2013-06-20T08:33:15-04:00 Adam Winkler http://www.huffingtonpost.com/author/index.php?author=adam-winkler Copyright 2008, HuffingtonPost.com, Inc. HuffingtonPost Blogger Feed for Adam Winkler Good old fashioned elbow grease. tag:www.huffingtonpost.com,2012:/theblog//3.2259342 2012-12-07T15:23:32-05:00 2013-02-06T05:12:01-05:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/ agreed to hear a landmark case challenging the constitutionality of California's ban on gay marriage. The California case, brought by Supreme Court superstars Ted Olson and David Boies, was designed from the beginning to obtain a bold, revolutionary ruling by the justices declaring gay marriage a constitutional right.

If Olson and Boies -- who famously went head-to-head in the notorious Bush v. Gore case -- win, it could mean that all bans on gay marriage, everywhere in the country, will be overturned. Gay and lesbian people from Beverly Hills to Bangor will finally enjoy an equal right to marry the person they love.

Yet don't count on a game-changing decision too quickly. It's more likely that Olson and Boies' blockbuster will end with a whimper.

Olson and Boies are right that in the closely divided Court, the justices' sentiments are with them. Four justices are likely to support marriage equality -- Stephen Breyer, Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan -- and three justices equally certain to oppose it: Antonin Scalia, Clarence Thomas, and Samuel Alito.

That leaves two potential swing votes: Chief Justice John Roberts and Justice Anthony Kennedy.

Roberts is very firmly in the conservative camp on nearly every hot-button issue that comes before the Court. He's voted with the right wing of the Court to strike down affirmative action plans, restrict access to abortion, deny victims of discrimination back pay and allow corporations to spend unlimited amounts of money on elections. Given that track record, Roberts seems likely to vote to uphold bans on gay marriage.

But then there's the Obamacare case. His vote to uphold President Obama's healthcare law went against his typical pattern in controversial cases. No one knows why he cast his vote the way he did in that case -- few legal experts give much credence to his argument that the law was a tax -- but the most likely possibility is that Roberts sincerely worries about the institutional legitimacy of the court he shepherds. Roberts must know that long before his tenure as chief justice is up in 25 years or so, any decision by the court upholding bans on gay marriage will seem retrograde and foolish. That won't stop Scalia and Thomas, but it might stop Roberts.

Kennedy is a Catholic appointed by President Ronald Reagan, so one might predict he'd be hostile to claims of gay marriage. Kennedy, however, voted in favor of equality in the Supreme Court's two biggest gay rights cases of the past twenty years, Romer v. Evans and Lawrence v. Texas. The first case, from 1996, overturned a Colorado law that barred cities like Denver and Aspen from enacting anti-discrimination protections for gay and lesbian Americans. The second, from 2003, struck down a Texas ban on same-sex sodomy among consenting adults. The opinions in both cases were written by Kennedy.

Yet, even for Kennedy, gay marriage may be a bridge too far. And Olson and Boies' case, despite being carefully and strategically crafted to goad the Supreme Court into ruling on the constitutionality of gay marriage nationwide, has a number of escape routes for Roberts and Kennedy.

There might even be some surprising reluctance from the left wing of the Court. Take Ruth Bader Ginsburg. There's little doubt she'd like to strike down bans on gay marriage, but she may prefer to go slow. Ginsburg, who cut her teeth as a women's rights advocate, has criticized Roe v. Wade, the abortion decision, for going too far too fast. She supports abortion rights but has argued that if the Court had issued a more narrow ruling in Roe, we might not have seen the tremendous backlash sparked by the decision. Abortion rights might well have grown through the political process instead.

Gay marriage is similar. There's a risk of backlash from a bold opinion and, if the Court stays its hand, the political process is clearly trending towards allowing gay and lesbian Americans to marry.

One way the Court may skirt a bold ruling is procedural. The justices could rule that the case was not defended by the right party and remand the controversy to the lower courts. Usually when there's a challenge to a state law -- like California's Proposition 8 -- the state's attorney general goes to court to defend it. In Olson and Boies' case, however, California's attorneys general and governors have steadfastly refused to defend the law, which they've argued is discriminatory. With no one else to defend the law, the trial court allowed the group that put Proposition 8 on the ballot to substitute for the state government.

This was controversial because the group doesn't satisfy the usual requirement that a party to a case have an unusual, highly individualized interest in the case that's different than the average citizen. Indeed, in a Supreme Court case decided not long ago, the justices suggested that initiative backers are not appropriate parties to defend a state law. So don't be surprised if the justices declare that Olson and Boies' case was never properly defended and remand it to the lower courts to try again.

Another out for the Court would be to allow gay marriage in California alone. Rather than issue a landmark ruling that mandates all states to permit gay individuals to marry, the Court could focus on the particular facts of Proposition 8. What's different about California is that the state at one point allowed gay marriage. After the state Supreme Court held that California's own constitution required marriage equality, approximately 18,000 gay and lesbian couples were married in the state. Proposition 8 changed California's constitution to prohibit further gay marriages -- effectively taking away a right that gay and lesbian citizens already had.

The justices might well rule that taking away a right is substantively different from refusing to extend a right in the first place, in which case the existing bans on gay marriage in other states will stand.

This latter approach was the one taken by the court of appeals in the Olson and Boies case. Even though written by legendary uber-liberal Stephen Reinhardt, who prides himself on being to the left of nearly every other federal judge in America, the court of appeals' opinion carefully avoided declaring gay marriage a constitutionally protected right for all Americans. Reinhardt's opinion hewed closely to the language and reasoning of Kennedy's opinion in the Colorado case from 1996, saying the problem with California's law was in how it was enacted.

If the Supreme Court takes either tack -- turning back the challenge for procedural reasons or limiting its ruling to California -- it will still be a victory for gay rights, even if it is less than Olson and Boies were originally hoping for. If the justices say Proposition 8's backers weren't appropriate parties, the case would be returned to the lower courts. California's attorney general and governor, however, are certain to refuse to defend the law, which means a victory for Olson and Boies. Gay marriage would then be legal in California.

If the justices cabin their ruling to California alone, that too would allow California to begin allowing gay couples to marry.  Either way, tens of thousands of LGBT people would gain the right to marry.

That would be a major victory for gay rights, though not the bold and revolutionary one Olson and Boies originally sought.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1997323 2012-10-21T11:48:21-04:00 2012-12-21T05:12:01-05:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/
The next president can expect to replace one, perhaps two, Supreme Court justices. Ruth Bader Ginsburg, who's 79 years old, is the justice most likely to retire. Of course the liberal Ginsburg wouldn't be eager to have Romney fill her seat. She's said she has no immediate plans to retire and hopes to stay on the Court at least as long as Louis Brandeis, who served until he was 82.

But Ginsburg may not have much of a choice. She has battled cancer twice and in 2009 was diagnosed with pancreatic cancer, one of the most deadliest forms of the disease. Only 5% of people diagnosed with pancreatic cancer survive past five years. Ginsburg is already on year three.

