JOL Online Article

by dhimelman on May 23, 2022

Scattershot: Guns, Gun Control, and American Politics

Maria Mortenson*

INTRODUCTION

In 1967, the Black Panther Party for Self-Defense sold Mao’s Little Red Book to raise money to buy guns.¹ The Panthers traveled from Oakland to the University of California, Berkeley, where they sold the books to aspiring student communists in the campus center.² Huey P. Newton’s sales pitch? “Power comes out of the barrel of a gun. Quotations from Chairman Mao Tse Tung. Get your Red Book.”³ The Panthers soon had enough money to purchase shotguns, pistols, and semi-automatic rifles,⁴ which, in the spirit of self-defense, they carried proudly during their combative patrols of Oakland’s police force.⁵ As Bobby Seale recalled in his memoir, Seize the Time, Newton “studied those law books, backwards, forwards, sideways, and cattycorners; everything on gun laws” to ensure that the Panthers were obeying California law.⁶ But their patrols were in danger.

The Panthers had attracted the attention of Don Mulford, a Republican state representative from Oakland. That April, Mulford threatened to “get” the Panthers by making their patrols illegal.⁷ He quickly followed through, introducing a bill to prohibit Californians from carrying loaded firearms “in any public place.”⁸ The Mulford Act, which remains effective in California, was signed into law by then-governor Ronald Reagan after the Panthers staged a daring armed protest of Mulford’s proposed bill at the California State Capitol.⁹

Today, many liberals view gun control as an unmitigated good. During campaign season, Democratic politicians use gun control as a powerful political tool to energize their supporters. In 2019, when Beto O’Rourke declared that, “Hell, yes, we’re going to take your AR-15, your AK-47,” during a presidential primary debate, the audience cheered so loudly that he had to shout to finish his sentence.¹⁰ Conservatives, for their part, tend to be hostile towards gun control.¹¹ After O’Rourke’s debate performance, Lauren Boebert, now a freshman representative from Colorado,¹² confronted O’Rourke at an Aurora, Colorado town hall.¹³ Her response to O’Rourke’s proposed assault weapons buyback program? “Hell no.”¹⁴ Over a heckling crowd, Boebert pressed on to ask how O’Rourke planned to “legislate evil.”¹⁵ As Boebert saw it, the cause of crime “is not the gun, it is the heart of the man that does that.”¹⁶

Absent from this debate is any recognition of the reality that, since before America’s founding, firearms regulations have disproportionately restricted black Americans’ access to firearms.¹⁷ The Mulford Act’s racially-motivated approach to gun control was, in short, not new. Indeed, as early as 1680, Virginia forbade all black residents, both free and enslaved, from possessing weapons of any kind.¹⁸ Although the state subsequently loosened this restriction out of concern for its vulnerable frontier properties, gun ownership by Virginia’s black population remained subject to regulation.¹⁹ Across the country, laws that explicitly predicated gun ownership on race coexisted with limitations on gun use in urban areas and regulations of gunpowder storage.²⁰

Although no jurisdiction would condition gun ownership on race today, modern gun control was built on this dual approach: seeking to control America’s black population on one hand, while addressing practical safety problems on the other. The Mulford Act and the federal Gun Control Act of 1968 showed that racialized fear was an important motivating factor behind the legislation that constitutes our modern gun control regime. Both laws aimed to promote public safety yet pursued this goal by making guns inaccessible to disfavored groups. The Mulford Act’s prohibition of open carry targeted the Black Panther Party,²¹ while the Gun Control Act made it a crime to sell a gun to convicted criminals, drug addicts, and any person deemed “a mental defective.”²² These categorizations of gun use and ownership served as rough proxies for dangerousness and resonate with today’s discourse on gun control, focused as it often is on mental illness and mass shootings.

