Time to Shoot Down the NRA

The NRA reveres the Second Amendment (well, their version, at least). The First, not so much.

In the wake of daily reports of gun violence–the most recent of which include the massacres in Orlando and Dallas, and the murder of two bailiffs in a Michigan courtroom and none of which were prevented by a “good guy with a gun”–it may be appropriate to look at the extent to which the organization has stymied even reasonable legislative efforts to understand the dimensions of the problem.

Thanks to the NRA, Congress has steadfastly refused to fund research that might help us understand how we might tackle gun injuries and improve public safety. But the NRA isn’t active only at the federal level, and it isn’t just worried about research.

As I learned from Mort Tavel’s blog,

As a physician, I had always prided myself on being free to advise patients about all health issues, including risks that could endanger their personal well-being and that of their families and loved ones. This meant that I could inquire not only about immediate risks such as smoking and diet, but, among others, about whether a patient was using his/her seat belt when driving, or exposing family members to the toxic effects of secondary cigarette smoke in the home. I was also free to inquire whether a given patient had a firearm at home, because of the potential dangers involved. In that regard, evidence shows that the presence of a gun in a home increases by threefold the risk of death for all household members, especially by suicide, when compared with homes free of guns. Even worse, this risk rises to fivefold greater for children residing in homes possessing firearms. Thus these dangers are so great that it is incumbent on physicians to counsel patients about risks of home firearms and to recommend countermeasures, which include use of safety devices and meticulous storage of weapons, or better yet, total removal of guns from the household. This is so important that all major physicians’ organizations, including the AMA, have recommended that physicians discuss firearm safety with their patients.

So can such responsibilities be forbidden? Outrageously, Florida’s Firearm Owners’ Privacy Act was enacted in 2011 in response to concerns raised by some patients whose physicians asked them about gun ownership. The law prohibits physicians from intentionally entering information into a patient’s record about firearm ownership that “is not relevant to the patient’s medical care or safety, or the safety of others.” Thus physicians may not ask about firearm ownership unless they believe “in good faith” that “such information is relevant to the patient’s medical care or safety, or the safety of others.” Physicians who violate this law may be “disciplined” (whatever that means).

A physicians’ group sued Florida, on the very reasonable grounds that the law violates doctors’ First Amendment free speech rights. However, a 3-judge panel of the Florida Court of Appeals upheld the Act, on the dubious grounds “that physician counseling may be so persuasive as to deter patients from exercising their Second Amendment right to own guns.”

To say that such a decision is bizarre and totally inconsistent with First Amendment jurisprudence is an understatement.

Worse, last year, the Eleventh Circuit Court of Appeals upheld the decision.

This, the court acknowledges, is a restriction on doctors’ speech. But, the court concludes, when a professional (lawyer, doctor, financial planner, and the like) is directly advising a client — as opposed to, say, opining on law or medicine on a blog — that professional-client speech is more restrictable.

The Volokh Conspiracy is a legal blog maintained by Eugene Volokh, a conservative law professor who is a strong defender of both the First and Second Amendments. Volokh has serious concerns about the Eleventh Circuit’s reasoning.

This selective targeting of questions about guns — when other, likely quite common, questions about private matters aren’t restricted — suggests that this law isn’t really about protecting privacy as such. Rather, it’s about preventing doctors from spreading what many gun rights supporters see as unsound anti-gun propaganda.

The First Amendment forbids government suppression of speech based upon its content. This is a very troubling deviation from settled constitutional principles.

Missouri and Montana have laws similar to Florida’s; all supported by the NRA.

For far too long, elected officials at all levels–and evidently, a number of judges– have been in thrall to the NRA, an organization devoted to the bottom-line health of gun manufacturers, not fidelity to the Second Amendment or–quite clearly– any other part of the Constitution.

It needs to stop.

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Just Give Me the Money!

We need to ask Governor Pence just what part of “accountability” he doesn’t understand.

The IBJ recently reported that the administration is refusing to give the federal government access to information about HIP 2.0–the system that he used to implement Medicaid while insisting that it WAS NOT MEDICAID, NO SIREE! Well, in all fairness, it did have differences; it covers fewer Hoosiers than a simple Medicaid expansion would have done, for one. Call it Medicaid-lite.

The plan was sufficiently in compliance with Medicaid regulations to allow the federal government to fund it–on condition that they evaluate the program after it had been in effect for a period of time. When the time came for the state to submit information needed for that evaluation, however, Pence refused to comply.

The most recent flare-up between the Pence and Obama administrations came when Indiana missed a June 17 deadline for submitting data to the federal government on who was enrolled and what kind of benefits they were receiving.

Now, maybe I’m missing something, but when the agency that is paying for a program asks for information needed to determine how you are using its money, it seems reasonable that you would comply.

But of course, the words “reasonable” and “Mike Pence” are rarely found in the same sentence. (That’s probably why Trump finds him congenial.)

Indiana officials, however, have balked for months at the federal review, saying they are conducting their own outside review.

“I am concerned that two evaluations being conducted at the same time has the potential to create contentious outcomes which can impede fair, impartial and empirical analysis of demonstration projects,” Pence wrote in December to the U.S. secretary of health and human services.

