July 11, 2022

Constitutional Obligations as a Counter to Zero-Sum Thinking

[Cross-posted from The Hill]

By Alan Brownstein

The Constitution is a legal document that structures government and protects rights. Sometimes overlooked, however, is the reality that it is also a statement of values and principles on which the structure of government and the protection of rights is based.

These values and principles are not law — but they can suggest non-legal obligations that the government owes to its citizens or that citizens owe to each other.

Sometimes the obligation is stated explicitly as the foundation for the protection of a right. For example, a few months ago a racist killer influenced by white supremacist ideology and so-called “replacement theory” massacred Black Americans at a super market in Buffalo, N.Y. We know from bitter experience that white supremacy and replacement theory leads to violence and murder. We know this. Yet our constitutional system prohibits government from suppressing such pernicious speech.

The First Amendment generally prevents government from prohibiting speech that may influence individuals to commit crimes — even horrible crimes like the massacre in Buffalo. As the Supreme Court made clear in the seminal case of Brandenburg v. Ohio, this kind of speech, characterized as incitement, can only be prohibited if it will lead to imminent violence or unlawful conduct. This is a bedrock First Amendment rule today. The speech that warped the mind of the murderer in Buffalo cannot satisfy this incitement test because it did not immediately result in violence.

It is important to understand the reasoning justifying this meaning of incitement which protects such evil speech. The principle underlying the Brandenburg rule imposes an implicit obligation on the State and the people, a principle that requires us to counter evil counsel as loudly and forcefully as we can.

As Justices Holmes and Brandeis wrote in dissenting opinions that eventually led to the Brandenburg decision, dangerous speech could only by suppressed by government if the violence and other unlawful conduct it is inciting is imminent. If there is time to counter and refute evil counsel before it leads to harm, the constitutionally appropriate remedy for bad speech is good speech — not the prohibition of speech.

Thus, the foundation of this key free speech doctrine is grounded in the expectation that good people will not remain silent when they are confronted with evil speech.

It relies on the willingness of good people to speak up when there is time to do so and counter evil counsel to reduce the likelihood that bad speech will lead to unlawful acts or violence.

If good people are silent, evil speech cannot be effectively refuted.

Our free speech doctrine in a very real sense imposes a constitutional obligation on good people to speak up.

And that obligation falls with special weight on those of us who can speak the loudest and can be heard by the largest audiences. Government officials, among others, are in this category of speakers. Their official positions give them a microphone which extends the reach of their voice. The First Amendment doctrine about incitement prevents officials from silencing evil ideas — but the reasoning underlying that doctrine obliges them to speak up loudly against evil speech.

Other private speakers with loud voices — such as media and the clergy — are similarly obligated. And the average citizen’s voice, joining with others, needs to be heard as well.

Consider another principle underlying accepted constitutional law. The Fifth Amendment (made applicable to the states by the Fourteenth Amendment) explicitly requires the government to pay just compensation to the owner when it takes private property. But what justifies this compensatory requirement? The Supreme Court in Armstrong v. United States explained that the purpose of this provision was “to bar Government from forcing some people alone to bear public burdens which in all fairness and justice, should be borne by the public as a whole.”

This principle extends beyond compensating property owners for takings. It supports an implicit obligation to compensate — or at least mitigate — the costs incurred when the state furthers the public good in a way that disproportionately burdens individuals or a small group. Consider some examples. Government often accommodates religious exercise either as a result of constitutional mandates or as a discretionary political act. While the protection of religious exercise is particularly valuable to the individuals whose religious practices are being burdened, a strong argument recognizes that religious liberty is a public good. Our society in general benefits in important ways from our commitment to religious freedom.

Sometimes, however, accommodating religion imposes costs on identifiable third parties. In Burwell v. Hobby Lobby, a major issue involved the cost to women employees who would lose valuable insurance coverage for medical contraceptives if employers were exempt on religious grounds from the regulations requiring them to provide such health insurance coverage to their employees. If, as I suggest, religious liberty is a public good, a theory of constitutional obligation would support the government (the public as a whole) assuming the cost of such coverage for the women employees denied insurance coverage to protect the religious liberty of their employers.

Or consider the baker who, for religious reasons, will not create a cake to celebrate the wedding of a same-sex couple. If we exempt the baker from the requirements of anti-discrimination laws in the name of religious freedom, does the state have an obligation to alleviate the cost to the victims of the baker’s discrimination? In this situation, monetary or material compensation may not be feasible. But there may be other ways for the government to mitigate the burden same-sex couples will experience. Perhaps the government could make available through web sites a list of the wedding cake bakers in the area who would welcome the patronage of same-sex couples.

A final example involves state laws banning abortion, which require pregnant women to carry a fetus to term and birth. Here, because the woman wants to terminate her pregnancy, she is not a private beneficiary of the state law. The state believes by prohibiting abortion it is furthering the public good. Obviously, however, this law imposes very substantial burdens on women, including physical, psychological, and economic costs. The state and public will not be able to come close to sharing all of these costs. But it can do some things. For example, in the case of a fetus who will be born with severely debilitating ailments, the state could take on the responsibility of providing top quality medical care, assistance, and support for these children after birth.

Constitutional obligations, while not law, are derived from constitutional principles. They have many virtues, not the least of which is that they move us — perhaps only slightly but to some extent — away from constitutional controversies being entirely a zero-sum game.

