Federal Court Judge in CA misreads Heller to find round limit on guns unconstitutional

UPDATE: March 20, 2020.  I learned, in a Facebook dust up with a respected former law colleague, about a 2016 U.S. Supreme Court per curiam decision, after Scalia's death, that effectively overrules the analysis in this post.  See here.  I thereafter went back to Judge Benitez's opinion, discussed below, and I am amazed he does not see what I am analyzing. He is going on the misreading of Heller that the per curiam decision does without even realizing it.

With the significant number of judges the Bush-Cheney and Trump administrations, together with Republican-dominated Congresses, have pushed onto the federal court bench, we have to wonder whether we are in for some really bad interpretations of our nation's Constitution.  One such interpretation and ruling, from Bush/Cheney appointee Roger Benitez, concerned CA's Proposition 63, which was a State law including a ban on owning gun magazines capable of firing more than ten rounds. Judge Benitez, citing a few dissenting--not majority--opinions, and admitting how he read the Internet to find news articles about people defending themselves in home invasions, which articles and examples neither party had cited, all without bothering to care whether the people defending themselves needed more than ten rounds, has now held, on Friday, March 29, 2019, the State law unconstitutional.

In reading his conclusion, I was shocked to see how Judge Benitez actively misread the U.S. Supreme Court decision in D.C. v. Heller, 554 U.S. 570 (2008), and used that misreading as the legal lynchpin for his decision. Let's first look at the Heller decision and we will see what I mean. In Heller, after Justice Scalia, speaking for a mere five member majority, went through the history of gun ownership laws in British as well as pre-American Constitutional history--which I always found funny because Scalia talked about how wrong it is to rely on history rather than simply reading the text--then wrote Section III of the Heller decision, which walked back much of the NRA-style arguments one hears all over corporate broadcast media, and among our family members and friends who adore their guns. I think it is vital for every American who has any interest in this issue to read the following three paragraphs from the Heller decision (I have removed the citations for the most part so as not to burden non-lawyer readers):

"III

"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts rou­tinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...For exam­ple, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues...Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws impos­ing conditions and qualifications on the commercial sale of arms.26 (Footnote 26 states: 'We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.')

"We also recognize another important limitation on the right to keep and carry arms. Miller said (MF Blog, the Sequel note: Miller is a 1938 US Supreme Court decision which held sawed off shotguns may be banned without offending the 2nd Amendment), as we have explained, that the sorts of weapons protected were those 'in common use at the time.' 307 U. S., at 179 (MF Blog, the Sequel added the bolding). We think that limitation is fairly supported by the historical tradi­tion of prohibiting the carrying of 'dangerous and unusual weapons.'...

"It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have lim­ited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right."

What I find amazing about Heller, compared to how the decision is portrayed in political discourse on corporate broadcast media, is the Heller decision is clear that many things we think of as "common sense" gun control laws, i.e. keeping guns out of hands of felons, mentally ill, and the like; background checks; limits on owning AR-15s (as M-16 rifles are a descendant of AR-15s, first created in the 1950s); and closing gun-show loopholes, etc. are all appropriate topics for government regulation without doing any offense to the 2nd Amendment. I am fine arguing over whether passing such gun control legislation is good or bad public policy. However, we should not be misled into thinking such laws are categorically against the 2nd Amendment--at least not in the history of the jurisprudence of the U.S. Supreme Court on the matter.

So why was I so shocked at Judge Benitez's opinion? Well, here is Judge Benitez, getting to the legal lynchpin in his decision, after running through news articles and citing, multiple times, dissenting opinions from some of the most right-wing judges ever to ascend to the federal bench:

"I. The Supreme Court's Simple Heller Test

"In Heller, the U.S. Supreme Court provided a simple Second Amendment test in crystal clear language. It is a test that anyone can understand. The right to keep and bear arms is a right enjoyed by law-abiding citizens to have arms that are not unusual 'in common use' 'for lawful purposes like self-defense.' District of Columbia v. Heller, 554 U.S. 570, 624 (2008)."

Um, Your Honor, when you cited the phrase "in common use" from Heller, you left out the words "at the time" of the amendment being enacted in 1791. And here is Dave Kopel, a University of Denver law school professor, and ardent pro-gun guy, explaining that more than eight rounds were decidedly not "in common use" in 1791.* This is a judicial version of....Oopsy.

Judge Benitez then goes to cite the phrase "common use" another eight times, seven of which times he fails to use the entire phrase "in common use at the time." He only cited the full phrase once, when citing a 7th Circuit case, but with no comment as to the vast difference in scope between how he is using the partial phrase "in common use" and the full phrase, which includes the words "at the time" of the enactment of the 2nd Amendment in 1791. This is as bad a failure of reading comprehension I have seen in a long time from a person wearing a judge's robe, and the judicially snarky wording Judge Benitez used to precede his misreading of Heller--telling us Heller provides a "simple test" and that the words are "crystal clear"--makes me wonder if Judge Benitez is really engaging in a legal version of bomb-throwing. Yes, Your Honor, the passage in Heller is "crystal clear" and "simple," which means a law which prohibits owning a gun with more than ten rounds is permissible under the 5-4 Heller decision interpreting the 2nd Amendment, which majority opinion remains the most pro-gun ownership decision in U.S. Supreme Court history.

