rights groups as the American Civil Liberties Union, Human Rights First, and Human Rights Watch.
      Obama’s embrace of the drone war discomfits his supporters on the political left even as it strengthens his national security credentials with centrist Democrats and independents. For his part, Romney endorsed the use of drones in the final presidential debate, but with a significant caveat: “We can’t kill our way out of this.”
      The human rights groups’ call for greater transparency echoes the view of news organizations that have attempted to report on the drone war. “Accurate information is hard to come by,” Margaret Sullivan, the New York Times’s newly appointed public editor or ombudswoman, wrote in a column in mid-October. The Washington Post endorses the use of drones, but called in a Nov. 1 editorial for “greater disclosure, more political accountability, more checks and balances and more collaboration with allies.”
      In her column, Sullivan cited a report by the Bureau of Investigative Journalism in Britain that what Sullivan calls this “push-button war” claimed between 282 and 535 civilian lives, including 60 children, during Obama’s first three years in office. The administration insists the number is far lower. Sullivan goes on to quote Sarah Knuckey, a human rights investigator now at New York University Law School, as having found widespread fear of drone strikes among Pakistanis when she visited Pakistan recently.
      The casualty count of al Qaeda militants is likewise a subject of sharp dispute. The government appears to count any adult males killed in drone strikes as militants unless there is exonerating evidence. A new report by human rights investigators for Stanford and New York University law schools urges journalists to make that notation in any body-count stories. The report also contends that the drone strikes have aided recruitment for anti-American groups and, on that basis, questions how valuable they are in making the United States safer.
      With Obama and Romney in seeming agreement, the conflicting accounts and assessments went unexplored in the presidential campaign. But the next commander in chief would be well served to heed the calls from many quarters to take a clear-eyed, hard-headed look at the drone war before deciding how much further, if at all, to extend it.

Making Every Vote Count in Presidential Elections

      As hard to believe as it may seem, the Framers of the Constitution took great pride in the method they devised for electing the president of the United States. Writing in Federalist No. 68, Alexander Hamilton went so far as to say that “if it be not perfect, it is at least excellent.”
      Today, Americans are less than enamored of what has come to be called the Electoral College — a term that actually does not appear in the Constitution. Gallup polls dating back to the 1940s have consistently found majority support for direct popular election of the president. The most recent survey, in October 2011, found 62 percent of those responding in favor of direct popular election. Changing the system had majority support from Republicans (53 percent) for the first time since 2000 as well as stronger support from independents (61 percent) and Democrats (75 percent).
      Despite public sentiment, the Electoral College has proven stubbornly resistant to change. A constitutional amendment for direct popular election came tantalizingly close in Congress in 1970. But it failed in the Senate when small-state senators, Republicans and Democrats, filibustered it to death.
      Since then, there has been nothing by way of serious effort to change. But perhaps the 2012 campaign can give new life to the issue by demonstrating to Americans in a majority of states that Electoral College math makes them largely irrelevant in a presidential contest. Instead, the candidates focus their attention on a handful of “battleground” states — think Ohio — whose issues assume disproportionate importance in determining the outcome.
      The flaws of the Electoral College system could have been recognized from the start. Hamilton saw two main virtues in the system, but neither actually materialized. Hamilton reasoned that the electors would be “men [sic] most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation. . . .” In addition, the electors, barred from holding any other position in the national government, would be immune from “cabal, intrigue, or corruption.”
      The electors never deliberated as such. The Constitution prevented deliberation by requiring the electors to meet in their respective state capitals: thus, there never has been an Electoral College as such. Today, the electors are mere placeholders in a system that is in large part popular election. Presidential electors typically are not even listed on the ballot and cast their votes as pledged for their party’s candidate except for the very occasional “faithless” elector.
      The emergence of political parties rendered the Framers’ fear of intrigue by foreign powers irrelevant. Instead, it set the stage for the emergence over time of a political system susceptible to corruption of other kinds: the “spoils system” of Jacksonian politics and the dominant role of financial interests in paying for campaigns since the late 19th century.
      The emergence of political parties also quickly demonstrated the absurdity of the Framers’ idea of choosing the runner-up as vice president. The first contested election, in 1796, produced a Federalist president, John Adams, and his Anti-Federalist foe Thomas Jefferson as vice president. The Twelfth Amendment, ratified in 1804, tied the two offices together. But the amendment left unchanged another original flaw: the decision to throw the election into the House of Representatives if no candidate received a majority of electoral votes.
      That system worked badly in 1800, the only time it has been used. If it were to be used today — say, in the mathematically possible result of a 269-269 electoral vote tie — the one-vote per state rule would give outsized influence to sparsely populated states that happen to be predominantly Republican. But the selection of a vice president would fall to the Senate, which happens to have a Democratic majority today. Thus, political reporters have conjured up the possibility of a President Romney and Vice President Biden — or, in the event of a deadlock in the House, President Biden!
      Apart from this unlikely scenario, the Electoral College seems inconsistent with modern democratic theory simply because it does not guarantee victory to the popular vote winner. Indeed, four men were elected president after losing the popular vote: John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), and George W. Bush (2000). Tellingly, Adams, Hayes, and Harrison are not regarded as successful presidents; and Bush’s legacy seems likely to be clouded at best.
      Supporters of the Electoral College have a new answer to this issue. They argue that counting electoral votes by states “compartmentalizes” the risk of popular vote-counting fraud or mistakes. A few hundred or even thousand votes wrong here and there typically has no effect on a statewide outcome, they reason. But if every vote counts, bad vote-counting would matter everywhere. In effect, a Florida-style recount, with disputes over butterfly ballots and hanging chads, could be played out all across the country, and the final result lastingly subject to mathematical doubt.
      The notion that the United States cannot count votes accurately sells the country’s electoral system quite short. But, if true, it only underlines the need to reform the voting system, a need underscored by the wrenching debates over voter ID laws in the past few years. In that sense, replacing the Electoral College with direct popular election of the president could serve a valuable purpose by forcing the adoption of national standards to make more real the fundamental democratic premise of one person, one vote — and every vote counts.