April 18, 2022

The Problem with 'Gotcha' Textualism

[Cross-posted from The Hill]

By Alan Brownstein

During Judge Ketanji Brown Jackson’s confirmation hearing, Sen. Marsha Blackburn (R-Tenn.) seemed triumphant when she confronted the Supreme Court nominee with the fact that the word “abortion” is not mentioned in the Constitution’s text. You could almost imagine her thinking “Gotcha.” While Blackburn’s comment about abortion is true, it has to be placed in context. There are a lot of words reflecting long accepted constitutional doctrines that are not in the text.

The term “federalism” isn’t mentioned. Nor are the phrases “separation of powers” or “checks and balances.” Rights such as freedom of association or the right to marry or have children aren’t there either. Key judicial concepts such as standing, ripeness, and mootness can’t be found in the text. Nor can metaphors beloved by conservatives such as a “colorblind” constitution. As the federal reserve bank is raising interest rates to combat inflation, it is worth noting that the authority to create a national bank like the federal reserve isn’t listed as a congressional power.

If we want to carry the commitment to textualism to its logical, but absurd limit, the Marines and the Air Force aren’t recognized either — just the Army and the Navy have constitutional recognition.

The point isn’t, of course, that the text is irrelevant; rather, its utility in dispositively resolving constitutional questions can be uncertain and complicated. Plain meaning textualism often can’t do the job standing alone.

Let me suggest some key ideas to keep in mind in discussing how to think about the lack of plain language in the Constitution’s text on important issues.

First, some ideas require a lot of interpretative maneuvering that goes far beyond the literal text. For example, the First Amendment states that “Congress shall make no law … prohibiting the free exercise [of religion] or abridging the freedom of speech …” But doesn’t the Constitution also prohibit states and local governments from suppressing these fundamental rights? It does. The Supreme Court has interpreted the 14th Amendment to incorporate most of the Bill of Rights and to make those rights applicable to the states. However, the 14th Amendment doesn’t say anything explicitly about incorporation. It is difficult to ground the incorporation idea on textual language alone.

Or consider another example. Does the Constitution prohibit the federal government from discriminating on the basis of race? On its face, the Equal Protection Clause (the provision which prohibits racial discrimination) of the 14th Amendment only applies to state and local government. There is no provision explicitly prohibiting the federal government from denying racial groups the equal protection of the laws. Here again the Court has held that the federal government cannot engage in race discrimination. But it is a rocky road to get there by looking at the text alone. 

Second, both conservative and liberal jurists make constitutional arguments that lack explicit textual support. Consider the text of the 11th Amendment: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Does anyone see any language in this text that prohibits federal courts from adjudicating cases brought by citizens against the government of the state in which they reside? (Focus on the word “another” in answering this question.) However, that is how conservative justices on the Court have interpreted this provision. The Court’s explanation for this deviation from the text is that the 11th Amendment was intended to protect a state’s sovereign immunity against suits by citizens of any state. That argument about historical intent is sharply disputed. More importantly, if we are focusing on the text, it is absolutely clear that neither the 11th Amendment, nor any other provision of the Constitution mentions “sovereign immunity.” Like abortion, it just isn’t there.

Third, expansive reading of the text to overcome the lack of literal support for a constitutional interpretation isn’t some new-fangled aberration of judicial activism. Consider this language from a Supreme Court opinion adjudicating the scope of congressional power: “[The constitution] by its nature, therefore, requires that only its great outlines should be marked, its important objects designated and the minor ingredients which compose those objects be deduced from the nature of the objects themselves … we must never forget that it is a constitution we are expounding … [This is] a constitution intended to endure for ages to come, and consequently to be adapted to the various crisis of human affairs.”

That language has a powerful historical pedigree: It’s from John Marshall’s opinion in McCulloch v. Maryland decided in 1819. In McCulloch, the Court upheld Congress’s power to incorporate a national bank notwithstanding that neither establishing a bank nor creating a corporation are listed among the enumerated powers of Congress.

Fourth and finally, the text of the Constitution contemplates non-enumerated powers and non-enumerated rights. Congress did not have an enumerated power to incorporate a bank. But Article I, Section 8, Clause 18 did provide it with the extended authority “To make all laws which shall be necessary and proper for carrying into Execution” the enumerated powers of Congress and all other powers vested in the national government. With regard to non-enumerated rights, the text of the Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Freedom of speech is an enumerated right. Abortion is not. But the enumeration of freedom of speech and other rights should not be construed to deny or disparage other rights, not similarly enumerated — such as the right to have an abortion.

January 24, 2022

Seditious Conspiracy Was the Right Charge for the January 6 Organizers

[Cross-posted from The Atlantic]

By Carlton Larson

On Jan. 13, a federal grand jury indicted 11 members of the so-called Oath Keepers for seditious conspiracy. Such charges are exceptionally rare—and, quite obviously, extremely serious. If convicted, these defendants could face up to 20 years in prison.

And yet many Americans think that the charges should have been even more serious: treason against the United States. Although that’s not an implausible argument, the Justice Department made the right decision. Treason prosecutions would have introduced significant legal complexity, while doing very little to increase sentences. Seditious-conspiracy charges, by contrast, are perfectly pitched to the gravity of the offenses, and given the substantial evidence laid out in the indictments, should be relatively straightforward to prove.

