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 BOBBY SEALE, SEIZE THE TIME: THE STORY OF THE BLACK PANTHER PARTY AND HUEY P. NEWTON 79–85 (1968).  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 Id. at 80. 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 Id.  The Panthers soon had enough money to purchase shotguns, pistols, and semi-automatic rifles,4 See id. at 85 (listing weapons owned by the Panthers). which, in the spirit of self-defense, they carried proudly during their combative patrols of Oakland’s police force.5 See id. at 80–81.  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 Id. at 73. 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 HUEY P. NEWTON, REVOLUTIONARY SUICIDE 146 (1973) (Newton recounted a radio show that had invited him as a guest. He recalled Mulford calling in: “He told us that he planned to introduce a bill into the state legislature to make it illegal for us to patrol with our weapons. It was a bill, he said, that would ‘get’ the Black Panthers.”). He quickly followed through, introducing a bill to prohibit Californians from carrying loaded firearms “in any public place.”8 Mulford Act, ch. 960, 1967 Cal. Stat. 2459 (codified as amended at Cal. Penal Code § 25850). 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 See ADAM WINKLER, GUNFIGHT: THE BATTLE OVER THE RIGHT TO BEAR ARMS IN AMERICA 244–45 (2011).

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 Beto O’Rourke (@BetoORourke), Twitter (Sept. 12, 2019, 9:26 PM), https://twitter.com/BetoORourke/status/1172320706526269440 [https://perma.cc/MN3R-ZDR9]. Conservatives, for their part, tend to be hostile towards gun control.11 Republican Platform 2016, REPUBLICAN NAT’L COMM. PLATFORM COMM. 12–13 (2016), https://int.nyt.com/data/documenthelper/7019-republican-platform/cc2c15a0e1b432d6964b/optimized/full.pdf [https://perma.cc/7MPM-PJMC] (Republican Party platform from 2016) (opposing, among other things, “ill-conceived laws that would restrict magazine capacity or ban the sale of the most popular and common modern rifle” and “federal licensing or registration of law-abiding gun owners, registration of ammunition, and restoration of the ill-fated Clinton gun ban.”). The Republican Party declined to adopt a new platform in 2020. Resolution Regarding the Republican Party Platform, REPUBLICAN NAT’L COMM. 1 (2020), https://prod-cdn-static.gop.com/docs/Resolution_Platform_2020.pdf?_ga=2.165306300.2055661719.1598124638-455285808.1584478680 [https://perma.cc/GNS3-TBW7]. After O’Rourke’s debate performance, Lauren Boebert, now a freshman representative from Colorado,12 Biography, CONGRESSWOMAN LAUREN BOEBERT, https://boebert.house.gov/about/biography [https://perma.cc/8KNA-ZXCV] confronted O’Rourke at an Aurora, Colorado town hall.13 Shaun Boyd, Colorado Woman Challenges Beto O’Rourke’s Plan For Buyback Of AR-15s, AK-47s, CBS DENVER (Sept. 20, 2019, 11:38 PM), https://denver.cbslocal.com/2019/09/20/beto-orourke-aurora-colorado-buyback-ar-15-ak-47-semi-automatic/ [https://perma.cc/X2W2-THMV]. Her response to O’Rourke’s proposed assault weapons buyback program? “Hell no.”14 Id.  Over a heckling crowd, Boebert pressed on to ask how O’Rourke planned to “legislate evil.”15 Denver7, Full Town Hall: Beto O’Rourke Campaigns in Colorado, YOUTUBE (Sept. 19, 2019), https://www.youtube.com/watch?v=ROFlCzIKdyI [https://perma.cc/5WYX-3H9U]. As Boebert saw it, the cause of crime “is not the gun, it is the heart of the man that does that.”16 Id.

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 See Robert J. Cottroll & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309, 323–26 (1991) (discussing how race impacted the English tradition of bearing arms in colonial America, with Virginia explicitly banning all black residents from owning firearms and other colonies, including Massachusetts and New Jersey, exempting their black residents from militia service). 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 Id. at 325. 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 See id.  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 See District of Columbia v. Heller, 554 U.S. 570, 683–86 (2008) (Breyer, J., dissenting).

