New California Criminal Laws for 2016


The California state legislature enacted 807 new laws during the 2015 legislative session. Several of them addressed criminal law issues which might be of interest, particularly to attorneys who practice criminal law.

 

NEW CRIMINAL LAWS

Photographing and video recording cops in public

Video recording of police officers by private citizens has become somewhat of a contentious issue for some cops. Officers have been known to order citizens to stop … or to have seized the recording device … or even to arrest the recording individual for interfering with the performance of police duties.

This year, the California legislature brought clarity to this situation, making it clear that such recording in a public place is not, in and of itself, a violation of the law.

To accomplish this, the legislature amended two Penal Code sections, 69 and 148. The former makes it a crime to deter or prevent an officer from performing his duties and the latter makes it a crime willfully resist, delay, or obstruct a peace officer in the performance of his duties.

Section 69 was amended to add subdivision (b), which provides:

“The fact that a person takes a photograph or makes an audio or video recording of an executive officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a).”

Section 148 was amended to add subdivision (g), which provides:

“The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.”

Biking to the music with ear buds

California law previously prohibited wearing any headset that covered both ears while driving a vehicle or riding on a bicycle.  This year, the law — Vehicle Code section 27400 — was amended to, essentially, ban ear buds while driving or riding a bicycle.

With certain exceptions (such as persons operating authorized emergency vehicles and individuals wearing hearing aids), the law now provides:

 “A person operating a motor vehicle or bicycle may not wear a headset covering, earplugs in, or earphones covering, resting on, or inserted in, both ears.”

BB Guns in public

When I was a kid growing up on Long Island, I often carried my BB rifle or .22 caliber pellet gun around the neighborhood, plinking away with them. These days, of course, carrying around a realistic-looking BB gun can get you killed.

In any effort to reduce the likelihood of such a tragic event happening in California, several provisions of law relating to BB, pellet, paintball and airsoft guns were changed this year.

Penal Code section 20165 previously excluded all BB guns from the existing prohibition on “imitation firearms”. Under the new law, BB, pellet, paintball and airsoft guns are considered “imitation firearms” and therefore illegal unless they meet specified requirements, the full details of which are available here:

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB199

Among the exceptions are the color requirements designed to make these recreational guns readily identifiable as non-lethal. New Penal Code section 16700, subdivision (b)(5), provides that these guns are not considered “imitation firearms” when they consist of:

“A device where the entire exterior surface of the device is white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink, or bright purple, either singly or as the predominant color in combination with other colors in any pattern, or where the entire device is constructed of transparent or translucent materials which permits unmistakable observation of the device’s complete contents.”

Gun violence restraining orders

Numerous and substantial changes were made to the laws regarding gun violence restraining orders. The full details of the changes, which were enacted by Assembly Bill 1014, are here:

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1014

Major provisions of the bill authorize courts to:

Issue a temporary emergency gun violence restraining order if the court finds that there is reasonable cause to believe that the subject of the petition poses an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.

Issue an ex parte gun violence restraining order prohibiting the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition when it is shown that there is a substantial likelihood that the subject of the petition poses a significant danger of harm to himself, herself, or another in the near future by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.

Issue a gun violence restraining order prohibiting the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a period of one year when there is clear and convincing evidence that the subject of the petition, or a person subject to an ex parte gun violence restraining order, as applicable, poses a significant danger of personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.

The new law authorizes the renewal of the order for additional one-year periods and permits the restrained person to request one hearing to terminate the order during the effective period of the initial order or each renewal period.

The new law requires courts, upon issuance of gun violence restraining orders, to order the restrained person to surrender to the local law enforcement agency all firearms and ammunition in his or her custody or control, or which he or she possesses or owns and requires the local law enforcement agency to retain custody of the firearm or firearms and ammunition for the duration of a gun violence restraining order.

To help protect individuals against false claims in applications for gun violence restraining orders, the new law makes it a misdemeanor for anyone to file a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing, knowing the information in the petition to be false or with the intent to harass the person who is the subject of the requested order.

Finally, the new law also provides that a person who owns or possesses a firearm or ammunition with the knowledge that he or she is prohibited from doing so by a gun violence restraining order is guilty of a misdemeanor and shall be prohibited from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a 5-year period, commencing upon the expiration of the existing gun violence restraining order.

CCW on school grounds

The rules governing the carrying of licensed concealed weapons on or near school grounds (Penal Code sections 626.9 & 30310) were changed this year.

The changes allow the holder of a valid license to now carry a concealed firearm to carry a firearm in an area that is within 1,000 feet of, but not on the grounds of, a public or private school providing instruction in kindergarten or grades 1 to 12.

On the other hand, the changes deleted the exemptions that previously allowed a person holding a valid license to carry a concealed firearm to bring or possess a firearm on the campus of a university or college and that previously allowed a person to carry ammunition or reloaded ammunition onto school grounds if the person is licensed to carry a concealed firearm.

The new law did create an additional authorization for a person to carry ammunition or reloaded ammunition onto school grounds if it is in a motor vehicle at all times and is within a locked container or within the locked trunk of the vehicle.

Transporting dope

The definition of “transporting” controlled substances within the meaning of Health & Safety Code sections 11360, 11379.5 and 11391 was changed to mean “to transport for sale”.

The changes to these code sections, which relate to the transportation of marijuana, pcp and psychedelic mushrooms, mean that a person who is transporting those substances for personal use, rather than for sale, can be charged only with possession of, rather than the more serious charge of transporting, the proscribed substances.

Custodial battery (alternative felony-misdemeanor)

Section 243.15 was added to the California Penal Code, providing that:

“Every person confined in, sentenced to, or serving a sentence in, a city or county jail, industrial farm, or industrial road camp in this state, who commits a battery upon the person of any individual who is not himself or herself a person confined or sentenced therein, is guilty of a public offense and is subject to punishment by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail for not more than one year.”

Not that such a battery ever was a good idea, now the consequences of committing one are potentially even more severe.

Credit for time served against fines

The value of each day spent in jail and for which a defendant is entitled to credit against any imposed fine, was increased from $30 per day to $125 per day. (Penal Code section 1205)

Dismissal of traffic tickets

Want to get out of a traffic ticket? Well, the legislature added a new way this year. In the past, any citation or misdemeanor traffic offenses committed by a person sentenced to state prison could no longer be prosecuted.

Now, that restriction also applies to anyone sentenced to a county jail pursuant to Penal Code section 1170, subdivision (h), which provides for so-called “realignment” county jail sentences.

So, if you have a citation or misdemeanor traffic offense pending and you get sentenced to county jail under section 1170, subdivision (h), as an alternative to being sent to prison, will be relieved of prosecution for those traffic offenses.

Felony traffic offenses are not affected by the change in the law and can still be prosecuted, even for individuals sentenced to prison or county jail under the realignment statute.

 

NEW LAWS RELATING TO THE PROSECUTION

AND DEFENSE OF CRIMINAL CASES

Immigration consequences

Penal Code sections 1016.2 & 1016.3 were added this year, addressing how both prosecutors and defense counsel deal with the immigration consequences of guilty pleas in criminal cases.

 The new laws require that defense counsel provide to their clients accurate and affirmative advice about the immigration consequences of any proposed disposition of the client’s case and that prosecutors, “in the interests of justice … shall consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution”.

Thus, the lawyers on both sides of criminal cases involving individuals who may be subject to immigration consequences as a result of their prosecution must take those potential consequences into consideration as part of the plea bargaining process.

Presumably, this will also mean that courts will be inquiring of defendants entering guilty pleas whether or not their lawyers have advised them of the potential immigration consequences. One more thing for defense counsel to keep in mind.

Prosecutorial misconduct (withholding evidence)

And one more thing for prosecutors to keep in mind (though the ethical ones always have and will not be effected in any way by this change):

Section 1424.5 was added to the Penal Code … because of the significance of this provision, here it is in full:

Penal Code section 1424.5

“(a) (1) Upon receiving information that a prosecuting attorney may have deliberately and intentionally withheld relevant or material exculpatory evidence or information in violation of law, a court may make a finding, supported by clear and convincing evidence, that a violation occurred. If the court finds such a violation, the court shall inform the State Bar of California of that violation if the prosecuting attorney acted in bad faith and the impact of the withholding contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense.

“(2) A court may hold a hearing to consider whether a violation occurred pursuant to paragraph (1).

“(b) (1) If a court finds, pursuant to subdivision (a), that a violation occurred in bad faith, the court may disqualify an individual prosecuting attorney from a case.

“(2) Upon a determination by a court to disqualify an individual prosecuting attorney pursuant to paragraph (1), the defendant or his or her counsel may file and serve a notice of a motion pursuant to Section 1424 to disqualify the prosecuting attorney’s office if there is sufficient evidence that other employees of the prosecuting attorney’s office knowingly and in bad faith participated in or sanctioned the intentional withholding of the relevant or material exculpatory evidence or information and that withholding is part of a pattern and practice of violations.

“(c) This section does not limit the authority or discretion of, or any requirement placed upon, the court or other individuals to make reports to the State Bar of California regarding the same conduct, or otherwise limit other available legal authority, requirements, remedies, or actions.”

In a related provision, subdivision (a)(5) was added to Business & Professions Code section 6068.7, providing:

“(5) A violation described in paragraph (1) of subdivision (a) of Section 1424.5 of the Penal Code by a prosecuting attorney, if the court finds that the prosecuting attorney acted in bad faith and the impact of the violation contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense.”

These provisions add serious consequences to the withholding by prosecutors of relevant or material exculpatory evidence or information in any criminal case.

—–oooOOOooo—–

FLA 75

The World’s Top 10 Funniest Legal Blunders … from “The Top Ten of Anything and Everything”


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I am a big fan of Russell Deasley’s WordPress Blog:

The Top Ten of Anything and Everything logo

… and particularly like his weekly “Caturday” posts (Saturday blogs about cats).

Yesterday, he posted a legal-themed blog which is entertaining — funny, actually — rather than serious, but worth taking the time to read.  Russell juxtaposed funny legal transcripts with photos of dogs dressed as lawyers, making this a treat for dog lovers as well as lawyers (and those who dislike the latter).

See Russell’s “Top Ten Funniest Legal Blunders” blog here:

http://theverybesttop10.com/2014/02/23/legal-blunders/#comment-36046

… and enjoy!

It is Time to End “The Insane War on Drugs”


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US Constitution 21st Amendment in the National Archives

US Constitution 21st Amendment in the National Archives

Today is the 80th Anniversary of the passage of the 21st Amendment of the United States Constitution, which repealed the 18th Amendment and the Prohibition of alcoholic beverages in the country.

Prohibition was surely one of the dumbest ideas in American history, surpassed in stupidity perhaps only by the current Insane War on Drugs, which has had many of the same ill effects as prohibition, only worse.

Remember Prohibition It Still Doesn't Work

Proponents of prohibition offered any number of justifications for imposing their religious & moralistic opinions on the rest of the country.  Among these claims were that prohibition would reduce drunkenness, reduce crime & increase respect for the law, reduce insanity, reduce child neglect & domestic violence, and reduce taxes (largely by reducing the need for courts, jails, hospitals, poor houses and insane asylums).

The Reverend Billy Sunday gave a speech at the beginning of prohibition in which he said:

“The reign of tears is over. The slums will soon be a memory. We will turn our prisons into factories and our jails into storehouses and corncribs. Men will walk upright now, women will smile and children will laugh. Hell will be forever for rent.”

In fact, prohibition had exactly the opposite effect with respect to all of the projected “benefits”.  Most noticeably, prohibition significantly increased crime in the U.S., giving rise as it did to bootlegging and organized crime.  The number of serious crimes increased, as did drunkenness, disorderly conduct, drunk driving, theft & burglary, assault and even homicide.

The costs of fighting crime increased dramatically during prohibition.  Funding for law enforcement had to be increased rather than decreased. The number of individuals convicted of federal crimes increased 561% during prohibition.  Federal prison population increased 366%.  Federal expenditures on penal facilities increased 1000%!!

Infighting among the gangs organized for bootlegging resulted in 400 gang related murders in the city of Chicago in a single year, including the infamous St. Valentine’s Day massacre. 

St. Valentine's Day massacre

Prohibition made the Mafia possible and gave rise to some of the most famous criminals in American history:

Al Capone

Al Capone

Al Capone, Joseph Bonanno, Bugs Moran, Lucky Luciano, Bugsy Siegel, Meyer Lansky, Dutch Schultz, Tommy Lucchese and Frank Nitti, to name a few.

Did we learn anything from the experience of prohibition?  Apparently, not much.  Prohibition ended in 1933 — by 1936, all 48 states had enacted laws regulating the possession, use & sale of marijuana, which was blamed for an increase in violent crime and was touted by some as the “foremost menace to life, health and morals in America”.

Nevertheless, the federal government did not become involved in outlawing (rather than simply taxing) most drugs, other than narcotics, until 1965, when amphetamines & barbiturates came under a federal prohibition.  LSD was added to the list of prohibited drugs in 1968.

Then, in 1970, the Comprehensive Drug Abuse Prevention and Control Act of 1970 (also called the Controlled Substance Act of 1970)  created the federal Drug Enforcement Agency (DEA) and brought all drugs under federal jurisdiction.

Nixon Declares "War on Drugs"

Nixon Declares “War on Drugs”

On June 17, 1971, President Richard Nixon made it official, declaring a federal “war on drugs”.