Seditious conspiracy is defined as “conspir[ing] to overthrow, put down, or to destroy by force the Government of the United States … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States.” In the past 30 years, there have been only four sets of indictments for this offense. Most notably, the Justice Department successfully convicted Omar Abdel-Rahman of seditious conspiracy for his role in the 1993 World Trade Center bombing. But the most recent seditious-conspiracy prosecution—of Michigan militia members in the early 2010s—was a fiasco. A judge dismissed the seditious-conspiracy charges, finding them unsupported by the evidence.

Some have raised concerns about the scope of the seditious-conspiracy statute. For example, the University of Wisconsin law professor Joshua Braver has warned that seditious-conspiracy prosecutions could be subject to significant abuse. After all, the literal language of the statute might cover actions such as the Women’s March, which interfered with Capitol operations during Brett Kavanaugh’s confirmation hearings. Braver prefers the charge of “rebellion or insurrection,” which he believes is a better fit for the events of January 6.

I disagree. Seditious conspiracy is an entirely appropriate charge for some of the January 6 participants, as I suggested at the time. The attack was aimed at the most essential ritual of democracy—the peaceful transfer of power. The possibility that prosecutors might abuse the charge in the future is hardly a reason to shrink from it now, when it is most applicable. To be clear, seditious conspiracy is relevant for only a small subset of the people who entered the Capitol on January 6. The offense requires a conspiracy—a prior agreement to commit particular offenses; it does not encompass people who simply made impulsive decisions in the heat of the moment. According to the allegations in the indictment, the Oath Keepers plotted their moves for weeks in advance, coordinated weapons stashes outside of Washington, D.C., donned combat and tactical gear, and were in constant communication throughout the attack, all for the purpose of disrupting the certification of the 2020 election results. If this is not a seditious conspiracy, it is hard to know what is.

These alleged facts also warrant at least a consideration of treason charges. Under the Constitution, treason is limited to two offenses: levying war against the United States and “adhering to their enemies, giving them aid and comfort.” Adhering to the enemy is the more familiar type of treason. All of the 20th-century treason cases, such as the prosecution of Iva Toguri, the so-called Tokyo Rose, involved aid to a foreign enemy. By contrast, no person has been charged with levying war against the United States since the 19th century when, for example, the charge was brought against Jefferson Davis, the president of the Confederacy, at the end of the Civil War.

It was also the charge brought in the very first federal treason cases—prosecutions of tax protesters in Pennsylvania following the Whiskey Rebellion of 1794 and Fries’s Rebellion of 1799. The Whiskey rebels attacked the home of a federal tax official and assembled a large group of armed men in opposition to the federal excise tax on whiskey. The Fries’s rebels released prisoners from federal custody out of opposition to a federal property tax. In both cases, Supreme Court justices held that the alleged conduct amounted to treason. The use of force to obstruct a particular federal law, they argued, constituted levying war against the United States.

Storming the Capitol to obstruct the Electoral Count Act and sending members of Congress fleeing in terror is far more egregious—and more of a direct affront to the government—than anything done by the Whiskey rebels or the Fries’s rebels. But the understanding of “levying war” may have changed. In a famous 1851 decision involving armed opposition to enforcement of the federal Fugitive Slave Act, Justice Robert Grier suggested that levying war against the United States requires an intent to overthrow the government entirely, not just to obstruct the operation of one particular law. It was a trial-level decision, but it may prove convincing to courts today. If so, the question would then become whether the defendants sought to overthrow the government in its entirety.

Applied to January 6, this sounds like a law-school-exam hypothetical from hell. After all, the defendants would insist that, far from trying to overthrow the government, they were in fact supporting the incumbent president of the United States. If they honestly, but foolishly, believed that the election was stolen, did they have the requisite criminal intent to commit treason? Who exactly is overthrowing the “government” if one branch decides to wage war on another? Can one overthrow the government by attacking only the legislative branch? These questions are profoundly interesting from a philosophical perspective, but I fully understand why Justice Department attorneys would recoil in horror from having to debate them in court.

A further obstacle to a treason charge is far more mundane. The Constitution requires that treason convictions be supported either by two witnesses to the same overt act or a confession in open court. Although no court has ever addressed the question, videotape evidence is likely not a sufficient substitute for two witnesses; in cases arising out of World War II, for example, the Justice Department decided that radio-broadcast recordings of defendants distributing enemy propaganda were not legally sufficient for conviction. Unless the Oath Keepers begin turning on one another, finding two witnesses to distinct, overt acts may be difficult.

Given all the legal complexities the Justice Department has to consider, seditious conspiracy was clearly the right choice. In a recent speech, Attorney General Merrick Garland pledged that “the Justice Department remains committed to holding all January 6 perpetrators, at any level, accountable under law—whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” The most recent indictments are a promising step in that direction.

December 21, 2021

What Roman Mars Can Learn About Con Law: 'A Jurisprudence of Doubt'

[Cross-posted from]

By Elizabeth Joh

On episode 59 of the podcast formerly known as What Trump Can Teach Us About Con Law, renamed What Roman Mars Can Learn About Con Law:   Supreme Court cases from Mississippi and Texas are challenging  long upheld precedents that established abortion rights. Reproductive rights, and many others, are not explicitly referenced in the Constitution, but are considered fundamental because of the presence of the word "liberty" in the 14th Amendment. Listen to the episode.

November 15, 2021

Op-Ed: Did the Supreme Court Tip its Hand on the Blockbuster Gun Case it’s Hearing Wednesday?

[Cross-posted from Los Angeles Times]

By Aaron Tang

For years, cities across the country have limited who may carry a gun in public. The Supreme Court will soon decide whether these limits violate the 2nd Amendment. The effect could be staggering — the difference between a few hundred guns and hundreds of thousands of guns on the streets of Los Angeles, New York City or Washington.

