Ken’s Take on the World


Trumpets of Doom

This past week we were exposed to the spectacle that was the Republican National Convention.  I managed to catch bits and pieces of different speeches and read the running commentary on my Twitter feed and on Facebook.  I did take the time to watch the candidate, himself, give his acceptance speech on Thursday night.  What I observed this week is, to say the least, troubling for me as a progressive, voting, American.  The RNC convention was filled with darkness and despair.  It was, in a word, un-American, in my opinion.

 

From the refusal of the convention rules committee to respect the wishes of delegates in voting on the party platform on Monday, to the gaffes of color-coding elevator banks (White Elevators), posting white supremacist Tweets and anti-Semitic Tweets, and plagiarizing speeches, the promotion of an idea that the Democrat opponent would be arrested and jailed if Mr. Trump was elected President, and the very ugly idea that the Democratic nominee be marched in front of a firing squad by the Republican nominee’s veterans adviser, the campaign presented an ugly and hate-filled image to the world and, specifically, to Americans who are being asked to select the 45th President of the United States of America.  Even an innocuous photo showing Speaker of the House, Paul Ryan posing with the 2016 class of Republican interns demonstrated the big problem facing the Republican Party moving forward.  Surely, the Republican Party could have done better than this.

 

The events of this past week in Cleveland demonstrate a palpable anger of a large number of white Americans, a sense of frustration that transcends the typical values the Grand Old Party establishment has espoused for the past half century.  Make no mistake, the GOP has pushed the idea of racial politic for its benefit since the 1960’s.  The major difference during this campaign cycle is that the nominee has openly endorsed the idea that white people are losing ground to minorities in this country.  There is the explicit promise that Mr. Trump will, “take America back.”  Take it back from who?  Give the nation back to whom, exactly?  This nation belongs to each of us, Mr. Trump.  Each of us already has an ownership stake in the greatest nation on Earth!!  On the topic of greatness, Mr. Trump’s campaign slogan is, “Make America Great Again.”  Personally, I believe that any candidate who does not believe the United States of America is not currently the greatest nation on the planet is not fit to lead our country.  Hey, Donald Trump, if the United States of America is not currently the greatest nation in the world, tell us who we need to best to regain the title!!  Mr. Trump misses the point that greatness does not mean perfection.  The greatest leaders throughout history each had flaws.  This goes for individuals and nations.

 

President Franklin Roosevelt, in his first inauguration speech said, “So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself—nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance. In every dark hour of our national life a leadership of frankness and vigor has met with that understanding and support of the people themselves which is essential to victory.”  http://www.historymatters.gmu.edu/d/5057  Mr. Trump, in his acceptance speech pushed a sense of fear throughout his speech.  I have to give him credit in that he recognizes that fear is, perhaps, the most powerful motivator of all living things.  Unfortunately, fear is not what makes a nation, or a leader, great.  In times of trouble or anxiety, people look to a leader for inspiration and hope.  For confidence and a sense of security.  People look for firm, rational, statements and assurances of how safety and security can be established.  Mr. Trump stoked the flames of fear in his campaign speech but failed to offer any rational assurances that he could provide this.  This consistent lack of substance does not appear to faze his supporters.  In fact, Mr. Trump has said that his supporters don’t care about policy.  His supporters may not care, however, those of us who consider ourselves thoughtful and rational, demand this information in order to make an informed decision at the voting booth!!  He commented that he will be the law and order President, but has demonstrated through his comments and prior speeches that he has no understanding of the law nor a desire to operate within the law.  Mr. Trump has been described as having an authoritarian management style.  Studies on authoritarians who have risen to power demonstrate that when people are so fearful, they have a tendency to turn to an authoritarian leader, regardless of qualifications, or lack thereof.  This is what Mr. Trump is counting on—that people are so irrationally fearful they will fall in line behind his campaign.  Thus far this has worked as he managed to beat out his, much better qualified, opponents in the primary campaign.  The problem with authoritarian politicians is that they tend to be brutal and violent towards their opponents, both domestically and globally.  Regarding the wealthy, and the bankers, FDR further stated, “They know only the rules of a generation of self-seekers. They have no vision, and when there is no vision the people perish.”  I have said on multiple occasions that Mr. Trump is primarily out to benefit himself.  He is a narcissist and demonstrates an unwillingness to compromise with others.  He has boasted of this in interviews, speeches, and in his books.  This is not the attitude of our nation’s diplomatic face to the world.  Even more dangerous, Donald Trump has praised the ideas of other authoritarian leaders including Vladimir Putin and Adolph Hitler.  Likewise, the current leaders of Russia and North Korea have praised Mr. Trump’s leadership style.  I am concerned when foes of this nation begin to praise a candidate for US President.

 

Mr. Trump has further raised the ire of leaders of nations that we consider allies.  This past week, he suggested that the United States may not honor agreements made with European nations should they be attacked by another state power.  Nothing instills confidence in our friends, or gives pause to our enemies, like a potential US President who says you’re on your own.  He has said that other nation’s should be free to pursue nuclear weapons and has refused to rule out the use of such weapons if faced with a tactical threat or even as a deterrent to non-state players on the battlefield.  Such commentary is not only irresponsible from a Presidential candidate, it is reckless and dangerous.

 

Perhaps, the most concerning thing about Donald Trump is that he is not a, one-off, an anomaly within the Republican Party.  Mr. Trump has become the face of the base of the contemporary Republican Party.  This twice-divorced, socially-moderate, candidate for US President has gained the support of Evangelical Christians.  He has been endorsed by anti-LGBT and anti-abortion, so-called, “family values” organizations even though he does not support these views.  This is why he has selected Governor Mike Pence of Indiana to be his Vice President.  Governor Pence is staunchly anti-LGBT and anti-women’s rights.  He has actually been endorsed by white-supremacists, the American Nazi Party, and other racist individuals and groups.  This should serve to inform the logical, reasoned person that Mr. Trump is a dangerous individual to be considered for the position of Commander-in-Chief of our nation’s Armed Forces and as the principal law enforcement officer of the United States.  The battle for control of the soul of the Republican Party has been won by a racist, bigoted, theocratic-minded bloc.  The fight for the hearts and minds of the people of the United States of America now begins.  While irrational fear is an incredibly powerful motivator, I maintain confidence that hope is an even more powerful motivator.