Gun control’s racial history is obscured by today’s partisan divide. What’s more, the partisan split over gun control is deeply inconsistent with both parties’ other positions. Democrats’ eagerness to restrict gun ownership conflicts with their embrace of other personal freedoms, such as abortion access and sexual liberty, and runs up against liberal aspirations to shrink the criminal justice system. In a time when many Democrats decry mandatory minimum sentencing and racially disproportionate criminal punishment, proposals for gun control legislation that incorporate harsh minimum sentences—like Representative Sheila Jackson Lee’s (D-Tex.) proposed federal firearms registration and licensing system²³ —seem incongruous, an uncomfortable reminder of Democrats’ prior “tough on crime” stance. For their part, Republicans’ anti-regulatory stance is consistent with libertarianism, but in tension with mainstream conservatives’ comfort with safety-promoting laws. After all, most abortion regulations, a perennial Republican project, are passed to protect unborn life and (perhaps pretextually) promote women’s health.²⁴ Those interested in overcoming the current deadlock on gun control would do well to consider whether legislating to criminalize supposedly “dangerous” gun use in fact promotes public safety for society writ large.

by sbreggia on April 7, 2022

A Conservative Approach to Early Childhood Education: Building on the Foundations of Success & Boosting Academic Achievement Through Choice

Representative Burgess Owens*

I. INTRODUCTION

As the son of an educator and a grandfather to sixteen school-aged children, I believe that Early Childhood Education (“ECE”) is essential for many reasons, one of which is that ECE simultaneously provides support for children to learn, for parents to enter the workplace, and for future generations of American workers to grow. I have seen the importance of ECE firsthand as a father and grandfather, as well as in my role as Ranking Member of the House Subcommittee on Early Childhood, Elementary, and Secondary Education.

Raising children is one of the most rewarding and challenging experiences in a person’s life. As part of that process, ensuring that children have a solid start is the first step to helping them grow and develop. One of the most important tools at a parent’s disposal is ECE, access to which has significant impact on the foundations that are built for children from birth to fifth grade.¹ The impact of high-quality early education on childhood development and beyond cannot be overstated. Americans of all political stripes, alongside local municipalities and private sector partners, must work together to support a strong child care sector that assists hardworking American families.

The COVID-19 pandemic dealt a significant blow to child care, in-person education, and the American workforce. When most of the economy was shut down, schools and child care centers also shut down.² As the pandemic wore on, many schools remained closed, but child care providers worked to remain open or reopen because they recognized their importance in keeping America going and helping families and children succeed.³

When combating these challenges, we must remember that the beginning years of a child’s life are the building blocks upon which they rely on to create a bright future. Without access to high-quality care, as defined by meeting the specific needs of each child, it is often more difficult for parents to go to work or further their own education. Access to ECE in America will help determine the success of future generations. It is imperative that we think outside the box and focus wholly on children by protecting parental choice, saving taxpayer dollars, and prioritizing the future workforce of America. The time to work together for bipartisan childcare solutions that encompass program alignment across federal, state, and local governments is now. We have no time to waste—parents are waiting, children are growing, and our nation is falling behind as a leader in education.

by sbreggia on December 4, 2021

Legal Constraints on Executive Power to Manage Agency Vacancies

Lauren Shapiro*

I. INTRODUCTION

Throughout the history of the Republic, high-level government offices have often gone unfilled for periods of time.¹ Such vacancies occur for a variety of reasons—perhaps the President has failed to nominate a permanent officeholder, the Senate has stalled on a nominee’s confirmation vote, or the original confirmed officeholder has died, resigned, become sick, or been fired.² Historically, regardless of the reason, extended vacancies for top positions requiring Presidential nomination and Senate confirmation (“PAS” positions) have been rare.³

The Trump administration departed from this trend: it faced more vacancies for PAS positions—and filled them with longer-serving acting officials—than any prior administration for which data exists.⁴ Acting officials, who are not Senate-confirmed to the relevant position, occupied several high-level posts for years during the Trump administration.⁵ Some positions, such as the State Department Special Envoy for North Korea Human Rights Issues, remained perennially vacant.⁶

Under the Federal Vacancies Reform Act of 1998 (“FVRA”), extremely long tenures of acting officials such as these must eventually come to an end. Pursuant to the FVRA, when the permissible period for acting service expires, the PAS position again becomes vacant, and “only the head of [the] agency may perform any function or duty of [the] office.”⁷ If someone other than the head of the agency performs the functions and duties of the again-vacant office, the resulting actions will be rendered void ab initio.⁸

by lzigerelli on June 10, 2021

Reconceptualizing Congressional Decision-making Around Well-being: A Health in All Policies Approach

