Archive for the 'Featured' Category



Do We Have A Constitutional Right To Own An AR?

BY Herschel Smith
12 years, 8 months ago

The AR is in the news lately, much maligned, and much misunderstood.  We have already discussed the notion of the AR (most Americans purchase) being an assault rifle, explaining that it is no such thing since for a weapon to be an assault rifle it must have selective fire capability.  “Assault weapon” is a political phrase that is meant to convey the idea of weapons being scary.

But the hatred of the things that characteristize the politically-defined assault weapon (high capacity magazines, forend grips, etc.) pours from the editorial pages in newspapers all across the country today.  For a few examples consider Robert in New York:

In Colonial times, weapons for individuals were limited to flintlock rifles and pistols. These had utility for food-gathering and home defense. These weapons were powder-and-ball, single-shot, and slow to reload laboriously by hand, and of limited range and accuracy.

Nowadays we have graduated to semiautomatic assault weapons, intended for military use and the killing or maiming of as many enemies as possible in battle. They can fire hundreds of rounds per minute. There was a ban on them for private sale and use in recent years, but it has since been struck down.

Does anyone think they are critical for home defense, bringing down a rabbit, a deer, or for target practice?

Next, consider Joan in Vero Beach:

I am struck that the killer once again had an assault weapon and was able to legally purchase it and the magazines in local stores and off the Internet because of the bullying tactics of Wayne LaPierre and his gutless minions in Congress.

I have spent many a happy time with my dogs at hunt tests safely using a gun. I am not against responsible gun ownership but assault weapons have no place in the possession of anyone but law enforcement or the military and certainly not legally accessible on the Internet.

LaPierre and his minions will wait for the storm of their refusal to agree to the need of rational gun laws to settle down and then they will raise their usual baseless arguments against any laws that prohibit people from freely purchasing assault weapons even as the families of victims in Aurora, Tucson and Columbine daily grieve the loss of their loved ones, who were only doing the things that we all do every day.

Finally, consider Roland Martin, CNN contributor:

To all of you gun lovers, feel free to go buy your Glock, shotgun, hunting rifle, .22 pistol, .357 Magnum or any of the other guns at your disposal.

But you do not need an AK-47.

For some, it’s too soon to discuss gun reform, a little more than one week after the mass killings in Aurora, Colorado. I disagree. Too many Americans are being killed by guns every day; this most recent heinous tragedy should not keep us from having a rational debate.

[ … ]

Seriously, please offer me a reasonable and rational explanation as to why someone who isn’t a law enforcement officer needs to fire off that many bullets?

Well, since Mr. Martin demanded, let’s engage that debate with him.  As I have pointed out, it simply isn’t true that America is refusing to engage in debate over guns.  That’s all we’ve been doing for more than a week now.  It’s just that anti-firearms folks are losing the argument, so it gets louder with each day and for each new commentary.

Regarding defense of my person and my home and family, what happens if Robert, or Joan or Roland restrict me to a muzzle loading weapon and I miss my assailant?  After all, shooting your weapon is a perishable skill and I only get to the range once a week or every two weeks.  What happens if I neglect to practice my “fail to stop” drills or my first or second or third shot miss my assailant?  What happens if I am using my AR and neglect to compensate my aim for sight “height over bore” and miss my assailant badly enough to wound him but not kill him, and he keeps coming after me?

What happens if the threat is from a multiple-assailant home invasion and I must produce a large volume of fire very rapidly in order to effect proper self defense?  Consider this five-man home invasion in Tulsa.

A second suspect in the attack on a Tulsa minister was arrested Tuesday night, Tulsa police said.

Markedrik Delmar Wilson, 26, was arrested about 8:40 p.m. after a witness identified him as one of five men who forced their way into the Rev. Kenneth Brooks’ home in the 2700 block of North Denver Avenue shortly before 2 a.m. Tuesday, according to police and reports.

One of the men shot Brooks point-blank in the chest and then the group fled, police said.

Or perhaps consider this home invasion in Wareham, Massachusetts.

Five men accused of a home invasion in Wareham where two women say they were raped are now facing Superior Court charges.

All five are charged with four counts of masked armed robbery and one count of armed home invasion. Santiago and Gomes are charged with aggravated rape and Williams is being charged with unlawful possession of a firearm without an FID card.

Is this enough to demonstrate the point?  Perhaps not.  Then consider yet another five-man home invasion in Glenolden, Pennsylvania.

A group of men – at least one armed with a gun – invaded a borough home early Wednesday and terrorized several people inside, including one who was pistol-whipped, according to NBC-10.

The violence incident unfolded about 1:45 a.m., when a group of four or five men broke into a at near the intersection of Elmwood and Ashland avenues, police said. At least one of the intruders was armed with a handgun.

Four people were inside the home at the time and one of the residents was pistol-whipped, police said.

Have you considered this four-man home invasion in Philadelphia?  Or how about this three-man home invasion in Charlotte, North Carolina?  Or this three-man home invasion in Franklin Country, Alabama?  Or this three-man home invasion in Pawtucket?

Shaun Connell defends the right to own an AR under the constitution, and I think rightly so under the rubric of self defense.  I may in fact have to produce a large volume of fire very quickly and effectively.  But there is more.  Ownership of weapons is the surest defense against tyranny.  This doctrine is so well rehearsed in American history that it should have been given its due consideration in Supreme Court rulings (Heller and McDonald).  It surely is well rehearsed in lower courts.  Ken Klukowski, a research fellow at Liberty University School of Law, observes:

This right has two purposes. One is so Americans can defend themselves from criminals. Another — talked up by the Tea Party but ridiculed by the liberal elite — is that the Second Amendment protects citizens against our own government.

The Supreme Court declared in its landmark 2008 D.C. v. Heller decision — a decision praised by Rep. Gabrielle Giffords, D-Ariz. — that the Second Amendment was enshrined in the Constitution because when vast numbers of citizens have guns and know how to use them, “they are better able to resist tyranny.”

When serving on the California Supreme Court, now-D.C. Circuit Judge Janice Rogers Brown observed, “political writings of the [Founding Fathers] repeatedly expressed a dual concern: facilitating the natural right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical leaders.”

Ninth Circuit Judge Diarmuid O’Scannlain explained the Second Amendment “right contains both a political component — it is a means to protect the public from tyranny — and a personal component — it is a means to protect the individual from threats to life or limb.”

The most sobering words come from Judge Alex Kozinski of the 9th Circuit, who wrote, “the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people.”

The son of Holocaust survivors, Kozinski continued, “The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies seem today, facing them unprepared is a mistake a free people get to make only once.”

Scalia has made his views known on weapons that are “affrighting.”  He hasn’t given any public acknowledgement of the point I made concerning tyranny, but this view isn’t that odd.  David Codrea makes similar points to Klukowski.

For someone represented by the establishment as an “originalist,” Scalia’s views are anything but. In “A View of the Constitution,” which colleague Brian Puckett writes “was the standard constitutional law text at Harvard until 1845 and at Dartmouth until 1860,” William Rawle, “a contemporary of the Founders and the man to whom George Washington offered an appointment as the first U.S. Attorney General,” offered a vastly different opinion.

“No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people,” Rawle wrote in Chapter X, “OF THE RESTRICTIONS ON THE POWERS OF CONGRESS — AND ON THE EXECUTIVE AND JUDICIAL AUTHORITIES — RESTRICTIONS ON THE POWERS OF STATES AND SECURITY TO THE RIGHTS OF INDIVIDUALS.”

“Such a flagitious attempt could only be made under some general pretence by a state legislature,” Rawle continued. “But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”

The only thing that even approaches forcing me to rethink my position on so-called assault weapons is a tradeoff where I never, ever have to look again at a picture of Dianne Feinstein holding an AR.

But I said approaches – I’m not there.  Like David Condrea, I wasn’t surprised at Scalia’s comments and have always held that Heller was a weak ruling.  A better picture to show the silliness of the assault weapons ban (that Feinstein wants to reintroduce) is of me getting back from walking my dog, a 74 pound Doberman named Heidi.

Just like I always do when walking my dog, I’m carrying a weapon, in this case my S&W M&P .40, Flat Dark Earth finish, Viking Tactics sights.  Because the magazine holds 15 rounds it is considered an “assault weapon” under the expired rule.  Yes, the assault weapons ban is just that stupid because Feinstein and others consider this to be an affrighting weapon.

Considering the issue of self defense, it is clear that a so-called assault weapon suits the need of the moment in many circumstances.  Evan Nappen gives us 101 more reasons to own an assault weapon.  But I want to return to the issue of tyranny for a moment.

Gone are the days when only the lawyers are able to get access to court proceedings and opinions.  They are publicly available and we all read them.  If Scalia is right and there is much more to come on weapons in the courts, we’ll be watching and listening.  We’ll pour over each and every word of the opinion(s).  We’ll examine them for coherence and consistency, and the degree to which they honestly address the historical issues.

If the court wants to avoid the issue of suppression of tyranny – so-called “second amendment remedy” – in its rulings, then so be it.  Judges and Justices are advised, however, to be completely transparent about it.  Say that you no longer believe in such a thing, and explain why.  Explain why it was acceptable to use arms against British tyranny but that they serve no such purpose today, or better, explain why they cannot possibly serve any such purpose anywhere or at any time in the future.

If you ignore the issue we’ll consider you to be cowards.  When the recent ruling on health care was issued, the workplace discussion focused on ridicule and mockery over the duplicity and mental contortions necessary to come up with a ruling like that one.  It badly affected the reputation and legitimacy of the court.

Does the Supreme Court really want to add to the problem of legitimacy by avoiding a frank and open discussion of the role of arms in the prevention of state tyranny?  Does the court really want to appear cowardly?  We’re watching.  I concur with our liberal friends: it’s time for an open discussion.

UPDATE: #1: Linked to reddit/r/guns

Commenter Montysaurus says:

“As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”

-Tenche Coxe, friend and correspondant of James Madison (father of the constitution)

” . . . but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights . . . .”

-Alexander Hamilton, Federalist papers #29

UPDATE #2: Thanks to David Codrea for the attention!

U.N. Arms Treaty: Dreams Of International Gun Control

BY Herschel Smith
12 years, 8 months ago

Capital Hill is under pressure to adopt the approaching U.N. arms treaty, from the New York Times, to Reuters, to confused and goofy Christians who forgot all about their theology and think that a new regulation, law or treaty will bring peace on earth and good will toward men.

