Gary Marbut is the sanest, safest, most extreme gun advocate you’d ever want to meet, and I wanted to meet him. He lives in a geodesic dome he built himself on family land outside Missoula, MT, where he sells shooting range targets he makes himself and keeps a vast collection of guns that shoot ammo he loads himself.  Gary is a gun nut, but he’s also a gun safety nut, a responsible use of firearms nut, and not coincidentally, an excellent instructor in the safe use of firearms. He guided me from utter ignorance to shooting my way through a tactical course in a matter of hours.  Despite the fact that he is always armed — always — I would say you’re safer running into Gary Marbut on a dark streetcorner than you would be in a minivan with a teenage driver.

My day with Gary was filmed for the documentary I’ve been making for PBS on the US Constitution, and when it’s broadcast in May you’ll be able to see Gary (and me) in action on the gun range, and hear his arguments for why the US Government shouldn’t be able to regulate the manufacture and sale of weapons within a state. But during our day together, and after, I engaged Gary in a conversation on gun control. Gary, unsurprisingly, is not in favor of legal restrictions on gun ownership. He believes, profoundly, that an armed society is a safer society, and in an email to me, talked about how important it is for all the “good guys” to have guns, and know h0w to use them properly and safely, in order to defend themselves and others from the “bad guys.”

That division, between the good and the bad among us, is what underlies most of our talk, and a lot of our legislation, about guns. We can’t pass restrictions on gun ownership, we are told, because “law abiding gun owners” would suffer, while “criminals” would, of course, ignore the laws against gun ownership in the same way they ignore the laws against robbery, rape and murder.  I live in Chicago, where we have no shortage of “bad guys” with guns, and yes, it’s hard to imagine they’d be stopped by laws banning their ownership of guns. They haven’t been so far.

But I thought about this reading the New York Times‘ coverage of the shootings in Newtown. Time and again, they referred to the actions of the “gunman.” This is understandable. He is a man with a gun. And it would be horrifying if they were go by standard New York Times style, and refer to a “Mr. Lanza” repeatedly as he murdered 20 children and six teachers.

But that term, “gunman,” is the first, mild term on a spectrum of alienation that leads down to “monster,” “coward,” “face of evil,” any and all of which might make us feel better as we loathe and scorn Adam Lanza, and reject him from human society, but it’s also is a way of reinforcing that “good guy/bad guy” dichotomy.  You hear it now, from Rep. Louis Gohmert this morning on Fox News, and you will hear it more in coming days: we will have no choice but to arm the good guys because there’s no other way of stopping the bad guys.

As far as I know — and you should take everything in this post to be “as far as I know” — Adam Lanza had no criminal record, no record of hospitalization for mental illness, nothing that would have prevented him from legally owning all the weapons he used Friday. And since he didn’t actually own them — his mother did — let’s use other examples. Until the moment he grabbed his gun and killed his girlfriend, Jovan Belcher was a law abiding gun owner. Until the moment he shot Trayvon Martin, so was George Zimmerman. So was James Holmes until he opened fire at the Century 16 movie theater in Aurora, Colorado. So was Jeffery Giuliano, the Connecticut retired cop who shot and killed his own son, thinking him to be an armed intruder. Actually, Mr. Giulano still is a law-abiding gun owner — no charges were filed.

I have no wisdom, and no prescription, and no advice as to what we as a country — who have decided, collectively, through our laws and our elected representatives to make access to guns ever and ever easier — can or should do now. I just make jokes on the radio about less important things. But I feel it’s important to remember: the villains, the bad guys, the ones we have to be afraid of and arm against, are, to a greater extent than we like to admit, ourselves.

(Sorry, my links editor isn’t working, so I couldn’t embed links to the stories I mention.)

I’m going to admit disappointment. Not necessarily in the quality of the debate; I doubt anyone on either side would complain their side wasn’t forcefully represented. To explain the nature of my disappointment requires some background:

In April, Dan Savage appeared before a high school journalism conference and made some comments about the Bible and about some religious students that walked out on him that caused some anger among the right wing, the religious, and the religious right wing.  Dan was accused of all kinds of things, including “bullying,” and a man named Brian Brown, who is the head of the National Organization for Marriage (the pre-eminent anti-same sex, or pro-traditional, marriage organization) challenged Dan to a debate, “anytime, anywhere.”

This was Dan’s response:

“Where? My dining room table. Place? Seattle, Washington. Here’s the deal: we can fill a room with my screaming partisans and your screaming partisans and play to our respective peanut galleries, as we both have a little of the grandstander in us. I feel that will create more heat than light. So what I’d like to challenge you to do is come to my house for dinner. Bring the wife, my husband will be there. And I’ll hire a video crew and we’ll tape a sort of after-dinner debate. You have to acknowledge my humanity by accepting my hospitality, and I have to acknowledge yours by extending my hospitality to you.

