artsforum.ca

On February 27, 2018

© By John Arkelian

Should teenagers be allowed to have machine guns?  Yes or no?  It’s really as simple as that.  The carnage wrought recently at a Florida school was perpetrated by a disturbed teen in legal possession of what amounted to a machine gun.  In a sensible world, those words, being “in legal possession of a machine gun,” ought to be self-contradictory nonsense.  Who in civilian life ought to be in possession of a machine gun, ever?  Such weapons, whether they are technically described as “semi-automatic” or “automatic,” are designed for a battlefield:  They have but one purpose – to kill people as quickly and efficiently as possible.  They do not belong in civilian hands – period.  But, that eminently obvious proposition runs headlong into the absurd contention that the Second Amendment precludes any and all regulation of guns in America.

The United States Constitution is the highest law in the land.  Its first ten Amendments form the Bill of Rights, which protect our inalienable rights by limiting the power of the federal government to act in those areas.  Freedom of speech, freedom of religion, freedom of assembly, freedom of the press, and protection against unreasonable search and seizure are among the rights enumerated there.  And so, too, is the right to bear arms, which is set out in the Second Amendment:  “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.”

 But no right, however precious, is ever absolute.   To use the tried-and-true law school illustration:  No one has the right to falsely shout ‘Fire!’ in a crowded theater.  Doing so is apt to cause injury or trauma to others, so the speaker’s right to free speech is circumscribed to the extent that it collides with the right of other people not to be gratuitously harmed or traumatized.   A right, even an inalienable right, is in no way exempt from being limited in ways that are reasonable in given circumstances.  And it must give way when its exercise tramples on other rights of other people.   (Sadly, however, in wake of 9/11 and the unending “war on terrorism,” we’ve been duped by our own governments into acquiescing, among other things, to grotesquely intrusive mass surveillance of one and all.  They argue that we must give way on fundamental rights for our own protection:  The result is a cynical, pernicious, and grossly unjustified trade-off – of fundamental rights for illusory ‘security’ – that adversely affects every single one of us.  Oddly enough, the vociferously indignant champions of guns are strangely silent when it comes to this egregious infringement of human rights that really matter.)

Unregulated access to firearms poses an obvious danger to public safety.  True, an aggrieved person, a deranged person, or a person who is intent on harming others in the name of some noxious ideology can do so in any number of ways – by running amok with a knife, by igniting explosives, by hijacking an aircraft, or simply by driving a car or truck into a crowd of people.  But the simple fact is that most acts of mass violence in America are perpetrated with firearms.  And semi-automatic and fully automatic firearms are the weapons of choice for those who are intent on inflicting mass casualties.   No other weapon can match them for their speed and efficiency in slaughtering people.

Universal access to such weapons (and their ubiquitous presence in civilian hands) is incompatible with the common good.  It also incompatible with the fundamental rights to “Life, liberty and the pursuit of happiness” set out in that other founding document of the United States – its Declaration of Independence.  Ready, unregulated access to what amount to ‘weapons of mass destruction’ puts others at unreasonable risk and directly threatens their lives and their pursuit of happiness.   It is also at odds with the spirit of the Preamble to the Constitution of the United States, which sets out that governing document’s overarching purpose:  “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”    Where’s the “justice” in putting the lives of the many at risk to grant a disturbed teen the “right” to have a machine gun?  How is the currently feebly regulated ease of access to firearms of all kinds consistent with either “domestic tranquility” or the “general welfare?”    The answer is that it is not.

The rabid extremists (the National Rifle Association included) who insist they they’ll brook no “infringement” of any kind on their right to bear weapons of any kind espouse a position that is absurd both at law and in practice.  Restrictions already exist.  So far, we haven’t heard of anyone espousing the right of a ten-year-old to carry a handgun to school or of anyone to bring a bazooka to a crowded public event.  If some regulation is both reasonable and practiced, as it clearly already is, there isn’t a practical reason under the sun why other restrictions aren’t likewise reasonable and consistent with the Constitution.

The United States can and should impose reasonable restrictions on gun ownership, including such obvious basics as thorough screening (for age, for criminal records, and for mental instability) and sensible limits on the kind of guns deemed fit to be in civilian hands.  It should make such requirements universal, by eliminating current loopholes (like firearms purchased at gun shows).  It should ensure that screening is effective and that set methods are prescribed for documenting instances of people who have, for example, demonstrated mental instability by making threats online or in disputes with school staff or law enforcement authorities.  Are “open carry” laws reasonable, ever?  Are they consistent with a civilized society?  Does a right to carry “concealed weapons” meet that standard, either?  The United States can and should impose reasonable restrictions on the kind of guns deemed fit to be in civilian hands.  It may be that very few of those in possession of semi-automatic or fully automatic weapons will ever use them against others.  But the terrible devastation caused by the very few who do is sufficient to make their possession by any civilians unreasonable and incompatible with the general welfare.

