ONE SMALL STEP.... AND THEN ANOTHER....

In a world where it seems the only creative legislative geniuses are the pernicious devils intent on thwarting a woman's right to choose- witness the brilliant Texas law which divorced the State entirely from stopping (then) legal abortions but farmed out the task to legal vigilantes empowered to file civil suits against any person providing any aid of any kind to a woman seeking an abortion-  it is long past time for the people on the moral high ground to start thinking outside of the box.    Which brings us to the latest massacre of school children.   Thoughts and prayers aren't going to get it.  Protests won't accomplish anything.   Pious rhetoric from top Democrats won't save a single life.

No, it's time to use the tools that we have, and to use them effectively.   First and foremost, the House of Representatives, the only chamber in our national legislature capable of creating and passing civic minded legislation designed to help all Americans, should go small.   Instead of crafting bills that include everything and the kitchen sink, a process which allows any Republican Senate demagogue or self-aggrandizing Senate Democrat (I'm looking at West Virginia and Arizona) to righteously declaim their opposition to that one small part of the bill that somehow they find so odious that they are willing to allow democracy itself to be overthrown or school children to be shot to pieces, the House must pass a number of separate bills, each addressing a single issue, each unassailable by any rational argument, each designed to put any opponent who votes against it smack dab in the middle of a campaign commercial in his or her next election from which there will be no wriggle room.

Start with things that are easy and massively popular, such as instant background checks to prevent the insane and felons from acquiring firearms.   Don't even include private sales in the first bill passed.   And include funding from an already existing source of revenue to pay for the expense that private businesses may have to bear for having to order the technical apparatus- such as a telephone- before they sell that next AR-15 with three large magazines to the hyper mentally ill 18 year old who can't wait to go to the neighborhood elementary school to wreak havoc and horror or the mother of a 17 year old excitedly planning his next field trip to a neighboring state to shoot people down in the street in the name of "protecting property."

Next, move on to a bill requiring instant background checks for all private sales.   Set up a federal hotline to make it easy to accomplish.   And include very minor penalties for violations- a misdemeanor and a $1,000 fine, the same penalty as one gets for a bar fight or driving on a suspended license- in the bill so that it's enforceable, but like Texas, also give a private right of action to any person or family member of a person injured by a firearm sold in violation of this law.

Move on up to a bill that will put some teeth into keeping firearms from small children, the insane, and criminals:    a bill that removes all civil immunity from any gun manufacturer or gun dealer who manufactures or sells any weapon which is not child proof, which can be fired by any person, and which is used- whether legally owned or not- in an accident or a crime.   We need to require all newly manufactured and sold firearms to have at least the same level of security as our smart phones do:  a fingerprint or a code which must be entered to make it operable.   And make the weapon remotely disableable by the legal owner, like the device that some car models have.  That should prevent the next five year old from accidentally shooting herself or a sibling and the next gun thief from being able to profit from his crime.

From there, the legislators should take note of the hostility of the current super majority of the Supreme Court to common sense gun laws yet their peculiar embrace of a word that was unheard of when I was in law school:  "textualism."   This is the seemingly logical  idea that judges should not "create" law but should adhere to the original text of the United States Constitution, but which in practice means that justices are free to reject any legislation from a state or Congress with which they disagree on the grounds that there was nothing said about it in the original Constitution in 1787 or the Bill of Rights in 1791.    Of course, in those days, women were virtually property and could not vote or hold office, African slaves were counted as three-fifths of a human being for purposes of representation in the House of Representatives (they were referred to as "all other persons" because the word "slave" never appeared in the Constitution- not even in the 13th Amendment which prohibited "involuntary servitude" in 1865), and senators were not elected but were selected by state legislatures.   In other words, Samuel Alito's vision of Heaven.

Creative legislators can hoist the so called conservative justices on their own "textualism" petard.  Although the Second Amendment states "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," it says nothing about what the word "Arms" means.    I propose defining "Arms" as they were originally intended in 1791 ("textualists" are also referred to as "originalists" because of their dogged devotion to whatever their judicial minds perceive the "original framers" of the Constitution intended).    Arms should include single shot muskets and rifles which load from the muzzle, not the breech.   None will have magazines (the word did not exist with regard to hand held weapons but referred to where the ammunition was stored on a ship or in an armory).   

With a stroke of a pen, every modern weapon from a 15 bullet Glock hand gun  to an AR-15 with a banana clip with 30 rounds will be outlawed.   And I'd love to be present at the oral argument at the Supreme Court when the "textualists" have to deal with their own terms being hurled back at them in a case brought by  deprived NRA enthusiasts and the gun manufacturers who enable them.