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 See PART II, infra.  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 Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213-2 (codified as amended at 18 U.S.C. § 921). 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 Sabika Sheikh Firearm Licensing and Registration Act, H.R. 127, 117th Cong. (2021). —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 Olivia Gans Turner & Mary Spaulding Baulch, When They Say… You Say: Defending the Pro-Life Position & Framing the Issue by the Language We Use, NAT’L RIGHT TO LIFE COMM. 5, 12 (n.d.), https://www.nrlc.org/uploads/WhenTheySayPacket.pdf [https://perma.cc/AKD4-JTZA] (describing fetuses as possessing an “unalienable right to life and deserv[ing] full protection under the law” and asserting that laws restricting abortion are “protective legislation insuring that women are given information about risks and alternatives to abortion and scientifically accurate information about the developing unborn child”). 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.

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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 See Nina A. Mendelson, The Permissibility of Acting Officials: May the President Work Around Senate Confirmation?, 72 ADMIN. L. REV. 533, 578 (2020); see also Anne Joseph O’Connell, Actings, 120 COLUM. L. REV. 613, 638–41 (2020) (citing past research and statistical data on vacancy rates). 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 See 5 U.S.C. § 3345(a) (specifying that the FVRA applies when covered Senate-confirmed officers “die. . ., resign. . ., or [are] otherwise unable to perform the functions and duties of [their] office.”); see generally Ben Miller-Gootnick, Note, Boundaries of the Federal Vacancies Reform Act, 56 HARV. J. ON LEGIS. 459 (2019) (contending that the FVRA does not apply to firings). Historically, regardless of the reason, extended vacancies for top positions requiring Presidential nomination and Senate confirmation (“PAS” positions) have been rare.3 See O’Connell, supra note 1, at 645, 648; see also Mendelson, supra note 1, at 582 (citing Thomas Berry, Is Matthew Whitaker’s Appointment Constitutional? An Examination of the Early Vacancies Acts, YALE J. ON REG.: NOTICE & COMMENT (2018), https://www.yalejreg.com/nc/is-matthew-whitakers-appointment-constitutional-an-examination-of-the-early-vacancies-acts-by-thomas-berry/ [https://perma.cc/NTL8-XD6F]) (“Berry elaborated further that periods of [acting] service [pre-1860], including for the ad interim appointments, generally were extremely short—on the order of days or weeks rather than months or years.”).

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 See O’Connell, supra note 1, at 623, 643–57; see also ANNE JOSEPH O’CONNELL, ACTING AGENCY OFFICIALS AND DELEGATIONS OF AUTHORITY (2019), https://www.acus.gov/sites/default/files/documents/final-report-acting-agency-officials-12012019.pdf [https://perma.cc/D7CR-BX3Q] (“President Trump’s acting Secretaries have served longer, on average, than recent Administrations.”) [hereinafter O’CONNELL, ACTING AGENCY OFFICIALS]. Acting officials, who are not Senate-confirmed to the relevant position, occupied several high-level posts for years during the Trump administration.5 See BOB COHEN ET. AL, P’SHIP FOR PUB. SERV., THE REPLACEMENTS: WHY AND HOW “ACTING” OFFICIALS ARE MAKING SENATE CONFIRMATION OBSOLETE 7–8 (2020), https://ourpublicservice.org/wp-content/uploads/2020/09/The-Replacements-1.pdf [https://perma.cc/Z2LR-TUX8]. Some positions, such as the State Department Special Envoy for North Korea Human Rights Issues, remained perennially vacant.6Id.

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.”75 U.S.C. § 3348(b)(2) (2004). 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.85 U.S.C. § 3348(d)(1) (2004).

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

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.

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.

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Investigating the Attendant Circumstances of RICO from Its Early History and Drafting to Transnational Organized Crime and Extraterritorial Applications: A Perspective on U.S. Prosecutions, Ideology, and Globalization

By: Alina Veneziano*

Abstract

This Article traces the history of extraterritorial regulation, as applied to the Racketeer Influenced and Corrupt Organizations Act (“RICO”), through an examination of underlying domestic circumstances, such as criminal prosecutions, ideology, and globalization. Legal analyses have focused either on the problems of prosecutorial decision-making domestically or the history, shortcomings, and recommendations of RICO. This Article departs from the “either-or” approach and instead combines the two paths into a single analysis of these domestic effects on the extraterritorial regulation of RICO cases. In other words, its purpose is to analyze the phenomenon of extraterritoriality under the basic principles of criminal law, including the duties of prosecutors, the roles of courts, and the ideals that influence these respective parties. While most scholarship relating to extraterritorial applications tends to analyze such issues under international law principles, such as prescriptive jurisdiction or via international comity, sovereignty, or congressional intent, this Article strives to understand these issues on a national level.

