What's Behind this "Gun Thing," this "Stormy Thing," and Many other "Things" (please read)

(The views expressed are the writer's ONLY).

In The Godfather, I remember clearly Michael Corleone's wife, "Kay," getting slapped after she said, "Not with this Sicilian thing"... In doing so, she was describing the big understanding behind the futility (and dishonesty) of Michael Corleone's saying he would change, which in effect, was pointing out deeper issues driving his conduct, which would entail his having to step away from what was embedded deep in his cultural mindset, and associations, which everyone there (Kay and Michael) knew, was a non-starter.

As a teacher I'm expected to include the "big understanding" in my lesson. Behind every craving for specificity, there is a bigger idea. Proponents of gun rights, in absolute, want access to guns of all types to defend themselves. But there is a bigger idea driving their position, and that is, the expectation that one day there will be an Armageddon in this country, or that government will attempt to take complete control over the person. If I believed this, I would not want to be limited to what kind of weapon I could purchase either. Bazookas, AKs, ARs, even tanks, would all be in the running.

This, of course, seems absurd to those who are just beginning, the young, who are expressing confidence in our system, including laws, and the legislative process, to change things. So to understand what’s happening with guns, we have to understand what’s behind the movement, both movements: the power of ideas. Big ideas are everywhere. And thank goodness for this. Because as individuals, and as a society, there would be no substance to us, were this not the case.

Our laws are driven by ideas, and by ideals:

Contracts are negotiated with each party referring to the same thing, hopefully. Formation issues, which involve preliminary negotiations, including “manifestations of intent” (an ideal state of mind) to enter into a present agreement, are those most tested on contracts law exams. According to the distinguished Law Professor Daniel William Fessler, “content,” “intent,” “communication,” goes into this manifestation, which includes the setting or situation, or context, that the contracting parties bargain from or within. On the surface, things may appear a certain way, but beneath, much more could be going on, even from an objective standpoint, once everything (the deeper issues) comes to light.

For example, even after a contract is entered into, other, arguably, somewhat idealistic barriers could bar enforcement of the same: mistake (i.e. one not involving the risks the parties were bargaining about); unconscionability, where one party had “limited choices,” having entered into the contract from a “poor bargaining position”; Also, impossibility (like the “music hall case,”where a music hall burns down and the prospective renter is no longer required to do so); impracticability, meaning, “very difficult or very expensive, beyond the control of the party who promised to perform”; and frustration of purpose (like the “king’s coronation case,”where a hotel room(s) booked in anticipation of the event was no longer legally required once it was discovered that the coronation would not take place, given the king’s illness) (Feinman, 2018). 

A case continuously made light of in law school is Sherwood v. Walker (the “barren cow case”). Listen to the descriptive, very idealistic way it was told here:

“The story begins in May of 1886 when Sherwood approached Walker about buying some of his stock of Angus cattle. Walker told Sherwood that the cows were probably barren and could not breed. Sherwood picked out a cow with the fancy name of 'Rose 2d of Aberlone. The parties agreed on the price and Walker confirmed the sale in writing. When Sherwood later returned to Walker's farm to take delivery of the cow, Walker refused. By then he was suspecting that she was expecting, and could be worth as much as $1,000. Sherwood brought a replevin action before a Justice of the Peace to obtain possession of Rose, and he won. Walker appealed to Wayne County Circuit Court, where Sherwood won again. Meanwhile, Rose delivered a calf in October, thereby confirming Walker's suspicion. Determined not to lose his cow, Walker appealed again, this time to the Michigan Supreme Court. The high court overruled the lower courts. The bronze letters on the Legal Milestone plaque summarize the decision this way: ‘Because a mutual mistake affecting the substance of the transaction had been made, Hiram Walker had a right to rescind the contract, and keep the cow. …, neither the parties, the cow, nor the beliefs of the parties were as they appeared’” (Gubbins, n.d.). Feinman (2018) describes it as follows: “When the assumption outside the risks of the contract turned out to be incorrect, the seller could get out of the contract” (p. 195).  

With respect to legal defenses to crime, mistaken beliefs may not have to be reasonable in all cases, but they do have to be “honest” (another idealistic and somewhat subjective term). States of mind drive our criminal code, like “voluntariness,” “conscious object,” “practically certain,” "consciously disregarding a substantial and unjustified risk,” and “should have known” (Feinman, 2018).  And such is the case regarding searches and seizures, where expectation of privacy, balanced against contingencies that police face in real time, is the guiding principle.

There is variation among the fifty states (our Democratic Republic: another ideal) as to what constitutes justification for the use of deadly force: most agree on the “imminent” requirement for being attacked in kind, but in some cases, the belief required is subjective, in others (most), “reasonable.” And there is flexibility: A mistaken, unreasonable belief, although not a complete defense in most cases, can still result in a lesser crime (“negligence,” or “recklessness”) (Feinman, 2018).

Constitutional law, especially, is replete with ideas, and ideals: Yick Wo (administration of local ordinances), the Slaughterhouse Decisions (monopolies), Lochner (contracts), Brown (education), a decision against an 1880 state ban on black jurors, "one-man, one vote," Griswold (contraception), Roe (abortion), Lawrence (homosexuality), Loving (interracial marriage), all amounted to what could be interpreted as, at the very least, a willingness to address concerns against what some argued were substantive, unfair practices (Harper, 2007).

So we should not be perplexed at seeing Stormy Daniels objecting to her contract, and informed young adults protesting apathy about current gun laws, showing up in the same news segment. Arguably, they are fighting for the same thing, ideas and ideals: justice and truth. Ideas and ideals are what drive our society, even if they seem to clash or contradict. As insiders and those who have experienced “reality” (either being shot at or being threatened) they want to bring to light more than what is being currently considered, by most. We are not at war with ourselves; not to the extent that we need weapons of war to protect ourselves against a “hostile government,” anyway. And Stormy Daniels is bringing to light what she felt, and what most would have felt, arguably, given the threats, when entering into the agreement with Cohen, perhaps, that her life depended on doing the same. All entails context, making informed choices, balancing, awareness, and, let's not forget, empathy.

Some may object to my comparison. How can the murder of children possibly be compared to what’s happening with a “porn star”? But we’ve heard accounts of what amounts to the president’s assaults against women. We’ve heard accounts of what amounts to the president’s admiration for “strong men,” including those who wipe out their competition.  Do we not want to be a nation of laws then, and by association, a nation of ideals? The answer to this question, like the answer to the question regarding whether we want politicians taking money from the NRA, arguably, resulting in their betraying what they know is right, could be a matter of life and death. God bless the U.S.A.

Feinman, J. M. (2018). Law 101. New York, NY: Oxford University Press.

Gubbins, R. M. (n.d.). Retrieved March 26, 2018, from https://www.legalnews.com/ingham/771228.

Harper, T. (2007). The U.S. Constitution, New York, NY: Penguin Group.