Thursday, February 13, 2014

Stemming the Flow of Guns

Kudos to Nancy de Pastino and Missoula Mayor John Engen, who have a fine column  about gun violence in yesterday's Missoulian. If you haven’t read it, you should. As they have before, they make the case for enhanced background checks for gun buyers, and if history is any guide, they will once again pop open a raging debate about whether or not such checks work.

In that debate, gun rights advocates argue that no background check can ever prevent the explosions of murderous violence that occurred at Sandy Hook Elementary or Virginia Tech or Columbine High. The deranged men who commit such murders will always be able to get their hands on weapons if they are just determined enough. After all, at Sandy Hook, Adam Lanza took the rifle and pistols he used to kill twenty children from his mother’s perfectly legal gun collection. How can you stop that? How will background checks help? 

The problem here is that as horrifying and unpredictable and seemingly inevitable as these mass shootings are, they are just the tip of the iceberg. Every day, all across this country, on average seven kids are killed by gunfire; every three days, the death toll from Sandy Hook is repeated. Every day, all across this country, guns are used in robberies, car-jackings, drive-by shootings and other crimes.

Now some of the guns used to commit these crimes were no doubt legally purchased by the shooters. Some of them no doubt were stolen, or taken from a family gun locker. But the fact remains that a very large number of the guns used in the commission of crimes and seized by the police were once legally purchased and subsequently sold to somebody who couldn’t pass a background check. Every day, all across this country, at gun shows or through private sales or deals made on the street, guns leave the hands of responsible gun owners and fall into the hands of criminals and shooters.

And Montanans are complicit in this process. Back in 2009, the Washington Post published an investigation of the flow of guns from legal purchasers to criminals. Not surprisingly, a lot of this flow crosses state lines. Guns are exported from states where legal purchase is pretty easy to the streets of cities where purchase is difficult; from Virginia, for example, to Washington D.C, or New York City.

Or from Montana to Los Angeles.

Yes. Montana is a big net exporter of guns that were purchased legally here and ended up being used in a crime somewhere else. On a per capita basis, Montana is the twelfth biggest exporter in the nation.

We talk a lot about the Second Amendment in Montana. About gun rights. About guns and the Montana way of life. About standing your ground. About how we believe in responsible gun ownership. Gun rights advocates are a powerful political force, who folks like de Pastino and the mayor take on at their peril. We will no doubt be debating these issues and values for years to come. But it is a flat out mystery to me how any state can pride itself on its commitment to a sane gun culture and yet tolerate a hemorrhage of legal guns into criminal hands, for the want of a simple background check. 

Rights and Wrongs

If there’s one thing that opponents of the Flathead water compact seem resolutely convinced of it’s that the compact takes private water rights away from individuals without compensation. And if there’s one thing that gets those same opponents really riled up, it’s telling them that this "takings" business is, in a word, bogus.

After all, for more than a few enemies of the compact, including some of my legislative colleagues, taking water rights is the tip of the iceberg.  Just below the surface they have discovered there’s a grand conspiracy afoot, in which the Tribes or the Federal government or the United Nations or Agenda 21 or the New World Order (occasionally aided and abetted by Space Aliens) plan to take over all the water and all the land in Western Montana, and send the people of the Flathead Valley off to live in cities somewhere. So these takings are a big deal, and to deny they exist is to be complicit in the great take-over scheme.

I became aware of all this recently when I wrote, in a letter to the Missoulian, that the compact doesn’t take anyone’s water rights, and if opponents wanted to make a claim to the contrary, they should cite the specific provisions of the compact that supposedly allow that to happen.* So far, there have been three letters to the Missoulian trying to do just that, all of which miss the mark by a wide margin.

For example, in his contribution to this debate, Bobby Carrol, who lives in St. Regis, cited the language in the compact in which the state and the Tribes waive their sovereign immunity from suit. These waivers are intended to protect the right of individuals to appeal water management decisions in court, but Carrol manages to construe it as “the state of Montana, counties, cities and citizens…giving up their rights not to be sued by ‘anyone,’ including the United Nations.”  Even if that were true, which it isn’t, how Carrol can equate waiving immunity with taking water rights is incomprehensible.

Perennial compact gadfly Christopher Chavasse didn’t even try to find a provision in the compact that might support his position. Instead he provided a lengthy quote from conservative columnist Thomas Sowell, to the effect that liberals generally make their arguments without reference to the facts. To this canard from Sowell Chavasse adds the oddly phrased comment, “Instantly me thinks of the Reserved Water Rights Compact of the Confederated Salish and Kootenai Tribes. What say you to that, Dick Barrett? Flack away.” Forget about the silly implied syllogism (Sowell says liberals ignore the facts, Barrett is a liberal, therefore Barrett ignores the facts): If Chavasse can’t produce any evidence – any evidence at all – that the compact takes water rights, then can't we safely conclude it doesn’t?

Finally, Boyd Frame quotes language from the Water Use Agreement in which the Flathead Joint Board of Control and the United States waive their claims on the water right for the Flathead Indian Irrigation Project.

What gave rise to the provision Frame cites was the fact that the Board, the US, and the Tribes had all asserted colorable claims to the same project water right.  Because these conflicting claims had not been adjudicated, none of the parties possessed that right, and ultimately their conflicting claims could only be resolved in the Water Court, either through litigation or a negotiated settlement. In this case, the parties reached a settlement in which the Board gave up its claim in exchange for a substantial financial commitment by the state to make more water available for irrigation, and for the Tribes’ commitment to significant limitations on the exercise of their senior in-stream flow rights. The Board had a claim on the project water right, but didn’t have the right itself, and it voluntarily relinquished that claim; it was not taken. The fact that some of the irrigators the Board represents didn’t like the deal does not change that fact.  Ultimately disputes among irrigators led to the dissolution of the Board, and now it remains to be seen how the conflicting claims on the project water will be resolved, and how irrigators will be protected.

So, so much for what the compact doesn't do. What it does do is clarify and quantify the various water rights of the Tribes. In most cases, the Tribes’ rights are senior to those of other water users and that fact – that somebody has rights senior to their own – has a lot of people worried, and thinking their rights have been taken. It’s not true: the rights are still in place, but their holders have always been subject to the condition that other users with rights senior to theirs can “make call” on them; if there isn’t enough water to go around seniors get all the water to which they are entitled before the juniors get a drop. This is a simple fact of life and matter of law for junior water users throughout Montana, on the reservations and off, and the compact has nothing to do with it.

On the contrary: in the compact the Tribes have agreed not to make call on almost all of their existing junior neighbors; in the remaining cases, they have agreed to significant limitations on their ability to make call. In fact, protecting existing, state based water uses has always been the primary objective of the Commission. Opponents of the compact should try to get their heads around that fact.

* My letter was a response to an earlier one from Michael Gale, in which he accused the Reserved Water Rights Compact Commission, on which I sit, not only of ripping off people’s property, but also of graft, deceit and manipulation (Gale is nothing if not thorough in his calumnies). You can read Gale’s letter
here, and my response here