A real review of the Monsanto Protection Act

 “If the circumstances were otherwise, I should veto the bill. Even so, I cannot permit this legislation to become effective without registering my protest against the attachment to this bill of an irrelevant and unwarranted rider… This system of attaching riders to bills relating to a wholly different subject has been used by former Congresses in a number of notable cases. Such abuses of sound legislative procedure have been protested by many former Presidents, and the practice has been condemned by sound opinion. It is noteworthy that the Constitutions of many States require that a proposed law shall relate to only one subject… All that remains to me is to permit the act to become a law without my signature. I am doing this with two earnest objections. The first is against the practice of attaching extraneous riders to any bill.”

• President Franklin Delano Roosevelt, addressing The Public Debt Act of 1943 (which allowed national debt authorization to gear up for WWII)

On Tuesday, President Obama signed the Consolidated and Further Appropriations Act of 2013. There has been much political hay made about the President slipping the Act in while the country and media were distracted with the equality in marriage arguments before the Supreme Court. However, this is not really the case. The opposition is not to the bill as a whole, its to a rider attached to the bill known as the Farmer Assurance Provision, or known to the opposition as the Monsanto Protection Act. The full text of the Provision is below:

13 SEC. 733. In the event that a determination of non

14 regulated status made pursuant to section 411 of the

15 Plant Protection Act is or has been invalidated or vacated,

16 the Secretary of Agriculture shall, notwithstanding any

17 other provision of law, upon request by a farmer, grower,

18 farm operator, or producer, immediately grant temporary

19 permit(s) or temporary deregulation in part, subject to

20 necessary and appropriate conditions consistent with sec-

21 tion 411(a) or 412(c) of the Plant Protection Act, which

22 interim conditions shall authorize the movement, introduc-

23 tion, continued cultivation, commercialization and other

24 specifically enumerated activities and requirements, in-

25 cluding measures designed to mitigate or minimize poten-

1 tial adverse environmental effects, if any, relevant to the

2 Secretary’s evaluation of the petition for non-regulated

3 status, while ensuring that growers or other users are able

4 to move, plant, cultivate, introduce into commerce and

5 carry out other authorized activities in a timely manner:

6 Provided, That all such conditions shall be applicable only

7 for the interim period necessary for the Secretary to com-

8 plete any required analyses or consultations related to the

9 petition for non-regulated status: Provided further, That

10 nothing in this section shall be construed as limiting the

11 Secretary s authority under section 411, 412 and 414 of

12 the Plant Protection Act.

First, as always, lets cover a little background. In legislative procedure, a rider is an additional provision added to a bill, often having little connection with the subject matter of the bill. Riders are usually created as a tactic to pass a controversial provision that would not pass as its own bill. Occasionally, a controversial provision is attached to a bill not to be passed itself but to prevent the bill from being passed. I will be doing a post later about riders and amendments, to go into greater detail. I think they are one of the most dangerous risks to the future fiscal health of the country.

Riders are most effective when attached to an important bill, such as an appropriation bill, because to veto or postpone such a bill could delay funding to governmental programs, causing serious problems. When the veto is an all-or-nothing power as it is in the United States Constitution, the executive must either accept the riders or reject the entire bill. The practical consequence of the custom of using riders is to constrain the veto power of the executive.


 

That is what happened in this case. The bill helped the government avoid a March 27 shutdown. It was absolutely necessary, so it was a no lose scenario for the Republicans. Once the rider was attached, either their corporate sponsor got what they paid for (and by paid, I of course mean their campaign contributions) or the President vetoed the bill and they could blame him for a government shut down. Often overlooked, is the fact that HR 933, the bill that Obama signed, was rushed through Congress and onto his desk. Most, if not all, of the Congressmen who voted for it didn't know about the provision. I would wager that not one Congressman read the bill in its entirety. In fact, there was almost no time to read the final version before the vote. With the government shut-down approaching, the President had no real option.

To counteract riders, 43 of the 50 states have provisions in their state constitutions allowing the use of line-item vetoes so that the executive can veto single objectionable items within a bill, without affecting the main purpose or effectiveness of the bill. The Line Item Veto Act of 1996 was passed to allow the President of the United States to have the same authority that those state governors have. However, the Supreme Court struck down the act as unconstitutional in Clinton v. City of New York. Thus, President Obama had only the choice to veto the entire bill, and shut down the government, or sign it with the rider attached. The lesser of two evils, he chose to sign it.

