THE RADICAL, REACTIONARY, TOTALLY POLITICAL SUPREME COURT

Note: If you find my posts too long or too dense to read on occasion, please just read the bolded portions. They present the key points I’m making and the most important information I’m sharing.

The Supreme Court’s rulings last week on abortion, a gun violence prevention measure, and public funding of religious institutions reflect a political and ideological agenda, not a coherent legal or judicial philosophy, as I will discuss below. All of them overturned long-standing precedents – something all of the justices had pledged not to do in their confirmation hearings. There are three important areas where the contradictory nature of the reasoning underlying these rulings is most evident:

Belief in a weak federal government and strong state governments,
Belief in “originalism,” i.e., that the language and meaning of the Constitution and its amendments as and when written should be adhered to, and
Belief in the legality of precedents and rights unspecified in the Constitution only if they reflect long-standing practices in the country.

In this post, I’ll explore the belief in a weak federal government and strong state governments as a rationale for the justices’ rulings and demonstrate their inconsistent and contradictory use it. I’ll cover the other rationales in subsequent posts.

Conservatives have traditionally supported a weak federal government and strong state governments. However, for the six justices in the majority in each of these recent rulings their commitment to this belief seems to depend on the issue.

There are two main pillars behind the weak federal and strong state government position. One is support for “states’ rights;” leaving as much of the public sector role and policy making to lower levels of government that are closer to the grassroots. Having control of schools and elections in local and state hands are two bedrock conservative examples of this. The exercise of “states’ rights” has, both historically and currently, reflected racism. Racism was an important component of “states’ rights” politics in the 1960s as it was pushback against federal Civil Rights laws, including voting rights and school desegregation.

The second pillar of conservative support for a weak federal government is opposition to regulation of businesses and the private sector. Conservatives typically believe that an economy that is as unfettered by government regulation as possible will be the most productive (if not necessarily the fairest). They also typically believe in market place and private sector solutions to social issues (e.g., privatization), not government programs as solutions.

In the June 24, 2022, ruling overturning Roe v. Wade’s establishment of a right to an abortion, the Supreme Court ruled that the federal government could not constitutionally guarantee this right. On the face of it, this reflects a belief in a weak federal government and a “states’ rights” approach where policies on abortion would be left to state governments. However, Alito’s opinion seems to go out of its way to ensure that anti-abortion advocates could pursue a nationwide, federal ban on abortion (i.e., a strong federal government role) by repeatedly writing that the abortion debate is being returned “to the people and their elected representatives.” He does not write that the decision is being returned to the states. The implication is that those “elected representatives” could be those in Congress. Therefore, within this one decision and opinion, Alito and the five other concurring justices are at best unclear and at worst contradictory about whether they believe the Constitution creates a strong or weak federal government in relation to the states, at least in realm of abortion law. [1]

The Supreme Court’s June 23, 2022, decision declaring unconstitutional New York State’s requirements for obtaining a permit to carry a gun in public is an assertion of a strong federal government with the power to overrule states’ laws regulating guns. The Court is furthering federal enforcement of an individual “right” to bear arms based on its interpretation of the Second Amendment. (I discussed the problems with their interpretation of the Second Amendment in this previous post and won’t go into them here.) This ruling overturns a state law that has been in place for over 100 years and effectively renders any state law restricting ownership or carrying of a gun presumptively unconstitutional. The ruling, among other problems, seems to ignore the language of the Second Amendment that the right to bear arms is predicated on “being necessary for the security of a free State.” A state and the people living in it are neither more secure nor freer with an expanded “right” of individuals to carrying guns in public. [2]