CA's statutory law is, therefore, not unconstitutional under any U.S. Supreme Court precedent, as it was decidedly not "common" in 1791 for people to have more than ten rounds of ammo in their guns. If, again, we want to argue, from a legislative or policy basis, i.e., whether we should pass a law which restricts an individual to ten rounds of ammunition, then I am more than fine with that. I think one may make a reasonable case for having more than ten rounds, though, as Judge Benitez says, at page 7 of his decision, "Few would say 100 or a 50-round rifle in the hands of a murderer is a good idea." That, again, is about legislators drawing public policy lines. It is not the type of argument one often makes when engaged in a broad analysis deciding what is or is not permissible under our nation's Constitution, unless the burden is significant or extreme. And, again, Miller and Heller both say the 2nd Amendment's prohibition on private gun ownership is about what was "in common use at the time," 1791, not "common use" generally and through today, as we humans have advanced our weaponry technologies to a catastrophically deadly level.  That is also what makes Scalia's opinion in Heller significant, where he speaks of the very large difference in power between the government and individuals in the 21st Century, but say, tough luck, 2nd Amendment proponents: You are stuck with  weaponry "in common use at the time."

Judge Benitez's decision is an advocate's brief posing as a court opinion, and I say this as a person who believes there is a constitutional right for an individual to "bear arms" under the 2nd Amendment, notwithstanding the prefatory language regarding a "well-regulated militia." The question now is what we may expect to see in the appellate courts. My speculation is the 9th Circuit Court of Appeals will overturn Judge Benitez's decision. However, what the U.S. Supreme Court will do is less certain. The U.S. Supreme Court may deny a writ of certiorari, meaning the Supreme Court may refuse to hear the petition, and leave the anticipated 9th Circuit overturning of Judge Benitez intact. If, however, the Supreme Court agrees to hear the case, there is a strong chance four Supreme Court justices (Thomas, Alito, Gorsuch, and Kavanaugh)** are ready to uphold most of or all of Judge Benitez's decision. In doing so, the question is whether Chief Justice Roberts is willing to upset his wife, and the orbit of friends he has long had in the D.C.-area, by overruling Heller's and Miller's holding that the 2nd Amendment only protects against seizure of guns and ammunition "in common use at the time" the 2nd Amendment was enacted. My belief, again rank speculation, is Roberts is not willing to overturn that precedent, and the vast majority of Americans will be able to breathe a sigh of relief.

As court watchers have noted, too, Clarence Thomas has had a habit of standing alone, wanting to grant "cert"--court watcher "speak" on that one--on background check laws various states are enacting in recent years.  I find it significant no other justice, not Gorsuch, not Alito, not Roberts, has joined him.  See here for one of Clarence Thomas' stand-alone opinion wanting to challenge CA's background check law, complete with a misunderstanding about why an abortion law with a 24 hour waiting period was deemed too burdensome--it was because there was only one abortion clinic in the state, and of course, the longer one waits to decide on an abortion, the more likely "viability" will occur such that an abortion may no longer be had. There is, in my near-old-man's view, not only a deficit of reading comprehension among the current elite in the United States, but also a deficit of understanding of how analogies work. Contrary to Clarence Thomas, one may say, with a bit of wit and more snark, "Praise the Lord and Pass the Ammunition" is an amusing, though culturally awkward, song from World War II, but it is not constitutional precedent. And, really, even that song was in the context of a formal military, not a "well-regulated" citizen-militia, fighting foreign enemies which had declared war against, or outright attacked, our nation. I long wondered at the title of the song, long in the parlance of a certain element in our still largely culturally Christian American society, as Jesus was mostly of the "turn the other cheek" philosophy that sounds more in pacifism than using a gun for God. Also, one wonders why this use of human-made items, i.e. ammunition, is divinely necessary, when there is a Venn diagram overlap among those who believe in that phrase and, somehow, decide a rape victim's pregnancy is God's will, and no medically-safe abortion should intervene. See? That's how one uses an analogy. :) I know, I know. The fetus is a baby and it is taking a life. Well, that is a philosophical question people may disagree about, but our Founders talked about "persons" and "people" in the sense of people who are already born, and they were not concerned with protecting fetuses. As I often say, abortion is best seen as something in which one may wish to re-examine one's priorities before deciding to ban the procedure.

Oh well. Judge Benitez has lit a fuse in the bomb he has thrown from the bench.

______________________________________________________

*Here is Professor Kopel on Judge Benitez's decision, where Kopel, too, falls victim to Judge Benitez's misreading of Heller about "in common use" that fails to add "at the time." I was disappointed to read Kopel's drive-by reaction because I respect Dave Kopel's legal analyses regarding the 2nd Amendment, even where I may disagree with him. Professor Kopel should have re-read the passage in Heller before publishing his drive-by reaction. 