Striking Down the Offense Against Marriage Act

      The federal Defense of Marriage Act (DOMA) is all but dead. Seven federal courts have ruled it unconstitutional, and Supreme Court watchers have a growing consensus that at least five justices will agree before the court’s current term ends next June.
      Yet Congress passed this anti-gay marriage law by overwhelming, bipartisan majorities in 1996, and a Democratic president who had support from many gay leaders and gay rights advocates signed it into law. Back then, opponents raised constitutional doubts mainly about the provision — section 2 — that no state was required to recognize same-sex marriages from another state. Some of the opponents said merely that the provision was unnecessary since states have historically had the discretion to determine whether to recognize marriages from other states.
      Far less attention was paid to the provision, section 3, that defined marriage for purposes of federal law as the union of one man and one woman. The federal government had never before established a national definition for marriage, but to many people it seemed unsurprising that the government would have that authority. And the provision seemed to have no immediate impact since no state at the time granted marriage rights to gay or lesbian couples.
      Things are different today. The harm that the law imposes is now tangible and concrete. Thousands of same-sex couples are legally married in the United States. Six states and the District of Columbia allow same-sex couples to marry; so do Canada, the United States’ neighbor to the north, and nine other countries at latest count. At least one state, Maryland, recognizes same-sex marriages from other jurisdictions; and Maryland is one of three states — Maine and Washington are the others — that have measures on the Nov. 6 ballot to legalize same-sex marriages.
      These legal developments unmask the federal law for what it is: not a defense of marriage, but an offense against marriage. Congress approved the law in 1996 for reasons that seemed self-evident: preserving traditional marriages, protecting kids and promoting morality. Today, the law is recognized as denying legally married gay and lesbian couples benefits — financial and otherwise — matter-of-factly extended to opposite-sex couples living in the same state, even on the same block.
      Edith Windsor, the DOMA victim in the most recent federal court decision, was hit with a $363,000 estate tax bill after her wife, Thea Spyer, died in 2009. Windsor and Spyer, New York residents, had married in Canada two years earlier; New York recognized same-sex marriages from other jurisdictions even before the state legislature voted to approve gay marriage in June 2011.
      In opposite-sex marriages, a spouse’s estate passes to his or her surviving spouse without incurring federal tax liability. But under DOMA, Windsor was not eligible for that same, uncontroversial tax benefit. The plaintiffs in other DOMA challenges have suffered similar, if less dramatic, financial disadvantages. The widower of former congressman Gerry Studds was denied Social Security survivors benefits. Several current or former federal employees have been prevented from extending health insurance or retirement to their spouses.
      In ruling for Windsor last week [Oct. 18], the New York-based Second U.S. Circuit Court of Appeals held that laws that single gays and lesbians out for unfavorable treatment are subject to heightened constitutional scrutiny. The majority in the 2-1 decision cited the history of discrimination against gays and their lack of political power to prevent legally sanctioned discrimination.
      Having raised the bar a bit, the court then rejected all of the rationales offered by lawyers for House Republicans to uphold the law. (The Obama administration no longer defends the law.) The court said the law did not help maintain a uniform definition of marriage, protect the federal treasury, preserve a traditional understanding of marriage or encourage responsible procreation.
      The case, Windsor v. United States, is viewed as the best of four cases pending before the Supreme Court for the justices to use to resolve the issue. One reason: Justice Elena Kagan, the former solicitor general, may be disqualified from the other cases, but not from this one. The justices have the cases ready for conference early next month. The Second Circuit must have been aware of that schedule as it rushed its decision out only three weeks after argument.
      When the case is argued, the challengers will certainly face combative questions from Justice Antonin Scalia. The court’s guardian of constitutional originalism will undoubtedly contend that a provision adopted in 1868 — the Fourteenth Amendment’s Equal Protection Clause — was not intended or understood to say anything about gay marriage.
      Scalia will be right on that point, but irrelevant. Despite Scalia’s protests, the Constitution is in fact a living document for an ever-changing country and its people. None of the Fourteenth Amendment’s framers would have understood it to prohibit discrimination on the basis of sex, but the Supreme Court decisions from the 1970s applying the Equal Protection Clause for that purpose are now well established.
      The pivotal vote in the DOMA case likely rests with Justice Anthony M. Kennedy. When he led the court in striking down anti-sodomy laws in 2003, Kennedy made clear his view that the Constitution protects gay and straight people alike. “As the Constitution endures,” Kennedy wrote, “persons in every generation can invoke its principles in their search for greater freedom.” Weighed against those principles, DOMA seems doomed.

Supreme Court Showdown on Affirmative Action

      When the Supreme Court pulled the plug on an ambitious school desegregation plan for Kansas City in 1995, Justice Ruth Bader Ginsburg complained in dissent that the retreat was both “too swift and too soon” (Missouri v. Jenkins). Much the same could be said about the growing discontent among the American public and among many experts about the efforts to use race-conscious admissions policies in order to increase racial and ethnic diversity in U.S. colleges and graduate schools.
      The latest manifestation of this supposed re-examination of racial preferences came last week [Oct. 4] in a report by the Century Foundation written by Richard Kahlenberg, a longtime advocate of using socioeconomic status instead of race or ethnicity to increase diversity in higher education. In presenting the report at the progressive think tank’s Washington office, Kahlenberg bluntly warned that race-based affirmative action “is likely on its way out” — unpopular with the public and under challenge in legislatures, at the ballot box, and in the courts.
      The discontent is fed further by the new book, Mismatch: How Affirmative Action Hurts Student It’s Intended to Help, and Why Universities Won’t Admit It, by UCLA law professor Richard Sander and legal affairs journalist Stuart Taylor Jr. The book elaborates on Sander’s empirical research over the past decade that he says shows many beneficiaries of racial preferences fare badly in college or law school, doomed to failure because they are competing with academically superior classmates.
      The publication of the report and the book were both timed to coincide with the Supreme Court’s oral arguments on Wednesday [Oct. 10] in the latest showdown on affirmative action, Fisher v. University of Texas. The justices are being asked to invalidate UT’s use of race as part of what administrators describe as a “holistic” evaluation of applicants for about one-fifth of the slots in each year’s entering first-year class.
      The Fifth U.S. Circuit Court of Appeals upheld UT’s policies, saying that they conformed to the criteria set out by the court nine years ago in a University of Michigan case, Grutter v. Bollinger (2003). Attorneys representing Abigail Fisher, an unsuccessful white applicant for admission in 2008, argue that UT’s policies go beyond the limited use of race allowed under Grutter. Alternatively, they urge the court to overrule Grutter and severely limit or completely prohibit consideration of race in college and university admissions.
      The case can be handicapped easily: Justice Sandra Day O’Connor, who authored the majority opinion in Grutter, has been succeeded by Samuel A. Alito Jr., a hard-edged conservative who has cast decisive votes against race-conscious policies in two major decisions since his appointment in 2006. For many court-watchers, the only question in the case is not whether but how far the court will go in limiting race-conscious admissions policies.
      Institutionally, however, the court is not supposed to change course simply because of a change in personnel. So the justices need to closely examine UT’s policies, as they have evolved during two decades’ worth of litigation, along with the densely statistical debate waged in friend-of-the-court briefs about the overall impact of racial preferences. On both counts, the evidence is less than clear-cut and the interpretations by opposing sides in sharp conflict.
      For UT, the pivotal question will be whether the university had good reason to re-introduce some consideration of race after Grutter since it was already using an ostensibly race-neutral mechanism to boost enrollment of African American and Hispanic applicants. The state’s “Top Ten Percent” law, passed in 1997, guarantees students in the top 10 percent of their high school graduating classes a slot at UT’s flagship campus in Austin. With black and Latino students concentrated in racially identifiable schools, the law increases their enrollment, but not enough to satisfy the school. Today, blacks comprise about 4.5 percent of UT’s student body, Hispanics 16.9 percent; both figures are below the proportions for the state’s population overall.
      Justices on both sides may cite the broader policy debate to help make their case. Conservatives will surely cite the supposed costs of racial preferences — stereotyping and stigmatizing minority students — along with Sander’s claimed proof of “mismatch.” The statistical argument goes far beyond what can be elaborated in a weekly column, but it can be said at least that Sander’s conclusion is disputed and, if valid, merely shows the need for universities to follow through with well designed and well resourced academic support for affirmative-action admits.
      As for the alleged stigmatization, Sander and Taylor are selective in quoting prominent African Americans as critics of racial preferences, including Supreme Court Justice Clarence Thomas, who has famously described his indignation at bearing “the taint of racial preference.” They do not note that the court’s only Hispanic justice, Sonia Sotomayor, proudly counts herself as “an affirmative action baby,” apparently unaware of any taint due to her status.
      The University of Texas admitted its first African American student in 1950, only after a unanimous Supreme Court decision forced it to do so (Sweatt v. Painter). Sixty years later, the Austin campus is by no means a model of racial harmony, as seen in a recent report of “bleach ballooning” incidents directed at African American students and fraternity parties with anti-immigrant themes. Admissions policies aimed at making the campus more diverse, on paper and in practice, deserve respectful consideration from a Supreme Court dedicated to equal justice under law.