I can’t tell you how thrilled I was by this. Not by (necessarily) the idea of a real debate between SSM’s most important institutional opponent and its most, shall we say, vivid defender, but by Dan’s choice to be — what’s the word? — how about decent. When’s the last time in our continually expanding battlefield that used to be public discourse did somebody genuinely extend a hand, let alone a home-cooked meal, to an ideological enemy?  And I felt the same admiration, and even pleasure, when Brown accepted Dan’s offer.

That’s my porn of choice: two public figures being nice to each other. Go figure.

Anyway, the debate, as filmed and put on Youtube, unedited, was a come-down from the pre-bout hype. Not that it wasn’t combative, not that it wasn’t substantive (both of these men know their case law) but it was so… unpleasant. Whatever kindness the two men may have expressed to each other in the unfilmed dinner vanished; they retreated back into their respective corners and went at it, with the same unbending convictions they had going in.

Mark Oppenheimer, the moderator of the debate, felt the same way, writing:

It was dispiriting, but in an instructive way. Here were two Catholics — Mr. Savage born to the faith, Chicago Irish, the lapsed son of parochial schools; Mr. Brown of Quaker ancestry, but a Catholic since college, with a convert’s zeal — who could agree on nothing and could effect no change of heart in each other. They disagreed over whether Mr. Savage had the right to insult the Bible in front of high school students; about whether the New Testament endorsed slavery; and about whether the recent study by Mark Regnerus and its controversial conclusions about gay parents had any merit.

Every time they disagreed, I drank some more.

We can’t in the end be surprised.  The “Oh my god, what have I done?” moment we all hope for  happens only in movies, and other fables, and the number of public figures who have committed that sort of apostasy is very small, and those who do it are rarely rewarded.  Think about it: it would be inconceivable for Dan Savage to publicly change his mind about SSM. He’d destroy his career, his reputation, his own family. But it would be just as hard for Brian Brown; his career, as well, is based on his unshakeable advocacy for his cause.  What would happen to him if he said, “Hey, you know, let’s let gays get married, it’s no biggie?” He’d lose his job, his public position, maybe even his own family (we assume his wife, mother of his soon-to-be 8 children, agrees with his current views.)

In the end, we don’t really want our enemies to be convinced. We want them to be punished. I am a runner, and I often pass the time while running making Speeches at my enemies, real and imagined. I tell him or her or them how foolish and wrong they are, how ignorant of fact and devoid of decency, and I never imagine them agreeing with me. I imagine them… if I spare a thought for them at all… staring back at me, in angry silence. I don’t want an agreement; I want a victory.

So it is with Dan, and Brian, and the rest of us.  In the end, one of the two sides will in this particular argument will win (I’ve declared my preference.)   Society will change, as it always does, and SSM will become common or illegal, and those who are on the losing side will most likely go to their graves convinced they were right anyway.  And those who have won will be happy about that, because to we small minded creatures there’s no point in winning if you don’t have somebody you can say you’ve beaten.

His friend and contributor David Rakoff died this week, and and so this morning I  wanted to load a piece by David about his cancer onto my iPod. Couldn’t make it work for some reason, so I gave up and instead listening to a random recent “This American Life” podcast, titled Amusement Park.  Go listen to the first segment now, then come back.

Ira has gotten a lot of (deserved!) attention and praise for encouraging new talent (like Rakoff and David Sedaris and Mike Birbiglia and many others) and for doing really superb journalism about important topics, like the mortgage meltdown and a terrific hour about a runaway judge running a drug court in Georgia — a piece of investigative journalism that led to the resignation of the judge in question.

But if you really want to understand that Ira really does, think about that amusement park segment. Because it’s about… nothing. Well, nothing you’d notice or be interested in, if I described it to you — it’s about a 25 year old college drop out who runs the carnival games at a small amusement park in Kansas City.  He doesn’t have any deep secrets, he’s not a gifted poet or musician or reformed criminal,  he’s just a guy who loves his job. As Ira points out at the end, he’s not even that good at it, if measured by income to his employer… the amusement park makes more money selling food.

But Ira spends a day with him and crafts about 15 minutes of radio that is funny, fascinating and narratively gripping. It becomes a portrait of a man and his enthusiasms, about employees and employers, about motivation and fun and the reason people go to work, or may not want to. The central character becomes a Character, somebody you think you know, or at least would like to, and it left me thinking about how I approach my work and the people I work with, and how I can do both a lot better.

And here’s the thing you need to know — how incredibly hard that is. To understand that this is a person worth spending a day with in the first place, then to record hours of interviews and sound and then tease out of that raw material just the right sound bites and and add narration and music and make a great radio documentary.  To make it into a story compelling enough to make complete strangers, who couldn’t care less about topic of the story, fascinated with its essence.

Anyway, Ira (who I am pleased to call a friend and colleague) doesn’t need any praise from me, but let’s just say that I share with him an enthusiasm for people who do their job really, really well.