On Guns and Sense

In the wake of the latest mass shooting event in San Bernardino that killed 14 and wounded 21, including at least two police officers, my Twitter and Facebook feeds lit up with calls to enact more vigorous gun control measures.  This is a recurring theme in this country.  There is a mass shooting that captures the attention of the public, there are calls for more gun control, the calls go, mostly, unheeded, and the nation moves on until the next day or next week when the next mass shooting event rivets the nation’s focus on gun violence.

 

In the aftermath of the latest shooting, which baffled investigators for nearly four days before determining this was an act of terrorism, albeit, one of the more convoluted episodes I can recall, Congress finally attempted to take action.  Senator Dianne Feinstein introduced a measure that would close a loophole that currently permits suspected terrorists to legally purchase firearms in the United States.  This measure failed on a mostly party-line vote with all but one Republican voting against the measure and all but one Democrat voting in favor of the measure.  Following the vote, there was condemnation from gun-rights proponents that the measure would have stripped away due process rights from those seeking to purchase handguns.  This was the first time I had heard this suggestion made, and from my Twitter feed, this line of conversation picked up a bit of steam.

 

First off, let me say that Twitter is a difficult environment to try and have a coherent and reasonable debate with anyone on any issue, let alone one as complex and controversial as access to firearms.  Nonetheless, I engaged in conversations with several folks who supported the view that barring people on a consolidated FBI watch-list from legally procuring firearms was a violation of due process rights established under the 5th Amendment of the US Constitution.  I admit that I was baffled at this suggestion as this is the text of the amendment:

 

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” – See more at: http://constitution.findlaw.com/amendment5.html#sthash.VZehsmyM.dpuf

 

The gist of the Twitter conversation is that, as the right to, “bear arms” is an enumerated right within the Bill of Rights, being, “…deprived of life, liberty, or property without due process of law…,” means that blocking specific individuals from obtaining a firearm infringes upon their Constitutional rights.  The focus of this discussion, left unspoken by proponents of this position, is on the word, “liberty” suggesting that not being able to buy a gun deprives an individual of her or his liberty.  Now, I am not besmirching any of the participants of this line of thought as I am certain they are each patriotic Americans.  However, their line of reasoning is flawed.  Being limited to 140 characters, I was unable to effectively explain the errors associated with this line of thought.  It is clear, however, that their focus on depriving a person of, “due process” BEFORE denying a fundamental right is un-Constitutional.  This is an incorrect interpretation of due process as related to the purchase of firearms by an individual who has had their name placed on a watch-list of suspected terrorists.

 

It has been publicly recognized that this list compiled by the Department of Justice is flawed and there are names on the list that, most likely, should not appear on the list.  Other names, like at least one of the suspected shooters in San Bernardino, should probably be on this list.  Some elected US officials, children and infants, and deceased individuals names appear on this list as has been reported by numerous media outlets.  See: http://www.wired.com/2007/09/700000-name-ter/  http://dailycaller.com/2015/12/04/san-bernardino-shooting-suspect-not-on-terrorist-watch-list/

 

Critics of this list complain that due to flaws, the list should not be a bar to legally obtaining a firearm.  They state that the list is arbitrary and that people are not informed their name is on a watch-list until they attempt to engage in activity (such as attempting to board a commercial airliner) that would cause the person’s name to appear.  Prior to September 11, 2001, several federal agencies maintained lists of individuals who were subjected to heightened scrutiny.  After the horrible terrorist attacks of that day, President George W Bush signed a Presidential Directive requiring the FBI to consolidate and maintain these listings.  There are currently nearly a million names in this database.  If your name is on the list, you can expect to be subjected to enhanced scrutiny in certain circumstances (boarding a commercial aircraft, being pulled over for speeding, attempting to purchase a firearm, etc.).  A number of reasons exist why a person’s name may appear on this list.  One reason, is that you are, in fact, suspected of being a terrorist.  Often, an individual’s name will appear because it is either identical to, or similar enough to, a name used by a known or suspected terrorist.  Senator Ted Kennedy’s name appeared on the watch-list because a suspected terrorist was using, “Edward Kennedy” as an alias.  Representative John Lewis had his name on the list for the same reason as did at least one Roman Catholic nun.  The list is hardly arbitrary as you have to be, “nominated” by someone in the intelligence community in order to be evaluated, promoted, and finally, placed on the list.  Additional information on being on this list, and how to remove your name on the list may be found here:  http://people.howstuffworks.com/government-watch-list.htm

 

In any case, the folks I attempted to carry on a debate with via Twitter, are incorrect that denying or, most likely deferring, the purchase of a firearm violates their due process rights under the US Constitution.

 

What, exactly, is, “due process?”

 

As the name implies, it is a method, or process, that is owed to another person.  This may be established within the framework of organizational policies or, as used in this discussion, a requirement that is established within the framework of our nation’s founding document, the US Constitution.  Due process provides a means for an individual, or group of individuals to seek relief, or a redress, of a grievance.  The process involves those steps put into place for that appeal.  Under the US Constitution, due process, especially as recognized under the 5th and 14th Amendments is recognized as two separate entities.  There is procedural due process and there is substantive due process.  Procedural due process requires that a process for redress of potential harms be provided for the person who has suffered.  Substantive due process requires that this process be sufficient to resolve the issue at hand.

