I have emerged from bar study to write a quick post inspired by a bit of legislative news my boyfriend sent me. This dispatch from hell world, called the Unmasking Antifa Act, may at first seem an incredibly alarming setback after the J20 victory. But while the bluster of this Act may turn into something truly horrifying deep in the recesses of the House Judiciary Committee (I highly doubt it given all the other contentious issues), at this point it is a bit of a chuckle in an otherwise dismal news cycle. The reason is pretty straightforward: it is mindbogglingly unconstitutional. Totally unconstitutional. So incredibly unconstitutional that even in the age of President Swiss Cheese Brain it is impossible to take seriously. Let’s dive in.
A Revolution of Care: Power of the Commerce Clause
There is a lot to get into with this subject so I have decided to split things into more and smaller segments so that they are readable. So this first post will just focus on the Commerce Clause. I have noticed in my discussions on this subject that my fears of right wing legal challenge to single payer are most often dismissed by a simple evocation of the Commerce Clause. Unfortunately there is reason to believe that single payer’s constitutionality under the Commerce Clause is not so straightforward given recent decisions and the direction of the courts.
The Beginning of the Debate of What Commerce Means
It started with steamboats.
A Revolution of Care: Exploring the Law of Single Payer
In my last post, I gave a straightforward but ambitious directive: “The Left needs to shake its discomfort with wielding power and build the intellectual and political synthesis to gain power.” While I did not mention it in the post (which focused instead on net neutrality), I was inspired by a hopeful shift being enacted by the Democratic Socialists of America’s (DSA) Medicare for All campaign. Those who worked on the Affordable Care Act may remember how power rarely if ever entered into the conversation. The power of health insurance corporations and powerlessness of the people were assumed, and instead the discourse focused on how to navigate these dynamics rather than disrupt or eliminate them.
While there are some who want to return to these paltry discussions, Medicare for All could be a crucial first step for the Left towards taking power. That is why I and many others have poured so much time into it, from door-to-door canvassing to work with medical debt. There’s a great groundswell of volunteers. But that is just part one of my aforementioned directive. Medicare for All will not be won solely by the Left deciding that it should take power. We also need to create the intellectual and political synthesis to make it happen. To be clear, this is not needed to fulfill the mandates of Medicare for All’s critics. They have already shown they have no qualms criticizing strawmen rather than any policy put forth by the campaign. Rather, it is needed to make sure that when we pass Medicare for All that it is an unencumbered single payer system, that it withstands constitutional challenge, and that it does not foreclose the path towards fully socialized medicine.
I am going to apologize ahead of time because this post will lack the normal snarky jokes and clever quips because I am neither in the mood nor have the time since there is a lot to cover. Also to save on space I won’t be addressing issues that are important but better addressed by others elsewhere like who is considered a “terrorist” by the mainstream media nor will I be debunking the mind-blowingly dumb claims like that suppressors wouldn’t help someone maximize their killing spree. As briefly but thoroughly as possible I want to establish two things: first, that the current gun control laws are useless bourgeois nonsense and that most of the proposals for gun control are also useless bourgeois nonsense, and second, legal changes both immediately achievable and long term that will end the public health crisis that is periodic mass murder by use of firearms in the United States.
So probably everyone reading this is familiar with the Second Amendment and its “right to bear arms.” That right in practice is a gradient – the “core” of the right is the possession of handguns (since they are the most common weapon for self-defense) and furthest from the “core” of the right are theoretically things like machine guns and grenade launchers (we will get to that theoretically in a second). This was outlined in a series of cases, most importantly a case called McDonald v. City of Chicago. What the petty feckless racists who have turned “Chicago” into a Nazi rallying cry tend to forget is Chicago tried very hard to fight its problem with violence through a law that effectively banned the possession of handguns. That law was struck down by the Supreme Court in an opinion by Justice Alito. Justice Alito held that:
Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.
So cities and states cannot ban handguns. What can they do and what has been done? New York passed a law called the Secure Ammunition and Firearms Enforcement Act (SAFE Act) and it was put to the test in a case called New York State Rifle & Pistol Ass’n v. Cuomo. This law defined a semiautomatic firearm as a prohibited “assault weapon” if it contained any one of these “military-style” features: a telescoping stock, a conspicuously protruding pistol grip, a thumbhole stock, a bayonet mount, a flash suppressor, a barrel shroud, and a grenade launcher. “This statutory definition encompasses,” the court noted, “and thereby bans, the semiautomatic weapon used by the mass-shooter at Sandy Hook.” And the court upheld the law’s constitutionality, stating that while semiautomatics are popular that they’re not on the same level as handguns were in McDonald. The court held that when it came to the particulars of the right to bear arms that the legislature was better equipped than the judiciary, and they noted just how much evidence there was that semiautomatic firearms should be strictly regulated.