Roberts 4.1: Resetting or Refueling the Right-Wing Agenda?

      John Roberts will step through the maroon curtains promptly at 10 o’clock Monday morning [Oct. 1] to open a new Supreme Court term, his eighth as chief justice of the United States. Refreshed from a teaching gig in Malta and a family vacation in Maine, Roberts will tend to preliminaries and then call the first case: Kiobel v. Royal Dutch Petroleum Co., a major test for human rights litigation.
      From Day One of the new term, the question will be which John Roberts has returned to Washington to lead a court split down the middle between conservatives and liberals. Will it be the Radical Roberts: the Reagan administration alumnus who harbored ambitions back then of overruling Roe v. Wade, abolishing affirmative action, and eliminating the exclusionary rule? Or will it be the Restrained Roberts: the judicious chief justice who saved Obamacare, spared the Voting Rights Act, and rides herd on rambunctious conservative colleagues?
      Time will tell, but maybe sooner rather than later. The court’s first case gives the conservative bloc a chance to scrap three decades of lower court precedents that have allowed foreign victims of human rights violations abroad to sue their abusers in the U.S. court system. A more dramatic showdown looms the next week [Oct. 10] when the court takes up a challenge to race-conscious admissions in colleges and universities, Fisher v. University of Texas, just nine years after the court upheld such policies after a full airing of the issue.
      Judicial restraint and stare decisis — respect for precedent — tilt the scales one way in both cases, but not the way the conservative majority almost certainly wants to rule. Roberts, more than anyone else, will decide whether the conservatives’ wishes are to become the law of the land.
      Roberts’ four conservative colleagues voted this spring to invalidate the entirety of a 2,700-page law, President Obama’s signature domestic policy achievement, on the basis of a constitutional theory that was viewed as fanciful just three years earlier. Roberts disappointed them — angered them, according to the account leaked to CBS’s Jan Crawford — by saving the law and leaving its fate to “political branches.” The chief justice was pilloried in Republican and conservative circles for his betrayal.
      Under hostile fire, Roberts responded with his signature charm and wit. Speaking to a judicial conference on June 29 — one day after the ruling on the health care law — he joked that he would be spending the next two weeks teaching on the island of Malta, “an impregnable fortress.” “It seemed like a good idea,” he said. Asked at the same conference whether he favored any changes in Supreme Court rules, Roberts said he would eliminate “the odd historical quirk that the chief justice only gets one vote.”
      Roberts’ charm works wonders. The other justices in the conservative bloc are more than a bit charm-challenged. Antonin Scalia may be a delightful companion at the opera, but on the bench he is growing ever more argumentative, dogmatic, and churlish. Samuel A. Alito Jr. has yet to be seen to smile after six-and-half-years on the bench. Clarence Thomas’ silence over the same period is the outward manifestation of the rigid certitude that marks his jurisprudence. And then there is Anthony M. Kennedy, the pivotal vote on so many issues, whose earnestness must be as tiresome to his colleagues as it is to most of the Supreme Court press corps and many others.
      The court’s first two major cases for the term showcase the strength of the conservative bloc. The court heard arguments on Kiobel in February on the limited question whether corporations can be subject to liability under the Alien Tort Statute — in this case, Royal Dutch Petroleum for alleged complicity with the Nigerian military dictatorship in a brutal putdown of oil drilling protests. At Alito’s prompting, the court decided to ask for new arguments on the issue of whether human rights violations from abroad carried out by foreigners belong in U.S. courts at all. Court watchers infer that the answer is a done deal: no.
      In the University of Texas affirmative action case, the court granted review of the Fifth Circuit’s decision upholding the admissions policies despite procedural issues that would have doomed any appeal that the majority did not want to hear. The white plaintiff, Abigail Fisher, would not have been admitted to UT under the race-neutral policies that her lawyers advocate; and her only remaining claim is for the refund of her $100 application fee. Given the conservatives’ votes on other race-conscious policies, the only question seems to be not whether but how far they will go in limiting the use of race in admissions policies.
      Supreme Court scholars define a “natural court” as the time period with no changes in personnel on the court. By that definition, the court is now denominated as “Roberts 4,” the fourth different court of Roberts’ tenure. But Roberts’ pivotal vote in the health care case is at least as important a milestone as a new justice.
      Roberts has joined with the other conservatives in scrapping or bending precedents on issues ranging from campaign finance and gun rights to criminal law and civil litigation. Arguments in the first two major cases may give useful clues on whether Roberts wants to refuel that right-wing agenda or reset the court on a more restrained course.