 

The folks in the Twitter universe invoking the 5th Amendment due process provisions as a reason to not block actual or suspected terrorists from obtaining firearms are actually missing the entire point about both, procedural and substantive, due process.  A number of these folks have suggested that by not providing due process BEFORE denying a fundamental right, a person’s fundamental rights have been violated.  This is not the case.  My counterargument to this flawed assertion is that while procedural due process may exist prior to a “harm” being inflicted, substantive due process begins AFTER a fundamental right has been infringed upon.  Furthermore, none of the recognized, “enumerated,” or, “fundamental” rights is absolute.

 

An example of procedural due process would be if I intended to stage a protest rally in a certain location.  It should be noted that not all speech is protected under the 1st Amendment.  For example, a person cannot yell, “Fire!” in a crowded theatre because he or she feels like causing a commotion.  Politically protected speech, though, is recognized as an essential, or fundamental, right.  However, even politically-motivated speech is subject to certain restrictions.  Namely, the time and the place of such protest may be limited for specific reasons, including safety.  If I failed to obtain the appropriate permits prior to engaging in this protest, I could be arrested and denied permission to exercise what has been recognized as a fundamental right—the right to engage in politically-protected speech.

 

Additionally, a person must be legally capable of exercising the particular right.  Would any logical person suggest that a five year-old child has the legal capacity to purchase a firearm with their allowance money?  This is why those persons who have been adjudicated as being mentally-unfit are banned from possessing firearms.  The same goes with certain convicted felons even after they have served their prison sentences.  Aren’t we denying these individuals their fundamental rights?  Yes.  Again, no right established in the US Constitution is considered absolute!

 

Now, to the point recent Twitter postings allude to:  Denying a person the legal opportunity to purchase a firearm violates their 5th Amendment due process rights.  Never mind that this right generally refers to an individual who has been formally accused of committing a serious crime.

 

If I was to enter a gun store, or any other environment that sells firearms, and attempt to purchase a firearm, I may be required to provide certain information which is supposed to be checked against a database that includes names that are on the consolidated terrorist watch-list.  Suppose my name flags as being on this list.  I will assume I would be informed this is the reason that I was being denied the opportunity to purchase said firearm(s) as this has not happened to me before.  If nothing else, I would be informed that there is a process that I may follow to address and correct any information that I believe is erroneous and what that process is for doing so.  After all, the gun seller wants to make a sale and would like me to return to purchase the gun(s) I wanted, right?

 

If the folks I was conversing with through Twitter were able to catch on to what I was pointing out, they might have a viable claim that the placement of their name on a list of suspected terrorists violated their 5th and 14th Amendment due process rights.  I would suggest that an individual might want the ability to be notified PRIOR to their name being placed on the list.  There is no process for this, however.  This is where the folks I was having a dialogue with should have their grievance.  There is a process for having your name removed from this list.

 

The process for purchasing a firearm, as I stated before, requires that a purchaser be eligible to exercise this action.  One additional point regarding the folks I was conversing with is that I am surprised that folks who claim to be so patriotic are so sympathetic to the needs and desires of actual terrorists.  Perhaps, that was a bit snarky, however, that is what the Senate vote was designed to address—the ability of terrorists who WANT to legally purchase firearms.  Why would patriotic Americans want to, even inadvertently, facilitate the efforts of a terrorist?

 



Freedom from Religion

The recent passage of S. 1062 by the Arizona legislature has kicked off another firestorm regarding the rights of religious people, particularly those who identify themselves as Christian.  This argument has become, essentially, a red herring that folks on the political right like to promote to inspire their base of supporters.  It promotes an “us” versus “them” public discourse.  It is, of course, absolutely a false argument.  However, the hyping of religious believers being attacked demonstrates popular appeal among certain groups, regardless of whether such claims are true.  The flaws with advancing the position that religious liberties are under attack by, “others” in addition to being patently untrue, include linking the Constitutionally-protected 1st Amendment rights of individual religious expression with laws that are not protected activities under the US Constitution.  While the US Constitution provides very broad protections for the free exercise of religious activities in the private, and even the public, sphere, there are no protections for attempting to enforce one’s own religious beliefs on others.  At least, not in a place that is designed to serve the general public.  Even, activities like religious proselytizing are not protected as much under the “Free Exercise” clause of the 1st Amendment as they are under the “Free Speech” provisions of the amendment.

 

The Arizona law that ignited this current firestorm is similar to other state legislation that has been, or is currently, being debated in several state capitols.  This legislation purports to protect the “rights” of individuals who provide products or services to the public from “religious discrimination.”  Namely, if a provider of such services or products claims that their, “sincerely-held religious beliefs” prevent them from accommodating the consumer of such products or services, that they would be exempt from lawsuits related to the denial of said services or products.  This spate of legislation is a direct result of multiple court rulings determining that state laws preventing marriages between same-sex couples violate either state or the federal Constitution.  Specifically, the impetus for much of this legislation involves the denial of products or services to gay male or lesbian couples who sought out consumer products for their wedding ceremonies.  These denials have, in several cases, resulted in civil lawsuits that claim denial of the requests of the homosexual clients constitutes a Constitutional violation of equal protection provisions of various state Constitutions as well as the US Constitution.  In defense, licensed businesses that have been sued have claimed a 1st Amendment right of protection based on sincerely-held religious beliefs.

 

Some have suggested this is identical to the issues faced by black people in the 1950’s and 1960’s who were denied service at segregated lunch counters.  While there are similarities, it should be noted that the issues that arose in the 1950’s and early-1960’s claimed a defense of, “State’s rights” that permitted each state to define rules relating to segregation.  Ultimately, the side that promoted equal protection won out in those cases as, I believe, will happen in these cases. 

