Congressman Ron Paul is a Voice of Reason …


 

… in a political landscape otherwise devoid of common sense and constitutional acumen.  It is too bad, indeed, that Paul (Rep TX) is retiring.

On his website the week after the Sandy Hook murders, Paul addressed the issues of gun control and personal “security” in a post entitled “Government Security is Just Another Kind of Violence”.

He concluded his comments as follows (bold emphasis added:

“…do we really want to live in a world of police checkpoints, surveillance cameras, metal detectors, X-ray scanners, and warrantless physical searches?  We see this culture in our airports: witness the shabby spectacle of once proud, happy Americans shuffling through long lines while uniformed TSA agents bark orders.  This is the world of government provided “security,” a world far too many Americans now seem to accept or even endorse.  School shootings, no matter how horrific, do not justify creating an Orwellian surveillance state in America.

“Do we really believe government can provide total security?  Do we want to involuntarily commit every disaffected, disturbed, or alienated person who fantasizes about violence?  Or can we accept that liberty is more important than the illusion of state-provided security? Government cannot create a world without risks, nor would we really wish to live in such a fictional place.  Only a totalitarian society would even claim absolute safety as a worthy ideal, because it would require total state control over its citizens’ lives.  We shouldn’t settle for substituting one type of violence for another. Government role is to protect liberty, not to pursue unobtainable safety.

“Our freedoms as Americans preceded gun control laws, the TSA, or the Department of Homeland Security.  Freedom is defined by the ability of citizens to live without government interference, not by safety. It is easy to clamor for government security when terrible things happen; but liberty is given true meaning when we support it without exception, and we will be safer for it.

Paul is likely the most Libertarian nationally prominent member of either major political party.  I would have enthusiastically supported him for President this year … and will do so in 2016 if he chooses to run.

For the full text of Congressman Paul’s article “Government Security is Just Another Kind of Violence“, see:

http://paul.house.gov/index.php?option=com_content&view=article&id=2037:government-security-is-just-another-kind-of-violence&catid=64:2012-texas-straight-talk&Itemid=69

What now for the Second Amendment & Gun Control?


 

In the aftermath of the Sandy Hook Elementary School murders in Newtown, CT, there has once again been an outcry for increased restrictions on individual access to firearms in the United States.

As I have said before …

https://freelegaladvice.wordpress.com/2008/06/26/supremes-uphold-individual-handgun-ownership-right/

… when it comes to the Second Amendment (as well as the rest of the Constitution), I am a strict constructionist.  The Second Amendment says that the “… the right of the People to keep and bear Arms, shall not be infringed.”  See Notes 1 & 2 below.

To me, in the absence of an amendment to the Constitution modifying its terms, the Second Amendment means that the government (federal directly and state/local through the Due Process Clause of the 14th Amendment) has no authority to “infringe” (per Merriam-Webster online Dictionary:  “to encroach upon in a way that violates law or the rights of another”) on the right of individuals to keep and bear arms.  Period.  Not handguns.  Not rifles.  Not shotguns.

Not even “assault weapons”, regarding which, by the way, there really is no such thing.  When the federal government passed the so-called “Assault Weapons Ban” in 1994, Congress had to make up a definition of what constituted an “assault weapon” within the meaning of the law.  See Note 3 below.

And, as just one example of how virtually meaningless that definition was, the law defined any semiautomatic rifle with a pistol grip and a bayonet mount as an “assault weapon”, but excluded from the definition a semiautomatic rifle with just a pistol grip.  Go figure.

Now, you might be tempted to say (and I would agree) that any fully automatic weapon should be considered an “assault weapon”.  But, you should also be aware that fully automatic weapons have been heavily regulated, controlled and restricted since 1934 (think Prohibition era gangsters).  Never mind that there is nothing in the Second Amendment which can be interpreted to mean that the federal government has lawful authority to infringe on the right of individuals to “keep and bear” even fully automatic “arms”.  The average law-abiding citizen simply cannot legally obtain, much less “keep and bear”, fully automatic weapons.

What then, you ask, of semi-automatic weapons (like the Bushmaster .223 rifle used by the Newtown nutball) — aren’t they “assault weapons”?  Some people would say so.  However, a “semi-automatic” weapon is one which fires only one round each time the trigger is pulled, but reloads the next round automatically.  Well, guess how revolvers work — when you pull the trigger, the cylinder rotates and reloads the next round automatically, then fires;  when you pull the trigger again, the cylinder rotates and reloads the next round automatically — “semi-automatic”, by definition.