Randy Barnett in the barn (Photo: Chris Buchanan)

So this is why I was sitting in an antique barn in La Fox, Illinois, with Georgetown law professor Randy Barnett on the hottest day (so far) of 2012:
1) Randy is one of the country’s foremost libertarian scholars of the Constitution, the leading intellectual in a movement called the “Lost Constitution,” which holds that the document and its amendments include powerful restraints on Federal power, which have been routinely and disastrously ignored by politicians and the courts;

2) An important part of this critique is the belief that the Court went astray in the signal 1942 SCOTUS case Wickard v.Filburn, in which the Court ruled that the US Government could use its power to regulate “commerce… among the several states” (Article I, Section 8) to regulate something that didn’t involve either commerce or several states;

3) The “Filburn” in Wickard v. Filburn was a farmer, Roscoe Filburn, who (according to the legend told around Heritage Foundation campfires to scare young conservatives*) simply wanted to grow wheat for his own use at his own farm, but was forced by the Agricultural Adjustment Administration and ultimately by the Supreme Court to pay a fine because he exceeded his growing allotment;

4) That case, in effect, gave an excuse to the Federal Government to expand its power exponentially in the post-WWII years, much to the consternation of conservatives and libertarians such as Randy Barnett;

5) Mr. Filburn’s farm was sold years ago to a developer so we substituted one in La Fox for atmosphere.

Everybody clear?

Randy was also the primary scholarly architect of the legal challenge to the Affordable Care Act, aka “ObamaCare,” and as our interview took place just days after the Supreme Court upheld the law, we expected him to be in a bad mood. We also expected him to take a partisan line – after all, he was a combatant in one of the most bitter partisan fights of a partisan age – but he was affable, expansive and pleasant, talking not like a partisan but as a scholar, in terms of principles, texts and history, albeit one who is very practiced at explaining his ideas to non-scholars.

Randy Barnett does not like the Federal government. Again, it’s not a partisan issue; he doesn’t like the thing itself, as opposed to the people currently running it. (Though he doesn’t have much kind to say about any of them.) As a historian, he holds that the Framers, James Madison in particular, were very concerned that the Bill of Rights might be construed as a finite list of limits on government; ie, if it’s not specifically prohibited, then the government can do whatever it wants.  No, Barnett says: what’s finite is the enumerated powers of the US Government, not its limits. To prove his point, he need only recite the 9th Amendment, which of course he can do from memory:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This Amendment, he says, as well as other Constitutional texts designed to protect personal liberal, have been for two centuries firmly and widely ignored, by the Supreme Court, Presidents and Congresses… an ongoing trifecta of Constitutional malpractice. He can cite many examples – The “Slaughterhouse” Cases, Wickard V. Filburn, etc etc. but his point is simple: The Federal government was created with limited powers, and we continue to ignore those limits to our peril.

The Federal  government  is a particular danger, he says, because if a State oppresses us, it’s relatively easy to leave. If the country as a whole does it:  not so much. But his larger point about the need to restrain the Federal government is really no more than this: if we are concerned, as we should be, with preserving individual liberties, it is better, easier, and more effective to prevent the Government from taking them away in the first place – as the Constitution was written to do –  then trying to get them back. This, he says, was the true wisdom of the Framers, and what he and his colleagues are trying to restore to our current understanding of the Constitution.

Photo by Chris Buchanan

MiAngel Cody also has a lot to say about the wisdom of the Founders, though in comparison to Barnett’s critiques, she comes across as a wide-eyed idealist.  But it’s a well earned idealism, or at least, a well-tested one. MiAngel works as an assistant federal defender in the court system, representing indigent defendants facing Federal charges.

She has a funny way of talking, in that many of the things she says would qualify as complaining. She told us that the majority of her clients have substance abuse problems or mental issues, and that many of them can’t read. But she doesn’t sound like she’s complaining. She’s not bragging either, as in “Look at me, look at how virtuous I am.”  She’s describing her role in the justice system – defending people who are otherwise defenseless.

MiAngel has a sense of humor, and was more than willing to joke around with me about her courtroom tactics – she told me, with a straight face, that she’ll sneak into the courtroom and switch around the tables, if she has to, so her side has a better looking one than the prosecution.  But when we sat down and talked about the Constitution – particularly the 5th, 8th, and 14th Amendments –  her voice took on an almost religious tone.

This was true even when she was speaking of the case of her client Reynolds Wintersmith, a first time drug offender who, in 1994, was sentenced to life in a Federal penitentiary at the age of 20, for a crime committed at the age of 17.  The sentence was mandatory, imposed by sentencing laws that were first modified by the Supreme Court, and then overturned by Congress, when they decided that maybe it was a bad idea to require judges to send minors to prison for life for selling crack, no matter what their circumstances.  However, neither the Supreme Court ruling nor the legislation was retroactive, so Wintersmith faces dying in jail because of what everybody agrees was a mistake. (MiAngel told me something I did not know: there is no parole in the Federal system. A life sentence is a life sentence.)