We have been informed that this administration will not allow the U.N. to impose any restrictions on American’s gun rights.  But then again, this is the same administration that: [1] Sent Donald Verrilli and Lanny Breuer to argue against Sean Masciandaro concerning the possession of firearms on National Park land, [2] Nominated Justice Sonia Sotomayor to the Supreme Court (who testified that Heller was settled law, and then dissented in McDonald versus Chicago, agreeing with Breyer who argued for overturning Heller), and [3] Named Rose Gottemoeller to head the U.S. delegation to the U.N. arms control negotiations, the very same Rose Gottemoeller who informed Moscow that the U.S. was open to significant compromise on U.S. missile defense.

In fact, a short tour through the U.N. schemes shows that international tracing, combined with nationalized regulations and controls on the manufacture, transfer and sell of small arms, is the central feature of the plan.  The U.N. program for implementation includes such requirements as no “military style” weapons should be possessed by civilians, a registered and traceable lifetime for every weapon, and so on.  Courtesy of reddit/guns, here is a marked-up listing of the kinds of regulations envisioned by the U.N.

As we have discussed before, the distinction between civilian and military weapons is meaningless today, and wasn’t ever very useful.  Bolt action rifles, semi-automatic rifles, tactical shotguns and a whole host of other kinds of weapons are being used in both civilian and military applications, and have been for a very long time.  A U.N. distinction between civilian and military weapons would yield regulations more onerous than the assault weapons ban (sunset provision on September 13, 2004) ever could.  A U.N. distinction between civilian and military owners achieves nothing beyond what the U.N. already wants, i.e., an international gun registry and lack of weapons transferability, and thus is this distinction a disingenuous subterfuge.  Promises to exempt “civilians” – whatever that means – doesn’t make this treaty any less dangerous to firearms ownership in America.

Missives on why treaties do not obviate or supersede the constitution, while well intentioned and informative, miss the point entirely.  Even in the wake of the Heller and McDonald rulings, there are still four justices on the Supreme Court who fundamentally do not believe in the second amendment, and then at least one who sees reversal of Heller on the horizon with a “future, wiser court.”  Furthermore, the decisions in Heller and McDonald do not address issues such as a gun registry, further controls on transfer of weapons across state lines or even within states, or other meaningless and intrusive ATF regulations.  There is a pregnant field of un-litigated second amendment issues in America, and the existence of an international treaty only complicates gun ownership.  It isn’t obvious that any court, much less the Supreme Court, would find stipulations similar to the ones in the U.N. treaty to be unconstitutional.

Finally, take note that international luminaries such as Iran – known to supply weapons to insurgents in Afghanistan, Iraq and Syria – have been appointed to a post negotiating the treaty.  The very real possibility exists that legitimate weapons sales from the U.S. to allies (such as Israel) would become problematic under the treaty.  Taiwan, for instance, is concerned that the treaty could undercut weapons imports.

The silliness of the treaty and its effect on other nations is outlined fairly well by David Bosco at Foreign Policy (even if Bosco is willing to overlook its silliness).

There was a lot of talk at the session about the absurdity that sales of bananas are more regulated internationally than sales of assault rifles and about the need for more states to enact domestic legislation regulating arms transfers. The assembled activists did leaven their optimism with a dose of reality. They acknowledged that the treaty almost certainly would not contain any binding language or enforcement mechanisms. Instead, every country will determine for itself whether an arms sale or transfer is likely to contribute to human rights violations. (Under the ATT likely to emerge, Russia could report that it has duly considered whether arming Syrian forces would lead to violations and decided that it would not. Nobody would be able to gainsay the Kremlin, at least not through the treaty mechanism.)  What’s more, the treaty negotiations will be conducted on a consensus basis (Washington insisted on that), which means that any state can block adoption of a text it doesn’t like.

So civilians in America would be subject to onerous new regulations since America is a law abiding nation, while rogue nations would be free to export weapons as they see fit.  Or in other words, the criminals have the guns while the law abiding citizens are disarmed, sort of like gun control in America.  As I have previously observed, the U.N. arms treaty is a solution in search of a problem.

Not only does this treaty intrude on the second amendment rights of American citizens, and not only is it hypocritical in its intent, it would target the very country who abides by its laws and allow the perpetrators justification for their own actions.  The treaty is just one more progressive, micromanaging, over-controlling, statist solution to a problem that doesn’t exist.  We’ve seen ten thousand like it, and as long as the U.N. gets funding and a home from the U.S. government, we will see many more instances of this kind of busy-body meddling into the affairs of American citizens.

Regardless of what kind of language is included in the treaty concerning military and civilian weapons, it does nothing to address the real problem of weapons traffickers such as Iran, and there is no reason to ratify it.

UPDATE: Thanks to David Codrea for the attention to this.

UPDATE #2: Glenn Reynolds says bring it!

Prior:

The U.N. Small Arms Treaty

Lessons To Draw From Afghanistan (Or, How Obama Really Lost The Campaign)

BY Herschel Smith
12 years, 9 months ago

Rajiv Chandrasekaran, writing for The Washington Post, excerpts his book, beginning his article with the following indictment.

The day after he arrived in Kabul in June 2009, Gen. Stanley A. McChrystal, then the top U.S. and NATO commander in Afghanistan, gathered his senior officers to discuss the state of the war. They barraged him with PowerPoint slides — the frequency of Taliban attacks and their impact; the number of local security forces; and an evaluation of the Afghan government’s effectiveness in each province. The metrics were grim, the conclusion obvious: The Americans and their NATO allies were losing.

The part of the country that concerned McChrystal most was the city of Kandahar and the eponymous province that encompasses it. Founded by Alexander the Great in 330 B.C., Kandahar city has long been the symbolic homeland of ethnic Pashtuns. In the 1990s, just as every other band of conquerors had done for the past thousand years, the Taliban used it as a springboard from which they captured Kabul and much of the rest of the nation. If the Americans were going to retake Afghanistan, they needed to start with Kandahar.

But the Pentagon had not sent most of the new U.S. forces that had arrived in Afghanistan to Kandahar. The first wave — a Marine brigade comprising more than half of the 17,000 additional troops President Obama authorized in February 2009 — had been dispatched to neighboring Helmand province, which McChrystal and his top advisers considered of far lower strategic significance.

“Can someone tell me why the Marines were sent to Helmand?” the incredulous McChrystal asked his officers.

The answer — not fully known at the time to McChrystal and his officers — would reveal the dysfunction of the U.S. war effort: a reliance on understaffed NATO partners for crucial intelligence, a misjudgment of Helmand’s importance to Afghanistan’s security, and tribal politics within the Pentagon that led the Marines to insist on confining themselves to a far less important patch of desert.

The consequences were profound: By devoting so many troops to Helmand instead of Kandahar, the U.S. military squandered more than a year of the war. Had the initial contingent of Marines been sent to Kandahar, it could have obviated the need for a full 30,000-troop surge later that year, or it could have granted commanders the flexibility to combat insurgent havens in eastern Afghanistan much sooner, allowing them to meet Obama’s eventual withdrawal deadlines without objection.

Instead, U.S. forces will begin heading home this summer with much of the east in disarray and security improvements in Kandahar still tenuous. Helmand is faring considerably better, but the gains there are having only a modest impact on Afghanistan’s overall stability.

Without the diversion into Helmand, U.S. troops could have pushed into more critical areas of the country before a clear majority of Americans concluded that the war was no longer worth fighting.

Analysis & Commentary

This is horse shit.  Obama and McChrystal have culpability, and we’ll get to that in a moment.  But the tale being spun here makes it sound like a few more sprinkles of magic counterinsurgency pixie dust and the whole thing would have gone much easier.  Perhaps unknown to many who didn’t follow the warp and woof of the campaign, this issue about why the U.S. Marines went to the Helmand Province is not a new debate.  Neither is the story that McChrystal was presented with the decision to send most of the Marines to Helmand as a fait accompli.  Logistical and institutional inertia made it impossible to change things.  Or at least, that’s the story.

Rajiv is telling a tall tale, and the issue was much more complicated than he hints.  I discussed this almost three years ago, and the same thing is true today that was true when I penned the defense of Marines in the Helmand Province.  McChrystal and the Pentagon were under the influence, even control, of the advocates of population-centric counterinsurgency.

Bring stability operations to the population centers, and good governance, goods, services, participation in government on the local level, redress of grievances, and so on, and it will render the outlier Provinces and lower population centers irrelevant, with insurgents unable to topple the central government from those far flung places.

But recall, this is the same Stanley McChrystal that allowed David Rodriguez to micromanage the Marines on their way through Marjah.  “Less than six hours before Marines commenced a major helicopter-borne assault in the town of Marja, Rodriguez’s headquarters issued an order requiring that his operations center clear any airstrike that was on a housing compound in the area but not sought in self-defense.”

Killing the enemy wasn’t a priority.  Rajiv even says so later in the article, exclaiming “the military’s counterinsurgency strategy was supposed to place troops near civilian population centers to protect residents from insurgents, not chase bad guys in the desert or remote valleys.”  But arguing for doing just that, I observed that the insurgents who destabilized Kandahar and other areas of Afghanistan came from Helmand, Kunar, Nuristan and other far flung places where we needed to chase and kill them.

In fact, the larger scale Marine Corps operations in Helmand were predated by intensive fights by the 24th MEU in Garmsir where they killed some 400+ Taliban fighters.  The hue and cry of the people at that time had nothing to do with wells, schooling, governance or anything of the sort.  “We are grateful for the security.  We don’t need your help, just security.”  Similar words were spoken at a meeting in Ghazni with the U.S. Ambassador to Afghanistan: ““We don’t want food, we don’t want schools, we want security!” said one woman council member.”

Corporal William Ash, a squad leader from 1st Platoon, Bravo Company, Battalion Landing Team 1st Battalion, 6th Marine Regiment, 24th Marine Expeditionary Unit, NATO International Security Assistance Force (ISAF), along with a stray dog lead a patrol through a city in Helmand Province, Afghanistan. When the platoon moved into the area, they found two stray dogs, and each time the Marines head out on patrol the dogs are right at the Marines’ side.

In fact, I remarked at one point how ironic it was that McChrystal, who was so concerned about inadvertent casualties that his ROE wouldn’t even allow illumination rounds for night time combat, and who wanted separation of the insurgents from the population in order to engage, was so unpersuaded by the Taliban invitation to join them in a fair fight in Now Zad, where they had completely run off the population and were using the place as an R&R haven.

