Note 33: We are a nation of Presidents, not Kings.
An explainer that I can reuse later.
|Chris J. Karr||Apr 14|
The weather in Chicago is finally getting to a point where it’s consistently warm enough for me to start doing some gardening and landscaping. We had a warm spell back in March, which I used as an opportunity to seed some bare areas with grass seed, but it looks like I jumped the gun, as very little “baby grass” has sprouted where I planted. It looks like I’ll be donning my gardening cleats this weekend to try and get some seed started before the warm summer months are here.
For folks following along at home, I did do some mulching and edging last night while procrastinating on the evening work shift (click through to the full set of pictures):
With the edging in place, I can now start transplanting living grass from one side of the edge to bare patches on the other side, and start shopping for flowers to fill the edged-off area. The birdbath and bird feeder are still in storage, as I’m re-evaluating where those should be. Having birds around is nice, but having bird waste around isn’t so great. Odds are good that I’ll move those to the parkway-facing patio to keep the interior patio cleaner. Plus I’m in the office throughout the week this year, so it’s not like I’ll have a lot of time to enjoy the robins and chickadees singing.
Related to the patio, the subject of Adirondack chairs has become a minor obsession of mine. I want to spend more time outdoors reading this summer and I think that style of chairs would be perfect for that. Unfortunately, the first one I purchased broke as soon as I sat down in it. While I’ve put on some pounds during COVID, I haven’t put on that much, and the broken chair is on its way back to Macys. (An after-collapse review of reviews from other sellers indicated I’m not the lone chair-buster.) I’m waiting to get my refund before I purchase the next one. I do know that I will be avoiding wood chairs this next time, and have my eyes on one made of recycled plastic and other materials. I’m looking forward to posting a picture of that once I have it.
In other news, work has been pretty all-consuming. One of the downsides of working on brand new systems is that things pop up that make predicting their ultimate deliverable date challenging. As I mentioned last week, I had to level-up on fraud detection quickly due to an impending study and I have about three projects that I’m trying to ship that remain at a 95% completed state. It’s not that they are stuck and not moving - rather that we’re in the annoying phase where small things constantly pop up that we either didn’t think about or deferred unwittingly. All I can do is keep my head down and push. Some great work is getting done, but I just want to stop taxing my clients patience with repeated “it’ll be ready for you to test next week” promises. It feels too much like I’m making excuses.
PSA: Presidents cannot unilaterally change the Constitution.
For those unfamiliar with those terms, a ghost gun is a gun without a traceable serial number, often assembled legally from gun kits where one can purchase the necessary parts from a variety of manufacturers and build a weapon to one’s personal specifications. This is popular among the AR-15 fans and folks who want the experience of building a gun of their own. I have a relative who swears up and down that it’s also cheaper than purchasing a fully-assembled weapon (with a serial number).
A pistol stabilization brace is a piece of hardware intended to function essentially like the stock of a rifle, where the shooter can stabilize their pistol against their shoulder or arm while shooting. In contrast, rifles are intended to be held with two hands while shooting, while pistols are intended to be usable in a single hand. This article from The Trace goes into the difference between AR pistols and rifles and braces and stocks into more detail.
From the messages that I received, and post I saw on Facebook, you’d think that Biden was beginning to mobilize a secret police that was preparing to confiscate ghost guns and pistol braces without any sort of warning or due process in the middle of the night. Furthermore, Biden did himself no favors when he said that no amendment was absolute:
(Fast forward to 1:20 to get to the “no amendment is absolute” comment.)
The OANN and NewsMax social media wannabes seized on this comment to build up their case that Biden was finally coming after Americans’ guns. After all, if there’s no such thing as an absolute right, what’s to stop Biden’s thugs from violating all American’s Constitutional rights?
Before I get into that question, I should put my own cards on the table with respect to the Second Amendment and my thoughts on American’s rights to bear arms. Overall, I consider myself fairly pro-gun rights in that I do think that the Constitution as written grants Americans an individual right to own and use firearms. Given the historical context in which the Amendment was drafted, as well as its plain language, I can’t convince myself that the Second Amendment doesn’t say that. However, as we’ll get to below, I also don’t think that it’s an “absolute right” (nor do I think that any “absolute rights” actually exist).
Having grown up in a rural county that’s larger than some states, and was patrolled by a handful of State Police officers, I appreciate the idea that people should be able to be responsible for their own personal safety in the absence of timely law enforcement responses. In addition to making oneself safe from other humans, protection from nature and wildlife is also a valid concern. These days I now live in a pretty safe neighborhood in the city, three blocks from the nearest police station. The need for a firearm to protect my home against intruders is pretty minimal, so I don’t have to have a handgun or rifle available as I might out in the country, and I’m also sympathetic to my city seeking to limit the number of guns within its bounds, especially each time I hear about a child getting caught in the crossfire between two adults.
