Advisory Opinion

Paul Krugman: Blinded by Hatred

Paul Krugman is so blinded by his irrational hatred of Attorney General Ashcroft, he'll stoop as low as necessary to take a cheap shot. His column in today's New York Times is a series of sloppy, recycled falsehoods and innuendo that essentially argues Ashcroft is soft on racist and right wing armed terrorists because he agrees with them. If not preposterous enough on it's face, an analysis of Mr. Krugman's syllogysm reads:

1. Ashcroft ARRESTED a white supremacist with tons of firearms and some chemical weapons, but didn't hold a press conference, so he's clearly not serious about the problem of armed white supremacists.

2. Ashcroft only focuses on muslim terrorists, like Jose Padilla, because of Ashcroft's alleged racism, and not because (i) al Qaeda killed 3000 Americans in one attack and has pledged to kill as many more as it can; and (ii) one of the strategic leader of al-Qaeda, Abu Zubeyda, gave credible information in interrogations that he had trained Padilla to build a dirty bomb and set it off in America. After all, who would really believe that al Qaeda presents a serious threat to Americans when we have lots of armed right-wingers out there?

3. We know Ashcroft's a racist because he gave an interview to a distasteful magazine. And besides, everyone knows he's religious, and right-wing, and his political opponents have confirmed he's a racist, despite the fact that his civil rights record as Missouri Attorney General, Missouri Governor, and as Attorney General, are if viewed honestly, beyond reproach.

4. Ashcroft only caught this latest criminal because of a "fluke" - also known a tip (which is how cases are usually solved) - but if Ashcroft weren't so obsessed with trying to stop al Qaeda because they're muslim (and not because they demonstrate repeatedly their ability and willingness to kill scores of Americans) he would have had agents investigating everyone who belongs to fringe right-wing organizations so that tragedies like this one (not catching this guy until.. well, they caught him before he hurt anyone) can be avoided.

5. But he's really trying not to arrest armed criminals who are racists like him - which is why he arrested this one instead of simply ignoring the evidence.

6. In fact, he's very weak on gun crime, as demonstrated by the fact that under his term as Attorney General, DOJ has only spent $900 MILLION on federal gun crime prosecutions, which have increased by 32 percent (after years of decline when they were slashed under the Clinton administration). In 2002 alone, federal gun crime prosecutions increased by 20.2 percent – the highest increase since the Justice Department began recording this information in 1990. This means 10,634 defendants were charged in the federal system for violating gun statutes – the largest number ever prosecuted. But he's not really serious about prosecuting these people because he's so close to the gun lobby.

7. And to prove it, one need only look at the NICS destruction rule he implemented, and his outrageous interpretation of the Brady law that it bars searching records of gun transfers for law enforcement purposes, even though his own aides came to the opposite conclusion. The only problems with this assertion are (i) the Brady law requires the records' destruction, (ii) JANET RENO - the long-time denizen of the gun lobby - actually wrote the regulation making clear that records could not be searched for solely law enforcement purposes (as advocated by Krugman), (iii) the LEGAL OPINION from the Office of Legal Counsel actually EXPLICITLY says that a search of the records solely for law enforcement purposes is illegal, but anti-gun critics have taken to repeating this falsehood anyway, and (iv) this interpretation of the Brady law was supported by noted NRA shills such as Democratic Senator and Judiciary Committee Ranking Minority Member Patrick Leahy.

It really is amazing what people will see when so blinded by hatred.

Ballistic Fingerprinting

A million and a half public dollars a year for ballistic fingerprinting that results in not a single crime being solved in New York State - what a bargain.

Supporters of this backdoor attempt at national gun registration make the predictible arguments:

Eric Gorovitz of The Coalition to Stop Gun Violence disputed the contention that criminals can easily foil the database with a file given the wide array of markings the computer looks at.

"Even if they did succeed in doing it once in a while, it's still a tool you don't otherwise have," Gorovitz said. "Nobody says, 'People wear gloves. We shouldn't a have a fingerprint database,' It's a preposterous suggestion."

Compelling at first blush, except that Mr. Gorovitz presumably doesn't support a state-run central database of all law-abiding citizens' fingerprints taken at birth. We only fingerprint criminals. But guns, of course, are different. And anyone who owns one is suspect, so we should collect as much information about them as possible. No matter what it costs.

Utah and Guns

Here's a fascinating article in the CS Monitor about the state of gun laws in Utah. There, where apparently freedom-loving people predominate, the current controversy is whether one should be allowed to carry a concealed weapon on campus at the University of Utah. The lawmakers in Utah answered that question in the affirmative:

Utah again took a strong Second Amendment stand this spring, overthrowing a 30-year University of Utah policy that banned concealed weapons on campus. But in a twist, "the U" is fighting back.