On June 21, 2022, the Supreme Court issued a ruling ordering the state of Maine to allow public dollars to pay for children’s attendance at religious schools. Putting aside for the moment the First Amendment language that prohibits the government from making any “law respecting an establishment of religion” (as the six deciding justices apparently did), this ruling reflects a belief in a strong federal government that can tell states how to spend their money. This is the antithesis of “states’ rights” and a weak federal government, which conservatives typically support. This follows a pattern of decisions where the Supreme Court has overturned decades-old, affirmed precedents and ordered state or local governments to take actions that benefit or support religious groups. In Missouri, the Court ordered the state to include religious organizations in a program funding playground maintenance. In Montana, it ordered the state to include religious schools in a scholarship tax credit. It ordered Boston to include Christian groups in a program allowing non-profit organizations to fly a flag on a city flagpole. [3] Most recently, it ruled that a Washington state school district had to allow a football coach to lead players and others in prayer on the football field, despite students reporting that they felt coerced. [4] (I wonder how the Court would rule if the religious group asking for government support were Jewish, Muslim, or some other non-Christian religion. We may find out one of these days.)

One final note. Election laws and the running of elections (along with schools) have been hallmarks of conservatives’ insistence on state responsibility and control with no or very limited federal government involvement. In recent years, the Supreme Court has overturned the Voting Rights Act, stopping federal oversight of election laws in states that had (and have) a history of discriminating against Black voters. It has refused to intervene as states have engaged in voter suppression and extreme gerrymandering with political and racial goals. However, back in 2000, the Supreme Court stepped into the presidential election in Florida (in Bush v. Gore) and ordered the state to stop counting ballots. The dissenting justices and many others identified this decision as a turning point when the “conservative” justices on the Court first displayed in a dramatic way their willingness to cast aside any coherent judicial philosophy or reasoning, upend precedent, and issue a ruling to achieve the political result they personally supported.

The recent rulings by these six Supreme Court justices (Roberts, Alito, Barrett, Gorsuch, Kavanaugh, and Thomas) are clearly political and ideological, if for no other reason than the judicial philosophy and reasoning behind them is inconsistent and contradictory. Given the lack of a coherent judicial philosophy or reasoning, the only rational conclusion I can come to, is that these justices are acting on the basis of their personal political and ideological beliefs and sympathies, and not as judges upholding the laws established by the legislative and executive branches of government. Rather, they are dramatically legislating from the bench; something conservatives used to criticize others for doing. They are radical reactionaries, not conservatives. (See this previous post for more detail on why this is appropriate terminology for describing them.)

In my next posts, I will review the six radical, reactionary Supreme Court justices’ contradictory and inconsistent uses of their supposed beliefs in “originalism” and in the legality of precedents and rights unspecified in the Constitution only if they reflect long-standing practices in the country.

In the meantime, Heather Cox Richardson has posted a 33-minute reflection on the state of our (supposed) democracy after the recent momentous and anti-democratic decisions by the Supreme Court. Her commentary and perspective are, as always, thoughtful, poignant, and steeped in history. I encourage you to listen to all or part of it (perhaps the last ten minutes if you’re short on time). I’ve linked to it on my Facebook page: https://www.facebook.com/john.lippitt.161/

[1] Hubbell, R., 5/4/22, “The hard path forward,” Today’s Edition Newsletter (https://roberthubbell.substack.com/p/the-hard-path-forward)

[2] Johnson, J., 6/23/22, “ ‘Devastating’: Supreme Court blows massive hole in state gun control efforts,” Common Dreams (https://www.commondreams.org/news/2022/06/23/devastating-supreme-court-blows-massive-hole-state-gun-control-efforts)

[3] Atkins Stohr, K., 6/22/22, “Remember separation of church and state? Apparently the Supreme Court doesn’t.” The Boston Globe

[4] Conley, J., 6/27/22, “Supreme Court takes ‘wrecking ball’ to separation of church and state with prayer ruling,” Common Dreams (https://www.commondreams.org/news/2022/06/27/supreme-court-takes-wrecking-ball-separation-church-and-state-prayer-ruling)

THE POWER OF THE GUN INDUSTRY

The gun industry has a powerful influence on policy making in the US as well as in shaping judicial rulings on gun laws and the discussion of guns and gun violence.