So did the Marines have enough men to engage Kandahar and Helmand at the same time in order to prevent having to play whack-a-mole counterinsurgency?  Recall that while I was the only blogger at the time covering and commenting on Now Zad that while the men there were losing legs, arms and their lives, living in hobbit holes two or three Marines to a hole, I could not recall any time in the last four years driving across Camp Lejeune when there were so many barracks being built, so many Marines in the states, and so many units living in multiple different locations on the base because there wasn’t enough housing for them in the same barracks.

Recall that I also said that there were Marines who had finished entire periods of enlistment who, while spending time on wasteful MEUs floating across the seas and stopping in every port to become drunk, had neither been to either Iraq nor Afghanistan in the entire four years.

Yes, there were enough Marines to have pulled this off.  A Regimental Combat Team or two could have locked down Kandahar like they did in Fallujah in 2007, conducted census operations, and found and killed the Taliban fighters.  Kandahar could have been essentially cleared with enough focus and effort.

But McChrystal’s strategy not only abandoned far flung Provinces to focus on population centers … leaving the roads to the insurgents just like the Russians did … it abandoned the Pech River Valley in Kunar and Nuristan, along with the entire Hindu Kush mountains.  Every military strategist now acknowledges that this was an error, and we are back into Nuristan.

But only for a while.  After all, we have given a date for withdrawal.  With obfuscation like Rajiv’s article, it’s easy to forget that the administration which began its tenure with a commitment to “the good war” saw that commitment evaporate in the face of hard questions.  What was an effective campaign slogan soon became a byline, and rather than meet the military needs for a full scale surge, we saw a half-ass surge that gave them only some of what had been requested.

At the same time, an end date was set, with the enemy now knowing just how long it would take to run out the clock.  Puerile national security advisers turned Afghanistan into the WTF? war, and men who gave so much in this awful region of the world now see no reason for the loss, and are simply happy to have brought their men home.

There were many mistakes in the campaign: a half-ass surge, a childish national security adviser, McChrystal having surrounded himself with juveniles, overbearing rules of engagement, under-resourcing, strategy that could have been created with a random number generator any given day, poor communication to the American people as to the reasons for the campaign, failure to hold Pakistan accountable for harboring the enemy, loving up on corrupt politicians like Hamid Karzai and his brother Wali Karzai, sending billions of dollars to enlarge and ensure the corruption, and on and on the list goes.

But pointing a finger at the hard work of the U.S. Marines in Now Zad, Musa Qala, Sangin, Garmsir and other places in Helmand isn’t just unfair.  It’s scurrilous and dishonest.   The administration bears the responsibility for the failure.  Campaign slogans aren’t just word games, they are promises to be kept by men in authority and power.  The Soldiers and Marines who have perished demand better of our leaders.

Changes In Mexican Border Strategy

BY Herschel Smith
12 years, 9 months ago

From Tucson Sentinel:

EL PASO – Border Patrol agents might soon switch from sitting in trucks along the U.S.-Mexico border to helping traffic move more efficiently on the international bridges in this Texas city.

This scenario comes from the idea of Border Patrol agents collaborating with other government agencies.

Border Patrol Chief Michael Fisher in May announced a strategy to fight transnational crimes and drugs, support Homeland Security efforts and aid U.S. Customs and Border Protection.

One possible outcome might be reassigning Border Patrol agents to Customs border crossings to reduce the long wait.

“Currently Customs and Border Protection needs all of the staffing help that they can get – in particular at our ports of entry,” said El Paso City Representative Steve Ortega in an email.

As Border Patrol agents apprehend fewer undocumented people each year, its mission as an agency with resources focused on deterring and apprehending undocumented crossers is being reconsidered.

Currently, Immigration and Customs Enforcement personnel in the El Paso area of responsibility are apprehending and removing more undocumented people through the Secure Communities Program, employment raids and by catching crossers at major ports of entry than the Border Patrol, according to Border Patrol and ICE enforcement and removal figures.

That is why the Border Patrol 2012-2016 Strategic Plan calls for redirecting its agents’ efforts toward relieving congestion and waits at the ports of entry, as well as combating terrorism and transnational crime.

By the close of fiscal year 2011, the typical Border Patrol agent working from Texas to California was apprehending 17.7 undocumented people a year, from a high of 352.2 “illegal alien apprehensions” per agent in 1993. In comparison, the numbers fell even more for agents in the El Paso Sector, from a high of 470 apprehensions per agent in 1993 to only 3.8 apprehensions by 2011.

More agents at entry checkpoints would be a relief for some people of El Paso.

“People would cross to go to work, or to go to restaurants and enjoy the nightlife.  They would cross to see family and they would cross to engage in trade. It used to be pretty easy to cross and it’s gotten more and more difficult,” said border journalist Louie Gilot.

Gilot is the publisher of Newspaper Tree, a nonprofit online news organization in El Paso. Previously, she covered immigration issues as a reporter for the El Paso Times.

For those who cross the border back and forth as part of their daily lives, long waits are too time consuming.

“There used to be no lines when you were going on foot and now there is. I have spent an hour on foot,” Gilot said.

Analysis & Commentary

The reason for the decrease in border apprehensions is more complex than simply painting a picture of success.  The story being peddled here is that border security is improved to the point that the border patrol can now focus on making cross border traffic even easier and more efficient.  The truth is that illegal border traffic is becoming more knowledgeable and efficient, the border patrol (and DHS) is under-reporting “got-aways,” and “soft metrics” are making things look better than they really are.

The U.S. has operational control over only 13% of the Mexican border, regardless of the stories peddled in the media.  This change in strategy has nothing whatsoever to do with being able to focus on efficiency because of improved border security.  It is part of a larger push for more trans-border traffic which has been in the works for some time.

U.S. and Mexican officials are meeting today as a first effort to decide where new border crossings and connecting roads may be necessary, reports HispanicBusiness.com.

At the first Border Master Plan meeting today at the University of Texas at El Paso, representatives will begin identifying future projects, along with project priorities and timelines.

Objectives will also include increasing understanding of the planning process and designing a process that ensures participation from everyone involved in the port of entry projects.

“All sorts of transportation projects and issues will be discussed,” Bob Kaufman, a spokesman for Texas Department of Transportation, told the website. “It will be a binational, multi-government agency meeting. There will be federal, state and local officials that have responsibilities for transportation. The end result will be a list of transportation infrastructure priorities.”

Representatives from the Metropolitan Planning Organization, City of El Paso, the Texas Department of Transportation and the New Mexico Department of Transportation will also be present at the meeting, in addition to U.S. and Mexican federal officials.

“The Border Master Plan is part of a national initiative,” said Roy Gilyard, El Paso’s MPO executive director. “California has a plan and so does Laredo.”

Just to make sure that you understand what is happening, read that last paragraph again: “The Border Master Plan is part of a national initiative.”  Nothing is happenstance or happening by accident.  It’s all part of a larger plan to make the border less significant, make it easier to cross, and raise cross-border shipments of goods and products, especially with Mexican truck drivers.

But take note that ignoring the border (or pretending that is is secure) has its consequences.  The Mexican cartels have the capability to seize control over large geographical areas with great ease.  There is the influence of cartel corruption in New Mexico, and Mexican drug gangs control parts of Arizona.  The cartels have become adept at extreme brutality, but these organizations [previously] “settled matters with a bullet in the head. Not anymore … Now there is a psychopathology at work. Some of these people obviously enjoy this, and they are teaching their surrogates, teenagers, to enjoy it.”

Due to the facts that there are no arming orders for the National Guard troops on the border (causing the troops simply to perform clerical duties), misapplication of the rule of law to these troops (i.e., Supreme Court decision in Tennessee versus Garner), and confusion about the Posse Comitatus Act (i.e., the belief that it applies to border security caused by foreign threats), the law enforcement battle (fought with law enforcement officers, and not enough of them doing the right things) has been substantially lost at the border.

This criminal insurgency crosses the border with as much ease as illegal immigrants, and the lack of border security is as much of a cause of the diminution of U.S. sovereignty and security as it is the increased cost of insurance, health care and other costs associated with illegal immigration and the influx of low skilled workers.

The new strategy at the border isn’t without planning and forethought.  It just isn’t the planning and forethought that one might have guessed would attend issues of national security.  It has more to do with trade, facilitating transcontinental traffic, and enforcing the idea that the United States is an idea rather than a place.

Prior:

Border Lies And What National Guard Troops Do

The Border Is Not Secure

Stability Operations In Mexico

The Texas Border Coalition On Border Security

Losing The Border War

Threat Assessment: Transnational Jihadists and Mexican Cartels

Legalization Of Drugs Won’t End The Border War

Border War

Texas Border Security: A Strategic Military Assessment

Does the U.S. Have A Moral Duty to Fix Afghanistan (or anywhere else)?

BY Glen Tschirgi
12 years, 10 months ago

In an article for National Review Online, Patrick Brennan illuminates the thinking of General David McKiernan, commander of ISAF in Afghanistan from 2008 to 2009.

To the extent that Brennan accurately reflects McKiernan’s thinking and, more importantly, that McKiernan is at all representative of widely-held views in the U.S. military,  it goes a long way to explaining the seeming paralysis of U.S. force projection in Afghanistan and globally.

Fundamentally, Gen. McKiernan is a true believer in what seems to be called the Pottery Barn Rule of U.S. power projection:

In my conversation with him in his Boston office, General McKiernan demonstrates a vast knowledge of the problems of Afghanistan, as well as a keen concern for the fate of the country and NATO’s mission there. “In my experience with many different operations in the military over the years, when you intervene on the ground in a country, ‘breaking the china’ in that country and changing the regional status quo, you then own the problem,” he says. The U.S. is therefore obligated, at the very least, to live up to the commitments it has made to Afghanistan’s civil and military leaders, including fulfilling the new strategic partnership by allocating sufficient funds, which will become a year-to-year concern. A military intervention such as the U.S. invasion of Afghanistan in 2001 inevitably means the obliteration of a country’s existing political order, as chaotic or oppressive as that might be. Without a continuing commitment to restore some semblance of order and stability to Afghanistan, McKiernan argues, we will fail in our moral duty and abandon our strategic interests.