Looking to Courts to Protect Cell Phone Privacy

      Justice Samuel A. Alito Jr. seems an unlikely leader of a pro-privacy bloc on the Supreme Court. But he assumed that role in last term’s decision that set some yet-to-be-defined limits on law enforcement use of global positioning system (GPS) surveillance to track suspected criminals.
      Now, the Orwellian specter of a government eye-in-the-sky that Alito identified in his concurring opinion in the case, United States v. Jones, seems to be coming to pass. A federal appeals court gave thumbs-up last month [Aug. 14] to federal agents’ monitoring of a drug suspect’s cell phone signals to track him across country. This is precisely the kind of no-touch electronic surveillance that Alito warned has become common in the wired world today.
      In Jones, the Supreme Court ruled that the government’s attachment of a GPS device to a suspect’s car amounts to a search subject to the Fourth Amendment’s requirement either to get a warrant or qualify for an exception to the warrant requirement. Writing for a five-justice majority, Justice Antonin Scalia reasoned by analogy that back in 1791 the Framers would not have taken kindly to a constable concealing himself inside a suspect’s carriage to gather evidence of criminal conduct.
      Alito, joined by three liberal justices, said Scalia’s simple approach leaves a more worrisome law enforcement threat to privacy untouched. He pointed to the increasingly widespread electronic tracking of our comings and goings that do not involve attaching any device to our vehicles. Examples: closed-circuit video monitoring in public areas and automated toll collection systems for drivers with an E-Z pass.
      Most significantly, Alito continued, “cell phones and other wireless devices now permit wireless carriers to track and record the location of users.” Many cell phone owners may appreciate this functionality: think of the hiker lost in the wilderness. But the cell phone signals tracked by the carrier can also be tracked by the police with the user unaware of being tailed.
      That’s what happened to truck driver Marshall Skinner in July 2006 as he headed east out of Tucson in an RV loaded with about 1,100 pounds of marijuana. Skinner was using a pay-as-you-go cell phone to keep in touch as he headed for his destination in Tennessee. Unbeknownst to Skinner, federal Drug Enforcement Administration (DEA) agents had gotten an order from a federal magistrate authorizing the phone company to release the information needed to monitor the cell phone’s “ping” data so they could track him on the drive.
      When Skinner pulled in for the night near Abilene, Texas, DEA agents were dispatched from Lubbock to go investigate. Skinner denied the agents’ request to search the vehicle, but they went in anyway after a drug-sniffing dog alerted them to the likely presence of narcotics.
      Indicted for drug and money laundering, Skinner sought to suppress the evidence on the ground that the agents’ use of GPS location information emitted from his cell phone was a warrantless search that violated the Fourth Amendment. The judge rejected the motion. Skinner was then convicted and sentenced to roughly 20 years in prison.
      In August, a three-judge panel of the Sixth U.S. Circuit Court of Appeals upheld the conviction. Writing for the majority, Judge John Rogers woodenly rejected Skinner’s invocation of a right to privacy. “When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them,” Rogers wrote in the decision. Judge Eric Clay joined Rogers’ opinion.
      In a concurring opinion, Judge Bernice Donaldson said the majority had misstated the issue. “The law affords the same constitutional protections to criminals and law-abiding citizens alike,” Donaldson explained. The issue, she continued, was “whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from any cell phone.” To that question, Donaldson said yes. But she joined in upholding the conviction by relying on the good-faith exception to the exclusionary rule.
      Donaldson’s view is reminiscent of the moment in the argument in the Jones case when Chief Justice John G. Roberts Jr. asked the government’s lawyer whether police could attach GPS devices to the justices’ cars. Suddenly, the case was no longer about criminals but about the constitutional protections for all of us — private citizens or even government officials.
      In his opinion, Alito conceded that technological developments are eroding our expectations of privacy. Even so, Alito argued, some lines need to be drawn. In Jones’ case, federal agents and Washington, D.C., police tracked his movements for 28 days until they finally nabbed him at a drug warehouse. With the evidence thrown out, the government is hoping to put together enough other information to convict Jones again in a trial set for January.
      The line-drawing, Alito suggested, might best be done by legislative bodies, which he said are “well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.” Alito considerably overestimates the abilities of Congress and state legislatures. For now, it seems more likely that protecting cell phone privacy will be up to the courts, including, ultimately, the Supreme Court.

Celebrating the Constitution in Questioning Times

      The Constitution marks its 225th anniversary this week [Sept. 17], but the occasion comes with much less hoopla than the celebration of its Bicentennial 25 years ago. Today, the longest standing national constitution in history is being re-examined critically by unlikely bedfellows on the left, right, and radical center. More troublingly, the Constitution is under an insidious attack from right-wing forces seeking to advance a political agenda in the name of the Constitution while fundamentally misrepresenting what the Framers believed and hoped to accomplish.
      The constructive rethinking about the Constitution is represented in the very long-shot effort to call a constitutional convention under a procedure never before used to amend the nation’s governing document. The Constitution’s Article V provides for two routes to amendments: proposals by Congress submitted to the states for ratification, the procedure used for the 27 amendments so far, or a convention called by Congress on application from legislatures of at least two-thirds of the states. Any amendments proposed by the convention would in turn have to be ratified by three-fourths of the states, by convention or legislative action, as determined by Congress.
      As detailed in my CQ Researcher report “Re-examining the Constitution” (Sept. 7), the groups pushing for a convention are ideologically diverse. Conservatives, including the Tea Party Patriots, want some form of federal budget control written into the Constitution. Liberals want to undo the Supreme Court’s recent decisions limiting the government’s ability to control spending in political campaigns. And some experts, notably University of Texas law professor Sanford Levinson, want to change some of the Constitution’s basic structure, including the equal representation of states in the Senate, the Electoral College and life tenure for Supreme Court justices.
      The push for a convention has little chance for success. Supporters face a host of questions about the rules for a convention, with no clear answers. And they face the daunting task of overcoming inertia as well as the fear of a “runaway” convention that would wreak havoc on a Constitution that has served the country somewhat well — at least since the Civil War. But some useful changes could come out of the effort, as happened in 1913 when Congress bowed to the effort to call a convention and approved the Seventeenth Amendment providing for popular election of U.S. senators.
      By contrast, much of the talk about the Constitution from the political right today is far from constructive. Instead, to quote the title of a new book by journalist and law professor Garrett Epps, it is Wrong and Dangerous. Epps details in his book 10 myths about the Constitution now being propagated by groups and individuals on the political right. [Disclosure: Epps is a college classmate, professional colleague, and personal friend.]
      The propagators of these myths, according to Epps, include public officials ranging from Justice Antonin Scalia and Republican Rep. Michele Bachmann, a Tea Party favorite, to commentators such as Glenn Beck and Rush Limbaugh. Think tanks such as the Heritage Foundation and Cato Institute provide an intellectual patina for the views, but no account is complete without mentioning the misleadingly titled National Center for Constitutional Studies, aptly described on Wikipedia as an “ultraconservative, religious-themed” organization. Epps attended one of NCCS’s seminars, where he learned — according to his account in The Nation — that the First Amendment established nondenominational Christianity as the national religion, states need not obey the Bill of Rights, and everything from Social Security to the Civil Rights Act of 1964 is unconstitutional.
      As Epps demonstrates in his book, these right-wing forces misread both history and the Constitution’s text. They believe, for example, that the Constitution was written to limit the powers of Congress and the national government being established. In fact, the “Federal Convention” was called precisely because the weak central government established by the Articles of Confederation was not up to the political, economic, and diplomatic challenges faced by the new republic.
      The constitutional mythmakers are nearly as wrong in contending that the Constitution does not separate church and state. As Epps notes, the Constitution itself prohibits any religious test for public office in the national government and the First Amendment protects freedom of religion specifically by prohibiting any establishment of religion by the national government. True, the Framers rejected James Madison’s proposal to prohibit any state from establishing religion, but — apart from Justice Clarence Thomas — everyone today concedes that the Religion Clauses apply equally to the states.
      Epps is especially cogent in rejecting the myth of originalism — or specifically the myth that the political right is true to the original meaning of the Constitution and everyone else confused, dishonest, or idiotic. Epps, a constitutional historian himself, agrees on the importance of trying to discern the Framers’ intent. But he says conservatives — specifically, Thomas and Scalia — use disingenuous techniques to legitimize their interpretations and try to discredit those of others: inventing “everybody knows” generalizations, hypothesizing what the Framers “probably” thought, and discounting any contrary evidence.
      The Framers likely would be surprised at the longevity of the document they wrote in the summer of 1787. They surely would be distressed at the cost in blood and treasure needed for its survival after the crisis of slavery and the Civil War. But survive it did, and likely will continue to survive. Despite questions and controversies, that is something to celebrate.

