Paul Helmke, Head Cretin of the Brady Campaign, has a post up at HuffPo wrestling with a conundrum: Who Would Oppose Closing The Gun Show Loophole?

Anybody who (a) actually understands how guns are regulated but (b) isn’t an anti-gun ideologue desperate to bullshit people into supporting his agenda, that’s who.  Here’s a simple truth: there is no gun show loophole.  There is no law that applies outside gun shows that does not apply inside gun shows.  This is nothing more than PSH over the fact that ordinary citizens who don’t sell firearms commercially are by-and-large still free to dispose of their own private property without a half-assed government permission slip.

Until fairly recently I had been very much on board with a libertarian compromise on the same-sex marriage question: get government out of the marriage business.  If, the thinking goes, government would merely cease solemnizing couples as married, and simply award Generic Civil Union certificates to all comers, we could sidestep the Due Process and Equal Protection questions entirely.  Nice and neat, right?

Well, no, I’ve come to think.  Rather than have government extricate itself from something that’s freighted with cultural and religious significance, clerics should extricate themselves from something that’s freighted with secular, legal signifiance.  By this I mean that, while they should continue to perform religious matrimonial ceremonies as normal, they should expunge the “by the power vested in me by <insert jurisdiction here>” phrases from those ceremonies and otherwise cease acting as duly-authorized agents of the state, instead recommending that couples interested in the legal incidents of marriage should consult with the relevant county official.  I think this is the superior approach for at least three reasons.

First, it’s considerably more practical.  The government will never “get out of the marriage business” because “the marriage business” is part of the spoils system through which politicians buy votes.  You may as well suggest that hopeless addicts “get out of the meth business,” just like that.  But convincing, say, a Catholic priest that he shouldn’t befoul a beautiful wedding ceremony by giving it a grubby political/legal dimension?  That’s an argument you can win.

Second, it much more cleanly avoids inevitable litigation by anti-religious bigots and political grievance industry parasites.  As long as a minister is conducting weddings that are in any respect civil commitment ceremonies, it can be argued that he is effectively an agent of the state who can be compelled to serve all comers under state public accommodation/anti-discrimination laws, notwithstanding his religious views.  There may be respectable First Amendment defenses to such claims, but why expose yourself to a lawsuit in the first place?

Third, people generally get married because they care about one another, not all the legal perks and obligations that accrue from marriage.  I expect that there is a non-trivial constituency that would be perfectly content not to bother with a civil marriage once they were wed in the eyes of their god.  As that constituency increases, it would declaw the spoils system mentioned above.

I am delighted for the GLBT couples who, assuming yesterday’s ruling is upheld on appeal, will finally have full and equal legal recognition of their marriages.

I nevertheless remain of the mind that, as a matter of practical politics, this is not a battle that can be won through litigation.  This is demonstrably not an effort to achieve substantive equality at the state level: that fight has already been won in California, where our civil union laws are so expansive that GLBT couples can already be married in everything but name.  Rather, this was an effort to achieve equal dignity and social acceptance — and while I absolutely appreciate why GLBT couples would desire such things, I would remind them that they’re not remedies that are within the power of courts to award.  Social acceptance has to be won through the long, arduous process of persuasion, and attempting to short-circuit that process via litigation invites entrenchment and lasting strife.  Witness how the culture wars over abortion continue to simmer some 37 years after Roe v. Wade.

I am sickened by the unbridled sanctimony — the transparently-phony paeans to libertarian anti-majoritarianism — that this has occasioned.  Let’s be very honest: many (if not most) of the people who are today making oh-so-earnest pronouncements about how fundamental rights should never be subject to popularity contests will go to the polls in November and vote enthusiastically for politicians who’ll do everything in their considerable power to further fold, spindle, and mutilate my rights: for example, my right to purchase, own, and peaceably use firearms.  So as happy as I am for GLBT couples who’ll now be able to legally wed, I’ll be even happier when same-sex marriage supporters in general develop a little intellectual honesty and embrace libertarian anti-majoritarianism in fact, rather than merely rhetorically.

Today I deactivated my Facebook account after reaching a sad realization:

A depressingly large number of the people I have heretofore regarded as friends, some of them even family members, are fatuous demagogues and apologists or advocates for my enslavement.  I am simply no longer capable of civility toward these individuals in any of my interactions with them: until they experience a Road to Damascus moment and then proceed to beg my forgiveness for the various thefts of my liberty that they’ve abetted, I want nothing more to do with them.