Thereafter, a flood of anti-drug legislation, both federal and state, imposed more and more restrictions on drug possession, use and sale, while simultaneously imposing increasingly severe sanctions for such possession, use and sale.

What are the governmental justifications for prohibiting the use of drugs by American citizens?  Typically, they include that such prohibition reduces drug use & the resulting impairments, reduces crime & increases respect for the law, reduces child neglect & domestic violence, and reduces the financial burden on society of dealing with drug abuse.  Sound familiar?

And what results have these draconian drug laws accomplished?

Most notably, they have created a whole new version of organized crime and gang warfare, now international in scope.  We have once again seen substantially increased crime in the U.S. (with more than 1.5 million people a year being arrested for drug related offenses) and incredibly higher costs of law enforcement (more than one TRILLION dollars spent in the “war on drugs”).

Drug Raid

Drug-related gang activity, including turf wars, has resulted in a veritable blood-bath on the streets of many American cities (as well as in a number of other countries).  Property and assault crimes committed for the purpose of obtaining drug money account for as much as half of all such crimes in many cities.

Largely because of the “insane war on drugs”, the United States imprisons a higher percentage of its population (716 people per 100,000 population) than any other country in the world.  The next closest large country is Russia (484 per 100,000), while other developed countries have uniformly lower rates of incarceration:  Brazil (274), New Zealand (193), Spain (149), England (148), the Netherlands (82), Germany (80), Norway (71), Denmark (68), Sweden (67), Finland (60), Japan (54) and India (30), to name a few.

Libertarian Party

On the 40th Anniversary of Nixon’s declaration of the “War on Drugs”, the Libertarian Party issued a press release discussing why this “war” has been an utter failure and should be abandoned.  See Note 1 below for a link to this release.

Law Enforcement Against Prohibition (LEAP)

In that release is a link to a report by Law Enforcement Against Prohibition (LEAP) which discusses in sometimes gruesome detail just what a failure the drug war has been.  See Note 2 below.

The Libertarian Party release goes on to say:

“Ultimately, of course, this tragedy is the result of our government’s refusal to allow people to engage in peaceful choices as to what they consume. Even if drug use were to rise upon a return to the American tradition of tolerance that existed before the 1914 Harrison Narcotics Act, our streets would be safer, innocent people would not have their homes raided and pets killed by narcotics agents entering the wrong house, victims of asset forfeiture laws wouldn’t have their houses and other assets seized without due process, and resources would be freed to spend on improving peoples’ lives instead of destroying them.”

It concludes with two planks of the Libertarian Party Platform:

1.0 Personal Liberty
Individuals should be free to make choices for themselves and to accept responsibility for the consequences of the choices they make. No individual, group, or government may initiate force against any other individual, group, or government. Our support of an individual’s right to make choices in life does not mean that we necessarily approve or disapprove of those choices.

1.2 Personal Privacy
Libertarians support the rights recognized by the Fourth Amendment to be secure in our persons, homes, and property. Protection from unreasonable search and seizure should include records held by third parties, such as email, medical, and library records. Only actions that infringe on the rights of others can properly be termed crimes. We favor the repeal of all laws creating “crimes” without victims, such as the use of drugs for medicinal or recreational purposes.

It is way past time to bring this insanity to a conclusion, to make law the Libertarian ideal that individuals have the right to choose for themselves whether or not to use drugs, to repeal all laws prohibiting the medicinal or recreational use of all drugs, and to release from our jails and prisons all individuals incarcerated for the possession, use or sale of drugs.

Doing so will mean having to overcome opposition from some segments of law enforcement (which derive significant financial benefits from the war on drugs), as well as the religious right and other moralists who think they should be able to dictate the actions & control the lives of others.

Albert Einstein once defined insanity as “doing the same thing over and over again and expecting different results”.  Einstein’s definition applies perfectly to the “war on drugs” and the time has come to end the insanity.

___________________________________________________

Note 1:       http://www.lp.org/news/press-releases/libertarian-party-40-years-is-enough-end-the-drug-war

Note 2:       http://www.leap.cc/wp-content/uploads/2011/06/Ending-the-Drug-War-A-Dream-Deferred.pdf

Note 3:       For more on the Libertarian view on ending the War on Drugs, see:

https://www.lpmn.org/libertarians_assert_powerful_case_ending_war_drugs/

Note 4:       For the complete Libertarian Party 2012 Platform, see:

http://www.lp.org/platform

Note 5:       The Libertarian Party website is here:

http://www.lp.org/

Ge-stop-o & Frisk: Trashing the 4th Amendment in New York City


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I have said before that I consider New York City Mayor Michael Bloomberg perhaps “the single most dangerous politician on the national scene these days.”   For that discussion, see my blog post “Trashing the Constitution in New York City”:

https://freelegaladvice.wordpress.com/2013/03/31/trashing-the-constitution-in-new-york-city/

Whatever doubt I might have had about that assessment has, thanks to Bloomberg’s dictatorial NYPD “stop & frisk” policy, reached the vanishing point.  And what is sad, if not downright frightening, is that a substantial percentage (41%) of Americans approve of the gestapo-like tactics being used by the NYPD in their implementation of this policy.

A YouGov.com poll on the subject is here:

http://today.yougov.com/news/2013/05/24/americans-divided-stop-and-frisk/

It shows that 41% of Americans (and 60% of self-described Republicans) approve of the stop & frisk policy, while 49% oppose and 10% are so oblivious that they have no opinion.
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The Terry Stop & Frisk Law:

In 1962, the United States Supreme Court in the case of Terry v. Ohio, 392 U.S. 1 (1968), established the so-called stop & frisk law, which allows police to briefly detain a person if they reasonably suspect that person is involved in criminal activity.

For the full text of Terry v. Ohio, see note 1 below.

The “reasonable suspicion” standard is somewhat less than probable cause to arrest, but there must nevertheless be some specific reasonable suspicion that the person is engaged in criminal activity of some kind.  The Terry decision also held that police may do a limited search of the person’s outer garments for weapons IF they also have a reasonable and articulable suspicion that the person detained may be “armed and dangerous”.  Such a search for weapons is what is now called “stop & frisk”.

Note that the Terry decision allows such a “frisk” (search) only if the officer(s) have a “reasonable and articulable suspicion” that the person is armed.  It does not give carte blanche to frisk every detainee, as Mayor Bloomberg and the NYPD seem to think.

Nor does it allow NYPD officers to willy-nilly stop & frisk anyone they choose, for any or no reason.

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Floyd v. City of New York

Protesters participate in a rally near the federal courthouse March 18 in New York. Lawyers for four men who say they were illegally stopped said many of the 5 million people stopped, questioned and sometimes frisked by police in the past decade were wrongly targeted because of their race.

Protesters participate in a rally near the federal courthouse March 18 in New York. Lawyers for four men who say they were illegally stopped said many of the 5 million people stopped, questioned and sometimes frisked by police in the past decade were wrongly targeted because of their race.

In the Southern District of New York federal case of Floyd v. City of New York, the plaintiffs are suing the city over the policy, which they claim has resulted in hundreds of thousands of unlawful stops, primarily (84%) involving blacks and Hispanics.  The plaintiffs asserted and tried to prove in a recently ended two-month trial, that the policy is nothing more or less than racial profiling.  The trial concluded on May 20, 2013, and post-trial submissions are due on June 13, 2013.

See notes 2 & 3 below for information about this case.

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The Center for Constitutional Rights Expert Report

The 2012 Center for Constitutional Rights expert report on the subject of these stops (available through the link in Note 3 below), notes in part:

Race-based police stops, in violation of the Fourteenth Amendment Equal Protection Clause

* Blacks and Latinos are significantly more likely to be stopped than Whites. Overall, Blacks and Latinos constitute 84% of the stops, a far higher percentage than their proportion of the city’s population. Even after controlling for crime, local social conditions and the concentration of police officers in particular areas of the City, Blacks and Latinos are significantly more likely to be stopped than Whites.

* This is true at both the neighborhood and the individual level.

Unjustified stops, in violation of the Fourth Amendment protection against unreasonable search and seizure

* Analysis of the information recorded by police officers themselves in their stop and frisk reports indicates that more than 95,000 stops lacked reasonable, articulable suspicion and thus violated the Fourth Amendment.

* The NYPD continues to frequently and indiscriminately use the highly subjective and constitutionally questionable categories of “high crime area” and “furtive movements”. “High crime area” is checked off in more than 60% of all stops. A comparison of actual crime rates to the claim that a stop was in a “high crime area” reveals that this factor was cited at roughly the same rate regardless of the crime rate. “Furtive movement” was also checked in a majority of stops, 53% of them. Here, too, there was no correlation between the frequency of this stated reason for a stop and actual crime rates. Both the frequency of these classifications and their complete absence of any relationship to actual crime rates suggest strongly that they are not legitimate indicators or reasonable, articulable suspicion.

* Only 6% of stops result in arrest, an extraordinarily small number given that stops are legally supposed to be based on reasonable, articulable suspicion. The rates of seizure of weapons or contraband are miniscule – .12% of stops yield gun seizures and 1.8% contraband – and are lower than the seizure rates of random stops. (Emphasis added)

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Justifications:  “High Crime Area” and “Furtive Movements”

During the time period 2004-2012, the NYPD averaged approximately 43,400 stops per month.

Anyone who has ever worked in either law enforcement, criminal prosecution or criminal defense knows that the assertion of “high crime area” (cited as justification for almost 61% of all stops) as the “reasonable suspicion” in support of detention is pure BS.  This would allow detention of anyone who happens to be in what the officers believe to be a high crime, regardless of whether there is any other reason to suspect that person of being involved in criminal activity.

Nor do “furtive movements” (cited in almost 54% of all stops) add anything to the “reasonable suspicion” that the individual is involved in criminal activity.  A sampler of “furtive movements” cited by NYPD officers in support of “stop & frisk” contacts, as described in the Floyd expert study, include such “suspicious activities” as:  riding a train, “looking around”, running from one train to another, crouching next to a vehicle, stopping “prematurely” for no reason, “evasive” movements or behavior, “hiding” in a room, holding an item “under a jacket”, “hanging out” in a lobby, “ducking in & out” of a building, “looking around”, looking “nervous”,  “furtive movements” by a wall, “furtive movements” with black marker, “hiding behind” other people, “evading” a bus driver, “hiding” between vehicles, and “looking around at” subway gates.

(Separate and apart from this expert study, I have personally seen police reports in which “furtive movements” justifying “stop & frisk” contacts were described as:  looking away or turning away from cops, walking away from cops, walking toward cops, putting one’s hands into pockets, taking one’s hands out of pockets, standing up from a squatting position, squatting down from a standing position, jerking one’s head from side to side, and simply making “suspicious” movements.)

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Conclusion:  Blatant and Rampant Unconstitutionality

These statistics paint a compelling picture of blatant and rampant unconstitutionality in the implementation of the New York stop & frisk policy.  Nevertheless, Mayor Bloomberg commented, “I can’t imagine any rational person saying that the techniques are not working and that we should stop them.”

I’m not sure in what alternative reality Mayor Bloomberg’s “rational persons” must reside.  Or how 41% of Americans can logically come to the conclusion that this policy is a good idea … or constitutional … or even particularly effective.  It clearly is none of those things.

I consider myself a fairly “rational” person and I say, yes, Mayor Bloomberg, you should stop violating the constitutional rights of the citizens of your city.

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Note 1:  The full text of Terry v. Ohio is available here:

http://supreme.justia.com/cases/federal/us/392/1/case.html

Note 2:  For an NPR online article about Floyd v. City of New York, see:

http://www.npr.org/2013/05/20/185458137/court-case-winds-down-in-new-yorks-stop-and-frisk-challenge

Note 3:  The Center for Constitutional Rights webpage about this case is available here:

http://ccrjustice.org/floyd

This site contains links to all of the Floyd case expert reports and court documents, including the complaint, motions, declarations and court orders.  Anyone who is interested in this issue would do well to review the documents linked on this site.  I cannot begin to do justice to this material here in my blog.

Trashing the 1st Amendment in North Carolina


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North Carolina state representatives have introduced legislation that would, if adopted, purport to exempt the state from the strictures of the 1st Amendment of the U.S. Constitution and would allow North Carolina to establish an official state religion.

The proposed legislation, reported today on HuffingtonPost.com …

http://www.huffingtonpost.com/2013/04/03/north-carolina-religion-bill_n_3003401.html#slide=467436

… is co-sponsored by state representatives Carl Ford (R-China Grove) and Harry Warren (R-Salisbury) and is backed by nine other republican representatives.

The proposed laws read as follows:

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

The name of the bill is “A JOINT RESOLUTION TO PROCLAIM THE ROWAN COUNTY, NORTH CAROLINA, DEFENSE OF RELIGION ACT OF 2013” and is denominated House Joint Resolution DRHJR10194-MM-54.  The full text of the resolution is here:

http://www.ncleg.net/Applications/BillLookUp/LoadBillDocument.aspx?SessionCode=2013&DocNum=2501&SeqNum=0

The introduction to this bill acknowledges that the “Establishment Clause” of the 1st Amendment says “… Congress shall make no law respecting an Establishment of Religion, or prohibiting the free exercise thereof ….”  It goes on, however, to declare that “… this prohibition does not apply to states, municipalities, or schools ….”