Obama's Uneven Record on Bush's Human Rights Mess

      President Obama spent much of his acceptance speech last week [Sept. 6] taking credit for his efforts to clean up the mess of an economy that the Bush administration left for him. But he spent no time at all touting his work in cleaning up the human rights mess that the Bush administration left him with its anti-terrorism policies at home and abroad.
      Obama had good reason to pass over the subject because his record on those issues falls even farther short of what he promised in his 2008 campaign than what the country had hoped for on the economy. The newly inaugurated president started well back in January 2009 by issuing orders to rescind the Bush administration’s torture policies and to close the CIA’s secret prison sites. And he set a one-year deadline for making good on his promise to close the prison camp at Guantanamo Bay, Cuba, which then held about 245 foreigners suspected of being “enemy combatants.”
      For the human rights community that invested so much hope in the former constitutional law professor, it has been mostly downhill ever since. Guantanamo remains open, its inmate count reduced by less than one third to 168 today. The Pentagon and Justice Department have tweaked the inherited system of military commissions, but few trials have been held. The system remains “second-class justice,” according to C. Dixon Osburn, director of the law and security program at Human Rights First.
      The administration also continues to invoke the state secrets privilege to cut off judicial inquiry into the CIA’s previous “rendition” program of transporting suspected terrorists to other countries for out-of-sight, out-of-mind abuse or torture. And last week the Justice Department announced that it has given up on prosecuting any CIA agents for the torture and abuse of detainees.
      The Obama administration has also created its own civil liberties issues. It has used the Bagram Air Base in Afghanistan to hold suspected terrorists and argued —so far successfully — for blocking those prisoners from access to federal courts. And it has expanded the use of drone aircraft for targeted killing of suspected al Qaeda members with what Osburn and others say are too few safeguards and too little public accountability.
      Obama does not deserve all the blame for the uneven record. The broad bipartisan support for closing Guantanamo at the end of the Bush administration dissolved as members of Congress realized that the prisoners would have to be housed somewhere in the United States — possibly in or near their own districts. Republicans, sensing a good issue, and Democrats wary of a soft-on-terrorism label combined to bar transfer of prisoners to U.S. soil and to impose difficult-to-meet restrictions on transfers to other countries.
      The congressional action prevents the administration from bringing any of the Guantanamo prisoners to the United States for trial in civilian federal courts. Meanwhile, the military commission system at Gitmo remains a work in very slow progress. Still awaiting a trial date are Khaled Sheikh Mohammed, the alleged mastermind of al Qaeda’s Sept. 11, 2001, attack, and four accused co-conspirators. “If these were in our federal courts,” Osburn says, referring to the cases in general, “they would all be done and whatever the verdicts they would be looked at as worthy and legitimate.”
      Legal skirmishes continue, at Guantanamo mostly out of the spotlight. This summer, the Pentagon imposed new restrictions on lawyers’ access to Guantanamo prisoners despite a standing order on the subject from the federal district court in Washington. Under the new rules, prisoners could meet with lawyers only if they had a pending habeas corpus action challenging their detention; they also limited lawyers’ access to classified information.
      In an opinion aptly characterized by the New York Times’s Charlie Savage as “scathing,” U.S. District Court Judge Royce Lamberth threw out the government’s new rules as “an illegitimate exercise of executive power.” Lamberth, appointed in 1987 by President Ronald Reagan, said the new rules effectively gave the government the ability to delay or cut off the inmates’ access to lawyers. That access is all the more important, Lamberth explained, because the prisoners speak little if any English and have virtually no understanding of the U.S. legal system.
      The rules probably originated at Guantanamo, not at the Pentagon, but even their short life suggest that Guantanamo has dropped off the radar screen for Washington and perhaps for the nation in general. “People have ceased to care about Guantanamo,” Andrea Prasow, senior counterterrorism counsel for Human Rights Watch, remarked in January on the tenth anniversary of the opening of the prison camp. The federal appeals court for the District of Columbia has sided with the government in most of the habeas corpus cases it has considered, and the Supreme Court has turned aside further appeals.
      In his acceptance speech, Obama naturally took credit for making progress in the war on terror that the Bush administration began. “Al Qaeda is on the path to defeat, and Osama bin Laden is dead,” Obama said. In a campaign focused on jobs and the economy, the president understandably saw nothing to be gained by taking credit for progress on human rights issues or promising to do more. That mess remains to be cleaned up, if ever.