Part of the gun industry’s power and influence comes from its size and its ability and willingness to spend on political campaigns and lobbying. It produces roughly 10 million guns per year, resulting in sales revenue of about $12 billion. With profits of approximately $1 billion annually, it has spent $120 million on lobbying over the last ten years. In the two-year 2020 election cycle, the advocacy groups associated with the gun industry spent over $18 million on election campaigns. While the National Rifle Association (NRA) was the source of $5 million of this spending, it has been declining in membership and financial clout. However, other gun advocacy groups have been picking up much of the slack. [1]

For example, the organization Gun Owners of America has been increasing its activity. It opposes the U.S. House passed Protect Our Kids Act as well as the emerging bipartisan Senate proposal to address gun violence. It has “concern” about expanded waiting periods on gun purchases and red flag laws that would allow courts to remove guns from people deemed to be a danger to themselves or others. It opposes the proposal to ban untraceable “ghost” guns and is spreading misinformation about what it would do. [2]

Another piece of the gun industry’s power comes from its shaping of the discussion of guns and the Second Amendment. It has shifted the discussion from a well-regulated militia, e.g., the National Guard, to an individual right to ownership of any and all types of guns. It also shifted the discussion from the security of the state to personal self-defense. (See this previous post for more detail.) This shift in language, especially to an individual’s supposed right to own a gun (including a semi-automatic assault weapon), is pervasive in the media, widespread in the court system, and even echoed by Democrats and President Biden.

The 2008 Supreme Court’s 5 to 4 decision that created an individual right to possess a firearm, District of Columbia vs. Heller, overturned 217 years of interpretation of the Second Amendment and numerous court precedents allowing restrictions on an individual’s possession of a gun. It was described by former Supreme Court Justice John Paul Stevens (appointed by Republican President Gerald Ford) as “unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench,” which extended 35 years from 1975 – 2010.

Former Chief Justice Warren Burger (appointed by Republican President Richard Nixon) called the gun industry’s and the NRA’s promotion of this interpretation of the Second Amendment “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.” These two statements by conservative, former Supreme Court Justices underscore the hypocrisy of the supposed originalism of the supporters of this interpretation, who ignore the first two phrases of the Second Amendment: “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.”

Nonetheless, the media, the courts, essentially all Republicans, and even most Democrats speak of the individual right to bear arms as an unquestioned constitutional right. Questioning this interpretation of the Second Amendment or citing Justices Stevens’ and Burger’s statements about it are almost completely absent from the discourse. Based on this manufactured right, the Supreme Court seems all but certain to make a ruling this month that will find unconstitutional a New York law, in place since 1913, that requires someone carrying a concealed gun in public to have a permit.

It appears that the originalist judicial philosophy (supposedly underlying this interpretation of the Second Amendment as creating an individual right to bear arms) was invented as an intellectual smokescreen to justify this and other radical, reactionary judicial rulings. The originalists claim that the Constitution’s language, including on rights, freedom, and liberty, should always and forever be interpreted with the meaning they had in 1791 (when African Americans were slaves) or in 1868 when the 14^th Amendment was passed (when women had no rights and almost all schools were segregated). [3] Such a claim seems ludicrous on its face and the Supreme Court rulings by its adherents are radical, reactionary, and inconsistent. The failure of the media and Democrats to point out these facts is hard to understand.

The gun industry also displays its power on the Internet and social media, which have certainly played a role in fomenting the American gun culture and even gun violence. Given that most TV networks, magazines, and newspapers banned gun ads years ago, digital advertising via Google and other Internet sites is essential to the gun industry’s marketing.

In 2004, based on Google’s corporate value “don’t be evil” and as a matter of ethics, Google’s cofounder Sergey Brin announced that gun ads would be banned. Nonetheless, Google’s ad systems have provided billions of views of gun makers’ ads since then. A study by the independent, non-profit, investigative journalism organization ProPublica found that between March 9 and June 6, 2022 (90 days), the fifteen largest gun sellers in the U.S. placed ads through Google that produced 120 million impressions (i.e., the displaying of an ad to a viewer). [4] This is an average of roughly 1.3 million views of a gun ad per day.