Legislation can also be crafted to limit the muzzle velocity of firearms sold to the public to decrease their lethality.   Bullets now leaving the barrel at 3900 feet per second for a high powered rifle and over 1000 feet per second for a typical handgun can be restricted- a "restrictor plate" so to speak, like the ones used to keep NASCAR drivers from exceeding absurd miles per hour limits- to something far less lethal- about 100 feet per second.   I dare any right wing Supreme Court justice to parse the Second Amendment and find in the original text any right to fire a bullet at over 1,000 feet per second- over 680 miles per hour, faster than the fastest commercial jetliner.    Which of course, also did not exist in 1791.

Finally, even if that doesn't do the trick, the House can pass a bill that outlaws or strictly controls the sale of the items that allow modern firearms to function:  everything from gun oil to cleaning brushes to the spare parts for any portion of a modern firearm, including firing pins.   Imagine that for a moment:  every gun lover will be stuck trying to figure out how to clean the barrel of a fired weapon without the tools to do so.   Eventually, the weapon will become inoperable.   But the gun enthusiast can still "bear his Arms" even if they won't actually fire and hurt somebody.

YOU DON'T NEED TO BE A WEATHERMAN....

 

[NOTE:  I wrote this essay the week before the story broke about the draft opinion of the Supreme Court which will reverse Roe v. Wade and end a woman's Constitutional Right to choose whether or not to carry a pregnancy to term.   It was prescient- including my prediction as to the 5-4 division to overturn- but not that much.   As Bob Dylan famously wrote, "It doesn't take a Weatherman to see which way the wind is blowing.]

I'm a liberal.  I'm progressive.   I've voted for a Democrat for president for fifty years.  I'm a lawyer who has made a career out of representing the aggrieved in civil rights cases for more than four decades, and I've done volunteer work as an attorney for the ACLU.

And I very much want to see the United States Supreme Court overturn 49 years of precedent and overrule its landmark abortion rights decision in Roe v. Wade.

This is not a contradiction of my values or goals.   But there are three reasons why it would be an excellent decision for the future of this country.

First is the pragmatic choice- not quite a Sophie's choice- but a choice, between saving democracy and protecting a woman's right to choose whether or not to terminate a pregnancy during the first trimester (no excuse needed) or second trimester (some state regulation is allowed).    If the Supreme Court issues a decision overruling Roe v. Wade- and I predict that it will, in a five -four decision with Chief Justice John Roberts joining the three justices appointed by Democratic presidents in a stinging dissent- then there will be huge political consequences.   The most obvious consequence is that a large segment of the somnolent public will awaken to the fact that they have just lost a woman's constitutional right of privacy that will have a direct negative impact on the lives and pocket books of both men and women.   And that may be just the tipping point to motivate voters to get out to the polls this November and vote for Democrats for both state and federal offices.   Because nothing motivates a voter more than having his or her personal life or fortune upended by actions of a political party, and in this case, there is no confusion over which political party overtly named justices to the Supreme Court for the precise goal of overturning Roe v. Wade and which party has been defending a woman's right to choose.

And if enough voters are motivated to go to the polls to swing just a couple of United States Senate races and a few swing Congressional districts, the Democrats can not only hold on to their control of both bodies of the legislature, but they might also increase their majority to the 52 in the Senate required to get to a vote to repeal or severely limit the filibuster rule which has cost Democrats  any chance of getting their voting rights bills to a vote in the Senate.   Because if they get to the magical number of 52 then ostensible Democratic Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona will lose their stranglehold veto power over attempts to amend the filibuster rule which now requires a 60 vote supermajority to even have a vote over any of the bills the Democrats have passed in the House to protect voting rights.   

And the stakes are high:  those bills are necessary to protect the future of democracy in the United States.    I value keeping this country a democracy and continuing to allow free and fair elections, open to all eligible voters, more than I value a woman's right to choose whether or not to continue with a pregnancy.   Because if we lose democracy in this country, and if Republicans are allowed to suppress voting and even overturn elections they lose through pernicious anti-democratic laws passed by the state legislatures they control, then a woman's right to choose will have no chance of surviving anyway.   

It is noteworthy that the greatest block of single issue voters which have supported the Republican Party the last 40+ years has been those people who consider themselves "right to life" proponents.   Many if not most of those are sincere.   Others are demagogues who don't actually want to win this issue, they just depend on it election cycle after election cycle for money and voter support from those who are sincere.   A ruling overturning Roe v. Wade would, in effect, kick the chair out from under the monolithic block which has been relied upon by the Republicans who have demagogued this issue for over 40 years.    A win in the Supreme Court would mean that those "pro-life" voters would now be free to look at other issues:   protecting the environment and the earth from catastrophic climate change; expanding health care; increasing the minimum wage; opening up more avenues to a free or less expensive post high school education; even common sense gun control to stop mass murders n our high schools and elementary schools.  All are issues where Republicans are consistently on the wrong side of public polls and Democrats are on the moral and popular high ground.