Ginsburg's cancer was caught early and is in remission. Perhaps she'll be, as I hope, one of the lucky ones. The odds, however, weigh heavily in favor of her retirement during in the next administration. A president Romney might also have the opportunity to name replacements for Justices Antonin Scalia and Anthony Kennedy, who are both 76.

If Romney were only to replace Ginsburg, the impact on the law would be enormous. Even though the Court, which splits five to four on the most divisive issues, already leans right, the liberal justices have won important victories thanks to Kennedy, who occasionally swings to their side. A conservative replacement for Ginsburg would give the Scalia bloc on the Court a solid five votes, even without Kennedy.

In a Romney Court, the liberals can therefore expect to be shut out on the high-profile issues, from civil rights and affirmative action to environmental law and federal authority to regulate commerce. The Court is currently one vote shy of overturning what remains of Roe v. Wade.

Despite Romney's recent move to the middle, don't expect him to name a moderate to the Court. He's repeatedly said he wants to nominate justices in the mold of Clarence Thomas, who is arguably the most conservative Supreme Court justice of the last 100 years. A recent study comparing justices' views to public opinion found that Thomas was more conservative than 97% of Americans.

Earlier in the campaign, Romney named well-known conservative Robert Bork to be one of his lead advisers on the courts. Bork, you may recall, was nominated to the Supreme Court by Ronald Reagan, only to be rejected by the Senate because of his extreme views on civil rights (he once claimed civil rights laws infringed white people's freedom of association), privacy (he called the Supreme Court's opinion protecting access to contraception "utterly specious"), and free speech (which, he said, did not protect artistic or literary expression).

Bork was also an early combatant in what is now known as the War on Women. He's said that the Constitution's guarantee of equal protection of the laws "should be kept to things like race and ethnicity," not gender or sexual orientation.

Even if Romney didn't follow Bork's advice on judges, Republicans in the Senate will not allow Romney to nominate anyone without a clear allegiance to conservative principles. Recall how Republicans reacted to President George W. Bush's nomination of Harriet Miers to fill the seat of Sandra Day O'Connor. Miers wasn't forced to withdraw by liberal Democrats but by conservative Republicans skeptical of Miers' ambiguous judicial philosophy.

The Court's ruling in the healthcare case will only make Republicans more determined to insure that the next nominee has a proven track record of support for their favored causes. John Roberts was thought to be a reliable conservative. Indeed, the vast majority of the chief justice's rulings have pleased the GOP. Yet Roberts' vote to uphold Obamacare was seen as apostasy in conservative circles. Some called him a "traitor," others accused him of turning the Constitution "into a worthless piece of parchment."

The Supreme Court may be below the radar for most voters, who this year are concerned primarily with jobs and the economy. Republican leaders, however, have not forgotten about Roberts and the high court. They are not about to let themselves be burned again.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1634070 2012-06-28T10:58:12-04:00 2012-08-28T05:12:04-04:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/
Chief Justice John Roberts was the surprising swing vote in today's Obamacare decision. Although he agreed with the four conservative justices, including Kennedy, that the individual mandate was not a regulation of interstate commerce, he voted with the Court's moderates to hold that it was justified as a tax. Because people who don't obtain insurance pay a tax to the IRS, the mandate was within Congress's power to raise taxes for the general welfare. As a result, the Affordable Care Act was upheld.

With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there.

Roberts' decision was consistent with his confirmation hearings pledge to respect the co-equal branches of government, push for consensus, and reach narrow rulings designed to build broad coalitions on the Court. He promised to respect precedent. His jurisprudence, he said, would be marked by "modesty and humility" and protection of the precious institutional legitimacy of the Court.

Today, the institutional legitimacy of the Court was buttressed. President Obama wasn't the only winner at the Supreme Court today. So was the Supreme Court itself.

Roberts' humble move was a surprise only because his oft-stated concern for protecting the Court by avoiding bold rulings doesn't always hold. Despite today's decision, the Roberts Court is hardly conservative in the sense of cautious or avoiding bold rulings. In contrast to an older conservatism that emphasized judicial restraint, the Roberts Court is not hesitant to forcefully asserts its power.

Since John Roberts became Chief Justice in 2005, the Court has issued one landmark ruling after another. The Roberts Court gave us Citizens United, which struck down longstanding limits on corporate political spending. This Court also allowed new restrictions on women's right to choose; became the first Supreme Court in American history to strike down a gun control law as a violation of the Second Amendment; effectively outlawed voluntary efforts by public schools to racially integrate; and curtailed the reach of environmental protections.

In many of these decisions, the Roberts Court overturned or ignored precedent, including Rehnquist Court decisions less than a decade old. Prior to Citizens United, the Supreme Court had explicitly held in two cases that corporate political expenditures could be limited -- the most recent of which was handed down in 2003. Six years before the Roberts Court upheld the federal ban on "partial birth" abortion, the Rehnquist Court, which wasn't known for its liberal leanings, had overturned a nearly identical law.

Of course, the Roberts Court isn't the first to overturn precedents and issue major rulings. Yet this Court has been uniquely willing to do so by sharply divided 5-4 majorities. The Warren Court's Brown decision was famously 9-0. New York Times v. Sullivan, which freed up the media to discuss public figures, was decided by the same margin. Gideon v. Wainwright, on the constitutional right to counsel, and Loving v. Virginia, invaliding bans on interracial marriage, were also unanimous. Even Roe v. Wade was decided by an overwhelming 7-2 vote.

Perhaps as a result of the Roberts' Court's controversial 5-4 rulings, public opinion of the Court is at an historic low. Even after controversial rulings like Roe and Bush v. Gore, the Court still maintained high levels of public respect. But unlike the Warren Court, whose landmark rulings, though classified as "liberal," didn't match up with the platform of the Democratic Party -- southern Democrats were the biggest opponents of Brown -- its hard to ignore the usual fit between the Roberts Court's rulings and the Republican agenda.

Maybe that's why recent polls show the Court's public approval rating has dropped from 80 percent in the 1990s to only 44 percent today. Three in four Americans now believe the justices' votes are based on politics. Nothing could be worse for the Court's institutional legitimacy.

Roberts may have voted to save healthcare because he wants to preserve the Court's capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America's commitment to civil rights for over 40 years.

The Roberts Court has only just begun.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1619369 2012-06-22T14:01:26-04:00 2012-08-22T05:12:22-04:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/
This is the year of the Supreme Court's Obama smack down.

Traditionally, the Court gives considerable deference to the views of the president, regardless of his political persuasion. The executive is, after all, a co-equal branch of government. The solicitor general of the United States, the federal government's chief advocate before the high court, has long been called the "tenth justice" because he is so influential with the Court.

This Court, however, does not seem to defer to Obama's solicitor general.

Studies show that, in the past, the solicitor general wins most of his cases. When he is a party to a Supreme Court case, the solicitor general wins nearly 70 percent of the time. This term that number looks to flip. If the Court rules against Obama in the health care case and the other major decision yet to come down -- on Arizona's controversial immigration law -- the federal government will have lost nearly 65 percent of its cases.

To date, the Court has ruled against the Obama administration in over half the cases in which the federal government was a named party. The justices rejected Obama's positions in important cases dealing with GPS surveillance of vehicles; the scope of religious institutions' exemption from employment discrimination law; the formatting of passports; and procedures under the Clean Water Act, among others.

