Books in the Law
Logic: Exploding the Myths That Paralyze American Gun Policy
Review By Ronald Goldfarb
How can it be that despite national polls consistently documenting a large majority of the American public as being in favor of gun controls, escalating data describing an intolerable amount of gun violence, and daily news reports about innocent children and other American citizens killed or maimed by crazed gunmen, our country continues on its path of treating the right to have guns sacrosanct? In a 2005 Gallup poll, 35 percent of American households reported owning a gun. In Lethal Logic, Dennis A. Henigan, a veteran Brady Center to Prevent Gun Violence attorney and vice president, attributes this historic phenomenon to the ability of the National Rifle Association (NRA), the powerful lobby, to proselytize its three-pronged mantra: “Guns don’t kill people; people kill people;” “When guns are outlawed, only outlaws will have guns;” and “An armed society is a polite society.”
One by one, Henigan analyzes these three slogans, describing them to be deadly effective but fallacious bumper sticker philosophy. That guns are morally neutral and only dangerous because of people ignores our experiences with laws involving comparable products—alcohol, cars, and drugs. Like guns, these three products are dangerous in the hands of irresponsible people. We have laws controlling the use of alcohol, drugs, and cars (their effectiveness is another subject) despite having had to recognize that outright prohibition (of alcohol and drugs) does not work. But regulation is not the same as an outright ban.
Studies demonstrate the uniqueness of guns as enablers of fatal violence at far greater levels than, say, knives or poison. Henigan reminds readers that two members of The Beatles were attacked—John Lennon was shot and died; George Harrison was stabbed and survived. He quotes columnist Molly Ivins’ wry remark that “people are seldom killed while cleaning their knives,” and a social scientist’s clever logic that if people and not guns kill, why give people guns when they go to war? Henigan’s conclusion: Guns have the unique capacity for causing mortality. He compares crime data of the United States with that of other countries, demonstrating that crime is universal, but ours is more deadly.
What about the NRA’s second claim that if guns were outlawed, good citizens would obey and be disarmed, but criminals would still have guns? Henigan counters that this argument is a shell game. First, banning guns is not the goal of most gun control advocates. Background checks, tough licensing and registration regulations, manufacturing regulation, documentation requirements, and control on sales, storage, and possession all are not inconsistent with the possession of guns.
The other part of this argument is that because criminals do not obey laws, therefore laws are useless. But the claim that gun control laws are futile would lead to eliminating all criminal laws for the same reason—murderers murder so why make murder a crime?—a result no intelligent person would propose.
Henigan includes studies demonstrating that weak gun control laws lead to an active interstate market for illegal use, and undercut the effectiveness of strong gun control laws in other states. This data supports the case for interstate laws such as those governing pollution, which by its nature also cannot be left to individual states. “Our gun laws are a hodgepodge, full of unexplainable gaps and bizarre distinctions,” Henigan concludes. This creates a Catch-22 of controls.
There is a federal law precedent. Henigan points out that the National Firearms Act of 1934 taxing machine guns, silencers, and other weapons preferred by outlaws was effective, suggesting that handgun control would be, too. Notably, that law did not lead to a “slippery slope” of banishing or confiscating machine guns in the 75 years since its enactment.
A central point Henigan makes is that “[m]ost gunshot deaths in America are inflicted with guns owned by law abiding citizens,” not professional criminals. While guns are the weapon of choice in homicides, suicides and accidents are the major causes of gun deaths. There are more gun-related suicides each year than homicides— approximately 12,000 homicides against 17,000 suicide deaths. And more so in rural states with weak gun control laws. Suicide is an impulsive act that could be reduced by requiring waiting periods on gun sales. Henigan cites the “dramatic drop in auto deaths,” following changed policies that led to requirements for safety features in cars, as evidence that unintentional shootings could be curbed by the manufacture of safer guns. These surprising data demonstrate that slogan No. 2 is a myth.
