Just last year, Justice Elana Kagan wrote for a unanimous Supreme Court in Smith & Wesson Brands v. Estados Unidos Mexicanos that “the AR–15 is the most popular rifle in the country,” adding that such rifles are “both widely legal and bought by many ordinary consumers.”  And while at the same time the Court denied cert in Snope v. Brown, Justice Brett Kavanaugh issued a statement that the Fourth Circuit “erred by holding that Maryland’s ban on AR–15s complies with the Second Amendment” and predicted that “this Court should and presumably will address the AR–15 issue soon, in the next Term or two.”

The Virginia General Assembly apparently doesn’t want to be outdone by California and the few other outlier states testing the Supreme Court to see if it really means it, as it stated in Heller, that the Second Amendment protects (at a minimum) “arms ‘in common use at the time’ for lawful purposes like self-defense.” Virginia enacted HB 217/SB 749, effective July 1, making the transfer or purchase of an “assault firearm” (defined to include popular semiauto firearms) and magazines holding over 15 rounds a Class 1 misdemeanor, punishable by incarceration for one year.  A second offense makes it unlawful to possess any firearm for three years.

In signing the bill on May 14, Governor Abigail Spanberger stated: “While the General Assembly chose not to adopt my amendment that specifically carves out certain firearms frequently used for hunting, I will work with the patrons to clarify this language.”  The governor is correct to concede a point that will be used in litigation challenging the new law, as the Virginia Constitution protects the right to hunt.  I explain the origins of that recognition in “The Constitutional Right to Hunt: New Recognition of an Old Liberty in Virginia,” published in William & Mary Bill of Rights Journal (2010).

But the governor ignores that the banned firearms are also “frequently used” for training, target practice, and self-defense.  Besides being protected by the federal Second Amendment, the banned firearms are guaranteed under the Virginia Constitution, Art. I, § 13, which provides in part: “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed….”

The Virginia Declaration of Rights of 1776 included the above language without the final “keep and bear arms” clause, although Virginia demanded language similar to what became the Second Amendment when it ratified the U.S. Constitution in 1788.  As I show in “St. George Tucker’s Second Amendment,” Tenn. J. of L. & Pol’y (2007), the arms right was considered fundamental by Tucker, who was Virginia’s finest jurist at the Founding.

In 1964, the Virginia Senate, the House concurring, declared that the Second Amendment right is “an inalienable part of our citizens’ heritage in this State,” adding “that any action taken by the General Assembly of Virginia to interfere with this right would strike at the basic liberty of our citizens; that no agency of this State or of any political subdivision should be given any power or seek any power which would prohibit the purchase or possession of firearms by any citizen of standing for the purpose of personal defense, sport, recreation or other noncriminal activities….”  In 1970, that statement was relied upon by proponents in the legislature for amending the Virginia Constitution to add the “keep and bear arms” clause, which was overwhelmingly approved by the voters in 1971.  I trace this history in “The Right to Bear Arms in the Virginia Constitution and the Second Amendment,” Liberty U. L. Rev. (2014).  See also [now Justice, Va. Supreme Court] Stephen R. McCullough, “Article I Section 13 of the Virginia Constitution: Of Militias and an Individual Right to Bear Arms,” U. Richmond L. Rev. (2013).

As an aside, unlike the redistricting amendment that the Virginia Supreme Court found to be illegal on May 8 in Scott v. McDougle, the 1971 amendment had been voted for in two separate legislative sessions, with an intervening election in between.  And fully two-thirds of Virginia’s voters approved it.

In DiGiacinto v. Rector & Visitors of George Mason University (2011), the Virginia Supreme Court held that “the protection of the right to bear arms expressed in Article I, § 13 of the Constitution of Virginia is co-extensive with the rights provided by the Second Amendment of the United States Constitution” concerning the “sensitive place” issues in that case.  Pertinent to the gun-ban issue here, the Court repeated Heller‘s dictum: “Individual self-defense is ‘the central component of the right itself.'”

In 2020, bills that would have made it a five-year felony to possess an “assault firearm” failed to pass the General Assembly.  The proposals sparked a prairie fire by almost all Virginia counties, which passed resolutions reaffirming Second Amendment rights and refusing to enforce the unconstitutional proposals.  The Virginia Attorney General opined that these resolutions were meaningless, disregarding that priorities in law enforcement are left to local sheriffs and police and that prosecution is in the discretion of the Commonwealth Attorneys.  I addressed that issue in “Virginia’s Second Amendment Sanctuaries: Do They Have Legal Effect?” Regent U. L. Rev. (2020-2021).