** Judge Benitez, at two points in his opinion, ingratiatingly cites now-Supreme Court Justice Brett Kavanagh's dissenting opinion in the Heller case, from when the case was at the D.C. Circuit level. This is a transparent attempt to signal Judge Kavanaugh, though one wonders if Judge Kavanaugh, as someone long in the D.C. area, is really ready to allow undiagnosed mentally ill people all around the nation to legally get their hands on magazines holding more than ten rounds. I really do think the justices should be compelled to watch Jim Jeffries' sixteen minute comedy routine on the Second Amendment and guns. As I often joke with friends, Jeffries' bit is as good a legal amicus brief I have ever encountered on the subject of guns. When I asked two very sharp and knowledgeable lawyer colleagues, who own and love their guns, to watch it, and tell me how, factually and philosophically, they rebut Jeffries' arguments, they have gamely admitted Jeffries makes the case the best argument for gun owners is "I like my guns." 

 And we do not even have to go into the largely, though not fully, correct, view that the 2nd Amendment has been, in effect, a "white man's" right. Nor do we need to go into how, in the McDonald decision in 2010, the U.S. Supreme Court applied the 2nd Amendment right to the States and local governments, and at least impliedly reversed the 1876 Cruikshank decision, which had allowed for guns to be taken from African-Americans, and held the 2nd Amendment only applied to the federal government. Here is the crux of Cruikshank, from nearly 150 years ago, which shows just how much has changed in a certain element of elite understanding of the 2nd Amendment, at 92 U.S. 542 at page 553:

"The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States."

Hmmm.....I think we should not be too harsh against those who note the racial element in all of this pro-gun ownership extremism in our time, when those who are most extreme about their guns are white males of a certain age--and gun ownership has declined to a point where 3% of Americans own half the guns in the nation, at least as far as statistical analysis of lawful gun ownership allows us to say. Again, the race element in the debate over guns may sometimes be overstated, and should be cautiously identified when analyzed within a judicial perspective. However, the color line, as Frederick Douglass and W.E.B. DuBois cogently identified, exists throughout American history and constitutional jurisprudence and must, therefore, not be ignored, even when deciding a case of constitutional or statutory import.

Herzl, Netanyahu, and the Zionist idea

It is no surprise to say Netanyahu's speech at the annual AIPAC meeting this week contained his usual boisterousness. Embattled new U.S. Congressional Representative Ilan Omar, who I have consistently defended for her recent remarks, took one line from the speech personally, as well as she should. Her response was proper, in my view, but, contrary to the implication in part of her response, Netanyahu did mention Charlottesville and Pittsburgh events in his crescendo against anti-Semitism, as the linked-to article reveals. One may argue Netanyahu should have spoken more about anti-Semitism in the United States, seeing as he was speaking in the United States. However, that type of response fails to understand the history of particular strains within Zionism and anti-Semitism, and how the Zionist movement, from the start, was one where there was an acceptance of anti-Semitism, which forms the basis for why Jews everywhere on the planet should move to first Palestine, now Israel. This is something many American Jews do not like to admit as it is against the grain of "our" core belief that America is at least another land of Milk and Honey, meaning a place where Jews have been fundamentally "safe."  It is why the American Jewish Reform denomination was so hostile to Zionism from the 1890s through the end of the 1930s, as American Jews in the Reform Movement would say, "The Promised Land is America.  Why go bother with desert and Arabs?"  

For me, if I had to pick one line to quibble with from a historical standpoint, it is Netanyahu's belief that Herzl would be on Netanyahu's side about the meaning of the phrase "the Jewish state." I have long believed the writer, Yarom Harzony, made a solid point nineteen years ago in countering those who want to change the title of Herzl's first Zionist book, "The Jewish State," into "The State of the Jews," showing why they were and are wrong to do so. But Harzony's famous essay--among Jewish-Zionist intellectuals anyway--tries to push away, in a footnote (footnote 5), Herzl's second book, written six years after Herzl's publication of "The Jewish State" in 1896, "Autneland (Old-New Land)," where Herzl assumes the creation and existence of what looks much more like a secular state in Palestine, in which there would be special protections for Jews as Jews, but in which there would be no undermining of rights of non-Jews, particularly Arabs. Harzony does not want to admit Herzl's change in this regard, even as Harzony's essay shows how Herzl began his push for a Zionist idea as a Jew in name only, who lit Christmas trees in his home, to being one where he became more convinced Jews needed to return to Judaism, though not at all restricted to any particular variant in the Jewish philosophy. Harzony wishes to downplay, through his use of a footnote, the very clear thesis behind Herzl's 1902 novel, which shows a recognition that Arabs are present in Palestine, and a requirement for an ethno-religious-equality which the current formulation of a "Jewish state" from Netanyahu/Likud and right wing parties in Israel would not necessarily countenance. Thus, when Netanyahu invoked Herzl, as if Herzl speaks for Netanyahu in 2019, is precisely where I find myself mostly isolated from the majority of Israeli Jews who Netanyahu and the right wing parties  represent. 

Harzony's essay, which is wonderful reading, inadvertently shows us two things: (1) there has always been a connection between anti-Semitic Christian European politics with Zionism, where the latter simply invert the anti-Semitism to say, "Okay, then, help us get rid of 'your' 'Jews' and send them somewhere else, whether in Africa or Palestine," in a similar way the African-American Marcus Garvey often spoke in his quest to have African-Americans leave the United States; and (2) Herzl was, above all, a secular oriented person, who was trying to build as large a coalition of Jews in Europe as possible, and was still somewhat blind to the imperialism inherent within his request for European powers' "help" in establishing a "homeland" for the "Jews." 