 

There are those who ask why the gay couples who were denied service at particular businesses could not simply go elsewhere to receive desired customer service.  This argument suggests a purely market-based solution which has worked, in certain situations, in the past.  However, the courts have ruled this approach is not necessary, and in fact, has been associated with actual harm to the individual harmed by the denial of service.  The courts have found that requiring someone to use another vendor, or provider of a service or product, imposes an unreasonable burden on that individual.  Numerous examples dating back to the times of legally-sanctioned discrimination clearly demonstrate this as when black people were denied service at a “Whites Only” hospital.  While seeking a photographer for an event or a cake for a party do not rise to this level of severity, consider attempting to procure these services in a very small community.  If the only baker in town was to deny a common service, like baking a cake for a celebration, the customer may be forced to forgo a product or travel a greater distance to obtain the product.  Or, perhaps, the customer approached the business owner because that business’s service or product was believed to be the very best product available.  Should the customer be forced to settle for a lesser quality product or service?  What if the customer was seeking to purchase a specialized product like a high-end automobile?  There may not be many dealers of this particular brand of automobile and if the nearest dealer refuses to provide services it would force the customer to drive a greater distance to obtain the desired product.

 

Consider a more serious issue.  Healthcare.  Perhaps you are a Muslim who suffers from a relatively uncommon medical condition and the nearest specialist that could treat your condition refuses to provide care claiming his religious beliefs forbid him from providing service to non-Christians.  In a true emergency, the physician may have a legal obligation to provide emergency care, however, for routine care, you would have to travel quite far for essential medical care.  Legislation presented to the Arizona Governor and currently under consideration in other states would make such a denial of care acceptable.

 

A number of folks have attempted to articulate that they should not be required to abandon their religious beliefs in order to participate in a same-sex marriage.  First, no one is being forced, by the states, by the courts, or by any governmental agency to participate in an actual ceremony involving the union of two people, heterosexual or homosexual.  Second, no individual, gay or straight, has attempted to demand that another person participate in an actual ceremony associated with the legal definition of a marriage.  To be clear, even when a photographer is hired to take photographs at a wedding, they are not actually participating in the ceremonial act of marriage.  It is their business that was contracted with to provide a specific service.  In at least one other case, it has been argued that refusing to bake a cake for a same-sex wedding was a protected religious liberty.  Again, the baking of a cake, is neither an integral part of a marriage ceremony nor a protected religious activity.  A bakery that has a license to operate as a business in the community is required to abide by applicable laws.  The courts have determined in numerous cases that a business operates as a service to the public and as such, a business owner cannot deny service to a customer who is able to pay for such services.

 

While the legislation currently being debated in several states is being linked to the conversation currently taking place in society and in the courts regarding marriage equality, it has been, rightfully, pointed out that such laws would have many unintended consequences that could leave any individual susceptible to the denial of customer service by any business owner.  Laws that permit, or worse, promote, discrimination are, as Jon Stewart has said on his show, “Morally-repugnant.”  A claim of “religious liberty” as a rationale for justifying discrimination is reprehensible to many people of faith throughout the country.  Such a claim is inconsistent with all of the major religious traditions and is being used as a means to advance a personal agenda of bigotry and prejudice.

 

While Governor Jan Brewer of Arizona did veto the legislation that was presented to her, it is interesting to note that several other states that had been, or are currently considering, such legislation have either withdrawn proposed discriminatory legislation or pulled back to reconsider advancing such un-American laws.  This is a result of the public debate on this issue, but also, a result of the potential economic backlash that any state that would enact such a law would face.  A very broad coalition of individuals spoke up regarding the Arizona legislation including a “trifecta” of progressives, conservatives, and businesses that joined with civil rights organizations in unity to oppose this heinous bill.  It is sad to note the amount of vitriol levied against the Arizona governor subsequent to her veto of the bill.



Of Guns and Madness

The recent dialogue regarding the regulation of firearms in this country has coalesced around two differing basic points of view.  On one side are individuals and groups interested in, finally, finding a way to reduce violence associated with guns.  On the other side are individuals and groups who act as though attempts to reach a reasonable solution are tantamount to completely striking down the 2nd Amendment of the US Constitution.  The rhetoric arising from this camp has grown progressively more strident and aggressive, bordering on dangerous. 

There are many opportunities for taking action to reduce the toll of violence from guns.  The majority of people in this country appear to want sensible, logical reforms to existing legislation or new legislation that would banish certain classes of firearms or the ammunition clips that feed the weapons.  Leaders from the National Rifle Association (NRA) have stated publicly that better mental health services are necessary in order to prevent mass shootings.  I completely agree with this idea.  While progressive-minded individuals have long advocated for comprehensive mental-health programs, throughout the 1980’s and 1990’s, continuing today, legislatures have dramatically cut back funding of mental-health options.  In the state of Michigan, for example, we had 16 hospitals and outpatient clinics for the treatment of mental illness.  Conservative legislators and a Republican Governor whittled that number down to four by 1999.

Study after study has demonstrated that people suffering with serious mental illness are more likely to become homeless, become victims of violence, participate in illicit substance use and abuse, and be far more likely to be arrested and incarcerated for criminal activity.  Studies that have looked at the cost of housing a prisoner in a correctional facility have demonstrated that over 40% of inmates suffer from mental illness and that a significant number of these patients could be treated outside of a prison environment at a far-lower cost.  This is a waste of money.

The other idea publicly promoted by the NRA is the arming of teachers and other school workers and expanding concealed-carry laws throughout the nation including into sports venues, theaters, restaurants, churches, colleges, and bars.  As a college educator, I do not feel this is the proper approach to solving the problem of gun violence.  When I think back to the days when I was an elementary, or even a high-school student, I am not sure I would have been very comfortable knowing that some of my teachers, or other school staff members, were armed.  Some of them had a difficult time maintaining order in the classroom and demonstrated their frustration outwardly.  Getting paddled by a teacher is bad enough.  Having a teacher shoot you because you were clowning around?  Think about it.  And the thought of people with guns entering a bar and getting drunk and arguing is not a comforting thought at all.  The thought of guns at sporting events is chilling as rivalries sometimes devolve into violence, particularly in those venues that serve alcohol.