Scalia's Flawed Book on Reading Law

      Justice Antonin Scalia spent his summer making the round of network interview programs promoting the new book that he co-authored with legal lexicographer Bryan Garner, Reading Law: The Interpretation of Legal Texts. From CNN to C-SPAN, Fox News to PBS, Scalia preached the wisdom, indeed the necessity, of his philosophy of “textualism” — defined as using the text of a statute as “the sole source” of its meaning.
      Scalia, trained in Jesuit schools, cast himself in the interviews as a guardian of the true faith besieged in a world of sinners, including “most of academia” and “knee jerk,” results-oriented editorial writers. But by softening his certitude with occasional humor and repeated protestations of judicial modesty, Scalia undoubtedly won over many viewers to his sheep-versus-wolves dichotomy of legal philosophy.
      That philosophy is subject to serious critique, but Scalia’s interlocutors faced daunting obstacles in cross-examining the justice. The book is long (414 pages of text) and dense. The interviewers — none of them lawyers — surely had too little time to read the book in its entirety, much less examine the sources and cases cited. Time did not allow close questioning, even in the long-form interviews on C-SPAN and CNN, and viewers probably would not have sat through it anyway.
      Scalia has now had his comeuppance, however, in a scathing review written by no less a figure than Richard Posner, the prominent federal appeals court judge in Chicago who is as well respected as Scalia in conservative quarters. Writing in The New Republic (posted Aug. 24; print issue dated Sept. 13), Posner accuses Scalia and his co-author of “a pattern of equivocation” throughout the book. And he backs up this critique with specific examples of cases in which the book conveys “distorted impressions” or even outright errors.
      Posner tangled before with Scalia, most notably after Posner criticized Scalia’s opinion for the court in District of Columbia v. Heller (2008) recognizing an individual right to possess firearms in the home for self-defense. Asked about Posner’s critique, Scalia acidly noted that he, Scalia, sits in judgment of Posner’s opinions, not vice versa.
      Under the headline “The Incoherence of Antonin Scalia,” Posner checks on some of Scalia’s citations and finds patent misrepresentations and revealing omissions. He knocks down Scalia’s insistence that a good dictionary — or some number of them — will generally provide the needed definition to interpret statutory text of unclear meaning.
      On that point, Posner quotes from the generally favorable foreword written by Judge Chief Frank Easterbrook, chief judge on the federal appeals court in Chicago and, like Posner and Scalia, an admired judicial conservative. Judges cannot rely simply on textualism, Easterbrook explains, “when the original meaning is lost to the passage of time — or when it was never really there but must be invented.”
      Posner makes the most devastating point, however, when he refutes Scalia’s insistence on the political neutrality of his textualist approach. Textualism is neither liberal or conservative, Scalia writes and explains, neither “strict” nor the opposite in construction. Not true, Posner says. “Text as such may be politically neutral,” Posner rejoins, “but textualism is conservative.”
      “A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text,” Posner explains. “Textualism hobbles legislation,” he continues, “and thereby tilts toward ‘small government’ and away from ‘big government,’ which in modern America is a conservative preference.”
      As Posner notes, Scalia and Garner are also “disingenuous” in characterizing other interpretive theories. Textual originalism, they write, is the “only objective standard of interpretation.” They dismiss what they call “nonoriginalism” and other alternative theories that they denominate as “purposivism” and “consequentialism.” But there are no such things. They are merely straw men — straw theories? — invented by Scalia and Garner.
      Despite the inconsistencies and exaggerations, Scalia can justly take credit for a seemingly more rigorous focus on statutory text in Supreme Court decisions in his quarter-century on the court. “Plain text” may now be the most commonly used two-word phrase in U.S. Reports. It is hard to imagine any justice writing, as Thurgood Marshall once did in an opinion mocked by Scalia, that if legislative history is ambiguous, judges “must look primarily to the statutes themselves to find the legislative intent” (Citizens for Overton Park v. Volpe, 1971).
      Scalia concedes, however, that even a true textualist cannot interpret statutes without the aid of rules — "canons” — of interpretation. He and Garner list 57: some of them familiar to law students, others obscure. Posner finds Scalia’s use of them inconsistent. Presumably, law students and professors will find ample material to explore the charge in law review articles over the next few years or longer. Suffice it to note that Scalia himself admits that he may have been inconsistent at times — perhaps because of the need to conform with precedent (stare decisis) or perhaps because of his own lapse into error.
      Scalia and Garner cast themselves as following in the footsteps of legal giants, beginning with the iconic English jurist Sir William Blackstone. And yet, as Posner notes, Scalia quotes Blackstone only 26 pages later as calling on judges to look to “the spirit and reason” of a law in deciphering ambiguous meanings in text. The contradiction is lost on Scalia, but fortunately he and his flawed book are not the “sole source” of wisdom on the subject.

Affirmative Action and the Fourteenth Amendment

      Supreme Court justices were hopelessly divided after the first round of arguments in the landmark school desegregation case Brown v. Board of Education (1954). To gather more information — and buy some time — they asked opposing attorneys for a new round of briefs and arguments on what the authors of the post-Civil War Fourteenth Amendment thought about the issue.
      Despite the extensive research and argument, Chief Justice Earl Warren wrote in the eventual opinion that the history was “inconclusive” on the issue before the justices. So Warren went on to analyze the constitutionality of “separate but equal” in the context of public education in the United States in the mid-twentieth century.
      The 21st century Court is now preparing to hear a new case in October on the issue of race-conscious affirmative action policies in higher education (Fisher v. University of Texas). The justices have been presented stacks and stacks of friend-of-the-court briefs addressing the issues from every possible perspective, including historical. Once again, the history is ambiguous and to some extent inconclusive. But those justices – think Antonin Scalia and Clarence Thomas – who view original meaning as the touchstone of constitutional interpretation will be hard pressed to find a complete prohibition on governmental use of racial preferences in the history of the Fourteenth Amendment.
      Inconveniently for Scalia’s and Thomas’s declared opposition to racial preferences, the same Congress that approved the Fourteenth Amendment in June 1866 also voted one month later to extend the life of a government agency set up to provide special aid to newly freed slaves. The Freedmen’s Bureau provided clothing, food, and other necessities to former slaves as well as to white Union sympathizers who had fled the South during the Civil War.
      Congress originally created the bureau in March 1865 with Abraham Lincoln in the White House and the Civil War about to end. As set out in a brief filed by lawyers with the Constitutional Accountability Project, a progressive Washington advocacy group, the law directed the bureau to provide open-ended assistance to the former slaves but aid to “loyal refugees” only to the extent “necessary to enable them . . . to become self-supporting citizens.” The law also authorized the agency to acquire property abandoned in the South for schools for the former slaves.
      Congress originally established the Freedmen’s Bureau for one year. In 1866, with the former southerner Andrew Johnson in the White House, Congress voted to extend the bureau’s life for two years. Johnson vetoed the measure, but Congress overrode the veto in July 1866 by votes of 104-33 in the House and 33-12 in the Senate — substantially more than the two-thirds majority needed.
      Opponents in Congress specifically criticized the preferential treatment for the freed slaves. One member said the law treated the freedmen not as equal but superior, “in opposition to the plain spirit of the Constitution.” In vetoing the bill, Johnson criticized it as “class legislation.” Supporters in Congress answered the criticism by saying the preferential aid was needed to “break down discrimination between whites and blacks.”
      The bureau was hampered by opposition by unreconstructed southerners and was eventually allowed to fade out of existence after 1871 as northerners’ support for reconstruction faded. Opponents of affirmative action today can cite that history to argue that the bureau was viewed as a temporary measure that would no longer be needed once former slaves got on their feet.
      Even at the time, however, some supporters recognized the need for longer term measures. “The effects of ages of slavery are not to be removed in a day, by a mere legislative vote,” the Rev. William Weston Patton, a white abolitionist, said in a speech in 1877 at Howard University, the historically black college established by the Freedmen’s Bureau and named for its first commissioner, Army general Oliver Howard.
      Supporters of Reconstruction could not have imagined the new roadblocks that the country would erect to true equality for African Americans. The federal government turned a blind eye as legal, political, and social barriers went up, in the North as well as in the South. The Supreme Court played its ignominious part by striking down the law prohibiting racial discrimination in public accommodations and upholding racial segregation in public education on the legal fiction of separate but equal.
      The march toward real racial equality resumed with Brown and continued with civil rights legislation in the 1960s and with the growth of affirmative action policies in the 1970s aimed at improving African Americans’ opportunities in higher education.
      Those admissions policies met resistance immediately. Twice, the court has narrowly approved limited consideration of race by state universities: Regents v. Bakke (1978); Grutter v. Bollinger (2003). In casting the decisive vote in Grutter, however, Justice Sandra Day O’Connor voiced the expectation that racial preferences would no longer be needed in another 25 years.
      Impatience is no basis for constitutional adjudication, however. The Roberts Court should carefully consider the role of elite public colleges and universities in the United States today and the actual impact of race-conscious admissions on opportunities for racial and ethnic minorities and on the legitimate goal of student diversity. In weighing that evidence, the justices should recognize that the constitutional insistence on equal protection was not written to prevent the government from enacting policies to break down the barriers to actual equality.