With stakes so high, commentators have naturally speculated about the outcome. Given the court’s conservative supermajority, many expect the court to dramatically expand the right to carry firearms in public.

Quietly, however — in a rare action taken through the court’s docketing procedures — some of the court’s conservative justices may have tipped their hand. What they’ve revealed is a fact-sensitive approach to the case that should give gun safety proponents reason for cautious optimism.

Start with a bit of Supreme Court 101. When a party that has lost in a lower court wishes to obtain the Supreme Court’s review, it files a petition for a “writ of certiorari.” The most important page of this petition is the first one, which sets forth the question presented by the case. As the court’s own rules explain, “Only the questions set out in the petition, or fairly included therein, will be considered by the Court.” The “question presented” thus dictates the scope of the court’s analysis.

It takes four justices to vote in favor of granting a “cert” petition. And in nearly every granted case, the justices vote to accept, verbatim, the question presented in the petition. (Occasionally the justices will limit their review to one of multiple questions in a petition, or add a threshold question to clarify the court’s power to hear the case. )

In the cases the court initially decided to hear this term, the justices accepted the exact wording of a question presented in all the cert petitions — all, that is, except the landmark gun rights case, New York State Rifle & Pistol Assn. vs. Bruen. In this case, they took the significant step of rewriting the question presented, and thus changed the trajectory of the case.

Rewriting a question may seem trivial. It is not. Last term, out of 58 cases, the Supreme Court rewrote the question presented in just one. Tellingly, the justices then decided that case entirely on the basis of the revised question, holding that an earlier decision by the court does not apply retroactively. The same was true in the year I clerked at the court: The justices rewrote just one question and proceeded to decide that case precisely on the new grounds.

In this term’s gun case, the revision seems equally crucial.

Current New York law forbids individuals to carry a gun in public unless they can demonstrate a “special need” for self-defense. In challenging this law, the original cert petition presented this question: “Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”

To gun rights activists, the answer is an obvious no because all law-abiding citizens should have the right to carry a gun in public, regardless of whether they have a special need. And if the conservative justices had strongly agreed, the petition would probably have been quickly accepted as written.

But that’s not what happened. As the court’s docket shows, the justices first discussed the cert petition at a private conference in March, before debating it again at two additional conferences in April. In each conference, however, the conservative justices failed to produce the four votes needed to grant review. (None of the liberal justices are likely to have voted to grant the case because they almost certainly agreed with the lower court ruling upholding New York’s law).

Then, at another conference held at the end of April, the justices voted to grant the case.

What changed? The record indicates just one thing: The court rewrote the question presented, limiting it to ask “whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

The rewritten question focuses the court’s review first to the matter of concealed-carry, rather than open-carry, licenses — a sensible move because that is the type of license for which the petitioners originally applied.

The second change is more important. Rather than asking about the right of all law-abiding citizens to carry guns in public, the court’s rewritten question focuses on just the original two petitioners — individuals who were denied special need licenses by New York. In doing so, the justices have made clear that the specific, factual circumstances surrounding the applications will be crucial to their analysis. (Otherwise, the original question presented would have sufficed.)

What, then, are the specifics of the applications? One of the petitioners, Robert Nash, explained in his application that he needed a concealed-carry license because of a “recent string of robberies in the area” around his home, including a robbery that occurred on his street just days before he filed for the license. Yet the New York licensing authority still rejected his application. In contrast, the other petitioner, Brandon Koch, openly admitted in his application that he did “not face any special or unique danger to his life.”

By training the question presented on these facts, the court hints at an outcome that both sides in the gun debate should be able to live with.

State laws that condition the right to public carry on a demonstrated need for self-defense could be constitutional, in keeping with a lengthy historical tradition of similar laws. So New York would be free to deny licenses to applicants like Koch who lack a special need, thus substantially reducing the number of guns on the streets. But states may not utilize a special need requirement as a de facto ban on all public carry. Doing so would infringe the 2nd Amendment right of those who face real and particularized dangers — such as Nash.

The Supreme Court has begun its 2021-22 term with its lowest approval rating in decades. A fact-sensitive, centrist ruling on gun rights would go far toward bolstering its public legitimacy.

November 15, 2021

What Trump Can Teach Us About Con Law Ep. 58: 'Executive Privilege, SB 8 Update, and Rust'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

An update on SB 8, Executive Privilege of presidential records connected with January 6th, and a short digression into criminal law about the tragic death on a movie set. Listen to Ep 58 of the What Trump Can Teach Us About Con Law podcast.

November 15, 2021

What Trump Can Teach Us About Con Law Ep. 57: 'The Eastman Memo'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

John Eastman, a mainstream conservative lawyer working for Trump, outlined a plan for VP Pence to declare Trump the winner of the 2020 election regardless of the votes. It didn't happen, but should we be worried about the memo when it comes to future elections? Listen to Ep. 57 of the What Trump Can Teach Us About Con Law podcast.

November 1, 2021

Review: 'Gunfight, My Battle Against the Industry that Radicalized America'

[Cross-posted from The Daily Yonder]

By Lisa Pruitt

On the 20th anniversary of 9/11 in September, J.D. Vance tweeted a photo of himself holding his young son amidst a table of guns.  He captioned it, “Took the toddler to a gun show this morning.  Saw some amazing historical weapons, some going back to the Civil War.” 

