Gun Safety Reforms Could Save Lives

 President Biden spoke for most Americans last week [June 2] when he pleaded with Congress to pass a short list of specific gun safety proposals to try to prevent mass shootings and to limit the number of deaths from any such episodes. Predictably, however, Biden’s plea fell on deaf ears as Republicans in Congress and gun rights advocacy groups warned that he was tampering with the sacrosanct Second Amendment and that the proposed reforms were likely to be ineffective in any event.

The New York Times answered those doubts with a thoroughly documented analysis published three days later (June 5) under this headline: “4 Laws Might Have Saved Lives in 35 Mass Shootings.” Biden’s most specific proposal was to urge Congress to re-institute the federal ban on assault weapons that Congress enacted in 1994 and that Congress allowed to lapse in 2004. Weapons covered by the ban were used in nearly one-third of the 35 mass shootings since the Columbine massacre in 1999, according to the Times’ compilation, including the most recent of the tragedies in Uvalde, Texas.

The Times’ analysis also concluded that three other measures -- universal background checks, stronger gun storage laws, and a ban on high-capacity magazines -- could have changed the course of at least 35 mass shootings that killed, in all, 466 people.

Biden also called in his speech for banning high-capacity magazines, which were used in twenty of the thirty-five mass shootings that the Times analyzed, including the mass shooting at a Buffalo, N.Y., grocery store on May 14 and the Uvalde episode on May 24.

Biden also called for raising the minimum age to purchase assault weapons if Congress declined to impose a ban. The Uvalde shooter, Salvador Ramos, marked his eighteenth birthday by purchasing the AR15 that he used to kill nineteen youngsters and two teachers. Texas’s relatively lax gun laws set the minimum age to purchase an assault rifle at eighteen. Several other states set the minimum age at twenty-one. With the Uvalde episode fresh in mind, the New York legislature raised the minimum age to purchase an assault rifle in the Empire State last week to twenty-one.

In addition to the Uvalde shooting, the Times identified three other episodes perpetrated by attackers who purchased their weapons before the age of 21: the February 2018 shooting at Parkland High School in Florida; the April 2021 shooting at the FedEx Warehouse in Indianapolis; and the May 2022 shooting at the Buffalo grocery store.

Raising the minimum age for purchase of firearms has gained support from experts who study gun violence and developmental psychology. Federal law currently limits the ability of juveniles under age 21 to purchase handguns but allows those age 18 or over to purchase so-called assault rifles. The House of Representatives is expected to pass a Democratic-backed measure this week [week of June 6] to raise the minimum gun-purchasing age to 21 for more weapons, but not all.

A RAND study published in April 2020 noted that firearm homicides and violent crimes disproportionately involve individuals under age 21, both as perpetrators and as victims. On that basis, the study concluded that minimum age laws could, in theory, reduce rates of firearm crime perpetrated by juveniles. Psychologists who study juvenile offenders emphasize that young people develop impulse control only slowly after age eighteen. The RAND study also noted that nearly half of suicides among people aged 16 to 21 involved the use of a firearm.

The Times’ analysis, written by Quoctrung Bui, Alicia Parlapiano, and Margot Sanger-Katz, also concluded that extending background checks to cover private sales could help reduce mass shootings. The Times counted four attackers who purchased a weapon from a private seller in a state where background checks were not required for such sales. The newspaper noted that the House has passed a bill to make background checks more universal and give investigators more time to complete a check.

The newspaper also called for encouraging safe gun storage and punishing people who fail to secure guns from children and criminals. The newspaper counted seven mass shootings perpetrated by attackers who stole a gun, including as one example the May 2018 shooting at a high school in Santa Fe, Texas, that left ten people killed and thirteen others injured.

Biden squarely challenged Senate Republicans to support what he described as sensible steps to reduce gun violence by noting that no gun safety reforms can pass the 50-50 Senate without support from at least ten Republicans. But as long as the Republican Party remains beholden to the National Rifle Association, the needed votes are unlikely to materialize.