The NRA claims that any controls will start us on a slippery slope, leading to a ban on all weapons. The essential fact is that controls are not the same as bans. The slippery slope argument requires proving a negative that is impossible to counter rationally. To argue that waiting periods, background checks, licensing, safety training, registration of sales, consumer safety standards, and curbs on large volume sales would inevitably lead to outright bans and, thus, are unacceptable precedents is speculative if not specious. The argument is as logical as saying controls on assault weapons would lead to a ban on rifles for duck hunting. Henigan contends that this is a paranoid argument, that guns have become a core religious tenet tied to human liberty. Take my gun “from my cold, dead hands…,” the late actor and NRA president Charlton Heston intoned in 2000, a declaration NRAers still echo. The argument that to concede any control over gun use will lead to total controls over people by the state defies proof. Incremental reform exists in countless other situations; regulations in tobacco and alcohol are examples. There, as with guns, Henigan admits the country is not prepared to condone outright bans, though it is in favor of controls. Indeed, an outright gun ban is now foreclosed by the U.S. Supreme Court’s recent decision in District of Columbia v. Heller.
The third slogan suggests that self-defense makes society safer, and that guns deter crime. If that is so, Henigan asks, why does our extraordinarily armed society have such a highly violent, lethal crime rate? Why does society regulate possession of guns for safety reasons (such as in airports, churches, government buildings, and schools) if guns make places safer? “The greater our fear of violence,” Henigan writes, “the greater our efforts to exclude guns.”
Henigan includes data from university studies showing that gun crimes exceeded self-protective use of guns 10 to 1 in one report, and between 4 and 6 to 1 in another. Henigan’s data demonstrates that “just as gun-owning nations are not more polite, and gun-owning states are not more polite, neither are gun-owning households.” The policy of fighting crime through a proliferation of guns as gun enthusiasts advocate, now that is a slippery slope.
Having participated in some of the litigation against gun manufacturers, Henigan’s observations are instructive. In defending various product liability claims against manufacturers, the defense has been to blame the customers (is Budweiser responsible for drunk drivers?), criticize the plaintiff’s lawyers, and argue that courts should not legislate. But in the absence of legislation or administrative regulation, courts have the historic right to determine if manufacturers are failing in their duty to provide safe products. Are accidents foreseeable, given what is known about the unsafe features of guns that are curable at negligible costs? Is there a duty to avoid sales to known criminal markets? Sixty percent of guns used in crimes originate from 1 percent of licensed gun dealers. Henigan’s experiences are edifying, as is the sad history of one company’s (Smith & Wesson) efforts to take preventive measures, only to be ostracized by the industry.
The Second Amendment of the U.S. Constitution states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” While opinions about the meaning of those words differ, passionately, the Supreme Court historically had interpreted the clause four times—in 1875, 1886, 1894, and 1939. In each case, the Court concluded that the amendment pertained to militia service and restricted acts of the federal government, but does not give all people the right to own guns. The amendment was written to give state militias the right to arm their citizens to protect their political sovereignty. At present, 40 states also have right to bear arms laws.
In 2007 the Supreme Court again addressed the Second Amendment question in Heller. The Court ruled 5–4 that the Second Amendment protects the people’s right to possess firearms for lawful purposes, free from any bans by federal—not state or local—laws. (The Supreme Court is reviewing a follow-up case, which deals with the application of the Amendment to state and local laws.) But that right is not unlimited, the Court added. It is not a right to carry any weapon whatsoever and for whatever purpose. The Court specifically noted that its opinion should not be interpreted as permitting guns to mentally ill people or felons, or in sensitive places such as government buildings and schools, or as limiting states’ rights to control the commercial sale of arms. We can expect years of test cases questioning which limitations are and are not permitted. Henigan’s partisan but analytical book should help courts and legislators define what those limitations ought to be.
When I was an officer in the U.S. Air Force Judge Advocate General, my first major trial involved two young men, friends, who were assigned all-night guard duty at the entrance to an isolated aircraft control and warning base in northern Wisconsin. To avoid the boredom, they played “slap leather.” They cleared their weapons and imitated cowboys drawing their guns from their holsters, seeing who could do it faster. My client was faster. But he made a fatal mistake—one bullet remained in the chamber of his weapon, and when he pulled the trigger he killed his friend. When one plays with guns, accidents can be fatal. That is the unique feature of handguns, and all the emotional clichés are deceptions. Henigan calls it lethal logic.