Notwithstanding the language used in the Second Amendment, governments (federal and state) already “infringe” the right to keep and bear arms in a myriad of ways.  There is no legal or constitutional impediment to reasonable regulation in the interests of public safety and to preserve of the right of others to life and the pursuit of happiness.  The high school kids in Florida were robbed of those inalienable rights by the competing (and conflicting) “right” of a disturbed teen to have a machine gun.

Besides the duty of governments to protect competing rights by acting as a referee when said rights collide, common sense also plays a role in interpreting constitutional rights.   Remember the words:  “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.”   They were composed in the late 18th century, when a mostly untamed continent posed many potential dangers for the newly formed nation hugging its eastern seaboard.  Predatory wildlife, hostile indigenous people (perhaps resentful at being displaced from their lands), and possible conflict with European colonial powers posed dangers to the new nation – and to its people.  The solution was the ability to defend oneself and one’s community by having a musket close to hand.  The two clauses of the Second Amendment were clearly meant to be read together:  Because a ‘well-regulated’ citizens’ militia was essential to the security of Americans, their right to “arms” (as that term was understood at the time) was not to be infringed.  There is a clear and necessary causal link between those two propositions, as follows:  ‘We need a militia, therefore the people who will form that militia, when called upon to do so, must have firearms at the ready.’   To put it another way, people are assured of access to firearms specifically because they may at a moment’s notice be called upon to serve in a militia.  The U.S. Supreme Court squandered its chance to endorse that causal connection and to make it explicit:  Your right to bear arms may not be infringed – to the extent that it coincides with your service in a citizens’ militia.  (And, “a well-regulated militia” obviously does not include a bunch of self-appointed crackpots in the woods, fueled by some conspiratorial notion that the government is out to get them.)  This reading of the Second Amendment would grant greater access to weapons to those who serve in part-time citizens’ militias (local variants of state national guards).  Such participants might even have access to ‘machine guns,’ but they’d be subject to strict restrictions on their use and storage (probably in locked militia safes).  And they would be obliged to do training and regular service with a regulated militia at fixed intervals.  In the event of natural disaster, foreign invasion, unlawful armed insurrection, or our own government turned despotic, these latter-day “Minutemen” would be a part-time citizens’ militia charged with defense of our country and our Constitution.

Where, oh where, is rationality in the endless war of words over firearms?  Clearly, farmers, ranchers, and those living in remote rural places have legitimate reasons for having reasonable types of firearms.  That rationale, however, manifestly does not apply to people living in urban settings.  And, there’s an overarching question:  When will we learn that ‘money shouldn’t talk’ in politics?  Whether it’s the NRA on guns, or any number of other corporate or moneyed interests on other issues, we need to get the pernicious, corrupting influence of money out of politics once and for all.  Only then can we dare to hope that our elected representatives will serve the public interest rather than the self-serving imperatives of their own reelection financing.

John Arkelian is a former federal prosecutor and a legal adviser in constitutional law.

 Copyright © 2018 by John Arkelian.

On May 10, 2017

“I Hear You” – Copyright © 2017 by Priska Wettstein

© By John Arkelian

“I am among the giants.  They loom below, immense, silent, and

insouciant – their unbowed crowns cloaked in the whitest of ermine, their enormous shoulders cast of rock primeval.  I have come to the world of winter.  Even time grows large here, measured in glacial epochs.  Deep frozen rivers of ice below ebb and flow beyond the ken of the human eye:  And there is nothing human here, for as far as the eye can see.  Yet this place, this heart of the Yukon, whispers to me:  ‘Something hidden:  Go and find it.  Something lost behind the Ranges.’ … Here is a place of transformation, a place of reawakening, a place of rediscovering freedom, a place where the spirit quickens, a place in which one can find what is hidden and reclaim what is lost….”