In fact, virtually every modern handgun is “semi-automatic”.  Are they all “assault weapons”?  I submit not.

So, any “assault weapons” ban that might be enacted going forward will have the same problem that the 1994 ban (which was largely ineffective in accomplishing its presumed objective and therefore allowed to expire in 2004) had — how to define the weapons being “banned”.  See Note 4 below.

And what about high capacity magazines?  Doesn’t the fact that a semi-automatic weapon can be loaded with a 30 shot magazine make it an “assault weapon” worthy of being banished?  Not really.

An accomplished gunman utilizing a weapon like the Bushmaster can aim and effectively fire 30 rounds in perhaps 15 seconds.  So, let’s say 30 shot magazines are banned and the maximum allowed is just 10 rounds.  Okay.  This same accomplished gunman can eject an empty magazine and load a new one in 5 seconds, less if he’s really good at it.  So, to fire the same 30 rounds will take 3 magazines, having to reload twice in the process.  Thus, the total time to fire 30 rounds will be 15 seconds to aim and fire plus 10 seconds to reload the two magazines.  Total 25 seconds.  Would this have any meaningful effect on the likely outcome of a shooting incident like Sandy Hook?  Not very likely.

So, what should be done to increase gun control in the US?

I submit, contrary to the hue and cry currently being raised by some, nothing.

The belief that increased restrictions on private ownership of guns will reduce gun violence in the United States is, essentially, wishful thinking.  Connecticut has some of the most restrictive gun control state laws in the country.  The guns used by the Sandy Hook lunatic were legally obtained and owned by his mother.

I have read many claims that we need gun control laws like those in effect in most European countries, where the homicide rates are (generally) lower than that in the US.  However, the single worst civilian mass shooting in history occurred in a country with some of the most restrictive gun ownership laws and regulations in the world.  On July 22, 2011, another demented individual attacked a summer camp on a Norwegian island, killed 69 people and wounded 110 (55 of them seriously).  See Note 5 below.

Norway’s homicide rate prior to that event was .6 per 100,00 population (compared to the US rate of 4.2).  And yet … and yet …  See Note 6 below.

A far better way to reduce the homicide rate in the US would be to end the “insane war on drugs”.

Apparently, we as a society learned absolutely NOTHING from the lessons of the failed policies of Prohibition.  According to the US Department of Justice, Bureau of Justice Statistics, nearly 20% of all violent crimes are committed by drug addicts to obtain money for drugs.  Legalize and regulate all drugs and you eliminate most of these violent crimes (and perhaps as many as 50% of all property crimes, as well).  See note 7 below.

Each year in the US, roughly 30,000 people die in firearms-related incidents.  More than half of these are suicides and perhaps 5% accidents.  Of the roughly 40% that are homicides (12,000 or so each year), more than 1000 are committed in “drug wars” (usually between rival drug sellers in “turf wars” over drug sales territories).  Eliminate the “insane war on drugs” and you eliminate drug wars and their associated homicides.  See Notes 8 & 9 below.

And, while I agree with the NRA that posting an armed guard in every school would discourage individuals from choosing schools as targets for their murderous rampages (when was the last time we had a mass murder in a government building, courtroom or airport with armed guards and security checkpoints?), I do not favor this approach for both economic (excessive costs) and personal liberty reasons.  See note 10 below.

We should not be teaching our children to live in fear.  And, as horrific as were the events in Sandy Hook, the occasional occurrence of such events is one of the prices we pay … and must pay … to live in a truly free society.

_______________________________

Note 1:  The full text of the Second Amendment is:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  The introductory clause, in my view, is not a restriction or limitation on the right protected by the amendment, but rather is the explanation for that right.

Note 2:  Anyone who thinks that modern circumstances have obviated the necessity of individual gun ownership to protect a “free state”, need only read One Second After by William Forstchen, described here:

http://www.onesecondafter.com/

And, if you think his book is science fiction and farfetched, see the Wikpedia article on EMP:

http://en.wikipedia.org/wiki/Electromagnetic_pulse

And this Heritage Foundation article about Congressional hearings on the subject:

http://blog.heritage.org/2012/09/11/congressional-hearing-raise-emp-awareness-now/

Note 3:  For a good discussion of “assault weapons” and the 1994 ban, see:

http://www.washingtonpost.com/blogs/wonkblog/wp/2012/12/17/everything-you-need-to-know-about-banning-assault-weapons-in-one-post/

Note in particular this comment:  “Did the law have an effect on crime or gun violence? While gun violence did fall in the 1990s, this was likely due to other factors. Here’s the UPenn study again: “We cannot clearly credit the ban with any of the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.”