Realistically, there is no real long-term impact. The Provision will only remain in effect for six months until the government finds another way to fund its operations and can address the Sequestration. However, it sets a terrible precedent. Corporations, already given too much power and authority, and dubbed by some “too big to jail,” can get around consumer safety protections if they get Congress on their side. Furthermore, it makes the suggestions that court challenges are a privilege, not a right. I will say that, realistically and Constitutionally, Congress does not have the right to limit the power of the judiciary. Judicial review is a check and balance on the legislative. However, addressing it at all is a 'shot across the bow' to the judiciary, to let them know their once sacrosanct authority has limits.

In conclusion, I guess my perspective is to say- Let's all calm down. Yes, this sets a bad precedent. But realistically, there is no long term harm from this bill. It will expire at the end of the fiscal year. And it's not something that we shouldn't expect. Corporations have too much power. They make large campaign contributions and can literally write legislation to hand-off to elected officials. Our. System. Is. Broken. I think you can take from the tone of this blog that I've already reached that conclusion, I hope you will too. The one benefit of the hoopla surrounding this legislation is that people are waking up and seeing the system for what it is.

© Robert Cheek, 2013

Iraq at 10

 

March 20, 2003 – Another date that will live in infamy for our generation. I remember it well. I remember the months leading up to it as well. I had just turned 19 years old. It was my first year of college; I was a freshman in the political science department at Hofstra University.

To tell this story, one has to go back to the fall of 2001, where I was entering my senior year of High School. It was a normal September day. School started at 7:45 a.m. First period passed as normal: Mrs. Jarrell's AP English class. Second period I had with a special teacher: statistics with Mrs. Powers. I was friends with her son, Robbie, who was now in college in New York. As I walked towards the classroom, something was stirring in the halls. Mrs. Powers tried to get the class in order. We had just begun the lesson when someone came rushing into the room. They stopped, stunned, before rushing over to Mrs. Powers and whispering in her ear. She didn't say anything to us, but rushed out of the room. I wouldn't find out until third period what was going on. The date, of course, was September 11, 2001.

The coming weeks were full of many emotions: anger and fear among them. I was supportive of the War in Afghanistan when the country began gearing up, and remained supportive in the initial months. Flashing forward to the Fall of 2002, I knew something was different. There was all of the rhetoric and all of the claims, and I didn't believe any of them. However, to set the stage for what is to come, we must, as we so often do, look to the past.

Iraq, or the area that we now call Iraq, has 10,000 years of history. It is called the Cradle of Civilization for a reason. The earliest civilizations rose up in the area. Various tribes and civilizations fought over and controlled the area until Alexander came through with Maecedonians. After that a string of wide-ranging empires ruled the area until the fall of the Roman Empire; then once again warring tribes fought for control of imaginary lines in the sand.

In the 16^th century, the area fell under the control of the Ottoman Turks and their empire. Even with rule from far away Constantinople (Istanbul), Iraq was a battle zone between the rival regional empires and tribal alliances. Even the Iranians would insert influence for extended period. The Ottoman's divided their pashalik of Baghdad into Mosul Province, Baghdad Province, and Basra Province (sound familiar). One commonality arises from this brief study of history: without a strong, militaristic influence; an iron rule if you will; from a governing body, the tribes of the area were prone to infighting.

Ottoman rule ended after WWI. The Ottoman's had sided with the Central Powers, and although they, and the Vichy-French in Syria, held their own against the English in the Middle East, the Empire was dismantled. The Entente divided up the area, drawing arbitrary lines in the sand, as so many had before them. They did not taking into account the politics of the different ethnic and religious groups in the country, in particular those of the Kurds and the Assyrians to the north and the Sunni's to the south.  What followed was further infighting, especially focused on the Kurds in the North, interspersed with leaders propped up by the Western powers. The change began in 1963 when the Ba'athist party took power. Most membership was made up of the Sunn'i minority ethnic group, but what began were the strong arm tactics that would bring a sort of peace to the country. Even still, infighting continued. That of course, ended in 1979, when Saddam Hussein forced President Ahmed Hassan al-Bakr to resign and became both President and the Chairman of the Revolutionary Command Council. What followed in the next two decades could be characterized either as a period of brutal oppression, or perhaps more aptly, exactly what the country needed to modernize.

