Elementary school shooting gun control pissing contest

[The Minsky Moment]

I tend to think it does, and think the Roberts court actually got Heller "right." If you read the Heller decision, despite how vilified the Roberts court is by the left (and in many cases with justification) Scalia actually makes a sound argument.

Scalia's reading  is not implausible but it begs quite a number iof question

First, the whole notion of whether the Second Amendment announced an individual or "collective right" IMO is a red herring.  Of course we are talking about individual rights.  The question is what is the scope and boundaries of the right in question.

Scalia's answer  goes like this:
(1) the prefatory clause has no limiting effect, based on a law review article by Eugene Volokh that noted the existence of prefatory clauses in four state constitition freedom of speech/press provisions.
(2) a contemporary analysis of use of the term "keep" arms reveals few examples of usage but in the absence of evidence that such usage was limited to militia weapons, Scalia presumes there is no such limitation
(3) although the term "bear arms" was often used in 18th century texts to refer specifically to usage in the military context, Scalia believes it should be interpreted beyond that context principally on the strength of the authority of state constitutions that included 2nd amendment analogues referrring to the "defence of self and state"
(4) On the weight of this apparently ambiguous textual evidence, Scalia concludes that the 2nd amendment should be read as "guaranteeing the individual right to possess and carry weapons in case of confrontation" -- even though none of the texts he relies on uses that term or anything close to it.
(5) He then limits the scope of the right by endorsing the Miller opinion to limit the kinds of weapons to which the 2nd amendment applies; except that whereas Miller limits the right to "ordinary military equipment", Scalia excises the word "military" and rewrites the protection to reflect those arms "typically possessed by law abiding citizens".

There are all sorts of problems here.  First, the analysis of textual usage as often is the case, gives ambiguous results that Scalia has to spon to make work for his case.  For example, Scalia points to pre-Bill of Rights state constitutions that contain provisions stating "That the people have a right to bear arms for the defence of themselves and the state" as his principal evidence that the term "bear arms" refers to personal defence as well as in the context of militia service.  But there is a very obvious problem with this argument - the Federal version of the amendment, written later than these examples, omitted any language about "defence of themselves."  Second, Scalia's textual analysis that the Second Amendment protects a right to carry weapons in the case of "confrontation" contradicts Miller as a sawed-off shotgun is in fact a very useful weapon for confrontation purposes.  Miller is also embarassing because on its face it raises the "M-16 problem" by relying on a distinction between "ordinary military equipment" and "unusual" equipment, a distinction which Scalia gives lip service to before abandoning it for his "weapons typically possessed by law abiding citizens" standard.  That definition suffers from obvious circularity problems - that which is protected is that which people "typically" have. 

It basically comes down to a lot of legal dancing to basically endorse the status quo as it presently exists in a majority of states (as against a more restrictive minority).

Of course, the entirety hinges on making the preamble into surplusage.  That is a very odd move to make in interpreting the Constitution to say the least.  As legislative and legal documents go, the Constitution is a model of conciseness.  The usual interpretive canon that operates is to give meaning to every single word - as Scalia universally does both in Heller and in other contexts.  And ignoring the preamble is particularly questionable because the 2nd amendment stands out as alone among all the Bill of Rights in having such a preamble.  Scalia's justification for those move is weak IMO: he cites a law review article for the proposition that "other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose."  No other support is cited for this concept.  The article in question relates a few free press (and similar) clauses in some state constitutions that have preambles like: "The liberty of the press is essential to the security of freedom in a state, [therefore] [operative clause]"  There is nothing to indicate that these clauses were viewed as meaningless or without effect.

Despite all these problems, Scalia's opinion can be justified in a different way: as a reasoned exercise in results-oriented jurisprudence.  The DC ban seemed unreasonable.  At the same time, pragmatic judgment suggests it would not be wise to eliminate the possibility of regulating firearms in some meaningful way.  Scalia's opinion gets that result.  But to the extent it does involve results-oriented reasoning, then it can be fairly criticized on policy grounds for not reaching 100% the right result.

[MadImmortalMan]

What do you want to bet the mom was a Gold Bug?

Yeah, pile it on!

I bet she was in the teacher's union too!!11

[Admiral Yi]

Joan:

The issue I have with pro-control arguments about the preamble, is that it requires a large number of unsupported logical leaps to arrive at the conclusion that the writers wanted people to have the right to bear arms only to the extent that it would result in a higher quality militia.  If that were the intention, there are obvious and easy ways it could have been written.

[The Minsky Moment]

No no no , you got it all wrong - what he's saying is that God deliberately refused to protect these little kids from the homeschooled nut (with the survivalist mom's arsenal) because the victim kids weren't godly enough. If they'd been properly forced to pray in school, God would never have allowed this. But little kids not forced to pray? God turns his back on them.

And then there is this gem:
"And so I sometimes when people say, 'Why did God let it happen?' you know, God wasn't armed. He didn't go to the school."