Vance is, of course, the author of the best-selling memoir Hillbilly Elegy, now running as Republican for the U.S. Senate from Ohio. 

I found the tweet curious.  After all, Vance has told us an awful lot about himself in all that he’s written, and he’s never held himself out as an outdoorsman, hunter, or gun collector. In his memoir, Vance did mention his Papaw giving him a BB gun.  And we know Vance did a stint in the Marine Corps, but his was a desk job, in “public affairs.”    

So what gives with the kid at the gun show? 

I suspect the answer lies in what Vance wished to communicate with his tweet—and who he wished to reach.  Vance has recently taken policy positions that indicate a right-ward lurch on a range of polarizing issues.  He notoriously retracted his 2016 criticism of Trump and has been chasing Trump’s endorsement for months.  But Vance may have accomplished more with that single tweet than with all his recent op-eds and policy statements combined.  After all, few messages will reach a MAGA voter as clearly and directly as a kid at a gun show.

As I thought about Vance’s tweet, though, I realized that in a different place and time—and from a different source—I would not have recoiled from a photo of a child at a gun show any more than I would have recoiled from a photo of a child accompanying a parent on an errand to the barber shop or an outing to the county fair. 

That’s because I grew up in rural Arkansas, in a place where hunting was so common and culturally significant that school was dismissed the first two days of deer season every November.  The local newspaper regularly published photos of kids as young as 10 years with the deer they’d bagged.  I’d wager that 90% of the households in my community owned guns, all used primarily for hunting and target practice, with a spectral need for defense of home and family at back of mind.  Implicit in this culture was a healthy respect for the lethality of these tools. 

But guns have long signaled something different in rural places than in urban ones.  Just as significant, guns now signify something radically different than they did a few decades ago.  In short, guns have become highly politicized, both a cause and a symbol of our nation’s accelerating polarization.    

If you’re curious about that shifting meaning and the rural-urban rift in relation to firearms, you’ll want to read Gunfight:  My Battle Against the Industry that Radicalized Americaa compelling and timely new book by Ryan Busse.   

Busse, who grew up rural in western Kansas and until last year was a gun industry executive, uses memoir as a vehicle for serving up a tell all on one of the nation’s most secretive, profitable, and powerful industries.  He takes the reader through step after increasingly painful step of how the firearms industry—effectively corralled and led by the National Rifle Association—became so mighty a force in American life and politics that many in Congress quake in their boots at the very mention of three little letters:  NRA.  

Two Factions of Gun Owners

Busse attempts to thread the needle between two broad factions of gun owners.  On the one hand are hunters and outdoors folk, the aficionados of guns like old-school, bolt-action rifles, pistols with artisan grips and such—the sorts of guns that are, or could become, family heirlooms.  The folks who own these guns are widely associated with rural America.  They’re the people I grew up with.

On the other hand are what the industry once pejoratively (and politically incorrectly) called “tactards,” those drawn to fire power, high capacity magazines, and the semi-automatic experience associated with so-called “black rifles.”  Interestingly, lots of folks also associate these guns with rural America, though no one needs a semi-automatic weapon to hunt game or to protect themselves.   

Busse is firmly in the former camp.  His love of guns and the outdoors—and his respect for both—drew him as a fresh-faced 20-something to his dream job with Kimber, a boutique manufacturer of rifles and pistols based in Kalispell, Montana.  The early rollicking pages of Gunfight exude a youthful enthusiasm. Those chapters are populated by colorful characters like Busse’s first boss at Kimber, an Aussie who ate three meals a day at the neighborhood strip club (who knew strip clubs served breakfast?) and a fellow Kimber salesman with a “world-class mullet,” a mustard-yellow pick-up, a dog named Ted Nugent (after the famously pro-gun rocker), and chronic girlfriend problems.

But as Busse climbs the corporate ladder, the gun scene in the United States shifts away from the old guard gun faction, which Busse calls “wise men,” and towards the tactards and their black rifles.  This is where the tale turns ominous—for both Busse and the nation.  There’s the bullet-proof glass erected at Kimber’s manufacturing facility to protect executives in the event a worker “goes postal.”  There are the crass jokes about a “back-to-school sale” on guns in the wake of Columbine.  Eventually, as Busse refuses to toe the industry line on politics, there are threats against him.   

This shift from old guard to tactard is illustrated well by two vignettes from Gunfight.

The before times are represented with a description of the Southwind Classic, an annual prairie dog hunt Kimber sponsored at the Kansas ranch of Busse’s youth.  The event gathered trade journalists to try the company’s wares and have a good time.  When a young writer showed up at the event in 2004 with an AR-15, the wise men of the industry 

huddled around the new kid to explain the unwritten rules of their polite gun society. … ‘Look, son “normal” people don’t use or shoot that kind of gun,’ one of them explained. … ‘We’re not like those tactards,’ someone said, referring to … fringe consumers who believed more in the rifles of militia building than the art and craftsmanship of the fine guns we were trying to sell.

Fast forward eight years to the after times.  Busse describes in chilling detail the Bushmaster XM-15 E2S Shorty AK that Adam Lanza used in the Sandy Hook school massacre in 2012: “specifically designed for professional military combat in close-quarter situations … like vehicles, terrorist-filled caves, and buildings with numerous hallways and doors—building like grade schools.”  Busse details the gun’s various upgrades to establish that Lanza was “equipped with the most lethal military weaponry ever made,” thus illustrating how the industry had shifted to cater to the very tactards the old guard had shamed and shunned less than a decade earlier. 

