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Paul Rosenberg

Paul Rosenberg is the senior editor of Random Lengths News, a bi-weekly alternative community newspaper.

Gun lobby's bad aim shoots down myth of 'constitutional conservatism'

It's not constitutional scholarship that's missing on the right - it's knowledge of "Schoolhouse Rock", says Rosenberg.
Last Modified: 06 Feb 2013 09:40
It is Obama's 'rather typical embrace of Reaganite gun policy' that is enfuriating 'constitutional conservatives' [AFP]

"While we recognise that assault-weapon legislation will not stop all assault-weapon crime, statistics prove that we can dry up the supply of these guns, making them less accessible to criminals. 

"We urge you to listen to the American public and to the law enforcement community and support a ban on the further manufacture of these weapons." - Ronald Reagan, letter to Congress, May 1994, along with Gerald Ford and Jimmy Carter. 

"We also recognise another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those 'in common use at the time'… We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons'." - Supreme Court Justice Antonin Scalia, opinion in Heller

As President Obama stakes out a gun safety position previously held by Ronald Reagan, and endorsed as constitutional by Antonin Scalia, today's loudest conservative voices are comparing the Reagan/Scalia/Obama position to Hitler and threatening responses that go as far as impeachment, nullification, violent resistance and secession. It's all rather head-spinning, to say the least. 

But the elite US media treats it as perfectly normal. And in one sense they're right: for decades now, it's been the norm for conservatives to switch gears and reinvent themselves in crazy ways, rather than deal soberly with the policy failures their previous lock-step thinking has created. 

The Tea Party brand of so-called "constitutional conservatism" was born out of the ashes of the George W Bush brand of so-called "compassionate conservatism", which in turn was born out of the ashes of the Newt Gingrich/Dick Armey brand of "impeach Clinton conservatism", which in turn was born out of the ashes of... well, you get the idea. 

For a political philosophy that supposedly worships eternal values, hallowed traditions and continuity, rather than abrupt change, conservatism of late seems to tear through costume changes like a drag queen on steroids. 

As an understandable result, those inclined to skepticism may well suppose that none of what "true conservatives" profess to believe should be taken all too seriously - at least when it comes to the conservative makers and shakers who rule the roost. Almost yesterday, Dick Cheney famously said the Ronald Reagan proved deficits don't matter. Today, it's Ronald who?  

Reagan's support for gun control

It's Ronald who supported the 1993 Brady Act and the 1994 assault weapons ban, for one thing. Reagan's measured support for gun control was just part of a whole litany of positions he took that would have completely blocked him from rising any higher than state governor in today's GOP. And it's Obama's rather typical embrace of Reaganite gun policy that's driving the so-called "constitutional conservatives" so crazy that they're shooting their image full of holes. 

 Obama pushes for gun control measures

Don't look now, but the need for another conservative makeover has already arrived. Just dropping the Tea Party name - as one group in South Florida has just done - will not be enough, as this latest fiasco clearly shows. 

A collection of some of the craziest responses to Obama's gun safety agenda from Mother Jones magazine furnishes a good jumping-off point for surveying the damage. (Most were actually "presponses", reacting to Obama in advance, but there's been virtually no walking back of these extreme responses when Obama's actual list of executive actions turned out to be so tame.) 

The collection includes ignorant blowhards from talk radio, the US Senate and the Texas governor's mansion, along with private individuals threatening civil war, an Oregon sheriff who thinks he has the power to arrest federal law enforcement officers doing things that he doesn't like, Texas legislators who don't realise that John C Calhoun's notion of states nullifying federal laws went out with the Civil War, and a trio of white Southern congressmen who want to see Obama impeached. 

Of course, it goes without saying that none of these jokers has any idea what the Second Amendment actually says or means - very few Americans of any stripe understand that. But they're equally clueless about such basics as the nature of executive actions (not orders, Obama didn't issue any of them), how a bill becomes law, the role of courts in determining the legality of legislation and executive actions, and the nature of treason.  

