Quick Loop #12

May 25, 2022: Who knows what evil lurks in the hearts of men?

OK, that’s all for Ukraine today. There is too much else, and it’s been too long. Let’s get started

Murder, Inc.

Another school shooting and mass murder by an 18-year-old on May 24. This time, a Texas high school student, Salvador Ramos, first shot his grandmother (who is in critical condition), then went to an elementary school and killed at least 21 people, including 19 children and 2 adults, before being killed himself. Echoes of Sandy Hook were all around. Ten days before, a New York teenager named Payton Gendron broadcast a livestream from a Buffalo supermarket of his own shooting spree, which left 10 dead and 3 wounded, although he survived.

Naturally, the murder brought out all the usual suspects, none of whom had a clue about what to do to actually prevent future incidents but most of whom were looking to score short-term political points by claiming that this shooting was due to whatever gun-control policy hadn’t been enacted. Gun-control advocates always argue that anyone who isn’t a gun prohibitionist is an enabler, and nothing short of laws that make it harder to own guns or ammunition (or perhaps even a constitutional amendment that prohibits private ownership of guns) can solve the crisis.

But hopefully, if you’re reading this, you know better. People who do these things have problems, and it’s almost impossible to stop them, because people with these problems have planned these killings. These people didn’t just rush out and buy a gun in the heat of the moment, and — because they are actually planning — they can find a way to circumvent virtually any common gun-control law that some blowhard has proposed as a solution. For example, the Buffalo shooter legally purchased the weapon that he used, passing all of the current background checks required, and then he illegally modified it to increase its lethality, including drilling out a lock in order to swap out the mandated 10-bullet magazine for a 30-bullet one.

Unfortunately, there are a number of Americans (such as the current American president, who I’m going to start referring to as “Brandon” if he continues with such nonsense) who believe in magical thinking about gun control, such that some stricter but still constitutional law would have prevented this. Yet they fail to actually do anything but spout anti-gun platitudes.

We hear that this doesn’t happen in any other country. Except . . . the U.S. is the third largest country in the world, behind only China and India. All of Europe taken together is only a little more than double the population of the U.S. by itself.

The wannabe mass-murderers gain motivation from reading about others who have garnered headlines by going out in a blaze of bullets, and they want that end for themselves. The Buffalo grocery store shooter had notes about the other similar cases. The Texas shooter was a loner who posted gun pictures on his Instagram account, teasing about some action that he was going to take. Each mass murder serves as an inspiration for the next, and some future mass-murderer is most likely soaking up every detail about these most recent killings that he can find.

So what is the cure? Do we just continue to say that, if there is no solution, there is no problem? That’s what we seem to do, and yet there remains no clear solution. The undeniable fact is that we in America don’t have much in the way of mental health facilities. In fact, it’s fair to say that, since the 1960s, America as a nation has abandoned publicly-funded mental health treatment. You can see the evidence in the streets of any major city. And so, the only current proposals that aren’t just puffery and that purport to address this situation are “red-flag” laws.

The basic idea of red-flag laws is that the authorities can request an “extreme risk protection order” (ERPO) against someone claimed to have a mental issue that should prevent them from having access to firearms. After a court hearing, these orders can be extended for up to a year. 19 states and the District of Columbia have adopted some form of them.

But one of those states is New York, where the Buffalo murders took place. What happened? Was the shooter a lone wolf who didn’t leave any clues before acting?

Far from it. Less than a year ago, he said that his plan post-high school was “to commit a murder-suicide.” Stephen Gutowski in The Dispatch has the story:

In the case of the alleged Buffalo shooter, there were several parties who could have requested a red flag order based on his past behavior. The alleged shooter expressed a general desire in a school assignment to kill himself and others in June 2021. As a result, he was taken by police for a psychological evaluation and spent a day and a half in a mental hospital, according to NPR.

However, he was released and no further action was taken. 