If you are sympathetic to his case, then you’ll have to concede that Wintersmith has been failed repeatedly by the justice system. First, the judge in his case was forced to sentence him to life, not because he was violent or was a repeat offender, but because in a panic, Congress had decided that crack dealers were as bad as murderers, even 17 year old crack dealers.  Then Congress changed the law, but made no provision for those already sentenced under it; then the various appeals courts refused his entreaties for mercy or a re-sentencing. So now, in his late 30s, all that is possibly left for Wintersmith is the Presidential pardon power granted in Article II, section 2.  MiAngel, suffice to say, is particularly grateful to the Framers for that provision.

It was an interesting day of contrasts – and not just because the barn wasn’t air-conditioned, and the courthouse where we interviewed MiAngel was.  Randy and MiAngel have something surprising in common, given their differing views:  both have worked in the criminal justice system in Cook County, IL,  MiAngel as a defender, Randy as a prosecutor.  Randy was the hammer in the hands of the state, wielding state power against whomever he and his colleagues saw fit, and now has a deep distrust of that same power, and has spent his subsequent career trying to limit it. MiAngel fights the government everyday on behalf of the powerless, the poor, and yes, the guilty, and yet still seems to admire the power she’s fighting.

I would guess that’s because she still sees herself as part of the system, and therefore ascribes to the government the value of the work that she herself was doing.  Maybe Randy felt the same way – after all, your view of state power would be affected profoundly by whether you saw its primary role as one of assuring prosecution and punishment, or defense and freedom.

Interesting tidbits about each of them:

Randy says that the two highest pinnacles of his professional life, the two things he’s most glad he’s able to say he’s done, were: 1)
Arguing a case (Gonzales V. Raich) in the Supreme Court of the United
States, and 2) appearing as a lawyer in the low budget sci-fi film
InAlienable, written by Star Trek’s Walter Koenig.

As for MiAngel, she told me the most terrifying moment of her life was
when she hurt herself badly in a flag-football game. (She’s a
cornerback) But was really interesting about her is that when you call
someone “MiAngel” all day, because that’s their name, it sounds like
you’re being really affectionate, and after a short while you become
used to it and then you start feeling affectionate and generally quite
happy. It’s the verbal equivalent of making yourself cheerful by
forcing yourself to smile. Fun.

(NOTE: The original version of this post drew some concern from MiAngel Cody’s office that it did not accurately represented her views. I’ve amended it.)

“I was surprised by the humility that coated that entire locker room. Matsui broke through the paparazzi to say hello; Sheffield offered to schedule a haircut for me; Posada made sure I had enough room next to his locker; Giambi, far from being defensive or silent on the topic, apologized for having used performance-enhancing drugs.”

– Doug Glanville, the New York Times, 5/10/12

YANKEE SPRING TRAINING JOURNAL, DAY 1

I was nervous walking in, my first day with the Big League Team. My hands shook so badly you could hear the bats rattle in my bag. “Here,” said Hideki Matsui, reaching out a massive hand, “Let me take that,” I was surprised and pleased that he spoke neither in Japanese or English, but in Esperanto, which he had learned in order to welcome rookies of all nationalities. Gary Sheffield approached me, put a hand on his hip, cocked and eyebrow, and said, “That blow-dried look won’t work for you in the Show,  I’m afraid,” and immediately set up a Skype session for me with his own stylist inBrentwood.

Then I saw him, over in the corner, near the chocolate fountain. Jason Giambi, staring at me with sad, wounded eyes. He pointed at himself, then he mimed plunging a syringe into his own buttock. His eyes never left mine. It was haunting. I looked away, unable to stand the intensity of his gaze, and when I looked back, he was gone.

DAY 2

A tough but good day taking batting practice under the eye of the coaches, as well as two hours of fielding drills with the other prospects. I’m feeling confident, and reminding myself that the field here is the same size as in all the minor league parks I’ve played in.

When I return to my locker, a note falls out. It says, “Storage room.”

There is no light when I open the door to the storage room, and the switch on the wall doesn’t work as I flick it up and down. Then a spark flares in the corner, and I see the face of Jason Giambi, who lights a candle with his freshly lit match. He has created a kind of shrine around himself, broken syringes, pill bottles and needles, all pointing towards himself, in the center. He is naked except for compression pants, with the words “Guilty” painted all over his powerful torso in lipstick.

“The first time, you think it’s just for an emergency, just to get your energy back after a tough series,” he said, dully, his eyes staring at the candle flame. “You say to yourself, ‘It’s not cheating, it’s just getting myself back to what I really am.’ But the second time, the third, the fourth… pretty soon, it is who you really are. A cheater.’”

“What’s that music?” I asked him.

“’Carmina Burana,’ by Carl Orff,” he said. “I alternate that with the Smiths.”