And now it’s déjà vu all over again.  Scores of Virginia jurisdictions, covering most of the state’s land mass, have again passed Second Amendment Sanctuary resolutions.  It’s the population center of Northern Virginia that dominates the legislature and has the power to rule the rest of the Commonwealth.  But don’t hold your breath waiting for local sheriffs or prosecutors to ferret out who may have committed the crime of transferring a semiauto rifle with an adjustable shoulder stock.  To exemplify the situation, Rob Cerullo, Commonwealth Attorney for Powhatan County, issued a directive stating that “my office will decline prosecution of criminal cases arising from violations of these sweeping bans until a court of competent jurisdiction rules on their legality.”

Three lawsuits have already been filed seeking to have the gun ban declared unconstitutional and enjoined.  McDonald v. Katz, filed in the U.S. district court for the Eastern District of Virginia, bases its challenge only on the Second Amendment.  The other two rely on both the Second Amendment and Virginia’s Art. I , § 13 – Black v. Hook, filed in Fauquier County circuit court, and Crump v. Katz, filed in Lancaster County circuit court.

Look for another challenge to be filed by the United States.  On April 10, Assistant Attorney General Harmeet Dhillon wrote Governor Spanberger about the pending bills: “This letter provides formal notice that the Civil Rights Division will commence litigation in the event the Commonwealth of Virginia enacts certain bills that unconstitutionally limit law-abiding Americans’ individual right to bear arms.”

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Last week, I participated in a Cato Institute an online event on “Trump v. Barbara: Birthright Citizenship at the Supreme Court.” The other participants were prominent immigration law scholar Prof. Gabriel Chin (UC Irvine) and leading legal historian Paul Finkelman (Univ. of Toledo). Dan Greenberg of the Cato Institute moderated. I have embedded the video of the event below:

 

Part of my presentation for the online event was based on my recent article in Lawfare, where I explained why all the Trump Administration’s rationales for denying birthright citizenship to children of undocumented immigrants would, if applied consistently, also have had the effect of denying it to large numbers of freed slaves and their children and other Black Americans, thereby undermining the central objective of the Citizenship Clause of the Fourteenth Amendment. This issue was raised by Justice Amy Coney Barrett in the Supreme Court oral argument last month.

I also touched on my Volokh Conspiracy blog post where I explained why, although I believe birthright citizenship is superior to currently available alternatives, it is actually a “second-best” policy, not the optimal way to handle issues of migration and citizenship.

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5/24/1870: Justice Benjamin Cardozo’s birthday.

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When Barret Hansen, better known as Dr. Demento, recently ended his weekly show, he had spent 55 years spinning weird, silly, or otherwise strange songs on the radio or online. No mere fringe figure, he was an influential figure in American comedy and one of the most important cultural libertarians of his era.

That might seem far-fetched to people who grew up in a post-SNL, post-Seinfeld world. But in the early 1970s, all that lay in the future. Television shows still had to pass strict censorial review to be aired, and the same code policed much of what could be heard on mainstream radio. Hansen’s program pushed against those strictures.

Listeners never knew what Hansen might play. One moment might bring a sweet, old novelty song like the Playmates’ “Beep Beep” about a “little Nash Rambler” that turned out to be more powerful than the Cadillac it was racing. The next moment you might hear a risqué song about sex, like Ruth Wallis’ “Davy’s Dinghy” (it’s not about his boat) or the Lemon Sisters’ lascivious “In My Country” (“The swamp is thick, but don’t be a wussie/Come steer your canoe right through my pussy…willows”). There was drug humor, from the relatively tame “Friendly Neighborhood Narco Agent” to a mid-’90s parody of “The Devil Went Down to Georgia” called “The Devil Went Down to Jamaica” (“Johnny roll a ball of hash, and make sure it’s the bomb/’Cause the devil’s got the kind of stuff they smoked in Vietnam”). “Cows With Guns,” about bovines revolting against slaughter under the leadership of Cow Tse-tung, would compete with classic comic songs from Spike Jones and Tom Lehrer.