I read Harzony again, in light of Netanyahu's speech, and I thought again how much I revere Isaac Deutscher's short, but powerful parable about two victims: The man (Jew) who jumps out of the burning building (Europe) and lands on a person (Arab) who is walking by the burning building and minding his own business. Both men get up after the fall, both with broken bones, but still able to stand, and, instead of recognizing the circumstances, and finding a way to care for each other's injuries, they begin to fight, and scream blame at each other. I adore this parable as it speaks to common humanity, the recognition of attenuating and particular circumstances, and the importance of not overstating one's victimhood. 

I once heard a critique of Deutscher's parable that the man jumping out of the building aimed at the person walking along the sidewalk so as to break the fall. One could make that argument based upon some statement or statements of Zionists from Herzl to Ben-Gurion and beyond, I suppose. However, the fact remains Jews such as Herzl (and Moses Hess before him) were already identifying the trends of extreme nationalism in Christian-dominated Europe were going to eventually lead to a catastrophe befalling the Jews of Europe in what we now call the Holocaust. For as Harzony says, the original title for Herzl's first book was "A Solution of the Jewish Question," which shows the defensive and reactive nature of Herzl's Zionist project. 

Some may wonder why I only sound anti-Israel when talking about Netanyahu, but become pro-Zionist when confronted with those who are, to my view at least, too hostile to even the idea of the State of Israel. Well, wonder less, if not no more. 

Thoughts on the Mueller Report, pre-release--and a long Cold War footnote

I, of course, have no inside information regarding the contents of the Mueller report. Here, however, is a nice interactive from the Wall Street Journal about what is already known.

My take is Mueller could easily decide what Comey did with HRC, which is to say there was a prosecutable crime in HRC's carelessness regarding her use of governmental email accounts, but decide a prosecution wouldn't likely be successful. To me, what is already known reveals Trump's campaign coordinated with a foreign government in a manner that, had it been Alger Hiss and Harry Dexter White doing the same for the Truman or FDR administrations, there would be no doubt in anyone's mind of collusion from any political standpoint, forget the definition of "treason" in the Constitution for a moment (though "giving aid and comfort" to an enemy may well have applicability with respect to Trump's behavior and policies with respect to lifting sanctions against the Russians).  

The Mueller investigation, and the journalism around it, has been an important educational exercise for those who wanted to believe this is just a "witch-hunt" or somehow a DNC-diversion attempt to avoid facing the reason for the DNC/HRC Electoral College loss to Trump in 2016.  There is, in fact, a "there" there.

We know, for example, Trump was negotiating with the Russians for a Trump Tower in Moscow right through the fall 2016 election. We know various Trump Towers, starting in NYC, were a favorite destination for Russian mobsters and oligarchs (a lot of overlap in those two groups, of course). We know about the Russian oligarch who followed Trump's campaign around in the oligarch's private plane. We know top and mid level Trump campaign officials were maintaining direct and indirect contacts with Russian operatives, and conduits such as Jerome Corsi and Roger Stone, regarding Wikileaks' activities, and we know the campaign knew, in advance, when leaks from the Clinton/DNC email accounts were coming. We know, too, Trump Jr.'s meeting at Trump Towers in NYC with the Russian intermediary, where the issue of US anti-Russian sanctions was in fact discussed, had Trump's blessing and acceptance, which led directly to changes in the Republican platform regarding Ukraine-Russian issues, and Trump saying he wanted to lift sanctions against Russia. 

Vice-President Pence was a leading participant in Trump's transition team, and there were plenty of interactions with Russians throughout that period, and a pay-to-play that went beyond anything seen in inauguration balls and activities.  Pence is also reasonably seen as the fruit of the poisonous tree.

I find it amusing how Pelosi is one of the various leading Democratic Party leaders who do not want to move to impeach Trump and Pence. It is amusing, too, how Comey doesn't want Trump impeached, either. It is why I wonder just how far will an insider-player such as Mueller go in his report.

But again, any right wingers not wanting to face the meaning of what we already know owes a major apology to Jane Fonda, Harry Dexter White, and Alger Hiss. Heck, Laughlin Currie and Nathan Silvermaster, two guys who really were playing footsie with the Russians in the period of WWII while working in the US government,* are owed an apology, too.  And what about Manhattan Project scientist Ted Hall, who admittedly escaped detection, until he was nearly 90 years old, for his providing information on the bomb to the Soviets?  May as well apologize to Ted Hall, too, while the right wingers are at it, as The Smyth Report, which the US government authorized published in 1946, gave out most of the information to build an atomic bomb, and the earlier Franck Report, said it only would take other nations (which obviously included the Soviet Union) three or four years to build a bomb, even without Franck's committee knowing about the espionage from Hall, Fuchs, and the minor player Rosenbergs.  The Russians exploded the first atomic bomb in 1949, four years after Hiroshima and Nagasaki.  