Supporters of the bill cite the 10th Amendment …

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

… for the proposition that the federal government cannot expand its powers beyond those specifically enumerated in the Constitution.  They also also assert that the Constitution does not authorize either the federal government or federal courts to determine what “is or is not constitutional” and that, consequently, the ability to determine constitutionality is reserved to the states and the people thereof.

Apparently, these state legislators stopped reading when they finished with the 10th Amendment.  They certainly didn’t get to section 1 of the 14th Amendment, which says in part …

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

… and which has been repeatedly held to mean that all of the protections of the Bill of Rights apply as to the states as well as the federal government.  In other words, the Constitution of the United States of America does “prohibit states or their subsidiaries from making laws respecting an establishment of religion”.

And it does require the North Carolina General Assembly to “recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion”.

Thus, the state of North Carolina cannot constitutionally declare a state religion, whether this resolution passes or not.

On the other hand, I have to admit that it might be fun to watch them trying to do so.  Fewer than 48% of all North Carolinians consider themselves active participants in any religion.  The most popular religion in the state is Southern Baptist;  however, just 19% of people in the state are active Baptists.  Methodists total 9% and Roman Catholics (the fastest growing religion in the state) just over 4%.  Other Christian denominations, including Episcopalian, Pentecostal, Lutheran, Presbyterian and Latter Day Saints (Mormon), range down from less than 3% to less than 1% each.  All other splinter Christian denominations combined make up roughly 7% of the population.

Jews, Muslims and adherents of Eastern religions (who together total less than 1% of the state’s population) may, in any discussion of this subject, be voices in a Christian wilderness.  However, adherents of which of the various Christian denominations do you suppose are going to stand idly by while some other denomination is declared to be the official religion of the state of North Carolina?  Even if the proposed state religion is Baptist, will this be acceptable to the other 30% of North Carolinians who actively practice some other religion (never mind the 52% of the people in the state who are not active in any religion)?

And then, even if the North Carolina legislature is able to pass this resolution and declares an official state religion, we’ll have the consequent litigation and inevitable smackdown by the U.S. Supreme Court, the members of which — contrary to the beliefs of the sponsors of this legislation — believe it does have the authority to determine what “is or is not” constitutional.  And which will certainly find any “establishment” of a state religion violative of the 1st Amendment.

Oh, by the way, one more thing — it appears that the sponsors of this bill have not even recently read their own state constitution, since the proposed bill violates Article 1, section 5 of the North Carolina  constitution.  This provision requires the state and its citizens (presumably including its legislators) to comply with federal laws:

Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.

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For other interesting (and somewhat amusing) discussions of this proposed legislation, see these articles on TheAtlantic.com website:

http://www.theatlantic.com/politics/archive/2013/04/north-carolinas-proposed-state-religion-isnt-as-unprecedented-as-it-sounds/274646/

… which notes, in part:  “You can safely file this under Not Gonna Happen. Even if the state passes the law, there’s no chance it would be upheld. Phillip Bump at The Atlantic Wire explains the fun circular logic going on: Yes, Marbury v. Madison established federal judicial review, but it was a federal decision so it’s not binding. (The Tar Heel State could of course try seceding, but that didn’t work out so well for them the first time around.)”

and:

http://www.theatlanticwire.com/national/2013/04/north-carolina-official-government-religion/63833/

… which opens:  “Let’s say you’re a state and you want, for some reason, to declare an official government religion. You’d probably recall that such behavior runs a bit afoul of the First Amendment to the Constitution. Leaving you with only one option: Decide that your state gets to interpret the Constitution however it sees fit.”

… adds:  “Yes, the 1803 case of Marbury v. Madison clearly settled the issue of the primacy of federal judicial review, but that was decided by the Feds and they don’t have the right, so it doesn’t count. As WRAL notes, this strategy has been tried before to block federal measures that any particular state didn’t like at any particular time. Never, we should point out, successfully.”

… and concludes:  “Anyway, the bill will never ever pass and if it did would quickly be struck down by the federal courts, since they have complete authority to do so. The end.”

The Virtual President of the United States on Gun Control


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This is absolutely brilliant.

Click on the following link or the picture of Virtual President Bill Whittle below:

http://www.mrvirtualpresident.com/blog/article/guns-virtual-state-union-2013

Mr. Virtual President headerMr. Virtual President on 2nd Amendment & Guns

For additional virtual speeches, see the main page of the Virtual President here:

http://www.mrvirtualpresident.com/

On that page, you can also sign up for “Virtual Updates”, so as not to miss future offerings of the Virtual President.  I did.

You can also download a pdf version of the text of the gun speech by clicking on the link on the site — or here:

http://www.mrvirtualpresident.com/sites/default/files/transcripts/SOTU2013%20GUNSv3.pdf

Trashing the Constitution in New York City


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Perhaps the single most dangerous politician on the national scene these days is New York City Mayor Michael Bloomberg.  He is dangerous in part because he appears to be a megalomaniacal would-be dictator and in part because he is a billionaire who is willing to spend considerable sums of his own money to achieve his blatantly unconstitutional political aims.

Whatever rationality Bloomberg may once have brought to political discourse has rapidly dissolved with his recent series of assaults on personal freedom and liberty in New York and across the country.  Hizzoner “I Know What’s Best For You” is well-known for his attempts to dictate to his subjects when where and how much they can eat (transfats), smoke (cigarettes) and even drink (sodas).  See, for example:

http://www.refusetoregain.com/2012/06/mayor-bloombergs-war-vs-the-freedom-to-eat-whatever.html

And now, Bloomberg has now gone off the statist edge of the political platform, declaring:

“I do think there are certain times we should infringe on your freedom.”

Bloomberg Infringe on Your Freedom

Bloomberg’s irrational and unconstitutional claim has been reported and discussed on any number of websites, such as:

Hotair.com:

http://hotair.com/archives/2013/03/25/mike-bloomberg-i-do-think-there-are-certain-times-we-should-infringe-on-your-freedom/

The NRA Institute for Legislative Action:

http://www.nraila.org/news-issues/articles/2013/3/outrage-of-the-week-bloomberg.aspx

PoliticalOutcast.com:

http://politicaloutcast.com/2013/03/mayor-michael-bloomberg-government-infringe-freedom-piers-morgan/

To all of which, I say, NO, there aren’t certain times when you should infringe on our freedoms.

Here are some thoughts for you Michael:

“[It is] the people, to whom all authority belongs.” —Thomas Jefferson to Spencer Roane, 1821.

“… all power is inherent in the people … it is their right and duty to be at all times armed ….” –Thomas Jefferson to John Cartwright, 1824.

“But of all things, they least think of subjecting themselves to the will of one man.” –Thomas Jefferson to Francis W. Gilmer, 1816.

“Governments are instituted among men, deriving their just powers from the consent of the governed.” –Thomas Jefferson: Declaration of Independence, 1776.

“What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them.” –Thomas Jefferson to William Stephens Smith, 1787.

“The spirit of resistance to government is so valuable on certain occasions, that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. It is like a storm in the atmosphere.” –Thomas Jefferson to Abigail Adams, 1787.

“Most codes extend their definitions of treason to acts not really against one’s country. They do not distinguish between acts against the government, and acts against the oppressions of the government. The latter are virtues, yet have furnished more victims to the executioner than the former, because real treasons are rare; oppressions frequent. The unsuccessful strugglers against tyranny have been the chief martyrs of treason laws in all countries.” –Thomas Jefferson: Report on Spanish Convention, 1792.

“I hold it that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms are in the physical. Unsuccessful rebellions, indeed, generally establish the encroachments on the rights of the people, which have produced them. An observation of this truth should render honest republican governors so mild in their punishment of rebellions, as not to discourage them too much. It is medicine necessary for the sound health of government.” –Thomas Jefferson to James Madison, 1787.

The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.” –Thomas Jefferson to William Stephens Smith, 1787.

Thomas Jefferson — remember him, Michael?  You couldn’t carry his slop jar.

The Righteous Mind — A Study of Human Morality


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What is human morality and how does it affect (primarily American) politics and religion?

In his book The Righteous Mind:  Why Good People Are Divided byPolitics and Religion, social psychologist Jonathan Haidt purports to answer that question.  Despite having conducted extensive psychological research, however, Haidt ultimately fails to deliver a satisfactory answer.

In part, the failure is attributable to a rhetorical trick on his part — that is, the withholding from the reader until nearly the end of the book the fundamental premise upon which his conclusions are based.  And even then, he does not provide what he promised:  a definition of “morality” upon which to base his discussion of how “morality” impacts politics and religion.

Rather, what he ultimately provides is a definition of “moral systems”, rather than “morality”:

“Moral systems are interlocking sets of values, virtues, norms, practices, identities, institutions, technologies, and evolved psychological mechanisms that work together to suppress or regulate self-interest and make cooperative societies possible.”

Which sounds like a definition written by a group of politicians or lawyers!

Although a lawyer myself, I would have defined “morality” much more simply as “doing what’s right under the existing circumstances”, which comports more closely with the dictionary definition.  See here, for example, the Merriam-Webster online dictionary definition:

http://www.merriam-webster.com/dictionary/morality

… where morality is defined as “a doctrine or system of moral conduct” or “conformity to ideals of right human conduct”.

And I say “under the existing circumstances” despite the criticism often leveled at the term “situational ethics”, because what may be the “moral” course of conduct in one situation may not be acceptable in another.  The most obvious example of the circumstantial nature of morality is in the killing of another human being, which most people would agree is generally immoral, but is acceptable in self-defense.

The book is also somewhat tough going because Haidt writes in a rather esoteric and somewhat pedantic style.  For example, he slavishly follows the timeworn advice, “Tell them what you are going to tell them; tell them; then tell them what you have told them”.  While this might (or might not) be a good approach to making a relatively short oral presentation, the repetition gets downright boring in a book as lengthy as Haidt’s.

(As an aside on this subject, see the note “Oh Spare Me!” at the end of this discussion.)

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Moral Foundations Theory

In support of his thesis, Haidt posits what he and other social psychologists call “Moral Foundations Theory”.  The theory is discussed in detail on the “MoralFoundations.org” website at:

http://www.moralfoundations.org/

On the home page of their site, the group says, “… the theory proposes that several innate and universally available psychological systems are the foundations of ‘intuitive ethics’”, then goes on to describe six such foundations as follows:

1) Care/harm: This foundation is related to our long evolution as mammals with attachment systems and an ability to feel (and dislike) the pain of others. It underlies virtues of kindness, gentleness, and nurturance.

2) Fairness/cheating: This foundation is related to the evolutionary process of reciprocal altruism. It generates ideas of justice, rights, and autonomy. [Note: In our original conception, Fairness included concerns about equality, which are more strongly endorsed by political liberals. However, as we reformulated the theory in 2011 based on new data, we emphasize proportionality, which is endorsed by everyone, but is more strongly endorsed by conservatives.]

3) Liberty/oppression: This foundation is about the feelings of reactance and resentment people feel toward those who dominate them and restrict their liberty. Its intuitions are often in tension with those of the authority foundation. The hatred of bullies and dominators motivates people to come together, in solidarity, to oppose or take down the oppressor.

4) Loyalty/betrayal: This foundation is related to our long history as tribal creatures able to form shifting coalitions. It underlies virtues of patriotism and self-sacrifice for the group. It is active anytime people feel that it’s “one for all, and all for one.”

5) Authority/subversion: This foundation was shaped by our long primate history of hierarchical social interactions. It underlies virtues of leadership and followership, including deference to legitimate authority and respect for traditions.

6) Sanctity/degradation: This foundation was shaped by the psychology of disgust and contamination. It underlies religious notions of striving to live in an elevated, less carnal, more noble way. It underlies the widespread idea that the body is a temple which can be desecrated by immoral activities and contaminants (an idea not unique to religious traditions).

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My Take on Haidt’s Studies

I have a fundamental disagreement with Haidt and his compatriots with respect to their conception of “morality” as necessary and appropriate “to suppress or regulate self-interest and make cooperative societies possible”.  In other words, and in the modern context, to make us compliant with the will of government.

Addressing each of Haidt’s six supposed “foundations” of morality:

1)  Care/harm:   I accept and agree with the observation that how we care for and avoid harm to others (human and animal) is a fundamental aspect of morality.  Under most circumstances, caring for others is the “moral” (or “right”) thing to do.  This, of course, is particularly true with those closest to us, our family and friends.  It is also true of our pets.  To the extent that each of us is capable of doing so, it is also true with respect to others we do not know personally.  We exhibit our morality in this regard by making donations to charities, assisting others in time of need, buying cookies from local girl scouts or even such simple acts of kindness as holding doors for women and stopping our cars for people crossing the street.

2)  Fairness/cheating:  While I also agree that treating others “fairly” and not “cheating” is “moral”, I am not sure that this isn’t just an alternative or particularized formulation of the so-called care/harm “foundation” — we “care” for others by treating them fairly and we avoid harm to others, at least in one limited respect, by not “cheating” them in our dealings with them.

On the other hand, I’m not convinced that concern for either “equality” or “proportionality” is properly considered an aspect of morality.  In a political context (to the extent that politics has anything to do with morality),  treating others “fairly” does not necessarily mean treating them “equally” … or even “proportionately” (whatever that means).  Whether or not any individual or group of individuals can achieve “equality” or “proportionality” is an amoral concern;  that is, the end result is not a moral consideration at all.