Busse argues that fearmongering and associated pressures within the firearms industry effectively fueled not only the development of guns like Lanza’s—guns “designed to win wars through efficient mass killing”—but also the demand for them:

“Social media accounts boomed. New companies were built. Fortunes were made. Lanza and his rifles were products of it all, and when he arrived at Sandy Hook and pulled out his own black rifle, there were no norms left to break.”

Studies in contrast like this one make Gunfight a menacing account of how quickly the firearms industry changed, in a deadly feedback loop with what Busse sees as a radicalized segment of America.  But it’s impossible to say which came first, the chicken or the egg?  That is, was the firearms industry fomenting the radicalization, as Busse asserts, or was it radical, right-wing forces outside the industry that prodded firearms manufacturers down the incendiary and deadly path they are still on?

Busse’s Big Pivot

Whether the genesis of the polarizing winds was from within the industry or outside it, Busse saw the tornado taking shape on the horizon well before Sandy Hook. Busse’s big pivot—at once personal and professional—came midway through the Bush administration when he spoke out in a high-profile venue against a Bush-Cheney plan to open public lands in the West to energy exploration.  Among the places at risk was Badger-Two Medicine, Busse’s most beloved Montana hunting grounds and a place sacred to the Blackfeet tribe. 

Busse didn’t see his pro-conservation position as being at odds with his employer or his industry, explaining he was “trying to help save places so we can sell more guns.”  But his stance attracted attention from across the political spectrum because it marked him as a turncoat, “a red-meat gun executive who criticizes a Republican.”  Busse writes of being “betrayed and embarrassed” at having “been duped into believing I was part of an industry that shared the values of my childhood—much of the talk about conservation and hunting was just another ruse to get people like me into the culture war.”  

Both the NRA and the National Shooting Sports Foundation came down on Kimber for Busse’s opposition to the Bush administration plan, and for a time, his job seemed to hang by a thread.  Yet the attention Busse garnered from his contrarian stance convinced him he could “exert an outsized impact by staying inside the industry.”  So stay he did.  By Busse’s account, he was a fly in the ointment of the firearms industry during that time, a consistent voice of moderation in the face of a freight train barreling in the direction of hate, intolerance, fear—and the attendant proliferation of military- style weapons available to anyone who wanted them.

Busse’s writing is clear, and the story thread of Gunfight is fast-paced and engaging.  He does a fine job of stitching together much of the recent history and politics of firearms in America.  But perhaps Busse’s greatest value add is having been in the room where it happened.  Busse was privy to industry decisions about marketing and re-positioning their wares to take advantage of shifting tides and emerging cultural forces. 

Among these forces was the role of Iraq and Afghanistan War veterans-turned-influencers, men like Kyle Best and Mat Lamb who developed massive followings on social media and inspired wannabes that the industry called “couch commandos,”

the millions of consumers who had never fought in a war, much less joined the military, but who nonetheless considered themselves experts simply because they scrolled through the social media feeds of [influencers] like Lamb and Best, and knew how to play first-person-shooter video games from the comfort and safety of their couches.

Thanks to the demand created by consumers like these, guns in “desert tan” finish became a standard feature of new product launches. 

Other aspects of gun marketing also morphed to meet the moment’s burgeoning new consumer sectors.  Corporate leaders had previously consulted with attorneys to avoid giving guns names that might expose companies to liability on the basis that they encouraged deadly  behavior.  Thus products had long been marketed with mundane names like Kimber Custom Classic, the Remington 870, and the Smith & Wesson Model 629.  But as the industry shifted to fuel sales to the new “tactical culture,” it embraced provocative names like the Ultimate Arms Warmonger and the Combat Super Sniper AR-10.

The pages of Gunfight are replete with illustrations of the power and greed of the firearms industry.  Take the bipartisan Manchin-Toomey amendment, introduced in 2013 in the wake of Sandy Hook.  Seeing some federal gun reform as inevitable—and even a good idea—a few industry players expressed early support for the amendment, a less restrictive option than one proposed by the Obama administration.

The Manchin-Toomey amendment would have done nothing but close the loophole that permits purchasers to avoid background checks when they buy at gun shows.  That law had long been a thorn in the flesh of those seeking regulation, in part because it was that very loophole that had enabled Dylan Klebold and Eric Harris to get their hands on the guns they used to kill 15 at Columbine High School in 1999.  Indeed, the loophole is another reason the photo of Vance at a gun show is, well, triggering—no pun intended—for those who support common sense gun reform. 

As Busse explains it, the Manchin-Toomey amendment would have had a negligible impact on gun sales, simply channeling purchasers to established retailers.  But for the NRA, stopping the law—any gun safety law—was about more than short-term profits.  It had become a matter of principle after Smith & Wesson secretly negotiated with the Clinton administration in 2000 to agree to several safety features and marketing limitations, e.g., trigger locks, not marketing firearms to the general public, in exchange for limits on liability associated with handgun violence. 

Combined with Clinton’s success with the Brady Bill and the assault weapons ban of the 1990s, Smith & Wesson’s move—considered a betrayal to the industry—had been too much for the NRA to bear; indeed, it also put both Clintons permanently in the cross-hairs of the organization.  After Smith & Wesson’s back room deal, Busse asserts, the industry rigorously policed internal dissent.  It embraced zero tolerance of gun safety regulation and developed a lobbying machine capable of achieving that goal.    

