June 2016

A good number of people in my Facebook feed are passionate about gun control right now. And it appears that I have friends or “friends” on both sides of the debate. It would be nice if this passion would transfer to other amendments such as the Fourth or the First.

Alas, much of it is painful to read. As, Facebook does not exactly lend itself to intelligent discussion of any serious issue — its as if the whole thing is system of bumper stickers in real time. I’ll lay out some things that make it tough and explains why this development in the news has led to more “unfollows” than even the election had to this point.

  • The discussion is a policy debate masquerading as a Constitutional debate. The government’s ability to regulate the purchase, manufacture, and possession of firearms and ammunition is not unfettered, but it is far-reaching. The Supreme Court of the United States said so in Heller. I have written about Heller in a past post. Most of the big questions related to the second amendment are settled as a matter of constitutional law. The question is not whether a ban on certain types of rifles or more rigorous background checks is constitutional. The real question is whether such policies ought to exist as a matter of law. Constitutional law should likely never be debated by memes on social media. But here, the whole exercise is a bit of a detour even if memes were intellectually a good idea. If only Facebook had a way to test its users on whether they have read Heller before allowing them to write “Second Amendment” in a post.
  • Nobody Seems to Know What an “Assault Weapon” is or What Kinds of Weapons are More Dangerous than Others. The AR-15 is at the center of the controversy. But perhaps this part of the debate is misplaced as well. In a closed fire setting such as a nightclub, a handgun seems a more deadly prospect than an AR-15. In close quarters, a handgun would be more difficult to grab versus a rifle. And a rifle offers little by way of an advantage where the target is close. In reality a handgun can be fired rapidly, can be concealed, and is more difficult to take from an assailant. Yet, much of the talk is about banning automatic or semiautomatic rifles. Why is there no discussion of handguns? It is likely because handguns aren’t as visually powerful as rifles and because more people are likely to have handguns than AR-15s.
  • Religious Fundamentalism is the Issue. More dangerous than the weapon used is the ideology of the man who held the weapon. Sam Harris, in his most recent podcast, notes that much of the Obama administration’s reaction to the nightclub shooting would not make sense if the weapon of choice had been a pressure cooker bomb similar to the one used in the Boston terrorist attack. Religious fundamentalism is the real problem. In its Islamic form, it has led to terrorist attacks around the world. In its Christian form, it has led to terrorist attacks around the world and to some some fairly discriminatory recent legislation.

In the political discussion around the Orlando nightclub shooting, we are missing an opportunity to have a First Amendment debate and are missing the opportunity to take a sobering look at the real cost of religious fundamentalism. The second amendment piece is largely settled.

It appears that the big news from the State Bar’s annual meeting is that the Bar will do nothing to encourage voters to oppose the referendum that will gut the Judicial Qualifications Commission. In the wake of the last-minute vote to gut the JQC, its chair, Lester Tate, resigned. Mr. Tate called upon the Bar to do everything in its power to see that the voters defeated the initiative. The Bar will do nothing. It won’t even encourage bar members to tell their friends about it. So, when faced with the decision in the ballot box, voters won’t even understand what the whole thing is about. And it will be worded in a way that begs for a yes vote.

The Bar, through its legislative representatives, has explained the decision not to oppose the matter:

  1. They don’t want to oppose the restructuring because they want to have some input on making JQC proceeding more public. Of course, judges appear to want the proceedings out in the open, also. So, it looks like the meetings are going to open up regardless of what the bar does.
  2. The Bar estimates that it would cost $5 million to oppose the initiative. I’ve not seen a breakdown of where these figures come from.

This sounds sketchy, but I’ll assume it’s all true. I’ve been both supportive of and critical of the JQC in the past. Overall, I thought that the JQC has made the bench a better place. There are fewer circuits today than when I started practicing that were hours away in distance and 50 years back in time. And I fear that the number of circuits like that will grow under the new regime.

Here’s a thought. Why can’t the State Bar of Georgia promulgate a set of standards of professional conduct for lawyers who function as judges? The rules already have a set of special entries for prosecutors. Indeed, why couldn’t the State Bar incorporate into the Standard of Professional Conduct the Judicial Canons of Ethics? Then the State Bar could discipline judges as the JQC did in its heyday of about five years ago. The Bar could bring JQC investigator Richard Hyde on staff. The Bar could even create a staff devoted to judicial/lawyer discipline. The cost of bringing the JQC function in-house would be substantially less than $5 million, and the Georgia bench could either make it into the 21st century or at least not revert very far into the 20th.