3)  Liberty/oppression:  Once again, it seems to me that this “foundation”, as defined by Haidt, is just a particular application of the “care/harm” foundation.  Someone who “dominates” others and “restricts their liberty” is harming them, psychologically and emotionally at least, if not physically or materially.  “Bullies” and “dominators” are people who fail to care for others and intentionally harm them.

In the political context, giving moral people the liberty to do what is right will generally result in them doing so.

4)  Loyalty/betrayal:  While I agree that matters of loyalty and betrayal can be matters of morality, it seems to me that they become such only when an individual has made a commitment of some kind to others.  And even then, this is once again just another expression of the care/harm foundation.  Take for example the most basic human relationship — male and female.  Once committed to each other, a man and a woman have a moral duty to maintain loyalty to that commitment (that is, to care for and avoid harm to the other).  Failure to do so by harming the other in some way, would constitute a betrayal of that commitment.  Similarly with respect to parents and children;  by having a child, a parent makes a commitment to care for and avoid harm to that child.  Maintaining loyalty to that commitment is morally correct;  failing to do so would be immoral.

On the other hand, no one has a moral obligation of loyalty to any other person or group of persons with whom he has exchanged or made no individual commitment.  And no person or group of persons can impose such a commitment on any other person against that person’s will.  Doing so, using Haidt’s terminology, would constitute “bullying” or “dominating” and would itself be immoral (“harmful”).  Under such circumstances, there would be no moral imperative to maintain loyalty or avoid betrayal to the bullying or domineering person or persons.

5)  Authority/subversion:  Politically, I am a libertarian.  Perhaps not surprisingly then (at least in Haidt’s view), I put little or no weight on what he characterizes as the “authority/subversion” foundation in evaluating “morality”.  In his book, Haidt notes, “On the Moral Foundations Questionnaire, libertarians join liberals in scoring very low on the Loyalty, Authority, and Sanctity foundations.”

That would be me;  in fact, I consider resistance to authority to generally be the “right” (and therefore moral) thing to do under many circumstances.  The reason is actually quite simple — if the “authority” is seeking moral conduct, then any individual should act accordingly on the basis of that individual’s own moral code;  no imposition of “authority” is necessary to achieve the desired result.  On the other hand, if the “authority” is seeking conduct which is immoral, any individual acting in accordance with the dictates of that authority would be acting immorally.  Doing what is “right” under those circumstances requires one to resist that “authority”.  A single word makes the point clear:  Hitler.

In other words, no degree of “authority” can make moral what is not;  to make right what is wrong;  or to justify what is not right under the circumstances.  Therefore, “authority/subversion” has no bearing whatsoever on one’s individual morality.

6)  Sanctity/degradation:  Similarly, I reject the idea that “religious notions” have any bearing on morality.  Just as no “authority” figure can make right what is wrong, no religious (“sanctity”) figure can make moral what is not or — as is more commonly the case with religion — make immoral that which is not.

In fact, throughout human history, “religious notions of striving to live in an elevated, less carnal, more noble way” have more often than not been used by individuals or small groups of people to “bully” and “dominate” those within their sphere of influence and to impose the will of the minority on the majority.

Furthermore, when it comes to the actions of any individual which might “desecrate by immoral activities and contaminants” the “temple” of that person’s body, there is no moral issue because such actions are (or at least should be) of no concern to anyone other than the individual involved.

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YourMorals.Org

Haidt’s group has a website on which you can “Explore Your Morals” by taking one or more of the questionnaires and surveys contained on the site:

http://www.yourmorals.org/

The basic “Moral Foundations Questionnaire” is described as follows:  “Why do you care about some virtues and issues more than others?  This survey gives you a broad overview of your morals.”

“Your morals” as defined by Haidt, of course.

After finishing the book, I went to the website and completed the questionnaire.  My results are reproduced below.  Interestingly, I scored higher than the average for both liberals and conservatives on the “care/harm” scale; between the two on the “fairness/cheating” (below liberals and above conservatives) and “loyalty/betrayal” (above liberals and below conservatives) scales; and below both on the “authority/subversion” and “purity” (“sanctity/degradation”) scales.  The questionnaire, as currently constituted on the website, does not evaluate the “liberty/oppression” characteristic of the responses.

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YourMorals Questionnaire DescriptionYourMorals Questionnaire Results

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Note:  Oh Spare Me!

In his blog “The Articulate CEO”, Brett Rutledge, the “World Champion of Public Speaking”, posted a discussion entitled, “Tell them What You’re Going to Tell Them, Tell Them, Tell Them … Oh Spare Me!”  In it, he says:

It’s the holy grail of presentations training:

“Tell them what you are going to tell them; tell them; tell them what you have told them”

It’s also quite possibly the biggest load of nonsense I have ever come across and the one piece of advice that, if followed, is guaranteed to make your next presentation a boring one. The simple format outlined above is great if you are a six-year-old doing show and tell at your school. It gives the little tike some basic structure to bolster their confidence and help get them through the dreaded five minutes they have to fill. If you are an adult, however, you require something more.

Repeating something three times does not make it interesting or engaging. Nor does it make it memorable (particularly when your audience has nodded off in the first ten minutes). If you want an audience engaged and interested in what you have to say then you need themes and stories rather than mindless repetition.

Rutledge’s complete discussion of the subject is on his website here:

http://thearticulateceo.typepad.com/my-blog/2011/07/tell-them-what-youre-going-to-tell-them-tell-them-oh-spare-me.html

Why You Should Never Talk to the Cops


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A post today on the “Personal Liberty” Facebook page on the subject of how to interact with law enforcement prompted me to both respond there and to address the subject here.

In his interesting interview about how to respond to attempted over-reaching by law enforcement officials, Attorney Evan Nappen emphasized three responses with which I agree — invoke your right to remain silent, demand your right to speak with an attorney and never consent to anything until you have spoken with an attorney.

Expanding on those basics a bit:

Never submit to a police interview, even if you are innocent. I have seen many cases in which innocent responses to accusatory questions were twisted to make the suspect look guilty. Even statements which you believe to be exculpatory can ultimately be used against you. On the other hand, anything you say which is truly exonerating is generally not admissible in court, so you can’t help yourself by talking to the cops.

Contrary to popular belief, if the cops have enough probable cause to arrest you, you are not going to be able to talk your way out of that arrest.  And don’t even think about believing it when a cop says he can help you out if you talk to him or that you can help yourself by doing so.  The only objective of a police officer interrogating a suspect is to gain additional evidence to make proving the case easier.  Furthermore, cops have no authority to make “deals” about criminal prosecutions;  only the prosecutor’s office can do that.

Even denying that you committed any crime won’t help.  For starters, the cops won’t believe you … and the denial will not be admissible in court, so you gain absolutely nothing by making such a statement.

There are other good reasons for not talking to the cops — even if you’re innocent, you might tell a small lie or even just make a mistake, either of which can be used against you in court.  And, unless the statement is being video or audio recorded, the cop may mis-recollect or even lie about what you said.  I recently tried a child molestation case in which my client said within hearing of a police officer, “I just tickled her”, but the cop who heard the statement testified that he said, “I just diddled her”.  The statement was not recorded and the jury believed the cop’s version.  In the end, this made a huge difference in the minds of some of the jurors.  Maybe the cop mis-understood what was said and maybe he lied about it.  In either event, this damaging statement could not have been used against the defendant if he hadn’t made it to begin with.

By the way, this is true even for such simple situations as traffic stops. For example, if a cop stops you and asks if you know why, do not answer because whatever you say can be used against you if you decide to fight the ticket. If you feel coerced by his position of authority into answering, the only acceptable answer is “no”.

Because of the inherent dangers in speaking with the cops, always invoke your rights to remain silent and to speak with an attorney before answering any questions.

Never consent to anything. Without a warrant, police cannot enter your home. So, if they ask if they can come in, the answer is “no”. If they ask you to step out of your residence, the answer is “no”. If they ask you to open the door to your residence, the answer is “no”. If you’re in a vehicle and they ask if they can search it, the answer is “no”. If they ask if they can search your person, the answer is “no”.  Do not let them intimidate you into consenting, either.  Politely suggest that if they think they have grounds to conduct a search, they can get a warrant, at which point you will let them search.

If the cops have probable cause to arrest you, they will do so and you’ll have to go with them involuntarily. If they don’t have probable cause to arrest you, they cannot compel you to go anywhere with them. So, if they ask if you’re willing to go to the station to be interviewed, the answer is “no”.

Also, do not be fooled by the old, “if you have nothing to hide, you’ll talk to us” trick. If you have nothing to hide, refusing to answer questions, consent to a search or go with the cops cannot hurt you. Answering questions, consenting to a search or going with the cops can hurt you even if you have nothing to hide.

Finally, even if you’re actually guilty, don’t admit it to the cops.  There will be plenty of time later, during plea bargaining between your attorney and the prosecutor, for you to accept responsibility for your actions.  The terms of any plea agreement … and, in particular, the amount of time that you might have to spend in jail or prison … may well depend on the strength of the prosecution’s case.  So, don’t help them increase your ultimate punishment by making incriminating admissions.

So, to reiterate the primary points, never talk to the cops, always invoke your rights to remain silent and to consult with an attorney, and never consent to anything, particularly searches by the cops of your person, vehicle or residence.

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For a detailed constitutional discussion of the 5th Amendment and why you should never talk to cops, see this video by Regent Law School Professor (and former criminal defense attorney) James Duane:

http://www.youtube.com/watch?v=6wXkI4t7nuc

For more on why you should not talk to the cops, also see this video of my KRON-TV (Channel 4) interview on June 23, 2010, uploaded on YouTube November 29, 2010. In it, I discussed the impact of the US Supreme Court case of Berghuis v. Thompkins, which was decided on June 1, 2010.

http://www.youtube.com/watch?v=KqY2smL1oJo

Berghuis essentially held that individuals must affirmatively and unambiguously invoke their rights.  Simply remaining silent and declining to respond for an extended period of time (3 hours in this case) is not, by itself, enough to constitute an invocation of rights.

For the full text of the Berghuis decision, see:

http://www.law.cornell.edu/supct/html/08-1470.ZS.html

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The “Personal Liberty” Facebook page is here:

https://www.facebook.com/personalliberty

And the article on the “Personal Liberty” webpage with the interview of Attorney Nappen is here:

http://personalliberty.com/2013/03/21/interview-attorney-evan-nappen-explains-the-moore-ordeal-and-how-to-protect-yourself-from-unconstitutional-activity/

My Facebook page is here:

https://www.facebook.com/jamest.reilly.3

Red Light Camera Tickets … Update


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Many of the visitors to this blog continue to read my 2008 post about red light camera tickets.  I looked back at it myself today and saw that it is somewhat outdated, in part because of changes in legal and administrative procedures.  So, I decided to update it.

I remain an adamant opponent of the use of cameras to enforce the traffic (or any other) laws. Too much Big Brother for my Libertarian philosophy of what government should be.  Nevertheless, it remains true that, generally speaking, California courts uphold the use of these red light cameras, even though no law enforcement officer saw the violation.

However, in some California jurisdictions, such as Los Angeles and Riverside Counties, red light camera tickets have fallen into disfavor, in part because they are an administrative headache for the courts, in part because in some communities they have resulted in a net loss in revenue, and in part because they simply do not accomplish the desired goal of reducing accidents.

For a great website addressing red light camera ticket issues, see:

http://www.highwayrobbery.net/

Among the common red light camera ticket problems addressed there are:

What to do if you weren’t the driver when the car supposedly ran the red light?  Do you have to identify the driver?  Generally speaking, no, you do not.

What to do if duration of the “yellow” light seems too short?  There are minimum limits below which the duration of the yellow light may not go.  If it is not long enough, the ticket is not valid.

What if the “ticket” comes by email?  Or you are told it is “delinquent” or “in collection”?  These are almost certainly tricks to get you to pay a fine that otherwise cannot be imposed.

Can you use reflective spray on your license plate to defeat red light cameras?  No, you can’t, at least not legally.  You can be cited for a separate violation for doing so.  California Vehicle Code section 5201, which you can see here:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=05001-06000&file=5200-5206

Is running a yellow light a violation?  No.  If any part of your vehicle has crossed the limit line when the light turns red, it is not a violation.

HighwayRobbery.Net also contains suggestions about how to fight red light camera tickets.

This site also contains suggestions for fighting such tickets:

http://www.ehow.com/how_5040059_beat-light-camera-ticket-california.html

Neither addresses every possible legal or factual defense that might conceivably apply, but anyone who is thinking about fighting such a ticket would do well to check out their suggestions.

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Fighting a Red Light Camera Ticket

If you do want to fight such a ticket, the first thing you should do is to read the code section itself:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=21001-22000&file=21450-21468

Make sure you understand what it says and exactly what is or is not prohibited by this law.  Once you have decided to fight the ticket, you can do so by appearing in court or by submitting to a Trial by Declaration.

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Trial by Declaration

Using this procedure, you can submit your side of the case to the court by written declaration.

The California Judicial Council forms for a Trial by Declaration are located at:

http://www.courtinfo.ca.gov/forms/documents/tr200.pdf

http://www.courtinfo.ca.gov/forms/fillable/tr205.pdf

http://www.courtinfo.ca.gov/forms/fillable/tr220.pdf

http://www.courtinfo.ca.gov/forms/fillable/tr225.pdf

The first two of these forms are the ones you will need to submit your request. The last two are for use if it becomes necessary to request a new trial after the first result is unsatisfactory.