Our major travel essay on the Yukon, “The Yukon: Transforming the Human Spirit,” accompanied by the compellingly evocative photographic art of Dawson City’s Priska Wettstein, can be found at:  https://artsforum.ca/travel

On October 24, 2016

© By John Arkelian

How can it come down to this – in the greatest nation on Earth, the best hope for mankind, the land of the free and the home of the brave?  Have the lights gone out in that shining city on a hill?  The presidential election campaign poses precisely those questions, with its choice of two unsatisfactory candidates for the most powerful job in the world.  Consider Donald Trump.  Every time he opens his mouth, he confirms our impression that he is an obnoxious, bloviating bully and a vulgarian.  The very antithesis of a thoughtful, well-informed figure, his stock-in-trade is broad generalizations and stereotypes.  It’s a puzzle that anyone was surprised by his ever-so-crude sexual words caught on tape some years ago:  It has been crystal clear from the get-go that he is a crude man.  Is there a word for the diametrical opposite of “classy?”  If so, he is its walking, talking definition.  Why his appeal?  For some, he appeals to their thinly veiled prejudices and fears.  Others like Trump’s unvarnished demeanor.  But far more people have found in Trump an unlikely answer to their deep craving for change.  Now that’s something with which we can find common cause.  The status quo is not serving the interests of America or most of her citizens.  Trump isn’t part of the political establishment.  He isn’t even a politician.  And that has a certain superficial appeal when partisan deadlock and abject neglect of the 99% are the order of the day.  But, there is nothing about Trump that suggests that he would be a balm to those injuries to the commonweal.  He is merely a celebrity, in a society which is entirely too fixated with celebrities.  He is not the white knight, the exemplar of just reform that America so desperately needs.  Bernie Sanders, on the Democratic side, maybe, but not Trump.  Rather, his rashness, impulsiveness, pettiness, and unbridled egotism, combined with a seeming dearth of good judgment, leave him unfit for high office.

What of Hillary Clinton?  Her supporters point to her years of public service – as First Lady, as a Senator, and as Secretary of State.  But Clinton is nearly as disliked and mistrusted as Trump.  Clinton’s ethical and practical shortcomings abound, whether it was vouching for her husband to get him elected (when it is likely she knew she was telling bald-faced lies about his fidelity); contributing to the mess that poorly-planned Western intervention wrought in Libya; selling access to power by granting donors to the Clinton Foundation preferential access to herself as Secretary of State; taking large sums of money from Wall Street and pledging her allegiance to them in leaked confidential talks; using dirty tricks (in cahoots with the leadership of the Democratic Party) against Bernie Sanders to impede his bid for the presidential nomination; being part of the so-called ‘war on terror’s’ insidious attack on inalienable human rights (through the routine assassination of real or perceived foes by drone strikes, and through the unconstitutional mass surveillance of law-abiding citizens) under the Obama Administration; or glossing over her reckless breach of secure-handling requirements for classified emails while she was at the State Department.  Clinton may have 30 some odd years of public life, but what has she got to show for them?  Where are the lasting policy successes, the reforms, and the commitments to real change or to improving the lot of ordinary citizens?  There’s a hard-to-pin-down (but awfully off-putting) sense of entitlement about Clinton:  Many suspect that she feels entitled to the post, that this is “her time.”  Clinton and her supporters have been so bold as to suggest that we should vote for her because she’s a woman, and that her election to the highest office in the land is part of some ordained victory against gender barriers.  In fact, however, Clinton’s gender ought to be irrelevant to voters:  Her gender is neither a reason to vote for her, nor against her.  What’s far more relevant is the fact that Clinton is part of the establishment, when there is a justified hunger in the land to be rid of the establishment’s yoke.  The paradox is that Trump is a dream-candidate for Clinton:  He manages (almost) to make her look ‘good’ by comparison.

One candidate likes to talk about the process being “fixed.”  And maybe it is, in ways that don’t seem to occur to him.  Third parties are shoved aside, effectively blocked from participating in presidential debates that are run by the two main parties.  Democrat and Republican.  How different are they, really?  Both seem to neglect the 99% in favor of the narrow interests of one-percenters.  Maybe they are just a good-cop, bad-cop tag team, an unholy pairing that gives us the illusion of choice, when, beneath the rhetorical ‘differences,’ each of those parties is one-half of a single Janus-faced party of the status quo.

And the status quo is unacceptable.  Critical issues face America.  Few of them are even being mentioned by Clinton or Trump.  Politics in America is corrupted by money.  The U.S. Supreme Court perversely endorsed the notion that money should talk.  Why is neither candidate calling for a constitutional amendment to attack that systemic corruption at its root?  Inequality is a crisis that demands action, as the chasm between rich and poor grows ever larger, undermining the existence of the strong middle class which has long guaranteed the nation’s stability, prosperity, and democracy.  No one mentions the gerrymandering of electoral district boundaries by individual states, a political ‘fix’ that predetermines the result in many states before the election is ever held.  Who has a plan to bring rationality to the debate over firearms and find ways (by constitutional amendment, if need be) to impose reasonable restrictions on gun ownership, including such obvious basics as thorough screening (for criminal records or mental instability) and sensible limits on the kind of guns deemed fit to be in civilian hands?