At the conclusion of the article, Brennan sums up Gen. McKiernan’s thinking:

The U.S. was right to invade Afghanistan in order to exact revenge against al-Qaeda and eliminate the region’s terrorist havens. But McKiernan has seen the catastrophic side effects of that invasion, and they represent something of a geopolitical sin. With a more targeted, locally nuanced, and efficient strategy as penance, the United States can help the Afghan government construct and enforce some degree of order, General McKiernan believes. If we do not do so, we abandon our moral commitment to repair Afghanistan, and we will leave a gapingly insecure region that would remain fertile ground for international terrorism.

Pardon the gag reflex.  There is much else in the article that is deserving of comment and it is worth reading.  For example, Gen. McKiernan seems to recognize that Afghanistan is not a nation state in any true sense of the word but is, instead, a collection of different tribes, ethnicities and sects.   His takeaway from this fact, however, is to double down on the formation and training of a national army and police force that can someday, somehow hold the centrifugal differences of the country together.   As illogical as this seems, it is necessitated by the “you break it, you own it” philosophy embraced by McKiernan and others.

So this seems to me to be the fundamental debate for American foreign policy, not only for Afghanistan but for the next ten to twenty years as we face no lack of failing or failed states that become incubators for Militant Islam: what, if any, obligation does the U.S. have to another country or people when the U.S. uses military force in exercise of its national interests?

First let’s clarify some of General McKiernan’s muddled thinking.

According to his moral universe, when a nation “breaks the china” by intervening with force of arms to somehow change the status quo of another nation or region then the intervenor “own[s] the problem” and incurs a “moral duty” to “restore some semblance of order and stability…”   In the case of Afghanistan, this is nonsense.   The status quo of Afghanistan’s “political order” in September 2001 was, as the General himself describes, “chaotic” and “oppressive.”  By his own theory, then, the U.S. need only ensure that Afghanistan ends up no more chaotic or oppressive than it was pre-invasion.  The 2001 invasion alone made a vast improvement upon the existing political order by eliminating a pariah regime that gladly hosted international terrorists and imposed a cruel authoritarianism on its population.   If the U.S. had walked out of Afghanistan in January 2002, the situation in Afghanistan would have been vastly improved with the Northern Alliance in control of most of the country.

In fact, it is arguable that the U.S. only started to destroy the status quo of Afghanistan when it began meddling in its internal, political affairs with arrogant notions of 21st Century democracy and centralized government.  The problem, then, is not that the U.S. created a mess in Afghanistan by toppling the Taliban in October 2001, but that the U.S. stayed after toppling the Taliban in order to somehow save the Afghans from their own backward and stunted culture.   This was the “geopolitical sin” if Gen. McKiernan must find one.

What of General McKiernan’s larger premise, that the U.S. cannot intervene militarily without incurring a “moral commitment to repair” that nation?

This is a fundamentally flawed and mistaken view of U.S. power projection.  Originally espoused by General Colin Powell in 2002, Powell claims to have advised President Bush that any invasion of Iraq would be akin to breaking a dish and thereby taking ownership.  The so-called Pottery Barn school of  thought to which McKiernan subscribes assumes the existence of an unbroken Dish prior to U.S. involvement.  This is simply a fiction and a dangerous one at that.

Iraq was already in pieces under Saddam Hussein when the U.S. invaded in March 2003.   Once the Dictator and his police state were dismembered, the “dish” was already in infinitely better shape than its pre-invasion condition.   The U.S. would have been perfectly justified from a moral point of view in packing up and heading home at that point.   So, too, with Afghanistan: the “dish” was in far better shape after the removal of Al Qaeda bases and the Taliban than it was pre-invasion.

The Pottery Barn doctrine simply does not pertain to the exercise of U.S. military intervention at any point in U.S. history.   I cannot think of a single instance where the metaphorical dish was not already broken when the U.S. intervened.  If someone wants to argue about Nazi intervention in Poland, Czechoslovakia, Austria and France, that is a different matter.   The U.S. is not an imperial power that topples healthy, functioning nation states and the application of the Pottery Barn doctrine to the U.S. may say far more about how people like Colin Powell and David McKiernan view U.S. power projection than it does about the actual world as we have it now.

American leadership needs to forcefully and decisively reject this wrong-headed notion of moral commitments to fix other nations.  It is not and has never been about moral commitments.  It is ever, only about the U.S. national interest.  That is the only way to rationally debate both the decision to intervene militarily and the decision, once intervention occurs, of how and when to leave.  This is not to say that our national interest does not align with notions of morality.  Very often it does and morality certainly forms a part of defining what the “national interest” is in the first place.   But evaluating policies, tactics and strategy from a moral viewpoint rather than the national interest leads to all kinds of fuzzy thinking and misguided efforts.   Afghanistan is, perhaps, the textbook example of these hazards.

To give but a few examples:  what is the U.S. national interest in pouring hundreds of billions of dollars into road, school, hospital and other construction in Afghanistan?  It certainly is a nice thing to do, a moral thing to do.  But how, precisely, does this make America more secure?  In a predominating culture that is so alien (indeed hostile one could say) to American values, the idea of changing that culture with billions in aid money can only be driven by a moralistic– an almost missionary– zeal that simply has no place in American foreign policy.   The national interest is solely concerned with ensuring that Afghanistan does not become a threat to American security again.   That was the only reason we invaded in 2001 (contrary to Gen. McKiernan’s idea of “revenge”).  There are many ways that this fundamental, U.S. interest could be achieved without any resort whatsoever to changing Afghan culture.

To look at another example briefly, consider Syria.

From the moralistic, Pottery Barn approach, intervening in Syria is a case of balancing the suffering of the Syrian people under the Dictator Assad with the unavoidable suffering of the people after a military intervention (whether that is invasion, air strikes, covert support for rebels, etc…).   This is why the Obama Administration and much of U.S. punditry is tied up in knots over Syria: there is no, clear way to evaluate human suffering in this manner.   (Anyone who doubts this need only look at Libya where, again, the scales of suffering seemed to tilt in favor of ousting Qaddafi only to find, now, that the increasing lawlessness and rise of Militant Islamists is beginning to make Qaddafi look rather tame by comparison).

Instead of playing these sorts of moral games, U.S. leadership should be looking at Syria from our own interests.   This clarifies things immediately.   Syria under Assad is an enemy of the U.S. and moves in lockstep with arch-enemy Iran.   This is a very, very broken dish (to use their parlance).  Toppling Assad by itself does not worsen the dish and is certainly in the U.S. national interest as it enhances our security immensely.

There is, of course, the question of what sort of government will replace Assad.   Here again the moralists and national interest part ways.   The moralists would say that the U.S. would “own” all of Syria’s problems if it intervened which means, presumably, another 10 or 20 year program of building schools, hospitals roads and civic institutions.   The national interest, at a bare minimum, however, doesn’t really care so much what comes after Assad so long as it is not worse than Assad.  We do not care, for example, if Syria falls into civil war so long as Syria cannot be the cat’s paw for Iran.   It is certainly in the national interest to back rebels that are sympathetic to U.S. values and goals, but if they are at least hostile to Iran and global jihad, that is enough.

In essence then, to the extent that U.S. policies and strategies are guided by the approach espoused by General McKiernan, we will find ourselves a vulnerable paralytic Power unable to intervene in the world where critical U.S. interests are at stake because to do so would automatically obligate us to an endless commitment of fixing the “broken dish.”   In such a world, we leave it to hostile powers all around us to shape things to their liking, one that will be little to our own.

Obama And Romney On Gun Control

BY Herschel Smith
12 years, 11 months ago

There seems to be no end to the articles, discussion threads and posts pointing to the fact that Obama has not issued any new firearms laws since his administration took over in Washington.  This cynical post is but one more example.  True enough, Romney, as I have pointed out, has a bad reputation with second amendment advocates like me.  So when Romney recently addressed the NRA, it leaves the door open for charges of duplicity and – let’s go ahead and say it – flip flop.

Mitt Romney drew a warm reception from the National Rifle Assn. on Friday as he attacked President Obama for “employing every imaginable ruse and ploy” to restrict gun rights, which Romney pledged not to do if elected in November …

“In a second term, he would be unrestrained by the demands of re-election,” Romney told a crowd estimated at 6,000 in the cavernous Edward Jones Dome. “As he told the Russian president last month when he thought no one else was listening, after a re-election he’ll have a lot more, quote, ‘flexibility’ to do what he wants.  I’m not exactly sure what he meant by that, but looking at his first three years, I have a very good idea.”

Referring specifically to the right to bear arms, Romney said: “If we are going to safeguard our 2nd Amendment, it is time to elect a president who will defend the rights President Obama ignores or minimizes. I will.”

But there is this:

Even before Romney’s speech, the Obama campaign hit back with a statement attacking the presumptive GOP nominee, along with a hefty file of news clippings intended to show that he had a checkered history on gun rights.

“The president’s record makes clear the he supports and respects the 2nd amendment, and we’ll fight back against any attempts to mislead voters,” said campaign press secretary Ben LaBolt. “Mitt Romney is going to have difficulty explaining why he quadrupled fees on gun owners in Massachusetts then lied about being a lifelong hunter in an act of shameless pandering.  That varmint won’t hunt.”

Again, true enough. Romney has some explaining to do on the campaign trail.  But understanding why Romney is speaking before the NRA and Obama is not requires only that one understand the people with whom Obama has surrounded himself.  The President cannot pass laws, but the President can do two things that are unique to the office.  He can appoint judges, and he can fill positions in the executive branch of government.

Forgetting for a moment scandals such as Fast and Furious, there are four individuals that define Obama’s views of firearms and the second amendment.  First, let’s consider Supreme Court justice Sonia Sotomayor.

Perhaps the most startling aspect of the Supreme Court opinions in McDonald v. Chicago was the dissenters’ assault on District of Columbia v. Heller. Not only did Justice Stephen G. Breyer vote against extending the Second Amendment to state and local governments, he also argued forcefully and at length for overturning Heller and, therefore, for turning the Second Amendment into a practical nullity. Ominously, Justice Sonia Sotomayor joined the Breyer dissent – contradicting what she told the U.S. Senate and the American people last summer.

Regarding the key issue in McDonald – whether the 14th Amendment makes the Second Amendment enforceable against state and local governments – Justice Sotomayor resolutely refused to tell the senators how she might vote. So in voting against incorporating the Second Amendment, Justice Sotomayor was not inconsistent with what she had told the Senate. But regarding Heller, her actions as a justice broke her promises from last summer.

The Breyer-Sotomayor-Ruth Bader Ginsburg dissent urged that Heller be overruled and declared, “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense.”