I have always said one may make the argument that the entire Mueller investigation is a criminalization of politics. But to do that, one must say that about the entire series of investigations against the Clintons, and must say most of the Red Scare investigations were that, too.  And even then, one can say, as I do, that most of the Red Scare was about politics, not security, and the attacks on the Clinton trivially based and definitely political, while still concluding that what we already know about Trump and his relationship with the Russians is something significant and ominous in American history.  Regardless of what the Mueller report ultimately says, one may build a reasonable argument that President Trump is a Russian asset and is compromised.  That is not something that could be said about FDR or even Alger Hiss.  It is that damning.

One last point: For those who lived during Nixon's scandals, we heard over and over how the cover-up was worse than the crime, and that was enough for the House to begin preparing articles of impeachment, which led to Nixon resigning.  Here, Trump has admitted his obstruction of justice in public statements, and, even more than with Nixon's scandals, the conduct is worse than the cover-up. I also should say I am one who says Nixon's conduct is far more than the Watergate hotel burglary, and had to do with the criminal foreign policy in Southeast Asia, particularly Cambodia, Nixon setting up a rouge CIA within a CIA, and his initial actions in the fall of 1968 to block peace in South Vietnam.

* Historians such as Klehr and Haynes are, in my view, naively breathless about whether Silvermaster's and Currie's activities actually mattered in terms of national security, and whether there were other ways the Russians could learn, for example, about FDR's position on Poland leading up to Yalta. In their discussion of Soviet espionage on the subject, they seem blissfully unaware about Churchill having already agreed, in the fall of 1944, to "give away" Eastern Europe to the Russians. Where the two otherwise naive historians are on more reasonable ground is their reasonable speculation it was Currie who learned the US was on the verge of breaking Soviet Russian codes late in WWII, and that he was likely the one who let the Russian handlers know that information. Currie also learned about FBI investigations into Silvermaster, and told that to Silvermaster. Any good historian can show how breathless Klehr and Haynes are by carefully reviewing newspaper and journal accounts in the time period, and search for articles (usually at the end of front page articles, somewhere around A19 of major newspapers) for leaks directly from government officials to reporters on each topic the spies supposedly told Russian handlers about.  There was a joke around DC in the years after WWII that the only people who read the Congressional Record were the KGB and I.F. Stone, and the same may be applied to reading newspapers carefully for leaked information.  

And please do not get me started again about Harry Dexter White, who was merely doing what FDR and Treasury Secretary Morganthau wanted, which was to cajole the Soviet Union into joining the World Bank and International Monetary Fund that were being set up as part of global institutions for a post-WWII world.  My take on Hiss, too, is just what evidence is there of anything of importance he supposedly gave to the Soviets in the late 1930s, and why does it end after 1938?  The Pumpkin Papers had minor information, and a query about an American woman who was missing in Moscow, who had been married to a Russian who had disappeared--turns out the Soviets had seized them and had killed the Russian already.  Hiss had been concerned because the fellow was a Red pro-Soviet guy, but did not know the fellow was just another victim of Stalin's purges. Most important, why is it that Hiss fought successfully against Stalin's proposal for separate U.N. votes for Estonia, Latvia, Lithuania, etc. during his time advising Hopkins and FDR at Yalta, as Conrad Black noted in his magisterial bio of FDR?  Some spy.  

What remains true is how naive most American historians have been about the period of WWII through the early post-WWII years, refusing to reflect about Churchill's refusal to allow for a second front led the Soviets to fight it alone from Moscow to Berlin, and thereby gain control over Eastern Europe, so that by 1944, Churchill knew the Russians would control that "sphere of influence" and FDR had to maneuver with that at Yalta in February 1945; how most of the information from the so-called pro-Soviet voices in the US government were more than matched by British spies, and how most of the information the pro-Soviet people provided was of little strategic value--with many, like Hiss and White, pushing hard for pro-American interest positions in the waning days of WWII (White was particularly hard at Bretton Woods and establishing a Pax Americana); and that each breathless assumption one may read should be greeted with a larger perspective of what was known in newspaper leaks already or around the time.  I still say the old Red labor official, Carl Marzani's "We Can Be Friends," written while he was serving prison time for conviction of contempt related to Smith Act charges, provides a much more sober understanding of the period (though he fell into I.F. Stone's initial trap about who really started the fighting in the Korean peninsula in late June 1950; Stone, however, got pretty much everything else correct, starting with this was no surprise attack as far as MacArthur and American observers in Korean politics were concerned) than most of the historians who get to study the period in major American universities. 

College Admissions Babylon: Upper Middle Class Edition

Finally!  Let's tell the truths here about college admissions, folks. This article in The New York Times now exposes the level I have seen since The Son, back in 2012, was applying to colleges.

The Son, back in 2012, received rejections from Cornell and Harvard with his 2320 SAT score, co-captain of the Speech and Debate Team, Eagle Scout, 5s in APs in Calc 1 and Calc 2, a weighted 4.0,  and where he took nine AP courses, where he had mostly A's, and four 5s and five 4s on the AP tests, interviewed so well the woman at Harvard and the guy at Cornell each said he was the best they ever interviewed in their years of interviews, and were enthusiastic supporters for him to get into those two institutions. I knew The Son was a close call for Harvard, but damn, if I wasn't shocked with Cornell's rejection, a school which prided itself on having the top entomology program in the nation, and where the head of the San Diego Natural History Museum considered The Son a genius with bugs, including recognition of genus and all that stuff, and where The Son had already met a few prominent entomologists because of The Son's part time and summer work at the Museum since 10th grade.  After studying up, at the time, on how the college admissions processes worked, at least on the surface, I have since said, after the experience, and observations from that experience: "Son, I failed you.  Had I made $300,000 a year, instead of under half that, and had I not been sick all these years with heart problems, I'd have had you fill in the section on requested aid, saying 'Nope!  No aid needed. We'll pay full boat!' And you'd have been a Cornell or Harvard man."