Despite the economic toll the eight year long Iraq-Iran war would take, Hussein created a modern, forward thinking country. While his neighbors repressed women and remained ideological states, Hussein focused on bringing his country into the 20^th century. That all came to a halt with the invsion of Kuwait in 1991.

After being resoundly beaten by the Coalition forces, the United Nations bagan a series of embargoes that would cripple the country economically and lead to wide-spread hardship and desparation. Still Hussein stood defiantly against the West: allowing weapons inspectors to search on his terms and continuing to intimate that it was Iraq's right to have weapons programs. I had opportunity in 2006 to have a personal conversation with Scott Ritter, a UN weapons inspector in Iraq from 1991-1998. Although our conversation was wide-ranging, touching on the topic of Iraq, he made it clear to me, as he had to the public and media in 2002 and early 2003, that Iraq had no weapons program and, in fact, was incapable of supporting those programs. Nonetheless, in the Fall of 2002 and Spring of 2003, the US was on the march to war with Iraq.

That march to war began in 1991, after the close of Operation Desert Storm. From that conflict came what began as the Wolfowitz Doctrine and would later evolve into the Bush Doctrine. I encourage you to read more about it here (http://www.pbs.org/wgbh/pages/frontline/shows/iraq/etc/cron.html) Eventually, that policy would clarify into one of preemptive warfare. That would be one of the many reasons postulated as justification for the coming War.

In October 2002, about 75 senators were told in closed session that Iraq had the means of attacking the Eastern Seaboard of the U.S. with biological or chemical weapons delivered by unmanned aerial vehicles (UAVs.) This occurred just a few days before the U.S. Senate voted on the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq.  The Senate voted to approve the Joint Resolution with the support of large bipartisan majorities on 11 October 2002, providing the Bush administration with a legal basis for the U.S. invasion under U.S. law. On 5 February 2003, Colin Powell continued the charade by presenting further evidence, in his Iraqi presentation to the UN Security Council, that UAVs were ready to be launched against the United States. At the time, there was a vigorous dispute within the U.S. (and foreign) military and intelligence communities as to whether CIA conclusions about Iraqi UAVs were accurate. Other agencies suggested that Iraq did not possess any offensive UAV capability. Bush could not get the UN support that he wanted, but sought to pursue the war anyway. Meanwhile, most of the main-stream press, and Congress itself, went along for the ride, either cowered by an Administration that resorted to intimidation to get its way, or simply because they were too lazy to do their jobs.

On Feb. 26, 2003, President George W. Bush gave a speech at the American Enterprise Institute, spelling out what he saw as the link between freedom and security in the Middle East. “A liberated Iraq,” he said, “can show the power of freedom to transform that vital region” by serving “as a dramatic and inspiring example … for other nations in the region.”  The goal was to remove a dangerous dictator and his supposed stocks of weapons of mass destruction. It was also to create a functioning democracy and thereby inspire what Bush called a "global democracy revolution." Three weeks later, the United States and Coalition forces invaded Iraq, a sovereign nation.

 

As for the war itself, I'm sure we are all familiar. March 19, 2003 we all watched on CNN as “shock and awe” exploded all over Baghdad; and again the next night in even greater detail. That day the ground campaign began as well. While Vietnam may have been the first televised war, Operation Iraqi Freedom brought the war to American homes in a never before seen way: embedded reporters, real-time reports, and citizens following troop advances online. By May 1, 2003, President Bush was standing on the deck of an aircraft carrier in front of a banner reading “Mission: Accomplished.” Then the real fight began: an eight year insurgency and American involvement that wouldn't end until December of 2011.

Here we stand 10 years later. The war in Afghanistan rages on in its 12 year; and although the US involvement in Iraq is for the most part over, some troops and civilians remain. The last American soldier to die in Iraq before the withdrawal was killed by a roadside bomb in Baghdad on 14 November 2012. Now we have the opportunity to look backwards at this time period in our history. Hindsight, as they say, is 20/20. What do we see now, and what will historians say in the years and decades to come?

Soon after the invasion, it became obvious that the administration had no clear plan for Iraq’s rebuilding. The Bush/Wolfowitz doctrine explained that freedom was humanity’s natural state: democracy would spring forth naturally, like a geyser, once the dictator’s control was lifted. Yet when Hussein was toppled, the main thing liberated was the blood hatred, millennia old and described above, that decades of dictatorship had suppressed beneath the surface. Yet, neither Secretary of Defense Donald Rumsfeld nor the top military leaders had much desire to wade into “nation-building,” a focal point of the Vietnam-era protests. Instead of reacting positively, accepting that having a long-term plan would have been superior but acknowledging that they didn’t have one, U.S. proconsul, L. Paul Bremer, issued his two infamous orders, abolishing the Iraqi military and blocking Ba’athist party members from holding government jobs. As a result, any semblance of order that remained broke down completely. 