Semiautomatics create more wounds, more serious wounds, and more victims on average. They’re disproportionately used in violent crime and especially mass shootings. And they’re the weapon most used to kill police officers.
But now we will start to see where liberal gun control falls apart. Because this was not a ban on semiautomatics, but rather semiautomatics with certain “military-style” features. As one of my DSA comrades noted, that kind of regulation is more about aesthetic than killing capacity:
One of the most commonly mocked gun laws is the National Firearm Act, and in particular the 1968 amendments. The law classifies certain types of firearms for special regulation: machine guns, short-barreled rifles, short-barreled shotguns, silencers, and destructive devices. Weapons dealers and enthusiasts figure out ways to avoid their weapons falling into these classifications, often by having something defined as a pistol. Now when you think pistol you’re probably imagining this:
And now here’s what the horrifyingly creative weapons dealers think of as a pistol:
Here is a very unpleasant weapons dealer showing off how easy this law is to get around.
Why don’t gun regulations work? We could explore all the intricacies here, maybe offer some amendments to the NFA to change the definitions of the different kinds of firearms, fight like hell against the NRA, get a watered down version passed which dealers and manufacturers would get around in a year at most. It is not a capacity for innovation in general, which capitalism actually isn’t that good at, but rather a capacity for profit-seeking innovation.
Guns are essentially video games for adult, mostly white men. It is an enormous subculture that exists not to promote mass shootings – that is just a side effect – but to promote patriarchal fantasies of power and colonialist domination. Like how the government blow back against Grand Theft Auto led to video games of an unimaginable level of depravity and violence, so has the market-friendly regulations against firearms just encouraged these men to seek out even deadlier weapons. Not because they’re planning on killing people, but because they like to fantasize about it. At least, until they take the next logical step. As long as capitalism, patriarchy, and white supremacy exist in this relatively uncontested union, mass shootings will only get worse.
But that does not mean we should just shrug our shoulders at every tragedy until some fantastical revolution saves us.
So if liberal gun control does not work for failing to confront capital and patriarchal fantasy, what can be done? Here are five proposals outside the norm of gun control regulation:
1. Nationalize Weapons Manufacturing
This one seems a bit counter-intuitive, but I believe it actually has the most potential to eliminate spontaneous mass shootings. Because a nationalized weapons manufacturing opens up so many possibilities. It could whittle down all firearms production to the bare necessity to engage in self-defense against a lethal threat. There are obvious problems here, mainly with foreign weapons flooding in to fill the vacuum. But it is worth noting that U.S. weapons currently flood the world so if there is one place to strategically attempt to plug up, it is here. This solution is obviously a pretty fantastical one in the current political environment, and it is on this list less as a serious suggestion for a campaign and more to start conversation about what can and should be nationalized and socialized in this country, how many problems could be solved if the profit motive was eliminated.
2. Shut Down Weapons Dealers
The term “dealer” under the law refers to both distributors and vendors, and both groups are complicit in mass shootings. One of the things found at the scene of the recent shooting was a modified bump stock, one of the ways that gun enthusiasts simulate automatic fire. Dealers pass around these custom parts and undermine any attempt at regulating the killing capacity of firearms.
Laws should be passed to hold dealers accountable. But until then another remedy may be available: wrongful death lawsuits. Certain family members of those killed in mass shootings have standing for wrongful death lawsuits – in fact, it happens somewhat regularly. But those lawsuits are generally against the government or the shooter’s estate (since the shooter is usually deceased). What if the dealers of guns were sued? It would require a good test case with a clear proximate cause of a dealer’s decision to sell a certain particularly lethal part or weapon to a mass shooting (and before someone jumps in with the “guns don’t kill people, people kill people,” the law recognizes any event can have multiple proximate causes, so yes guns and people kill people). It would require family members ready to fight organizations as vicious as the NRA, but luckily fed up family members are not too hard to find.
And for the Leftists who have been at the ready to attack me because you’ve convinced yourself any kind of gun control would attack the working class, don’t kid yourself. It is true that some kinds of gun control only harm the working class, like ridiculous licensing fees, and that some are straight up racist, like using the no fly list as the basis for restrictions. But the recent shooter being a multi-millionaire isn’t some anomaly. This is a game for high rollers, not for people looking to arm themselves for self-defense. Parts as small and innocuous as the Echo AR-II Trigger (another way people get around the automatic fire ban) cost $479. And as long as we are letting the market alone decide who gets the best guns, the Left by nature of its class composition is bound to get outgunned.