Some may regard this as harsh.  But let’s be clear about what we’re discussing.  Practical politics is one thing: concluding that the Democratic Party is, relative to the GOP, the lesser of two evils and reluctantly handing it electoral power is not some apostasy.  However, to enthusiastically support ObamaCare, and to race-bait principled opponents in the vilest fashion, is something else altogether, and something I will not stand for.

Today I found some writing that I thought formed a useful sorting mechanism:

I’m going to put the alternative to everyone, in terms of a plain concrete, one that lays it out in no uncertain, clear-cut terms, that will separate the moral adults from the altruist children.

It runs as follows:

There is someone in front of you asking for help, and you have plenty of money.  Do you have the moral right to say no?

His need is genuine.   Do you still have the moral right to say no?

It’s not his fault.  Do you still have the moral right to say no?

It’s a very pressing need.  Do you still have the moral right to say no?

It’s a child.   Do you still have the moral right to say no?

If you do not answer “Yes” all the way down the line — if you do not assert your individual moral sovereignty, if you do not assert your right to choose as being morally prior to anyone’s need –

– than SHUT UP and get out of the way.  You are not morally equipped to partake in this battle, let alone win it, and you are wasting your time.

Now PAY ATTENTION, please.

Notice that I am NOT asking what you believe you should choose.  I am NOT asking you whether you should give to the needy.

I am asking you whether the choice is morally yours, all the way down the line.  I am asking you whether you believe that you still have the moral right to exist after saying “No”.

The writer is addressing Tea Partiers, but I think it can be addressed to other individuals as well.  Either you are willing to demand the full measure of American liberty for yourself and others, or you are not.

Time to choose.  I am weary of trying to find different, polite ways of telling people that I will not be blackmailed by tyrants employing the needy as human shields.  If you will, I think that’s very sad, and I feel sorry for you.  But if you’ll go so far as to cheerlead for these bastards while they go about extinguishing my freedoms, then you are not my friend, and never were, because real friends don’t sell friends into bondage.

At the outset of this post, I want to make something abundantly clear: I do not deny the existence of right-of-center groupthink.   There are certainly people on the right who do not trouble themselves to consume a balanced diet of news and opinion, and who succumb to an echo chamber effect that leaves them reeling when they come into contact with reality.  But a HuffPo column by Chez Pazienza, ascribing to groupthink and echo chamber effects the explosion of center-right rage over the healthcare reform bill, is itself an example of groupthink and echo chamber effects — on the left.

The first clue is Pazienza’s largely-favorable linkage to proven liar Eric Boehlert, a guy who makes a living dispensing sanctimonious Gorillas In The Mist-style commentary on conservatives for the consumption of other smug liberals.  Boehlert, who has spent his entire career in a creche of left-wing conformity, is no more qualified to engage in a psych diagnosis of conservatives than I am to perform open-heart surgery.  The next time he makes a good-faith effort to understand a conservative’s or libertarian’s worldview and motives will be the first time.

Pazienza’s thesis, borrowed from Boehlert, is that the right is so infuriated by the passage of ObamaCare because, basically, they get all their news from Rush, from Hitler’s cable network (i.e., FOX), and from right-wing blogs.  These information sources provided a completely distorted view of reality — principally, that ObamaCare was “destined to fail and fail miserably because this is America and in America the good guys always win — and we’re the good guys” — such that conservatives were completely poleaxed when the thing advanced through Congress and ultimately passed.  This, says Pazienza, explains why conservatives are now working their way through the Kübler-Ross grief cycle, lingering in the denial and anger stages.

The story, like most of Boehlert’s œuvre, is compelling if you’re a lefty looking for reinforcement of your prejudices.  Ha, ha, those stupid wingnuts, who only listened to FOX and were repeatedly blindsided.  We smart, sophisticated liberals would never fall thrall to a partisan narrative and throw a very public tantrum when reality intruded.