Immigration is an area where courts usually give wide leeway to the president, who is charged with enforcing federal immigration law. In addition to last year's case rejecting the administration's view that Arizona could not take away a business's license for hiring undocumented workers, the justices gave the administration's argument in this year's Arizona immigration case an icy reception. And earlier this term, the justices ruled that a decision by the Obama's Board of Immigration Appeals was "arbitrary and capricious" and "irrational."

This Court's anti-Obama leanings even led to victories for Native American tribes, who over the course of American history have won precious few cases against the federal government.

Of course, the administration won a few cases too, especially when it wasn't a party to the case but only an amicus supporting one side in a dispute. One of these cases involved Secret Service agents who arrested a protestor who made anti-war statements to then-Vice President Dick Cheney. When the case is really about the actions of the Bush administration, perhaps the Court isn't as hostile to Obama's lawyers.

While conservatives were in the majority in nearly all of the Obama smack downs, the moderate justices also found cause to disagree with the administration in some cases. In oral argument over the Arizona immigration law, Justice Sotomayor, an Obama appointee, surprised Donald Verrilli, the solicitor general, by telling him his argument was "not selling very well."

Maybe it's the bad economy, but this term almost none of administration's wares sold well.

If the Supreme Court upholds Obama's health care law, perhaps this larger pattern will go unnoticed. But trends are not defined by a single controversy. The hostility of this Court to the Obama administration is suggested by the string of losses the justices handed the president already.

What accounts for the Court's unusually frequent rejection of the Obama administration? Some people will undoubtedly lay the blame on the administration for pushing arguments that, in their view, show insufficient respect for the limits on governmental power.

But this year's Court is hardly one defined by vigorous defense of individual freedoms. State and municipal governments, which usually fare poorly at the Supreme Court, won numerous cases on liberty issues, from unequal tax burdens on similarly situated taxpayers and criminal interrogation of prisoners against their wishes, to strip searches of people arrested on minor offenses and double jeopardy.

In case after case, liberty lost -- when it was a state or municipal government seeking to invade it.

This is not a liberty-loving Court. It is an anti-Obama Court.

(An earlier version of this article incorrectly identified one case as a loss for the Solicitor General. This has been corrected.)]]> tag:www.huffingtonpost.com,2012:/theblog//3.1419030 2012-04-11T17:31:32-04:00 2012-06-11T05:12:02-04:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/ bringing charges against George Zimmerman for the death of Trayvon Martin raises two questions: Will Zimmerman be convicted? And what role will Florida's "Stand Your Ground" law play in the case?

Before considering either of these two questions, however, one must recognize that we don't have all the relevant facts yet.

Yet one thing is clear: prosecutors are not going to have an easy time convicting Zimmerman. There are too many conflicting accounts of what occurred that night, which creates the possibility of the jury finding reasonable doubt.

What no one apparently disputes is that Zimmerman, an active neighborhood watch volunteer, saw Martin out on the street of the residential community; called 9-1-1 to report a suspicious person; followed Martin despite being told that wasn't necessary by the 9-1-1 dispatch; and eventually shot Martin at close range.

Beyond that, however, there is much uncertainty. If Zimmerman's story is to be believed -- and, frankly, I am as yet unconvinced -- he gave up the pursuit of Martin and was returning to his car when Martin attacked him. Zimmerman claims that Martin then began banging Zimmerman's head against the concrete and threatened to kill him. If that's right, then Zimmerman will have valid defense under Florida law for using deadly force.

That's not, however, due to the Stand Your Ground Law. In any state in the nation, a person reasonably fearing imminent death or substantial bodily injury is entitled to fight back if no escape is possible. If Zimmerman was being prevented from escaping by Martin's sitting on him, then the expansion of self-defense under Stand Your Ground is irrelevant.

What if Zimmerman's story isn't credible? Even then, a conviction is going to be hard to obtain. That's because there are apparently conflicting accounts of witnesses about who was on top in the struggle. That one fact may be enough for Zimmerman. The conflicting accounts make it more likely that a jury will find that prosecutors haven't proven their case beyond a reasonable doubt. Which eyewitness accounts are believed may depend on the recording of cries of help -- and on whether the judge allowed experts to testify about whose voice, Martin or Zimmerman's, is heard screaming.

The Stand Your Ground law won't likely offer Zimmerman much of a defense in this case, but nevertheless may still be relevant. In particular, the law offers Zimmerman the possibility of avoiding a trial. The real impact of Stand Your Ground laws is not in their expansion of the right of self-defense to the public streets -- many states, including my own liberal state of California, have allowed people to stand their ground for decades. The innovation of Stand Your Ground laws is to establish procedures to reduce the likelihood that a person who kills in self-defense ever has to stand trial.

Traditionally, one claiming self-defense would have the opportunity to raise that defense at trial before a jury. In Florida, however, the Stand Your Ground law gives defendants like Zimmerman the right to a pre-trial hearing to challenge his indictment. At this special pre-trial hearing, which will occur long before any jury trial, Zimmerman will have the opportunity to present evidence to a judge showing he acted in self-defense. If he can show that he was acting in self-defense by a "preponderance of the evidence" -- legalese for "it's more likely than not" -- then the charges against him will be dropped and he'll never face a jury. That burden of proof is not very demanding and requires a showing far less demanding than the "beyond a reasonable doubt" test used in criminal trials ordinarily.

It may well be that, even here, the Stand Your Ground law won't play a big part in the outcome of this case. Criminal defense lawyers in Florida say judges tend not to dismiss homicide charges where the facts are genuinely in dispute. Certainly, the facts in this case are in dispute. One also imagines that most judges would rather not be in the center of the media storm that would almost certainly ensue if Zimmerman is allowed to go free before a trial. Most judges, one can safely assume, would rather have the guilt or innocence of Zimmerman decided by a jury.

So even though many people in America are certain that Zimmerman is guilty, obtaining a criminal conviction in this case is going to be a real challenge for the prosecution. And Florida's Stand Your Ground law may not, in the end, have much of an influence on whether they are successful. ]]> tag:www.huffingtonpost.com,2012:/theblog//3.1384859 2012-03-28T09:19:19-04:00 2012-05-28T05:12:02-04:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/
On the first day of hearings, the justices considered whether the lawsuits challenging the individual mandate were barred by the Anti-Injunction Act, a longstanding federal law that prohibits anyone from challenging a tax until after the tax has been collected. In the ACA case, the individual mandate is arguably a tax because someone who does not have insurance coverage will pay a tax penalty to the IRS. If the mandate is a tax, the challenges to that part of the law will be thrown out of court. Not until after 2014, when the mandate goes into effect and someone fails to pay it, would a court be able to entertain a challenge to the mandate.

The problem with that approach is that the justices on today's Court have shown little inclination to avoid flexing their muscles on important political issues of the day. There are few stronger trends in the Supreme Court than judicial assertiveness. A Court that could decide a disputed presidential election in Bush v. Gore; unleash Citizens United on our electoral process; and repeatedly wade into presidential war powers can be expected to have no hesitancy deciding the fate of the Affordable Care Act. So when the justices breezily ignored the plain language of the Anti-Injunction Act on Monday, it was predictable. The Court wants to decide all of the major issues in American politics, including this.