3. Resurrect the Federal Trade Commission’s attempted child advertisement ban
The next three solutions focus on the aspect of mass shootings too often ignored: that they begin and end with patriarchy. Patriarchy is an insidious system of power, “so deep as to be invisible” as Shulamith Firestone wrote. Part of why it is so deep is that it is instilled in all of us from the cradle to the grave. And a particularly disturbing iteration of that in modern society is video advertisements, both from TV and now online. This broad survey of the literature shows concerns that advertisements may, among other harms, be instilling aggressive and violent behavior in children.
The Federal Trade Commission (FTC) in 1978 announced that per their statutory mandate they were creating a rule to heavily restrict advertisement targeting children, particularly children too young to understand “the selling purpose” and advertisements promoting sugary foods. Needless to say, the capitalists flipped out. Particularly three industries mounted a campaign to stop the FTC: advertising, food, and toys. They tried all sorts of procedural tricks to take out FTC Chair Pertschuk (e.g. Association of Nat’l Advertisers, Inc. v. FTC), but they were only able to stop it by tearing apart the agency itself.
For decades this travesty went relatively unremarked upon. But a documentary called Fed Up identified its connection to the obesity crisis and child advertisement is up for debate again. A powerful coalition could be formed between all the different affected and concerned parties from the harmful effects of advertisements targeting children.
4. End All Funding By The U.S. Military Of Propaganda
One of the most disturbing parts of the glorification of violence and weapons in mass digital culture is how much of it can be traced back to the U.S. Military. The U.S. Military not only provided the jets, aircraft carriers, and other weapons of war for movies, they in turn helped shape the imperialist narratives behind them. They provide their trademarks and such for these creepy toys. And they fund summer indoctrination camps for the
future mass shooter patriotic youngster.
The Military has long resisted being told what to do by anyone, government or otherwise, so I doubt any kind of redirection here would be effective. Instead, the solution is a bit more straightforward: cut the Military budget. And while we push for that, support grassroots efforts like Stop Recruiting Kids that are fighting back.
5. Create The Violence Against Women Law That We Deserve
The Violence Against Women Act is one of the most criticized and studied pieces of modern law, from its civil remedy to survivors of violence that was struck down by the Supreme Court in 2000 to its tenuous relationship with tribal sovereignty. The Act was originally composed of five sections: (1) the Safe Streets for Women Act, which increased criminal penalties for rape; (2) the Safe Homes for Women Act, which required states give “full faith and credit” to protective orders granted in other states; (3) the Civil Rights Provision, which allowed survivors of gendered violence to sue their attackers for money damages; (4) Violence Against Women Act Improvements, which addressed campus sexual assault; and (5) Equal Justice for Women in the Courts Act, which trained state court judges and personnel in how to deal with sexual violence. As Claire DeMatteis who worked on the bill as Joe Biden’s consul noted, the law was preceded by dozen of hearings which were some of the first times that the violence women have faced and their stories have been recorded and solicited by the U.S. government.
But the Violence Against Women Act, for all its accomplishments, is not enough. Some feminists now question whether incarceration can play a part in our liberation. While the civil rights remedy was struck down in VAWA, it was a popular enough idea to inspire restitution struggles at local levels. There are many gaps created by the changing times: what should the legal remedies be for wrongful conduct like revenge porn? Harassment on Twitter?
A proposal for a new Violence Against Women Act deserves its own in-depth analysis. But the point here is that violence against women continues to be a largely unsolved problem, and that could be a crucial element in undermining the patriarchal roots of mass shootings. We must not simply give into fear and lash out, but rather approach the problem systematically as Crown Heights program Save Our Streets has done effectively.
Don’t Break Them, Take Them: The Legal Battle To Nationalize Banks
As if the Western media did not have enough reasons to rally behind the right wing terrorists of the Venezuelan opposition protests, a great outcry arose from the powers that be when Venezuelan Minister of the Economy Ramon Lobo and the unions seized control of a General Motors factory to ensure that production halts are not used to further harm the already fragile economy. GM of course was not please about this development and ran to their imperialist US government for help – after all, these political friends tend to give them far more deference. Unfortunately for the auto manufacturer giant, Venezuela does not take kindly to such interventionist appeals, so GM’s assets were frozen. It should be noted that this was not some impulsive move solely stemming from the recent unrest: GM owes more than $665 million in damages to a local car dealership that is over 16 years delinquent. The Western media will of course ignore this fact despite that such an egregious violation of the law would probably even elicit an injunction from the capitalist courts of the US. Instead the focus is on nationalization, a word that conservatives and liberals alike have tried to make into a slur, especially in response to any attempts to condition the recent bailouts of the auto industry and banks on even lukewarm reforms.