Use of the trial by declaration, rather than simply paying the fine, will at least give you the chance to present mitigating factors to the court.  Even if the judge still finds you guilty (which, frankly, is quite likely, except in very unusual circumstances), mitigating factors may convince the court to impose a lesser fine than would normally be assessed.

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Court Trial

If you decide to fight the ticket in court, in most California counties you will have to go to the clerk’s office to request a trial date (in some courts, this can be done by telephone or by mail — check with the court clerk where your ticket is pending to find out what the correct procedure is for that court).

Review the  two websites linked above for suggestions on how to proceed in court.  The best single piece of advice anyone can give is to BE PREPARED — have with you any photos, documents or other evidence that you want to use.  If you tell the judge that some piece of evidence exists, but you “didn’t bring it with” you to court, the judge will not give it any weight.  Request discovery of what evidence might be used against you (see item #3 on the “How to Beat a Red Light Ticket in California” website).   Review the court decisions, transcripts and briefs on the HighwayRobberty.Net website page here:

http://www.highwayrobbery.net/redlightcamsLawaaIndexTransBrfsDecisions.html

Some of them may be helpful to your case.  Have a checklist of the things you want to tell the judge and make sure that you cover each one when making your presentation to the court.

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On Line Traffic School

If you do not want to fight the ticket, California also allows minor traffic offenses to be resolved by attending traffic school, which can now be done online. This requires payment of the full fine, plus the cost of the traffic school, so the expense will be greater, but has the advantage of resulting in dismissal of the ticket so that it does not appear on your driving record.

In the end, this could save you as much on insurance as the cost of the ticket and the traffic school combined.

The clerk’s office of the court where your ticket is pending will give you a list of approved in person and online traffic schools.

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Failing to Appear (“Just Ignoring It”)

In some counties (such as Los Angeles), failing to appear or otherwise respond to a red light camera ticket will not result in the issuance of a failure to appear warrant.  However, even in such counties, the failure to appear will remain in the court records and if you ever have to go for some other reason, is likely to be found and you will have to deal with it.

In other counties, if you do not follow any of the allowable procedures (pay the fine, do traffic school, file a request for Trial by Declaration or appear in court), a bench warrant will be issued for Failure to Appear (FTA). This will just make the situation worse, as that is a separate, misdemeanor criminal offense.  Furthermore, a  failure to appear warrant could be discovered by your insurance company. This would probably result in an increase in premiums or even outright cancellation of your auto insurance.

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Results of a Conviction (in Trial, by Pleading Guilty or by just Paying the Fine)

Conviction of a red light violation will result in a fine (these vary from county to county) and one point on your DMV record.  Points violations can result in suspension or revocation of your driver’s license and will almost certainly cause an increase in your insurance premiums.  To be clear, if you decide to “just pay the fine”, that constitutes a conviction of the offense and a point on your driving record.

Should Government Regulate the Sugar Content of Food?


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The Richard Dawkins Foundation for Reason and Science (Official) is one of my favorite organizations.  Dawkins, of course, is the author of  The God Delusion and other popular books about reason, science, evolution and religion.  The Facebook “About” page for the Richard Dawkins Foundation says, “This Foundation supports reason and science. We organize to overcome the suffering and intolerance that springs from religious fundamentalism.”

The foundation’s Facebook page is here:

http://www.facebook.com/RichardDawkinsFoundation

Today, the foundation posted an article which asked the question, “Do you feed your child toxins?” and suggested, “Read the science before commenting” along with a link to a New York Times op-ed piece by Mark Bittman:

http://opinionator.blogs.nytimes.com/2013/02/27/its-the-sugar-folks/

The op-ed discusses a recently released study from the journal PLoS One which announced the results of a statistical “study on the relationship between sugars and diabetes”.  This study is available here:

http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0057873

And a blog explanation by the principal author of the study, Sanjay Basu, is available here:

http://epianalysis.wordpress.com/2013/02/27/sugardiabetes/

A number of comments to the Dawkins Facebook post suggest that this study is an appropriate basis upon which government could (and perhaps should) regulate the sugar content of American food, some going so far as to suggest that government should “ban” added sugar in food.  These suggestions follow a pattern of governmental regulation of what Americans eat and drink, such as New York City’s ban on servings of sugary sodas exceeding 16 ounces and the restrictions by many school districts across the country on what food & drink can be served to children for lunch (and even on what they can bring from home).

I usually find posts by the Richard Dawkins Foundation to be useful and, more importantly, accurate. However, this NY Times opinion piece misses the mark in one significant way — the author makes the statement (third paragraph):

“In other words, according to this study, obesity doesn’t cause diabetes: sugar does.”

The principal author of the study, however, in the blog about it, clearly states that this is NOT in fact what their study found. This was a statistical study, not a controlled scientific study. As Basu says in the blog, “There are, nevertheless, limitations to any statistical study. As we teach our students, we can’t ‘prove causality’ through any amount of statistics—we’re simply halfway between the typical weak medical correlation studies and the ideal case of a randomized controlled trial (which often also can’t prove causality for a variety of reasons, despite common misconceptions).” (emphasis added)

In other words, and contrary to Mr. Bittman’s conclusion, this study did not (and could not) find that sugar causes diabetes.  Or, as it is sometimes stated, “correlation does not prove causation”.

The Basu blog also makes some other significant qualifications about the study:

“… like any epidemiological study using aggregate data we can suffer from the ‘ecological fallacy’, which means that when we look at aggregate populations, we can’t be sure that those people eating the greater sugars were the exact same people who experienced more diabetes in that given country.”

Which is to say, they can’t even tell if the specific people who ate more sugar are actually the ones who suffered from an increased risk of diabetes.

“… the data themselves are not perfect—in addition to looking for selection bias and doing ‘robustness checks’ by repeating the analysis while excluding outliers or extreme data points (finding, still, consistent results), we have to acknowledge that food availability data from even the best sources are not perfect, and diabetes surveillance rates (even though we checked them against multiple sources), as well as estimates of overweight, obesity and physical activity in many countries are far from perfect. We just used the best data available to date, given the urgency of this question.”

Thus, the data on which the study was based may not have been accurate to begin with, leading to obvious reservations about the conclusions of the study.

And, most significantly:

“The study was conducted to understand a statistical theory, using a statistical approach. It doesn’t say anything about any specific person’s diabetes risk or provide any kind of dietary advice. This data cannot distinguish between types of sugars (like high fructose corn syrup versus other types of sugars), nor does it establish more insight into the mechanisms that are at play, which need to be pieced together in laboratory and experimental research studies. This study also can’t inform any specific policies like the New York City ban on large soft drinks, since the real-world effects of specific policies weren’t evaluated in this experiment.” (emphasis added)

In short, this study is NOT a basis upon which government should act to impose restrictions (or “bans”) on sugar, even if it was otherwise appropriate for government to be regulating what we eat — which, in my opinion, is not in any event the government’s business.

Perhaps the best approach of all is for people to simply “forthrightly accept responsibility” for their own food choices, “regardless of the consequences”.  And, once having done so, to make better choices.

“No man has greater courage, honor and integrity …


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… than he who forthrightly accepts responsibility for his actions, regardless of the consequences.”

As a young Deputy DA in 1976, I was assigned as the supervising attorney of the Orange County (CA) DA’s office drunk driving program for multiple DUI offenders.  It was called “Lucky Deuce” — DUI’s in California were referred to as “deuces” because they were originally violations of Penal Code section 502, and later Vehicle Code section 23102 and eventually VC section 23152.

Lucky Deuce was a 15 month program of counseling, rehabilitation and public service, by which multiple DUI offenders could earn less serious punishment for their convictions.  It was a predecessor to and somewhat of a model for the statewide SB38 program later adopted by California.

Early on in my supervision of this program, I learned that alcoholics (and many, if not most, of the participants were alcoholics) were resistant to admitting their problem and even more resistant to accepting that there were consequences for their anti-social behavior.

Therefore, I wrote the title quote and had it printed on business cards which I then gave to each of the program participants.  As the first step toward rehabilitation … and the hoped for leniency … each of them had to first accept responsibility for his or her actions.  The more forthrightly each did so, the more likely he or she was to succeed in the program.

Of course, the quote is of more universal application and appeal than just in DUI cases.  It often does take courage to accept responsibility for one’s actions … and doing so does demonstrate both honor and integrity … particularly if the consequences are substantially adverse.

With few exceptions, therefore, such acceptance warrants both respect and admiration.

No Man Has Greater Courage Placque

Gun Control and Your Right to Defend Yourself, Your Home and Your Loved Ones


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Following up on the conclusion to my previous post, two points to discuss here:

1)  Gun control from the perspective of those who have actually used guns in defense of themselves, their homes and their loved ones;  and

2)  Why and under what possible future circumstances the availability of firearms for such protection would be desirable, if not essential, to the survival not only of individuals, but our society as a whole.

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Your Right to Defend Yourself, Your Home and Your Loved Ones

Lost in the gun control debate, which has focused almost exclusively on the negative uses of firearms by criminals, is any discussion of the right of people to use guns to defend themselves and protects their homes and families.

Unfortunately, there isn’t much available in the way of reliable statistics about such use — in part for the same reasons that the subject is ignored in the gun control debate.  One nut killing a number of people with a gun is BIG news.  A homeowner using a gun to protect himself and his family against criminals rates barely a mention in the local newspaper and none whatsoever in the national news.

A recent article by Paul Barrett on the Bloomberg BusinessWeek website summarized the statistical dispute over defensive use of firearms. This article is available here:

http://www.businessweek.com/articles/2012-12-27/how-often-do-we-use-guns-in-self-defense

Barrett notes that one 1994 study (by Gary Kleck, an accomplished criminologist at Florida State University) extrapolated a result of 2 million self-defense uses per year.  Conversely, an annual federal government research project, called the National Crime Victimization Survey (NCVS), estimates in the neighborhood of 100,000 defensive gun uses per year.

Finally, Barrett notes, “… other social scientists have suggested that perhaps a figure somewhere between 250,000 and 370,000 might be more accurate.”  In support of this statement, he cites a 1997 article by Tom W. Smith of the National Opinion Research Center, University of Chicago, in the Northwestern Journal of Criminal Law and Criminology, which is available here:

http://www.saf.org/lawreviews/smitht1.htm

So, what does this all mean in terms of the gun violence/control debate?

There is, of course, no way of knowing how many innocent lives are saved every year by these defensive gun uses.  Not every such use saves a life, but some assuredly must do so.  What percentage?  5%?  10%?

One gun rights source, Second Amendment Sisters, in an article entitled “Nine Myths About Gun Control”, estimates 20%. See the concluding sentence of the discussion of Myth #1 in this article here:

http://rense.com/general76/mths.htm

This estimate, in turn, is based on the 1994 article “Guns in the Medical Literature — A Failure of Peer Review” by Edgar A. Suter, MD, in the Journal of the Medical Association of Georgia, which is available in full here:

http://www.rkba.org/research/suter/med-lit.html#abstract

Dr. Suter observes, correctly in my opinion, that:  “The true measure of the protective benefits of guns are the lives saved, the injuries prevented, the medical costs saved, and the property protected ….” by defensive gun use.

Gary Kleck’s analysis of defensive gun use notes that:  “Each year about 1500-2800 criminals are lawfully killed by gun-wielding American civilians in justifiable or excusable homicides, far more than are killed by police officers.”

So, for purposes of this discussion, let’s use the lowest estimate of defensive gun uses per year, the NCVS estimate of 100,000.  And let’s assume that only one in ten of such uses saves an innocent life.  In that case, the total number of lives saved is 10,000, at a cost of between 1500-2800 dead bad guys.  Sounds like a pretty fair trade off to me.

Furthermore, it also means that every year guns save nearly as many innocent lives as they take … and that’s a low estimate.  If we use the “more accurate” estimate of 250,000 to 370,000 defensive gun uses per year, guns are saving upwards of three times as many innocent lives as they are taking.

What this means in terms of the gun control debate is this — the more we restrict access by law-abiding citizens to self-defense firearms, the fewer innocent lives those citizens and their firearms will save.  And, since it seems likely that most crooks won’t any more attention to stricter gun control laws than they currently pay to the existing gun control laws, the relative rate of innocent lives lost compared to those saved will rise.  In other words, the stricter the gun control, the higher the relative loss of innocent lives.

All of which says nothing about the other “protective benefits of guns” — “the injuries prevented, the medical costs saved, and the property protected“.

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Self-Defense in Case of a National Emergency

Earlier today, I posted on Facebook a comment about the recent Public Service Announcement by Milwaukee County WI Sheriff David Clarke in which he urged citizens to arm themselves for self-protection.  In this PSA, Sheriff Clarke said:

“You can beg for mercy from a violent criminal, hide under the bed or you can fight back.  But, are you prepared?  Consider taking a certified safety course in handling of firearms so you can defend yourself until we get there.  You have a duty to protect yourself and your family.

Sheriff Clarke’s full 32 second PSA is available here:

http://www.youtube.com/watch?v=-8TCx-sM1vw

My comment about this announcement is here:

http://www.facebook.com/jamest.reilly.3

I said:

“If you think that the government — national, state or local — will always be able to protect you in an emergency, just ask the folks in New Orleans. And, even if it is a personal emergency only (such as a home invasion), how quickly do you think the local cops will get there to rescue you? Ten minutes? Five? Two? Too late in any event. Your personal safety is your personal responsibility. Have a family? They are your responsibility, too. Not the government’s. Not the local sheriff or chief of police. You are your family’s first line of defense and, perhaps, the last as well.”