If either the police, school administrators, or his parents had filed for an ERPO, the shooter likely would have been prohibited from buying the gun he used in his attack. The shooter's clear willingness to break dozens of laws, including by illegally modifying his gun, implies he may have been willing to buy a gun illegally even if subject to an ERPO. But making his acquisition of a gun more difficult very well could have prevented the attack.

And the problem is this: had the ERPO procedure worked, we’d never know about what had been prevented in Buffalo. All we’ll ever learn about are cases like this one, where no one requested an ERPO and the mass murder took place. Would an ERPO have stopped the Buffalo killer? As the excerpt above notes, there is no way to know the answer. And we can’t forget the ready availability of evil of various stripes on the “dark web” of the Internet, which helps these murderers to research previous killings and plan their own.

But no proposal out there, not even the “red flag” laws, will stop a motivated individual from planning and committing a murder. Including a mass murder with random victims. Even Michael Corleone knew that:

But I haven’t seen any signs that American politicians are done exploiting the fantasy.

Meet the New Boss

Primary elections were held on May 24 in several states, including Georgia and Alabama. The biggest story in Georgia was the direct primary challenge sponsored by The Former Guy to Georgia Governor Brian Kemp and Georgia Secretary of State Brad Raffensperger, who were Public Enemies #1 and #1A in TFG’s never-ending series of whoppers about how he’d won Georgia in 2020 but the election was stolen from him. And TFG rounded up two supposedly high-quality acolytes to target Kemp and Raffensperger: former senator David Perdue and current U.S. congressman Jody Hice.

But Kemp led the movement to reform the voting laws in Georgia, and he remained very popular among Georgia’s GOP (except for the TFG cult). Despite the head-on attacks from President Biden, who referred to Georgia’s new election law as “Jim Crow 2.0”, and Major League Baseball, which curried favor with the woke “elite” by pulling the 2021 MLB All-Star game out of Georgia to protest the law, Kemp continued to insist that the law would work as intended, and he retained his popularity despite the increasingly insane attacks on him from both TFG and the media. In the end, Kemp defeated Perdue by over 50 percentage points.

But the more interesting race was Raffensperger. He had narrowly won election (with TFG’s endorsement) in 2018 as an outsider. But after the 2020 election, he had specifically turned down TFG’s demand for him to “find” about 12,000 votes to reverse the state, and his office both recorded and released TFG’s deranged phone call to him demanding that. Some pundits dubbed him a “dead candidate walking.” Hice, his opponent, was a popular four-term congressman giving up his safe seat in an effort to curry favor with TFG; during the campaign, Hice promised that TFG would never lose a close election in Georgia again (a pledge which some (including me) interpreted as a promise to fix a close election).

And Hice lost by about 18%, with Raffensperger winning about 52% of the vote — thus avoiding a run-off by winning a clear majority. A feature article in the Atlanta Journal-Constitution explains the details behind this huge turnaround.

One of the interesting points about the 2020 Georgia general election will be the reaction of TFG, who already is on record as:

repeatedly saying that he would have rather seen Democrat Stacey Abrams win [as Georgia governor] in 2018 [than Kemp, whom he endorsed].

“Stacey, would you like to take his place?” the former president said. “It’s OK with me.”

Of course, the “stolen election” narrative spewed by TFG originated with Abrams after her loss in 2018. Perhaps she and TFG could form a new political party. Suggested name: The Sore Losers Club.

Oh, and if the Georgia law had actually served as Jim Crow 2.0, the news media yesterday would have been overwhelmed with such stories. But it didn’t; instead, Georgia primary voting broke turnout records (including minority turnout) without any of the “anticipated” problems. Just another day in the media bushwa factory, where “the narrative” disappears without a trace when wrong. Nothing to see here; move along.

The Judicial Branch and the Partisan Wars

The furor over the leak in Dobbs v. Jackson Women’s Health Organization shows no signs of dying down, as the court’s marshal continues to investigate it. At least the leak investigation isn’t leaking. But Dobbs is just one of four high-profile cases remaining on the court’s docket that have to be released during the remaining month of the term, which generally ends on June 30. And each of the other three could have similar blowback, even if they aren’t partisan hot-buttons to the same extent as abortion (where SCOTUS chose to make the law rather than interpret it).