And sometimes the show could just get plain weird. Consider the program’s two biggest hits, Barnes & Barnes’ “Fish Heads” and Ogden Edsl’s “Dead Puppies.” The former informs us that fish heads “are never seen drinking cappuccino in Italian restaurants with Oriental women”; the latter laments, “Dead puppies aren’t much fun/They don’t come when you call/They don’t chase squirrels at all.” Other tunes in rotation found dark humor in everything from a school shooting (Julie Brown’s “The Homecoming Queen’s Got a Gun“) to a pedophile (Ogden Edsl’s “Kinko the Clown“). There were the college philosophy meanderings of Tom “T-Bone” Stankus’ “Existential Blues,” crude advice like Frank Zappa’s “Don’t Eat the Yellow Snow,” and a song whose lyrics are mostly just the names of different Los Angeles streets, Felix Figueroa’s “Pico and Sepulveda.”

The program was periodically punctuated with cowbells and sound effects. The host was joined by funny friends with alliterative names, such as Captain Chaos and Laughing Linda. And each show ended with the “Funny Five,” the most requested songs of the week—a tradition that put the listeners at the center of the experience: On this show, you could help shape the dementia.

How Barret Hansen Became Dr. Demento

Hansen grew up in Minneapolis, where he was a loner who listened to records and played them at his high school dances. He went on to get two degrees in music: a Bachelor of Arts from Reed College and a Master of Arts from UCLA. After graduating, he wrote liner notes for record companies, collected records by the bushel, and DJed at KPPC, a free-form FM radio station.

That’s where he became Dr. Demento. One day he played Nervous Norvus’ 1956 novelty hit “Transfusion,” a song about a reckless driver who constantly crashes his car only to be revived by blood transfusions. Someone at the station said he had to be demented to play that record, and his persona was born.

The Dr. Demento Show started in 1971 as a rock show with some novelty hits thrown in, but Hansen quickly discovered that almost all the audience requests were for the funny stuff. By late 1971 he had hopped to KMET, where his four-hour showcase for what he called “loony laughing records” was the No. 1 Sunday night show in the Los Angeles market. He went into national syndication in early 1974 with a taped two-hour version of the show; it rapidly became a success. He was profiled in Newsweek and went on national TV. Some of the songs he played, such as “Junk Food Junkie” and “Shaving Cream,” crossed over and became Top 40 hits. “I was very happy when something that I kind of started hit the charts,” he said.

He had a short break from national syndication in 1977–1978, when his syndicator went bankrupt, but he kept broadcasting until his retirement—the third-longest run in American radio history for a single-hosted musical show. Listeners started sending him their own creations, giving Hansen a new role: Just as Johnny Carson or Lorne Michaels could make a comedian’s career by giving new talent a showcase, Dr. Demento became America’s arbiter of musical comedy.

He wasn’t wedded to any particular type of humor or any single musical genre. If someone sent him a decent record or tape, he’d play it. Let the audience decide was his mantra.

Dr. Demento and Weird Al Yankovic

In that way, he gave a boost to such musical comics as Brad Stanfield, Damaskas, a UCLA co-ed known as Sulu, and the most famous and enduring of his discoveries: Alfred Yankovic, a shy young teenager who gave Hansen his first tape in 1973.

“Weird Al” Yankovic went on to become the most successful musical comedian in U.S. history. He has won five Grammys and an Emmy. His singles have charted for more than 30 years. And Hansen gave him more than his first showcase: The Dr. Demento Show exposed Yankovic to such legendary comic musicians as Stan Freberg, Jones, Lehrer, and Allan Sherman. It was Hansen’s program that inspired Yankovic to become a musical comedian. There would be no Weird Al if there were no Dr. Demento.

When I compare their relationship to that of Col. Parker and Elvis, Hansen quickly notes an essential difference: “I never managed Weird Al.” But in some ways he was even more important than a manager would have been.

Hansen says he”considered myself perhaps a bit of a father figure” to Yankovic, something their roughly 20-year age difference made natural. The lyrics to Yankovic’s break-out song (“Another One Rides the Bus,” a parody of Queen’s “Another One Bites the Dust”) were written in a cabin where Yankovic was spending the weekend with Hansen and some of Hansen’s friends. Hansen helped get Yankovic his first job after college, and he went on a joint tour with Weird Al when Dr. Demento was much the bigger name.

Yankovic has never resented or rejected this influence, and the two are still friends. Hansen remains friends with other protégés too, such as Sulu and Mike “Musical Mike” Kiefer. The DJ’s fans, who range from the alternative rockers Courtney Love and Dave Grohl to the Fox News personalities Greg Gutfeld and Kennedy, still revere him too: A 1990s chat group about the show has evolved into the burgeoning Demented Music Database. The extremely active Dr. Demento Facebook group has more than 146,000 members, and if you search YouTube for one of the novelty songs that Hansen once featured, you’ll almost always find someone in the comments recalling how they first heard it from good old Dr. Demento. Such displays of devotion are rare for a disc jockey years after his peak popularity.