All of these are subjects of high school civics and history - except, of course, for how a bill becomes law, which, thanks to Schoolhouse Rock, is well understood by grade-schoolers everywhere in America. Alas, Kentucky Senator Rand Paul - already talked about as a potential presidential candidate in 2016 - seems to have never gotten that far in his education. 

This fine upstanding "constitutional conservative" was off to a good start calling the President "King Obama", because, of course, all good American patriots hate the idea of a king - especially one named "Obama", as opposed to, say, "George", which has a nice, down-home feel to it. If there's one thing that "constitutional conservatives" know, it's how to get people riled up, so, score one for Rand Paul. Give the man a tri-corner hat. 

But after that, everything starts going wrong for Rand. He warns about Obama signing executive orders, but doesn't give any examples of what might qualify as a "kingly" action. He's not alone in this - virtually all the alarmists have been utterly silent about the specifics of Obama's executive actions, because they're all so tame. In fact, what's alarming is that they're even needed. For example: 

  • "Nominate an ATF director." Most people probably don't realise that the federal Bureau of Alcohol, Tobacco and Firearms hasn't had a director since 2006, when Congress first made it a post that requires congressional approval. Without a permanent director, the agency's efficiency and effectiveness is seriously impaired - just the way the NRA likes it. 
  • "Issue a presidential memorandum directing the Centres for Disease Control to research the causes and prevention of gun violence." Public health research into gun deaths and injuries has been virtually eliminated by NRA-backed legislation, which does so by falsely equating basic research with promoting gun control. Obama is simply taking the legislation at face value and instructing the CDC to resume funding this basic, but neglected research.
  • "Issue a presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations." You mean this isn't already a part of routine federal police procedure?

Obama's 'tyrannical intentions'

Then there's the federal background check system that's riddled with holes. While the most fundamental reform - ensuring that all gun sales require a background check - cannot be implemented without an act of Congress (a step supported by 92 percent of all Americans in one recent poll), Obama included six executive actions intended to significantly improve the existing system, and dovetail with any more comprehensive action Congress might pass. These include: 

  • "Issue a presidential memorandum to require federal agencies to make relevant data available to the federal background check system."
  •  "Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system."
  • "Improve incentives for states to share information with the background check system."
  • "Direct the attorney general to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks."
  • "Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun."
  • "Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers." 

Pretty tyrannical, no? You can just hear the ghost of Adolf Hitler cackling maniacally in the shadows.  

Then there are the actions that dovetail with NRA thinking, or its professed purposes. One executive action - "Maximise enforcement efforts to prevent gun violence and prosecute gun crime" - is 100 percent in line with the NRA's repeated insistence that we need to focus on the enforcement of existing laws. Another - "Launch a national safe and responsible gun ownership campaign" - supports a core professed NRA purpose. Three more actions even tip their hats to the NRA's call for armed guards in schools: 

  • "Provide law enforcement, first responders and school officials with proper training for active shooter situations."
  • "Provide incentives for schools to hire school resource officers."
  • "Develop model emergency response plans for schools, houses of worship and institutions of higher education." 

There are also four actions directed at mental health issues, once again showing that the NRA is delusional when it claims that hardworking, taxpaying, law-abiding gun-owners are the sole focus of the Obama administration's gun safety policies. 

 Thousands march for gun control
in Washington, DC

If you're having trouble seeing Hitler's shadow lurking in the midst of all these executive orders, it just might be because it's not there. But it's just as hard to find the spirit of James Madison in the ranks of the so-called "constitutional conservatives" who are raising such a hue and cry. 

Rand Paul provides the perfect example. Because after raising the spectre of Obama's tyrannical intentions, he promises stern resistance... by passing legislation to stop Obama, legislation that would need Obama's signature in order to become law. I could quote the Constitution here, but let's go with Schoolhouse Rock instead: 

I'm just a bill, I'm only a bill, and if they vote for me on Capitol Hill,
Well then I'm off to the White House where I'll wait in a line
With a lot of other bills for the President to sign,
And if he signs me I'll be a law -
How I hope and pray that he will,
But today I am still just a bill. 

Entertaining impeachment fantasies

Given that Rand Paul is a senator, and that passing legislation is the most important item in his job description, it's not just embarrassing that he knows so little about the Constitution. If he held a regular like most Americans, such gross ignorance about his own job would be enough to get him fired. 