Wayne LaPierre, of the NRA, also suggested having armed guards, like Police Officers stationed in every school in America.  Putting aside the economic burden on communities aside for a moment, it is important to remember that both Columbine High School and Virginia Tech had an armed, uniformed presence when shootings occurred in both places.  Fort Hood was an active military base with armed Military Police and armed civilian guards.  In addition to being economically non-viable, this idea also fails to address the core concern associated with gun violence.  Namely, keeping guns out of the hands of those who would use them to cause harm.

The NRA, and like-minded individuals often claim, “Guns don’t kill people!”  In this, I also concur.  With the exception of someone bludgeoning another person with a gun, guns by themselves do not kill people.  A firearm, however, when used as intended has one, and only one purpose.  That purpose is to deliver a lethal projectile for the point of killing something.  Whether the weapon is a tiny Derringer, or a fully-automatic assault rifle, or a 12-guage shotgun, or a 9 mm semi-automatic handgun, or a 38-caliber revolver, each of these devices is designed to effectively deliver a projectile that is designed to cause death.  Now, one can argue that the firearm serves as a deterrent to would-be criminals.  Generally speaking, however, this argument is not valid.  While the sound of a shotgun being racked in a darkened room is enough to make some involuntarily urinate, the purpose of the weapon is not to sound scary.  The gun is designed to kill.  It is not designed to wound, maim or temporarily incapacitate something.  It is designed to kill something.  However, by itself, the gun can do very little harm.  Also, a gun carelessly handled, or accidentally dropped, may discharge causing death or injury to others.  There are more stories of individuals being accidentally killed or injured by firearms than there are of civilian individuals using a firearm to protect themselves or others.

If a gun, by itself, is relatively harmless, what, then, makes it dangerous.  What makes a gun a weapon?  The answer is simple, ammunition.  Without ammunition, a gun is a conglomeration of metal and plastic, and sometimes, other materials that are not so much functional as they are aesthetic.  A pretty killing machine, you might say.  When the 2nd Amendment to the US Constitution was ratified as part of the Bill of Rights, firearms were single-shot, and each shot had to be manually prepared using wadding, powder and a ball.  Experts of the time could shoot and reload their weapon up to three times per minute!  Of course, barrel-rifling techniques meant that shots were most effective at closer ranges.  Today’s firearms have much greater range when aimed properly, carry clips that contain multiple shells or casings, and can be fired multiple times per minute without pausing to reload.  In fact, a semi-automatic weapon with an extended magazine or clip could fire up to 30 shots in less than a minute!  The folks that are currently opposing sensible measures to address the issue of gun violence claim that the 2nd Amendment prevents Congress, or any state legislature, from taking any action that might limit access to firearms.  This argument is invalid on a number of counts.

Let us, for just a brief moment, give credence to this logic.  The 2nd Amendment prevents the government from regulating firearms.  When the 2nd Amendment was ratified, firearms were single-shot and had to be reloaded between each shot.  Because there was no standing Army at the time of the Amendment’s ratification and there were no real police forces established, the enactment of this Amendment was reasonable.  It is not likely that our founders could have had the imagination to perceive the variety of weapons and the power of weapons that would exist today.  But let us suppose that they did.  Let us further suppose that our founders wanted every weapon that was, at that time, available to a standing military or police force as a standard which would mean that weapons used by military forces and police forces around the world should be permitted to be in the hands of ordinary Americans.  Without participating in this argument we can simply put aside the regulation of firearms.  Instead, we can look at the components that carry the ammunition that feeds the weapon.  We can regulate the clips, drums, and magazines that are loaded with ammunition that can be fired from a gun.  We can regulate the projectiles that can be fired from a gun.  It is important to note that the 2nd Amendment, like every other Constitutional provision is subject to review by the judiciary and that no Amendment is without limits on the scope of a “protected liberty.”

Many of those opposed to regulation of firearms cite the 2nd Amendment frequently in support of their cause.  Many of these same individuals favor a strict interpretation of other Amendments and argue against rulings by “activist” judges who expand the interpretation of Constitutional law.  They would argue that the framers did not intend for marriage equality when the 14th Amendment was adopted.  They would argue that individual states and not the federal government should do certain things because it is not specified in the US Constitution.  However, when muskets and cannons were the only weapons using gunpowder, these folks believe the founders of our great nation had the foresight to approve of the ready access of weaponry that was beyond the scope of imagination at the time when crafting the 2nd Amendment.  By the way, a strict interpretation of this Amendment would lead one to believe that an individual must be a member of a well-regulated state militia in order to “bear arms.”  In short, proponents of gun access want the broadest possible interpretation of the 2nd Amendment while many seek as restrictive an interpretation of every other Constitutional Amendment.  With the exception of the Free Exercise clause of the 1st Amendment, that is.  In any case, the Constitution was designed to be specific to modify or amend and arguments put forth by opponents of the current discourse are specious as no relevant party has suggested amending the Constitution to repeal the 2nd Amendment.

Which brings us to recent mass shootings.  Since the Assault Weapons Ban signed into law under President Clinton, and supported by President and Nancy Reagan, expired, the number of mass shootings has increased with each year incurring more multiple shootings than any year prior to the ban being implemented in 1994.  The suggestion that the ban on assault weapons was a failure is inaccurate.  Two things are consistent with mass shootings that have taken place over the past five years.  One, high-capacity magazines were used with the weapons that targeted innocent victims.  Two, the perpetrator, was prior-to, or after-the-fact, diagnosed with a serious mental disorder.