"There are places where guns are not appropriate," says spokeswoman Coralie Adler, who adds that the university will challenge the law in court.

The article doesn't say on what grounds the university is challenging the law allowing the concealed carry, but suggests the fight is similar to others going on around the country:

For 20 years, the battle has focused on whether states should allow everyday citizens to carry firearms in public, as well as how easy a concealed-weapons permit should be to get. Now, gun-rights groups appear to have won all the states they can, and those 46 states are turning to the question at issue in Utah: Where are guns appropriate?

"That's going to be the fight in all these states," says William Vizzard, a gun-control expert at California State University in Sacramento.

There are already hints about the shape that debate might take. So far, modest steps have met with some success. States are increasingly working out deals with other states so their concealed-weapons permits will be valid elsewhere. And Arizona looks set to amend its concealed-weapons laws to allow permit holders with a gun to enter a business that sells alcohol - so long as they don't drink.

More radical efforts, however, have failed. Vermont has long been the only state with no gun laws, meaning that all residents can carry guns without a permit. But when New Hampshire voted on a similar proposal several weeks ago, it was overwhelmingly defeated.

But, according to the article, Utah is a beacon of freedom:

To Utahns and many of their big sky brethren, the Second Amendment words about a "well-regulated militia" -- not just "the right to keep and bear arms" -- point to a treasured heritage. Moreover, in a place where two rural towns once voted on whether to become "UN-free zones," and where trust in government runs as deep as the shallow pan of the Great Salt Lake, guns represent something more.

"[Guns] are important as a hedge to government tyranny," says Mitch Vilos, author of several books about Utah gun law. "The pioneers that settled this land were very independent, and we cherish the right to determine our own destiny."

Meanwhile, those in favor of tyranny marched on Mother's Day to support the renewal of the ban on scary looking guns -- er, I mean the ban on "assault weapons" -- which is scheduled to expire in September of this year. At that so-called Million Mom March, Jesse Jackson was demagoguing as usual:

"These are not guns for the marksman," said the Rev. Jesse Jackson. "These are guns for those who spray and kill en masse."

Notice the Rev. Jackson's plain implication that the assault weapons ban bars the sale of fully-automatic weapons -- i.e., weapons that fire multiple rounds with one pull of the trigger -- by saying that the law covers guns that "spray and kill en masse." That implication is simply false. Fully-automatic weapons are regulated under a different law (passed in 1986) that will not expire this year, they are not regulated by the ban on scary looking guns -- er, sorry, I mean on assault weapons.

The assault weapons ban, by contrast, regulates semi-automatic weapons -- i.e., guns that fire one round for each pull of the trigger -- but only certain models that look scarier than others (typically those with a military-style look). But functionally the semi-automatic guns currently banned by the assault weapons law are no different than the numerous semi-automatic pistols and rifles that are legally purchased today for hunting, target shooting, collecting, and personal protection. This is completely irrational -- the law regulates form over substance. Indeed, if one believes that the scarier-looking semi-automatic guns now covered by the assault weapons ban should be kept out of the hands of law abiding citizens, that person logically would have to conclude that all other semi-automatic guns should also be banned -- as they are no different functionally.

And in all events, I'm shocked that the Rev. Jackson -- the famed civil rights activist -- and the marchers have no respect for federalism or the second amendment.

Guns and Choice

Keith Burgess-Jackson thinks that "[i]f feminism is about empowerment of women, it should support private gun ownership by women. . . . The more guns in the hands of law-abiding citizens, the safer our world." I agree.

He also points to an interesting op-ed by Mary Zeiss Stange, who teaches Women's Studies and Religion at Skidmore College. Stange points out certain similarities between the legal arguments for gun rights and abortion rights, as well as the need for women to have access to guns for self-protection. She also attacks the double standard feminists typically apply to guns and abortion:

It is odd that when it comes to gun control, feminists welcome the same sorts of government intrusion on individual rights that they rightly abhor when it comes to reproductive freedom.

Yet taking the fight for women's lives seriously means defending their right to take control over every aspect of their individual health and safety. Reproductive choice and the ability to defend oneself, whatever that may take, are not simply women's rights. They are essential human rights.

Many proponents of reproductive rights wish abortion were never necessary. Most gun-rights advocates would prefer to live in a world in which no woman should need a gun to ensure her safety. But as long as contraception fails, as long as rape occurs, as long as men abduct women, stalk ex-wives and girlfriends and threaten harm to their children, the options to choose an abortion and a gun must equally remain fundamental women's rights.