False Speech Does Not a Hate Group Make

      The Supreme Court invoked the spirit of James Madison in 1964 when it established constitutional limits on libel suits in the landmark decision New York Times v. Sullivan. “Some degree of abuse is inseparable from the proper use of everything,” Madison wrote. Citing Madison, the court went on to observe that “erroneous statement is inevitable in free debate” and must be protected if freedom of expression is to have the “breathing space” it needs to survive.
      The court’s bow to false speech bears on the debate last week over the designation of the anti-gay Family Research Council (FRC) as a “hate group” by the self-appointed monitor of hate groups, the Southern Poverty Law Center (SPLC). The Montgomery, Ala.-based legal advocacy group first listed the FRC as a hate group in December 2010. Gay rights advocates have been quick ever since to cite the listing to discredit the FRC’s various anti-gay stands.
      The listing became a topic of national debate last week after a Virginia man who had volunteered at the Washington, D.C., LGBT community center was charged with shooting the security guard at the FRC’s headquarters in downtown Washington [Aug. 15]. Floyd Lee Corkins allegedly shouted, “I don’t like your politics,” immediately before firing at the guard, Leonardo Johnson. Corkins is facing a charge of assault with intent to commit murder; Johnson, wounded once in the arm, is reported to be recovering well.
      Gay rights organizations quickly denounced the shooting. But the next day the council’s president, Tony Perkins, moved to take advantage of the incident by calling a news conference to blame the shooting on the SPLC’s designation of the council as a hate group. “I believe the Southern Poverty Law Center should be held accountable for their reckless use of terminology,” Perkins told reporters.
      The center responded by defending its listing of the council as a hate group based on what senior fellow Mark Potok called the FRC’s “false and denigrating propaganda about LGBT people.” Blaming the center for the shooting was “outrageous,” Potok said. “The FRC and its allies on the religious right are saying, in effect, that offering legitimate and fact-based criticism in a democratic society is tantamount to suggesting that the objects of criticism should be the targets of criminal violence,” he wrote.
      The FRC was one of 13 anti-gay organizations designated as hate groups by the SPLC in an “intelligence report” published in December 2010. The center said the designation was based on the groups’ “propagation of known falsehoods . . . and repeated, groundless name-calling,” not on religious objections to homosexuality. Five anti-gay groups studied were not included in the designation. The designation was controversial from the outset. The FRC responded with a newspaper ad criticizing the listing co-signed by 22 members of Congress, including the then House Speaker-designate John Boehner.
      More broadly, the SPLC’s hate-group monitoring has itself been controversial for many years even as news organizations routinely use it as a source and treat the center’s periodic reports as reliable barometers of hate group activity. One leading critic is Ken Silverstein, Washington editor of Harper’s magazine. Silverstein wrote a stinging critique in 2000 that depicted the hate-group monitoring mainly as “a relentless fund-raising campaign.”
      In a panel discussion a decade later, Silverstein repeated his criticism. The center “has a habit of casually labeling organizations as ‘hate groups,’” Silverstein said in a panel in March 2010 convened by the Center for Immigration Studies after the anti-immigrant group had come under SPLC’s microscope as a hate group. “In doing so,” Silverstein continued, “the SPLC shuts down debate, stifles free speech, and, most of all, raises a pile of money, very little of which is used on behalf of poor people.”
      Today, the SPLC lists 1,018 hate groups active in the United States, identified by name on an interactive map with a short description of the group’s ideology (“racist,” “skinhead,” “black separatist,” “anti-gay,” etc.). For the casual reader or listener, the designation may conjure up pictures of violence and intimidation: cross burnings or worse. But the center’s fine-print definition cautions otherwise: “Listing here does not imply a group advocates or engages in violence or other criminal activity.”
      In fact, the intelligence report on the FRC in December 2010 includes no suggestion that the council advocates or engages in any violence or criminal activity. The 800-word entry says the council has been “a font of anti-gay propaganda” since its founding in 1983. The pastiche of evidence includes what the entry labels as “false accusations linking gay men to pedophilia” made by “senior research fellows” Tim Dailey and Peter Spring in various forums over the years. Also noted were Sprigg’s recent statements that he favored criminalizing homosexual behavior and that the repeal of “don’t ask, don’t tell” would likely result in assaults by gay service members on straights.
      LGBT groups and their straight allies have good reason to find these views offensive. And the center rightly notes that the research claimed to support the anti-gay statements has been discounted or contradicted by mainstream scientific organizations. But the SPLC’s designation of the FRC as a “hate group” does more than register disapproval or disagreement. It seeks to completely delegitimize the organization and exclude it from public debates. In those debates, the Supreme Court tells us, even false speech has a place if freedom of expression is to be preserved.

