Judge Ho’s Reality Distortion

CNN has a report on a Trump/Federalist Society-nominated-and-confirmed Judge James Ho, and why he believes mass shootings occur:

One of President Donald Trump’s appointees to the federal bench issued a controversial opinion this week with a startling opening line that amounted to a ringing endorsement of law enforcement and a dire warning to its critics.

“If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them,” James Ho of the New Orleans-based 5th US Circuit Court of Appeals said in an opinion released Monday.

Ho, a former solicitor general of Texas, served in the Justice Department as Assistant Attorney General for Civil Rights and then as an attorney-advisor to the Office of Legal Counsel. He is a former clerk to Justice Clarence Thomas and was nominated in 2017 and confirmed 53-43 to the conservative-leaning appeals court.

Judge Ho has an impressive academic record, but his dissent, starting on Page 4 of the opinion, fails to bring a full and convincing argument to bear to support his contention.

First of all, it’s confined to the incident at hand. This may be a requirement of writing a legal opinion, but it opens with that very general statement, which is blaming courts for enforcing laws constraining police behavior when using their weapons, and then tries to connect the incident at hand to that statement.

It just doesn’t succeed as a work of general analysis. Why? Because it’s so easy to raise questions undermining his thesis. What are a few?

• Since the loosening of gun laws, have police officers displayed arrant cowardice when it comes to responding to emergency calls associated with gun violence? In Judge Ho’s defense, I can recall the behavior of the police officers at the Stoneman Douglas High School shooting, where they hesitated to enter the school. However, that’s the only one I can recall. Worse for Judge Ho, the negative case – of prompt & brave response, possibly preventing a mass shooting – is difficult to successfully measure. This casts grave doubt on any attempts to numerically analyze this question.
• Are mass shootings even susceptible to police interference? This is more of a mixed bag, as some mass shootings take place at remote locations, such as farming locations, or that take place so quickly that the police, despite quick response, cannot stop the shootings. Shootings such as the recent Las Vegas incident, in which the shooter barricaded himself in a high-rise hotel, and the University of Texas tower shooting (1966), in which the shooter was located on a tower’s observation deck and thus isolated for more than an hour and a half, fall into another category that might be characterized as Rational planning is not alien to an irrational or murderous person. But the fact of the matter is that giving someone with a murderous temperament a high powered automatic weapon greatly raises the odds of a mass shooting being successful, no matter how well the police respond.
• Does Judge Ho’s assertion work on a historical basis? If we’re going to examine his hypothesis scientifically, we need to collect data. Generating data is clearly unethical, but collecting data – examining the historical record – is ethical and necessary. Does the historical data support his hypothesis, or are there hypotheses which better fit the data? Judge Ho neglects this important facet in attempting to support his assertion.

Unfortunately, given current Second Amendment interpretation, Judge Ho is slightly constrained in finding an interpretation for the mass shootings we’ve been experiencing, but he could have railed against the faulty interpretation in his analysis, and perhaps found a more reasonable explanation for mass shootings. But add in his ideological leanings, he’s desperately hemmed in by a set of quickly constricting walls. Here’s NPR on his ideology:

More recently, in a case involving the ban on interstate handgun sales, Ho complained, “the Second Amendment continues to be rated as a ‘second class’ right,” borrowing language from his mentor, Clarence Thomas, and new Supreme Court Justice Neil Gorsuch.

“Law-abiding Americans should not be conflated with dangerous criminals,” Ho added. “Constitutional rights must not give way to hoplophobia.”

The Urban Dictionary defines that term as an “irrational, morbid fear of guns.”

And so we find the distortion point: when an ideology (that is, a description of a wished-for reality) clashes with reality, and still takes precedence over reality, then the explanations begin to take on surrealistic qualities. I don’t care if a Federal Court judge is asserting them; they remain surrealistic, even clownish. Think of all the Sandy Hook massacre deniers.

When Judge Ho approvingly quotes his colleague, Judge Clement,

“No member of this court has stared down a fleeing felon on the interstate or confronted a mentally disturbed teenager who is brandishing a loaded gun near his school. . . . [We have] no basis for sneering at cops on the beat from the safety of our chambers.”

he has, perhaps unknowingly, begun walking down the path that he has consciously repudiated: gun control.

From the Willamette Week.
Secondary: Nearly one in four Portland police shootings involves a replica gun. But the city has no restrictions on such weapons.

Here’s the problem implicit in this case: the officers are being placed in an impossible situation. The wide availability of anything less than a machine gun to members of the public, who merely have to slap down anywhere from a few bucks to a couple of thousand bucks to acquire weaponry, and the persistent and acrid encouragement of more and more self-armament by groups such as the National Rifle Association (NRA), moves police officers from the realm of law enforcement, in which they are allies of the public in the pursuit of domestic tranquility, to quasi-military personnel. It’s not the armament that really concerns me, though, but the fact that now the public has become a potential enemy for the police to be concerned with, as the officers in many shootings have demonstrated. rather than the people they are sworn to protect. Add in the fact that toy makers have been manufacturing toys that resemble the real thing to a high degree, and the problem is only compounded for our police officers.

The dubious reasoning behind the recent Second Amendment decisions seems to ignore questions of basic neurobiology, such as when, if ever, does a brain achieve rationality, and is rationality a default mode for the brain? This should be taken into account as the implicit basis for these decisions is that, after the ascendancy of individualism over the common good and fear of the government, that people are naturally rational.

To wrap this up, I’d like to return to a quote from Judge Ho, which I will repeat:

“Law-abiding Americans should not be conflated with dangerous criminals,” Ho added. “Constitutional rights must not give way to hoplophobia.”

I must ask, then, upon what basis is the ban on individuals owning machine guns or anthrax rationalized? Without a doubt, most owners of these weapons – for that’s how anthrax is perceived – would be perfectly law-abiding.

And, yet, they are forbidden.

The answer lies in the ratio of destructiveness to individual. In the Revolutionary War days, a musket, while devastating compared to its predecessors, wasn’t much compared to today. Add in irrationality, and the argument behind Ho’s quote is completely invalidated, a smoking crater from which little can be salvaged.