It was in that context that Wayne LaPierre and his deputies went for broke on Manchin-Toomey.  In the face of what looked like the worst of a string of public relations disasters for the gun industry over the course of a few decades—the massacre of 20 first graders and six educators—the NRA announced it would “score the vote” on the amendment.  This meant politicians’ NRA rating was at stake.  Too many senators, anxious to retain their A+ grade from the NRA, were unwilling to call the organization’s bluff.  Manchin-Toomey failed by a vote of 54-46. 

A Million Gun Sales after Sandy Hook

If the slaughter of innocents with a semi-automatic rifle inside the walls of a primary school couldn’t move the needle on gun reform, it got harder to imagine what could.  Equally shocking was the NRA’s decision to roll out a new slogan in the wake of Sandy Hook:  “The only thing that stops a bad guy with a gun is a good guy with a gun.”

Again, the firearms industry turned a national tragedy into a literal call to arms, which meant it conveniently doubled as a sales opportunity.  Not only did the slogan stick among a growing number of second amendment absolutists, a million guns sold in the week following the massacre.  Other staggering new records were set, as daily gun sales hit 30-to-40 times normal levels at national retailers like Bass Pro Shops and Cabela’s and tens of thousands of high-capacity magazines flew off the shelves in a single hour.

As Busse expresses it, the firearms industry had again succeeded “in converting an opportunity to make policy improvements into just another temperature increase for the national pressure cooker.”  It is that failure to make policy improvements that Busse seems to think portends ill for gun owners like him and other hunters, those of the old-fashioned, wise men variety.  Busse argues that if gun owners won’t accept moderate regulations, they risk far more sweeping regulations once the legislative tide finally turns on gun safety measures.  The weakness in his argument is that it’s nearly impossible to see that tide ever turning with sufficient force to threaten the sorts of guns the old guard values and owns.    

The firearms industry flex, like the one in response to Manchin-Toomey, is a move Busse documents through one mass murder after another—and through one Democratic administration after another.  The specter of regulation always goosed gun sales, in part because the firearms industry messaged paranoia—even lies—about the loss of gun rights.  During the 2008 presidential campaign, for example, the NRA claimed Obama would “ban use of firearms for home self defense,” “ban the manufacture, sale and possession of handguns,” develop plans to “ban virtually all deer hunting ammunition” and “erase the Second Amendment from the Bill of Rights and exorcise it from the U.S. Constitution.”  No evidence supported these assertions, but like the “alternative facts” that came to be associated with the Trump administration a few election cycles later, truth was beside the point. 

In talking about how the industry leveraged Obama’s Blackness to drive up fear, Busse doesn’t shy away from calling out a racial dog whistle.  For example, he summarizes the NRA’s message about Obama’s candidacy:  “the only thing worse than losing a culture was having it taken by a Black community organizer from Chicago with a law degree from Harvard.”  

Book Ignores Street Violence, Suicide

Yet Gunfight generally neglects other racialized and gendered phenomena associated with guns.  These include the role of firearms in killing thousands every year—disproportionately people of color—in street violence, as well as their role in an epidemic of intimate partner violence.  The word “suicide” isn’t used once in the book.  Busse also glosses over controversies associated with self-defense, though he does name names in placing the blame for the “Stand Your Ground” law that protected George Zimmerman when he killed 17-year-old Trayvon Martin in 2012:  Marion Hammer, LaPierre’s predecessor at the NRA.  The epidemic of children—including toddlers—who get their hands on guns and kill or wound people accidentally or purposefully also is not taken up in the book, though this phenomon surely implicates all gun owners and suggests that the gun safety norms that were a feature of my rural upbringing have fallen away.  All told, hundreds of thousands of lives have been lost to gun violence in the last decade, but Busse sticks almost entirely to headline-grabbing mass shootings to bolster his depiction of an industry with no internal controls and, he concludes, no decency. 

Following Busse’s initial dust-up with the firearms industry over his pro-conservation stance, he describes an enterprise in airtight alignment with the Republican Party and all its policy stances.  What Busse reveals, in fact, sounds remarkably like an early iteration of the sort of loyalty and purity tests we have seen more recently in American politics, though associated with the cult of personality as much or more than policy positions.  Consider that the few members of the GOP supporting an investigation into the Capitol insurrection of January 6 have become pariahs within their party.  

Indeed, while Gunfight was already in the publication pipeline on January 6, 2021, it’s interesting to revisit the line Busse draws between the old guard and the tactards in light of that day’s events.  Initial reports suggested that it was rural and working class white folks who’d stormed the Capitol, but subsequent investigation has revealed that relatively affluent suburbanites led the charge.  The coastal elites among whom I live and work tend similarly to associate rural folks with the black-rifle set—if they differentiate at all between Busse’s two factions of gun owners.  Guns have thus become one more reason for folks in my uber woke world to cast rural residents as the bad guys, though I suspect there is no more correlation between rurality and the take-no-prisoners, permit-no-regulation set in the gun industry than the media have found between rurality and the January 6 insurrectionists.       

Gunfight depicts the firearms industry as a big bully, but it hasn’t just bullied senators, members of Congress and, by extension, the entire nation.  Part of the book’s tension comes from the parallel bullying Busse experienced as a dissident within.  In one jarring scene, Busse’s boss at Kimber—angry at slumping gun sales at the end of Obama’s presidency—quips, “The problem is that we have Democrats. Let’s solve our problems, Ryan. How about we just kill all the Democrats? Well, all of them except you, Ryan. Let’s kill all the Democrats except Ryan.”  