Right.
If only someone had enrolled God in the elementary school and given Him a conceal carry license.  With a crack shot like that on the job, no worries.

[The Minsky Moment]

Joan:

The issue I have with pro-control arguments about the preamble, is that it requires a large number of unsupported logical leaps to arrive at the conclusion that the writers wanted people to have the right to bear arms only to the extent that it would result in a higher quality militia.  If that were the intention, there are obvious and easy ways it could have been written.

That's not the only way to read it.  But what is clear is that there must be some logicaly connection to the scope of the right (and its limitation on government power) and the clearly stated purpose. 

There isn't a clear answer here but that doesn't mean the right answer is to pretend as though the language isn't there and pay no attention to it.  In any other context, Scalia would have short shrift for such a blatant anti-textual argument.

[Admiral Yi]

That's not the only way to read it.  But what is clear is that there must be some logicaly connection to the scope of the right (and its limitation on government power) and the clearly stated purpose. 

Why must there be?  The only other preamble to a right is pure puffery.

[MadImmortalMan]

We ascribe weight to preambles or non-operative clauses all the time. Hell, that whole "general welfare" thing is in the preamble to the whole document. Should we not?

[Admiral Yi]

We ascribe weight to preambles or non-operative clauses all the time. Hell, that whole "general welfare" thing is in the preamble to the whole document. Should we not?

Can you give me an example of a preamble influencing the meaning?

[The Minsky Moment]

That's not the only way to read it.  But what is clear is that there must be some logicaly connection to the scope of the right (and its limitation on government power) and the clearly stated purpose. 

Why must there be?  The only other preamble to a right is pure puffery.

What do you mean? No other right in the Constitution has a similar structure.

[Admiral Yi]

What do you mean? No other right in the Constitution has a similar structure.

Doesn't  the first?  Sometimes I'm really at a disadvantage because I grew up overseas. 

[MadImmortalMan]

We ascribe weight to preambles or non-operative clauses all the time. Hell, that whole "general welfare" thing is in the preamble to the whole document. Should we not?

Can you give me an example of a preamble influencing the meaning?

Not really--I mean don't people generally assume the gov't has the power to look after the general welfare, even though those words appear in the preamble and not in an otherwise operative clause?

[The Minsky Moment]

Doesn't  the first?  Sometimes I'm really at a disadvantage because I grew up overseas. 

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances"

No textual limitation.

[MadImmortalMan]

http://gawker.com/5968818/i-am-adam-lanzas-mother

I Am Adam Lanza's Mother
Liza Long

Three days before 20-year-old Adam Lanza killed his mother, then opened fire on a classroom full of Connecticut kindergartners, my 13-year-old son Michael (name changed) missed his bus because he was wearing the wrong color pants.

"I can wear these pants," he said, his tone increasingly belligerent, the black-hole pupils of his eyes swallowing the blue irises.

"They are navy blue," I told him. "Your school's dress code says black or khaki pants only."

"They told me I could wear these," he insisted. "You're a stupid bitch. I can wear whatever pants I want to. This is America. I have rights!"

"You can't wear whatever pants you want to," I said, my tone affable, reasonable. "And you definitely cannot call me a stupid bitch. You're grounded from electronics for the rest of the day. Now get in the car, and I will take you to school."

I live with a son who is mentally ill. I love my son. But he terrifies me.

A few weeks ago, Michael pulled a knife and threatened to kill me and then himself after I asked him to return his overdue library books. His 7- and 9-year-old siblings knew the safety plan—they ran to the car and locked the doors before I even asked them to. I managed to get the knife from Michael, then methodically collected all the sharp objects in the house into a single Tupperware container that now travels with me. Through it all, he continued to scream insults at me and threaten to kill or hurt me.

That conflict ended with three burly police officers and a paramedic wrestling my son onto a gurney for an expensive ambulance ride to the local emergency room. The mental hospital didn't have any beds that day, and Michael calmed down nicely in the ER, so they sent us home with a prescription for Zyprexa and a follow-up visit with a local pediatric psychiatrist.

We still don't know what's wrong with Michael. Autism spectrum, ADHD, Oppositional Defiant or Intermittent Explosive Disorder have all been tossed around at various meetings with probation officers and social workers and counselors and teachers and school administrators. He's been on a slew of antipsychotic and mood-altering pharmaceuticals, a Russian novel of behavioral plans. Nothing seems to work.

At the start of seventh grade, Michael was accepted to an accelerated program for highly gifted math and science students. His IQ is off the charts. When he's in a good mood, he will gladly bend your ear on subjects ranging from Greek mythology to the differences between Einsteinian and Newtonian physics to Doctor Who. He's in a good mood most of the time. But when he's not, watch out. And it's impossible to predict what will set him off.