On the second day of hearings, the Court looked at the individual mandate, with the four liberal justices defending the law and the five conservatives attacking it. In the run up to this week's hearings, a poll of Court-watchers found that 85% thought the Court would uphold the individual mandate. One can only wonder which Supreme Court these pundits watch. Apparently, many of those polled believed that the votes of Justice Scalia and Chief Justice Roberts were in play. After all, Scalia voted to uphold the applicability of the federal drug laws to homegrown marijuana intended for personal consumption and Roberts's vote would be influenced by his often-noted concern for the institutional legitimacy of the Court.

Scalia's vote in the marijuana case, however, is easily explained. He's a law and order conservative and upholding the federal drug laws was consistent with his well-established pattern of favoring politically conservative outcomes. His aggressive questioning of the government in the health care case showed that he is likely to stick with the conservatives again. The same can be said for Roberts, who for seven years now has been confounding the expectations of those who believed he'd really push for unanimous, narrow rulings that avoided constitutional questions, as he promised in his confirmation hearings. His voting record is strongly conservative and his desire to protect the institutional legitimacy of the Court is remarkable mainly for its lack of manifestation in any case of significance.

As usual with the closely divided Court, the deciding vote belongs to Kennedy. His skepticism towards the government's argument is also not a surprise. He's proven to be the Justice most likely to side with the individual against the government, regardless of the politics. That's why he pleases liberals on gay rights and pleases conservatives on affirmative action. Although the federal government imposes other mandates on individuals -- including mandates to serve on juries, register for the selective service, file tax returns -- opponents of Obama's health care law have been successful in portraying the mandate as a dire threat to individual liberty. Given that framing, Justice Kennedy's apparent hostility to the mandate is hardly shocking.

So if the Court strikes down the individual mandate in a 5-4 decision with Kennedy siding with the conservatives, be angry or be joyous depending on your personal political loyalties. But don't be surprised.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1296970 2012-02-23T13:22:28-05:00 2012-04-24T05:12:02-04:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/ a landmark ruling in favor of marriage equality. This time the law declared unconstitutional was the federal Defense of Marriage Act, or DOMA, which prohibits any federal agency from recognizing marriages between couples of the same-sex. Unlike the Proposition 8 case, in which the opinion was written by arch-liberal judge Stephen Reinhardt, Wednesday's DOMA ruling was issued by a conservative judge appointed by George W. Bush, Jeffrey White.

Surprisingly, where the liberal Reinhardt's opinion was narrow, the conservative White's opinion in the DOMA case was broad and far reaching.

Some supporters of marriage equality criticized Reinhardt's Proposition 8 opinion last week for being too timid. In contrast to the earlier decision of Judge Vaughn Walker in the Proposition 8 case, which held that marriage was a fundamental right for all Americans regardless of sexual orientation, Reinhardt's opinion refused to make such an audacious declaration. Instead, Reinhardt explained that Proposition 8 was unconstitutional because of the unique circumstances of California, which first allowed gay people to marry and then took that right away. Even if accepted by the Supreme Court, Reinhardt's approach would not require the recognition of same-sex marriage nationwide.

White's opinion in Wednesday's ruling was assertive and bold, calling into question every law that discriminates against LGBT people. White held that such laws are subject to "heightened scrutiny" by the courts, which means that the laws will be struck down unless the government can show very good reasons, backed by strong evidence, for the disparate treatment.

The justifications for DOMA, however -- which included encouraging responsible procreation and child-rearing, nurturing traditional marriage, and preserving scarce government resources -- had little to no evidence to support them. He cited, for example, numerous studies proving that children are not harmed by being raised in a gay household and he found no credible evidence that allowing gays to marry hurts opposite-sex couples.

In requiring courts to apply heightened scrutiny to laws discriminating against gays and lesbians, White's opinion showed the profound influence of the Obama administration's announcement last year that it will not defend DOMA. (The current case was being defended by lawyers hired by Congress.) The administration stated that, in its view, heightened scrutiny was appropriate in cases of anti-gay discrimination -- a daring position at the time given the Supreme Court had never held that, despite several opportunities to do so. White cited the Obama administration's announcement as support for his own ruling.

When the Obama administration first announced that it wouldn't defend DOMA, I criticized that decision here. Although I still have concerns -- it could provide a precedent for, say, a future Santorum administration to refuse to defend Obama's healthcare reform law -- the game-changing impact of the Obama announcement can't be denied. Achieving equal citizenship for LGBT people, the great civil rights issue of our day, is well worth such risks. Turns out that Obama was right about DOMA and it was me who was wrong.

Whether White's ruling in the DOMA case will be upheld on appeal, no one knows. But his is the second federal court decision to declare DOMA unconstitutional, suggesting that the tide is turning quickly against anti-gay discrimination -- even among many conservatives. And for that, at least some of the credit goes to the brave decision of the Obama administration not to defend this statutory testament to anti-gay prejudice.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1267936 2012-02-10T10:14:05-05:00 2012-04-11T05:12:01-04:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/ derogatory anti-gay epithets at James Friso, a structural mechanic employed by military contractor DynCorp International. Friso was repeatedly called a "faggot," "queer" and accused of engaging in homosexual acts. Even after discovering the harassment, management at DynCorp, which has received over $2 billion in federal contracts, did nothing.

Why are American taxpayers financing this hateful prejudice and harassment? The time has come for President Obama to sign an executive order banning sexual orientation and gender identity discrimination by federal contractors.

There is a long history of presidents of both parties issuing executive orders to prohibit unfair discrimination. In the 1940s, President Franklin Roosevelt issued executive orders barring federal agencies from discriminating on the basis of race and requiring all contracts with defense contractors to include "a provision obligating the contractor not to discriminate against any employee or applicant for employment because of race, creed, color, or national origin."

President Harry Truman adopted an executive order desegregating the military. President Dwight Eisenhower issued an executive order requiring all federal contractors -- not just those in defense industries -- to have a policy against discrimination on the basis of race. President Lyndon Johnson added protections against sex discrimination and subsequent administrations have expanded the anti-discrimination policy to include disability, age, and veteran status.

Sexual orientation and gender identity should be added to this list of prohibited forms of discrimination by federal contractors. Despite important gains in legal rights over the past two decades, LGBT employees still face extensive discrimination in the workplace. According to research by the Williams Institute at UCLA School of Law, where I work, up to 40 percent of gay people report having been the victim of harassment or other mistreatment in their jobs. Among transgendered employees, the situation is even worse: according to the National Transgender Discrimination Survey, an astounding 90 percent reported having suffered harassment at work.

Under federal law, the president can issue an executive order applicable to federal contractors so long as the order enhances the "economy and efficiency" of the procurement process. As courts that have examined previous executive orders dealing with discrimination explain, "it is in the interest of the United States in all procurement to see that its suppliers are not over the long run increasing its costs and delaying its programs by excluding from the labor pool available minority" workers.