If someone granted me the power to change one thing about the Second Amendment, it would be to make it more of a state-level concern, where communities could make their own decisions about where the balance lies between gun ownership and gun control within their towns and cities. I’d prohibit the federal government from preventing States from choosing their own policies (no national firearm laws) and leave it up to the citizens of each State to determine what’s best for themselves. What is appropriate for Connecticut is drastically different than what is appropriate for Alaska.
I’m also not particularly concerned about what kind of weapons different people own, but I’m very pro-insurance mandates for people who decide to own weapons. If you have to have insurance for car accidents, it makes perfect sense that gun owners should be required to carry coverage for weapon accidents. Furthermore I also support making gun owners responsible for what happens with their weapons. The idea is that a gun owner should be charged with the same level of consequences as someone committing a crime with their weapon, UNLESS the gun owner reports the missing weapon to the police BEFORE it’s used to hurt, threaten, or rob someone. I think a large part of the problems that we have with guns in this country is that owners are not sufficiently diligent about securing their weapons and being aware of how they’re being used.
Anyways, back to “absolute rights” and Biden’s supposed gun grab. The reason that I think there’s no “absolute” Second Amendment right is simply because I don’t think anyone honestly supports the idea of honoring that “absolute” right for everyone in this country. In particular, we’re very diligent in NOT honoring incarcerated felons’ Second Amendment rights while they are in prison, where we do respect their First Amendment right to religious worship. So, on an “absoluteness” scale (which is a self-negating phrase), religion certainly ranks higher than gun rights, and even that can be curtailed, as polygamous Mormons discovered. So, given that I can easily come up with situations where the most ardent defender of any “absolute” right would be willing to compromise, this renders the entire “absolute” argument moot.
So, in the absence of some absolute protection for gun rights, where does that leave our ghost-gun-builders and pistol-brace-users? As it turns out, Biden is probably the weakest actor among the three branches of government when it comes enacting any form of new gun control. That is because we effectively have three “levels” of laws, and Biden is only free to muck around in the weakest level.
The highest level of law is the US Constitution, where the Second Amendment lives. It is notoriously difficult to amend and change the wording of the Constitution (two-thirds vote among Congress or States to even propose an amendment, and the approval of three-quarters of State legislatures). This is so difficult that it’s been almost three decades since an Amendment has been successfully added (1992’s 27th Amendment: prevents laws governing Congress’ pay from becoming active until the next Congress), and it’s been a full half-century since an Amendment affecting the population at large has passed (1971’s 26th Amendment: grants 18 year olds the right to vote). It’s gotten so difficult to amend the Constitution that battles over its contents have moved from proposing and voting on amendments to trying to shape the Supreme Court’s membership in order to try and extract more favorable interpretations from the existing text.
Right now, gun-rights supporters enjoy a six to three conservative majority in the Court, so unless there’s a change of heart among at least two Justices, we’re not going to see any substantial changes to current Second Amendment interpretation any time soon.
The second highest level of law are those passed by the House of Representatives and Senate. While it’s easier to make law at this level, members of the House and Senate are limited in the laws that they can propose that must fit within the Constitutional bounds of the Second Amendment, as interpreted by a conservative majority. Furthermore, rural areas that tend to be more gun friendly enjoy the most power in the Senate, where gun-friendly states enjoy a higher degree of representation than gun-hostile states owing to the fact that each State sends two Senators to Washington, independent of their populations. Given that Senators are elected by their entire states, you’re not going to see a lot of Democratic senators representing gun-friendly Red States sticking their neck out over this issue. And even if folks like Joe Manchin (D-WV) have a change of heart, any proposed legislation would still be subject to the 60-vote requirement to overcome the inevitable filibusters.
Finally, we arrive at the lowest level of law, regulations made by executive branch agencies. This level of law exists because Congress expressly delegated the actual drafting of rules and regulations to agencies specializing in specific subject matters under the theory that on focused and technical matters, experts may be the best at formulating policy. Here, Biden can begin to exercise some of his power by instructing his agency heads to tilt the policy in a direction that he desires. However, these policies must be consistent with existing law (enacted legislatively) and it must also be consistent with the US Constitution (as interpreted by a 6-3 conservative majority). This doesn’t leave a gun-grabbing Biden much room to operate, and his policy can be easily overridden by both the legislative and judicial branches.
