Profit Kills

< Previous Post||Next Post >

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.

maxresdefault
But let’s all be clear that Michael Fifer looks like a worm-colored prune.

The Problem

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:

banned
This firearm is banned because it is very SWAT-looking.
okay dokay
But this one is okay because of the classic wooden stock vintage feel.

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:

walther-ppk

And now here’s what the horrifyingly creative weapons dealers think of as a pistol:

15z_czscorpionevo3s1carbine_r_08505_08506

Here is a very unpleasant weapons dealer showing off how easy this law is to get around.

military arms asshole
I really can’t over-emphasize how unpleasant this dude is.

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.

The Solution

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.

A man shows a girl how to hold an airsoft gun during the NRA Youth Day at the National Rifle Association's annual meeting in Houston, Texas

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.

gear_head
Something tells me this hasn’t been verified by a peer-reviewed study.

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.

< Previous Post||Next Post >

shooting response
S.O.S. conducting a “shooting response,” where they canvassed a neighborhood after a fortunately non-lethal shooting.
Advertisements

Submission by Admission: The Patriarchy of Opponent-Party Admission

< Previous Post||Next Post >

covers2fyellow-wallpaper
Illustration of The Yellow Wallpaper, a short story of a woman told she has “hysteria” who actually has a psychotic break from the “cure.”

The term “gaslighting” came into popular use in the feminist movement to describe a practice used in domestic violence contexts where the abusive partner lies and manipulates facts in order to have the abused partner doubt their own ability to understand reality, and thus to understand that they’re in an abusive relationship. It can be as simple as “No I wasn’t yelling, you’re remembering that wrong” or as elaborate as messing up a recently cleaned room and punishing the person for “not cleaning” it. Generally this dynamic occurs between a man (the abuser) and a woman (the abused). Why is this? In The Dialectic of Sex, Shulamith Firestone states that it is because of the inability of women to love “gratiutously, but only in exchange for security”:

  1. the emotional security which, we have seen, she is justified in demanding.
  2. the emotional identity which she should be able to find through work and recognition, but which she is denied – thus forcing her to seek definition through a man.
  3. the economic class security that, in this society, is attached to her ability to “hook” a man.

…For once a woman plunges in emotionally, she will be helpless to play the necessary games: her love would come first, demanding expression. To pretend a coolness she does not feel, then, would be too painful, and further, it would be pointless: she would be cutting off her nose to spite her face, for freedom to love is what she is aiming for.

Firestone and I both practice a materialist feminism, that we analyze patriarchy through the historic and materialist (in Firestone’s case, the biological reality of reproduction) conditions of society. But materialist feminism is not just analyzing how patriarchy came about materially, it is also analyzing how patriarchy shapes seemingly non-gendered things in society. While she focuses on cultural production (in particular classical ideas of art), she writes that patriarchy’s influence even extends to the seemingly empirical professions, in particular because women experts have to adopt a “split ‘professionalized’ personality, emotional ignorance, the narrow views of the specialist.” This conclusion brings to my mind a common truism among women attorneys, which is that women judges are always more strict to “make up for” the stereotyping of women as overly emotional and soft.

In particular I am interested in how patriarchy has shaped the laws of the United States, my (hopefully) first as-yet unpublished law review article looking at the ways patriarchy has shaped consumer bankruptcy. Whereas other scholars like Elizabeth Warren have focused on how bankruptcy disproportionately effects women, I am more interested in how gendered ideas creep into seemingly gender-neutral laws. And few laws are as facially gender-neutral (at least now that the practice of using “he” as a default pronoun has mostly faded) as the rules of evidence. But these rules play their own part in reifying patriarchal relations of power, and one illustrative example of this is the opponent party admission exception to hearsay.

Rule 801 does not say too much about opponent party admission:

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(2) An Opposing Party’s StatementThe statement is offered against an opposing party and:
(B) is one the party manifested that it adopted or believed to be true.

Without getting too much into the specifics, hearsay can be a major encumbrance for attorneys. Unless you are able to manipulate someone successfully in cross-examination, it can be almost impossible to have a person admit to saying something that they did not say. The phrase “I cannot recall,” a favorite in depositions by our current president, can derail a case. This is especially true for a criminal attorney trying to exonerate their client from a rape or sexual assault charge. For cases that often boil down to “he said, she said,” establishing that the victim changed her story can make or break the case, or at the very least garner a better settlement.

And they look for changes in the story because they are common. Women are gaslighted into believing that their rapes are not a big deal, that what they remember as sexual assault was actually a consensual hook up, etc. If these “admissions” happen to police officers or other key witnesses, it can be very difficult to keep it out of court. Even the rape shield law, created to protect victims from being questioned about their sexual history, is vulnerable to this loophole.

A survey in the UK reports that 21% of those who do not report the assaults to police do so because they think the police will not believe them. But the gendered effects of this rule extend much farther than explicitly gendered issues like rape. Witnesses have notoriously faulty memories in general, and yet a common patriarchal idea of gender difference is that women in particular are liars.

woman-are-liars
I have seen guys in Brooklyn who both look like and sound like this jerk.