We concentrate on the dangers posed by terrorism and extreme fundamentalism while we neglect the looming geo-political rivalry with an expansionistic China.  Trump is challenging so-called ‘free trade’ pacts, but neither candidate is getting to the heart of the problem:  We have been sold a fraudulent bill of goods which asserts that “globalization” is both inevitable and good for us, when it is neither.  In the interests of the few, we have de-industrialized the West, transferring industry and jobs to the Third World (especially to China).  It is a profound betrayal of the West – and it poses a clear and present danger to our security.   What about environmental protection?  There are tough choices to be made there.  Why aren’t we hearing coherent plans about protecting the environment from the two main parties?  What about the grave risk to our freedom posed by the security state?  Why has neither candidate pledged to dismantle the unconstitutional measures, enacted in the wake of 9/11, that are intimations of Big Brother?  Why are we still unlawfully holding prisoners in Guantanamo Bay (and perhaps elsewhere) without charge or trial – in open breach of our most fundamental legal guarantees?  Why are we still propping up noxious, dictatorial regimes?  Worse still, why are we selling weapons to them?  Why aren’t we more discerning about who we call allies?  (Tyrannies like Saudi Arabia and Egypt, to name only two, don’t belong on that list.)  Why aren’t we insisting that a genuine friend, Israel, stop ignoring its own long-term interests (along with everyone else’s) by continuing to build settlements on land it does not have lawful claim to while endlessly postponing the compromises needed to try to heal the perpetual wound of conflict with the occupied Palestinians?  Why aren’t we insisting that China rein-in its reckless ally North Korea?  If China refuses, it is a direct part of the problem and needs to be sanctioned itself.  Why is America unwilling or unable to control the movement of people across its southern border – and what should we do about it?

Why are we not taking urgent measures at home to dismantle oligarchy in favor of real democracy?  Why are we not ensuring that wealthy individuals and corporations pay their fair share?  Why are we not reversing the reckless trend to militarizing our domestic police forces?  What are we doing about the ubiquitous presence of pornography, fraud, gambling, and misinformation on the internet?  Why on earth are we not dismantling large corporate conglomerates in favor of real competition and diverse choice for consumers?  It is intolerable that so many television networks, newspapers, and radio stations are held in so few (corporate) hands, when democracy needs a multiplicity of competing voices.  The Obama Administration elected not to hold the financial racketeers among our bankers and investment companies accountable for the criminal activities that nearly derailed our economy in 2008.  None of them were charged with an offense.  Why is neither of the candidates promising to lay charges against those whose greed, fraud, and recklessness did so much harm to so many people?  Why aren’t they promising to reform the operations of Wall Street, and bring it under strict control in the public interest?  And why is neither candidate promising to reverse the egregious misuse of the Espionage Act against whistleblowers and to instead guarantee protection of those who draw back the curtain on governmental or corporate wrongdoing?

Who is addressing the troublingly massive national debt and our large annual federal budget deficits?  How are we to get back to balanced budgets?  What about making health care universally accessible to all, regardless of their financial means?  (Other industrialized countries have done so:  Why not the United States?)  What about improving education?  What about reversing the inane notion of letting banks and polluters police themselves?  What about undoing the perverse trend to privatizing prisons?  Who is talking about sensible ways to reconcile two competing needs, that is (i) to ensure that the military might of America remains second to none and (ii) to ensure that we get the most bang for our buck in a defense budget that eats up the lion’s share of national spending?  And, why is no one talking about the acute national security threat that has been created by our foolhardy headlong rush to connect everything online?  Military command and control systems, critical infrastructure, sensitive government communications, electronic voting machines, and personal information about ordinary citizens – all of that, and more, needs to be unhooked from the internet.  But neither candidate is saying so.  And, why is neither of them addressing the deplorable decline of civility in public discourse – a decline that predated this election by years?

We have been reduced to two utterly unsatisfactory choices for chief executive. The very qualities we need – integrity, humility, decency, compassion, forbearance, self-control, and the wisdom, instincts, empathy, and grace of a statesman – are conspicuous by their absence.  The best we can do in this election is to consider the more substantive policies being advanced by the candidate for a small third party (specifically, Jill Stein of the Green Party) and cast our vote there until such time, if any, as the two main parties can be reformed and renewed.

Copyright © 2016 by John Arkelian.

John Arkelian is an award-winning journalist and author.  A former diplomat, who worked in London and Prague, he also served as a Federal Prosecutor and as a Professor of Media Law.