In the vacuum emerged the “insurgency.” It was never a unified rebellion but rather a multiplicity of groups, harboring a multiplicity of resentments and ambitions, some of them against the interim government, some against the American occupiers, and some against one another. The fighting intensified and widened, the American commanders initially had little idea what to do about it. As Coalition forces focused on protecting themselves and the Western envoys, the country degenerated into civil war.  David Fromkin foresaw all this when he wrote A Peace to End All Peace a quarter-century ago. He noted that the then-impending havoc would go on for quite a while, likening the situation to that of Europe’s in the fifth century “when the collapse of the Roman Empire’s authority in the West threw its subjects into a crisis of civilization that obliged them to work out a new political system of their own.” He said further, “It took Europe a millennium and a half to resolve its post-Roman crisis of social and political identity: nearly a thousand years to settle on the nation-state form of political organization, and nearly five hundred years more to determine which nations were entitled to be states … The continuing crisis in the Middle East in our time may prove to be nowhere near so profound or so long-lasting. But its issue is the same: how diverse peoples are to regroup to create new political identities for themselves after the collapse of an age-old imperial order to which they had grown accustomed.”  The very best that can be said is that two years later than its neighbors, not 10 years earlier than them, the Arab Spring arrived in Iraq. But the government the people are rising up isn’t the oppressive dictatorships of Libya or Syria, but against is the very one the U.S. installed.

Let’s look at the facts and figures. We were told we would be greeted as liberators, that the war would cost, at most, $50 to $60 billion and that the casualties would be minimal.  Brown University released a report entitled Costs of War about the Iraq War. The report only includes figures from direct war-related violence. It places total deaths of the war from during U.S. involvement at about 190,000 people. Seventy percent (70%) of the deaths (134,000) were civilians. U.S. losses totaled 4,488 military personnel and 3,400 security contractors. Coalition losses included 319 deaths. Allied Iraqi military and police suffered 10,819 deaths. Approximately 36,400 were Saddam loyalist forces or terrorist insurgents. Figures include 62 humanitarian workers and 231 journalists. Included, in whichever category is deemed most appropriate, are deaths like the following. Citing a new document (the Wikileaks release), the London Times reported: “an Iraqi wearing a tracksuit was killed by an American sniper who later discovered that the victim was the platoon’s interpreter. The documents…reveal many previously unreported instances in which American soldiers killed civilians—at checkpoints, from helicopters, in operations. Such killings are a central reason Iraqis turned against the American presence in their country. Other studies have differing totals. The loss of blood and life is unimaginable.  These figures vary, depending on who you ask:

 Below are some US military figures from the General Accounting Office.

In addition to the human cost, an incredible amount of collateral damage has resulted. Evidence suggests that women's human rights and freedoms have dramatically been cut since the US-led invasion. Once the most Western leaning democracy in the Middle East, under the US occupation, Islamist militias have waged a systematic campaign of violence against women in their bid to remake Iraq as an Islamist state. There has been a sharp rise in gender-based violence within families. Newly adopted Shari’a laws, such as Article 41 of Iraq’s Constitution, have degraded women’s rights, making them more vulnerable to abuses. 

According to The Hague and Geneva Conventions, the US, as an occupying power, was responsible for the human rights and security of Iraqi civilians. But US forces failed to meet this responsibility. Other human rights issues, which may be more or less infamous include: Abu Ghraib torture and prisoner abuse; Haditha killings of 24 civilians; white phosphorus use in Iraq; gang-rape and murder of a 14-year-old girl and the murder of her family in Mahmoudiyah; the torture and killing of prisoner of war, Iraqi Air Force commander, Abed Hamed Mowhoush; the killing of Baha Mousa; Mukaradeeb wedding party massacre, where 42 civillians were allegedly killed by coalition forces; controversy over whether disproportionate force was used during the assaults by Coalition and (mostly Shia and Kurdish) Iraqi government forces in Fallujah in 2004; the planting of weapons on noncombatant, unarmed Iraqis by three U.S. Marines after killing them (according to a report by The Nation, other similar acts have been witnessed by U.S. soldiers, and members of Iraq Veterans Against the War tell similar stories), and the Blackwater Baghdad shootings (and the legality of Blackwater in general). Human rights abuses, perhaps somewhat typical in war, have taken on a new meaning in a war that has no battle lines.