Just a thought.

Since the Orlando Night Club shooting, Trump and others have criticized the President for not using the magic words “Radical Islam” in discussion of the news. According to NBC News:

When Donald Trump blasted President Obama for failing to make reference to Islam in connection with the Orlando nightclub massacre, the GOP’s presumptive presidential nominee was renewing a longstanding criticism of the White House’s carefully calibrated rhetoric about terrorism.

Obama “disgracefully refused to even say the words ‘Radical Islam’,” Trump said in a statement Sunday. “For that reason alone, he should step down. If Hillary Clinton, after this attack, still cannot say the two words ‘Radical Islam’ she should get out of this race for the Presidency.”

Trump repeated his criticism on TODAY Monday morning, saying Obama was “not addressing the issue, he’s not calling it what it is.”

Although the Orlando gunman pledged allegiance to ISIS, Obama didn’t mention Islam in his remarks about the mass shooting Sunday. In televised remarks at the White House Monday, Obama said the killer had been influenced by “extremist ideology,” but the president did not use the modifier “Islamic.”

This is an interesting argument. Obama uses the word “extremist” instead of referencing “radical Islam,” and the price he should pay is resignation or impeachment. He no longer gets to be President for failing to use those exact words.

And yet neither Mr. Trump nor anybody else asked the President to use similar terms to describe radical militant Christian terrorist Robert Lewis Dear when he acted from motives of, well radical militant Christianity. Mr. Dear went into a Planned Parenthood clinic last Fall where he killed 3 people, including law enforcement. He wounded 9 more in an intensive multi-hour standoff. His motives were purely religious in nature. He called himself a “warrior for the babies.”

The New York Times profile describes his religious views in depth.


A number of people who knew Mr. Dear said he was a staunch abortion opponent. Ms. Micheau, 60, said in a brief interview Tuesday that late in her marriage to Mr. Dear, he told her that he had put glue in the locks of a Planned Parenthood location in Charleston.

“He was very proud of himself that he’d gone over and jammed up their locks with glue so that they couldn’t get in,” she said.

And, similar to accounts of many Islamic fundamentalists who killed for their faith, he saw holy martyrdom as a goal. A person who knew him said, “she can’t believe he was capable of such things, and I think that’s what’s upsetting her most,” the relative said about Ms. Bragg. “He believed he was doing God’s will, and I’m sure he probably wanted to die in the process of carrying out what I’m sure he thought was right.”

Yet, to read news accounts describing what Mr. Dear did, his actions are seldom described as terrorism (though he certainly is a terrorist). He is described as a mentally ill man who committed a criminal act (which, it appears, he is and did).

But one must look hard to find any description of him as a radical militant Christian. In fact, when pressed, Mr. Trump would not use the words “radical militant Christian.” He said on Meet the Press:

“I think it’s terrible. I mean, terrible. It’s more of the same. And I think it’s a terrible thing. He’s a maniac,” Trump said on NBC’s “Meet the Press.”

“I think he’s a sick person,” he added. “And I think he was probably a person ready to go. We don’t even know the purpose. I mean, he hasn’t come out, to the best of my knowledge, with a statement as to why it happened to be at that location.”

He still has refused to acknowledge that the man who did this awful thing was radical, a Christian, or even a terrorist for that matter. Maybe he should drop out of the race.

Fundamentalism is fundamentalism no matter what the name for God is at the center of it all. And generally if a person is shooting up or blowing up a large group of people, you can bet that he  thinks that his scripture calls for it or God has requested that he do it. When fundamentalist Christians kill for their views, the action is deemed a criminal act by a crazy person. And there seems to be a very nuanced conversation calling into question whether the person was really a Christian, since the New Testament would not really call for actions such as theirs. Yet, when a Muslim commits an act for religious motives, the person is clearly a terrorist acting out the tenets of his faith. And any condemnation of the person’s actions that does not bear witness to this truth is grounds for impeachment.

If one compares The Bible to the Quran, the Bible is a much more violent document, by far. So, perhaps, if we are to ban any group on the basis of religion, we should keep a close eye on Christians (which I am), particularly the Fundamentalists among us. Yet, I don’t expect such a call to come from the presumptive Republican nominee since Christian Fundamentalists are such a big part of the Republican base.