Several weeks into his new junior high school, Michael began exhibiting increasingly odd and threatening behaviors at school. We decided to transfer him to the district's most restrictive behavioral program, a contained school environment where children who can't function in normal classrooms can access their right to free public babysitting from 7:30 to 1:50 Monday through Friday until they turn 18.

The morning of the pants incident, Michael continued to argue with me on the drive. He would occasionally apologize and seem remorseful. Right before we turned into his school parking lot, he said, "Look, Mom, I'm really sorry. Can I have video games back today?"

"No way," I told him. "You cannot act the way you acted this morning and think you can get your electronic privileges back that quickly."

His face turned cold, and his eyes were full of calculated rage. "Then I'm going to kill myself," he said. "I'm going to jump out of this car right now and kill myself."

That was it. After the knife incident, I told him that if he ever said those words again, I would take him straight to the mental hospital, no ifs, ands, or buts. I did not respond, except to pull the car into the opposite lane, turning left instead of right.

"Where are you taking me?" he said, suddenly worried. "Where are we going?"

"You know where we are going," I replied.

"No! You can't do that to me! You're sending me to hell! You're sending me straight to hell!"

I pulled up in front of the hospital, frantically waving for one of the clinicians who happened to be standing outside. "Call the police," I said. "Hurry."

Michael was in a full-blown fit by then, screaming and hitting. I hugged him close so he couldn't escape from the car. He bit me several times and repeatedly jabbed his elbows into my rib cage. I'm still stronger than he is, but I won't be for much longer.

The police came quickly and carried my son screaming and kicking into the bowels of the hospital. I started to shake, and tears filled my eyes as I filled out the paperwork—"Were there any difficulties with... at what age did your child... were there any problems with.. has your child ever experienced.. does your child have..."

At least we have health insurance now. I recently accepted a position with a local college, giving up my freelance career because when you have a kid like this, you need benefits. You'll do anything for benefits. No individual insurance plan will cover this kind of thing.

For days, my son insisted that I was lying—that I made the whole thing up so that I could get rid of him. The first day, when I called to check up on him, he said, "I hate you. And I'm going to get my revenge as soon as I get out of here."

By day three, he was my calm, sweet boy again, all apologies and promises to get better. I've heard those promises for years. I don't believe them anymore.

On the intake form, under the question, "What are your expectations for treatment?" I wrote, "I need help."

And I do. This problem is too big for me to handle on my own. Sometimes there are no good options. So you just pray for grace and trust that in hindsight, it will all make sense.

I am sharing this story because I am Adam Lanza's mother. I am Dylan Klebold's and Eric Harris's mother. I am Jason Holmes's mother. I am Jared Loughner's mother. I am Seung-Hui Cho's mother. And these boys—and their mothers—need help. In the wake of another horrific national tragedy, it's easy to talk about guns. But it's time to talk about mental illness.

According to Mother Jones, since 1982, 61 mass murders involving firearms have occurred throughout the country. Of these, 43 of the killers were white males, and only one was a woman. Mother Jones focused on whether the killers obtained their guns legally (most did). But this highly visible sign of mental illness should lead us to consider how many people in the U.S. live in fear, like I do.

When I asked my son's social worker about my options, he said that the only thing I could do was to get Michael charged with a crime. "If he's back in the system, they'll create a paper trail," he said. "That's the only way you're ever going to get anything done. No one will pay attention to you unless you've got charges."

I don't believe my son belongs in jail. The chaotic environment exacerbates Michael's sensitivity to sensory stimuli and doesn't deal with the underlying pathology. But it seems like the United States is using prison as the solution of choice for mentally ill people. According to Human Rights Watch, the number of mentally ill inmates in U.S. prisons quadrupled from 2000 to 2006, and it continues to rise—in fact, the rate of inmate mental illness is five times greater (56 percent) than in the non-incarcerated population.

With state-run treatment centers and hospitals shuttered, prison is now the last resort for the mentally ill—Rikers Island, the LA County Jail and Cook County Jail in Illinois housed the nation's largest treatment centers in 2011.

No one wants to send a 13-year-old genius who loves Harry Potter and his snuggle animal collection to jail. But our society, with its stigma on mental illness and its broken healthcare system, does not provide us with other options. Then another tortured soul shoots up a fast food restaurant. A mall. A kindergarten classroom. And we wring our hands and say, "Something must be done."

I agree that something must be done. It's time for a meaningful, nation-wide conversation about mental health. That's the only way our nation can ever truly heal.

God help me. God help Michael. God help us all.

Why aren't the girls pulling their weight in the mass murder department anyway? I think the thing about boys being more likely to be outliers is correct. Also, damn. Maybe we're looking at the wrong things here.

[11B4V]

WTF is that. Not going to waste a couple minutes of life reading that.

[garbon]

Chilling article. I can't help but wonder though if her position is being filtered through the eyes of a mother. She doesn't want her son charged with a crime. but does think that if he continues on he will be a killer. Kind of sounds like she's holding out hope that her son can be "cured."