Congressman TJ Cox, Dr. Kathy Murphy, & Rebecca Kahn

I. INTRODUCTION

Protecting and promoting the public’s health is one of the most important roles of government. The preamble of the United States Constitution states that our government’s role is to “secure the blessings of Liberty” and “insure domestic Tranquility” through the establishment of “Justice,” a “common defense,” and through the “promot[ion] of general Welfare” for ourselves and future generations.¹ Article I of the Constitution establishes the legislative branch of the federal government—the Congress—which has the purpose of enacting laws in service of this preamble.²

Unfortunately, public health or human well-being is not formally considered in the congressional lawmaking process, much less given primacy. Instead, a potential law’s effect on the federal budget is the only scored consideration in the annual legislative budget process.³ Since the Congressional Budget and Impoundment Control Act of 1974, the requirement of a cost estimate in the form of a Congressional Budget Office (“CBO”) score for most legislative proposals has oriented the lawmaking process towards economic considerations, first and foremost.⁴ While this is a critical function, as Robert Kennedy stated in 1968, “the gross national product does not allow for the health of our children . . . [it] measures everything in short, except that which makes life worthwhile.”⁵

by pgoffner on October 29, 2020

Fixing the United States Postal Service: How Congress Must Act to Bring Financial Stability to the Agency and Comprehensive Mail Service to the American People

Congresswoman Alma S. Adams, Ph.D. and Gordon E. Holzberg

I. INTRODUCTION

The United States Postal Service (“USPS”) — first established as the United States Post Office with the Post Office Act of 1792 — has long served the American people. As of 2020, the Postal Service employs over 600,000 people,¹ operates over 31,000 retail locations,² and handles 48% of the world’s daily mail flow.³

With the help of Congress, the Postal Service has evolved over the generations to adapt to the pressures at hand. In the late 1960s, those pressures—which included declining revenue, increasing operating expenses, and employee dissatisfaction⁴—facilitated the evolution of the U.S. Post Office Department into the U.S. Postal Service, the agency that currently provides mail service in the United States.⁵ In the early 2000s, the pressures centered on declining mail volume.⁶ Now, USPS faces yet another crisis, in addition to the declining volume of letters and flat mail⁷: the massive sums owed by the Postal Service to its retirees.⁸ Fortunately, however, Congress has both the power and the prerogative to identify and enact solutions to these problems.

The first section of this essay will explore the reformation of the Post Office into the Postal Service. The next will examine legislation passed in 2006 that impacted the Postal Service’s current dismal financial status. The final section will lay out a comprehensive vision of the postal reforms needed to ensure the long-term health of this vital institution.

by pgoffner on June 28, 2020

A Chapter 11 Makeover: Timely Revisions to the Bankruptcy Code to Assist Small Businesses Through Crises

A Chapter 11 Makeover: Timely Revisions to the Bankruptcy Code to Assist Small Businesses Through Crises

Matthew J. Razzano*

I. Introduction

Rarely does Congress act proactively. But with the passage of the Small Business Reorganization Act (SBRA)^[1] in 2019, the legislature may have—unknowingly at the time—saved many small businesses from the devastating economic effects of the coronavirus. For years, critics have bemoaned the Bankruptcy Code’s (Code) rigid framework for reorganizing financially distressed companies—specifically its one-size-fits-all treatment of the corner store and the Fortune 500 conglomerate.^[2] Yet the SBRA attempted to streamline the lengthy and costly reorganization process, creating a fast-track path for small businesses in Chapter 11.^[3]

This Essay argues that while Congress may have gotten lucky in amending the Code prior to a flood of pandemic-induced small business bankruptcies, Congress can make additional changes to better accommodate these struggling entrepreneurs. Part II discusses historical issues with the Code’s treatment of small businesses and the stress placed upon these owners during the coronavirus pandemic. Part III introduces the provisions of the SBRA. And Part IV addresses additional changes needed to holistically improve the bankruptcy system for small business owners.

Policy Essay
Law Labor Reform at a Critical Juncture: The Case for the Protecting the Right to Organize Act Representative Andy Levin & Colton Puckett	1

Articles
Strengthening the Federal Approach to Educational Equity During the Pandemic Kimberly Jenkins Robinson	35
Sunsets are for Suckers: An Experimental Test of Sunset Clauses Kristen Underhill & Ian Ayres	101
Are State Public Option Health Plans Worth It? Jaime S. King, Katherine L. Gudiksen, & Erin C. Fuse Brown	145

Note
The LEARN Act: A Bipartisan Legislative Proposal to Advance Educational Opportunities for Immigrants and English Learners Christopher Cruz	223