But Hansen wasn’t just a disc jockey. Listening to Dr. Demento was like entering a secret club, one that valued intelligence, nonconformity, and humor. One of my friends calls his discovery of the show in 1974 a “lifeline, a realization that there were other people like me.” Former President Richard Nixon once said that as a boy, he would listen to the train whistle and dream of the “faraway places where he’d like to go.” Each Sunday, Hansen’s train would take us into a demented land and return us home safe and sound.

The Libertarianism of Dr. Demento

Hansen owned more than 200,000 records, one of the largest private collections in the world, and he was always happy to share his interests with his audience. That made him a teacher (some killjoys might say corrupter) of the young. What did he teach in his weekly forays into our homes?

Hansen never had a political agenda per se. He tended to shy away from overtly political humor, and he told Steve Martin in a 1977 interview that he didn’t especially like political jokes. In one of his final episodes, he decried the bitterness of contemporary politics. He told his listeners that anger had made many of the political songs he received less funny and that he played fewer of them as a result.

Nor did he seek to remake comedy. Lots of entertainers were doing that in the 1970s, and his show featured many of them: Mel Brooks, National Lampoon, Monty Python, Steve Martin. Yet, “I didn’t think of myself as being in the same boat” as those people, he says. He just “thought of myself as playing things on the radio that you would never otherwise hear on the radio.”

But that doesn’t mean he wasn’t part of that zeitgeist. Hansen believes in tolerance and freedom, and he brought that view to his show. Anyone could be featured, regardless of race, gender, or age. Anything could be lampooned as long as the treatment wasn’t cruel.

“Occasionally [it] would cross my mind,” he says, that he was a gatekeeper, that if he could open a door, other people could walk through it. “I don’t like barriers,” he adds, and the show certainly proved that. Rusty Warren, Benny Bell, and other longtime musicians whose risqué records had never been played on commercial radio suddenly found fame. Lehrer praised the Doc for helping to “keep him alive” by playing the morbidly satiric songs he’d recorded in the 1950s and ’60s, prompting record companies to reissue his discs. And then there’s Harry “The Hipster” Gibson and his 1943 number “Who Put the Benzedrine in Mrs. Murphy’s Ovaltine?” When Hansen interviewed Gibson in 1976, the singer told the DJ that the record had been banned from airplay for years for being “subversive”—until he got a call that “some cat named Demento” had been playing the forbidden song.

“You probably didn’t know it was labeled subversive,” Gibson told Hansen. His host chuckled softly and said, “Well…”

Hansen darn well knew it was subversive. That was why he played it.

In the early 1990s, Hansen aired some songs making fun of political correctness and commented that colleges falling prey to P.C. were defeating their mission of teaching people how to think for themselves. He believes that barriers are bad whether they come from the right or the left, an attitude that may help explain why he joined the Libertarian Party in the 1980s and spoke at this magazine’s 20th anniversary celebration. His show wasn’t overtly political, but it exuded a kind of cultural libertarianism: Have a good time, be who you are, and don’t worry. It was a message of genial toleration that reached into homes nationwide for two hours every Sunday night for almost 40 years.

What Is Dr. Demento Doing Now?

Just as radio killed vaudeville and television killed radio drama, the internet is killing old-fashioned, music-based radio stations. Those that remain tend to feature prepackaged formats that suppress the spontaneity and originality that the best disc jockeys brought to their programs. The easy accessibility of songs on YouTube and Spotify also means that unusual comedy acts no longer need airtime to get attention.

But Hansen’s still around, even if he isn’t hosting a weekly show anymore. He’s still assembling collections of funny music and recently released his own single, Get Demented.  He also showed up recently on the hit CBS sitcom Georgie and Mandy’s First Marriage. The show is set in the 1990s, when Demento’s radio show was still nationally syndicated; Hansen has had two cameos in the past season, evaluating and then playing a fictional song sent to him by one of the characters.

And people are still making the material he loved to transmit over the FM airwaves. Comic musicians (the artists in the Funny Music Project, the Wolves of Glendale, Kira Coviello) tour, post songs on their websites, or just make videos for social media, much as their novelty-act forebears labored in nightclubs and for niche record labels. Coviello’s stage act, Honest2Betsy and her Bawdy Broads, features singing, dancing, ventriloquism, and a segment where she touts herself as the world’s only topless accordion player.

You can call that silly, strange, or funny. But only one word truly captures it: demented.

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