Contrast that with her Senate testimony: “I understand the individual right fully that the Supreme Court recognized in Heller.” And, “I understand how important the right to bear arms is to many, many Americans” …

To the SenateJudiciary Committee, Justice Sotomayor repeatedly averred that Heller is “settled law.” The Associated Press reported that Sen. Mark Udall, Colorado Democrat, “said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases.”

Next, consider Obama’s nominee for head of the ATF, Andrew Traver.  John Richardson does a good job of examining the larger aspects of the Traver nomination within the context of his history.  But the single most telling thing about Andrew Traver is his work with the Joyce Foundation, and specifically, his positions in the report entitled Taking A Stand: Reducing Gun Violence In Our Communities.  Among the other onerous regulations on firearms manufacturers and owners, they would require ballistic fingerprinting of all firearms, otherwise called “microstamping.”  But the single most bracing position taken by this study group has to do with federal oversight of the firearms manufacturing industry.

Congress should enact legislation to allow federal health and safety oversight of the firearms industry.

Unlike other consumer products, domestically manufactured firearms are not subject to any design standards to reduce risk to the user or protect the safety of the general public and those sworn to protect them. Moreover, unlike other consumer products, no federal agency is empowered to require a remedy in the case of a defectively designed or manufactured firearm.

The lack of health and safety oversight is particularly worrisome given the manufacture and sale of firearms that pose a unique threat to law enforcement and the general public, such as high-caliber handguns that can penetrate bullet-resistant vests, anti-personnel military-style assault weapons and .50 caliber sniper rifles that can penetrate armor plating from a mile away.

This oversight and regulation would involve the Centers for Disease Control, ATF, Justice Department and other federal organizations.  However controlling and oppressive this would be, the third example that should interest us involves Obama nominee for the D.C. Circuit Court of Appeals, Caitlin J. Halligan, who in her tenure as Solicitor General of the State of New York, attempted to hold firearms manufactures and retailers responsible for crimes committed with guns. In 2006, Halligan also filed a brief arguing that handgun manufacturers were guilty of creating a public nuisance.  This caused an almost incredulous rejection by the New York Court of Appeals.

“The New York Court of Appeals has never recognized a common-law public nuisance cause of action based on allegations like those in this complaint. Moreover, other jurisdictions have dismissed public nuisance claims against firearms manufacturers on similar or other grounds… In light of the foregoing, we believe it is legally inappropriate, impractical and unrealistic to mandate that defendants undertake, and the courts enforce, unspecified measures urged by plaintiff in order to abate the conceded availability and criminal use of illegal handguns.” (People Of The State Of New York v. Sturm & Ruger Co., 309 A.D.2d 91, 2003).

Finally, there is the example of Eric Holder, who believes the following about firearms.

From rejection of the Supreme Court decision in Heller v. D.C., to advocacy for federal control over firearms manufacturers, to attempts to bankrupt firearms manufacturers with lawsuits, Obama’s friends have a storied and ugly history concerning their views on the second amendment.

The NRA knows full well Romney’s history on firearms and the second amendment.  But the circumstances that give credibility to Obama’s promises to implement gun control “under the radar,” or explain the ATF’s rejection of the import of almost 800,000 M1 Carbines from South Korea aren’t speculative either.  Obama is certainly aware of the anti-firearms positions of his appointments and nominees, for the contrary is simply impossible.  And people in such positions can effect policy, regulations and legal decisions for a generation.

This is Obama’s intent – at least, there is no other explanation.  To the NRA, Romney is a slightly to moderately uncomfortable ally.  Because of his chosen company, Obama must be seen as the enemy.

UPDATE: Thanks to Glenn Reynolds for the attention.

The Better War

BY Herschel Smith
13 years, 1 month ago

There are a lot of Milbloggers, military aficionados, knowledgeable members of the military, and veterans of wars that can and often do weigh in on issues of policy, strategy, tactics, techniques and procedures.  But occasionally a real warrior-scholar steps into the fray, and we are always blessed with insights beyond what we could normally bring to the table.  Gian Gentile is just such a warrior-scholar.  I do not believe that a man has to have waged war in order to be a scholar and great historian on it, but with Gentile, we have the entire package.  He has both studied it and lived it.  He is both a friend and a genuinely good man, and we are richer for having his insights.

Gentile uses the occasion of a new book to give us insights into Vietnam, extending his lessons into Iraq and Afghanistan.  The book is Westmoreland: The General Who Lost Vietnam, by Lewis Sorley.  Gentile begins his review thusly.

DID GENERAL Westmoreland lose Vietnam? The answer is no. But he did lose the war over the memory of the Vietnam War. He lost it to military historian Lewis Sorley, among others. In his recent biography of William C. Westmoreland, Sorley posits what might be called “the better-war thesis”—that a better war leading to American victory was available to the United States if only the right general had been in charge. The problem, however, is that this so-called better war exists mostly in the minds of misguided historians and agenda-driven pundits.

[ … ]

In 2008, former secretary of defense Robert Gates chided the American military establishment, and the army in particular, for its affliction of “Next-War-itis.” Parts of the American military, lamented Gates, were too focused on fighting hypothetical future wars rather than the immediate wars in Iraq and Afghanistan. But the secretary also might have noted another dangerous affliction suffered by parts of the U.S. Army: “Past-War-itis.” Those afflicted with this disease obsess about a Vietnam defeat they believe should have been averted.

Sorley titles his book Westmoreland: The General Who Lost Vietnam. This is “Past-War-itis” run amok. Is it possible that a single man actually lost the war and all of Vietnam? The question is pertinent today because many seeking to bring logic to the past ten years of war in Iraq and Afghanistan have embraced the simplistic concept that to win those wars we just need to put the right guy in charge. One such example is the Council on Foreign Relations’ Max Boot, an enthusiastic supporter of the Iraq and Afghanistan wars … another example is writer Thomas Ricks, one of the purveyors of the better-war thesis for Iraq. Ricks wrote a glowing jacket endorsement for Sorley’s book, and he also noted on his military-affairs blog that it would probably end up as the “definitive” biography of Westmoreland. If one is interested, however, in a fair and balanced historical biography of William C. Westmoreland, Ricks is wildly off the mark.

The better-war thesis argues that there was a tactical panacea in Vietnam—a golden cipher of success—just waiting for the right general who could grasp and apply it. Instead, for the first three years of the war beginning in 1965, the U.S. Army was led by a fumbling general named William Childs Westmoreland, who did not crack the code that would have produced victory for the United States. Luckily, as the better-war thesis continues, once Westmoreland was replaced in the summer of 1968 by a savior general named Creighton Abrams, everything changed for the better, and Abrams’s army actually won the war in the South by 1971. The tragedy, according to this thesis, was that weak American politicians undermined the victory by eventually cutting off material support to South Vietnam after the United States departed in 1972.

Weak American politicians and an unwilling American public did indeed undermine the campaign, but I’ll basically state my agreement with Gian’s thesis on the better general, while I’ll also [later] demur with some of his specific findings on Vietnam and Iraq. We’ll continue with Gian’s observations.

The tale of a better war in Vietnam is seductive. It offers a simple explanation of an army redeemed through tactical innovation brought about by a savior general. But the United States did not lose the Vietnam War because it didn’t have the right general in charge at the start, or because of weak politicians toward the end of the war. Washington lost because it failed at strategy. It failed, in short, to discern that the war was unwinnable at a cost in blood and treasure that the American people would accept. There was never a “better war” in Vietnam.

THIS FAITH in the promise of better tactical wars with savior generals has emerged in full force in the current wars in Iraq and Afghanistan. In August 2007, as the violence in Iraq dropped precipitously, Clifford May, former New York Times reporter and current president of the Foundation for Defense of Democracies, identified Petraeus as the main cause of the reduction in violence. May wrote that this enlightened general replaced a failed general and then equipped his army in Iraq with new methods for conducting counterinsurgency. Later, in October 2009, Sorley penned a New York Times article that praised the counterinsurgency tactics of General Stanley McChrystal, then senior American commander in Afghanistan. May and Sorley saw Iraq and Afghanistan as better wars in the making based on the arrival of savior generals.

[ … ]

But the conditions in Iraq that would lead to the lowering of violence in late 2007 were already in place. They included the spread of the Anbar Awakening and the decision of Shia militias to end attacks against Sunni civilians. Recently published databases such as the Iraq Body Count project’s show quite clearly that the sectarian violence peaked in December 2006 and then started to drop a good two months before Petraeus ever rode onto the scene with his new counterinsurgency manual in hand. Petraeus, the savior general, played only a marginal role in the greater series of events and circumstances that brought down the level of Iraqi violence.

I do indeed think that there was a “better war” in Vietnam – not in the sense that Gian critiques – but we’ll get to that later.  His observations on Iraq contain a number of things I have personally addressed with Gian, but it will be useful and productive to lay it out for closer inspection.

First, let’s address the so-called Anbar Awakening.  The Awakening – primarily in 2006 and beyond – was significant.  It certainly truncated the Marine Corps campaign for Anbar shorter than what it would have been.  But it was primarily a feature of Ramadi, and it was primarily a feature that obtained as a result of hard Marine Corps combat operations in the Anbar Province convincing the population that the victor would ultimately be the Marine Corps.

In Haditha late in 2006 and early in 2007 pacification is primarily attributed to a former officer in the Saddam Hussein army known simply as Colonel Faruq, with the power and charisma to bring the town to heel, along with sand berms around the city (constructed by the Marines) to prevent transnational insurgents from coming in from Syria and causing problems.

In Al Qaim, the fight against al Qaeda began in 2005 when Abu Ahmed took them on, lost, fled to the desert, and sought (and obtained) help from the U.S. Marines to defeat AQ.  In Fallujah in 2007, al Qaeda fighters were so firmly ensconced in the city that the people, fearing for their lives, were sending their own children out to mark and encircle Marine patrols with balloons (at the direction of the AQ fighters) so that the patrols could be targeted with crew served weapons.

It took the 2/6 Marines using extremely hard and aggressive tactics, coupled with local IPs and block captains, or Mukhtars, recruited from among the population, again using extremely hard and aggressive tactics, to drive AQ from the city.

My point is that invoking the Anbar Awakening has become in many ways symptomatic the campaign.  It’s as if without it, the Marines wouldn’t have been successful, but with it, Anbar was Shangri La.  Neither view is true.  Nor is it true that the Marines weren’t grateful for what awakening that did occur in various parts of Anbar.  The truth is more complex than simple narratives can possible convey.