To some observers, the conflict seems to boil down to this: Pence doesn’t trust the federal government to do a fair evaluation.

Gee–if I were the federal government, I wouldn’t trust Pence to administer a fair system.

A former state official has a theory about why a simple element of accountability–a look at the books to determine whether federal funds are producing the agreed-upon results–has Mikey’s panties in a twist:

“From the beginning, when Pence established this Medicaid expansion by using HIP, he has struggled to make it look like it’s an Indiana plan, not a federal plan,” said Sally McCarty, former Indiana insurance commissioner under Democratic Gov. Frank O’Bannon, and a former senior research fellow at the Center of Health Insurance Reforms at the Georgetown University Health Policy Institute.

“He probably doesn’t want to relinquish ownership of any of it and give any control to the federal government,” McCarty said.

He just wants the money–no pesky “accountability strings” attached.

I don’t think it works that way.

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Black and Blue

I know I am not the only American who is struggling to come to terms with the events of the past week: the videos of police killing black men whose “crimes” consisted of selling CDs and driving with a broken taillight, the equally horrendous murder of Dallas police by a U.S. Army reservist bent on “killing white people,” and the use of a sophisticated robot to kill, rather than incapacitate or capture, that gunman.

Most reasonable people understand that every group–racial, occupational, whatever–has its bad apples, deranged or bigoted or otherwise damaged individuals. In the case of police, the rogue behaviors displayed by a small percentage of officers makes police work more difficult and more dangerous: for one thing, when people fear and distrust law enforcement, they are unlikely to co-operate and provide helpful information; for another, as we have seen in Dallas (and last year in New York),  shocking evidence of such behaviors can provoke attacks on all police by unstable individuals.

When one of those attacks, or another high-profile crime, is committed by a black person, it reinforces stereotypes of black criminality, making the lives of the vast majority of black citizens more difficult. (Of course, when whites like Dylan Roof massacre churchgoers, his actions do not feed into widespread beliefs that all whites are murderous. The fact that whites are not seen as monolithic and interchangable, while marginalized minorities are treated as if members of those groups (African-Americans, Muslims, etc.) are fungible, is one aspect of what has come to be known as white privilege. The difference is incredibly unfair, but it exists.)

The question before us is: what do we do?

There are practical steps we can take to reduce the likelihood of gratuitous police violence; many police departments are already implementing better training protocols and better psychological screening of applicants, and others–especially in smaller, less professionalized police forces– need to do so. We also need to eliminate systems like the one in Ferguson,where citations for low-level infractions actually funded the police department, incentivizing unnecessary confrontations between citizens and police. (For that matter, we need to stop criminalizing everything from not using your seatbelt to driving with a broken taillight, and let police focus on crimes against person and property.)

As many people have pointed out, when everyone is armed to the teeth, we shouldn’t be surprised by gun  violence. If not for the NRA’s stranglehold on our feckless lawmakers, we might be able to institute some reasonable restrictions on gun ownership.

Those and other measures should certainly be undertaken, but they ignore the elephant in the room.

Racism is certainly nothing new in America, but over the past few years we have seen an upsurge in nativism and bigotry of all sorts. It began with the ubiquity of talk radio–with Rush Limbaugh and his clones, who made money by appealing to the discontents of older white men, assuring them that women and African-Americans and various “others” were taking  jobs and status that was rightfully theirs. Fox News followed the script and amplified the resentments.

It got worse when we elected an African-American President; evidently, the thought of a black man occupying the White House was enough to make previously closeted white supremacists crawl out from under their rocks.

That led to Donald Trump, and his attack on “political correctness”–an attack seen by  legions of angry white guys as permission to discard hard-won norms of civility and respect. In Trump World, it is disdained as “politically correct” to refrain from ridiculing the disabled; “politically correct” not to display crass racism; “politically correct” to refrain from sexualizing or demeaning women.

Ultimately, what keeps police from disregarding the worth of black lives is a culture that genuinely values those lives. What keeps most citizens from breaking the law are social norms that value the rule and role of law. What keeps our diverse and polyglot nation from disintegrating is the conviction that we share an identity as Americans, that there is a “we” that supersedes our various tribal commitments.

Americans will probably never live up to our highest aspirations and principles, but when we discard them, when we celebrate crudity and name-calling and bigotry as “telling it like it is,” we betray those principles and degrade our communal life. Worse, we give damaged people from all groups encouragement to act on their anti-social impulses.

Last week wasn’t a face-off between black and blue. It was a test for us all.

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The Right to be Wrong

[This post should really be about Dallas and the two horrific incidents preceding and triggering what happened there. It isn’t, because I am still processing it all. I find myself unable to put my reactions into words right now. Those words will come, but not yet.]

The Des Moines Register recently reported on lawsuits brought against the state and city by churches challenging recent interpretations of Iowa civil rights laws to prohibit church members from making “any public comments — including from the pulpit — that could be viewed as unwelcome to people who do not identify with their biological sex.”