“Oh,” I said. “I like Nicky Minaj, maybe a little Maroon 5. Gets me pumped up for the game.”

He blew out the candle just as I closed the door, plunging himself back into darkness.

DAY 5

My first spring training game, and it didn’t go well. Nerves, I think. Two strikeouts and a dribbler to short in my first 3 ABs, but I was able to focus on playing my own game and beat out an infield single in the 8th. Posada, Mitsui and Sheffield did the Wave from the dugout, and Derek Jeter sent me flowers.

Still, I wasn’t in the best mood, so when I saw a huge sheaf of paper pinned to my locker I didn’t even read it, but went straight to Giami. “What’s this, Jason?” I said,

“It’s my confession,” he said, staring down the floor. “Every instance, every injection, every pill popped, even the time I chewed some chia seeds. I wanted to unburden myself to you, completely, so that you would know me to the depths.”

“Yeah, I appreciate that, Jason,” I said, “And I know you’re really really sorry about the drugs and stuff…”

“More than you know.”

“No, Jason, I think I know EXACTLY HOW MUCH. There were the notes, and the song you wrote, and the video presentation.

“I animated that by hand,” he whispered.

“Right, yes, so the point is, I KNOW YOU’RE SORRY. And you know what, bro? I forgive you. It’s okay, man. You don’t have to worry about me.”

Jason looked up at me.

“I’d by crying right now,” he said, “But incessant use of steroids destroyed my tear ducts.”

“I know,” I said. “That was in the Powerpoint.”

He stood up.

“Thanks, man,” he said. “Your forgiveness is all I asked.”

“You got it, bro.”

I turned to walk away.

“One for four today, huh?” he said. “No way you’re taking my position with numbers like that. I told the skipper, you get sent down or I demand a trade. Enjoy the minors, rook.”

I stared at him.

“I’m sorry for that, too.” he said.

You won’t hear the word “marijuana” at the Harborside Health Center, despite the thousands of pounds of marijuana that move in and out through its welcoming doors every year. You won’t hear “dope,” “pot,” “grass,” “weed,” “chronic,” “herb” or anything that smells of the street or illicit trade. You won’t hear much pot humor (even from me, even though I thought of a good joke while there*.) You will hear, over and over, the word “medicine.” And, if we need to specify the medicine we’re discussing, we shall call it “cannabis.” (It’s Latin, it was explained to me. Sounds more serious. Medical.)

I have always admired true believers, whatever their specific belief: those people who are so convinced of the rightness of their cause, or the value of their passion, that they devote all to it and risk all for it, their “lives, fortunes, and sacred honor,” to borrow a phrase. And Steve DeAngelo has done all that; he says – with some pride – that’s he sold enough cannabis to be eligible for the death penalty under Federal Law. (I checked; he’s right.) He says he has been involved in “the cannabis movement” since the age of fifteen, and before you start making wisecracks like, “Yeah, and I was an activist in the cheap beer movement starting about the same time,” read his bio. He has been deeply involved in political crusades since adolescence; whatever the rightness of his cause, there’s no denying that for him it is, in fact, a cause.

Simply put: DeAngelo believes that cannabis is an almost universally useful medicine, and that people should have the same level of access to it that they have to say, Oxycontin.  He has created at the Harborside Health Centerin Oakland as a deliberate model of a modern, safe, regulated, legal (under California law) medical cannabis dispensary. It is the Whole Foods Market of cannabis, down to the helpful clerks wearing polo shirts with the HHC logo, the gift shop, the glass display cases. It is a clean, well lighted place to buy cannabis in all its forms.

You need a doctor’s recommendation to purchase medical cannabis (not a “prescription,” due to a quirk in the law that Steve understands and I don’t.) If you bring in a recommendation, they will sit you down in a pleasant waiting room while they check that your doctor is licensed by the State of California, and then call that doctor to make sure your recommendation is legit. Once you’re approved, you stand in line, approach a display case, and a helpful associate will listen to your complaints and suggest the correct medicine – edible, smokable, sativa or indica, plant or unguent. If you don’t have the resources to pay, they’ll help you out. If you have an addiction problem, they will help you out. If you want a yoga class or a genuine hemp fiber handbag, they will help you out. They are a helpful group of folks.

This is all kind of funny until it is not, and that moment came for me when the film crew and I decided to interview one of the patients, a woman in her forties with a lined face but who offered a smile when I asked if we could talk to her. “What’s your medical complaint?” I asked. “Cancer,” she said, and smiled again, thanked us, took her brown paper bag of medicine and left.