But it's totally in character for a "constitutional conservative". The most extreme examples - a few choice ones cited by Mother Jones - come from self-styled citizen-patriots, as one would expect. But RNC Chair Reince Priebus, the functional head of the Republican Party, wasted no time in setting the over-all tone of total opposition to Obama's gun safety agenda by wildly misconstruing both Obama's actions and the Second Amendment in relationship to the Constitution, with a statement saying:

"President Obama's series of gun control measures amount to an executive power grab that may please his political base but will not solve the problems at hand. He paid lip service to our fundamental constitutional rights, but took actions that disregard the 2nd Amendment and the legislative process." 

Of course, Priebus had nothing to say about any of Obama's specific executive actions, since talking about the actual substance of what Obama did would make a mockery of his power-grab claims. Nor did Priebus offer any explanation of how the actions Obama took were, in any way, legislative actions which the Constitution delegates to Congress, rather than executive actions, which the Constitution delegates to the President. 

Nor did he offer any rationale or legal citation to back up his claim that Obama was disregarding the "the 2nd Amendment and the legislative process". In short, everything Priebus said was pure assertion, entirely divorced from the reality of what Obama had actually done, on the one hand, and from the framework of what the Constitution says on the other hand. 

This double divorce from reality was echoed and amplified by so-called "constitutional conservatives" at all levels. In addition to Rand Paul going off half-cocked in the Senate, Mother Jones cited three examples of House members who entertained impeachment fantasies. It's a real challenge to convey an accurate sense of how utterly delusional this is - especially for those claiming to be "constitutional conservatives".  

First, there's the untenable claim that the President is violating the Constitution. Despite all the rhetoric, even the NRA doesn't believe it for a moment. Unlike the ACLU, for example, which constantly seeks to bring First Amendment cases to the Supreme Court, the NRA itself has always been extremely reluctant to bring cases before the Supreme Court for fear that it will lose, even with today’s extremely conservative Court. 

It even tried mightily to prevent the Heller case from being heard - the first case in Supreme Court history that actually accepted their claim that the Second Amendment protects an individual gun right. The NRA was right to not want Heller heard - as can be seen from the quote from the opinion cited at the top of this column. Obama's actions are so clearly in line Scalia's opinion that no sane lawyer would think for a moment that they could be challenged at the Supreme Court level. 

Second, even if Obama's actions did violate the Constitution, that wouldn't be grounds for impeachment. Third, instead, there's a very straightforward, almost commonplace remedy: take him to court and challenge his actions by normal legal procedures. The fact that this remedy exists is one of the most basic aspects of our constitutional system of cheques and balances - yet another glaring example of how profoundly ignorant so-called "constitutional conservatives" are.  

Outright threats of war-making

In the real world, the Supreme Court has repeatedly found congressional laws (signed by the President) and administrative actions (under presidential authority alone) to be unconstitutional. This has never led to impeachment as a result. When a law or executive action is found unconstitutional, the legal remedy is that it is struck down - not that lawmakers are punished for it. 

The constitutional standard for impeachment is "high crimes and misdemeanours", and if good faith legislative and executive actions could be retroactively deemed to be high crimes, justifying removal from office, then our constitutional system would be plunged into utter chaos. No sober constitutional expert has ever advanced such a ludicrous notion. But for "constitutional conservatives" it's not a ludicrous notion - it's a key article of faith... provided, of course, that the politician to be impeached is a Democrat. 

This represents a sort of bedrock level of constitutional ignorance and folly that seems to be shared by almost all so-called "constitutional conservatives". That's not to say they all spell the argument out, but rather that it fits well with their beliefs - and most importantly, that its delusional disconnect from constitutional reality is never challenged in the name of "constitutional conservatism". 

 Inside Story Americas
- The mental health versus gun control debate

The same tacit approval often seems to apply to talk of nullification and secession as well - ideas that logically lead down the slippery slope to armed rebellion, as they did with the Civil War over 150 years ago. Indeed, a good many "Second Amendment absolutists" claim that the whole purpose of the Second Amendment is to arm the people to overthrow the government, in case it becomes tyrannical. 

