Voting Process, Not Substance
Terry H. Schwadron
June 17, 2024
The latest rash of decisions coming out of the Supreme Court and the House are heavy on procedure and image, and light on concern for public safety.
We might ready ourselves for another on presidential immunity that seeks to find a legalistic way to knit a cohesive theory but avoids the main substance.
Only our currently, politically jiggered Supreme Court justices could re-conceive a question about public safety and guns to be one of the administrative power of federal agencies rather than about whether a ban on “bump stocks” to turn a semi-automatic assault rifle into what is in effect an automated continuous firing machine is a public danger.
Last week, the same court decided to duck the substantive questions raised by challenges to abortion medication distributed through the mail for a legally defensible, unanimous decision that the litigants — a hastily assembled group of anti-abortion medical personnel and backers — lacked “standing” to bring the legal action in the first case. Two lower courts had pushed that issue to the side. Neither side of the abortion debate could be happy with a ruling that avoided both health and safety allegations as set by the Federal Drug Administration or the inherent morality issues. At best, it was a half-hearted endorsement, however temporary, that the drugs must not be unsafe.
In Congress, House Republicans patted themselves on the back for passing a contentious version of defense spending that took time to carve out monies for reimbursement of funds spent on military abortions or on efforts to address transgender or diversity and inclusion programs in the military. At the same time, the very same congressmen complain about a Navy with too few ships and military aircraft programs that are not operational. Under what interpretation does this kind of contorted effort spell concern about public safety.
We could go on. Health programs that go unfunded, non-stop critiques for public health, cutting public education money, and refusal to work with Democrats to pass a comprehensive immigration program or to address high prices with any intelligible program.
Politics of the moment demands only wins, and the scoring of points against the opponent. Procedural workarounds — all subject to being overturned by incoming administrations, have substituted for substantive talks about what to do. The common factor: None of it seems destined to help provide for public health, safety and welfare.
The Supreme Court and Guns
These concerns overlapped in Friday’s decision to overturn a Donald Trump-ordered ban on the sale of bump stocks, just about the weakest level of gun control conceivable. The justices split 6–3 along ideological lines, but the reasoning for the majority specified that it was no referendum on guns or public safety.
Instead, the majority decision by Clarence Thomas addressed the perceived overstep of the Bureau of Alcohol, Tobacco, Firearms, and Explosives to interpret the 1934 (amended in 1968) law after a 2017 massacre in Las Vegas using semi-auto weapons that used bump stocks to fire rather continuously. Some 60 people were killed in 10 minutes from 490 yards away, the deadliest single-gunman mass shooting in U.S. history.
The law bars ownership of machine guns that fire “automatically” by “a single function of the trigger.” What bump stocks do, we learned anew, allows civilians to convert AR-15–style rifles into automatic weapons that can fire at a rate of 400–800 rounds per minute. When attached, a bump stock allows a gunman to maintain pressure on the trigger, unleashing continuous fire without repeated trigger pulls. As Justice Sonia Sotomayor said in dissent, that sounds an awful lot like banned machine guns, the whole point here.
While the oral arguments and the opinion reflected technical information about whether the trigger is pulled or bumped, the result is the same: Mass shooting and death.
While the court arguments may be procedural rather than substantive, the result is the same: No Supreme concern for public safety.
Whose Job Is It?
Indeed, both Justices Samual Alito and Neal Gorsuch said the remedy is obvious, that Congress should specify the status of bump stocks rather than courts or a federal agency.
But we all know that Congress is hopelessly gridlocked and can’t pass anything in a timely or intelligent manner. Set aside the legal argumentation here in Garland v. Cargill, as this case is known.
The real question here is whether we have so proceduralized all legal dealings to the point where the government, regardless of branch, has proved itself once again unable to recognize and address a public safety concern.
No single law, order or judicial opinion tied to a specific response can anticipate all the possible enforcement situations that may arise. Thus, we have federal agencies hiring subject experts who know something about environment, or drugs, or workplace safety, or weather dangers who can act given the general guidelines of federal and state law. That structure is what the Supreme Court and Republican followers of Donald Trump seem to have adopted as a uniform target — with public safety as the sacrificial lamb.
Perhaps the Supreme Court has decided that it understands firearms better than the ATF, just as the lower court decision and appeal court decision in the abortion medication case suggested that courts are better at reviewing clinical drug trial information than the FDA. For sure, Trump himself proclaims regularly that he knows military matters better than Pentagon generals or U.S. intelligence agencies, and that he understands immigration, health coverage and laws governing falsification of business records, campaign financing, the laws governing possession of classified intelligence better than any of the agencies enforcing those rules.
It is a process in which in pursuit of some theoretical re-constructing of federal-state-agency enforcement we are losing the sense of justice and of problem-solving.
So long as we do, we should expect more mass shooting events, along with more denial of emergency non-abortion medical attention and more questions about the effectiveness of our military preparedness.
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