We were talking to Steve and his staff and patients for the “ConstitutionLand” series for PBS because Steve claims that under the 10^th Amendment, the Federal Government has no power to overrule the State of California’s own legislative and popular will when it comes to medical marijuana. His arguments are very similar to that of Gary Marbut’s, although Steve feels that unlike cannabis, gun violence is a scourge and should absolutely be regulated. (Constitutional law makes strange bedfellows.)  There’s a lot of sense to what he’s saying: if states are able to regulate alcohol as they like, why not cannabis? And, for that matter, how come the United States needed a Constitutional amendment (the 18^th) to ban alcohol but can ban cannabis as a matter of administrative law? And – as Steve knows, which is why he invited our crew into the Health Center – it’s a hard and cold thing to cite the Supremacy Clause as a reason to take a plant away from a cancer patient who uses it to feel better.

So Steve has claimed his constitutional rights, as he sees them, which are to abide by the law of the state in which he lives despite contravening Federal law, because, he says, the Constitution gives the US Government no right to regulate the growth, transport, and use of marijuana within state lines for personal use. But just as we finished the interview, I asked Steve this question:

“Suppose you win your argument, and you convince everyone of the value of medical cannabis, and the President and Congress impose a national regime of legalization and regulation, so that there are places like Harborside all over the country: clean, safe, legal places to buy cannabis. But then suppose that one state – say, Utah– disagrees with that policy. And under its laws, cannabis remains illegal. Would you still be in favor of their rights under the 10^th amendment?”

And Steve paused, and Steve thought, and then he shook his head and said, “I’m pretty much a one-issue guy. I just want to do everything I can to get this medicine into the hands of people who need it.”

This is what I’ve learned about the Constitution, after three weeks of travel and filming and interviews: The Constitution is, to whoever looks at it, whatever it most needs to be, for them, at that time. And the endless argument over whether it says anything objectively – other than, say, the minimum age to be President – may be itself the whole  point of the document. The Constitution doesn’t settle debates, at least not most of them. It creates the arena for them.

* The joke: ”You ever look at the Constitution? I mean, really look at it?”

Gary Marbut’s whole life revolves around guns. He is a firearms instructor, user, competitor, collector and advocate; he makes his own ammunition in the basement of the house he built himself, and fabricates steel shooting range targets in his shop.  Oh, and by the way, they are not “weapons.” He calmly informed us that “in Montana culture, one does not say ‘weapons,’ because that would imply offensive purposes; here, they are called ‘firearms.’” Gary does everything calmly.

We came to Missoula, MT to talk to Gary because he might be the single most effective individual political advocate  for gun rights in the country, at least as measured by laws passed. His group, the Montana Shooting Sports Assocation, has successfully advocated, written and passed more than 50 laws in the Montana Legislature – if you’re hunting elk with a handgun in Montana, thank Gary Marbut. He is also the author of the Firearms Freedom Act, a full frontal assault on the power of the US Government to regulate firearms under the Commerce Clause. Most legal scholars dismiss it as crazy, but ten state legislatures have passed it. As I write this, everybody’s waiting for the US Supreme Court to rule on the constitutionality of the Affordable Care Act. If they overturn it as an overreach of commerce clause power, then Gary Marbut moves one giant step away from crazy and towards being a prophet.

We talked about his vision of the Constitution, but he also taught me to shoot, which he does extremely well; he brags of having taught more than 3500 people the art of armed self-defense. I went from total ignorance to working my way, somewhat credibly, through a practical shooting course, drawing my (or rather, his) Glock 9mm pistol, moving to position,  shooting at targets, moving to another position, shooting at those, trying to score both for accuracy and time. It was an exhilarating, terrifying and challenging, and I took to it instantly. Anyone about to argue about firearms policy needs to begin with this understanding: firing guns is really, really fun.

Gary says I did pretty well for a rookie, although on my last go-round through the corse, in which I was trying to break 45 seconds (he did it in 17), I winged one of the “hostages,” a white cardboard silhouette mounted in front of a corrugated brown one.*  This cost me a lot of points, but it’s my contention that it twitched at the last second.

But as we were saying farewell, I looked around at his friends going through the course (the best guy was Mike, a retired CPA, who did it in 15 seconds), and I said, “Here you and your friends are, each of you owning multiple guns with more at home. You’re here firing off all the ammo you want, and I’d say you were free to do it till the cops come, but we both know they’re not going to.”

“If they did come, they’d be training on the next range over,” he laughed.

“Right. So what’s your complaint? You have complete and total freedom to own and use firearms all you want. This is a gunner’s paradise. What’s so wrong with the Constitution that you’re trying so hard to fix it?”

“I’m not trying to fix it,” said Gary. “I’m trying to improve it.”

*Yes, I know. I honestly don’t think they mean anything by it.

Akhil Reed Amar, being smart

I was talking to Akhil Reed Amar, Sterling Professor of Law at Yale, and I was about to launch what I thought was a tough question, and I decided to soften him a bit first to make the blow land harder. “Okay,” I said, “You know every word and punctuation mark of the Constitution like you wrote it yourself…”

“Why, thank you!” he said, lighting up. “I’m delighted to hear you say that.”