A second reason why a decision overturning Roe v. Wade would be a long term benefit for democracy and civil rights in this country is that it will now be seen as a practical necessity to enact legislation to achieve the heretofore unrealistic goal of expanding membership in the Supreme Court by adding four justices  to end the stranglehold that six Republican appointed  justices have, five of whom were appointed by presidents who lost the popular vote.   Bush, who lost by 500,000 to Al Gore in 2000, appointed Chief Justice John Roberts and Samuel Alito; Trump, who lost by more than three million to Hillary Clinton in 2016, appointed Neil Gorsuch, Brett (I love beer) Kavanaugh, and Amy Coney (confirmed almost before national treasure and Court icon Ruth Bader Ginsburg was laid to rest) Barrett.     

If four justices are added- and I predict that it won't take even a few days after the opinion overturning Roe v. Wade is issued that legislation accomplishing this will be put in the hopper in the House-  then the justices who have managed to eviscerate campaign finance reforms and the voting rights laws will no longer wield the power to obstruct legitimate legislation or use their shadow docket to enact their ideological goals.    Two cases in particular, both 5-4 decisions, can be overruled, restoring some sanity to our electoral process:   Citizens United v. Federal Election Commission in 2010, which removed all financial restraints on "dark money" which has allowed right wing billionaires to anonymously influence elections; and  Shelby County v. Holder in 2013, in which Chief Justice Roberts decided that racism was dead and led the right wing majority in invalidating  section 5 of the 1965 Voting Rights Act which required state and local governments which had historically engaged in overt voter suppression of minorities to have to "pre-clear" their changes in voting laws and regulations with the Justice Department before they were allowed to go into effect.   That ruling was followed within days by state legislatures enacting laws to suppress minority voting rights, and it has only snowballed in the years since then, with worse and more devious legislation being enacted yearly in states with Republican controlled legislatures and governors.

Adding four more justices would mean that the three justices appointed by presidents who actually won the popular vote will now be in the majority- seven out of thirteen, and the six who have done their best to politicize and delegitimize the Court will suddenly find themselves powerless to block or overturn government environmental protection regulations, to infringe on the religious rights of minorities, or to allow further state suppression of minority participation in elections.   

A reversal of Roe v. Wade by a cabal of overtly political justices, all carefully groomed and prescreened by the right wing Federalist Society would mean that there would be no hesitancy by President Biden to support and eventually sign such a bill adding the four justices necessary to end their pernicious control of the highest court in the land.

Then there is a third reason:   in my opinion, this has been the only issue in the last 40 years where there is a legitimate argument that can be made that Republicans and their pro-life supporters, including Catholics and evangelical Christians, hold the moral high ground. Their sole contention is that they are defending the sanctity of human life.  On the other side Democrats contend that they are defending a "woman's right to choose."  But the latter's arguments are based on quicksand.    When I ran for public office decades ago, I used to half-joke that the definition of a "conservative" is a person whose concern for life ends at birth.    This has been pretty much true, as far too many self styled "pro-life" conservatives oppose Medicaid expansion, stymie gun control- even to save the lives of massacred school children, and are  huge supporters of the death penalty.   

  But the argument to protect the life inside a woman's womb was  never illogical or immoral.   I've always felt that Roe v. Wade was wrongly decided in the first place because the arbitrary decision to create a woman's "Constitutional right" to choose to terminate a pregnancy  depended on what date it was on her biological calendar.    Justice Blackmun, who wrote the opinion, created an unfettered right to an abortion during the first trimester of a pregnancy, a somewhat state regulated right during the second trimester, and a very limited right- the mother's health or life must be at risk- during the final trimester.   And these arbitrary deadlines were  based solely on a justice's lay opinion regarding the "viability" of the fetus within her.   And that viability depended on advances in medical science, not on the law or the Constitution.  Under the reasoning in Roe v. Wade, when the day came that any fetus at any stage was "viable" in the sense that medical science could take that fetus to term even if were medically removed, still alive, from a woman's womb, then the Constitution and the right to privacy invoked in that ruling were irrelevant.   Because a woman would then have no more right to terminate the fetus's development outside her womb than she would have to terminate the life of a one day old baby which she had delivered the traditional way.

And to me, this was all the difference.  But if Roe v. Wade is overturned, henceforth a woman's "right to choose" will only involve decisions concerning her own body and not decisions she chooses to make regarding a separate life created by her and the father.   And this will free up a large block of single issue voters who are rational and actually have a social conscience to vote for Democrats who will actually enact health and safety regulations to protect lives after they are born.