This is yet another "constitutional conservative" delusion: if the Second Amendment had had this intent, then surely it would have also included a repeal (or at least an amendment or qualification) of the Constitutional definition of treason (Article 3, Section 3):  "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies..." 

Not surprisingly, the Mother Jones'  list of crazy responses to Obama's gun safety initiative includes examples of nullification talk as well as outright threats of war-making. Would-be nullifiers on the list include Linn County, Oregon, Sheriff Tim Mueller, and a group of Texas legislators setting out to draft a state law allowing state authorities to imprison federal officials trying to enforce any new gun laws. (There are actually similar efforts in roughly 20 states now.) 

Mueller announced that "any federal regulation enacted by Congress or by executive order of the President offending the constitutional rights of my citizens shall not be enforced by me or my deputies, nor will I permit the enforcement of any unconstitutional regulations or orders by federal officers within the borders of Linn County Oregon". One might have thought that the judicial branch of government would be important for "constitutional conservatives", but, it seems, not so much. 

Indeed, the idea of a lowly county sheriff determining for himself which laws are constitutional and which are not strikes me as a bit of a king-like fantasy. But I'm sure King Mueller doesn't see it that way. Another county sheriff with similar delusions, King Paul Babeu, the second-craziest sheriff in Arizona, appeared on MSNBC's PoliticsNation with Al Sharpton. He had sent a similar letter to the Obama administration. 

When Sharpton asked him how he could determine which laws were unconstitutional and which were not, Babeu tried to change the subject. Eventually, he was forced to admit that nothing Obama had done was unconstitutional. He was, as Sharpton put it, just trying "to get some attention". 

Petitions from dozens of states

One of the Texas legislators, state representative Steve Toth, echoed Rand Paul, saying: "It is our responsibility to push back when those laws are infringed by King Obama."  The 19th century nullifiers eventually ran up against Abraham Lincoln, which led them to mutate into secessionists, in the process labelling Lincoln a "tyrant". At least Obama's in good company. 

Warnings or calls for outright war came from a couple of voices from the "oath-keeper" branch of "constitutional conservatism", as well as from the CEO of a Tennessee weapons training company, who said: "I'll be glad to fire the first shot… I am not letting my country be ruled by a dictator, I'm not letting anybody take my guns. If it goes one inch further, I'm gonna start killing people." (The state wisely pulled his firearms licence in response.) 

If the mid-way alternative of secession was absent from this highlight list, that shouldn't mislead you, since secession was already in the air even before the Newton massacre and Obama's response. Immediately after Obama's re-election, secession petitions were launched in dozens of states, and in mid-January the White House responded to those submitted to it, stating that "Our states remain united". 

Although it received petitions from dozens of states, the ones registering 25,000 signatures or more - the threshold for an official response - had a distinctively Confederate tilt, including Florida, Georgia, North Carolina, South Carolina, Louisiana, Texas and Alabama. 

Although nullification, secession and armed conflict are not exclusively Southern responses to Obama's gun safety agenda, they certainly are much stronger there than elsewhere and they reflect the historical reality that these same false constitutional doctrines helped pave the way to the Civil War - the only episode of mass treason in US history.  

Once you allow this simple historical fact to sink in, the whole notion of "constitutional conservatism" finally starts to make sense. You see, the constitution these folks are referring to is not the Constitution of the United States of America. It's the constitution of the Confederate States of America, whose entire reason for existing was to preserve the institution of slavery, and the political power of the slave-owning elite. 

And that constitution, thankfully, has already been shot full of holes, in the bloodiest war in American history, which it was the cause of. Nothing tells us more about what "constitutional conservatives" are really up to than a look back at the horrors of that war, and the unspeakable evils that it sought to preserve and protect. 

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, where he's worked since 2002. He's also written for Publishers Weekly, Christian Science Monitor, LA Times, LA Weekly and Denver Post. In 2000/2001, he was a principal editor/writer at Indymedia LA. He was a front-page blogger at Open Left from 2007 to 2011.

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The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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