Worse than the obstructionism from Senate Republicans is the danger that the Republican-majority Supreme Court is about to create a presumptive constitutional right to carry firearms in public by striking down a New York law that requires an applicant for a gun permit to demonstrate good cause for needing to be armed in public. The case, New York State Rifle and Pistol Association v. Bruen was argued on November 3, 2021; and a majority of the justices appeared to be skeptical of the New York law.

The Court could announce its decision in the New York gun case any day now, presumably before the end of the month. The conservative justices, it appears, are ready to take major steps to reshape American law to suit their political agendas – judging by the draft decision in the Mississippi abortion case. They may decide to aim for the fences in the gun case as well.  

Thomas's Affront to Sixth Amendment

     Ten years ago, the Supreme Court gave a little bit of a break to state prisoners who claim to have been victims of unconstitutionally ineffective lawyering at trial or in subsequent legal appeals. The Court’s 7-2 ruling in Martinez v. Ryan (2012), issued long before Republicans succeeded in packing the current Court with conservative ideologues, held that a state prisoner could get a federal court hearing on a belatedly filed claim that he had been denied his Sixth Amendment right to counsel because of “ineffective assistance” from the lawyer appointed to handle his postconviction challenge.

            Two justices dissented from that decision, Antonin Scalia and his ideological soulmate Clarence Thomas. Five of the justices in the majority are still on the Court today: Roberts, Alito, Breyer, Sotomayor, and Kagan. Two of the others – Kennedy and Ginsburg – have been replaced by Trump-appointed conservatives, Brett Kavanaugh and Amy Coney Barrett.

            Now, with a radically different ideological alignment, the Court has reduced the earlier decision to a hollow shell in a ruling issued last week [May 23] that blocked two Arizona death row prisoners from getting the chance to present their “ineffective assistance of counsel” (IAC) claims to a federal habeas corpus court. The 6-3 decision in Shinn v. Martinez Ramirez was assigned to Thomas despite his dissent in the earlier, foundational case; this new ruling cuts short the opportunity for wrongfully convicted criminal defendants to get their legal challenges fully considered by federal courts.

            The two prisoners in the consolidated cases, David Martinez Ramirez and Barry Lee Jones, were convicted of capital murders and sentenced to death in trials in 1989 and 1994 marked by woefully inadequate lawyering from their defense attorneys. Ramirez’s lawyer failed to present evidence that could have undermined the prosecution’s theory that Ramirez had inflicted the injuries that proved fatal to his girlfriend’s infant daughter.

            Jones’s lawyer failed to present evidence of Jones’s social and psychological history, including evidence of intellectual disability, that could have been considered as mitigating evidence in the capital sentencing hearing.  

            Ramirez and Jones were provided new lawyers to file petitions for post-conviction relief in Arizona courts, who – as it happened – turned out to be ineffective as well. With their state cases defunct, both men filed habeas corpus petitions in federal court in Arizona seeking to reverse the convictions or the death sentences because they had been denied their Sixth Amendment right to counsel in the state court criminal proceedings.

            The federal court judges in the two cases declined to allow them to present evidence to support their IAC claims. On appeal, however, two separate panels of the U.S. Court of Appeals for the Ninth Circuit held, in light of Martinez v. Ryan, that Ramirez and Jones were both entitled to full hearings at the district court level. The state’s director of corrections, David Shinn, asked the Supreme Court to review that decision and block Ramirez and Jones from any further pursuit of their Sixth Amendment rights.

            Writing for the six Republican-appointed conservatives in the Supreme Court decision, Thomas stressed the undisputed truism that federal habeas corpus, a long-recognized remedy for constitutional violations,  is not a substitute for the ordinary appellate process in state courts. Thomas went on, however, to describe habeas corpus as an “affront” to the states and their historic primacy for criminal law enforcement within their borders.