Every time an ad is viewed, Google earns a small fee. Some of the gun ads have appeared on Google’s own sites, a clear breach of Google’s stated policy. However, the vast majority of them are placed via a long-standing and well-known loophole in Google’s policy. Although Google bans gun ads on its own ad network and on sites it owns, ads sold by partners but placed using Google’s systems are not restricted by Google.

Gun makers and sellers can use Google’s advertising system to place gun ads on websites that allow gun ads. This is where the vast majority of gun ads show up.

Although a website owner can theoretically ban certain types of ads, such as gun ads, Google’s ad systems’ enforcement of such a ban has loopholes. Most notably, if a person has visited a gun maker’s website, Google’s tools facilitate the tracking of that person as they browse other sites. When that person is at another website, one that may ban gun ads, this tracking and targeting tool can display a gun ad. This retargeting (as it’s called) of a person is a loophole Google purposefully built into its advertising system over a decade ago.

For example, although Publishers Clearing House does not accept gun ads, in a recent three-month period roughly 4.6 million views of ads for Savage Arms guns occurred on the Publishers Clearing House website. Gun ads have also been documented as showing up on websites such as The Denver Post, Merriam-Webster’s dictionary, the Britannica, U.S. News & World Report, Ultimate Classic Rock, Parent Influence (on an article about “How to handle teen drama), and on Baby Games (amid brightly colored kids’ games), as well as on recipe sites and quiz game sites.

Google makes money on each of the hundreds of millions of views each year of gun ads. Note that Google dominates the digital advertising world with 28.6% of total digital ad revenue in the U.S.; Facebook has 23.8% and Amazon 11.3%, giving the big three an overwhelming 63.7% of the market. Therefore, gun ads via Google’s advertising systems are important both to the gun industry and to Google’s revenue.

[1] Siders, D., & Fuchs, H., 6/10/22, “The NRA isn’t the only group advocating for the Second Amendment,” Politico (https://www.politico.com/minutes/congress/06-10-2022/more-than-just-nra/)

[2] Giorno, T., 6/14/22, “Gun Owners of America pushes back on bipartisan gun control legislation,” Open Secrets (https://www.opensecrets.org/news/2022/06/gun-owners-of-america-pushes-back-on-bipartisan-gun-control-legislation)

[3] Mogulescu, M., 6/6/22, “It’s time for Democrats to stop agreeing that the Second Amendment protects an individual’s right to bear arms,” Common Dreams (https://www.commondreams.org/views/2022/06/06/its-time-democrats-stop-agreeing-second-amendment-protects-individuals-right-bear)

[4] Silverman, C., &Talbot, R., 6/14/22, “Google says it bans gun ads. It actually makes money from them.” ProPublica (https://www.propublica.org/article/google-guns-ads-firearms-alphabet-advertising)

GUN VIOLENCE’S HIDDEN ACCOMPLICES

Nowhere else in the world does civilian gun violence take anywhere near the toll that it does in the US. Other countries have and are taking strong, effective steps to reduce gun violence. We, too, can substantially reduce gun violence but it will not be easy or quick. It will take sustained, hard, and at times uncomfortable advocacy to achieve the changes in policies, practices, and attitudes that are necessary to substantially reduce gun violence here.

While the media coverage of mass shootings almost always says the shooter or shooters acted alone, their indirect or hidden accomplices are many and we cannot continue to let them avoid responsibility. The radical reactionaries on the Supreme Court are accomplices because they have given individuals the right to own arms, including semi-automatic assault weapons with large magazines that have no purpose other than killing as many people as possible as quickly as possible.

Members of Congress who block a ban on assault weapons and high-capacity magazines are accomplices. State legislators and Governors who have acted similarly are accomplices. This also applies to the blocking of other gun violence prevention measures, such as comprehensive background checks, waiting periods on taking possession of a gun, increasing to 21 the age requirement for buying a gun, laws keeping guns out of the hands of people most likely to use them to harm themselves or others, red flag laws that allow guns to be taken away from people who have indicated a likelihood to use them to harm themselves or others, etc.