A number of not-so-scientific surveys say that women are more likely to lie then men. But in every one of these surveys, what is recorded within “lies” includes things like telling someone you like a gift that you actually did not or giving a fake number when someone asks you for one. In other words, the “lies” that women tell are about survival, either placating or avoiding all together the male domination in their lives. And these “lies” can under the opponent party admission exception be turned against women when they attempt to seek justice: a placating statement to an employer to avoid getting fired could be used as evidence that the problem at work is fabricated or an almost pre-programmed impulse to apologize when involved in a car accident could be used as evidence that the woman was at fault.

That’s not to say that there are not valid applications of opponent-party admission. A comprehensive and full confession of anything falls well outside of the fibs described above. And as someone who does legal work, I understand that as a general rule better decisions are made when all the evidence is allowed in. But to give such weight to offhand statements, whether made because of psychological manipulation by an abuser or because of social conditioning to be demure, is not conclusive of anything other than the double bind which women are placed in.

In terms of a solution, it is a bit chicken or the egg: should the focus be on ending the conditions that get women gaslit and socially conditioned to placate male feelings or should the focus be on not giving these “admissions” evidentiary weight? But they are not mutually exclusive struggles, and in fact are quite compatible given that the second is a more immediate goal (amending the rules of evidence) whereas the first is a more systemic goal (overthrowing patriarchy). And of course you do not have to be a lawyer to fight against the patriarchal idea of women as liars: that struggle can be fought every day in our personal lives by believing women when they speak earnestly about their oppression.

< Previous Post||Next Post >

Où Pour Toujours l’Injustice Perd Ses Quartiers: Due Process And Revolutionary Burkina Faso

95d64895623b42d1c96c6662312303d2

To head off the “[insert revolutionary leader here] DID NOTHING WRONG” crowd and just because Westerners tend to be woefully misinformed, let’s start with describing Burkina Faso under the revolutionary government of President Thomas Sankara and why despite its brief existence of four years it accomplished more than most other attempts at socialism, throughout the globe and history, ever have. All land and mineral wealth was nationalized. 2.5 million children were vaccinated against meningitis, yellow feaver, and measles. Before environmental issues were talked about by most of the world, the Democratic and Popular Revolution planted 10 million trees to fight back against the desertification of the country. In four years Burkina Faso became not only food self-sufficient by dramatically increasing agricultural production but had a surplus due to some crops like wheat being produced at triple the rate. The country spurned the silencing of stigma by being one of the first in Africa to recognize the AIDS epidemic. 700 km of rail were laid to facilitate extraction of manganese by and for the people. Female genital mutilation, forced marriages, and polygamy were banned. Sankara himself was an ardent feminist who promoted contraception and men stepping outside of traditional gender roles by going to the market and cooking. He was the first African leader to appoint women to his cabinet and the revolutionary military actively recruited women. These are just a few of the successes that Sankara and the Burkinabe under the Democratic and Popular Revolution were able to accomplish in the span of four years. And we’re not even touching on how President Sankara was an amazing orator who frequently told the most powerful people in the world that he refused to abide by their colonial rule any longer.

The great successes of Burkina Faso during this time makes it all the more tragic that the revolution fell apart after only four years. There are four major reasons why this happened: (1) President Sankara and the government’s conflict with certain sections of the proletariat, especially teachers, syndicalists, and unions in general; (2) the Committees for the Defense of the Revolution were decentralized and undisciplined as President Sankara himself admitted and was beginning to address, though unfortunately too late; (3) the international hegemony was scared to death that President Sankara was inspiring not only revolution in Burkina Faso but a Pan-African rebellion against the International Monetary Fund and capitalism itself, so they actively sabotaged and undermined the regime (and judging from others like President Lumumba of the Congo, Sankara’s execution very well may have been aided or ordered by these authorities); and finally (4)  the Popular Revolutionary Tribunals, an attempt to hand over control of the judiciary to the people for the purpose of establishing real justice. While having the best intentions, these tribunals quickly devolved into kangaroo courts for settling personal scores. This devolution happened because the Popular Revolutionary Tribunals were set up only in recognition of one of the two dialectics of the law: they had authority but not certainty.

Much like the proletarian state is still an instrument of violence arising from class antagonism, a revolutionary legal system cannot exist for long without authority and certainty. Authority is simply the framework by which the law outlines the actions of the state. In the United States there is generally ultimate Supreme Court authority through the Supremacy Clause and the rest of the Constitution, especially the Civil Rights Amendments as applied after Cooper v. Aaron. Cooper was the culmination of a plethora of cases that arose in reaction to Brown v. Board of Education, with Southern courts and governments refusing to recognize federal authority. The Supreme Court simply reaffirmed the federal system of government and while states rights’ are still held as an issue by conservative legal scholars, federal supremacy is to a certain extent accepted across the political spectrum. While the system of authority is at times ridiculously complicated, it functions to uphold the authority of the law as a whole and subsequently the authority and legitimacy of the state itself.