Furthermore, Biden is also constrained by a law called the Administrative Procedure Act. (Sorry - no “Schoolhouse Rock” for this one.) When Congress delegated some of its policy-making power to executive branch agencies, it also limited that power by mandating that any policy changes be justified by evidence (not “arbitrary and capricious” as the Trump administration failed to learn repeatedly), be open and responsive to public comment, and gives the judicial branch oversight on agencies’ regulations. Furthermore, an agency can’t pass a new regulation on Monday and it becomes effective on Tuesday - the public comment period gives folks outside the agency time to evaluate and debate the measure before it can become enforceable. This hems in Biden’s anti-gun ambitions even more - he has to justify why his new rules are needed in an open and public manner before any action can be taken. As Trump never fully grasped, Presidents don’t have the power in our system to make policy by simple proclamation - there’s a lot of process that has to be followed.
So, where does that leave us? As I’ve been telling gun fans, if they are worried about their pistol braces or ghost guns, their best bet right now is to keep their powder dry and stop spending other peoples’ attention protesting regulations that have not yet been drafted. At the moment, all that’s happened is that Biden has instructed his Attorney General to look into the matter and draft a proposed rule (to be enforced by the federal law enforcement agencies) concerning the braces and the ghost guns. Wait until Merrick Garland comes back with his proposed rule, then see what is objectionable within that written proposal. Once there’s a concrete proposal on the table, take advantage of the public commenting period to start laying the groundwork for a challenge that either casts the proposal as “arbitrary and capricious” or as running afoul of an existing law or the Constitution itself to prepare for a judicial challenge. To borrow a phrase, “keep your powder dry”.
For the folks who will argue back that protecting gun rights hinges on that 6-3 conservative Supreme Court majority and that Biden would like to enlarge the Court, I’m going to retort that Biden cannot change the size of the Court on his own - that goes to the second level of law above (legislative) - and Congress would have to pass legislation to enlarge the Court before he can even get started nominating new Justices. And given that the size of the Court has been fixed a good deal longer than even passing the latest Constitutional amendments, you’re much more likely to see Congress itself move against ghost guns and pistol braces before adding more seats to the Court.
One final word of advice / prediction that I’ll make: given that the ghost gun actions are also backed by law enforcement, and one of the major (legal) arguments for regulation in that direction is achieving traceability parity with traditionally manufactured firearms (which have a mandatory serial number after 1968), expect to add firearm manufacturers and the police to the list of folks you’ll be arguing against. Police detectives have an occupational interest in being able to track the chain of ownership of firearms used in crimes. Traditional manufacturers have an interest in bringing manufacturers of ghost gun parts under the same regulatory regime they are subject to as a matter of minimizing the price gap between the assembled weapons that they sell and the unmarked kits that are substitutes for their products.
I fully expect that Garland will come back with a rule mandating that the gun kit manufacturers be subject to the same record-keeping and identifier-marking requirements as the regular manufacturers. (I’m not so sure what will come down regarding the pistol braces, but recent actions on bump stocks may provide a clue.) If you are a Second Amendment proponent, you may find it worthwhile to ask yourself if this is where you want to spend your time and energy, especially if you find yourself fighting against political allies in other areas. In the spirit of keeping your powder dry, ask yourself if it’s worth alienating allies and spending energy and attention that might be better used in a future battle when you don’t have a large Supreme Court majority backing you up.
I don’t have any new book reports this week. I’ve switched gears from sci-fi pulp novels and am finally reading Robert Putnam’s Bowling Alone: The Collapse and Revival of American Community. This may be the most personally influential book that I haven’t actually read, so I’m taking my time with it. It’s a sociological investigation from 2000 about the decline of interpersonal relationships between Americans in the latter half of the 20th century as both formal and informal participation in a wide variety of groups and institutions declined. I‘ll have more to share next week.
In terms of my overall goal, I remain two books ahead of schedule (30 of 101).
When Metro North Had a Jungle Tiki Bar Car on Its Trains (Untapped New York)
How to Become a Distiller (Distiller)
Sharon Matola, Who Opened a Zoo in the Jungle of Belize, Dies at 66 (New York Times)
Some Moral and Technical Consequences of Automation (Norbert Weiner)
Welcoming Our New Robot Overlords (The New Atlantis)
New Iran Deal: Give Them Vaccines, Not Cash (The Bulwark)
5G phone networks could provide power as well as communications (The Economist)
I’ve been spending quite a bit of time in the void running errands for Engineers to soup up my space hot-rod. Looking forward to taking my upgraded Vulture out this weekend to play the role of a mercenary space-Hessian. What are your weekend plans, CMDRs?