The other thing that it has in common with most of Boehlert’s work is that it’s complete horseshit.  Practically from Day One there were influential conservative commentators and high-profile right-of-center blogs predicting that the thing would probably, eventually, pass given the political juice available to its proponents.  Even Rush allowed for the possibility that the bill might pass by threatening to move to Costa Rica if it did (something that lefties are having no end of fun with).  Sure, outfits like FOX and right-of-center blogs reported on — and conservatives were buoyed by — the various legislative setbacks and problems the bill experienced along the way, and conservatives were certainly optimistic that it could be stopped.  But only in Boehlert’s and Pazienza’s strange alternate universe is optimism the same as being unrealistic or delusional about either the political math involved or the modern Democratic Party’s damn-the-torpedoes ideological commitment to statism.  Perhaps the only thing that conservatives are truly surprised by is the number of Democrats from competitive districts willing to walk the plank for party leadership given how the midterms are shaping up.

Besides, the Boehlert-Pazienza thesis cuts both ways: if conservative optimism was delusional, what of liberal pessimism?  Which wingnut echo chamber was President Obama thrall to when he grew so concerned for the bill’s survival that he begged House Democrats to save his presidency by passing it?  Was Jane Hamsher under the influence of a Sean Hannity Mind Meld when she predicted that bipartisan populist outrage would kill the bill?  What right-wing false consciousness befuddled Paul Krugman to the point of sackcloth-and-ashes despondency over prospects for reform, and of very nearly washing his hands of his secular savior?

The fact of the matter — which either escapes Boehlert and Pazienza, or which they wish to hide under their beds from — is that passage of this bill was a very near thing, and its defeat always a serious possibility, due to divisions in the Democratic caucus owing to the bill’s widespread unpopularity.  (And yes, yes, individual components of it poll favorably, but that’s like polling people about whether they like free ice cream; the bill in aggregate, which is what Congress was actually considering, has consistently polled around ten points underwater since last year.)   Even given the amount of political juice the Democrats could bring to bear, it was hardly an inevitability that this monstrosity would lurch across the finish line.  Yes, there are lots of dashed hopes on the right, but nominally right-of-center folks are not, by and large, infuriated because their favored news sources lulled them into thinking this day would never come and now the hangover sucks.  Rather, they’re pissed because they think the bill is both substantively and procedurally wretched: that it will do incalculable damage to the country’s fiscal position and irrevocably worsen its laws and its character, and that it was passed under false pretenses via one of the most corrupt legislative processes in recent memory (several Bush-era shenanigans notwithstanding).  And they’re not without ammunition for those views, contrary to what Boehlert and Pazienza might (and probably will) try to claim.

So if the Boehlert-Pazienza thesis is such transparent horseshit, why would Boehlert and Pazienza peddle it?  Simple: projection.  They’ve succumbed to the same failing that they ascribe to conservatives, and are so enmeshed in a partisan narrative — conservatives are laughably ignorant victims of a false consciousness that liberals see right through, and so it’s scarcely necessary to address their arguments on the merits — that they’re unable to deal with reality.

It recently came to light that seven lawyers who received political appointments to the United States Department of Justice had previously done pro bono work on behalf of Guantanamo Bay detainees or other terror suspects.  Various folks on the center-right, including Liz Cheney (Dick Cheney’s daughter), have made hay about this, which has provoked furious responses not only from the Justice Department itself…

“Department of Justice attorneys work around the clock to keep this country safe, and it is offensive that their patriotism is being questioned,” said Justice Department Spokesman Matt Miller.

…but also from the broader legal community (including other center-right luminaries such as Ken Starr).  These folks haven’t been too proud to refrain from claiming that they’re trying to vindicate a principle — the zealous representation of unpopular clients — that runs back to John Adams’ defense of the English soldiers involved in the Boston Massacre.

And there’s certainly some merit to that.  It’s, in general, unfair to conflate the views of lawyer and client.  Nevertheless, I find much to agree with in this post by Stewart Baker at the Volokh Conspiracy.  These lawyers weren’t simply providing otherwise-indigent clients with counsel; rather, they were performing extensive pro bono work on behalf of clients who were already represented by military lawyers, and who had access to every resource the government could command.  Moreover, the British soliders Adams defended were ordinary criminal defendants accused of murder; he was not representing spies or pirates (the eighteenth-century equivalent of modern ”enemy combatants,” who in those days, if they were captured, were most often summarily shot), trying to get them released from the brig in the middle of a shooting war.  Baker:

As with anything you give away, the demand for pro bono lawyering outstrips the supply. So lawyers have to use other criteria to allocate their pro bono services. If you’ve got a wide choice of pro bono cases, it’s only natural to pick cases that make you feel good about yourself, that enhance your prestige in your social circles, and that help the firm recruit law students. You’ll also favor cases that allow you to demonstrate competence by winning against the odds in a high-profile matter. In short, you’ll take cases that make you and your firm look good.