Simply stated, ending discrimination against gays and transgendered Americans is good for business. The decision by a few top executives to look the other way while workers are harassed and denied equal job opportunities has a ripple effect across all the business's stakeholders -- from the employees who face mistreatment to the shareholders who lose the valuable human capital scared away by a hostile work environment. Just ask the DynCorp shareholders, who are now paying out $155,000 in a settlement with James Friso.

Insuring equality of all employees helps firms attract the best talent and makes the workforce more productive, which in turn benefits the taxpayers who pay for the goods and services provided by federal contractors. No wonder the five largest recipients of federal contracts -- Lockheed Martin, Boeing, Northrup Grumman, Raytheon, and General Dynamics -- each have strong diversity policies that prohibit discrimination on the basis of sexual orientation and gender identity.

Indeed, stopping anti-gay discrimination can fairly be considered a corporate "best practice." Today, a majority of Fortune 500 companies bar sexual orientation and gender identity discrimination.

Some might argue that an executive order by Obama extending the nondiscrimination policy would really be designed to achieve social and political goals, not improved efficiency. Yet courts have repeatedly held that executive orders regulating federal contractors are valid even if adopted for non-economic reasons. If the president can rationally conclude that one effect of the order will be to improve workplace conditions, then the existence of other objectives is irrelevant. Certainly, all of the previous executive orders on discrimination by federal contractors were adopted for social and political reasons too.

Rumors have begun circulating in Washington that both the Labor Department and the Justice Department have recently signed off on a proposal to extend protections against discrimination for LGBT people through an executive order. Now it's up to Obama to act. He should follow the lead of his many predecessors and put an end to taxpayer financed discrimination.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1260313 2012-02-07T13:14:49-05:00 2012-04-08T05:12:01-04:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/ few state courts to rule that gays and lesbians are entitled to equal marriage rights under state law, never before has a federal court of appeals -- the level just below the Supreme Court -- declared that gay marriage is protected by the U.S. Constitution. Today's decision has the potential to benefit not only thousands of gay Californians but could establish the foundation for extension of marriage equality to all Americans.

So what's next for Proposition 8 and the supporters of same-sex marriage?

In the short-term, gay couples still cannot marry in California. Although the ban on same-sex marriage has been invalidated, the court is likely to stay its decision pending appeal. While this is disappointing to couples eager to marry, issuance of a stay is normal procedure for a court ruling on a controversial issue in an unsettled area of law. The stay prevents gay couples from marrying until a higher court determines whether to hear the case. If there's no appeal, the stay will eventually be lifted and gay couples will be able to wed.

The million-dollar question is what will the Supreme Court do. While an eventual appeal of today's decision by the three-judge panel of the federal court of appeals is likely, it won't happen immediately. Before seeking Supreme Court review, the parties will likely first request the same federal appeals court that issued the decision today to reconsider its ruling. There's also the possibility that other judges on the appeals court will decide on their own to hear the case "en banc" -- legal terminology for review by a larger group of 11 appeals courts judges. That process could take a year or more. The Proposition 8 case is, therefore, not likely to reach the Supreme Court until 2013, and quite possibly not until 2014.

Gay rights lawyers have mixed feelings about an appeal to the Supreme Court. Some were opposed to the Proposition 8 lawsuit from the beginning, fearing what the conservative-leaning Roberts Court might do. In so many cases dealing with high-profile, controversial issues -- from affirmative action to the Second Amendment -- the Court's conservative wing has emerged triumphant. If the Court decides against marriage equality in the Proposition 8 case, it will set a precedent that may take decades to undo. Given the evidence of public views moving quickly in the direction of acceptance of LGBT rights, many gay rights activists would prefer to wait a few more years before bringing a marriage equality case to the Supreme Court.

With four Justices expected to vote against gay marriage (Roberts, Thomas, Scalia, Alito) and four others expected to vote in favor (Ginsburg, Breyer, Sotomayor, Kagan), how the Court rules is expected to turn on the vote of Anthony Kennedy, the usual swing vote. And that, perhaps surprisingly, buoys the hopes of many in the gay rights community.

The Supreme Court has twice before squarely ruled on gay rights issues and, in both cases, Kennedy wrote strong opinions endorsing equality for all Americans regardless of sexual orientation. In the most recent of those cases, Kennedy wrote that "our laws and tradition afford constitutional protection to personal decisions relating to marriage" and "other family relationships." "These matters," Kennedy continued, "involving the most intimate and personal choices a person may make in a lifetime, choices central or personal dignity and autonomy, are central to the liberty protected by" the Constitution. "Persons in a homosexual relationship may seek autonomy for these purposes just as heterosexual persons do," Kennedy wrote.

Students of the Supreme Court also recognize Justice Kennedy to be the Justice most likely to side with the individual against the government. His libertarian streak sometimes leads him to vote in ways that liberals love -- he voted to affirm women's right to choose =- and other times to vote in ways that conservatives love -- as in the notorious Citizens United case, which freed up business corporations to spend unlimited amounts of money to influence federal elections. Love him or hate him, Kennedy's libertarianism bodes well for proponents of gay marriage.

The California case in particular might be attractive to Kennedy because he could rule narrowly, striking down Proposition 8 without requiring same-sex marriage nationwide. In a 1996 case, Kennedy wrote an opinion for the Court invalidating an anti-gay ballot initiative adopted in Colorado, reasoning that the public debate over the measure betrayed the true goal of the law to be animus toward gay people rather than any legitimate public policy objective. In the Proposition 8 case, the trial judge found the same was true in California. "The campaign to pass Proposition relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships," the judge held. The Supreme Court could hold invalid Proposition 8 because of this history without addressing the constitutionality of gay marriage elsewhere.

Even if the Supreme Court decides to take the Proposition 8 case, the Justices might avoid the same-sex marriage question altogether. One of the subsidiary issues in the case is whether the proponents of Proposition 8 are proper parties to the lawsuit. Usually state laws, including ballot measures, are defended in court by the state's attorney general. In California, however, the attorneys general have refused to participate in the lawsuit, arguing that they agree with the challengers that Proposition 8 is unconstitutional. The federal courts in California allowed the initiative's proponents to defend the law, despite some language in an earlier Supreme Court decision that suggested initiative backers do not have standing to defend a law. The Justices could focus on this issue and reserve the marriage question until after the standing question is resolved.

Yet the Supreme Court can't dodge the marriage equality question for long. Even if they avoid ruling on Proposition 8's constitutionality or rule narrowly to give gay people marriage rights only in California, other cases dealing with challenges to the federal Defense of Marriage Act are already winding their way through the federal courts. Some constitutional experts predict that, despite all the attention given to the Proposition 8 lawsuit, a DOMA case is likely to be the first vehicle to present the Justices with the same-sex marriage question.

So there's still a way to go before marriage equality comes before the Supreme Court. But it is only a matter of time.