These are two areas in which many of us can agree.  The use of large-capacity ammunition reservoirs is not necessary for sporting or home/self-defense environs.  Other than an ability to get the thrill associated with feeling the multiple recoils of a gun, these devices only serve to ensure that numerous projectiles are dispersed.  These devices should be restricted for sale to, possession by, and use of, by certified, trained individuals.  Namely, military personnel and law enforcement personnel.  Because identifying, and treating, mental illness is very challenging, a process must be implemented to prevent those who have serious mental illnesses from obtaining weapons.  I would recommend a requirement that every individual wishing to purchase a firearm be required to undergo psychological screening.  Further, any individual wishing to purchase a semi-automatic weapon or an assault-style weapon, must also certify that every member of the household has be evaluated for psychological stability.  Weapons should not be accessible to people who lack the mental capacity to exercise self-control of violent or aggressive tendencies.

In addition, I would propose holding legal gun-owners liable for crimes committed with their legally-purchased guns.  Failure to properly secure lethal devices that results in injury or death constitutes negligence.  If we are able to strengthen mental health resources, we can reduce the number of prison inmates imprisoned as a result of criminal activity resulting from a failure to diagnose and treat the mental illness.  This will allow communities to enact stricter penalties for individuals unlawfully in possession of a firearm.

Sensible regulations that would help to prevent this tragedy, even if no firearm was made illegal to own or possess, include; mandatory criminal background checks of all purchasers and members of their immediate households, mandatory psychiatric screening for all potential purchasers and members of their immediate households, a mandatory 7 to 14-day waiting period for the purchase of any semi-automatic weapon, a requirement that gun owners undergo annual psychiatric screening, annual registration for every firearm, a requirement that firearm owners procure a minimum of $1,000,000/$5,000,000 policy on each firearm that is owned, a limit on the number of rounds of ammunition that can be purchased each month, a complete ban on internet sales of firearms and ammunition, mandatory reporting of ammunition sales that exceed the maximum amount for two months in a row, a ban on ammunition sales for assault-style weapons, a requirement that person-to-person sales of firearms or ammunition be conducted at a police department or other designated facility, a $1,000/gun annual fee that will be used to fund school security officers or gun-violence reduction strategies, a 1% tax on gun owners that will provide funding for mental health and treatment programs, and legislation that provides for any owner of a gun whose gun is used to injure or kill another person be held criminally-liable as a conspirator to the crime.

There.  Now we have some reasonable starting points with which to negotiate sensible, comprehensive, and responsible gun regulation.  Shall we get started?



Election Day 2012*

Election 2012*

 

Tuesday, November 6, 2012 marks an historic national election.  It will mark the first time a black President has been re-elected to the highest office in the land or it will elect the first Mormon to the White House.  On a more somber note, the election will be historic because it will mark the first time in our nation’s history that millions of American citizens will be disenfranchised from the voting process.  I am not referring to the voter suppression laws that have been implemented in a number of states or accusations of intimidation or deliberate misleading of voters which are both unlawful and immoral.  I am referring to the House GOP leadership failing to recognize the severity of a national crisis and calling the Congress back into an Emergency Session.  Election Day, 2012, will go into the history books as an event with an asterisk after it.

 

This past week our nation, specifically the east coast and New England, were struck by Hurricane Sandy.  Millions of people were evacuated from their homes and millions remain without power in the hard hit areas.  Damage from the storm extended as far west as Michigan, as far south as North Carolina and directly affected at least 15 states and the District of Columbia.  It is estimated that as many as one million homes and businesses could remain without power for another six to ten days.  The election is now less than five days away.  How are one or two million American citizens who have been displaced as a result of the storm supposed to have the right to cast their ballot in this historic election without Congress stepping in to ensure this happens?

 

Some of you may be thinking, well the hardest hit states are pretty solidly blue and regardless of voter turnout, will probably stay blue giving their Electoral College votes to the sitting President and this is probably true.  However, it is important to remember that a number of states affected are not “blue” states, so how will voter turnout affect these races.

 

First, one must look at the demographics involved in the displacement of population caused by Hurricane Sandy.  Perhaps a million people from New Jersey, Delaware, Connecticut, New York, Pennsylvania, Massachusetts, Rhode Island, West Virginia, Maryland, Virginia and the District of Columbia evacuated their homes due to the incoming storm or as a result of storm damage and as many as 2/3 of these will be unable to return to their homes before the election day.  In addition, thousands of emergency and disaster-relief workers poured into affected areas to help restore food supply, water supply, electricity, sanitation, transportation, medical services, government services, sewage, clearing of debris, inspection of infrastructure components, demolition and construction services, etcetera.  These folks will not be returning home before election day.

 

Second, we need to look at the logistics involved in preparing and conducting a natural election.  The nation has dealt with issues relating to minor weather events and other unforeseen events that impact small geographic areas and local voting officials have been able to accommodate voting by shifting folks to a different precinct within their community.  Are there enough electrical generators available for use to power all of the election precincts in the affected areas?  What about polling places that were destroyed by the storm?  Sure, communities have coped with a fire or power outage or a flood that led a polling place in a community to shift operations to another location within the community.  What happens when ALL of the polling places within the community have been wiped out?  When there is no power, how do you effectively communicate with the voters to inform them as to where they should go to vote?  How do you handle people who do not have their Voter ID card, or Driver’s License, or other identification as a result of fleeing the storm?  How do you address the votes of the thousands of relief workers that are many miles from their own homes?

 

Under the US Constitution, it takes an act of Congress to change a date for a national election.  This is one of the true powers of Congress.  Speaker of the House, John Boehner (R-OH) has signaled no intent to call Congress back into Emergency Session.  The House of Representatives has been adjourned until November 13, 2012.  Without action by this Congress, the election will be held, as scheduled under law on November 6, 2012, and millions of Americans will not be permitted an opportunity to cast their votes for President and Vice President, US Representative, or US Senator.  Secretaries of State, in the affected states, have the authority to adjust the date of elections within their states for non-national races only.  This means, they could tally the votes for President, Vice President and US Congress and reschedule an election for statewide offices or ballot proposals.