In Thomas’s telling, the earlier decision, Martinez v. Ryan, was “unusually explicit about the narrowness of the decision.” He reasoned that the earlier ruling did not allow a full hearing in a federal habeas corpus case just because the petitioner’s postconviction counsel fell short of effective representation. “Permitting federal factfinding would encourage yet more federal litigation of defaulted claims,” Thomas added as he wrapped up his twenty-two page opinion.

            Viewed from a Bill of Rights perspective, the new decision is indeed an affront, but an affront to the Sixth Amendment not to the states. The Framers viewed the right to counsel as an essential safeguard for individual liberties. Two centuries later, the Sixth Amendment has been held applicable to state courts, just as to federal courts, and has also been repeatedly interpreted to require minimally diligent and competent representation by counsel for the accused. Thomas seemed all but oblivious to those precedents, as he ripped up Martinez to shreds. 

            Writing in dissent for the three Democratic-appointed justices, Sotomayor acknowledged that the majority had not specifically overruled the earlier decision, but she argued that the majority had mad the “perverse” judgment not to apply the principle to the analogous situation presented by the two new cases. The majority’s analysis, she argued, “improperly reconfigures the balance Congress struck in [federal habeas corpus law] between state interests and individual constitutional rights.” 

The failure to safeguard the federal courts’ role in policing state criminal matters, Sotomayor wrote in conclusion, made “illusory the protections of the Sixth Amendment.” Sotomayor noted that ineffective-assistance claims typically require extensive factual development beyond the state court record in the trial and direct appeals. Sotomayor argued further that the new ruling would “doom many meritorious trial-ineffectiveness claims that satisfy Martinez.” Breyer and Kagan joined her opinion.

In Abortion Case, Trashing Stevens' Legacy

            All nine of the current Supreme Court justices gathered in the Great Hall on Monday (May 2) to join in a memorial service for the late justice John Paul Stevens, who graced the Supreme Court bench for thirty-five years with unfailing courtesy and judicious moderation until his retirement in 2010.

            The hour-long succession of tributes included one from Stevens’ lawyer grand-daughter, Hannah Mullen, who fondly recalled Stevens as a devoted grandfather and a judicial moderate who was neither liberal nor conservative but simply impartial.

            Unbeknownst to those who viewed the live-streamed ceremony, five of the justices in attendance had voted three months earlier to overrule the landmark abortion rights decision, Roe v. Wade (1973) in a case argued in December, Dobbs v. Jackson Women’s Health Organization. The state of Mississippi brought the case to the Court with the specific goal of scrapping the 49-year-old precedent and eliminating for American women the repeatedly reaffirmed right to terminate an unwanted pregnancy.

            Stevens was one of the fourteen justices who had served since 1973 to have voted to reaffirm Roe v. Wade in the face of concerted political and legal campaigns waged by so-called “pro-life” groups to overturn the decision. As the memorial service proceeded, the Court’s overhead camera showed recognizable images of the current justices seated in the front rows, including Justice Samuel A. Alito Jr., author of the 67-page draft opinion in Dobbs circulated from his chambers in early February with apparent support from four of the other current justices.

            From all appearances, Alito seemed to listen attentively and respectfully as several of Stevens’ former law clerks sang his praises as a careful, case-by-case jurist. Also spotted during the memorial was the former justice, Anthony M. Kennedy, who provided a critical vote to reaffirm Roe v. Wade in the later case Planned Parenthood v. Casey (1992). Kennedy retired in 2018 to allow President Donald J. Trump to appoint a Republican judge in his place to solidify the Court’s conservative majority.

            By nightfall on Monday, the Court was rocked by an extraordinary breach of the Court’s all-but-inviolate secrecy of deliberations. An unidentified person “familiar with the Court’s proceedings” – possibly a law clerk-- leaked to the daily newspaper, Politico, the complete text of Alito’s, 67-page draft opinion. The newspaper published the text in the edition posted on-line that night. The scoop made page-one headlines in major newspapers the next morning: the Washington Post headlined the lead story, “Supreme Court Ready to Reverse Roe v. Wade.”