Both are rights worth fighting for.

I couldn't agree more that the typically hostile position feminists take on gun rights makes no sense when compared to their position on abortion.

I do, however, think that gun rights are much easier to justify -- both legally and morally -- than abortion rights, for two reasons.

First, the U.S. Constitution explicitly provides for an individual's right to bear arms in the Second Amendment. The "right to privacy" relied on for abortion rights, by contrast, has no textual basis whatsoever in the Constitution; it is entirely a creation of judges, for better or for worse. Stange omits this fact when discussing the legal similarities between guns and abortion, perhaps because it indeed is not a similarity.

And second, abortion is morally a more complex matter than guns because it by definition involves an embryo or fetus. Therefore, any serious moral judgment on the matter must take into account this additional complexity -- no matter which way one comes out. Gun ownership, by contrast, does not directly involve a third party, and thus avoids the moral complexity inherent in abortion.

UPDATE: Burgess-Jackson adds another important distinction: "fetuses are innocent and attackers are not."

Racism and Gun Control

InstaPundit has an interesting post on the racist roots of gun control.

UPDATE: Check out Alphecca's weekly check on bias in the media against guns.

More Tendentious NY Times Reporting on Guns

Here's the opening line from the front page, column one, above-the-fold NY Times article on New York City's novel lawsuit against gun manufacturers and distributors:

New York City is preparing for the first trial of a civil suit by an American city claiming that the gun industry fosters an illegal market in the firearms criminals use to deliver death to the city's doorsteps.

An "illegal market" to "deliver death to the city's doorsteps"? Interesting. But the real story is that Weil Gotshal has stepped down as the city's trial counsel:

Gun industry representatives say the case is crucial, and the companies have some of the country's top law firms defending them. Until a few weeks ago, the city had a powerful legal weapon, too: another of the country's top law firms, Weil, Gotshal & Manges, had agreed more than two years ago to work on the case for free.

But now the law firm is withdrawing from the case, acknowledging that at least one of its corporate clients had complained about its role. In a statement, the firm said that "certain potential `positional conflicts' " had been "brought to our attention." Some industry critics say the disruption in the city's legal team may have been intended to weaken the city's chances in what is certain to be a bitterly fought trial.

According to lawyers who have been involved in the case or have been briefed on it, Weil, Gotshal's withdrawal followed a rapid sequence of events out of the public eye.

The firm's lawyers appeared formally for the first time in court on Jan. 30. In February, the lawyers said, Alan E. Mansfield, a New York lawyer for Smith & Wesson, called at least one company he represents that is also a client of Weil, Gotshal. Smith & Wesson is one of the 40 gun makers and distributors sued by the city.

After the call by the Smith & Wesson lawyer, people at the corporate client of Weil, Gotshal raised questions with Weil, Gotshal lawyers about whether the gun case might lead to precedents that could later be used against them, lawyers involved in the case say.

With the gun case heating up in late March, the Weil, Gotshal lawyers privately told the city's lawyers that they could no longer continue to work on the case.

"The city has just lost an invaluable resource," said Elisa Barnes, a Manhattan lawyer who has handled other cases against the gun industry. "You've got to get King Kong to fight Godzilla."

The implication: Other corporate interests have intervened on behalf of the gun industry and unduly pressured Weil Gotshal to withdraw from the case. All to the detriment of the public interest, as this quote highlights: "'The gun industry and its lawyers will stop at nothing to prevent the plaintiffs from having their day in court,' said Mathew S. Nosanchuk, a lawyer on the city's side of the case who is the litigation director for the Violence Policy Center, a gun-control group."

The Times doesn't clarify for the layperson that, actually, Weil Gotshal's decision not to continue representation will not "prevent the plainiffs from having their day in court." The city's claims will be adjudicated, no matter who represents them. Apparently, though, the lawyers of City of New York are not fully capable of carrying their own water or, at the very least it would seem, are more comfortable carrying the litigation bags of Weil Gotshal's lawyers. If Erin Brockovich could take on Big Power Industry, it would seem that the lawyers of the City of New York would be able take on the gun industry without the help of Weil Gotshal.

But what is this lawsuit really about? The Times summarizes the city's case as follows:

The suit, which is likely to go to trial this fall, seeks an injunction stopping the industry from sales and distribution practices that the plaintiffs claim amount to a public nuisance. Critics have long accused the gun companies of closing their eyes to illicit distribution pathways. They say certain dealers, for example, are routinely tied to the sale of guns to criminals.