The other three cases are: (1) American Hospital Association v. Becerra, where the issue is whether federal courts should continue to defer to administrative rule-making and interpretations that are not supported by the legislative enactments that they rely upon (known as Chevron deference from a 1984 Supreme Court decision); (2) West Virginia v. Environmental Protection Agency, a related but procedurally complicated case on EPA limits on greenhouse gas regulation, which implicates two doctrines of administrative law referred to as the “major question doctrine” (if an administrative agency seeks to decide an issue of major national significance, Congress must have provided it with clear statutory authorization to do so — which is an exception to Chevron deference) and the “nondelegation doctrine” (Congress cannot delegate its key powers to the executive branch or an administrative agency); and (3) New York State Rifle and Pistol Association v. Bruen, a Second Amendment case on carrying weapons outside of the home.

One of the major issues that the current Supreme Court has focused on is the prevalence of the “administrative state”, caused in part by the increasing unwillingness of Congresscritters to act as legislators instead of pundits and partisans. That pretty much forms the entire background for AHA v. Becerra, where the intersection of two Congressional enactments produced a windfall for certain hospitals and other healthcare providers who were Medicare participants. On its own, the Department of Health and Human Services revised the mandated reimbursements to prevent the windfall, and the hospitals sued. But the question before the Supreme Court is very similar to the question in the Dobbs abortion case: not “what is the best public policy” (which is clearly the policy that HHS adopted on its own to end the windfall) but rather “what does the law require”? Perhaps Congress will be required to return to legislating again. . . .

WV v. EPA basically turns on the question regarding whether the EPA was given the authorization to regulate so-called “greenhouse gases”. Several attempts to pass specific regulatory proposals for greenhouse gas emissions were defeated in Congress, and so the Obama administration decided that the EPA already had such authority and issued highly-suspect rules, which were challenged in court. Then the Trump administration modified the rules, and so the case against the Obama administration rules was dropped as moot. But a federal court of appeals held that the rules created by the Trump administration were not valid, which had the effect of putting the Obama administration rules into effect, since the lawsuit about them had been mooted. It remains to be seen whether this case will be decided on the merits or on a procedural issue.

Finally, NYSRPA v. Bruen involves Second Amendment questions of individual rights versus state powers. How broadly it will address those questions is also unknown. But the case was argued before the Supreme Court all the way back in November, and the fact that the ruling has not been released yet (the oldest case without an issued ruling) may indicate that the ruling will be fairly narrow . . . or it may indicate that the ruling will be quite broad, causing the dissent to need more time.

As of now, there were 62 cases heard by the Court in the October 2021 term, but the majority, 33, still have not been resolved. Oh, and there are only five weeks left in the term to publish opinions, and among the cases that I didn’t mention above are Biden v. Texas on the injunction mandating the retention of the “remain in Mexico” policy, two more cases involving lawsuits where a shift in the party affiliation of a state officer led to a refusal to defend further an ongoing lawsuit, leading to subsequent motions to intervene from concerned parties, and several other cases with potential culture-war issues (such as a football coach saying a post-game prayer at midfield). Add that to the public comments that the justices no longer trust each other after the Dobbs leaks, and it will be fascinating to see how everything wraps up.

In the meantime, it does appear that the federal courts are increasingly looking askance at the administrative state. We’ll deal with that some more in an upcoming discussion, but for now, here is Dan McLaughlin’s article from National Review about the Fifth Circuit ruling (Jarkesy v. SEC) against the Securities and Exchange Commission acting as prosecutor, judge, and jury in common-law fraud cases. It happens that, among the three grounds cited for this ruling, two touch on some of the same issues as WV v. EPA, which is why I’ll wait for a full discussion until after SCOTUS decides that case, but Dan’s piece provides a preview.

Surprisingly long column to discuss just three topics. Be seeing you.