What I would say, after the experience, is the elite schools especially had "buckets," and, when you asked for the aid, you were put into the bucket with the Ivy League strivers, mostly Asian students these days, who often outdid The Son (Yes, let's be politically incorrect here).  The Ivies and Stanford had big buckets for legacies and those who came from wealthy enough families who could pay full boat, as I call it.  Those students had much less competition with each other to gain acceptance into the Ivies and Stanford.  I remember both application forms for Cornell and Harvard asked if one had a parent or grandparent had graduated from the institution.  It was that blatant.

When The Son received extremely generous scholarships from Case Western Reserve and Colgate,* mentioned in the article, our family was ecstatic, as both schools had, and continue to have, great reputations among academics for their rigorous courses, though far less so from the general public.  When The Son and I traveled to the schools, I saw there an abundance of upper-middle class students and families at the Acceptance Day weekends.  I said to The Son, "Son, these are the places where the strivers from upper middle-class families, with no legacies at Ivies and Stanford, go. I'd say this is excellent, all things considered."  Personally, I adored Colgate, as it was my humanities school heaven--and the alma mater of Charles Addams, Kevin Phillips, Michael Hiltzik, and Chris Hedges, among others (and Bill Parcells, for those who think football is an important criteria for a school)--However, the main entomology professor we met at Colgate said privately to The Son--"I am thinking of retiring before you graduate. Where else did you get in?" The Son replied UC Davis, a wonderful place, especially for entomology, but now more expensive for us than Colgate and Case Western, due to their generous scholarships. When The Son mentioned Case Western Reserve, the Colgate entomology professor leaned back, smiled, and said to The Son, "Check with me after you see Case Western.  I think you're going to want to go there more than anywhere else."  The Son and I were shocked.  Cleveland, Ohio?  What?  Over UC Davis even, the school The Son coveted since 10th Grade, at least?  Nah.  I told The Son I would pay more for UC Davis as that was the budget anyway--though that budget for tuition and room/board essentially doubled between 2009 and 2012, I should add.

Long story somewhat short: The Son attended CWR's Admissions Weekend or Weekday, I forget which, and loved CWR after spending nearly 48 hours there.  He said he never felt more at home, based upon the level of intellectualism within the sciences and math.**  I did a tour of Cleveland, and found it to be an amazing place; one that was revitalizing itself with "meds and eds." I was impressed, too, how CWR did not have its students do the cafeteria work, janitorial work, etc. that one sees at UC campuses. The students did lab work for pay, and the largely African-American community immediately around Case Western Reserve had union jobs for those manual labor positions, and some had children who matriculated at CWR.  Note to University of Southern California: Call Case Western Reserve to teach you how not to inflame and condescend to a poor, minority community around you.  The Son would walk CWR's campus late at night with no fear of the type that plagues those at USC.  Imagine that.  It's not the ultimate policy solution, but it is far more kind.  And with CWR next to the famous Cleveland Clinic, which is a wonderful medical institution which takes in and treaats anyone, and, in 2017, saved my life, well, do the public policy math.  Meds and Eds.

Anyway, The Son decided on Case Western Reserve, and in August, we traveled there for orientation. I met more parents, and, damn if they were not almost all upper middle-income earners. I met Indians (India, not Native American), African-American, Euro-American, Jews, etc., almost all, and when I considered their occupations, their way of speaking, their talk about the scholarships received, and how their sons (much more sons than daughters at CWR, as it was 55% male, much like engineering schools) were blocked from the Ivies, I knew I was speaking with upper-middle income families.  Then, I learned the CWR admissions department had done a study of the Class of 2016 (as the freshman of 2012 were called). The study showed two of the top 10 cities where students came from were Beijing, China and Seoul, S. Korea.  This was said during the student-parent assembly.  I turned to The Son, and said, "Oh, so that's where the rich people come from!  Wow!  International wealth!"  And so, when The Son met some of those students along the way, they came from the neuveau riche of those two no-longer-aspiring capitalist-oriented nations.  

So was it really a surprise to read in the New York Times article this morning that CWR and Colgate were among the schools which did not admit a lot of poor students?  Not really.  The best of the poor students get pulled into the U of Chicago, Stanford, and the Ivies.  CWR, Colgate, and the others listed in this article, focused on those students who were upper-middle class strivers who had high SAT scores, high grades, extracurriculars, and personalities that would have otherwise landed them in the tippy-top elite school ranks, and with these schools' endowments, ensured they were able to offer students over 50% off in tuition and room/board, so that both schools were less expensive than a public college like UC Davis by anywhere from $5,000 to $10,000 a year.  For us, with our $20,000-25,000 in medical costs each year, and The Daughter four years behind, these offers were godsends.  Funny aside: The Son, on CWR's FB page for incoming freshman, sardonically asked his fellow freshmen to list the schools in which they were wait-listed.  Immediately, the stories came in: The Son's was U of Chicago (U of Chicago told us, he may get in, but we must pay full boat. Yeah, right.). Other students chimed in with Harvard, Yale, Cornell, MIT, Cal-Tech, Stanford, and Dartmouth. The Son called me, and said, "Dad, you were so right about what you are seeing in all this college admissions stuff."