What about the finanacial impact? The financial cost of the war has been more than £4.55 billion ($9 billion) to the UK, and over $845 billion to the U.S. In March 2013, the total cost of the Iraq War was estimated to have been $1.7 trillion by the Watson Institute of International Studies at Brown University . Critics have argued that the total cost of the war to the U.S. economy is estimated to be from $3 trillion to $6 trillion, including interest rates, by 2053.

But while the financial cost to the nation was substantial, the damage to our prestige, not to mention the destabilization the War brought to the region, may prove to be incalculable. Iran has now become a greater threat than Iraq could ever have been, perhaps fueled by the fear of US action against them. Also, the Iraqi insurgency surged in the aftermath of the U.S. withdrawal. The terror campaigns have been engaged by Iraqi groups against the central government and the warfare between various factions within Iraq. The events of post U.S. withdrawal violence succeeded the previous insurgency in Iraq (prior to 18 December 2011), raising concerns that the surging violence might slide into another civil war. Some 1,000 people were killed across Iraq within the first two months after U.S. withdrawal.

In the early stages of the Iraq invasion, more than nine in 10 Republicans and seven in 10 independents said the effort was worth the costs. Just half of Democrats said it was worthwhile. Today, support for the war is lower across the board. Among Republicans, 57 percent see the war as worth fighting; just 35 percent of independents and 27 percent of Democrats agree. 





In his latest effort to defend the war, Cheney declared to filmmaker R.J. Cutler that the Iraq War was justified because the U.S. eliminated a regime that might have at some future time posed a threat. Former Secretary of Defense Donald Rumsfeld tweeted on the 10^th Anniversary:

Criticism abounds as we look back, and scholarly work will continue for decades. Both proponents and opponents of the invasion have also criticized the prosecution of the war effort along a number of other lines. Most significant of the criticisms are for the reasons pointed out above, but also the legality of the invasion, the adverse effect on U.S.-led global "war on terror"  Damage to U.S.' traditional alliances and influence in the region, especially Israel and Saudi Arabia, endangerment and ethnic cleansing of religious and ethnic minorities by insurgents, and disruption of Iraqi oil production and related energy security concerns (the price of oil has quadrupled since 2002).

So where does that leave us? From my perspective, ten years later I feel just the same as I did in 2003. The war in Iraq was a mistake, cite any of the above information for reasons why. 

© Robert Cheek, 2013

The Gun Control Debate: Real Solutions

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.

                              -  Second Amendment to the US Constitution, adopted December 15, 1791

Today I want to address a very controversial issue in the media and our country today: gun control. I want to reveal from the outset that I am a strong supporter of the 2^nd Amendment; I believe it should be read broadly, and any limitations should not be on the arms themselves, but rather access to them. I’ll explain as I continue.

Let’s start from the beginning. When analyzing any legislation, and don’t forget that the Bill of Rights was the first bit of Legislation approved by the new Congress; we must look at several factors. I undertake study in the same way a Court might, using statutory interpretation. A key concept I learned in law school was importance of punctuation and phraseology. This is how I construct the above legislation, whose wording and style was confirmed by Thomas Jefferson and adopted by the States.

First, we find which the key phrase is and which the modifier is. As I read the clauses, the main clause is “the right of the people to keep and bear arms shall not be infringed.” It is modified, meaning the main clause stands alone without it and it is merely an addition, by the phrase “A well regulated militia being necessary to the security of a free state”. Therefore, as I read and understand it, the right is absolute. The reasoning, at least partially, is the need for a well regulated militia and their impact on security. Now please, don’t misunderstand me, I do believe that the government is authorized to regulate that right, just as they are other rights.

Let me step aside and share another important aspect of my perspective. I am a private defense attorney by trade. Generally speaking, I read the Bill of Rights, and all laws and rights, broadly. For those amendments that apply directly to the people, I will always hold that principle to be true. Whether it’s the right to free speech, to be free from searches and seizures, to remain silent and not present evidence, to have an attorney, to have your case heard by a jury, to be free from excessive bail or punishment, or anything else- it should be read broadly.