Henigan’s book will never persuade gun advocates, the cogency of his arguments notwithstanding. Gun ownership, like other emotional issues such as abortion, capital punishment, and school prayer, has defied civil discourse and rational debate. The NRA opposes a new crime prevention technology called microstamping—putting traceable, microscopic engravings on bullets—as a way to trace crimes, viewing it as a scheme of ammunition registration. It opposed a U.S. Government Accountability Office recommendation in 2005 to add known and suspected terrorists to the list of people forbidden by law from buying guns. It provocatively criticizes the Bureau of Alcohol, Tobacco, Firearms and Explosives, the government’s law enforcement agency in this field, for its aggressive enforcement of firearms laws.
The essential facts are that the majority of Americans believe there is a right to bear arms and that gun controls are proper. The book Henigan—or someone—should write is one that would help us understand the emotional, psychic, primal, and passionate defiance that gun control generates. Or is it just that money and politics prevail in battles over responsible public policy?
Ronald Goldfarb is a Washington, D.C., attorney, author, and literary agent whose reviews appear regularly in Washington Lawyer. E-mail firstname.lastname@example.org.
the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme
Review By Leonard H. Becker
In his new book, Packing the Court, James MacGregor Burns, the eminent historian, sketches a political biography of the U.S. Supreme Court and advances a proposal to nullify the Court’s power of judicial review—that is, the Court’s authority to render final judgment on the constitutionality of federal laws. Burns doesn’t question that the Founding Fathers intended the Constitution to outrank inconsistent federal and state law—the Supremacy Clause says as much. Rather, he argues that the Constitution nowhere prescribes that the Court should have the final say on the constitutionality of statutes enacted by Congress and signed into law by the president. Burns says it is time to put a stop to the Court’s usurpation of that authority. (The teaser in the book’s subtitle about the “coming crisis” may be disregarded; the author does not forecast future crises any more frequent or severe than those the Republic has endured to date at the hands of the Court.)
Burns’ history of the Court is well and truly narrated, but his account is neither new nor particularly insightful. In his description of modern times, Burns praises the Warren Court’s leadership in promoting socially desirable objectives—racial desegregation in public institutions, enhanced procedural protections for criminal defendants, heightened vigilance against the introduction of sectarian religious practices in the public schools, and reapportionment of state legislatures. He faults the Rehnquist and Roberts Courts for whittling away at the Warren Court’s landmark rulings, and he is outspoken in his criticism of Bush v. Gore, which he characterizes as a “nakedly partisan decision.”
The term “court-packing” is associated with President Franklin D. Roosevelt’s ill-fated proposal to add one justice to the Supreme Court (and one judge to each lower federal court) for each justice (or judge) who failed to retire within six months of attaining the age of 70. (If Congress had adopted FDR’s proposal as he initially presented it, he would have been empowered immediately to add six justices to the Supreme Court.) Burns uses “packing” more broadly to suggest that every president, starting with George Washington, has nominated candidates to the Court deemed “safe” in the sense that they might be expected to support the policies of their nominator. (Washington, as the first president, named 11 justices—once to fill the Court at its inception and then, over its first eight years, virtually to replenish the entire bench; the next most prolific president in the nomination sweepstakes was FDR, who named nine justices—all of them in his second and third terms.)
When one combines Court-packing, as Burns defines it, with the constitutional provision for life tenure, the result, according to Burns, is a “judicial roulette” in which any given president’s authority to make appointments to the Court must await the sitting justices’ deaths or retirements. (According to the table provided at the back of Burns’ book, one-third of the justices who have served on the Court since its inception have gone out feet first.) Meanwhile, Burns argues, as the years go by and the justices age, their outlooks remain rooted in a past that recedes further and further from the times in which the judges now serve, leaving them more and more disinclined—or unable—to grasp the social and economic realities that inform the decisions of the executive and legislative branches of the federal government. (It merits comment, perhaps, that Burns himself turned 91 this year.)