In the U.S. government’s assessment of its own response to the Hurricane Katrina disaster in New Orleans, it was noted that:

“Almost immediately following Hurricane Katrina’s landfall, law and order began to deteriorate in New Orleans. The city’s overwhelmed police force–70 percent of which were themselves victims of the disaster—did not have the capacity to arrest every person witnessed committing a crime, and many more crimes were undoubtedly neither observed by police nor reported. The resulting lawlessness in New Orleans significantly impeded—and in some cases temporarily halted—relief efforts and delayed restoration of essential private sector services such as power, water, and telecommunications.”

This comment appears in the section of the report entitled “Critical Challenge: Public Safety and Security”.  The report in full is available here:

http://georgewbush-whitehouse.archives.gov/reports/katrina-lessons-learned/chapter5.html

In this regard, of course, New Orleans in the aftermath of Hurricane Katrina is not unique.  Any time there is a breakdown in civil order, crime is increasingly prevalent as civil disorder increases.  And, all too often, in the midst of such civil disorder, governmental authorities, including law enforcement officials, will simply not be available to protect most citizens.  As Sheriff Clarke says, “You have a duty to protect yourself and your family.”  If the bad guys have guns and you don’t, it is going to be difficult or impossible for you to fulfill that duty.

In a 2012 “Mass Violence & Emergency National Training Conference” program entitled “Dealing with Secondary Crime Arising from Mass Casualty Events”, several key points are addressed:

1)  During major disasters (“Mass Casualty Events” or MCEs), people are more vulnerable, local law enforcement officers are distracted or overwhelmed, and criminals can exploit the situation.

2)  As a result, property crimes, including looting, are common.

3)  Regarding Hurricane Katrina in particular, “a growing body of evidence suggests there were more storm-related sexual assaults than previously known.

4)  “Disasters contribute to a significant increase in domestic violence, including acts such as domestic-related criminal homicide, rape, aggravated assault, stalking, and violent threats or intimidation.”

5)  “An increase in human trafficking often comes in the wake of a natural disaster.”

6)  The incidence of hate crimes can rise after a major disaster:  “Post-disaster hate crimes have consisted of telephone, internet, mail, and face-to-face threats; minor assaults as well as assaults with dangerous weapons and assaults resulting in serious injury and death; and vandalism, shootings, arson and bombings directed at homes, businesses, and places of worship.”  (emphasis added)

The complete slide presentation for this program is available here:

https://ncjtc.org/CONF/Ovcconf/AttMat/Dealing%20with%20Secondary%20Crime_Crimando.pdf

In short, during a major disaster, you are more likely to become a victim of crime, including violent crimes like rape, aggravated assault, arson and murder, than at other times.  At the same time, local law enforcement is being overwhelmed by the demands of the disaster.  Meaning that those upon whom you might otherwise depend to protect yourself against increased crime are simply not available to do so.  At such times, more than ever, you have a duty to protect yourself and your family.  How are you going to do so?

And what happens in the event of a more generalized breakdown in civil order.  Localized disasters, such as Hurricane Katrina, are bad enough.  But what happens in the event of a more widespread disaster?

In an earlier post about gun control …

https://freelegaladvice.wordpress.com/2012/12/29/what-now-for-the-second-amendment-gun-control/

… I referred to the book One Second After by William Forstchen, in which the author fictionalized what might happen in the US in the aftermath of an electromagnetic pulse (EMP) attack.  For those unfamiliar with EMP, such an event could conceivably shut down all electricity supply in large portions of the US.  That would mean no electrically operated devices would work — some obvious examples, computers, televisions, radios and telephones.  Less obvious examples, refrigerators & freezers, microwave ovens, washers & dryers, both interior and exterior lighting, and even most modern motor vehicles (the engines of which are operated by electrical commands).

Forstchen’s book focuses on how one American community in North Carolina deals with the consequences of an EMP attack.  And makes clear just how important having firearms for self-protection would be in the event of such an attack.

See Forstchen’s website for detailed discussions of EMP and how to prepare for such an attack:

http://www.onesecondafter.com/

In the section of this site entitled “Preparing for EMP” …

http://www.onesecondafter.com/pb/wp_194d9c9d/wp_194d9c9d.html

… Forstchen says:

You are on your own … for weeks, maybe months.   Those of you living in Louisiana, Mississippi and coastal Texas know what I mean.  Don’t count on the government to come to your rescue in a post EMP America.  Consider yourself on your own from “one second after,” the event.  Those who realize that now have the greatest chance of survival.”

With respect to personal security, Forstchen says:

“This is a tough one to discuss.  In 1999 I kinda chuckled at some friends who were convinced Y2K was going to wipe us out and I think were slightly disappointed when it did not. I am not some right wing gun fanatic who sees conspiracies lurking round every corner, but I do take personal security seriously. This is a personal choice you will have to make on your own, I can’t advise other than to say this:

“There is a percentage of our population who will view a post EMP world as a paradise, where their system of survival, their personal greed, their willingness to use any means possible to survive will come to the fore. Yes, it is a plot point of the novel, but it is also a harsh reality. There are places in this world, at this very moment, where someone would kill you for a can of food. Someday, that could be America.   

“If you do not own a gun but should decide to do so now, please get the proper training.  I was fortunate in that my father was a firearms instructor during WWII and my training from him was the best, a training I have passed on to my daughter.  Always remember the valid statistics that a weapon in your house is an increased danger to you and your family, especially without proper training of all family members and not just yourself, but on the other side, it might be the crucial factor of survival in a post EMP world.  If you are unfamiliar with firearms but decide to purchase one, talk to the experts, you will find your local police are great guys to point you in the proper and safe direction.  I have a permit to carry a concealed weapon.  I know that in some areas you cannot obtain that. If you can, the training to get the permit is superb and again crucial to your own safety and that of your family and does insure that your having a loaded weapon on you is legal.”  (emphasis added)

And, if you think his book is science fiction and farfetched, see the Wikipedia 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/

The possibility of an EMP event and the potential consequences thereof are science fact, not science fiction.

And keep in mind that an EMP event can also result from natural occurrences, such as a major solar flare, and not just as a result of a nuclear attack.  The website “Disaster Survival Resources” …

http://www.disaster-survival-resources.com/emp.html

… provides a relatively minor example of what can happen as a result of a solar flare:

“On March 13th, 1989 a huge solar induced magnetic storm that played havoc with the ionosphere, and the earth’s magnetic field. This storm, the second largest storm experienced in the past 50 years, totally shut down Hydro-Quebec, the power grid servicing Canada’s Quebec province.”

As we grow increasingly dependent on electronically controlled devices, we also become increasingly vulnerable to the adverse effects of an EMP event.  And, having the ability to protect ourselves in case of such an event becomes increasingly important.

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Conclusion

You have a right to defend yourself, your home and your loved ones.  You have that right today, tomorrow and every day thereafter … and under all circumstances.  You cannot know in advance when it may become necessary for you to do so, either against a routine criminal assault or during a localized or national emergency.

In fact, as noted by Sheriff Clarke, you not only have a right to defend yourself, your home and your loved ones, “You have a duty to protect yourself and your family.”

Do not allow the government to impair your ability to fulfill that duty by diluting or eliminating your 2nd Amendment right to “keep and bear arms” … or by restricting that right in such a way as to make it impossible to effectively use those arms should it become necessary to do so.  Do not succumb to the fear-mongering of those who would disarm you, or unduly restrict your ability to use your weapons, in the name of “public safety”.

Ongoing Debate re 2nd Amendment & Gun Control


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My earlier post here “Dispelling the Myth that More Guns = More Murders” …

https://freelegaladvice.wordpress.com/2013/01/14/dispelling-the-myth-that-more-guns-more-murders/

… generated considerable discussion among my West Point classmates.  One of them, John Douglas, is also an attorney with whom, on political issues, I more often than not agree.  On this subject, however, he disagrees with both my interpretation of the language of the 2nd Amendment to the U.S. Constitution … discussed in detail at …

https://freelegaladvice.wordpress.com/2012/12/29/what-now-for-the-second-amendment-gun-control/

… and my position on gun control.

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The “plain language” of the 2nd Amendment

In response to my comment that proponents of gun control demonstrate an “inability or unwillingness to read and comprehend the plain language of the 2nd Amendment”, John replied:

… the 2d Amendment has a contradictory construction, a tortured legal history and is notably devoid of “plain language.” The Amendment (in the version ratified by the States) reads, “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.”  According to gun rights advocates, this Amendment that speaks so highly of regulation clearly prohibits regulation of guns.  Hmmm.  Whatever it might have meant back then or should mean now, “the” meaning is hardly “plain”.

As I have said previously, I believe that the introductory clause to the 2nd Amendment is just that — an introduction which explains the reason for the right which is protected in the second clause, “the right to bear arms”.  The fact that the introduction refers to a “well-regulated militia” implies regulation of the militia (that is, the body of non-military citizens who can be organized, if necessary, for military service), not a limitation on the rights of the individuals who comprise that militia.

I replied to John:

In any event, the “tortured” historical interpretation of the 2nd Amendment came to be only because representatives of the government contorted what is, on its face, clear and unequivocal, so as to make it possible for the government to impose controls which would otherwise have been impermissible.

A detailed explanation of my “plain language” interpretation of the amendment is here:

https://freelegaladvice.wordpress.com/2013/01/04/more-on-the-2nd-amendment-and-gun-control/

John then responded:

I don’t think the tortured history of the Second Amendment is due to ‘contortions by representatives of the government’, but is rather due almost entirely to the amendment’s obtuse wording.  I’m told the former headquarters of the NRA had on the side of the building: ‘THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED.’  That is, of course, only half the amendment.  So far as the NRA and like-minded folk were (and mostly are) concerned, that’s the whole amendment.  Except it isn’t.

The next most important factors in the tortured history would be the historical evolution of gun ownership in the US and the role of gov’t here.  In our early years, the federal gov’t’s role with guns was not particularly controversial.  Early on it mandated musket ownership by all military age males AND regulated that (by requiring regular musters for inspections of the muskets & registration of the same).  Despite what some now argue about prohibitions on regulations on ownership, our Founding Fathers actually altogether prohibited some classes of people from owning guns (such as slaves and even white males who refused to swear allegiance to the country).  We have had many changing alliances and understandings regarding the roles of guns in our society (particularly those that followed the upheaval of the Civil War), which have accompanied the evolving and multifaceted interpretations of the 2d Amend.  The short of it is that neither the wording of the Second Amendment nor the varying historical understandings of it are ‘plain’ or simple.

1792 Militia Act:  It is true that in 1792, Congress passed a law essentially requiring, with some exceptions, all able-bodied white male citizens and residents between the ages of 18 and 45 to acquire and maintain a musket, related supplies and other military equipment.  This law was poorly and unevenly enforced and did not, in fact, prohibit ownership of guns by slaves;  it simply did not require them to have guns.  Restrictions on gun ownership by slaves were imposed in the slave-owning states, but not by federal law.  Of course, under the constitution, slaves were not considered citizens (or even “whole” people, counting as they did under the constitution as only “three-fifths” of a person each), so would not have been covered by the 1792 militia act in any event.

Commentary by St. George TuckerA good indication of what the 2nd Amendment “plainly” meant can be ascertained from the early legal commentaries on the subject.  The earliest known such commentary was written in 1803 by St. George Tucker, whose annotated five volume edition of Blackstone’s Commentaries on the Laws of England contained the observation that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law:

The right of the people to keep and bear arms shall not be infringed … and this without any qualification as to their condition or degree, as is the case in the British government ….”  (emphasis added)

Tucker went on to express the hope that Americans “… never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.”

Commentary by William RawleIn 1825, William Rawle, in A View of the Constitution of the United States of America, characterized the second clause of the Second Amendment as a general prohibition against government control of private gun ownership, saying:

No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

Rawle’s comment is particularly interesting in its suggestion that the 2nd Amendment could be relied upon to restrain state laws infringing on the right to bear arms.  This comment presaged the limitation on state power ultimately included in the due process clause of the 14th Amendment, which was not passed until 43 years later.  Section 1 of the 14th Amendment provides in part, “… nor shall any State deprive any person of life, liberty, or property, without due process of law”.

Commentary by Joseph Story:  In 1833, Joseph Story published his Commentaries on the Constitution. As expressed in those “commentaries”, his view the meaning of the Amendment was clear (and “plain”):

The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.  (emphasis added)

In short, one of the primary purposes of the 2nd Amendment was to enable the people to protect themselves, if necessary, against the government.  That objective can hardly be accomplished if the government has the power to constitutionally infringe on the right of those same people to bear the arms needed for that very protection.

It was not, in fact, until after the American Civil War and on into the 19th century that legal scholars and commentary began to call into question whether the 2nd Amendment provided an individual right to bear arms or merely a “collective” right of the people to maintain an armed militia.