            Politico’s reporters Josh Gerstein and  Alexander Ward aptly described Alito’s draft opinion in their story as “a full-throated, unflinching repudiation of the 1973 decision” and quoted Alito’s description of the decision as “egregiously wrong from the start.” They reported that Alito had tentative votes for his opinion from four of his fellow Republican-appointed conservatives: Thomas and Trump’s three justices, Gorsuch, Kavanaugh, and Barrett. Major newspapers followed the next day in reporting the same line-up, with Chief Justice Roberts conspicuously not on board.

Trump, it needs to be recalled, promised during his 2016 campaign and his one-term presidency to appoint justices who would vote to overrule Roe v. Wade. In their confirmation hearings, however, Gorsuch, Kavanaugh, and Barrett all described Roe v. Wade as settled precedent and disclaimed any interest in reversing the decision. Hardly anyone was fooled. Republican senators all voted in lockstep to confirm all three by narrow, party-line votes; outnumbered Democrats voted against all three.

Alito’s tone in the draft opinion was immoderate to the max, with no trace of Stevens’ admired moderation and judicial modesty. Alito made much of the oft-repeated canard that the Constitution has “no express reference to the right to an abortion” (slip op. at 9), even though the Court in Roe v. Wade held that reproductive rights are part of the “liberty interest” protected by the Due Process Clause and the Ninth Amendment. One legal jokester responded on Twitter by noting that the Constitution similarly says nothing about “aircraft carriers.”

On Twitter, I noted that the Constitution similarly says nothing about marriage, contraception, child-rearing, or sexual intimacy, even though the Court’s twentieth-century precedents have established constitutional protections in all those areas. Two law school professors, Melissa Murray and Leah Litman, warned in an op-ed in the Washington Post that Alito’s logic in overruling Roe could jeopardize some of those decisions.

Within the draft opinion itself, Alito batted away that concern.  “To ensure that our decision is not misunderstood or mischaracterized,” Alito wrote, “we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Legal scholars with stronger academic credentials than mine have already critiqued Alito’s opinion at length, in the blogosphere and on cable talk programs. There is no need to repeat those criticisms in this space, a full week later. Apart from the substance of the opinion, however, Court watchers were in full hand-wringing mode about the effect of the leak on the Court’s institutional integrity. Three days later, Adam Liptak’s lead story in the New York Times carried this headline: “Leak Intensifies View That Court Is Too Political.”

Stevens' appointment by a Republican president, Gerald Ford, came on the recommendation of Stevens' home-state Republican senator, the moderate Charles Percy. Ford avoided overt partisanship in his post-Watergate effort to assure Americans that the rule of law was on solid ground. By contrast, Trump showed little regard for the rule of law and exalted politics over law in virtually all of his judicial appointments, including the three right-wingers he named to the Supreme Court.

 

Time for Equal Rights for Puerto Rico?

            Jose Vaello-Madero, who was born and grew up in Puerto Rico, lived in New York City from 1985 to 2013 and during that time benefited from one of the federal government’s “safety net” programs: the Social Security Administration’s Supplemental Security Income (SSI) benefits, available to low-income individuals with disabilities. Vaello-Madero moved back to Puerto Rico in 2013 to care for his ailing wife.

            In a ham-handed decision issued last week [April 28], the Supreme Court held on an 8-1 vote that Vaello-Madero and other residents of Puerto Rico are ineligible for SSI benefits, under a quirk in Social Security law that specifically excludes residents of Puerto Rico from SSI benefits. The dissenting judge, unsurprisingly, was Sonia Sotomayor, whose Puerto Rican parents moved to New York City before the future justice was born. The decision in United States v. Vaello-Madero included, however, one surprise: Justice Neil Gorsuch used the case to call for overruling the early twentieth-century decisions known as the Insular Cases that relegate Puerto Rico to second-class legal status within the United States.