(Author's Note: An earlier version erroneously suggested that the parties were first required to seek en banc review by this same federal court. Such an appeal is optional.)
]]> tag:www.huffingtonpost.com,2011:/theblog//3.1110207 2011-11-23T11:58:06-05:00 2012-01-23T05:12:01-05:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/ calmly doused a group of passive, nonviolent Occupy protesters sitting on a campus pathway, he should have known that all of the world would witness his horrific act. There were scores of people watching the scene unfold, nearly every one of them with a video camera in his or her pocket smartphone. Within hours of Pike's attack, the video went viral, uploaded onto websites like YouTube and shared via text messages, emails, tweets and Facebook status updates.

The only good thing about this incident is that everyone could see it. Thanks to technology, we have entered a new era of citizen oversight of the police. The behavior and actions of police officers are increasingly captured on digital cameras and opened up to broad public examination. And the long-term result is likely to be a significant -- and welcome -- reduction in police misconduct.

Ever since spectators recorded the unjustified shooting of Oscar Grant on an Oakland commuter train platform in 2009, it seems there's a new video or photograph of police brutality distributed for the masses to see each week. The Occupy movement in particular has been on the receiving end of several violent police attacks caught on camera, from the pepper-spraying by Seattle police of Dorli Rainey, an 84-year-old retired schoolteacher, to the beating of Kayvan Sabehgi, a veteran of the war in Iraq, by baton-wielding Oakland cops.

Traditionally, police abuses were easier to hide. Most interactions with police and private citizens, even those on the public streets, weren't likely to be recorded. Although spectators occasionally captured incidents on tape -- like the infamous Rodney King beating in 1991 -- few people carried around video cameras while they went about their daily routines. Now people have quick access through their iPhones or other smartphones, which include video recording as a standard feature.

For individual victims, having a video or audio recording of an encounter with police can provide the crucial evidence necessary to prove a complaint about misconduct. Such complaints usually come down to "he said, cop said" situations and the credibility battle is usually titled heavily in favor of the lawman over the suspected criminal.

The benefit of the new police surveillance, however, will be enjoyed by everyone. As the legendary Supreme Court Justice Louis Brandeis reminded us a century ago, "sunlight is said to be the best of disinfectants." People who know or suspect they are being watched are more likely to behave appropriately and follow the rules. Given police officers' authority to use force on citizens, it is a vital that cops obey the Constitution, federal and state law, and the protocols of their departments.

Too often police officers abuse that authority. Yet now citizens like Simon Glik have a "weapon" with which to fight back. As Glik was walking past Boston Common on a fall evening in 2007, he saw three police officers arresting a young man and using what Glik thought was excessive force. So Glik took out his digital cell phone camera and recorded what he saw. Unhappy to be caught on candid camera, the police turned around and arrested Glik -- for violating the state's anti-wiretapping law.

This has been the unfortunate response of some police departments to people who record their actions in public. Many states have such laws, which are designed to protect ordinary people from being secretly recorded. Even though these laws were not intended to cover police officers working on the public streets, who have no reasonable expectation of privacy, some police forces and their allies in the prosecutor's office have been discouraging citizen oversight by punishing people who record police misconduct.

As a federal court which ruled in August on the case of Simon Glik explained, "Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs." Free speech, the court continued, "has particular significance with respect to the government because it is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression."

That cell phone in your pocket thus serves the values of free speech - and not because you can call your friends on it. Your digital camera and voice recorder is the new mechanism to insure that We the People can watch over the police and check their excesses. ]]> tag:www.huffingtonpost.com,2011:/theblog//3.1007235 2011-10-12T13:16:21-04:00 2011-12-12T05:12:02-05:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/ issued a subpoena Wednesday demanding that Attorney General Eric Holder testify about a botched gun sting along the Mexican border. The committee is trying to get to the bottom of "Fast and Furious," a scandal-plagued operation involving the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") that allowed at least 2,000 high-powered guns to be sold illegally to couriers who delivered the guns to drug cartels. No effort was made to keep track of the guns or intercept them before they fell into the wrong hands. Some of the guns have turned up at crime scenes, including the murder of a U.S. Border Agent.

The congressional investigation originally focused on who approved the poorly conceived operation. But now the attention is also turning to an additional question: did Eric Holder, the nation's top law enforcement officer, commit perjury?

In May 2011, Holder testified, "I'm not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks." Newly uncovered Justice Department documents, however, reveal that Holder received memos referring to Fast and Furious in July 2010, almost a year earlier.

This week, Holder downplayed the memos. "I have no recollection of knowing about Fast and Furious or of hearing its name prior to the public controversy about it," Holder insisted in a letter to Issa and other congressional leaders. "Prior to early 2011, I certainly never knew about the tactics employed in the operation," namely that guns were allowed to "walk" -- law enforcement lingo for contraband allowed to be delivered to criminals without any further tracking.

Yet the memos appear to contradict Holder's explanation. A memo to Holder from Michael Walter, the Director of the National Drug Intelligence Center dated July 5, 2010, clearly states that "Operation Fast and the Furious" involved a "firearms trafficking ring... responsible for the purchase of 1,500 firearms that were then supplied to the Mexican drug trafficking cartels." The memo doesn't say the guns were sold to couriers, but "supplied" to the cartels.

Perjury is a serious offense and Holder could be indicted if prosecutors determine he knowingly gave false answers to a congressional committee. Holder has one thing going for him: as the Attorney General, he's in charge of the prosecutors. That's why Issa and other Republicans have called for the appointment of a special, independent counsel to look into Fast and Furious and Holder's role in it.

Holder's denials come against a backdrop of prior accusations of a cover-up. Kenneth Melson, the acting director of ATF told a congressional committee in July that Justice Department officials had instructed him not to cooperate with Congress. He also said Justice was concealing an internal "smoking gun" memorandum on the scandal in order to protect "political appointees." Holder is, of course, the Department's top political appointee.

In recognition of the damaging nature of these memos, Holder offered another defense: he never read the memos. "On a weekly basis, my office typically receives over a hundred pages of so-called 'weekly reports' that, while addressed to me, actually are provided to and reviewed by members of my staff and the staff of the Office of the Deputy Attorney General," he stated in his letter to Issa.

If this is true, it is almost as troubling as Holder's apparently misleading testimony. Ever since the administration of George W. Bush, who began the larger gun sting operation known as "Project Gunrunner," of which Fast and Furious was just one part, the operation has been rife with mismanagement and controversy. In 2006, ATF lost track of approximately 450 guns. And in November 2010, the Office of the Inspector General for the Justice Department issued a scathing report criticizing ATF for poor coordination and failure to share information both internally and with other agencies involved.

If he didn't commit perjury, Holder is nevertheless guilty of remarkable incompetence for his failure to oversee such a sensitive operation as selling guns to violent drug cartels.

Perhaps the administration was just hoping the Fast and Furious controversy would die out. It won't. The Republicans in Congress have set their sights on Holder in what is likely to turn out to be the first major scandal of the Obama administration. With an election coming up and Obama's opposition eager to expose any wrongdoing by this administration, you can be sure we'll hear much more about Fast and Furious in the coming months.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.992043 2011-10-03T09:43:48-04:00 2011-12-03T05:12:02-05:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/
Yet it wasn't always this way. Indeed, the NRA used to draft and promote restrictive gun control laws.