One thing about MIT and Cal-Tech, though. Those places are almost all meritocracies, as close as one can be.  They don't seem to care about legacies or even rich people, though being rich would help a bit, I'm sure.

The lie here is "Needs-Blind Admissions," which all the schools The Son applied to claimed to have at the time. I knew then they were liars.  Now, much of the rest of the nation knows.  

As I said to The Son, we worked hard paying for our own Meds and Eds, and that kept us from any real retirement savings, and forced our move to New Mexico, where, thank goodness, we are doing well.  During high school, we put The Son into an SAT Prep course for top students (and rich ones, too), and even hired a couple of guys who knew the application process, who helped us research schools--they pushed hard for The Son to apply to Case Western Reserve, I remember--and offered advice as to how application essays are written, and the like.  These two fellas were shocked at the change in results they saw from 2011 to 2012, as they were honest and truly just trying to offer assistance and advice, not anything fraudulent as the actresses and financier families were doing.  I remember one saying to me, "Your son was so 'Ivy League material.'  I don't get what happened.  He should have gotten an acceptance from Cornell at least."  Now, he knows why, though I told him back in 2012, and he frankly had a hard time believing me.  He had just thought the sea-change, as he checked with other advisor-friends around the nation, was just a weird blip.

I continue to insist Harvard is the pinnacle of American higher education. I know and adore its history and the institution overall. Last year, I came up with an idea for Harvard to defend itself against the Asians-Quota case: Harvard, admit you are not a meritocracy.  Admit that 30-40% of your class are relatively mediocre students from rich families and legacies.  Then, say, "We're a private institution, dammit, and if we want to do 5% set-asides for students from oppressed minorities, who have at least as good grades and such as our legacies, then who are you, on the US Supreme Court, to tell us we're bad?  Got it? Now, buzz off, and have a good day."  

I wrote this "modest proposal" last year to Noah Feldman, Constitutional law professor at Harvard Law School.  Funny, I never got a response.  Sorta like what happens to letters Derek and Clive would write, and get no response (No link as the entire bit to which I refer, "The Horn," is on YouTube and it is the King of Not Safe for Work, and highly Politically Incorrect at all levels).

* Unfortunately, The Son is a fool like his Dad.  He believes in intellectual pursuits. The Son is even more of a fool because he takes on the hardest subjects--he decided to forsake a regular Bio major at CWR for a major called Systems Biology (or BioInfomatics at a few other places), and then minor in Evolutionary Biology. Then, applying to PhD grad school, he could have tried for entomology, his first love. But no, he went for BioMathematics.  He is now finishing his first year at North Carolina State, which apparently has a top program in that subject, next to Cornell, where the soon-to-be-retiring grad school professor at Cornel had become The Son's mentor, even as he could not get The Son accepted at Cornell.  Oh well.  As I once or twice remarked with a smile to the author of this book, "Excellent Sheep," The Son is a fool for following what the author of the book advises.  I say that, but I admit, I am damn proud of The Son.  I am the Failure-Fool, and hope he will find more success in life.  I just wish The Son was as proud of himself, sometimes, and had more confidence in himself.  There is always lots of drama, where he tells us, Oh, I did poorly on this test last week, and then, the next week, he tells us "Oh, I got a 96." Ugh!  But, again, both parents find The Son brilliant, honest to a fault, and an all around morally-based intellectual person.  He writes, from what others say, very good poetry, and his heroes include Stephen Jay Gould (with whom he shares a birth date) and E.O. Wilson (with whom he shares Eagle Scout status).

** The Son received rejections from Oberlin and Reed, also mentioned.  I just think they found him too "science-y," though he is very much imbued with humanities major thinking, owing to The Parents' environment.

PS: The title of this extended blog post is a play on the title of this book. And if you want to learn how to observe how poor, middle, upper-middle and rich people behave, two books worth perusing or reading are: the late Paul Fussell's "Class: A Guide Through the American Status System," and Lewis Lapham's "Money and Class in America." Both are written with sly, sardonic, journalistic styles, and are as enlightening as enjoyable reading.

Not all kids are alright, and the US Supreme Court conservatives are salivating

This case of the Ohio student may become a legal battle that goes to the US Supreme Court in the current environment.  I recall a case somewhat similar to this in CA nearly twenty years back.  In that case, a student in a Poway, CA school wore t-shirt which literally called out homosexuality as an abomination, after the school had just dealt with anti-homosexual students' violence against LGBT students. The student wore the t-shirt as part of an informal, almost satiric version of Gay Pride day.  The student in that case received in-office detention on the day he wore the t-shirt, with no suspension and nothing placed in his record.  The student nonetheless sued for violation of his free speech rights.  At the time, I thought that case presented a much closer call, as I thought about my own disputes with high school administrators about "offensive" t-shirts, though I also clearly understood what was at stake for the LGBT students in Poway, CA at the dawn of the 21st Century.  The way the case resolved, in the practical sense, was the federal court of appeals (Ninth Circuit) found the school had discretion to ban t-shirts that demeaned other students, and it was a decision with which I agreed.