And that question, of course, was finally answered by the U.S. Supreme Court in its 2008 decision in  District of Columbia v. Heller, 554 U.S. 570 (2008), the full text of which can be seen here:

http://www.law.cornell.edu/supct/search/display.html?terms=heller&url=/supct/html/07-290.ZS.html

In this decision, the Supreme Court held that the 2nd Amendment does protect an individual right to possess firearms unconnected with service in a militia;  that such weapons may be used for “traditionally lawful purposes”, such as self-defense;  that the first clause of the 2nd Amendment “announces a purpose”, but does not limit the second and operative clause of the amendment;  and that the text and history of the phrase “the right of the people to keep and bear arms shall not be infringed” indicates “an individual right to keep and bear arms”.

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The effects of gun control

John Douglas also took exception to my discussion of the statistical evidence regarding the effects of gun control, saying:

I am also immediately turned off when a gun rights advocate attacks statistics on the effects of gun control with the ‘there is no evidence’ chain of reasoning.  One of the reasons we have limited evidence on the effects of gun possession in the US is the NRA’s successful stifling of research in the area – and, indeed, in the very collection of data upon which research might be done.  At the peak of gun violence in the early 90s, research results were released showing the higher death rates in homes with guns.   (emphasis added)

John then cited two studies funded by the Centers for Disease Control in support of that conclusion, studies the results of which are available at:

http://www.nejm.org/doi/full/10.1056/NEJM199310073291506#t=article

and

http://www.nejm.org/doi/full/10.1056/NEJM199208133270705

The first of these studies addressed homicides in three American counties (Shelby County, TN;  King County, WA;  and Cuyahoga County, OH) during the years 1987 through 1992.  This study notes that more than 24,000 homicides were being committed across the country every year, indicating that approximately 120,000 homicides were committed during the five years addressed by the study.  However, the study actually considered just 420 homicides, or roughly 1/3 of 1% of the total U.S. homicides committed during those years.

Regarding the 420 homicides that were considered, the study noted:

Two hundred nine victims (49.8 percent) died from gunshot wounds. A knife or some other sharp instrument was used to kill 111 victims (26.4 percent). The remaining victims were either bludgeoned (11.7 percent), strangled (6.4 percent), or killed by other means (5.7 percent).

The study ultimately concluded that there was an increased risk of homicide in the home if guns were present (though it is readily apparent that even without guns, if people wanted to kill other people in their homes, there were a variety of other effective means available for that purpose).  However, the study also concluded that there were other factors which were “strongly and independently associated with an increased risk of homicide in the home”, including rental rather than ownership, living alone, previous violence in the home, previous arrest of any resident of the home and drug use in the home.

In fact, four of these five other factors were found to have created a greater increased risk of homicide in the home than did the presence of guns. Use of drugs created an increased risk of homicide that was more than double that of the presence of guns in the home;  previous violence and living in a rental home each created a risk of homicide in the home 63% greater than the presence of guns;  and living alone created a risk of homicide in the home 37% greater than the presence of guns.  The only characteristic that created a lesser increased risk of homicide in the home than the presence of guns was the prior arrest of a resident in the home.

The sample in this study was so small as to be virtually meaningless in the big picture of gun violence and control.  Nevertheless, if taken at face value, it indicates that it is more important, in terms of reducing homicide in the home, to control drug use and violence in the home than it is to control the presence of guns.  In fact, if governmental policy is to be based on this type of statistical analysis, it would also appear to be more important to prohibit people from living alone or renting homes than it is to control the presence of guns.

In other words, this study isn’t very helpful in determining whether or not increased gun controls are useful in preventing homicides in the home or generally.

The second of the two studies John cited addressed 554 in-home suicides in two counties (Shelby County, TN, and King County, WA) over a 32 month period from 1987 to 1990.  Of these suicides, approximately 58% were committed using firearms.

While this study found an increased risk of suicide based on a gun being kept in the home, four other factors were found to have an even higher correlation to increased risk of suicide than the presence of a gun.  Use of prescribed psychotropic medication created an increased suicide risk 7.5 times that created by the presence of a gun; previous hospitalization for alcohol use more than three times;  use of drugs more than double;  and living alone slightly higher than the presence of a gun in the home.  Even failing to graduate from high school had a correlation to an increased risk of suicide that was almost equal to that created by the presence of a gun in the home.

In short, this study is even less useful than the other in determining whether or not greater government control of guns would be appropriate or effective at achieving the desired goals of gun control.

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A straw man argument?

John also took exception to my discussion on another ground:

Finally, and perhaps most egregiously, you set up a straw man argument and, not surprisingly, defeat it, when you claim that gun control advocates are asserting that an increase in the number of guns – irrespective of all other variables – leads to an increase in crimes, especially murder.

To which I say, anyone who contends that reducing the number of guns in the possession of law-abiding citizens will reduce violent crime and murder is also necessarily claiming that an increase in the number of guns will have the opposite effect.  If you don’t contend that reducing the number of guns in the possession of law-abiding citizens will reduce violent crime and murder, then what is the purpose of imposing new laws and regulations designed to accomplish that goal?

John added:

I’m sure there are a few ill-informed fringe gun control advocates who think that way, but no reasonable proponents do.  We all have to recognize that violence levels have many causes. 

And to that I say, exactly.  And that is in fact the primary point of my opposition to the reflexive response of so many that simply imposing stricter gun controls will substantially reduce or even eliminate violent crime.  Interestingly, the two studies cited by John above actually support the conclusion that there are other factors which are much more important, at least with respect to deaths in the home, whether homicides or suicides, than the mere presence in the home of firearms.

John also disagreed with the statistical analysis I presented in “Dispelling the Myth …”, suggesting that the best comparison regarding prevalence of guns and murder rates is not between the U.S. and countries such as Mexico and Honduras, but “comparable” countries like Canada (even though Canadians have no rights comparable to those granted to Americans by the 2nd Amendment).  He notes that Canada is 31st in “homicide rate” (below the U.S., which is 14th), while the U.S. has a homicide per 1000 guns rate that is  7 times that of Canada.

And yet, the overall homicide rate in the U.S. (4.8 per 100,000 people in 2010) is just 3 times that of Canada;  meaning, of course, that Canadians are easily finding other ways, in the absence of ready access to guns, to kill each other.  Just as Americans would if they did not have access to guns.

There are other considerations which must be accounted for in any comparison between the American and Canadian gun-related and overall homicide rates.  For example, while it is true that the homicide rate is higher in the U.S., the overall difference in the rate of violent crimes, including homicides, has decreased, as the rate of violent crimes dropped faster in the U.S., during the 1990’s and 2000’s, than it did in Canada.

Other factors have a significant impact on the relative homicide rates for reasons that are largely unrelated to access to or possession of guns.  The U.S. has more cities with large, concentrated populations, and cities almost invariably have higher murder rates than rural areas, even in countries with strict gun controls and relatively rare private gun ownership.  The U.S. also has substantially more and a higher rate of both gang activity and drug related crime than does Canada; each of these criminal activities contribute disproportionately to the rate of gun-related homicides.

Elimination of the “insane war on drugs” and adoption of social policies designed to reduce gang activity would each do more to reduce the “gun-related” homicide rate in the U.S. than any of the proposed “gun control” measures.

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Conclusion

John wrapped up his comments by saying:

As for the effects of gun control, I harbor no illusions that implementing even draconian restrictions would quickly alter our level of gun violence, since we are awash in guns and it would take decades to ‘drain the swamp’.  The modest restrictions on gun ownership that have been implemented here and there in the past, and that are likely in the future here, are mostly band-aids on a large open wound and will have at most a modest effect on gun violence.  To me, that’s sad, but that is the political reality. 

However, despite my pessimism on what can be done in the US, I stand by what I regard as the clear balance of evidence in regard to the relationship between the level of violence and the prevalence of guns.  When you compare countries with comparable levels of development and comparable social structures, the ones with much lower levels of gun ownership have much lower levels of gun violence.

And I stand by my own analysis in this regard, though I have to agree with the ultimate extrapolation of John’s concluding comment.  That is, there can be no doubt that if there were no guns in the U.S., there would be no gun violence in the U.S.  That, however, is not really the point, as we are never going to have a society in which there are no firearms, nor would or should we want to have such a society.

Furthermore, neither I nor John have addressed the issue of gun control from the perspective of those who have actually used guns in defense of themselves, their homes and their loved ones.

Or why and under what possible future circumstances the availability of firearms for such protection be desirable, if not essential, to the survival of not only individuals, but our society as a whole.

I will address both of these subjects in future discussions here.

Trashing the 1st Amendment in Arizona


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Right wing conservative legislators in Arizona have proposed a new law which would, in blatant violation of the 1st Amendment to the U.S. Constitution, require that high school students recite an oath of allegiance as a prerequisite to graduating from high school.  The legislation would require recitation of the following oath:

“I, _______, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge these duties; So help me God.

See Note 1 below for online news articles and commentary about this proposed legislation.

“Freedom of speech” including both the freedom to speak and the freedom not to speak, any requirement that a high school student recite an oath of allegiance in order to graduate is almost certainly unconstitutional as a violation of the 1st Amendment.

More significantly, and the primary point of the controversy over the proposed legislation, is that  the requirement that students invoke “god” in the oath clearly violates the 1st Amendment’s freedom of religion clause.

As a reminder, here is what the 1st Amendment says:

          Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Proponents of this proposed oath can draw no support from the Ninth U.S. Circuit Court of Appeals decision in Newdow v. Rio Linda Union School District, in which the phrase “under god” in the Pledge of Allegiance was upheld in a 2-1 ruling.  The majority opinion in that case, by Judge Carlos Bea, said:

          We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge—its wording as a whole, the preamble to the statute, and this nation’s history—demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase “one Nation under God” does not turn this patriotic exercise into a religious activity.

See Note 2 below for the full text of the Newdow decision.

Significantly, however, this ruling was predicated, in significant part, on the fact that the practice involved, teacher-led recitation of the Pledge of Allegiance, was required only of “willing” students.  The ruling was therefore consistent with other Circuit Court decisions upholding similar practices in Virginia and Illinois.  The statutes in each of those states allowed any student who objected to reciting the pledge to sit or stand silently.

See Note 3 below for the Virginia and Illinois cases citations.

As noted by Judge Stephen Reinhardt in his Newdow dissent, even this option should not have saved the school policy:

          Were this a case to be decided on the basis of the law or the Constitution, the outcome would be clear. Under no sound legal analysis adhering to binding Supreme Court precedent could this court uphold state-directed, teacher-led, daily recitation of the “under God” version of the Pledge of Allegiance by children in public schools. It is not the recitation of the Pledge as it long endured that is at issue here, but its recitation with the congressionally added two words, “under God”words added in 1954 for the specific religious purpose, among others, of indoctrinating public schoolchildren with a religious belief. …  Only a desire to change the rules regarding the separation of church and state or an unwillingness to place this court on the unpopular side of a highly controversial dispute regarding both patriotism and religion could explain the decision the members of the majority reach here and the lengths to which their muddled and self-contradictory decision goes in order to reach the result they do.

          To put it bluntly, no judge familiar with the history of the Pledge could in good conscience believe, as today’s majority purports to do, that the words “under God” were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one: “to recognize the power and the universality of God in our pledge of allegiance;” to “acknowledge the dependence of our people, and our Government upon the moral direction and the restraints of religion,” … and to indoctrinate schoolchildren in the belief that God exists. Nor could any judge familiar with controlling Supreme Court precedent seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young children either to profess a religious belief antithetical to their personal views or to declare themselves through their silence or nonparticipation to be protesting nonbelievers, thereby subjecting themselves to hostility and ridicule.  (emphasis added and citations omitted)

In any event, it is clear that even under the rulings in Newdow, Myers & Sherman, the proposed Arizona legislation, which provides no exception for those who object to the final clause of the oath and which prevents an objector who declines to recite the oath from graduating, would be unconstitutional.

Regarding the lack of an exception for conscientious objection to the oath, one of the sponsors of the bill, freshman Republican representative and Tea Party member Bob Thorpe,  said, “In that we had a tight deadline for dropping our bills, I was not able to update the language”.  Which is all well and good, except I can’t help wondering why it is that “the language” wasn’t properly — and constitutionally — crafted in the first place.  Are representative Thorpe and his co-sponsors — Republican representatives Sonny Borrelli, Carl Seel, T.J. Shope, Jeff Dial, David Livingston, Chester Crandell and Steve Smith — all really that ignorant of the law and the constitution that they couldn’t have written this bill correctly and constitutionally in the first place?

Thorpe also said,Even though I want to encourage all of our students to understand and respect our Constitution and constitutional form of government, I do not want to create a requirement that students or parents may feel uncomfortable with.”  In that case, Mr. Thorpe, perhaps you should withdraw your ill-considered and unnecessary proposal.

Finally, as noted by Comedy Central’s Ilya Gerner, “Nothing says ‘I take this obligation freely’ quite like a state law that withholds your diploma unless you swear an oath”.  Maybe Arizonans should consider electing Gerner, who appears to have a better understanding of the law than their current representatives, to their state legislature.

See Note 4 below for Gerner’s “Comedy Central’s Indecision” blog post.

A personal aside:  I was a 9 year old elementary school student when the Pledge of Allegiance was modified on June 14, 1954, to add the words “under god”.  Although I did not speak out against the change then, as I would now, I soon after adopted the practice of omitting those words each day when we recited the pledge, and have continued doing so to this day. 