Note 4:  For another, radically different, view of why gun violence (and crime in general) fell during the 1990’s, read the book Freakonomics: A Rogue Economist Explores the Hidden Side of Everything by Steven Levitt and Stephen J. Dubner.  In chapter 4 of this book, the authors make a compelling argument that the single most important factor in the drop in crime was the Supreme Court decision in Roe v. Wade and the legalization of abortion in the US.  This is a subject worthy of a more extensive discussion, which I will consider for a future post here.

In the meanwhile, see:

http://www.freakonomics.com/blog/

and:

http://en.wikipedia.org/wiki/Freakonomics

Note 5:  Regarding the mass murder in Norway, see this Wikipedia article:

http://en.wikipedia.org/wiki/2011_Norway_attacks

Note 6:  I recently received an email from a West Point classmate who made the claim that the homicide rate in the US is “more than double every other Western County”.  He did not clarify his definition of “Western country”, but unless you limit “Western countries” to North America north of the US-Mexican border, he is just wrong.  For a full list of the world homicide rates by country, see:

http://en.wikipedia.org/wiki/List_of_countries_by_intentional_homicide_rate

There you will see that not only is our murder rate not “double every other Western country”, it is not even the highest in North America (not even second highest, actually, as both Mexico at 16.9 per 100,000 population and Bermuda at 12.3 have higher murder rates than the US at 4.2).

I also think Caribbean, Central and South American countries would be considered “Western”.  All 21 countries in the Caribbean have murder rates equal to (one country — Martinique) or greater than that of the US.  Eight Caribbean countries have murder rates five times or more than that of the US.  Jamaica’s murder rate (52.2) is more than 12 times that of the US.

All seven Central American countries have murder rates higher than that of the US.  Honduras has a murder rate of 96.6, 23 times that of the US.

Eleven of the 13 South American countries have murder rates higher than that of the US (Venezuela topping that list at 45.1)

Even in Europe (often cited as an exemplar for gun control which should be followed by the US), there are 8 countries which have higher murder rates than the US.  Only Western and Southern Europe have murder rates consistently lower than ours and not even all of those are as small as half that of the US.

Oddly, one of those (Switzerland at 0.7) has one of the highest per capita gun ownership rates in the world (4th behind the US, Serbia and Yemen).  For per capita gun ownership worldwide, see:

http://en.wikipedia.org/wiki/Number_of_guns_per_capita_by_country

Compare that list to the national murder rates and you will see that there is virtually no correlation between the two.  In fact, see this interesting article from the Harvard Journal of Law & Public Policy which posits that there is actually more of a negative correlation:

http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No2_KatesMauseronline.pdf

One startling example noted in this study:  Luxembourg, which has such complete gun control that “handguns are totally banned and ownership of any kind of gun is minimal” has a murder rate (9.01) more than double that of the US.

Note 7:  For the US Department of Justice, Bureau of Justice Statistics, article on “Drugs and Crime Facts”, see:

http://bjs.ojp.usdoj.gov/content/dcf/duc.cfm

Note 8:  For a good article on “drug war” homicides, see:

http://narcosphere.narconews.com/notebook/bill-conroy/2012/03/drug-war-related-homicides-us-average-least-1100-year

Note 9:  For the Libertarian Party’s discussion on why we should end the “insane war on drugs”, see:

http://www.lp.org/news/press-releases/libertarian-party-40-years-is-enough-end-the-drug-war

Note 10:  “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”  —- Benjamin Franklin, Memoirs of the life and writings of Benjamin Franklin (1818).

New California Laws Effective January 1, 2013


 

The California legislature passed some 800 new laws which become effective on January 1, 2013.