In researching my book, Gunfight: The Battle over the Right to Bear Arms in America, I discovered that the NRA used to be far more open-minded on gun control -- and, amazingly, paid almost no attention whatsoever to the Second Amendment.

The NRA was founded by William Church and George Wingate after the Civil War. Wingate and Church -- the latter a former reporter for a newspaper not exactly known for its love of gun rights, the New York Times -- both fought in the War on the Union side. They were shocked by the poor marksmanship of Union soldiers and convinced that one reason the Confederacy was able to hold out so long before surrender was because their soldiers had more experience shooting. Church and Wingate's goal for the NRA was to improve the marksmanship of civilians who might one day be called to serve in the military, not to fight gun control.

These days, the NRA is known for its anti-government rhetoric; Wayne LaPierre, the executive vice president, has called some federal law enforcement officers "a jack-booted group of fascists" and warned that "if you have a badge, you have the government's go-ahead to harass, intimidate, even murder law-abiding citizens." Yet it was government largess in the form of subsidies and special sales of discounted firearms that helped the NRA grow in its formative years. Were it not for a generous government grant of $25,000 to buy land for a rifle range by the state of New York -- a modern-day target of much NRA hostility -- the NRA might never have gotten off the ground.

The old NRA also promoted gun control. In the 1920s, NRA leaders helped draft the Uniform Firearms Act -- model legislation for states to adopt that established new, restrictive rules on carrying firearms in public. Karl Frederick, the NRA's president, said at the time, "I have never believed in the general practice of carrying weapons... I think it should be sharply restricted and only under licenses." The Uniform Firearms Act only awarded licenses to "suitable" persons with a "proper reason" for carrying and created a waiting period before a newly purchased handgun could be delivered to the purchaser. Today's NRA, by contrast, fights to eliminate these very same requirements.

The NRA also endorsed the first major federal gun control law of the modern era, the National Firearms Act of 1934. During hearings on the proposed legislation, which imposed heavy restrictions on machine guns and other gangster weapons, Karl Frederick was asked how the Second Amendment affected this groundbreaking law. His answer was astounding: "I have not given it any study from that point of view."

Protection for guns "lies in an enlightened public sentiment and in intelligent legislative action," Frederick wrote elsewhere. "It is not to be found in the Constitution."

In fact, the Second Amendment is remarkably absent from the NRA's signature publication, American Rifleman, until the 1960s. You can go to the library and peruse decades of issues and not see any mention of the constitutional provision thought to be the heart and soul of the organization.

All that changed in 1977. That year, the leadership of the NRA decided to retreat from political lobbying and refocus on recreational shooting and outdoors activities. This sparked a backlash among a group of hardline gun rights advocates who were upset that the NRA had endorsed the Gun Control Act of 1968 -- the first significant federal gun legislation since the 1930s. Motivated by the belief that guns weren't primarily for hunting but for personal protection in an era of rising crime rates, the hardliners staged a coup at the annual meeting of the membership, ousting the old leaders and committing the organization to political advocacy.

From then on, American Rifleman featured the Second Amendment on almost every other page.

Next time someone complains about that a modest gun law tramples on the Second Amendment, remind them of the old NRA -- and of a time when even the nation's leading gun rights advocates supported gun control.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.956035 2011-09-09T15:42:27-04:00 2011-11-09T05:12:02-05:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/ sarcastically said, "Then why don't we do away with the court system and go back to the Old West, you have a gun and I have a gun and we'll settle it in the streets?" This is a common refrain heard in the gun debate. Gun control advocates fear -- and gun rights proponents sometimes hope -- the Second Amendment will transform our cities into modern-day versions of Dodge.

Yet this is all based on a widely shared misunderstanding of the Wild West. Frontier towns -- places like Tombstone, Deadwood, and Dodge -- actually had the most restrictive gun control laws in the nation.

In fact, many of those same cities have far less burdensome gun control today then they did back in the 1800s.

Guns were obviously widespread on the frontier. Out in the untamed wilderness, you needed a gun to be safe from bandits, natives, and wildlife. In the cities and towns of the West, however, the law often prohibited people from toting their guns around. A visitor arriving in Wichita, Kansas in 1873, the heart of the Wild West era, would have seen signs declaring, "Leave Your Revolvers At Police Headquarters, and Get a Check."

A check? That's right. When you entered a frontier town, you were legally required to leave your guns at the stables on the outskirts of town or drop them off with the sheriff, who would give you a token in exchange. You checked your guns then like you'd check your overcoat today at a Boston restaurant in winter. Visitors were welcome, but their guns were not.

In my new book, Gunfight: The Battle over the Right to Bear Arms in America, there's a photograph taken in Dodge City in 1879. Everything looks exactly as you'd imagine: wide, dusty road; clapboard and brick buildings; horse ties in front of the saloon. Yet right in the middle of the street is something you'd never expect. There's a huge wooden billboard announcing, "The Carrying of Firearms Strictly Prohibited."

While people were allowed to have guns at home for self-protection, frontier towns usually barred anyone but law enforcement from carrying guns in public.

When Dodge City residents organized their municipal government, do you know what the very first law they passed was? A gun control law. They declared that "any person or persons found carrying concealed weapons in the city of Dodge or violating the laws of the State shall be dealt with according to law." Many frontier towns, including Tombstone, Arizona--the site of the infamous "Shootout at the OK Corral"--also barred the carrying of guns openly.

Today in Tombstone, you don't even need a permit to carry around a firearm. Gun rights advocates are pushing lawmakers in state after state to do away with nearly all limits on the ability of people to have guns in public.

Like any law regulating things that are small and easy to conceal, the gun control of the Wild West wasn't always perfectly enforced. But statistics show that, next to drunk and disorderly conduct, the most common cause of arrest was illegally carrying a firearm. Sheriffs and marshals took gun control seriously.

Although some in the gun community insist that more guns equals less crime, in the Wild West they discovered that gun control can work. Gun violence in these towns was far more rare than we commonly imagine. Historians who've studied the numbers have determined that frontier towns averaged less than two murders a year. Granted, the population of these towns was small. Nevertheless, these were not places where duels at high noon were commonplace. In fact, they almost never occurred.

Why is our image of the Wild West so wrong? Largely for the same reason these towns adopted gun control laws in the first place: economic development. Residents wanted limits on guns in public because they wanted to attract businesspeople and civilized folk. What prospective storeowner was going to move to Deadwood if he was likely to be robbed when he brought his daily earnings to the bank?

Once the frontier was closed, those same towns glorified a supposedly violent past in order to attract tourists and the businesses to serve them. Gunfights were extremely rare in frontier towns, but these days you can see a reenactment of the one at the OK Corral several times a day. Don't forget to buy a souvenir!

The story of guns in America is far more complex and surprising than we've often been led to believe. We've always had a right to bear arms, but we've also always had gun control. Even in the Wild West, Americans balanced these two and enacted laws restricting guns in order to promote public safety. Why should it be so hard to do the same today?]]> tag:www.huffingtonpost.com,2011:/theblog//3.923246 2011-08-10T11:09:58-04:00 2011-10-10T05:12:02-04:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/ announced his legal policy team. This group of lawyers will advise Romney on a variety of legal questions, including regulatory issues, the scope of executive power, and, most significantly, judicial nominations. The team is quite large -- 63 people -- and includes a number of notable lawyers and legal scholars who will provide the candidate with practical advice about how to handle any number of issues.