Burns’ proposed solution does not entail a resurrection of Roosevelt’s “old guy” plan or a prescribed term of years for active Court membership. (The former appears foreclosed by the failure of FDR’s effort; the latter would require a formal constitutional amendment.) Nor does Burns favor a repeat of the Reconstruction Congress’ tactic of shrinking the membership of the Court to deny appointments to President Andrew Johnson or expanding it to enable President Ulysses S. Grant to add two justices—who, among other things, joined in the reversal of an earlier decision that had outlawed a “greenback” currency not backed by gold reserves.
Rather, Burns suggests, a future president confronted by the Court’s invalidation of key legislative enactments on constitutional grounds should declare that he or she will not abide by the Court’s decisions because its assertion of the power of judicial review—the final say on whether a given federal statute is consistent with the Constitution—has no grounding in that instrument. The president, Burns says, should invite proponents of such judicial power to advance a formal amendment to the Constitution to achieve their objective, thereby turning the tables on those who favor judicial supremacy.
Undoubtedly, Burns’ description of the game of judicial roulette and its evil consequences aptly captures certain periods in the nation’s history. In particular, Burns hits the mark when he revisits the constitutional crisis triggered in the 1930s by the “Nine Old Men” of the Supreme Court—or, more accurately, the five or six of them who, looking as though they had stepped out of a Civil War daguerreotype, repeatedly invalidated key New Deal legislation, without any of the justices having the courtesy to die or retire during Roosevelt’s first four years in the White House.
Still, there is much to question in the premises underlying Burns’ proposal and much to dislike in the proposal itself. For a start, Burns’ roulette theory, in which justices outlive their times, does not account for young fogies and old Turks. Putting the present Court aside, one need consider only that when FDR advanced his packing plan as an ostensible remedy for the overpopulation of doddering judges, one of the ablest, most acute minds on the Court was that of Louis Brandeis, who was 80 at the time. (Brandeis was personally wounded by FDR’s insinuation that by virtue of his advanced years, the justice somehow had lost the capacity to serve properly on the Court.) Experience suggests that age alone is not an accurate guide to a given judge’s tendency to hew to a reactionary outlook.
As for Burns’ proposed “presidential nullification” of disfavored Supreme Court holdings, a moment’s reflection will suggest a few instances in which a president effectively followed Burns’ advice avant la lettre, but not to that president’s credit. When the Marshall Court held in 1832 that the State of Georgia could not constitutionally legislate in defiance of the federal government’s treaty obligations to the Cherokee nation, President Andrew Jackson refused to implement the ruling, reportedly remarking: “John Marshall has made his decision; now let him enforce it.” (Burns notes this episode.) A closer case, but one that remains controversial (also noted by Burns), arose at the outset of the Civil War, when President Abraham Lincoln essentially ignored an order of Chief Justice Taney, sitting as circuit judge in Maryland, directing that the military commander at Fort McHenry produce John Merriman, a secessionist arrested by Union troops after Lincoln, acting without congressional authority, suspended the writ of habeas corpus in that state.
None of these scenarios seems implausible under Burns’ proposal; each of them suggests outcomes far worse than those visited upon us by the Court’s exercise of judicial review. In effect, the power to declare federal laws valid or not would shift from the judiciary to the executive. In such circumstances, the justices might refuse to rule in the first place, relying on the so-called Muskrat doctrine that arises from the judicial abhorrence of advisory opinions. Burns does not discuss where the law would stand in such circumstances, or how such developments would resolve themselves short of presidential dictatorship or impeachment—a truly unattractive set of choices.
Two troublesome aspects of the current process of judicial nominations and confirmations to the Supreme Court merit greater attention than Burns has given them. The first is the practice of both Democratic and Republican presidents to look to the appellate courts for “safe” candidates for the Supreme Court—candidates with track records that narrow, if they do not eliminate, any reason to question how the nominees will vote once they sit on the Court. The current result is a Court composed entirely of former appellate judges and a corresponding lack of diversity in professional background. By contrast, FDR’s appointees included a United States Senator, an administrative agency head, an academic, and an attorney general.