High Court Looking at Failures of Indigent Defense

      Michael Coles was an overworked public defender in Columbia, Mo., in fall 2007 when he was assigned to represent Galin Frye, then a student at St. Louis Community College, on a charge of driving without a license. The Boone County prosecutor handling the case sent Coles a written offer on Nov. 15 to settle the case, Frye’s third offense, on a guilty plea with either a minimal jail term of 90 days or three years’ probation with 10 days in jail as “shock time.” The prosecutor said the offer would expire on Dec. 28.
      Coles logged the offer in the case file, but never told Frye about it – either by letter or phone call, even though Frye’s address and phone number were in the file. By the time the offer expired, Frye had been stopped again in a different county for the same offense. Eventually, Frye pleaded guilty before a Boone County judge, who sentenced him to three years in prison.
      Once Frye learned of the uncommunicated plea bargain, he filed a petition for postconviction relief based on a violation of his Sixth Amendment right to “effective assistance” of counsel. This year, the Supreme Court agreed that Coles’ representation was “deficient” and sent the case back for the local court to figure out how to remedy the constitutional violation.
      Frye’s case, Missouri v. Frye, was one of four criminal cases that the Supreme Court ordered reopened during the past term after finding “ineffective assistance of counsel” by court-appointed lawyers. In a companion case the same day (March 21), the court gave a Michigan man, Anthony Cooper, a chance to get out of a 15- to 30-year prison sentence for assault with intent to commit murder. Cooper went to trial, the court found, after rejecting a more lenient sentence based on his lawyer’s incorrect reading of state law that he could not be convicted of the most serious charge (Lafler v. Cooper).
      Those two rulings gained front-page attention as the Supreme Court’s first precedents for establishing a general right to effective assistance of counsel in the plea-bargaining process, which is the criminal justice system for most defendants. One day earlier, the court had ruled that an Arizona inmate, Luis Martinez, could raise an ineffective-assistance claim in a federal habeas corpus proceeding after his state court lawyer failed to pursue it (Martinez v. Ryan). And two months earlier the court revived a postconviction proceeding by an Alabama death row inmate, Cory Maples, after finding that his local attorneys and two Wall Street lawyers handling the case pro bono had effectively abandoned him (Maples v. Thomas).
      Together, these decisions provide heartening evidence that the Roberts Court is taking the Sixth Amendment right to counsel more seriously than in the past. But the right established nearly 50 years ago in Gideon v. Wainwright (1963) remains for many criminal defendants more an aspirational goal than actual reality. “Not only do you deserve to have a warm a body, but an effective body,” says Lisa Wayne, a Denver lawyer and immediate past president of the National Association of Criminal Defense Lawyers.
      The past year’s cases illustrate the various problems in indigent defense. Alabama is notorious for providing inadequate representation for indigents in capital cases. As Justice Ruth Bader Ginsburg pointed out in Maples’ case, court-appointed lawyers in capital cases in Alabama are not required to have any experience or special training in death penalty law and are paid a paltry $70 an hour. The legal blunder by the private lawyer in the Michigan case is the kind of mistake that can be seen in courthouses around the country by court-appointed attorneys. Many of these lawyers take on these cases precisely because they lack the training or skills to attract and retain paying clients.
      As for public defender offices, they are underfunded and understaffed in many jurisdictions, including Missouri. As the American Bar Association noted several years ago in its critical report Gideon’s Broken Promise (2004), high caseloads “make[ ] it impossible for even the most industrious of attorneys to deliver effective representation in all cases.”
      The Missouri state public defender’s office has struggled for several years with growing caseloads without corresponding increases in staffing. In the fall of 2008, the state’s Public Defender Commission took a step recommended by the state supreme court and announced that regional offices should decline to accept new cases if their caseloads exceeded recommended levels three months in a row.
      A judge in Springfield challenged the edict in 2010 by assigning the regional public defender a routine burglary case over the office’s objection. Eventually, the defendant pleaded guilty, but the Missouri Supreme Court ruled late last month (July 31) that the judge had exceeded his authority. In a 4-3 decision, the state justices said judges faced with public defender offices stretched beyond their capacity should “triage” their dockets — weeding out the less serious cases one way or another so that public defenders can devote adequate resources to the remaining cases.
      Coles has left the public defender’s office. To the system’s credit, another public defender, Emmett Queener, took over Frye’s case and successfully argued in Frye’s behalf before the Supreme Court. As with the other Supreme Court decisions, however, the result is a Band-Aid solution that leaves the fundamental problem of indigent criminal defense unsolved.

Nation Likely to Take Latest Mass Shooting in Stride

      Barely two weeks after James Holmes’s deadly rampage at the Aurora, Colorado, movie theater, the United States experienced another mass shooting on Sunday (Aug. 5): this one, at the unlikely site of a Sikh temple in a Milwaukee suburb. The casualty count: six victims killed, plus the presumed shooter, fatally wounded after he fired on police; three others were wounded.
      The shooter was identified on Monday as Wade Michael Page, an Army veteran reportedly with a decade-long history in white supremacist organizations. Page might have mistakenly directed hatred of Muslims toward the turban-wearing Sikhs, or he might have been an all-purpose racist. Whatever his motive, this much can be said with confidence: the shooting will have no appreciable effect, if any, on the regulation of firearms in the United States, nationally or at the state or local level.
      A political system capable of responding to current events certainly would have devoted more attention than it did to Holmes’s ghoulish July 20 attack on a post-midnight showing of the latest Batman movie, The Dark Knight Rises. Dressed in body armor and his hair dyed orange, the self-proclaimed “Joker” sprayed a crowded theater with gunfire from an assault rifle, killing 12 and wounding 58 others.
      Holmes used an AR-15 rifle outfitted with a high-capacity drum magazine in the shooting. The federal ban on assault weapons enacted in 1994 prohibited the manufacture of both items, but Congress allowed the law to “sunset” a decade later, in 2004. In the months before the shooting, Holmes also legally acquired other weapons, two pistols and a shotgun, and thousands of rounds of ammunition, according to police.
      Throughout the country, Americans reacted to the unspeakable tragedy with shock and grief — but not the country’s political leaders. White House press secretary Jay Carney initially brushed off any suggestion to reconsider federal gun laws. A few days later, President Obama went so far as to tell the Urban League on July 25 that he believes most gun owners would support a ban on private possession of assault weapons. But Obama stopped short of actually saying Congress should consider such a measure.
      Presumptive Republican presidential nominee Mitt Romney managed to be even less useful in furthering debate on the issues. Speaking on the same day as Obama, Romney dismissed the need for new gun control laws based on the mistaken understanding that Holmes had acquired the weapons illegally. “It was illegal for him to have many of those things already. But he had them," Romney told NBC News in an interview.
      Romney turned aside Brian Williams’ question whether he stood by his position as governor of Massachusetts in signing an assault weapons ban into law. Instead of new laws, Romney prescribed “changing the heart of the American people.”
      A few days later, Supreme Court Justice Antonin Scalia added a few comments to the discussion by recognizing, in an interview on Fox News Sunday, that the recently recognized individual right to possess firearms still permits “reasonable” limitations on gun ownership and carriage. But Scalia could not resist musing out loud whether the Second Amendment might allow hand-held rocket launchers as a weapon of self-defense.
      Once the 24/7 news cycle had digested Scalia’s remarks, the nation was ready to move on to other issues, chiefly the economy, and to other amusements: the Olympics and the political horse race. Admittedly, the political calendar is not conducive to serious legislating. Congress has just started a month-long recess for the political conventions, and the nation faces a potential cliffhanger of a presidential election in November.
      In addition, mass shootings, as much as they may seize the nation’s attention, are not ideal vehicles for changing public policy. “Mass killers are determined, deliberate and dead-set on murder,” James Alan Fox, a law professor at Northeastern University, wrote in a commentary on CNN.com after the Aurora shooting. Stronger gun control laws will not deter the mass killer, Fox said, even though he added in a postscript that he supports “certain reasonable gun restrictions.”
      The assault weapons ban would seem to pass this test. Military-style rifles equipped with high-capacity magazines seem ill suited for self-defense in the home or for sport at the shooting range or in field or forest. The Brady Campaign to Prevent Gun Violence has compiled a 90-page list of shootings since 2004 with confirmed or suspected use of assault weapons. Some ended with no or minimal injuries, and many perhaps would have been no more dangerous if less lethal weapons had been used. In many of the instances, however, the use of once-banned assault weapons added to the casualty count.
      Americans seemingly agree. In a Time poll in June 2011, 62 percent of those surveyed said they favored a ban on semiautomatic rifles except for the military and police compared to 35 percent who said instead that “more” should be done to protect rights of gun owners. In the same poll, a majority — 51 percent — said they favored making gun laws “stricter.” Only 7 percent wanted gun laws to be “less strict.” Surely, a quickie poll in the wake of Aurora would spike higher for stronger gun laws.
      The United States has the dubious position of leading industrialized countries in firearm deaths. A new ad by big-city mayors, aired during the Olympics on Sunday, warned that 48,000 Americans will be murdered by guns during the next president’s four-year term. But nothing in the two weeks since Aurora suggests that either of the presidential candidates is eager to address the issue.