And he was, too, but then again, I found out in a long and fruitful day in his company that there isn’t much that doesn’t delight him. He was delighted to meet me, and my colleagues on the documentary on the Constitution for PBS, he was delighted to have us in our office and and join us for a picnic in the Yale  Law School courtyard, he was delighted to bring us to his (remarkable) home and introduce us to his (charming) family, but mostly and most importantly he is delighted by the Constitution: its text, its history, its legacy, its poetry, its meaning, its authors, for all I know – we didn’t actually get to that – he’s delighted by the very parchment its written on.

Akhil is not one of those guys who speaks in whole paragraphs; he speaks in chapters. I’d ask a question, and he’d say, “Okay, there are three good responses to that,” and then, yes, indeed, he would list and explain those three responses, and they will indeed be excellent ones. The standing joke around the crew – although it’s not really a joke – is that Akhil will be to this documentary what Shelby Foote was to Ken Burns’ “The Civil War:” the guy who knows the history so well, is so personally involved with it, that he seems to have been there when it happened.

Akhil has a number of interesting, extremely well informed ideas about the Constitution. He refers to the ratification of the Constitution in 1788 as the great “hinge of history,” in that it was the first time that any people anywhere were allowed to vote on their own form of government for themselves, in such great numbers and across such a vast expanse of land.  The ratification, he says, as much or perhaps more than the document itself, marked the end of the long age of despotism and tyranny in human civilization, and launched humanity’s second era of democracy and self-government.

And, he says, we should consider the 13^th, 14^th, and 15^th Amendments, the Reconstruction Amendments, as a Second Framing, and we should venerate the drafters of those amendments as much as we do the Founding Fathers.  The Reconstruction Amendments both corrected the deep flaw embedded in the original Constitution – its tolerance of slavery – and for the first time, via  the 14^th Amendment, the Constitution empowered the Federal Government to actually protect and defend civil rights, rather than merely refrain from “infringing” them.

(If you want a fuller accounting of Akhil’s ideas, consult his excellent book,America’s Constitution: a Biography.)

Akhil is a great talker, naturally enough for a man who seems to know everything about everything, but there was one moment, toward the very end of a long day, when he fell silent for a moment.  Our executive producer, Steve Ives, asked him, simply, how he feels about the constitution. And he stared past my shoulder, for what seemed a long time, and then he said, “My relationship to this thing begins the day I was born. I was born in Ann Arbor, Michigan. My parents were not US Citizens, they came over to go to medical school, and they were supposed to go back. But because of this document, the day I was born – I’m a US citizen!  I’m protected by this! I have a right to stay! So my relationship to this is really intimate. This is the document that makes me an American. That’s amazing. That’s a great gift.”

I am a cynic by nature, and not inclined to idealism. That gotcha question I asked him – I won’t admit to remembering it – was probably one of my attempts to get him to admit that the Constitution, or at least the government it created, was flawed in some serious way. (Electoral college? Really?)  But in face of Akhil Reed Amar’s deeply informed idealism, such cynicism seems undemocratic.

Yesterday, in Charlottesville, VA, I had the honor of interviewing Judge J. Harvie Wilkinson of the Fourth Circuit Court of Appeals.  He’s a gentleman and a scholar — literally! — and stands out from the crowd of pontificiators and pundits for his basic intellectual honesty: he advances the same position in all cases, even if it hurts his own side.

To wit:  as he explains in this op-ed, Judge Wilkinson, a conservative, believes that both sides in our political debate are guilty of looking for political solutions over in the judiciary, where they don’t belong. And this is a genuine both-sides argument, rather than a false equivalence, in that he is unquestionably correct that liberals have often looked to the courts to validate and expand certain rights, just as conservatives have (more recently) looked to the court to validate and expand other rights.  For example, he may well be personally opposed to the Affordable Health Care Act, but as he told Jess Bravin of the Wall Street Journal, he doesn’t believe the Supreme Court is the place to decide the issue. The Constitution, he eloquently pointed out to me, is not merely — or even primarily — an assertion of rights. It is a framework for deciding political questions, and the courts should always defer to the decisions made under that framework.

This is a refreshing thing to hear, especially in a political and legal environment in which many people cite Principles that support their policy goals, and tend to drop those principles when they don’t.  But Judge Wilkinson said something that made me think … he endorsed the view, most famously voiced by Chief Justice John Roberts at his confirmation hearing, that judges should be “umpires,”  ”calling balls and strikes” rather than interposing their opinion on what should be political questions.

The sentiment is noble, and in line with Judge Wilkinson’s sincere expression of judicial integrity and restraint. But how useful a metaphor is it? Thinking about it, the comparison of judges to (baseball) umpires is illuminating, in a different way than intended.

Consider: these are the rules for defining a strike under the current MLB Baseball Rulebook.