The second problem is the deterioration of the confirmation process into a Kabuki theater, in which senators put questions to the judicial nominee that both the senators and the nominee know she will not answer. Perhaps the Senate would do well to dispense with the public confirmation hearings altogether. It is worth recalling that well into the 20th century, the Senate Judiciary Committee did not hold public hearings to consider a president’s nominations to the Court, and the nominees often did not appear before the committee. The confirmation hearing for William O. Douglas took place four days after President Roosevelt nominated him and lasted all of five minutes.
Burns urges that the present system of judicial review, augmented by judicial roulette, is seriously flawed, and perhaps it is. Bad as it may be, however, the present arrangement beats the other options. It certainly looks better than the alternative proposed by Burns. We have lived with life tenure for federal judges since the adoption of the Constitution, and with judicial review since Marbury v. Madison. Neither of them is going away any time soon. Burns would do well to get over it.
Leonard Becker served as District of Columbia Bar Counsel from 1992 to 1999 and as general counsel in the Office of Mayor Anthony A. Williams from 2003 through 2006. He resides in Washington, D.C. E–mail email@example.com.
Review By Patrick Anderson
The 1960s ended 40 years ago. How shall we remember that traumatic decade? I was a young man in Washington then, and my public memories include the excitement of John F. Kennedy’s presidency, followed by assassinations, antiwar marches, disillusionment, and the return of Richard M. Nixon at decade’s end. But our memories in Washington tend to be specialized, political, and vastly different from those of our fellow citizens elsewhere. To millions who were young in the ’60s, the decade can be summed up in one immortal phrase: sex, drugs, and rock ‘n’ roll. In terms of popular culture, my ’60s memories center on songs by Bob Dylan and the Grateful Dead; books such as Hunter S. Thompson’s Fear and Loathing in Las Vegas and Tom Wolfe’s The Electric Kool-Aid Acid Test; movies such as Woodstock and The Big Lebowski (made later, but pure ’60s in spirit); and the art of R. Crumb.
Now comes legendary novelist Thomas Pynchon, at age 72, with a brilliant, psychedelic vision of the ’60s, as embodied in the adventures of his “hippie pothead freak” named Larry “Doc” Sportello who functions as a private investigator in fictional Gordita Beach, south of Los Angeles. Pynchon has built a reputation as an immensely talented but difficult writer (a woman once told me she had been trying for 30 years to finish Gravity’s Rainbow), so it is a pleasure to report that Inherent Vice is the most accessible of his novels. If you scorn hippies and marijuana, you may throw the book aside in disgust, but if you view them sympathetically, you will almost certainly find it delightful.
In some ways Inherent Vice recalls Raymond Chandler’s novels, which also feature a Los Angeles-area private eye, only here the dope-smoking Doc Sportello updates Chandler’s booze-guzzling Philip Marlowe. Both Chandler and Pynchon are given to complex, at times incomprehensible, plots. And both men, when so inclined, can write gorgeous lyrical prose. If Doc’s stoned misadventures are often laugh-out-loud funny, Pynchon’s descriptive passages are often read-out-loud beautiful. It is a combination one does not often come across.
As the novel opens in classic private eye tradition, one of Doc’s ex-girlfriends, an actress named Shasta Fey Hepworth, comes to him for help. She has been having an affair with a real estate tycoon, and she fears the tycoon’s wife intends to do him harm. Soon, both Shasta and the tycoon vanish. Doc’s inquiries soon lead him to the murder of an ex-con skinhead Nazi who was one of the tycoon’s bodyguards; he also finds himself snooping into the affairs of a shadowy group called the Golden Fang, which may be smuggling tons of heroin into the United States. Doc’s bête noire is a crooked detective called Lieutenant “Bigfoot” Bjornsen (“named for his entry method of choice,” Pynchon writes), who alternatively threatens Doc and purports to be his friend. My only complaint about the novel is that its plot vanishes from time to time, rather like a smoker’s train of thought. It is best not to worry too much about the plot; the novel’s joys are mostly in its digressions, descriptions, and zonked-out humor.