Ok- back to the topic: another aspect of statutory interpretation is to look at legislative history. Unfortunately, there is no Congressional legislative history about the Second Amendment. There are some legislative histories from the States, but those who understand the process of ratification know that the State’s cannot change the wording of the Amendment. It becomes basically an up or down vote. Many say this was done purposefully, to hide the true history; but others point to the lack of ANY records- they just weren’t kept as well as they are now. No notes whatever were made of the Senate's debate in Congress, and the stenographer for the House of Representatives was a drunk. Stories tell of a man who often daydreamed and filled his journals with doodles and sketches, instead of the remarks of the members.

However, we can look at the history of the country and infer some legislative intent from that. American history is shared with English history. When William and Mary took the throne of England in 1688 after the Glorious Revolution, one of the first acts of Parliament was to restore the constitution with its provision that every man may arm for self-defense.  One hundred years later, the British had taken a more mercantilist policy with the colonies. It created a fall in prosperity and a return of hardships. Things got so bad that British troops had to be sent to suppress riots and collect taxes. Between 1768-1775, the British policy was to disarm the American colonists by whatever means possible. They used entrapment, false promises of safekeeping, banning imports, seizure, and eventually shooting persons bearing arms to accomplish this goal. In 1774, the British embargoed shipments of arms to America. It is said that the Revolutionary War began when militiamen met British troops at Lexington and Concord. The reason the British were marching on those towns to confiscate arms and powder. The colonists considered these actions a violation of their constitutionally guaranteed right, as Englishmen- see above, to have and use arms for self-preservation and defense. In 1777, William Knox, Under Secretary of State for Colonial Affairs, argued that: The Militia Laws should be repealed and none suffered to be re-enacted & the Arms of all the People should be taken away, & every piece of Ordnance removed into the King's Stores, nor should any Foundry or manufacture of Arms, Gun-powder, or Warlike Stores, be ever suffered in America, nor should any Gunpowder, Lead, Arms or Ordnance be imported into it without License; they will have but little need of such things for the future, as the King's Troops, Ships & Forts will be sufficient to protect them from danger. This is the sentiment that set the basis for the later amendment.

After the colonies won their freedoms, and the states organized to repair the Articles of Confederation, there were other concerns. The young nation was barely holding itself together. There were already differences arising between the Northern and Southern states regarding slavery. After being released from a tyrannical government which sought to change their way of life, the Southern states were concerned that the Northern states would seek to do the same. This was the source for the 3/5ths compromise and, some say, the second amendment. By assuring the Southern States that they could keep their arms, the Northern States were essentially saying that their freedom would be assured. On December 15, 1791, the second amendment was adopted.

Initially, states tried to enact gun control laws, but a pervasive sense of individual right spread. The first relevant state court decision was Bliss v. Commonwealth (1822, KY). The Kentucky court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire,..." This holding was unique because it stated that the right to bear arms is absolute and unqualified.

Gun control didn’t arise as a national issue again until the mid-19^th century. Once again, it involved slavery. In Dred Scott v. Sanford, Chief Justice Roger Taney wrote for the majority: "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union ... the full liberty ... to keep and carry arms wherever they went." While this was in the dicta of the case, it can be read to mean any citizen has that right. They continued to arise in response to Jim Crow laws in the Reconstruction South. A careful and treacherous path was walked by the Supreme Court in the application of the 14^th Amendment. As we know now, it would be 100 years before those issues would be settled.

In the 20^th century, the rise of organized crime, and the guns they used, during Prohibition led to the first National Gun control law: the 1934 National Firearms Act. This legislation served to tax and regulate automatic firearms as well as certain firearms components that were commonly used by organized crime at the time. Since 1934, fully automatic weapons fall under the regulation and jurisdiction of the Bureau of Alcohol, Tobacco and Firearms (ATF) (Now the Bureau of Alcohol, Tobacco, Firearms, and Explosives). The Supreme Court upheld the National Firearms Act of 1934 in US v. Miller, but clarified that the Second Amendment applies to the right to bear military arms as well as arms that the military may use. The NFA of 1934 was amended in 1986. The Hughes amendment to existing law made it illegal to sell automatic firearms made after May 19, 1986 to civilians. Any automatic firearms already in civilian hands could still be transferred, but would continue to fall under the regulation of the National Firearms Act of 1934.