Yet the real importance of the legal team is found in the man Romney chose as co-chair: Robert Bork.

Most people remember Robert Bork mainly for his failed bid to become a Supreme Court justice. He was nominated by Ronald Reagan in 1987 but the Senate rejected his nomination after a contentious debate that focused on Bork's archconservative legal views. Not only did Bork oppose the right of women to choose abortion, he thought the Constitution didn't even protect the right of married couples to use birth control. He argued for an extremely limited freedom of speech -- only political speech was protected, not artistic speech -- and for unusually expansive executive powers. A proponent of a strong view of states' rights, he even supported the right of southern states to impose poll taxes on voting despite the clear racially discriminatory purpose and effect of such measures.

Since then, Bork has advocated for renewed limits on the power of Congress, promoted the idea of super-majorities in Congress to "nullify" binding Supreme Court precedent, and complained about the expansion of gay rights. Bork is, in some ways, the intellectual leader of the Tea Party's legal vision.

And that's exactly why Romney chose him. Having Bork head up his legal team sends a message to Republican primary voters that Romney is a True Conservative. As a former governor of that bastion of liberalism, Massachusetts, Rommey is widely perceived by many conservatives as too moderate. The Tea Party, however, is the engine of the Republican party right now. Because primaries empower the most extreme elements of each party, Romney knows that he must appeal to the Tea Party to stand any chance at the nomination.

Romney has a major defect from the point of view of the Tea Party: healthcare -- or, as some Tea Party members refer to it, "RomneyCare." When he was governor, Romney supported a state overhaul of healthcare that included an individual mandate very similar to the one included in the federal healthcare reform law passed last year. Arguably the most important legal issue in the Tea Party today is the individual mandate, which they view as proof of government grown too big and too invasive of individual rights.

Ask him and Romney will tell you that he opposed the federal healthcare reform. Given his own support of a similar law in Massachusetts, however, his claim rings hollow.

No doubt Romney hopes that having his legal team headed up by Bork, who is so beloved by the right, will quiet some of the complaints from the Tea Party. If you were worried about my views of the Constitution, he's telling the Tea Party, you have nothing to be concerned about. I'm with you.

While Romney's choice sends a political message to conservatives, independents and liberals should also be paying close attention. Many of the latter like Romney precisely because they see him as a moderate Republican with a good business sense and a proven ability to work across the aisle. His selection of Robert Bork, however, should be a reminder that a Romney presidency will be a serious threat to the right of privacy and the other civil liberties Democrats and Independents hold dear.

Romney's shift to the legal right should be especially salient given the possibility that the next president will choose Justice Ruth Bader Ginsburg's replacement. At 78 years old and having battled cancer, Ginsburg is the Supreme Court justice most likely to retire between now and 2016.

If Romney is the one making that choice, Robert Bork will have his ear. That may not be enough to lower suspicions about Romney on the far right, but it should be enough to convince liberals and independents to be worried -- unless, of course, they want someone with Robert Bork's views sitting on the Supreme Court.]]> tag:www.huffingtonpost.com,2011:/theblog//3.917104 2011-08-03T10:39:55-04:00 2011-10-03T05:12:01-04:00

Adam Winkler http://www.huffingtonpost.com/adam-winkler/ Operation Fast and Furious." The administration should waste no time and come clean about what happened, who approved it, and how it can be avoided again.

Unfortunately, the early signs are that Obama is going to handle this controversy as poorly as he handled the debt ceiling debate.

First, a little background. The operation began in November 2009 in an effort to crack down on Mexican drug cartels, which have been known to use military-style firearms purchased in gun shops on the U.S. side of the border. The Bureau of Alcohol, Tobacco, Firearms and Explosive ("ATF") allowed approximately 1,700 guns to be sold illegally to suppliers of the cartels and then failed to keep track of the weapons. Many of the guns have since been recovered at crime scenes, including two guns recovered at the scene of a fatal attack on a U.S. border agent.

A congressional oversight committee has already launched an investigation, headed up by California Republican Darrell Issa. The administration has dug in its heals and appears to be cooperating only superficially with the committee. Kenneth Melson, the acting director of ATF, reportedly told members of Congress that the Department of Justice is hiding information in an effort to protect "political appointees," perhaps including Attorney General Eric Holder.

And a report last week disclosed that the administration also gave misleading answers to an inquiry from U.S. Sen. Charles Grassley about the guns found at the border agent's murder.

If the Obama administration doesn't act quickly to address this scandal, the squall over the misguided sting could become a Category 5 hurricane.

Although Fast and Furious hasn't garnered much attention so far in the mainstream press, it's become the talk of the gun rights community. The NRA, which has long demonized Holder for his support of gun control, will continue to pressure Issa and it's other allies on Capitol Hill to investigate further. Melson, the ATF chief, apparently believes that by pinning blame on Justice Department officials, he can save his job. With the 2012 election on the horizon, Republicans in Congress have every incentive to keep digging.

As usual in Washington, the cover-up is probably worse than the crime. Law enforcement uses sting operations all the time. Sometimes you have to allow smaller crimes to occur so that you can capture the people behind far bigger crimes. In this case, the government was going after major drug kingpins responsible for an unprecedented wave of violence in Mexico. On this side of the border, the targeted cartels are feeding drugs to American children.

Fast and Furious may have been a bad idea, but Americans can understand the dire situation that led to the program. Indeed, members of Congress, including Issa, were apparently informed about the sting operation a year ago and raised no objection. Cracking down on violent drug lords is inevitably a messy job.

Yet instead of defending itself, the administration has stonewalled. Melson said he was instructed not to speak with congressional investigators. Months after receiving requests from Congress, the DOJ has only turned over only a paltry number of documents.

When Sen. Grassley asked ATF if the guns that had been "used" in the killing of the border agent were part of the Fast and Furious operation, the bureau said no. The bureau failed to acknowledge, however, that two of the guns found at the scene were indeed part of the program on the shaky grounds that the evidence didn't conclusively show the Fast and Furious guns fired the fatal shots.

That kind of logic may work for a lawyer in a court of law, but won't work for politicians in the halls of Congress.

The administration claims there are current law enforcement efforts that require secrecy. Yet those reasons shouldn't prevent disclosure of information about the planning of the sting.

The administration's stalling is also likely to impede its efforts to adopt new gun control. Efforts to shore up the background checks required for many gun purchases and a proposal to restrict high-capacity ammunition clips won't go anywhere so long as Republicans in Congress can point to the ATF scandal. Nor will the administration gain confirmation of its new choice to head ATF so long as Melson is seen as a whistleblower.

Obama took office promising unparalleled transparency, yet top officials have been anything but with regard to Fast and Furious. Instead of addressing the questions head on, which might end the controversy quickly, the administration is guaranteeing that the investigation will drag on and on. Soon it will develop into a full-blown political scandal and Obama will wish that instead of ignoring this controversy, he'd dealt with it fast and furious.
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