Here, the student was directly confronting organized official speech on Gay Pride day.  While she may find herself wanting to analogize her position to dissenting students standing up to an official proclamation supporting the Vietnam War (Tinker merely dealt with wearing a black armband meant to protest the war, which is sorta innocuous when we think about it), we have to balance this with the fact that the laws, as presently articulated, mean to provide a safe space for young LGBT students, who normally have to traverse a closed, intolerant home, and where sometimes the closed environment in a school may be something out of a Shirley Jackson short story nightmare, as happened in Poway, where gay students were being harassed and even beaten.

I normally want to give all kids space, but this is one of the rare situations where pluralism and secularism should be enforced. The Ohio student's objection is her belief LGBT students are somehow defective, and she demands tolerance for not wanting to tolerate others. Assuming no other facts than as presented, the legal position, based upon the laws already passed against anti-LGBT discrimination, should be Gay Pride day should not become a day of controversy in the closed environment of a school.  It is not like Columbus Day in a State, such as New Mexico, where there are living, existing Native Americans, and likely time for a different approach generally.  One may also say, Do we still need Gay Pride day?  My take is, the school should have discretion to say there should be.  I don't get the school is located in a place where LGBT rights are as front and center as, say, San Francisco, CA.

My only other comment is how so many organized institutions promoting Christianity have become obsessed with a subject Jesus had no specific opinion about, when Jesus easily could have had one, had Jesus chose to do so.  The closest one gets in the Christian Bible is from St. Paul, in Romans 1:21 writing snidely about men having lust for men, for what I had thought was in the context of Sodom and Gommorah. Still, it is not Jesus talking. I also hear particular anti-LGBT Christians quote the Hebrew Bible's resident scold, Leviticus.  Most civilized Jews have moved well beyond various parts of Leviticus (obviously not the incest and beastiality), and those sections of the Torah which call for stoning adulterers and stoning those who do not rest on the Sabbath day. One wonders, however, if the Ohio student had ever posted Bible verses of Jesus talking smack against the rich, of which Jesus had decidedly direct opinions, or if the student thought about posting the Beatitudes, if she wanted to remember the LGBT students are her fellow human beings.   

My concern, in this current judicial environment, this may become a "test" case.  I can almost see Kavanaugh, Gorsuch, Thomas, and Alito salivating, and Roberts becoming nervous, thinking to himself again, "How did I get stuck with these guys?"  

Sigh.

A poem entitled "March 2, 2019"

Let the rich quake with fear.
Let the racists seethe with rage.
Let the corporate media distort, divert, and ultimately manipulate what it calls news to defend the wealthy and powerful.

Some say, "Bernie is back!"
No. Bernie is not back.
Bernie has always been here.
And there.
We just had to find him.
And if not him, someone else.
And if not someone else, ourselves.

An Orange Menace stares at us from outside the window of the Overton.
He laughs at us
Swinging his golf clubs.
He is away from us, but tells us he is right here.
The Orange Menace's enablers push inward the window.
They implore us to divide ourselves.
They tell us there is no choice but to chain ourselves
To never-ending despair, anger, and fear of each other.
"Grab your guns!" they cry.
"Winter is coming!" they yell
As if they are in a made-up dark age vomiting something they heard
From watching a screen in a stupor.
No. It is better to ingest the words of the old poet
Who once told us
In a dark time,
"We must love one another or die."

We are not defenseless under the night.
We are not bound by separateness, but by our natural empathy we lost, but must find again.
We must push the window the other way.
The way forward.
The way toward light, away from night.
The way toward commonality.
To all those who share our bi-ped existence,
Even the ones we deride as "illegal."
And to those living creatures under water, in forests, in deserts, and those creatures too small or hidden to see.
To those with whom we share, and must share
And share alike to survive.
We must embrace and guard the lives of trees, water, rocks, and the sky,
Or else die with them.

A sage from the other side of my world once said,
"Let my country awake."
Did our country awaken today in Brooklyn?
Will it wake tomorrow when our voices shout back at the poison spewed from cables onto our living room screens?
Will we wake in time to save our children, and children's children?
Will we wake in time to save bees, and the masses of creatures and coral reefs heading toward final exits?
We are still asleep.
We are still asleep when we walk around accepting a world
Where three people own more wealth than half the people on the planet.
We are still asleep when dreaming of outrages of the day
While we suffer in despairing and isolating passivity.
There is much injustice in our world.
It overwhelms us.

Whelm back, then.
Push back, then.
Talk back, then.
Organize back, then.
Anger is an energy, they shouted back then.
Anger is an energy.
Just not the only energy.
There is energy in empathy.
In hope.
In love.
In knowing you matter, not in the end, but in new beginnings.
You matter.  We matter.
And before we get too full of ourselves
Remember
We are matter.
Just like every other creature and organism on the planet.
Take care.
Push the window out.  Push it forward.
Into the light.