While early judicial holdings have been mainly territorial, and courts have thus resisted utilizing extraterritorial regulation, a different situation is presented with organized crime. It is easily the case that organized crime schemes cross multiple borders, and, with the advent of technological advances and globalization, the methods of manipulation and evasion are multiplying faster than law enforcement can keep up. Congress remedied this situation by drafting RICO to target organized crime in a statute that provides for both criminal and civil suits. The problem is that the courts have interpreted this arguably clear statute in a manner that negates RICO’s original intent, force, and meaning. It is these holdings that set the stage for the next era in U.S. history in dealing with transnational organized crime and RICO. Such rationales are based on attendant circumstances such as the resources of prosecutors, ideology, and globalization.

But there is a problem within the U.S. democratic system: lack of resources, ideological inclinations, and the struggle to balance adherence to congressional intent with the consistent application of relief to injured parties. The realizations/recommendations identified by this Article are threefold: (1) to understand that is perfectly permissible for Congress to be concerned with transnational organized crime only as it applies to domestic conditions; (2) to identify a sufficient U.S. nexus requirement that is consistent in civil RICO applications and reduces the risk of foreign resentment; and (3) to implement training in local, state, and federal law enforcement regarding RICO’s intended coverage and geographic scope. While foreign nationals should demonstrate the domestic injury requirement, this same reasoning should not extend to U.S. nationals. Instead, U.S. claimants under a U.S. statute should be able to assert a civil RICO claim without the unprecedented domestic injury requirement in RJR Nabisco v. European Community.[1] The U.S. nexus requirement for U.S. nationals is found in their citizenship, which should be interpreted in a manner as to satisfy the domestic injury requirement when the private RICO claimant is a U.S. national. Such realizations reduce foreign infringement, case-by-case distinctions, and foreign-cubed transactions. Critically, such recommendations have the secondary effect of alleviating prosecutorial overload by shifting some cases to private claimants, reducing the cases that prosecutors bring that fall outside the types of cases envisioned by Congress, and providing more consistent application without the need for judicial or congressional involvement. By redefining the scope and reach of RICO, internal efficiencies are achieved and this, in turn, affects the U.S. enforcement mechanisms on the international field.

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Chairpointment: Rethinking the Appointment of Independent Agency Chairpersons

Chairpointment: Rethinking the Appointment of Independent Agency Chairpersons

Samuel Rubinstein*

The modern independent agency chairperson possesses great executive and administrative power.  Among other things, she usually can appoint and supervise officials, preside at meetings, and distribute the work among her fellow commissioners or board members.  Given this increased power as the chairperson, she is still just one vote.  Despite this, as the “head” of the agency, she is the face of the agency when dealing with other governmental bodies and the public.  However, her appointment procedure is inconsistent—sometimes the President can choose an incumbent commissioner without Senate approval, sometimes the President needs to go back to the Senate for approval, and in rare instances, the board members get to choose the chair themselves—and entirely unstudied.

This Article examines “chairpointments” in the context of the powers of an independent agency chairperson.  In doing so, the Article determines whether chairpersons are principal or inferior officers and the consequences of either result.  Finally, the Article addresses how chairpointments should to be reorganized and harmonized. Continue reading “Chairpointment: Rethinking the Appointment of Independent Agency Chairpersons”

WARNing: The “Liquidating Fiduciary” Exception Should Not Exist

WARNing: The “Liquidating Fiduciary” Exception Should Not Exist

Jonathan C. Gordon*

 

Abstract

The Worker Adjustment and Retraining Notification Act requires employers of a sufficient size to provide sixty days’ notice to employees affected by plant closings or mass layoffs. The Department of Labor, meanwhile, said that fiduciaries that are liquidating a business do not have to comply with that notice requirement. Courts have uniformly held that such a “liquidating fiduciary” exception exists. I disagree; there is no such exception.

Using traditional tools of statutory interpretation, I submit that Congress did not mean for such an exception to apply. Thus, Congress should clarify the WARN Act and make clear that there is no exception for “liquidating fiduciaries.” Until then, however, courts should stop applying the exception.

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