Similarly, to say that the Shia militias decided to end attacks on the Sunnis misses the point, and in the superlative degree.  Perhaps they did, but this bit of historical myopia is tailor made for constructing false narratives about Baghdad and the Shia South.

In 2003 the 3/2 Marines had Moqtada al Sadr in their custody (this is as conveyed from the Battaion Commander to Andrew Lubin).  They were ordered to release him.  Then as the U.S. Marines (BLT 1/4) and U.S. Army Calvary swept through al-Najaf in 2004, for all practical purposes they obliterated the Sadrist militia.  The year of 2004 could have seen the virtual end of the organized Shi’a militia threat.  The 1/4 Marines had surrounded Moqtada al Sadr (see this John Burns interview, beginning at 17:20 into the discussion).  Sadr and his militia were essentially finished twice, once in 2003 and again in 2004, due to 3/2 and 1/4 Marine Corps combat operations.  Both times they were ordered to stand down.*

We could have chosen to kill Sadr, finish the Shi’a militia, and end the threat of a violent Shi’a uprising against the Sunni population.  We chose unwisely, and the order came down to let Sadr go.  To say that the Shi’a militia later decided to end attacks against the Sunnis is to miss the bigger picture, i.e., there wouldn’t have been any Sadr to command them, and likely no militia to speak of, had we engaged in the “better war” in Iraq when we had the chance.  Instead we had Paul Bremer, the British and horrible leadership.  It was a toxic combination, and it cost precious lives.

Meanwhile to the West, campaign command pulled the Marines back from Al Fajr I, creating the necessity for Al Fajr II, more loss of lives, more time wasted, and more legitimacy lost.  We didn’t fight the better war in Fallujah either.  And when we completed the job, we sent Marines on wasteful MEUs rather than into Fallujah to ensure stability, and thus the 2/6 Marines had to deal with an ensconced al Qaeda in 2007.

But something tells me what while Gian and I may disagree on the details of the campaign in Iraq, he would concur with my general theme.  Gian observes of Vietnam:

The better-war thesis argues that if only the U.S. Army had concentrated from the start on building up the South Vietnamese armed forces and winning the hearts and minds of the South Vietnamese people through limited applications of military force, we would have won the war. But the question remains: Precisely how could tactical adjustments early in the war have overpowered the political constraints placed on the army by the Johnson administration, which kept it from taking the fight to the North Vietnamese? Or the dysfunctional nature of the South Vietnamese government and military that precluded them from standing on their own? Or the declining popular support and political will in the United States as the war dragged on without a decent end in sight? Or, perhaps most importantly, how could tactical adjustments toward better methods of counterinsurgency have overpowered a communist enemy that fought the war totally while the United States fought it with limited means? In his Westmoreland biography, Sorley essentially ignores these questions.

Could the United States have prevailed in Vietnam? Yes, but it would have had to commit to staying there for generations, not a mere handful of years. The Vietnam War was an attempt at armed nation building for South Vietnam.

The better fight in Vietnam to which I earlier referred has nothing to do with staying for generations or armed nation-building.  These are the policy mistakes we have made in Iraq and Afghanistan.  We tend to see campaigns as failures unless they install governments and re-create populations that never pose another threat to the U.S.  But this isn’t reality, and this is certainly not the way the U.S. Marines think about these issues.

This last point isn’t mere inter-service rivalry.  I cannot count the number of times I have heard Marines express their desire to end campaigns quickly, and then go back and do it again in two, five or ten years if the need arises.

The better war to which I refer was alluded to by Gian when he posed the question, “Precisely how could tactical adjustments early in the war have overpowered the political constraints placed on the army by the Johnson administration, which kept it from taking the fight to the North Vietnamese?”

If this question isn’t explored, the book is essentially worthless no matter how many endorsements the author obtained.  Consider for a moment how we dealt with the threat from Germany during World War II.

The burning of Hamburg that night was remarkable in that I saw not many fires but one.  Set in the darkness was a turbulent dome of bright red fire, lighted and ignited like the glowing heart of a vast brazier.  I saw no flames, no outlines of buildings, only brighter fires which flared like yellow torches against a background of bright red ash.  Above the city was a misty red haze.  I looked down, fascinated but aghast, satisfied yet horrified.  I had never seen a fire like that before and was never to see its like again.

Roads melted, and some people were seen stuck in the melted asphalt, having put their hands out to try to get out, only to get their hands stuck as well.  Many were seen on fire, eventually melting in their own fat.  Eight square miles of Hamburg were completely burned out that night, killing 45,000 Germans.

If we had not done this, countless more American lives would have been lost, and the war may not have been won by the allies at all.  Destruction of the will and industry to wage war was necessary to end the war, whether this fits into the American clinical view of bloodless war or not.

Compare this with the decision to refuse to take the fight to the North Vietnamese.  Consider for a moment what would have happened if we had bombed the dikes and dams on the Red River Delta.  To be sure, the cost in human tragedy would have been staggering, but this is exactly the point.  We wish to wage war, but only partly.  The Viet Cong insurgency in the South was for all practical purposes defeated (in spite of the succor given to them by the North via the Ho Chi Minh trail), and it was the entrance of the NVA regulars that saved the insurgency.  A hobbled North Vietnam from having bombed the Red River Delta for year wouldn’t have been able to give the kind of assistance that the VC got.  It might have even brought down the regime.

Back to Iraq, if we had taken on the Syrian pre-deployment camps for AQ fighters (80 – 150 fighters per year crossed the border to fight in Iraq), and if we had fought the Iranian Quds forces by targeting them in Iraq and elsewhere (while we also engaged in a program of targeting Quds generals like Suleimani), and if we had allowed the Marines to kill Sadr and finish off his militia, and if we had allowed them to continue the sweep through Anbar like they started it in Fallujah, and if we had sent more Marines into Anbar instead of on wasteful MEUs … what would the campaign have looked like?

Gian continues:

In war, political and societal will are calculations of strategy, and strategists in Vietnam should have discerned early on that the war was simply unwinnable based on what the American people were willing to pay. Once the war started and it became clear that to prevail meant staying for an unacceptable amount of time, American strategy should have moved to withdraw much earlier than it did. Ending wars fought under botched strategy and policy can be every bit as damaging as the wars themselves.

The better-war thesis, with its seductively simple cause-and-effect schema, buries the reality of American strategic failure in Vietnam.

The campaign in Vietnam was unwinnable under the stipulations dictated by the President, Congress and perhaps the Secretary of Defense.  And the campaign was unwinnable if winning was defined as building an American-like democracy (in which Gian is correct, taking multiple decades of toil).  On this Gian and I concur.  The proposed end was wrong, and the means weren’t defined in a manner that matched the proposed end.

Gian goes on to supply data that contradicts Sorley’s theses.  Again, I concur.  Westmoreland didn’t lose the war in Vietnam any more than Creighton Abrams could have won it with alternative tactics.  Tactics, techniques and procedures don’t replace strategy, and they certainly don’t replace policy.

The “better” general in Iraq didn’t win Iraq.  As we have [briefly] discussed, the hard work of the U.S. Army and Marine Corps was done before and during the tenure of all the generals who commanded the campaign.  It was a matter of time, endurance and professionalism by the U.S. military.  To the extent that we attained success in Iraq, it is attributable to the U.S. military.  To the extent that we failed in Iraq, it is attributable to lack of vision or clear policy by the administration(s), e.g., the failure to fight Iraq as a regional war, the support of corrupt Iranian apparatchiks like Nouri al-Maliki, the failure to secure the borders, the engagement of protracted nation-building, etc.

Afghanistan is lost due to the same reasons.  I generally give the U.S. military more credit and attribute more capabilities to them than does Gian.  But one thing the U.S. military cannot pull off is replacement for national policy.  Gian reminds us again that seeking out military heroes to do just this is a distinctly American pastime, but it is mistaken and dangerous, at least for the thinking men among us.

* Thanks to  Wes Morgan and Andrew Lubin for assisting me to get the Marine Corps units and dates correct regarding operations in 2003 and 2004.

Withdraw From Afghanistan

BY Herschel Smith
13 years, 2 months ago

Michael Yon has written a short note entitled Time To Leave Afghanistan.  I concur, but for somewhat different reasons, or at least, I will state my reasons somewhat differently.  I had been pondering going public with my counsel to withdraw from Afghanistan, and then I read possibly the most depressing entry on Afghanistan I have ever seen, from Tim Lynch.  Some of it is repeated below.

Ten years ago, Afghans were thrilled to see us and thought that finally they could live in peace and develop their country …

Five years ago they watched us flounder – we stayed on FOBs and shoveled cash by the billions into the hands of a corrupt central government that we insisted, despite clear evidence to the contrary, was a legitimate government – one that had to be supported at all costs. We raided their homes at night and shot up civilians who got too close to our convoys, we paid for roads that did not exist and, because of the “force protection” mentality, most Afghans thought our soldiers were cowards because they never came to the bazaar off duty and unarmored to buy stuff like the Russians did. In fact, every bite of food our soldiers consumed was flown into country at great expense, so in a land famous for its melons and grapes our troops ate crappy melon and tasteless grapes flown in by contractors from God knows where.

Now, they want to shoot us in the face. Except for the klepocratic elite who want us to give them billions more and then shoot us in the face.

There it is; Afghanistan is toast, and what the last 10 years has taught us is we cannot afford to deploy American ground forces.  Two billion dollars a week (that’s billion with a B) has bought what?  Every year we stay to “bring security to the people,” the security situation for the people gets worse and worse, deteriorating by orders of magnitude.  Now the boy genius has announced a “new strategy”.  A strategy that is identical to the “strategy” that resulted in a hollow ground force getting its ass kicked by North Korea in 1950; a mere five years after we had ascended to the most dominant military the world had ever known.

Tim goes on to say things about Iraq and national defense policy with which I don’t entirely agree.  My views on Iraq are complicated, as my readers know, and I will recapitulate (and summarize) them soon.  But if anyone would know that Afghanistan is toast, Tim Lynch would.

Listen well.  This is no anti-war cry.  I have argued virtually non-stop for increasing troop levels, staying the course, and increased (and different) lines of logistics for support of our troops.  But I have watched with dismay and even panic over the course of the last six years as we haven’t taken the campaign seriously, and good men have suffered and perished because of it.