 

Some people may think that many of the folks currently without power are in urban, or metropolitan, areas and would tend to vote for the re-election of President Obama and therefore no Congressional action is necessary.  Following a national catastrophe of the magnitude we have experienced, it is these areas that generally have the most resources directed toward the restoration of services.  It is the more rural areas that may suffer a greater impact if Congress does not take action and Mr. Boehner is well aware that many of these areas trend toward voting Republican.

 

In any case, the election that is merely five days away, will be remembered as seriously flawed and whomever occupies the White House in January of 2013 will be forever a tainted candidate because the votes of many Americans were not allowed to be cast.

 



Hear ye, hear ye

Within the next two weeks the United States Supreme Court will issue its ruling on the Affordable Care Act (ACA). There is much speculation as to what the Court has decided (yes, the case has already been decided) when it issues its ruling on the Constitutional questions raised by the Affordable Care Act. Some think it will be completely struck down while others (you have to love dreamers) believe it will be completely upheld. Most of us who have actually read the Act, believe it is quite likely that the Justices have decided that parts of it fail to pass Constitutional muster and must be struck down while leaving large portions of the ACA intact. In any event, the ruling of the nine men and women who comprise the highest court in our land, will have far reaching effects on the lives of everyday Americans. Not only will their decision(s) affect average folks, the impact will be felt by healthcare providers, insurance companies, pharmaceutical companies, and medical device manufacturers.

For the President, the ideal situation would be for the Justices to decide that the entire Act is Constitutional, thus bouncing any attempts to modify or repeal all, or part, of it to Congress which is unlikely to muster the support for doing so. I, personally, think this scenario is unlikely for two reasons. First, I can see a lack of Constitutional backing for the individual mandate that is a key provision of the Act. Second, given the current make-up of the Court, I do not see a majority of its respected members agreeing that this provision is Constitutional. Certain members of the Court are not especially keen on having the Government require individuals to do certain things. In many ways, this is a very good thing.

For Congressional Republicans, an ideal scenario would be for the Court to strike down the entire Act. This would allow them to put forth legislation addressing the provisions of the Act that a majority of Americans have repeatedly identified are quite acceptable to them. This would allow Republicans, with very broad bipartisan support, claim they support meaningful healthcare reform. I also do not believe this scenario is very likely because precedent shows that the Court has supported the right of Congress to enact laws that address interstate commerce. The issue the Court must grapple with here is that there is no specific severability clause that would permit the Justices to only strike portions of the Act. Not that there is no precedent for allowing this, it is, however, interesting that no such clause was included in the final legislation that was sent to the President in March of 2010.

Personally, I am inclined to believe that the Justices have decided that the Act can survive with the removal of the individual mandate. It is not up to the Court to decide that the hardship forced on corporations resulting from a loss of revenue as this is not a question posed by this case. So, what happens if the individual mandate is struck down and the remainder of the Act survives intact?

Medical insurances companies will, initially, face the greatest financial burden. They will (continue to) be forced to provide coverage to anyone regardless of medical condition. Further, they will (still) not be able to drop people when they become ill. These are both extremely important issues for individuals who, inevitably, will require healthcare services at some point in their lives. Pharmaceutical companies are also on the hook for reducing the cost of medications to some groups and this would not change with or without the individual mandate. Hospitals and other healthcare providers will be hurt with the loss of an individual mandate as Medicare and Medicaid reimbursement rates are slated to be kept under a tight rein under provisions of the Act. With otherwise healthy folks showing up in Emergency Rooms, reduced reimbursement and increased volume will make it a challenge to continue to provide high-quality care.

The impact on businesses and individual purchasers of health insurance will become very noticeable without an individual mandate. These folks can expect their premiums for health insurance to rise significantly especially for those who have pre-existing conditions or who work in inherently dangerous fields. Without the guarantee of a large, relatively low-risk, pool of people purchasing insurance, companies that sell insurance will be forced to raise rates on everyone who does buy in order to maintain a healthy profit-margin and in light of the fact that individuals cannot be denied insurance. Businesses and corporations will likely decide that it may be cheaper to self-insure thus drawing even more customers out of the health insurance marketplace. As this begins to happen health insurance providers will begin to go into bankruptcy leaving millions with insurance policies that are worthless. This is the worst case scenario, however, it is what will ultimately lead to something I have recommended for more than a decade. As insurers fail, healthcare providers become sucked in by a staggering loss of revenue, and they, too become bankrupt. The Government, belatedly, recognizing that healthcare is not a commodity that cannot be satisfied by the traditional laws of supply and demand, will have to take action and a form of Universal Healthcare will be implemented.

Could this be avoided? Not likely. America has the greatest medical technology in the world. The healthcare industry in the United States makes up about 1/6 of our Gross Domestic Product (GDP). The costs associated with the development of new drugs and medical devices that are designed to improve the quantity, or quality, of life are, well, quite costly. Healthcare in this country is, literally and figuratively, too big to fail. Unfortunately, finding a way to pay for this is an issue. For far too long America and its leaders have acted as though healthcare, and access to it, is a commodity that is to be financed based on free-market principles alone with very limited regulation. American citizens have become so insulated from the actual costs associated with healthcare through employer-provided insurance benefits. We have come to expect the very best in medical innovation even though it is not always necessary. We demand the newest drugs. We know we will receive tests performed on the latest diagnostic machines and that a robotic system can be used for almost every surgical procedure. This is neither cost-effective nor wise. However, when the Affordable Care Act was introduced, critics called attempts to look at the feasibility or appropriateness of care, people balked and critics derided this, quite incorrectly, as the implementation of, “death panels.”