The next milestone was the Gun Control Act of 1968. The initial act was a response to the assassination of John F. Kennedy. The legislation expanded licensing of dealers, made it illegal to mail order long guns, and it also established that convicted felons, drug users, and the mentally ill can be prohibited from possessing firearms. The Crime Control Act of 1990, among other things, established gun-free school zones and penalties for those carrying or discharging firearms in these zones. This was followed by the Brady Handgun Violence Prevention Act in 1993. Named after James Brady, President Reagan's Press Secretary, who was paralyzed by an assassin’s bullet, meant for the President; the Act established a five day waiting period and mandatory background check for handgun purchases as well as setting up the National Instant Background Check System (NICS) that is used today for every purchase performed through an FFL dealer. A year later, the Violent Crime Control and Law Enforcement Act, also known as the Assault Weapons Ban, was signed into law. The Act specifically banned certain automatic firearms and other firearms based on outward appearance rather than functional characteristics. This legislation expired in 2004 and studies are mixed about its effectiveness.

In response to the Virginia Tech shootings, in 2007 Congress passed the NICS Improvement Act. The purpose was to expand funding for NICS and to encourage states to submit mental health records to the NICS index. So far, NICS has been underfunded, receiving less than 6% of the allotted funding in the past few years, and a vast majority of the states have not been sufficiently providing mental health records. The final two major moments in the history of gun control occurred in 2008 and 2010, and both are Supreme Court cases. In DC v. Heller, the Supreme Court struck down D.C.'s handgun ban, and upheld the individual right to bear arms, and clarified that it extends to arms that are in "common use at the time" but did not cover "dangerous and unusual weapons." In McDonald v. Chicago, the Supreme Court struck down Chicago's handgun ban as unconstitutional, further building off of the Heller decision and extended the Second Amendment to individual states.

 That is the landscape of gun control historically and where it stands now. But where do we go from here. After the Theater shootings in Colorado and the Newtown shootings in Connecticut, there has been a renewed call for more gun control laws. This is not uncommon throughout the history of the country; neither is the result. More gun control laws have not been proven to lower crime rates significantly. In fact, I have not seen any confirmed correlation between these laws and crime rates.

Gun laws focus on responsible citizen gun owners. Those that commit crimes with guns don't use legally registered guns to do so; certainly not their own guns. I will certainly agree that changes need to be made, but I don't think the new plans address them. So what's in the President's new plan? These are the broad strokes, they fit into two categories. First, actions by Congress and second, actions by the Executive Agencies:

Proposed Congressional Actions

•              Requiring criminal background checks for all gun sales, including those by private sellers that currently are exempt.

•              Reinstating and strengthening the ban on assault weapons that was in place from 1994 to 2004.

•              Limiting ammunition magazines to 10 rounds.

•              Banning the possession of armor-piercing bullets by anyone other than members of the military and law enforcement.

•              Increasing criminal penalties for "straw purchasers," people who pass the required background check to buy a gun on behalf of someone else.

•              Acting on a $4 billion administration proposal to help keep 15,000 police officers on the street.

•              Confirming President Obama's nominee for director of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

•              Eliminating a restriction that requires the Bureau of Alcohol, Tobacco, Firearms and Explosives to allow the importation of weapons that are more than 50 years old.

•              Financing programs to train more police officers, first responders and school officials on how to respond to active armed attacks.

•              Provide additional $20 million to help expand the a system that tracks violent deaths across the nation from 18 states to 50 states.

•              Providing $30 million in grants to states to help schools develop emergency response plans.

•              Providing financing to expand mental health programs for young people.

Executive actions

•              Issuing a presidential memorandum to require federal agencies to make relevant data available to the federal background check system.

•              Addressing unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.

•              Improving incentives for states to share information with the background check system.

•              Directing the attorney general to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks.

•              Proposing a rule making to give law enforcement authorities the ability to run a full background check on an individual before returning a seized gun.

•              Publishing a letter from the A.T.F. to federally licensed gun dealers providing guidance on how to run background checks for private sellers.

•              Starting a national safe and responsible gun ownership campaign.

•              Reviewing safety standards for gun locks and gun safes (Consumer Product Safety Commission).

•              Issuing a presidential memorandum to require federal law enforcement to trace guns recovered in criminal investigations.

•              Releasing a report analyzing information on lost and stolen guns and making it widely available to law enforcement authorities.

•              Nominating an A.T.F. director.

•              Providing law enforcement authorities, first responders and school officials with proper training for armed attacks situations.

•              Maximizing enforcement efforts to prevent gun violence and prosecute gun crime.