I have watched as different members of NATO carried different strategies into the campaign without being united at the top level.  I have argued for recognizing the resurgence of the Taliban, while General Rodriguez argued against even the possibility of a spring offensive in 2008.  I watched as that same general micromanaged the Marines as they surged into the Helmand Province, issuing an order requiring that his operations center clear any airstrike that was on a housing compound in the area but not sought in self-defense.

We have seen General McChrystal issue awful and debilitating rules of engagement, along with personal stipulations that modified them to be even more restrictive.  “If you are in a situation where you are under fire from the enemy… if there is any chance of creating civilian casualties or if you don’t know whether you will create civilian casualties, if you can withdraw from that situation without firing, then you must do so,” said McChrystal.

Those disastrous rules and McChrystal’s disastrous management played a critical role in the shameful and immoral deaths of three Marines, a Navy Corpsman and a Soldier at Ganjgal, the firefight where Dakota Meyer earned his MoH.  Read the comments of the families of those warriors who perished at Ganjgal, and let the sentiments wash over you.

Study again my writing on Now Zad.  I was the only writer or blogger anywhere who was following the Marines at Now Zad – how they brought more trauma doctors with them than usual due to the massive loss of limbs and life that Marine command knew they would sustain, how they lived in so-called Hobbit holes in Now Zad, two or three Marines to a hole in distributed operations, hunting for Taliban fighters who had taken R&R in Now Zad because we didn’t have enough troops to prevent them from doing so.

While I was arguing for more Marines in Now Zad, I watched as a Battalion of infantrymen at Camp Lejeune (the class entering after my own son returned from his combat deployment in Iraq) entered the Marines expecting to go to Afghanistan or Iraq.  At that time we were heading for the exits in the Anbar Province of Iraq, and instead of focusing on Marines losing their legs and screaming for help in Now Zad, Afghanistan, that Battalion went on a wasteful MEU (Marine Expeditionary Unit).  No MEU has ever been used by a President for anything in the history of doing MEUs except for humanitarian missions.

So that Battalion didn’t deploy to Iraq, went on a MEU, and then weren’t on rotation for Afghanistan.  Instead of helping their brothers in Now Zad, the Marine Corps Commandant had them playing Iwo Jima, as if we’re ever going to launch a major, sea-based forcible entry again.  A full Battalion of infantry Marines with two wars going on – and no deployment to Iraq, and no deployment to Afghanistan in a four year enlistment.

I argued against night raids by the so-called “snake eaters,” with them flying back to the FOBs that night, totally absent from the locals to explain what happened and why.  In addition to pointing out the wrong way to do it, I pointed out the right way to do it in lieu of night time raids by snake eaters.  I have argued for following and killing every single Taliban fighter into the hinterlands of Afghanistan, while the strategists under General McChrystal withdrew to the population centers just like the Russians did.

I pointed out that withdrawal from the Pech River Valley would invite the return of of al qaeda, Haqqani and allied fighters, and that’s exactly what happened.  I have been in the thick of this with my advocacy for the campaign, but again and again, it has become clear that we aren’t going to take this campaign seriously.  I have advocated against nation building, and by now I think it has become clear that population-centric counterinsurgency and nation building won’t ever work in Afghanistan.  Staying long enough with enough troops to find and kill the enemy has its problems, of course, including the fact that we may have to go back in eight or ten years later and do it all over again.

But that’s the Marine way.  Do now what has to be done, do it quickly and violently, achieve the mission, and leave.  At least I have been consistent, while always acknowledging that we cannot possibly achieve anything permanent, and will probably have to return at some point.  As it is, it isn’t clear that we’ve achieved anything at all.

The Wise family from Arkansas has lost their second son in Afghanistan.  For all those warriors who have given their all, and those families still suffering today because of that, America isn’t worthy of their sacrifices.  To be sure, if we continue the campaign there will still be magnificent warriors who answer the call.  But it’s our duty to take seriously the war to which we’re calling them if we let them go.  We’re heading for the exits, releasing insurgents from prisons in Afghanistan, and instead of trying to develop better lines of logistics, we’re trying to figure out how to get all of our equipment out of Afghanistan.

Regardless of who calls for what, the President will ask the Joint Chiefs of Staff what can be done to withdraw.  They will ask the flag and staff officers, and the staff officers will ask the logistics officers.  Logistics will decide how and when we can withdraw from Afghanistan.  No one else.

But within that framework, I am calling for the full, immediate and comprehensive withdrawal of all troops from Afghanistan, and that we focus exclusively on force protection until that can be accomplished.  It’s time to come home.

UPDATE: Many thanks to Glenn Reynolds for the attention.

UPDATE #2: Thanks to Michael Yon for the attention.

Border War

BY Herschel Smith
13 years, 4 months ago

We have previously discussed the adoption of military style tactics, techniques and procedures by the Mexican cartels, the increasing corruption of the U.S. border patrol, and the recruitment of large numbers of High Schoolers by the cartels.  After observing that the use of the National Guard is problematic for a number of reasons (including the lack of training, the lack of appropriate rules for the use of force, etc.), I recommended that:

… we view what is going on as a war against warlords and insurgents who will destabilize the state both South and even North of the border.  I have further recommended that the RUF be amended and the U.S. Marines be used to set up outposts and observation posts along the border in distributed operations, even making incursions into Mexican territory if necessary while chasing insurgents (Mexican police have used U.S. soil in pursuit of the insurgents).

While militarization of border security may be an unpalatable option for America, it is the only option that will work.  All other choices make the situation worse because it is allowed to expand and grow.  Every other option is mere window dressing.

We now know that gang members are being recruited by the cartels to do street-level jobs, and the loss of border security has wreaked ecological disaster.

“I have learned to live with trash,” said fifth-generation Arizona rancher Jim Chilton.

He saw his once-beautiful ranch, just a few miles from the border with Mexico, is now dotted with clusters of crushed trees and cactus, whole hillsides have been turned into charred eyesores, years worth of his award-winning conservation projects obliterated — and the whole thing is littered with trash, tons and tons of trash. And some of the trash was dead bodies.

Chilton had the misfortune of settling in the path of what would become a dangerous drug- and human-smuggling route on the U.S.-Mexican border, parallel with the notorious Peck Canyon Corridor.

“I’ve got 30,000 to 40,000 illegal aliens coming right through the ranch every year, and the Forest Service says each one leaves about eight pounds of trash. That means 100 tons of trash. Some cows eat the plastic bags and about 10 head a year die a slow and painful death. At $1,200 a head, that means we lose $12,000 a year to trash.”

Chilton saw southern Arizona not as the headline-grabbing political flashpoint of the Justice Department’s failed “Fast and Furious” guns-to-smugglers tracking project, but as the land-grabbing opportunism of Obama’s resource management agencies and, sadly, the failure of the U.S. Border Patrol to secure that bloody line separating the United States from Mexico.

The land-grabbing chapter of the trash story has gone largely unnoticed, but surfaced last year when the Bureau of Land Management proposed to shut down target shooting on 490,000 acres in the Sonoran Desert National Monument — and in large swaths of other public lands as well.

The reason? Monument manager Richard Hanson claimed shooters were leaving trash at the shooting sites, an outrageously trumped up excuse, but Hanson’s claim couldn’t be refuted at the time.

The BLM had closed 400,000 acres of publicly owned, national monument lands across three states to recreational shooting activities in 2010, labeling recreational shooting as a resource-harming activity and a public safety threat.

That was a clear signal showing that the SDNM move was just another step in Interior Secretary Ken Salazar’s obnoxious “lock-it-up-and-kick-’em-out” plans that have drawn the ire of Congress.

If it seems that the administration is taking an un-serious view of border security (intentionally conflating the trash left by illegals with shooters), then this report shouldn’t surprise anyone.

Federal agents trying to patrol the U.S.-Mexico border say they’re hampered by laws that keep them from driving vehicles on huge swaths of land because it falls under U.S. environmental protection, leaving it to wildlife — and illegal immigrants and smugglers who can walk through the territory undisturbed.

A growing number of lawmakers are saying such restrictions have turned wilderness areas into highways for criminals. In recent weeks, three congressional panels, including two in the GOP-controlled House and one in the Democratic-controlled Senate, have moved to give the Border Patrol unfettered access to all federally managed lands within 100 miles of the border with Mexico.

While the cartels develop intricate intelligence networks and adopt military style tactics, the U.S. prohibits access to lands controlled by the Bureau of Land Management due to EPA regulations, and blames trash at the border on shooters.  It’s no wonder that insurgents have gone hunting at the border – not hunting for animal game, but human game.

Five illegal immigrants armed with at least two AK-47 semi-automatic assault rifles were hunting for U.S. Border Patrol agents near a desert watering hole known as Mesquite Seep just north of the Arizona-Mexico border when a firefight erupted and one U.S. agent was killed, records show.

A now-sealed federal grand jury indictment in the death of Border Patrol agent Brian A. Terry says the Mexican nationals were “patrolling” the rugged desert area of Peck Canyon at about 11:15 p.m. on Dec. 14 with the intent to “intentionally and forcibly assault” Border Patrol agents.

Commenter Scott Wilson recommends the following:

They should take the 7th Army (and the Ghost of Patton), and all its subordinate units, and move it lock, stock & barrel to Del Rio, TX. They can then patrol the banks of the Rio Grande with Bradley’s, Apaches & Cobras. Then, let’s see how much success these border insurgents, armed with the semi-auto AKs have against that.

Germany has the strongest economy in Europe. It can afford to defend itself from Russian aggression. If it can’t, then we have PLENTY of military contractors that can sell them the weapons that they need. Europe needs to stand on its own. Our resources need to be protecting our borders, not Germany’s.

This sentiment is certainly in line with my own, but unfortunately, roving the border with Bradley Fighting Vehicles won’t work.  This requires combat outposts and Marines (or Soldiers) on foot patrol.  Infantry – not mechanized infantry – is the order of the day.

But it will require more than that.  As long as we continue to treat the border as a law enforcement endeavor, with agents subject to rules such as those outlined in the Supreme Court decision in Tennessee versus Garner, with criminals imprisoned or sent back to Mexico to try it all again, we will continue to lose the war at the border.  Imprisonment of drug traffickers and illegals won’t work any more than prisons work in counterinsurgency.  Prisons are a costly ruse.

Make no mistake about it.  This isn’t a war against drugs, or a war against the drug cartels, or a war against illegal immigration, or even a war against human trafficking or Hezbollah fighters entering the U.S. at the Southern border.  This is a war for national sovereignty – a border war.