Pynchon paints wildly inventive word-portraits of the strange characters who cross Doc’s path. Here, for example, he greets a new client named Trillium Fortnight:
Ms. Fortnight aside, Doc’s love life centers around a comely assistant district attorney named Penny Kimball (“… nice flatland chick, out in search of secret hippie love thrills,” Doc notes) who shares his fondness for weed. It must be said that Doc, although he employs a lawyer who is as stoned as he is, does not think much of the profession. Even Penny, his partner in sex and drugs, is not to be trusted: “Penny knew more about this case than she was telling Doc,” Pynchon writes. “He had seen enough of that shifty way legals had of holding back information—lawyers taught it to each other, attended weekend seminars out in motels in La Puente just to work on greasiness skills.”
Inevitably, as we read about Doc, we explore doper lore. For example, an urban myth emerged in the ’60s that banana peels, if smoked, would provide a powerful and legal high. Pynchon conjures up a frozen-banana shop called Kozmik Banana, which processes banana peels into “a powdery black substance they wrapped in plastic bags to sell to the deluded and desperate.” He continues: “Some who smoked it reported psychedelic journeys to other places and times. Others came down with horrible nose, throat, and lung symptoms that lasted for weeks.”
Politics does not figure much in Inherent Vice. Once, Doc imagines seeing President Nixon on television declaring, “There will always be the whiners and complainers who’ll say, this is Fascism. Well, fellow Americans, if it’s Fascism for Freedom? I … can … dig it!”
Henry Kissinger is glimpsed on the Today show, growling, “Vell, den, ve schould chust bombp dem, schouldn’t ve?” The war in Vietnam, too, remains in the distance, a nightmare best ignored. Doc is aware that a lot of drugs and body bags are returning from Vietnam, but that is a nightmare best ignored or considered, if at all, through a cloud of marijuana smoke.
Many adventures come his way, most of them hilarious. One day, desperate to find drugs, he consults a Ouija board, which leads him instead to the headquarters of the mysterious Golden Fang. There, he encounters a drug-crazed heiress named Japonica Fenway who takes him on a perilous ride out on Sunset Boulevard, during which she runs red lights and refuses to turn on the headlights, although it is nighttime. When the police stop them, she sweetly asks the officer, “Are you the Great Beast?”
Doc survives an acid trip during which he was convinced he lives on a distant planet whose scientists one day tell him that “they’d just invented intergalactic time travel and that he was about to be sent across the universe and maybe three billion years into the future” to a planet called Earth. He ponders the lost continent of Lemuria—“the Atlantis of the Pacific”—and muses on the mysteries of religion: “What was ‘walking on water’ if it wasn’t Bible talk for surfing?” Throughout, Doc admits to serious memory problems: “About the time he was ready to transfer the roach to a roach clip, the phone rang again and he had one of those brief lapses where you forget how to pick up the receiver.”
In one choice scene, his friend Denis drops a lit joint into his bedclothes and wanders off to take a shower, whereupon:
As the saying goes, if you claim to remember the ’60s, you really weren’t there at all.
So what is Pynchon up to in this long, strange trip of a novel? Clearly he is having fun, but I think he is making a statement, too. Pynchon offers a clue to his intentions when he has Doc reflect on the mad fantasia of his life and finds himself
caught in a low-level bummer he couldn’t find a way out of, about how the Psychedelic Sixties, this little parenthesis of light, might close after all, and all be lost, taken back into darkness . . . how a certain hand might reach terribly out of darkness and reclaim the time, easy as taking a joint from a doper and stubbing it out for good.
I take this novel as Pynchon’s attempt to see that the ’60s—his ’60s—“this little parenthesis of light,” when he was young and probably very happy, neither vanishes into darkness nor is trashed by writers who scorn the counterculture he celebrates here with such affection. Inherent Vice is great entertainment, but it is also Pynchon making clear that, at a moment when America entered a vast cultural divide, with Doc and his friends on one side and the Nixons and Kissingers on the other, he was with those who made love, not the ones who made war.
Patrick Anderson was a writer in the Kennedy, Johnson, and Clinton administrations and was Jimmy Carter’s chief speechwriter during the 1976 presidential campaign. He has published nine novels and four books of nonfiction, and he has written more book reviews than he can remember, mostly for The Washington Post.