The Cracking Up of America
Guns, Abortion, and How America Ends
This past weekend, we saw three mass shootings in America.
In Buffalo, an eighteen year old white supremacist shot 13 people, 11 of whom were Black Americans, after driving four hours to a Black neighborhood in New York State, opening fire in the parking lot of a grocery store, entering it, and executing people with a weapon labeled with racist slurs.
In Houston, five people were shot at a farmers’ market. Two died.
And then yesterday afternoon, here in Southern California, at a church I had driven past with my children hours before, a shooter opened fire on Taiwanese elders at a lunch hour. The victims are 66, 75, 82, 86 and 92.
The horror of this can’t be overstated, yet again. It is a uniquely American problem.
And it could be stopped, were it not for an abominably stupid, wildly out of date amendment to the US Constitution passed on December 15, 1791 (read that again), namely the Second Amendment.
California, where I live, has the strongest gun laws in the nation. We’ve had an assault weapons ban since 1989. We have passed 107 gun safety laws in total. Just last month, Governor Newsom sponsored legislation that would allow California citizens to bring civil actions against any person who manufactures, distributes, transports, imports into the state or sells assault weapons, .50 BMG rifles, ghost guns, or ghost gun kits. Pending legislation also includes the largest gun buyback program in America.
Over and over again, the people of California have voted to limit guns in our state. Frankly, if any state was going to ban guns outright (something I am very much in favor of), it is likely to be the state in which I live.
We have a problem, though: we are a state in the union of states known as America. In addition to every state having its own state-level courts, we are all also subject to federal law, as applied through our federal court system. That subjects us all to the (shall I say it again?) abominably stupid, wildly out of date Second Amendment to the U.S. Constitution, and therefore to the rulings of federal judges.
Five days ago here in California, a three-judge federal appeals court for the Ninth Circuit overturned California’s ban on selling assault weapons to anyone under the age of 21 on the claim that it is unconstitutional under the Second Amendment. Two of those three judges on the panel (namely the majority opinion) were appointed by Donald Trump. They have lifetime appointments, and they are both younger than I.
This is not the first time this has happened. Last year, a Trump appointed judge completely overturned California’s ban on assault weapons that has existed here since 1989, claiming that an AR-15 was comparable to a swiss army knife. He was later overruled by a panel of the same court, with different judges, that last week decided 18 year olds should be able to buy AR-15s here.
California has the fifth largest economy in the world. We could effectively be our own country. When federalism overrules the will of the people of our state, and does so routinely, it’s a legitimate question whether federalism is serving us any longer.
The recent leaked opinion from the Supreme Court on abortion rights raises another, still more dire set of issues on this question for the states within the nation though, given that abortion isn’t governed by an express right within the constitution but rather an implied right of privacy.
Roe v. Wade held that abortion was legal in the United States. Since that time, each state has been free to regulate abortion within its own borders, in part due to the fact that the holding of Roe was based in that implied right to the Constitution, rather than an explicit amendment a la guns and the Second Amendment.
As a result, assuming that the Supreme Court does what the draft opinion suggests it will do in Dobbs, abortion will become illegal immediately in twenty-six states. In the remaining twenty-four states, however, various different standards for abortion access will apply.
This raises an enormous set of legal conflicts going forward, as follows.
Some states are rushing to enact new legislation to protect and expand abortion within their own borders in light of the looming overturn of Roe. California, Illinois, Oregon, Washington, and Vermont are among those states. New York’s Governor Hochul recently announced $35 million in new funding to abortion services providers to stabilize access to abortion in that state.
Moreover, last December, long before we even knew of the noxious and evil proposed ruling in Dobbs, Governor Newsom announced that California will be an abortion sanctuary state in the event that Roe is overturned.
California’s state medicaid program already covers the cost of abortion for low-income California residents. California is now considering provisions that will pay travel and housing costs for those outside the state who wish to come to California for abortion services.
Since the draft Dobbs opinion was leaked, Governor Murphy of New Jersey has gone further, announcing that “New Jersey will not cooperate with any out of state investigation into our health care providers that seeks to punish anyone – patient, provider, counselor, friend, or Uber driver – for providing abortion care.”