Law enforcement cannot do the job when people are afraid to call them for fear of retribution and are being told to wear body armor to work out in their own fields.

Visit msnbc.com for breaking news, world news, and news about the economy

A border war.  Only when we militarize the border with combat outposts and shoot all trespassers will we even begin to wage the war on the enemy’s terms.  In spite of claims that the Posse Comitatus Act applies, this war is against non-U.S. citizens, and it is a fight for the survival of what defines America.  Presidents in both parties have seen America as an idea rather than a location with secure borders.

If America is an idea and the Southern border is to be just an imaginary line, then we have already lost.  If America deserves defending, then we must do what is both uncomfortable and necessary to effect its security.

Prior on Border War: Texas Border Security: A Strategic Military Assessment

Prior Featured: Analysis of Brief For The U.S. In Opposition to Sean Masciandaro

Analysis Of Brief For The U.S. In Opposition to Sean Masciandaro

BY Herschel Smith
13 years, 5 months ago

In No Right To Carry Concealed Handgun and Heller Versus D.C. Before the Circuit Court of Appeals (Assault Weapons Ban), we discussed the case of Sean Masciandaro.  While traveling, Mr. Masciandaro fell asleep in his automobile at or near Daingerfield Island, an area of NPS land near Alexandria, Virginia.  He had a handgun, and instead of separating the ammunition in proximity from the weapon, he had the weapon loaded.  He was convicted of a crime, and has appealed the case all the way to the Supreme Court of the U.S.

Since Mr. Masciandaro’s conviction, Congress has passed a law prohibiting executive regulation of enforcement of weapons bans on National Park land (including the specific infraction with which Mr. Masciandaro was convicted).  We will revisit this fact later in our analysis.  Mr. Masciandaro’s attorneys submitted their Petition for Writ of Certiorari, and until recently were awaiting the response of the Solicitor General.  Donald B. Verrilli and Lanny A. Breuer finally submitted their Brief for the United States in Opposition to Sean Masciandaro.

Analysis of Core Argument[s] in Brief for the U.S.

The brief spends some unfortunate pages rehearsing what we already know about this case, providing detail that has been provided  by they attorneys for Mr. Masciandaro.  By the time that the argument begins and goes a single paragraph, it is reduced to the following three unrelated points: (1) intermediate scrutiny is appropriate (and thus the government is not required to prove whether the core question implicates Second Amendment considerations), (2) the level of danger with a loaded weapon is high and warrants government controls in the interest of public safety, and (3) the case is irrelevant due to its having been made void by an act of Congress.

On page 8 the brief begins the argument that the subject regulation implies specificity inasmuch as it only applies to loaded firearms in National Parks and inside a vehicle.  The argument to specificity is important and we will revisit its implications.  On page 10 the brief argues that whether the core right identified in Heller extends outside the home as well is an “abstract question,” and adds that the case of Masciandaro “presents no occasion to decide that issue.”  On page 12 the brief extends the argument that whether the Second Amendment extends outside the home is an “abstract question.”

On page 13 the brief begins to walk this argument back when it states:

Petitioner suggests (Pet. 21) that lower courts “will continue to limit the Second Amendment right to self-defense in the home” until this Court affirmatively extends its scope. Even if that were so, it would not preclude this Court from addressing the broad question, after full consideration by the lower courts, in a case (unlike this one) where its resolution would be outcome-determinative.

So rather than an “abstract question” effecting the broad application of firearms rights outside the home, in just a few pages the Masciandaro case has become one that cannot possibly be “outcome-determinative” because any decision by the U.S. Supreme Court would effect only regulations in National Parks (or more specifically, the case of Sean Masciandaro in a National Park convicted of this specific crime at this specific time in history).

A new section begins the argument (on page 14) that the question of bearing firearms outside the home is not “cleanly presented” in the Masciandaro case.  Brief continues:

… when this Court in Heller pointed out that “the right secured by the Second Amendment is not unlimited,” 554 U.S. at 626, it identified several “presumptively lawful” regulations of that right, id. at 627 & n.26, including “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” id. at 626. Although the court of appeals found it unnecessary to decide the issue, national parks — heavily traveled, government-controlled areas where “large numbers of people, including children, congregate for recreation,” Pet. App. 15a — can readily be described as “sensitive places” within the meaning of Heller. At a minimum, they implicate specific public safety interests, and their “circumstances justify reasonable measures to secure public safety.”

In a 16 page brief, Verrilli and Breuer have stumbled into a serious logical blunder.  The brief argues that the Masciandaro case doesn’t implicate Second Amendment rights on a large scale, since this case involves only National Park land and any decision would effect only this specific regulation.  Recall from above that the initial argument straight out of the gate had to do with the specificity of this case and any decision thereto.

But the brief apparently feels that the Second Amendment implications are massive, arguing extensively that this case involves “sensitive” areas where large numbers of people are congregated.  On the one hand, this case is specific.  On the other hand, its implications are broad enough that the court should decide it later because public safety is at stake and the implications for any decision are far too broad.  This is fundamentally contradictory, as the case doesn’t fit the category for broad constitutional implications because of its specificity, but does so to such a degree that any reversal by the Supreme Court of Mr. Masciandaro’s conviction would imply carry rights in areas that the government would seek to prohibit.

This problem can be seen again in the way in which the brief argues for non-consideration by the Supreme Court.  On page 7 this case is noted as having “little importance” since the law has been reversed.  So it has been categorized as not implicating second amendment rights as a justification for dismissal.  Then on page 12, precedent is cited for rejecting cases with “underlying issues with such broad ramifications.”  The brief’s core argument is self-referentially incoherent.

Further Analysis

It is appropriate at this point to make some additional remarks about the brief that don’t go entirely to the core argument[s].  The brief is so poorly written that it is difficult to follow the flow of thought (if there is any).  It seems to revert at times to the leaky bucket approach to rhetoric.  First there is the judicial “now you see it, now you don’t” trick of intermediate scrutiny, and thus whether Second Amendment rights are implicated is irrelevant – but even if Second Amendment rights are implicated, the government has an interest in public safety that bears on this question – but even if we don’t, the law has been overturned anyway – and even if all of that isn’t true, the Supreme Court should wait to decide cases with such broad constitutional ramifications as this one – but any decision by the Supreme Court wouldn’t effect larger questions since the regulation only effected behavior on National Park Service land, so the Supreme Court should reject it from consideration since it is so specific.  And on and on, back and forth from page to page it goes, dizzying the reader like a ping pong match.

The brief is such a completely disconnected, randomized flow of consciousness paper that it leaves one without a sense of having been persuaded of much of anything except that it is a pleasing experience to stop reading it.  It places heavy weight on the notion that a loaded firearm is “surely more dangerous than an unloaded one.”  But this assertion is stated as axiomatic and lacks demonstration or evidence.  For most concealed handgun permit holders, trigger and muzzle discipline approaches religious fervor.  To be sure, the state has an interest in knowing that weapons owners (who have a permit to carry) know how to make their weapon function with no danger to anyone except an assailant.  Hence, a range test and firearms safety training (e.g., knowing where your target is and also what is behind your target) is part of the process to get the permit to carry.

But it is a juvenile and illogical leap simply to assert that a loaded firearms in the hands of trained, permitted individuals, is “surely more dangerous” than an unloaded one (as if weapons randomly discharge).  This is analogous to the argument in Heller 2 where D.C. continues with the ban of so-called “assault weapons.”  An analysis of mass shootings in the U.S. demonstrates rather conclusively that assault weapons do not deserve the approbation heaped upon them.  Similarly, in spite of the prediction of bloodshed in the National Parks by the Brady Campaign’s Dennis Henigan, based on a FOIA request I filed concerning violent crimes in National Parks after reversing the ban on loaded weapons, there is essentially no change in 2010, and firearms related incident continue to remain statistically insignificant.  Dennis Henigan was wrong.  But then so are many adjudications concerning firearms because they rely on arguments made mainstream by the likes of Dennis Henigan.

After arguing for a compelling government interest in public safety because of the threat of violence from loaded handguns, the brief all but stipulates to the contrary proposition by dumping the basis for their argument and asserting that a Supreme Court decision wouldn’t matter because the law had changed.  Note well.  The brief doesn’t argue for the Supreme Court to take up the case to justify their assertion that a loaded handgun is surely more dangerous than an unloaded one and hence the compelling interest in public safety makes such regulations just and right even if the court exonerates Seam Masciandaro (a position which they could have taken).  The brief argues that the Supreme Court should not take the case because there may be other cases in the future that also bear on the question.

There are several other things that can be gleaned from the brief.  First, it is clear that neither the appeals court judges nor the authors of the brief have any significant personal experience with firearms.  No one with personal experience would make such manifestly absurd, factually incorrect statements about firearms.  Second, it becomes clearer with this brief what the current administration thinks about Second Amendment rights (they are not friendly to the Second Amendment).  Third, the brief eventually seems to devolve into a whiny, nagging missive on the fact that the Supreme Court shouldn’t take the case of Sean Masciandaro because we, the administration, really don’t want them to.  And if that’s not enough, we really … really … really don’t want them to.

The case of Sean Masciandaro presents a perfect opportunity to establish once and for all that U.S. citizens have a right to self defense outside their home.  The home is a man’s castle, and castle doctrine has now become law in most states as it should be.  Thus the burden of proof is placed squarely where it should be, i.e., on the prosecution, and the burden is heavy and the bar high for cases of self defense inside the home.  Rightly so.  But while the burden may not be as high outside the home, that doesn’t mean that a citizen relinquishes the right to self defense when he leaves the confines of his domicile.

Life in the United States of America generally requires interaction with the balance of society, and the warp and woof of America involves rich and robust ideas on firearms ownership and the right to self defense.  It did at the founding of our country and that continues to this day.  There is no evidence that the majority of Americans feel that their rights cease and desist because there are other people around them.  In fact, the presence of others is precisely the circumstances under which self defense would be exercised.  Restriction of the right in circumstances where it is most likely to be required to be exercised doesn’t comport with the spirit of the constitutional guarantee.  Rather, it mocks it.  Neither, for that matter, does requiring Sean Masciandaro to separate his ammunition from his weapon, rendering it completely useless as a means of self defense, comport with the intent of the founders or the rights granted to us by God.  Judges and attorneys who have experience with firearms or even who care just a little about constitutional guarantees would know these things.

UPDATE: Reddit/r/guns link.


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