It seems to me that this is exactly Liz Cheney’s point. These are lawyers who represented avowed enemies of the United States – for free – because they thought it made them look good. If you don’t share that view, she’s saying, maybe you don’t share their other views about how the justice system should handle terrorism cases.

Cutting against this analysis is the argument that lawyers often defend even unpopular and unlikeable clients in order to preserve an important principle.  In that well-worn narrative, lawyers bravely stand against the tide of popular opinion to vindicate a principle, not to help a particular client.  But does that trope really apply to these representations? How do you separate client from principle when the principle at issue is how we should treat a few hundred people held at Guantanamo? For all the grand talk on both sides, it seems to me that’s pretty much what’s at stake in the detainee cases. It’s not like a fourth amendment case, or a municipal employee free-speech case, where the principle you’re defending will affect tens of thousands of unknown litigants in a wide variety of future contexts. The precedents set in these cases will, as a practical matter, apply almost exclusively in a swatch of Cuban scrubland ten miles square.

But put that aside.  I don’t doubt that many of the pro bono lawyers for the detainees saw themselves in exactly that light — they intended to vindicate principles they valued, and not to give comfort to the defendants.  We can still learn a lot about a lawyer who takes a case on that basis.  Almost by definition, issues that split the Supreme Court can be argued either way. But these lawyers felt so strongly about these arguable principles that they sacrificed paying work and instead went to work without charge for people they loathed – just to turn their principles into law. Doesn’t this tell us something about the strength and content of their principles? And isn’t it fair for Liz Cheney to ask whether the rest of the country shares those principles?

As a lawyer, I certainly think so.

Background: Under Maryland v. Buie, 494 U.S. 325 (1990), police who arrest a suspect in the suspect’s home are entitled to, even though they do not have a valid search warrant, conduct a protective sweep of the adjoining areas of the home, where an accomplice could potentially be lying in wait, for the purposes of officer safety.  Any evidence that they discover in the course of such a sweep can be seized under the ”plain view“ doctrine (i.e., police can seize items that they immediately recognize as evidence or contraband in an area where they’re lawfully present, even though that area is otherwise protected by the Fourth Amendment and police would normally require a warrant to search it). 

In United States v. Lemus, 582 F.3d 958 (9th Cir 2009), a panel of the U.S. Ninth Circuit Court of Appeals, relying on Buie, upheld a warrantless search of a suspect’s home although the suspect was arrested in the doorway of his residence with the police never having entered the premises prior to the search.  A judge of the court sua sponte called for rehearing of the case en banc, but rehearing en banc was denied.

Read as Judge Alex Kozinski, dissenting from denial of rehearing en banc, absolutely (and righteously) flenses the court.

Wikipedia describes projection bias, or psychological projection, as “the unconscious act of denial of a person’s own attributes, thoughts, and emotions, which are then ascribed to the outside world, such as to the weather, the government, a tool, or to other people. Thus, it involves imagining or projecting that others have those feelings.”

I’m put in mind of this by two things: a letter to the San Jose Mercury News addressing the recent Open Carry brouhaha in the Bay Area, and a Brian Doherty article at Reason which contains some choice quotes from a Brady Campaign lawyer.

Let’s take the letter, first, from one Laura Knapp of San Carlos:

Eric Kistler (Letters, Feb. 16) believes that Caroline Rackowski’s concern about meeting gun-toting patrons at Starbucks is illogical and shows her ignorance regarding firearms. I’m afraid I must side with Rackowski and inform Kistler that most of us will have the same reaction. What would be illogical is to assume that when you see a gun in a public place that it is unloaded and poses no threat from a so-called “law-abiding citizen.” It is Kistler who is ignorant about firearms if he believes that people will not call the police on him every time he walks near their children in a public place with a gun in plain view, because that’s the way law-abiding citizens deal with potential threats to their safety. Peet’s, anyone?