A STRIKE is a legal pitch when so called by the umpire, which—
(a) Is struck at by the batter and is missed;
(b) Is not struck at, if any part of the ball passes through any part of the strike
zone; Rule 2.00
22
(c) Is fouled by the batter when he has less than two strikes;
(d) Is bunted foul;
(e) Touches the batter as he strikes at it;
(f) Touches the batter in flight in the strike zone; or
(g) Becomes a foul tip.
The STRIKE ZONE is that area over home plate the upper limit of which is a
horizontal line at the midpoint between the top of the shoulders and the top of the uniform
pants, and the lower level is a line at the hollow beneath the kneecap. The Strike Zone shall
be determined from the batter’s stance as the batter is prepared to swing at a pitched ball.
(For diagram of STRIKE ZONE see page 23.)

And be aware that there’s even more seemingly endless rules defining foul balls, struck batters, and legal pitches, just as precisely worded. Now, imagine that the rules of baseball had been laid down in say,  1830,  just as the rudimentary sport was first being played in America.  And let’s say that in those rules, the definition of Strike was:

A pitch that a reasonably skilled hitter could hit.

And further, let’s say that the rules of baseball would have the force of law in all games and would be very, very hard to change… say, only by getting the vote of 3/4 of all players and fans.

How would umpires apply such a vague rule? Well, they’d rely on the work of other umpires, and precedent, and circumstances as they altered over time — as pitchers got better, and batters got better, and equipment changed. They’d consider  stability to be important — the game couldn’t function if you effectively changed the rules all the time — but also understand that sometimes, change was necessary to correct prior error or to allow for new circumstances. There would probably be reams of written decisions, commentary, and commentary on commentary, helping a umpire guide exactly how he or she would define a strike in any given case; and of course in the end, the umpire would have to rely on his or her own best sense of what’s good for the game. No umpire would want to make the game impossible to play by being too strict or too lax in his or her judgements… but each umpire would have strong feelings, as a lover of the game, as to how the rule should be applied.

In other words, it would mirror the real historical state of constitutional jurisprudence. Because judges are not interpreting rules like the MLB Rulebook. They’re interpreting rules like this one:

The Congress shall have Power [....]To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

What does “regulate commerce” mean? (and how about “among?”) Law libraries are filled with walls of volumes on that very topic; it’s never been resolved to everyone’s complete satisfaction, and probably never will be.

So the response to Judge Wilkinson’s aspiration to simply be an umpire, calling balls and strikes: well, it’s pretty to think so.

By the way, Chris Buchanan, a producer on the project (and a devoted, old school, non-bandwagon Nats fan) points out that even with the specific definition of a strike in place, it’s well known in baseball that the actual strike zone depends on the umpire behind the plate… some umps call it wide, some tight, some low and some high, and  frustratingly, some keep changing from day to day.  So even umpires who just call balls and strikes don’t really just call balls and strikes.

I said, “I want to be clever, smart, edgy, just like [name of well known political commentator/comedian.]

There was a pause. And then Doug said…

“Well, sure. He’s very funny. But he’s also an asshole.”

I remember that conversation because it was the first time I confronted a lesson that I had to learn as I became the host of Wait, Wait… and am probably still working on 14 years later. I had always assumed the most important thing when talking on the  radio was, well, what you said. Were you funny? Were you interesting, new, provocative, different from what you or anyone else had done before? That had been my goal during my prior career as a playwright, and I assumed it would carry over into radio.

What Doug was pointing out then — and what became the most valuable and important lesson he ever taught me — was that all of that is far, far less important than simply being somebody an audience wanted to spend time with. Radio, as I learned, has an intimate, long term relationship with its audience. People don’t flick around the dial, like they do with cable TV. They tune in to something — more importantly, someone — they like, and they stay with them, because after a while it feels like a friendship. We in radio are in your homes, in your cars, in your kitchen, sometimes in your bathroom. Why would you invite someone into those places if you didn’t like them? And why would you listen to someone — no matter how funny, provocative, or clever somebody was — if he or she was a jerk?

I will confess, back then, I didn’t care much for Car Talk. I considered myself way too smart and sophisticated for Tom and Ray and their braying laughter and their silly jokes. But as I struggled with Wait Wait to become even a fraction as successful as they were, I learned to appreciate, and then admire, and then finally envy their ease, the way they were able to project the best part of their characters through the radio, every week, to an audience that loved them for doing just that.

It’s not as easy as it sounds.

Tom and Ray are exactly who they sound like on the radio, although of course, there’s more to them than their radio personas — Tom, in particular, has Very Strong Opinions, and a profane way of putting them — but getting to know them over the years made me realize that in radio, maybe in life, it’s much more important to be kind than it is to be clever. And that instead of being different every week, it’s more of a challenge, and more of a reward to your listeners, to find a way to be yourself.

Tom and Ray have announced their retirement, but  Car Talk will continue with “new” episodes culled from 25 years of archives. And although the material will be familiar, that won’t be a problem for their fans — of whom I am now one, of course — because being familiar was always the point.