Keep The Seat Empty: 5 Reasons To Block Neil Gorsuch
The moment my colleagues and I have been dreading has finally arrived. Tonight, President Trump announced the appointment of Judge Neil Gorsuch of the 10th Circuit Court of Appeals to fill the seat of the Supreme Court opened by the death of Justice Scalia. But Judge Gorsuch must still be confirmed by the Senate to become Justice Gorsuch, and per Supreme Court appointment rules the Democrats could block his appointment by filibuster. But this post is not about whether the Republicans “deserve it” after the treatment of Judge Garland or some such punditry: instead I want to focus on what the legal consequences of a Justice Gorsuch would be as distilled from court dynamics and his record. After all, at 49 years old, Judge Gorsuch has the potential to be on the Court for decades upon decades.
A Government of Popular Insurgency: An Interview with George Ciccariello-Maher
I was going to wait to release this interview until I got a Spanish translation, but because of the egregious capitulation of Drexel University to white nationalist trolls who were throwing a temper tantrum over a joke by Ciccariello-Maher poking fun at the Chicken Little cry of “White Genocide” often made by the Far Right, a “genocide” not by murder or sterilization but by “miscegenation” and immigration. Considering that the United States is a colony and not in anyway a “traditional white land,” this claim of genocide is ridiculous. And yet Ciccariello-Maher is now being threatened by his employer Drexel University. So please, take some time to call or email Drexel University and calmly tell them that you support Ciccariello-Maher and academic freedom, and oppose universities caving in to white nationalism:
And you can sign a Change.org petition as well.
Grant Chasers and the LGBT Transition to Neoliberalism
Barney Frank may be three years into retirement from politics, but his spirit continues to haunt the LGBTQ movement. As if to emphasize the exclusionary nature of their politics, a invite-only conference call between the “leaders” of the LGBTQ US movement rehashed a debate that has been going on since the so-called “Gay Liberation” movement decided that Sylvia Rivera and other trans women were harmful to their respectable image. The debate was sharply divided into two sides: purse string holders Gill Foundation and National Center for Trans Equality (NCTE) on one side and ACLU, Lambda Legal, and a somewhat less confrontational HRC on the other side. Gill and NCTE are advocating for what they call “incrementalism,” focusing energy and resources on passing anti-LGBT discrimination in employment and housing and essentially abandoning public accommodations to be dealt with later. ACLU and Lambda Legal reject this “incrementalism,” pointing to laws like HB2 as pressing discrimination that demands attention and questioning whether public accommodations would ever be returned to if abandoned now. That’s right: we are in a bizzarro world where the HRC is defending the most marginalized trans people against NCTE redirecting resources away from them. But aside from HRC, this lineup is not all that surprising and represents a fundamental difference between how the lobbying-focused nonprofits think of advocacy and how community and litigation-focused nonprofits think of advocacy.
Coin: Episode 1 of the Law and Mr. Robot
The ‘dollar’ is mentioned once in the Constitution:
The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.
This is the infamous block on the abolition of the slave trade put into Article I Section 9 to placate the plantation owners crafting American capitalism through the blood and bodies of African peoples. It actually is not referencing United States dollars (which did not exist yet) but Spanish dollars, the currency used in the Spanish colonies. However Spanish dollars were Alexander Hamilton’s basis for creating the worth of the US dollar. Originally the USD’s value was based in silver, not gold: the Coinage Act set its value at 371 4/16 grain pure silver. The Coinage Act arose from a very simple directive of the Constitution, Article I Section 8: “To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.” But this provision is going to provide some very interesting problems for us later on.
The Careful Massacre of the Legalese: Dissecting the Law in Mr. Robot
If you couldn’t tell from this lead-in picture, this post and the next few posts are going to be chock-full of spoilers about the TV show Mr. Robot. Yes you should watch it before you read this, and no don’t just read the episode synopsis on wikipedia because it is a really good show.
Mr. Robot is a great show because it has that kind of surreal world creation that feels all too real, especially for those of us dealing with cyber security, law enforcement, mental illness, and multinational corporations. It is not afraid to portray just how far people will go ethically to accomplish their aims, whether it is escaping prison or taking over a country’s entire financial system. And along the way are thousands of allusions to the careful watcher about everything from hacker culture to Leftist politics.