Consider this in light of the frequent allegations from gun controllers that gun owners live in unreasoning fear of crime and thus fixate unhealthily on firearms: here’s Ms. Knapp, who evidently regards an ordinary citizen, minding his own business as he peaceably goes about his day, as a threat against her or her children merely because he has a gun — unloaded, no less! — on his hip.  Her neighbor, who Ms. Knapp likely won’t give a second thought to as he climbs into his car, becomes a menace sufficient to warrant calling the police because of the mere presence of an inanimate chunk of polymer and steel.

And we’re the frightened ones?  We’re the ones who fetishize guns?

Now, the Doherty article points to a Washington Post profile of Tom Palmer, one of the original plaintiffs in the Heller case, and who is now suing the District of Columbia to vindicate his right to carry firearms in public.  Enter the Brady Campaign’s lawyer:

Jonathan E. Lowy, a lawyer with the Brady Center to Prevent Gun Violence, says he thinks the case, pending in U.S. District Court, is open and shut.

“To force the general public to be exposed to the risk of loaded guns when they are out with their family in public areas is outrageous and has absolutely nothing to do with the right to defend the home,” he says.

The lawyer’s rebuttal to Mr. Lowry is that what he says is factually correct but entirely irrelevant.  Carrying a loaded weapon around in public does, indeed, have nothing to do with the “right to defend the home.”  But the Second Amendment, according to Heller, does not protect a “right to defend the home”.  Rather, it protects an individual right to keep and bear arms, which the District’s categorical ban on firearms ownership infringed upon at least with respect to a handgun kept in the home for personal defense.  The Heller holding didn’t go further than that because the litigants didn’t challenge the entirety of D.C.’s regulatory regime, just the portion that prohibited them from owning guns in their homes.

Also, bear in mind that Washington, D.C. has, arguably, more armed law enforcement officers per capita than any other municipality in the nation.  Between the Secret Service, the Capitol Police, the DCPD, the FBI, the ATF, the Bureau of Diplomatic Security, and the dozens of other alphabet-soup bureaucracies with armed federal agents operating in the District, the general public is constantly exposed to the “risk” of loaded guns when they’re out with their families in public areas.

Something more than mere hypocrisy is behind this.  Talk to just about any gun control ideologue for any length of time, and you’ll meet someone who believes that he, personally, is not morally or emotionally equipped to comport himself appropriately while armed.  “I would not trust myself with a gun in a pressure situation,” you will almost invariably hear him say.  And because every gun control ideologue is also the most rational, sensible, and well-adjusted person he knows, he has convinced himself that everyone else in the world is also a morally and emotionally retarded jackass with poor impulse control, who thus cannot be trusted with a gun.

However, his experience with armed law enforcement officers has been that they’re not morally and emotionally retarded jackasses with poor impulse control, and that they can be trusted with guns.  In order to square this circle, he’s forced to conclude that there’s some secret component of law enforcement training that mystically alters mere mortals so as to cure them of their jackassery and convert them into righteous and responsible professionals, if not saints.

Which, as commenter Seerak quite accurately points out, is an expression of the wider premise implicit in the arguments of all regulationists and interventionists: that the same human beings who are too stupid to take care of themselves and live a virtuous life suddenly become paragons of rectitude and rationality when endowed with government power.

“First, the view that the government should censor the speech of people who do business in the form of corporations is rooted in the idea that free speech is an instrumental good that serves ‘democracy.’ That is the Progressivist interpretation that sees ‘democracy’ as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote ‘democracy.’ This is the opposite of the view of the Constitution’s authors: they believed that the fundamental constitutional value was liberty, and that democracy existed only to serve liberty. That’s why the first sentence of the Constitution declares that liberty is a ‘Blessing,’ and why the Constitution goes on to impose serious limits on democracy. In their view, speech is protected because individuals have the right to express themselves–not because speech has a relationship to democracy. Obviously they understood that free expression was good for democratic decision-making, but their primary concern was protecting the rights of individuals, not with preserving some vague conception of ‘democratic society.’”

“The central contradiction in modern liberal politics is that Otto von Bismarck’s entitlement state for cradle to grave financial security is no longer affordable. The model has reached the limit of its ability to tax private income and still allow enough economic growth to finance its transfer payments.”