Some new criminal laws include:

AB 1432 adds Penal Code section 273j:  This law makes it a misdemeanor for a parent to fail to report within 24 hours that a minor child is missing or has died.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1401-1450/ab_1432_bill_20120930_chaptered.html

AB 1527 adds Penal Code section 26400:  This law makes it a misdemeanor to carry an unloaded firearm that is not a handgun in any incorporated city or city & county (i.e., San Francisco).  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1501-1550/ab_1527_bill_20120928_chaptered.html

AB 2020 amends Vehicle Code section 23612 to provide for implied consent by any driver to submit to a breath or blood test if lawfully arrested for DUI.  This modifies existing law to delete the previously authorized alternative of submitting to a urine test.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_2001-2050/ab_2020_bill_20120827_chaptered.html

SB 661 adds Penal Code section 594.37:  This law makes it a misdemeanor to picket, on public property, a funeral for a period of time starting one hour before the funeral starts and ending one hour after the funeral ends.  This law is designed primarily to track federal law protecting the privacy of military funerals.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0651-0700/sb_661_bill_20120917_chaptered.html

New laws on some subjects previously discussed here:

SB 1140 amends Family Code section 400 to provide that any priest, minister, rabbi, or authorized person of any religious denomination may decline to solemnize a same-sex marriage if doing so is contrary to the tenets of his or her faith.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1101-1150/sb_1140_bill_20120930_chaptered.html

AB 1536 amends Vehicle Code section 23123.5 to authorize texting while driving as long as the driver is using a hands-free, voice-activated electronic messaging device.  This bill modifies existing law which prohibits texting while driving.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1501-1550/ab_1536_bill_20120713_chaptered.html

Some other new laws of interest:

AB 1708 amends Vehicle Code section 16088 to allow drivers to provide proof of insurance upon request of a law enforcement officer by use of a mobile electronic device.  This is a modification of existing law, which requires drivers to provide documentary proof of insurance upon request of a law enforcement officer.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1701-1750/ab_1708_bill_20120907_chaptered.html

SB 1264 amends Penal Code section 11165.7 to add to the list of “mandated reporters” of suspected child abuse or neglect athletic coaches, assistant coaches and graduate assistants.  This change brings these individuals within the coverage of existing law, which makes it a misdemeanor for a mandated reporter to fail to report such suspected abuse or neglect.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1251-1300/sb_1264_bill_20120924_chaptered.html

SB 1298 adds Vehicle Code section 38750:  This law authorizes the operation of “autonomous” vehicles (that is, vehicles which drive themselves, or more accurately, which are driven by a computer), as long as there is a licensed driver in the driver’s seat.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1251-1300/sb_1298_bill_20120925_chaptered.html

Free Legal Advice Isn’t Worth What You Pay For It


 

I have not been posting to this blog, in part because many readers apparently missed the sardonic intent of its title … a problem which I compounded on several occasions by actually trying to provide the typically worthless commodity I was intending to mock.

Strangely enough, although I haven’t posted anything new for more than four years, a few lost souls wander in every day and read the old posts.  So, I’ve decided to begin posting again, but with this caveat:  I am going to write about legal subjects which interest me, but am not going to answer individual or specific legal questions from readers.

I’ll be happy to engage in dialogue about the legal issues regarding which I post, but if you have a specific question about a legal issue you are facing, I suggest, for simple, informational inquries, that you visit the site “JustAnswer”.   This is a question and answer site on which legal experts are available to provide, for a rather modest fee, information (though not legal advice) about virtually any legal issue.  You ask the question, an expert answers and, if you give the expert a satisfactory rating for his answer, you pay the agreed upon fee.  You can access “JustAnswer” by clicking on the link “Ask Lawyers Now” under the heading “Just Answer” to the right below the BlogRoll.

To be clear, free legal advice isn’t worth what you pay for it … so if you really need legal advice, you should consult with an attorney and pay him or her for his time.  In the long run, if you are dealing with a serious legal issue, obtaining good advice will be worth whatever it costs.  If you happen to need assistance with a criminal matter anywhere in Northern California, you can contact the law firm for which I work by clicking on the “Summit Defense” link to the right below the BlogRoll.

And, to repeat the legal fine print from my original post here:

Any and all comments here are offered solely for the purpose of providing general information about legal issues and should not be considered specific legal advice intended to be relied upon by any reader (doesn’t that sound just like a lawyer?).  If you have a legal problem and need specific legal advice about that problem, you should consult with (and pay) a lawyer for that specific legal advice.  Even if my comments here address your legal problem, before acting on anything I say, you should still consult with (and pay) a lawyer for specific legal advice about your problem.

By the way, I reserve the right to pick and choose the subjects about which I will comment and the questions which I will answer, to control the content of this blog by refusing any comment which I find objectionable or inappropriate for any reason and to edit, modify and/or delete anything I post at any time for any reason.

On the other hand, I will often speak plainly at the risk of offending you or someone else and if I do, will likely not apologize.  Which is another way of saying, if you’re not going to like the answer, don’t ask the question.