Instead of implementing a Universal Healthcare system, or at least the framework of such a system, when they had the opportunity, Congress attempted to circumvent the inevitable. Healthcare has become a major burden on businesses and individuals. A uniquely American model based on the healthcare systems of every other industrialized, and a significant number of developing, nations should have been seriously discussed and implemented. We had the chance to do this in 2009 (and a number of times in the century prior) and we failed. We were provided legislation that, despite its length, failed to ensure that every citizen had insurance. The final bill failed to provide sufficient cost-containment mechanisms. The expansion portions of the bill were challenged by Attorneys’ General, allegedly, acting in the best interests of their citizens. And this is why we eagerly, and anxiously, await the opinion of nine folks in black robes.

One other prediction. Whatever the ruling(s) that are presented, they will be nearly unanimous. The Court will have considered its own integrity and, realizing the view of the Court in recent years as more in lockstep with their Presidential nominator’s political affiliations, will make sure that whatever conclusion has been reached is supported by a near-unanimous Court.



The Naked Gun
May 25, 2012, 2:30 pm
Filed under: Health and Medicine, Legal | Tags: , , , , ,

Imagine a situation such as this.  A young guy, in his late-20’s, decides to surprise his live-in girlfriend of three years with an engagement ring for her Birthday.  He gets home early from work and intends on hiding the ring inside her nightstand drawer.  He opens the drawer and is surprised to see that there is a handgun sitting atop a nice concealed holster.  It is a Glock, 9 mm semi-automatic.  The guy is stunned.  Actually, he is shocked.  How could this woman he has lived with for three years have kept this hidden from him?

He immediately goes to the local police department and says that he wants this woman arrested for failing to disclose that she had concealed a deadly weapon from him for all this time.  The Desk Sergeant asks him if the safety was on and the man replies, “Yes.  There was even a trigger lock in place.”  The cop asks him what the problem is then.  He says, “It’s a deadly weapon!  She could shoot me at anytime if she wanted.”  The police officer inquires if the girlfriend has ever expressed an intent to harm him in the past and the man says that she has not.  The cop, being patient, asks the man if the gun was loaded and the man says he figured that it was.  “Why else have a gun?”  The man proceeds to tell the police officer about a the brother of a friend of his cousin who was shot to death during a robbery in San Francisco in the late-‘80’s.  He says that he is petrified of guns because of that and that it should be against the law not to tell someone that you are intimate with that you own a deadly weapon.  The police officer suggests the man go home and talk with his girlfriend about his concerns and that there is nothing the police can do because it is not against the law to own a firearm in most cases.

Pretty silly, right?

Now, picture this.  A young guy, in his late-20’s, decides to surprise his live-in girlfriend of three years with an engagement ring for her Birthday.  He gets home early from work and intends on hiding the ring inside her nightstand drawer.  He opens the drawer and sees some prescription medications inside the drawer.  Curious, he Google’s the names of a couple of the drugs and is shocked to learn they are prescribed to treat HIV.

He immediately goes to the local police department and says that he wants this woman arrested for failing to disclose that she had concealed a deadly weapon from him for all this time.  Now, here is where things change.  In many states, a law enforcement officer does not have to investigate as to whether there was an intent to harm or even an ability to harm.  The fact that the woman may not have disclosed her status to her partner is sufficient to initiate a warrant for her arrest.  The arrest will likely lead to either a plea or a conviction, and, depending on the Judge, imprisonment is a likely possibility.  This is the nature of disclosure laws drafted in the late 1980’s in most states.  This is also a very real possibility for anyone living with HIV or AIDS.  Without regard to any effort a person with HIV may make to prevent transmission, the law looks simply at whether or not there was disclosure to an intimate partner.  This attitude is outdated and inconsistent with regulations governing any other communicable illness.

Today, however, the law fails to keep up with current realities associated with infection with the Human Immunodeficiency Virus (HIV).  First, contemporary therapies are able to significantly reduce levels of HIV within blood and other body fluids to a point where the risk of infecting others approaches very remote.  Second, the use of condoms is well documented to be the most effective (following abstinence) method of prevention of any sexually-transmitted infection (STI).  Third, laws requiring disclosure were introduced prior to the availability of effective anti-retroviral medication regimens and while scientific knowledge regarding modes of transmission was still being determined.

Some Prosecutor’s have invoked terrorism statutes against people with HIV.  Some have invoked assault with a deadly weapon laws and attempted murder laws.  Some have used rape provisions even though no force or coercion was involved.  Terrorism, assault with a deadly weapon, rape and attempted murder each has a common link.  They are each associated with an intent to harm.  Failure to disclose one’s HIV status does not even imply intent to harm.  A case may, perhaps, be made regarding a breach of contract.  Failure to disclose does not necessarily violate an implied or informed consent between two parties.

In recent cases, a Michigan man was charged under terrorism statutes because he bit his neighbor during an altercation and a 23-year-old Ohio man was put on trial for failing to disclose that he had contracted HIV from a blood transfusion in his early teens before having protected sex with his 20 year-old girlfriend.  In the Michigan case, Prosecutors dropped the terrorism charges and the judge in the Ohio case refused to follow the Prosecutors recommendations for jail time and making the young man register as a sex offender.

In a majority of these cases, civil remedies are available to address these cases.  I believe it is now time to review, and revise, laws relating to disclosure of HIV status.  I do not believe that the law should be used to criminalize a person’s status.  If that is the intent of the law, then why is it not applicable to other STI’s including syphilis, gonorrhea or herpes?  Should it not apply to individuals with Hepatitis B or C as it is well known the HBV or HCV can lead to liver cancer or liver failure?  If the answer is no, then there is an inconsistency in the law and that inconsistency is based on bias which cannot be tolerated in the law.  If the answer is yes, then there is an inconsistency in our values regarding personal responsibility and that those who claim that individuals must have the ability to make reasoned decisions are failing to be consistent in this regard as a result of prejudice.

In any case, without proof of intent to cause harm, criminal statutes are inappropriate for the regulation of consensual behaviors between mentally competent adults.  Civil statutes exist for this purpose and should be thus used.  This topic is a controversial one, however, critical thought suggests this is a topic worth examining and discussing.