But there are some serious problems with how this will play out in our federal court system in light of other provisions in our Constitution– issues that legal scholars are already considering at length.
For example, under the Full Faith and Credit clause of the Constitution, one state is obligated to give full faith and credit to the legislation and court rulings and determinations of another state. This is how, for instance, if you are married in Connecticut, your marriage is still valid if you move to Arizona.
But when one state defies another state’s rulings and laws, justifiable as that defiance may be, a federal court could rule that that defiance violates the Constitution.
So what happens when, hypothetically, a federal court tells New Jersey that its refusal to extradite a doctor who performed an abortion on a Texas resident who traveled to New Jersey is unconstitutional, and that New Jersey must extradite the doctor and comply?
What happens if New Jersey refuses?
At this point, America justifiably cracks.
Why? Because if conservative judges determine that the document that binds us requires states fighting to protect the human rights of its own citizens to comply and violate those rights, and that state defies that judicial ruling (as it should), then the Constitution becomes effectively meaningless.
The union will no longer be bound by a common set of governing principles, and the nation will effectively be a nation no more.
So what happens if America breaks apart along ideological lines? If twenty-six states deny the rights of their citizens, force birth upon their residents, and seek extraterritorial application of their own laws? If twenty-four, in opposition, refuse to comply with potential court orders to extradite their own citizens for prosecution, or provide evidence of abortion, or cooperate with other efforts to violate their own laws within their own borders?
Worse yet, what happens if the GOP regains control of the House, Senate and presidency and, as the far right has recently signaled it wants, a federal abortion ban becomes law? What happens if California et al. decide to defy that?
Now you see why I’ve been tweeting recently that I don’t see any way that this ends without the end of America itself. We are quite literally on the verge of cracking up.
Legally, of course, this isn’t easy. In theory, a state can secede from the United States of America. It’s happened before– the northern part of the Louisiana Purchase seceded and is now part of Canada, and the Philippines seceded as a territory in 1946. However, the Supreme Court ruled in 1869, post civil-war in a case captioned Texas v. White, that unilateral secession– namely a state simply declaring that it is seceding– is unconstitutional, but held that secession of a state or states in theory could be accomplished through the nearly impossible task of obtaining the approval of both houses of Congress and then ratification by three fourths of the nation's legislatures to secede– the same process as obtaining a Constitutional amendment.
However, the court in Texas v. White did note that states could secede “through revolution,” which brings me to this point: does the law of the United States control if a state refuses to comply with it? If, say, California decides it has had enough of the will of its people being overturned by right-wing appointed federal judges, and puts up a ballot initiative to secede and form its own nation, and that ballot initiative passes but a federal court of Trump appointees says, applying the precedent of Texas v. White, “you can’t leave,” what’s to stop California from simply flipping the federal court the finger and saying, what are you going to do about it?
Which raises still another possibility on the doomsday scenario front: would a United States government run by, say, a right wing fascist ideologue post-2024 invade California to try to keep it within the Union?
These are the questions that keep me up at night, twisting in my bedsheets with anxiety, turning over likelihoods and playing out scenarios, as if any of this is within my own control.
There is no way to reconcile where we are in America right now. The far right has completely subsumed the GOP, and decades-long efforts to swing state legislatures to the far right have succeeded in many states. Gerrymandering and voter suppression have tied the hands of voters in those states to a great degree.
And even where those efforts are blatantly unconstitutional, a wall of Trump-appointed idealogue federal judges, shoved through the Senate by Mitch McConnell, await any challenge to them on the basis of previously-guaranteed civil rights.
And in states like mine, where our citizens and our elected state officials continue to fight the tide, where we elect Democrats who believe in human and civil rights, where our laws protect citizens from discrimination and abuse, where abortion is still legal and where we make every effort to control guns within the bounds of the (yes, abominably stupid, wildly out of date) Second Amendment, should we be subject to a federal government that runs in direct opposition to what we want, and to federal courts who force us to do the opposite of what we believe in, of what we hold dear, under a claim of false democracy?
The cracking up of America is upon us.
And while the outcome is anyone’s guess, this much is clear: there will be extended, extreme violence between now and then, one way or the other.
In the words of the American poet Robert Frost, we have miles to go before we sleep.