            More than a century after the United States acquired Puerto Rico by conquest in the Spanish-American war, the time has come to end the semi-colonial status and admit Puerto Rico to statehood. Note that Puerto Rico’s current population of almost 3.2 million is greater than the population of seventeen states: Alaska, Arkansas, the Dakotas, Delaware, Hawaii, Idaho,  Kansas, Maine, Mississippi, Montana, Nebraska, New Hampshire, Rhode Island, Vermont, West Virginia, and Wyoming.

            After moving to Puerto Rico, Vaello-Madero lost his eligibility to SSI benefits. If he had moved anywhere else in the United States, he would have still been eligible for the benefits. Vaello-Madero was unaware of a quirk in the Social Security law that specifically excludes residents of Puerto Rico from SSI benefits. The provision at issue, 42 U.S.C. §1382(f), limits SSI benefits to people who “reside in the United States”—defined in the statute as the fifty states and the District of Columbia. That provision also excluded residents of Guam and the Virgin Islands, but Congress amended the law in 1976 to extend benefits to residents of the Northern Mariana Islands.

            Unaware that he was no longer eligible for SSI benefits, Vaello-Madero never notified Social Security of his move. Social Security continued to send his monthly benefits to his New York address until it finally learned he was living in Puerto Rico. Adding insult to injury, Social Security sued Vaello-Madero for $28,000 in restitution for the benefits unknowingly sent to his former address. Vaello-Madero responded to the suit by filing his own suit in federal district court in Puerto Rico to challenge the exclusion of Puerto Rican residents as a violation of the Constitution’s Equal Protection Clause, which extends to all American citizens.

            In upholding the exclusion, the Court, in an opinion by Justice Brett Kavanaugh, noted that Puerto Rico has exempted residents of Puerto Rico from most federal taxes “for various historical and policy reasons.” He noted further that Congress “likewise [has] not extended certain federal benefits programs to residents of Puerto Rico. He noted as well that the Constitution’s Territory Clause (Art. IV, §3, cl. 2) authorizes Congress “to make all needful Rules and Regulations respecting the Territory . . . belonging to the United States.”

To Kavanaugh, the Constitution’s text, the colonial-type historical precedents, and the Court’s discreditable precedents gave Congress the authority to ignore the Equal Protection Clause in denying safety-net benefits to the millions of U.S. citizens resident in Puerto Rico.

Seven justices, all but Sotomayor, joined Kavanaugh’s opinion in full. Thomas, in another example of his idiosyncratic jurisprudence, used the case as the occasion to deny that the federal government is subject to the Equal Protection Clause at all; the Court, ever since the 1950s, has recognized that the Fifth Amendment’s Due Process Clause, applicable to the federal government, includes an “equal protection component” that requires the federal government as much as the states to guarantee equal protection of the laws to all U.S. citizens.

In a separate concurring opinion, Gorsuch bluntly called for overruling the Insular Cases, which he rightly explained rested on “racial stereotypes.” He acknowledged as an unsatisfactory “workaround” the Court’s decisions recognizing certain constitutional guarantees as sufficiently “fundamental” to extend to the territories anyway. “The time has come,” Gorsuch added in conclusion, “to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them.”

In her opinion, Sotomayor made a hash of the supposed logic in Kavanaugh’s opinion. The SSI program, she noted, “establishes a direct relationship between the recipient and the Federal Government” based upon “uniform eligibility criteria that disburses directly and uniformly to recipients without regard to where they reside.” “Under the current system,” she added, “the jurisdiction in which an SSI recipient resides has no bearing at all on the purposes or requirements of the SSI program.”

Sotomayor acknowledged that residents of Puerto Rico typically are exempt from paying some federal taxes, bur argued that “that distinction does not create a rational basis to distinguish between them and other SSI recipients” because “[b]y definition, SSI recipients pay few if any taxes at all.” To “deny[] benefits to hundreds of thousands of eligible Puerto Rico residents because they do not pay enough in taxes is utterly irrational,” Sotomayor added, “antithetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution.”