The top of the list of accomplices today includes Governor Abbott of Texas, who proudly signed seven bills weakening regulations that reduce gun violence. In addition, despite saying that mental health services are what’s needed to prevent to mass shootings, he has refused to accept the Affordable Care Act’s expansion of Medicaid eligibility for low-income residents of TX (Medicaid pays for more mental health services than any other health insurer) and he used over $200 million from the state agency that provides mental health services to bus immigrants to Washington as a stunt to support Trump’s border policies. [1]

Also high on the accomplice list is Fox TV (it’s not news), which promotes grievance, hate, and sometimes violence to a largely white, male audience. The social media companies are on the list as well. They allowed the video of the May 14^th mass shooting at the Buffalo food market to be seen by millions and to still be widely available two days after the shooting. Facebook took over ten hours to remove a link to the video. Twitch, where the shooter live-streamed the attack, is owned by Amazon. The ability to share video of a mass shooting with millions is what multiplies its impact and makes it real terrorism. [2]

Some of these accomplices are attacking those who are calling them out for their complicity, claiming we are using a tragedy for political purposes. They are hypocrites. First of all, they have used tragedies, fear, hate, and misinformation (let’s call it what it is – lies) for years to expand access to guns and foment their use. Second, while these accomplices appeal to our natural instinct to take the high-road in moments of crisis, they take the low-road time and time again – and appear to have no shame for doing so.

The time for being polite and civil in the face of gun massacres, which are terrorism, has long since passed. After fifty-five years of mass shootings in schools – going back to the University of Texas at Austin in 1966 – defenders of gun “rights” for individuals no longer deserve any presumption of good faith or restraint on our part given the hundreds of thousands of lives lost, including so many children. A polite and civil response has only led to an ever-mounting death toll. [3] (Please see my previous post for why claims of individual gun “rights” are the result of a manipulation of the meaning of the 2^nd Amendment to the Constitution.)

It will require a strong and loud, and yes, confrontational, movement to produce meaningful action to reduce gun violence in this country. I urge you to speak out and act out however you are comfortable to contribute to this movement.

[1] Jeffery, C., 5/26/22, “He did not act alone,” Mother Jones (https://www.motherjones.com/politics/2022/05/uvalde-texas-massacre-accomplices/)

[2] Harwell, D., & Oremus, W., 5/16/22, “Only 22 saw the Buffalo shooting live. Millions have seen it since.” The Washington Post

[3] Hubbell, R., 5/28/22, “He did not act alone,” Today’s Edition Newsletter (https://roberthubbell.substack.com/p/he-did-not-act-alone?s=r)

GUN VIOLENCE, THE SECOND AMENDMENT, AND THE “ORIGINALISTS”

The rash of recent gun violence has refocused attention on the Second Amendment to the Constitution, which reads:

“A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The radical reactionaries on the Supreme Court, who are supposedly “originalists,” have interpreted this language as giving individuals the right to bear arms and an individual right to security through armed self-defense.

Somehow the “originalists” have forgotten (or choose to ignore) the first two phrases of the amendment’s language which link the right to bear arms to a well-regulated militia and the security of the state. Clearly, the original writers of the Second Amendment did NOT have in mind the right of each individual, on his or her own, to bear arms. And they had no possible conception that arms would include semi-automatic weapons that could fire multiple bullets per second; the arms they knew took many seconds to reload for a second shot. So much for originalism! (I’ll write more about the hypocrisy of the “originalists” on the Supreme Court in a future post.)

Actually, what the writers of the Second Amendment had in mind was security against slave revolts. The Second Amendment was pushed by Patrick Henry (Governor of Virginia) and George Mason (intellectual leader of the anti-Constitution anti-federalists). They were worried that the new Constitution would give the federal government the sole power to form militias, preventing states and local entities from doing so. They were also concerned that Northerners would dominate the new federal government. Given that parts of Virginia, for example, had more enslaved Blacks than Whites, Henry and Mason (and others) wanted to ensure that southern states had the power to form militias to protect white slave owners from slave revolts. [1] Therefore, if there’s any originalism in the right-wing justices’ support of an individual right to bear arms, it’s originalism that has strong racist overtones.