Authority itself though is only the synthesis of the tensions between two intersecting counter-posed relations: legitimacy and power. No authority can preserve its legitimacy without the power to do so, and no authority can exercise its power without the legitimacy to do so. And both of these relations were present at the start of the Popular Revolutionary Tribunals. The courts were legitimate because they were held in the open with direct oversight by the people. The conception of the appeals process and federal oversight are unique aspects of the US legal system that I doubt are in any way necessary for authority, especially in a country as small and far more homogenous as Burkina Faso. They had power because their decisions were binding and final. But of course alone these characteristics could not preserve it. They degraded: trials began to be held in secret and decisions became more difficult to enforce as magistrates and sects of the military began to fight among themselves. And they degraded because of the lack of certainty within the legal system.

Certainty is a bit more complicated. Traditionally certainty is framed as an important aspect of liberal formal equality, that people should know be able to calculate the legal impact on their lives like a set formula. I prefer to consider certainty by how it functions rather than how it is supposed to function. So for example, a liberal person would say due process rights are meant to protect all individuals from having rights taken away without some good reason. I would say due process rights are meant to prevent massive redistribution of wealth and create a certainty (i.e. you go 20 over the speed limit, you get a $1000 ticket) that makes it more difficult to dissent from the authority (you knew the speed limit and that going above it would get you punished, therefore it was your choice).

What limited use ‘due process’ has had for more progressive objectives comes from the need to preserve the legal fiction of equality under the law. In constitutional legal theory this is referred to as ‘representation-reinforcement,’ the theory that our legal-political system works by the laws morphing to match the majority’s will enough to prevent large scale revolts and the destabilization of the government. Its more liberal proponents argue in addition that this means the responsibility of the courts, and especially the Supreme Court, is to make sure there are no impediments of people resolving their problems through the political process. ‘Due process’ is the penultimate civil right of ‘representation-reinforcement,’ in that it is the guarantee of political process rather than the actual remedy of any grievances. And it is important to distinguish ‘due process’ from remedy: after all, what does ‘due process’ matter to the 95% of criminal defendants who are pressured into guilty pleas?

So it is not surprising that Sankara (and ironically the anarchists he despised) would not care much for guaranteeing due process in the new revolutionary legal system. But here lies the contradiction that the Democratic and Popular Revolution unfortunately failed to realize. The bourgeois state does not guarantee ‘due process’ for the sake of defendants: so why would the proletarian state? The purpose of the proletarian state to begin with is as a necessary instrument of violence to preserve the revolution. Its mission is hardly that different from the bourgeois state, the only differences being that power has been reversed and that this reversal will cause the withering away of class itself. Authority and certainty are just as, if not more, needed. So like the current bourgeois state, the proletarian state will use ‘due process’ to create a legal fiction of ‘representation-reinforcement.’ Rather than protecting the individual’s property rights, now it will exist to preserve the right to shared abundance, the abolition of private property. Rather than jumping hoops to receive damages from a corporation that harmed you through its conduct, the corporation would have to jump hoops to establish that every part of itself was contributing to the common good rather than the profits of a select few.

Without this clear principle, the law will quickly become abused as it was by the Popular Revolutionary Tribunals for the settling of private scores, the very reinforcement of individualism and private property relations. Sure, ‘due process’ will give the deposed bourgeoisie access to the political process, but it will only be the sort of access that the proletariat currently has. It is a necessary formalism that has been recognized, with varying degrees of success, by both the Democratic People’s Republic of Korea (Articles 69 and 158) and the Bolivarian Republic of Venezuela (Articles 26, 46, 49, 267, 271, 285, and 337), among many other socialist governments which have managed to thus far survive imperialist plots of regime change (while affording even people as vicious as Leopoldo Lopez due process).

It may seem underhanded or ‘fighting fire with fire,’ but revolution is always a messy process in this manner and arguably not nearly as inhumane as the current social conditions. By nature the process is too convoluted  to ever be permanent: it should wither away just like the state itself. President Sankara and the Democratic and Popular Revolution had the best intentions with the Popular Revolutionary Tribunals, but without guiding principles of authority and certainty like ‘due process’ it was doomed to devolve into an anarchistic and individualistic legal system. No doubt the brilliance of the movement and Thomas Sankara could have reversed this course, were it not for the treachery of Blaise Compaoré under the guidance of Western imperialist capitalism.

Women’s History Month – Reading The Dialectic Of Sex

quote-power-however-it-has-evolved-whatever-its-origins-will-not-be-given-up-without-a-struggle-shulamith-firestone-73-19-42So this post will be a bit different from the others in that it is not about the law. But I thought since today is the beginning of the arbitrary “Women’s History Month,” I might as well use the occasion to give y’all a glimpse into a project I’m working on. That project is Reading The Dialectic Of Sex, a comprehensive companion book to Shulamith Firestone’s The Dialectic of Sex. Firestone is one of the great feminist theorist, and particularly her contribution to feminism is valuable to those of us who are Marxists because it employs historical materialism rather than liberalism, post-structuralism, etc. So see below for a draft of the first chapter, and I would love to hear any feedback:

Continue reading