And let's not forget that earlier line describing the city as "claiming that the gun industry fosters an illegal market in the firearms criminals use to deliver death to the city's doorsteps."

So, we've got a public nuisance theory having something to do with "illicit distribution pathways" and the gun industry fostering an "illicit market," and certain dealers that "are routinely tied to the sale of guns to criminals" -- all of which allegedly somehow combines to "deliver death to the city's doorsteps." Sounds bad to the layperson, I suspect.

But what are the gun manufacturers and distributors arguing in response? Do they have a defense? Well . . . the Times never tells us. The most we get is that "gun industry representatives say the case is crucial." Do the editors at the Times believe the defendants' case is so illegitimate as to not deserve any explanation whatsoever? Or was it just an oversight?

Indeed, the city's case is actually quite novel and attenuated, as Clayton Cramer explains:

The gun prohibitionists have been pursuing a really novel theory--one so novel that even most judges have refused to buy into it. Essentially, gun makers are to be held responsible because they sell guns to distributors, who sell them to wholesalers, who sell them to retail dealers--all of whom are licensed by the federal government (and in many cases, by state governments and city governments). Somewhere after the retail dealer makes a sale, a gun changes hands, perhaps by a sale lawful in that state, perhaps unlawfully, perhaps by burglary. The gunrunner then violates federal law by taking the gun to New York City, where the gun is transferred in violation of New York State law, where it is used to commit a felony. The manufacturer is therefore to be held responsible for violations of law that take place months to years after they sell it, to persons that they do not know, with whom they not only have no contractural relationship, but who may have no contractural relationship with any lawful buyer.

I suspect the average layperson would have expected the Times to at least touch on some of that information. True, it would have made the battle-of-good-against-evil subtext of the story slightly more difficult, but isn't it that type of "nuance" and "complexity" we except from the Times. After all, doesn't the Times' incessant television advertising claim that "they really know how to surround a story."

The Times does tell us, though, that there is a contentious and multi-fronted war going on here:

The battle over the role of Weil, Gotshal is the latest display of the hardball struggles over more than 35 similar suits that were filed by cities from coast to coast against the firearms industry beginning in 1998.

That struggle has included an effort by the gun industry and its supporters that failed in Congress last month to get immunity for the industry from such suits, and stark claims by the gunmakers in the city's case that the Brooklyn federal judge handling it, Jack B. Weinstein, is biased against the firearms industry.

But has the Times left anything out here? Consider this from Overlawyered.com (follow the link back for more):

As if to confirm this website's worst fears (Mar. 31, 2003 and Mar. 24, 2003), federal Judge Jack Weinstein of the Eastern District of New York is permitting the City of New York to proceed with a "public nuisance" suit against the gun industry. If that theory sounds eerily familiar, it is because a Manhattan appellate state court threw out an essentially identical public nuisance lawsuit by the state of New York against the gun industry in the Sturm, Ruger case, noting that New York state law did not countenance such attenuated theories of liability (Jun. 30 and Jul. 4). The district court opinion is a marvelous example of how an unprecedented theory of liability lifts itself up by the bootstraps: the decision relies heavily on Judge Weinstein's previous opinions and the Ninth Circuit's unreasoned Ileto v. Glock decision (Dec. 3 and Nov. 20); while claiming that Sturm, Ruger supports it, the decision ignores language (and related precedent) in that opinion that would preclude the City's theory of liability. (Tom Perotta, "Federal Judge Keeps New York City's Gun Suit Alive", New York Law Journal, Apr. 13; City of New York v. Beretta opinion).

So it seems there are two sides to this case. It's a shame the Times only presents one of them.

NYT Predicts End of Assault Weapon Ban

The so-called assault weapon ban expires on Sept. 13, 2004. The NY Times predicts that it will not be renewed (at least not this year):

The president has said he would sign legislation renewing the 1994 law that bans 19 types of semiautomatic weapons. That almost certainly will not happen this year because of opposition to the legislation in the Republican-controlled House. Many conservatives consider the bill a deep infringement of their rights under the Second Amendment, which they contend gives individual Americans the right to own firearms.

Notwithstanding that last sentence, there are in fact Americans other than "conservatives" who believe in the sanctity of the entire Bill of Rights and, more specifically, that the Second Amendment protects an individual right. Take leading liberal constitutional law scholar Larry Tribe, for example (scroll down to article entitled "Ashcroft and the Second Amendment").

UPDATE: The NY Times is familiar with Larry Tribe, isn't it?