They [the churches] said they are asking the commission to declare that Iowans have a right to speak from church pulpits about biblical teachings on sexuality. The Sioux City church also wants a declaration that Iowa churches are free to follow their religious doctrines in how they accommodate people in restrooms, locker rooms and living facilities.

Unless there is something I’m missing, the actions of the Iowa Civil Rights Commission violate the First Amendment’s Free Exercise Clause. (According to the article, the Commission is evidently denying that the churches are “bona fide” religious organizations–a fairly bizarre position.)

We live in a time of social change. Greater acceptance of LGBT citizens, especially, has led to all sorts of debates about “religious liberty.” (We’ve seen this movie before; in the past, merchants and landlords have claimed “religious liberty” entitled them to refuse service to African-Americans, Catholics and Jews.)

As I have written before, government has the right–indeed, the obligation–to prohibit discrimination in housing, education, employment and public accommodations.

That said, churches and other genuinely religious institutions are not public accommodations, and their right to preach as they see fit, to take positions on public issues informed by their doctrine, is protected by the First Amendment. I might believe–as I wholeheartedly do–that these church folks are wrong about homosexuality (and actually, about a lot of other things) but they have an absolute Constitutional right to their beliefs. They have a right to preach about those beliefs, and to conduct their congregational affairs in a manner that is consistent with their religious doctrines.

It’s particularly unfortunate that the Iowa Civil Rights Commission has taken the position that it can suppress the churches’ religious message, because that position feeds into entirely bogus assertions made by proponents of so-called “Religious Liberty” laws. The Eric Millers and Micah Clarks of this world insist that “secular activists” will force pastors to conduct same-sex weddings, or will outlaw preaching against homosexuality. Constitutional lawyers respond–properly–that churches and pastors are protected against such efforts by the First Amendment.

Overreaching in Iowa just supplies ammunition to those who want laws giving them a wide-ranging right to discriminate. The churches that brought these lawsuits should win–demonstrating that RFRAs and similar measures are unnecessary because the Constitution already protects religious expression.

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Thankfully, a Lot of People Don’t Find Redistricting Boring….

The second meeting of Indiana’s Interim Study Committee on Redistricting, of which I am a lay member, was held yesterday. Despite the fact that it was a Thursday afternoon, and the meeting started at 1:00, there were well over 100 citizens present; they filled the House Chamber and from where I was sitting, it looked like they filled the balcony too.

The purpose of this meeting was to hear expert testimony. (Discussion leading to the committee’s recommendations will come at the next two meetings. I’ll blog the dates and times when I know them.)

There were two presentations; one from a lawyer with the Brennan Center for Justice, affiliated with New York University Law School, and the second from the Senior Legal Counsel to the Iowa LSA–the person responsible for directing Iowa’s redistricting process.

The Iowa presentation was a description of that state’s use of an independent commission to draw district lines–from all reports, a very successful effort to draw districts in a fair, transparent and nonpartisan way, and one that has earned the strong approval of most Iowa voters.

The first presentation, by Michael Li of the Brennan Center, focused upon the negative consequences of gerrymandering, and the current efforts of several states to reform their processes. He included a couple of interesting points that tend to get lost in discussions about gerrymandering’s more obvious effects.

Li pointed out that the redistricting “nitty-gritty”–the drawing of the lines–isn’t handled by local politicians; instead, the national parties send in teams of “experts” whose expertise is in manipulating data and computer programs, and who know little about the politics or culture of whatever state they are carving up. This dependence on national party operatives facilitates the contemporary shift of power and influence from state policymakers to national ones– further nationalizing America’s political parties.

Li also noted that although redistricting reform might not effect much change to the partisan composition of a state’s legislature, especially in very Red or Blue states, it does tend to change the nature of the partisans who hold those seats. (Social science research supports that observation; in states using independent commissions, Representatives of both parties tend to be less rigidly ideological and more willing to work across the aisle.)

This last observation is particularly important, because one of the arguments used by defenders of the current system (like Senator Hershman today) is to claim there are states where redistricting reform has changed a very minimal number of seats, and that shows the current system isn’t really a problem.

As Li quite properly responded, partisan shift is not the metric we should apply. In Republican states like Indiana, redistricting reform is unlikely to change control of the Senate, for example. If fewer elections are decided in the primaries, if fewer general elections are uncontested, if new people emerge to challenge incumbents, and –when those incumbents die or retire–if there is genuine competition for the open seat, then reform has worked.

When Senator Pat Miller challenged the notion of “nonpartisan” commission members–making the point that everyone has political opinions–Li agreed that most people have what we might call “political orientation,” although he noted that there is a difference between redistricting done by people who are deeply involved in the political process and that done by people who are not politically active. He compared the process to the composition and operation of juries; people serving on juries have prejudices and opinions, but most who serve take their responsibilities very seriously, evaluating the evidence and following the judges’ instructions.  ( I found the comparison compelling because when I was a practicing lawyer, I saw juries in operation, and saw the same seriousness of purpose.)

The one thing that seemed clear in the wake of the meeting was that Senators Hershman and Miller are not going to be voting for reform of any kind. But I have high hopes for the rest of us.

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