The ”originalists” supposedly don’t support any evolution of the meaning of the Constitution over time; according to them, it’s the original language and intent of the writers that should govern judicial decision making. Furthermore, a leading “originalist,” Justice Alito, just wrote in his draft decision overturning Roe vs. Wade, that for an unwritten right to be legitimate, it must be deeply rooted in the nation’s history and have been understood to exist when the 14th Amendment was ratified in 1868. Under either of these originalist principles, an individual right to bear arms, particularly the types of arms available today, would be impossible to assert in a truly originalist interpretation of the Constitution. Again, so much for honest originalism!

A constitutional right to individual gun ownership is a relatively new interpretation of the Second Amendment, invented by the gun industry in the 1970s and aided and abetted by the National Rifle Association (NRA). It wasn’t until the mid-1970s that the Republican Party adopted support of individual gun ownership as a core belief and policy position. In the 1960s, Republicans were strong supporters of gun control, in part because they were strong supporters of law and order. Furthermore, during the 1960s, with the rise of the Black Power movement and pushback from the Black community against racism by police, Republicans were concerned about Blacks having guns. So, for example, in 1967, California passed the Mulford Act, the most sweeping gun control law in the country. It banned personal possession of a firearm without a permit and was signed into law by Governor Ronald Reagan. At the federal level, the Gun Control Act of 1968 was passed, which restricted the sale of firearms across state lines. Neither of these laws raised any constitutional concerns at the time.

Until 1959, every legal article about the Second Amendment concluded that it was not intended to guarantee an individual’s right to own a gun. In the 1970s, legal scholars funded by the gun and ammunition industry, and their front group the NRA, began to make the argument that the Second Amendment did establish an individual right to gun ownership. [2]

In 1972, the Republican Party’s policy platform supported gun laws restricting the sale of handguns. However, in 1975, as he geared up to challenge President Gerald Ford for the 1976 presidential nomination, Ronald Reagan took a stand against gun control.

In 1977, an at-the-time radical wing of the NRA took control of the organization and shifted its focus from marksmanship and responsible gun ownership by hunters to assertion of a right to individual ownership of guns for self-defense and to opposition to any restrictions on gun ownership. In 1980, the Republican Party platform opposed the federal registration of firearms for the first time and the NRA, for the first time, endorsed a presidential candidate: Republican Ronald Reagan. This led to the Firearms Owners Protection Act of 1986, which repealed much of the Gun Control Act of 1968 and dramatically weakened federal gun control. Ironically, it was signed into law by President Reagan (who 19 years earlier had signed California’s strong gun control law).

Nonetheless, after three mass shootings in four years, the Violent Crime Control and Law Enforcement Act of 1994 included a ban on assault weapons and large capacity ammunition magazines, as they had been used in the mass shootings and were key to making the horrific carnage possible. However, this ban had a ten-year sunset provision. Therefore, the ban expired in 2004 and has not been renewed despite numerous attempts to do so.

These are key elements of the history of the Second Amendment and policies on gun ownership that have gotten us to where we are today. There have been over 230 mass shootings in the US already in 2022 – well over one per day. (A mass shooting is defined as one where four or more people are injured or killed, not including the shooter.) There were 20 in the week after the May 24^th Uvalde, TX, school shooting. In the 230 mass shootings so far this year, 256 people have been killed and 1,010 injured. Historically, there were nearly 700 mass shootings in 2021, a significant increase from 611 in 2020 and 417 in 2019. [3]

I urge you to speak out and act out however you are comfortable to contribute to the movement to take strong action to reduce gun violence in this country. Nowhere else in the world does civilian gun violence take anywhere near the toll that it does in the US. Other countries have and are taking strong, effective steps to reduce gun violence. We can too. We have a long way to go; the sooner we start the better.

[1] Mystal, E., 2022, “Allow me to retort: A Black guy’s guide to the Constitution,” NY, NY. The New Press.

[2] Richardson, H. C., 5/24/22, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/may-24-2022?s=r)

[3] Ledur, J., & Rabinowitz, K., 6/3/22, “There have been over 200 mass shootings so far in 2022,” The Washington Post