In the face of such an abusive workplace, Busse’s explanation for why he stayed at Kimber as long as he did is not always convincing.  At several junctures, one fears he will sacrifice his marriage for the company and his career, as his wife repeatedly implores him to get out of the gun business.  In the face of these pressures, one assumes that Busse was not only stubborn, but presumably well compensated, perhaps anticipating that Kimber would go public and deliver a windfall.  That didn’t happen, and sanity—as well as the proverbial love of a good woman—ultimately prevailed when Busse left Kimber in mid-2020.

As should be evident by now, Gunfight is not just about guns.  It’s about how guns have become a potent symbol in the culture wars—of Right v. Left, Republican v. Democrat and—accurately or not—rural v. urban.  This book is also about greed, power, lobbyists, the post 9/11 wars, militias, and how we got to January 6.  At the end of the day, Busse may convince you that guns are not only literally killing people, they’ve become a potent symbol of the polarization that’s killing our democracy.

Lisa Pruitt is a the Martin Luther King Jr. Professor of Law at the University of California, Davis, and runs the Legal Ruralism Blog. She previously reviewed Senator Jon Tester’s memoir, Grounded, for the Daily Yonder and was interviewed for the Yonder’s Path Finders series in April 2021.

September 13, 2021

What Trump Can Teach Us About Con Law Ep. 56: 'Shadow Docket'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

On the topic of legal procedure and how it relates to the Supreme Court's so-called "shadow docket" and the Texas abortion law. Listen to Episode 56 of the What Trump Can Teach Us About Con Law podcast.

August 9, 2021

Race, History, Guilt and the Olympics: Real-World Experience in the Classroom

[Cross-posted from The Hill]

By Alan Brownstein

If one looks behind some of the criticism directed at the teaching of Critical Race Theory, it appears that there is a particular objection to the idea that white students should be taught that they bear guilt or responsibility for past and/or present racism in our society.

As a professor of constitutional law, I do not teach Critical Race Theory. Still, when I teach about the Equal Protection Clause, the issue of guilt and responsibility is unavoidable. My focus is not on white normative accountability — It is on American guilt and responsibility. And in beginning the discussion, I find it useful to talk at least initially about the Olympics.

My first question to students is whether they ever experience pride for some achievement they had no role in bringing about. I offer the success of USA athletes at the Olympic games as an example. Most students agree that they experience considerable pride in the effort and success of USA Olympic athletes even though they had nothing to do with these results. It seems entirely natural and reasonable for Americans to take pride in the achievements of other Americans.

My second question is this: If it is reasonable and acceptable to experience pride when individual Americans or our country does something praiseworthy, is it also reasonable and acceptable to experience shame or guilt when individual Americans or our country engages in shameful or blameworthy conduct?

A follow-up question extends the issue beyond pride or blame: I ask whether students have received significant benefits as a result of their living in the United States? Did students directly bear the costs incurred by earlier generations in providing the political freedoms and material advantages the students enjoy today? Most students agree that they are the blessed beneficiaries of the work and courage of their forebears. The follow-up is whether it is fair and just to expect the students to pay the debts incurred by prior generations to provide the political and material goods the students experience and value today.

In its simplest terms, we would find it entirely reasonable to expect Americans today to pay the principal and interest on bonds the government sold to finance the construction of public bridges and dams.

But not all debts are so easily identified or quantified.

Still, we can ask and open the issue for discussion whether current generations may be reasonably expected to take into account the harms America has inflicted on minorities, such as Blacks and Native Americans, in deciding public policy issues today. This accountability is not based on the students’ race, but rather on their national identity. This is American accountability, applicable to our society because we are — and are privileged to be — Americans.

The classroom discussion will move on to evaluate American decisions relating to race and the treatment of racial minorities. Typically, these issues are less controversial. While there may be debate about particular events or policies, there is usually a strong consensus that, historically, American conduct toward racial minorities has been blameworthy. The hard question raised by my earlier inquiries is what that realization of blameworthiness means for public policy and constitutional law decisions today.

Of course, not everyone will agree with the analogies suggested above between pride and shame or benefits and debts. There is a difference, though, between raising a difficult issue for students to confront and demanding that everyone agree to a particular response.

Nor do I think that presenting these issues in the way I have described isolates or stigmatizes more conservative students — at least that has not been my experience.

Several years ago, I was privileged to be invited to visit and teach Constitutional Law for a semester at the law school at Brigham Young University (BYU). BYU law students are smart, thoughtful, religious, and generally conservative. They did not find the way I conducted the discussion of equal protection issues to be insulting or indoctrination. Indeed, one of the most rewarding teaching evaluations I have ever received was written by a student in that class. As a religious school, BYU asks students to evaluate whether a professor’s class was spiritually strengthening. Because I am Jewish and the overwhelming majority of BYU students are Mormons, I was not sure what to expect from students in response to this question on the evaluation.

One student’s response described my presentation on equal protection issues this way: “His sincerity in fairly articulating the constitutional interests of racial minorities, women and LGBT individuals was a supreme example of what we would deem Christ-like. Seeing his reverence toward these issues and the real-world consequences for those most affected by them was more powerful than any explicit discussion of religion in the lectures could have been.”

I doubt I deserve such high praise. But I am confident that the anonymous student who wrote this evaluation was neither insulted nor indoctrinated by my teaching.