•              Issuing a presidential memorandum directing the Centers for Disease Control and Prevention to research gun violence.

•              Directing the attorney general to issue a report on the availability and most effective use of new gun safety technologies and challenging the private sector to develop innovative technologies.

•              Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.

•              Releasing a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.

•              Providing incentives for schools to hire school resource officers.

•              Developing model emergency response plans for schools, houses of worship and institutions of higher education.

•              Releasing a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover.

•              Finalizing regulations clarifying essential health benefits and parity requirements within insurance exchanges.

•              Committing to finalizing mental health parity regulations.

•              Starting a national dialogue on mental health led by Kathleen Sebelius, the secretary of health and human services, and Arne Duncan, the secretary of education.

Some of these I agree with. I support requiring criminal and mental health background checks for ALL gun purchases (as do 74% of NRA members) and closing the gun-show and private sale loopholes. Tied to this are the expansion of access to information for those background checks, incentives for states to comply, and training on proper procedures for background checks. I also support criminal penalties for “straw purchasers,” another loophole in a way. This is the way that many guns used in gun crimes are acquired. Of course, I also support keeping first responders on the street, training new first responders, developing first response plans for schools and other groups, and most importantly, additional financing to expand mental health programs for young people and adults. Most of these are supported in large numbers by the American public AND even NRA members. The commonality, you will see, is addressing the true problems our country has; NOT limiting access to a certain kind of weapon, number of weapons, number of ammunition, or other policies that I think infringe on the basic, absolute right contained in the Constitution.

I want to address some fallacies out there. There is a line I love from Fight Club to describe this problem. Tyler, after examining the safety card on an airplane comments, “An exit-door procedure at 30,000 feet. Mm-hmm. The illusion of safety.” Let's talk about the “assault weapons” ban. The picture below is a perfect example of the lack of logic in the assault weapon ban: the fallacy of it.

 
I call the “assault weapons ban” the ban on scary guns. If you make it out of or add plastic, a gun gets a little scarier. If you use a pistol grip, scarier still. But it doesn't change the action of the weapon. IT CHANGES NOTHING.

What about limiting clip size to less than 10? Again, what does this do? To someone who knows how to use the weapon, like the person in the video below, the size of the clip won't matter.

 

In this video, the person fires more than 30 rounds, from 6 round clips, in less than 15 seconds (and according to the claim, gets a perfect score) If they had a thirty round clip, what difference would that really make? I can't see the logic in limiting the size of magazines. Again, that's coming from the perspective that the government doesn't have the authority to take my rights away unless there is a reason to do so.

I would be remiss without including, and here is my tangent down the rabbit hole, my further perspective on history and the future. I have been a student of history. When I look back, I see that governments of nations that seek to remove their citizens rights to own and possess weapons, are the types of governments that the citizens needed weapons to protect themselves from. I am certainly not advocating violent overthrow of the government, although I have been accused of that before. Again, I am coming from the perspective that the government does not have the authority to remove what I consider an absolute right without a justification. I have no criminal background and no history of mental health issues. I am not a risk to myself or society. I seek the means to protect myself from any harm brought from any actor- whether a criminal, an individual, or anyone else who has no right of authority over me.  That's the end of my conspiracy rant.

My solution comes down to this: the REAL solution is not to limit a responsible citizenry from embracing an absolute right, one that is no different from the absolute right to be free from search and seizure, to not be limited by the government, to be represented by counsel, or to not testify against themselves- all subject to limitation when justified by the government. The solution is to address the real problems: address the mental healthcare deficit in this country, limit access to guns for dangerous people, and make punishments for those who break the law. That is the only “gun control” that I will support. What you will find is that there is a strong correlation between countries which make mental healthcare a priority and those that have low numbers of gun deaths. Similarly, countries which make criminal and mental healthcare background checks mandatory for all weapons and focus on training gun owners also have lower numbers of gun deaths. Finally, those which raise the penalty for illegally transferring a gun, illegally selling a gun, or having a gun when the owner/holder isn’t allowed to posses one ALSO have lower gun death rates. What you won’t find, even in countries with the strictest gun possession laws, is a 0% death rate by firearms. Gun ownership is an ABSOLUTE right in this country, so let’s focus on fixing the real problem rather than paying lip service and offering “solutions” that won’t make a difference.

Please comment below- I want to hear your opinions. Then like and share this post so your friends and peers can join the conversation. 

© Robert Cheek, 2013