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Note 1:  For news article about this proposed legislation, see these websites:

http://current.com/groups/news-blog/94031387_arizona-bill-would-require-loyalty-oath-for-high-school-graduation.htm

http://www.theblaze.com/stories/2013/01/26/arizona-bill-would-require-hs-students-to-swear-constitutional-oath-under-god-to-get-their-diplomas/

For a commentary about this proposed legislation from the atheist perspective, see this article on the website “Friendly Atheist”:

http://www.patheos.com/blogs/friendlyatheist/2013/01/25/arizona-republicans-propose-bill-that-would-not-allow-atheists-to-graduate-high-school/

Note 2:  For the full text of the Ninth Circuit Court of Appeals Decision in Newdow v. Rio Linda Union School District, see:

http://scholar.google.com/scholar_case?case=11662288665673910405&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Note 3:   The Virginia case referred to above is Myers v. Loudoun County Public Schools.  The full text of the opinion in this case is available here:

http://scholar.google.com/scholar_case?case=1292322060893856606&hl=en&as_sdt=2,5&as_vis=1

The Illinois case referred to above is Sherman v. Community Consolidated School District 21 of Wheeling Township.  The full text of the opinion in this case is available here:

http://scholar.google.com/scholar_case?case=17988630665576858060&hl=en&as_sdt=2,5&as_vis=1

Note 4:  For Ilya Gerner’s “Comedy Central’s Indecision” blog post about this proposed legislation, see:

http://www.indecisionforever.com/blog/2013/01/23/arizona-legislators-propose-loyalty-oath-for-high-school-graduation

“Lies the Government Told You”


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I just finished listening to the audio book, “Lies the Government Told You” by former New Jersey Superior Court Judge Andrew P. Napolitano and highly recommend it.  In fact, this is a book that every American should read (or listen to the audio version of).  In it, Judge Napolitano discusses the many ways in which the US federal government has deceived and continues to deceive the American People as it arrogates unto itself more and more power, diminishing in the process both individual liberties and the power of the states.

Judge Napolitano concludes his compelling discourse with a bold and detailed statement of what We The People must do to rectify this situation and reverse the federal government’s ongoing and increasing power grab.  To whet your appetite, I am going to quote the concluding paragraphs of the book in full:

We will need a major political transformation in this country to rid ourselves of persons in government who kill, lie, cheat, and steal in our names. We will need to recognize some painful truths.

First, we must acknowledge that through the actions of the government we have lost much of the freedom that we once all thought was guaranteed by the Constitution, our laws, and our values. The lost freedoms have been cataloged in this book and need not be restated here. In sum, they are the loss of the primacy of the individual’s inalienable rights and the concept that government is limited in its powers. We have lost the diffusion of power between the states and the federal government. We have lost a federal government that stays within the confines of the Constitution.

Second, we must recognize that we do not have a two-party system in this country; we have one party, the Big Government Party. There is a Republican version that assaults our civil liberties and loves deficits and war, and a Democratic version that assaults our commercial liberties and loves wealth transfers and taxes.

Third, we must acknowledge that there is a fire in the bellies of millions of young people who reject both wretched visions of the Big Government Party. These millions of young folks need either to form a Liberty Party or to build on the libertarian base in the Republican Party by banishing Big Government conservatives, neocons, and so-called social conservatives who want to use government to tell others how to live their lives back to the Democratic Party from whence they came.

Then we need a political fever that consumes the careers of all in government who voted for the Patriot Act, the illegal wars in Iraq and Afghanistan, the TARP and stimulus programs, the federal takeover of education, spying on Americans without warrants, and all other unconstitutional monstrosities that have tethered lovers of liberty to Washington, D.C.

We should abolish the federal income tax, prohibit eminent domain, impose term congressional limits, make Congress part-time, return the power to elect senators to State legislatures, abolish the Federal Reserve system, and prosecute for malfeasance any member of Congress who cannot articulate where the Constitution authorizes whatever he or she is voting for or who has voted for any law that he has or she has not certified under oath that he or she read and fully understands. And we must reject the nice smiles and easy ways and seductive promises of anyone in government who lies to us.

The Big Government Party crowd is obviously not afraid of lying or being caught in a lie. Its members do not fear their own lawlessness or our loss of freedom. They only fear the loss of their own power. So let’s use that fear against them. Jefferson understood and articulated this best when he wrote: “When the people fear the government, there is tyranny. When the government fears the people, there is liberty.”

If we fear our own government, if we accept its deceptions, its lies to us, if we take no action to redress them, our freedoms are doomed.

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For Judge Napolitano’s personal website, see here:

http://www.judgenap.com/

For Judge Napolitano’s biography, see here:

http://www.judgenap.com/bio/

The “Lies the Government Told You” page of the judge’s website is here:

http://www.judgenap.com/books/lies-the-government-told-you/

The Advocates for Self-Government on Guns & Gun Control


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For excellent articles presenting the Libertarian perspective on guns & gun control, see the current issue of The Liberator Online, published by The Advocates for Self-Government, here:

http://us2.campaign-archive1.com/?u=8f8d44f1fc10bd074f648a4de&id=f71e617efd&e=16f5dddde4

“Assault Weapons” Ban(d-aid)

Aside


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Following up on my previous post on this subject, which is at …

https://freelegaladvice.wordpress.com/2012/12/29/what-now-for-the-second-amendment-gun-control/

John R. Lott, Jr., in a January 17th Wall Street Journal article, provided an excellent review of the ineffectiveness of the so-called “assault weapons” ban of 1994:

http://online.wsj.com/article/SB10001424127887323468604578245803845796068.html

The long and the short of it is, that “ban” was worthless in accomplishing its supposed purpose.  Lott cites a 2004 study which concluded, “”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.”

Commenting on current proposals by President Obama and Senator Diane Feinstein to once again ban “assault weapons”, Lott echoes a point I made in my earlier blog post linked above, stating, “… they continue to mislabel the weapons they seek to ban.”

As I said in that earlier post, there really is no such thing as an “assault weapon” and those weapons likely to be “banned” by any new legislation are not truly “military-style” weapons at all.  As Lott says, no self-respecting military would ever go into combat using the semi-automatic weapons available for sale to civilians.

“Assault weapons” were defined in the 1994 legislation based on appearance, rather than function.  Any weapon that does not require reloading after each shot is a “semi-automatic” weapon — which really means nothing more or less than that one pull of the trigger fires one bullet.  Which pretty much means every modern firearm, pistol, rifle or shotgun.

Unfortunately, neither the executive orders already signed by Obama nor whatever new “assault weapons” ban is ultimately enacted are likely to accomplish the desired goal of reducing or eliminating incidents of mass murder or even reduction of the murder rate in the US.

The reason, of course, is that neither the number of guns nor their accessibility to law-abiding citizens is the underlying cause of murderous incidents (the two most common motivators being mental illness and simple revenge).  Stricter gun control addresses neither of those motivators, nor any of the other social factors which often play into handgun murders (such as gang violence, drug turf wars, armed robberies and other possession/use of firearms by criminals).

Dealing with gun related murders by enacting an “assault weapons” ban or otherwise imposing stricter gun control laws is analogous to treating a gunshot wound by taping a band-aid across the entry point and ignoring the internal damage caused by the bullet.

Dispelling the Myth that More Guns = More Murders


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Aside from their inability or unwillingness to read and comprehend the plain language of the 2nd Amendment to the US Constitution, proponents of more restrictive gun control laws rely on a bald-faced lie to support their efforts to disarm law-abiding citizens.

That lie, of course, is the claim that possession of more guns  by private, law-abiding citizens results in more violent crime and, in particular, more murders … and the corollary thereto, that reducing the number of guns in the possession of such citizens will reduce violent crime and murder.

Despite the strident bleating of gun control advocates, the truth of the matter is that denying law-abiding citizens access to firearms does not result in a decrease in murders or other violent crimes.  In fact, world-wide statistics demonstrate conclusively that the opposite is true.

It is understandable that mass murders like those at Sandy Hook Elementary School in Newtown, Connecticut, arouse the passions … and fears … of, well, just about everyone.  Nevertheless, public policy ought not be driven by the irrational fears generated by such aberrational events.  And make no mistake, mass murder in the US is aberrational.

Gun control advocates cite in support of their efforts to impose new restrictions on personal gun ownership the fact that the US has the highest number of guns per person of any country in the world and that the homicide rate in this country is the highest in the world.  The first of these claims is true;  the second is demonstrably false.  Some gun control advocates are more honest (and more accurate), claiming only that the US has the highest murder rate among “western countries” (also false), or among “developed nations” (also false), or at least that it is higher than the counties of Europe which have strict gun controls (which is largely, though not entirely, true).

The problem with all of these claims, even with respect to those countries which have stricter gun controls and a lower murder rate, is that it fails to properly correlate the two key statistics (number of guns and number of murders) and also fails to take into consideration other factors which are essential to a full and complete understanding of the gun control issue and what, if anything, should (and can constitutionally) be done about it.

So, what are the true facts about gun ownership and murder rates around the world?

First, it is true that the US has the world’s highest per capita ownership of firearms.  As of 2007, Americans owned, on average, nearly one firearm each;  or to be more precise, 88.8 firearms per 100 residents.  In fact, Americans own, on average, more than twice as many guns per person as the citizens of all but three other countries in the world.  See note 1 below.

Second, and on the other hand, the US ranks only 14th in the world in number of firearms related homicides (at 3.7 per 100,000 population per year).  This is not even the highest rate on the North American continent (Mexico coming in at 10.00, despite having only roughly 1/6 the number of guns per person as the US).  See Note 2 below. 

Third, and more significantly, when considering intentional homicides by all means, the US ranks 102nd out of 206 countries in the world (as of 2012).  The intentional homicide rate in the US is approximately 4.8 per 100,000 population per year.  This is less than 1/20 of the intentional homicide rate of the country with the highest rate in the world (Honduras at 91.6).  Honduras, by the way, has less than 7% of the number of guns per person as the US.  See Note 3 below.

Other “western” or “developed” countries with higher intentional homicide rates than the US include Mexico and Greenland, as well as virtually every country in Central & South America and the Caribbean.  It is true that most European countries, including all of those in Western Europe, have lower intentional homicide rates that the US.

Nevertheless, these statistics alone belie the claim that more guns equal more murders.  Otherwise, the US, which has nearly twice as many guns per capita as any other country, would also have twice as many intentional homicides per capita as any other country.  Not even close.

However, to truly evaluate the claim that “more guns = more murders”, there is one more correlation which must be considered — that is, the rate of homicides per firearm in each country.  Finding this statistic proved elusive.  In fact, I could not find it anywhere, so had to do the calculations myself.   I had what I considered sufficient statistics for 173 countries and the chart I produced is here:

Murders per 1000 guns

Now, if “more guns = more murders” and “fewer guns = fewer murders”, then the countries of the world which have the highest per capita gun ownership should have the highest per gun murder rates.  As you can see by reviewing my chart, this is not only NOT true, there is a very strong NEGATIVE correlation.  That is, for the most part, the countries with the highest per capita gun ownership tend to have the lowest per gun murder rates!

The US, with by far the most guns and the highest per capita gun ownership, ranks 81st in the world, averaging 146.35 murders per 1000 guns.  None of the other top 16 countries in the world in per capita gun ownership ranks in the top 100 in murders per gun — see list here:

Top 16 Countries in Per Capita Gun Ownership with Ranking in Murders per 1000 Guns

On the other hand, of the 15 countries with the highest murder rates, only one (Brazil, which is 12th in murders per 1000 guns and 75th in gun ownership) is in the top 100 countries in the world in terms of highest gun ownership.  Every other country with the 14 highest murder rates per 1000 guns ranks 102nd or below in gun ownership.

The only logical conclusion to be drawn from these facts is that it is neither the presence nor absence of guns which determines the rate at which people will kill each other.  There are obviously other factors involved, but what these facts unequivocally do show is that when people want to kill other people, they will find a way to do so, even if they do not have ready access to firearms.

Furthermore, the aberrational occurrence of mass or spree murders correlates with neither the rate of gun ownership nor the normal murder rates per gun or per capita.

The worst mass murder in modern history (not counting, of course, state sanctioned or military mass murders, a wholly different subject) occurred in the country which ranks 164th in murders per 1000 guns and which otherwise has a murder rate of just 0.6 per 100,000 people.  This, of course, was the 2011 killing of 77 people in Norway, 69 of whom were shot by firearms and 8 of whom were killed by a bomb.  The nut-ball who committed these murders, by the way, was a self-styled anti-Muslim militant, though his targets were not particularly Muslims.

The worst mass murder ever in an American school occurred in 1927 in Bath, Michigan, when 44 people, including 38 elementary school students, were killed by three bombs set off in the school.  This particular killer used no firearms at all.  Only the fact that most of the explosives he had placed in the school failed to detonate prevented a much higher death toll.

In the US, there are other factors involved in both the general and firearms murder rates, including “The Insane War on Drugs” and gang warfare problems.  The rate homicides resulting from these two issues are unlikely in the extreme to be reduced by further restrictions on the possession of firearms by law-abiding citizens.

Retired Texas Congressman Ron Paul, a nominal Republican but at heart a Libertarian, issued a statement after the Sandy Hook murders in which he said, in part:

“… 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. ”  (emphasis added)   See Note 4 below.

Americans of all political persuasions should take his words to heart.

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Note 1:  For the Wikipedia article “Number of guns per capita by country”, see:

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

Note 2:  For the Wikipedia article “List of countries by firearm-related death rate”, see:

http://en.wikipedia.org/wiki/List_of_countries_by_firearm-related_death_rate

Note 3:  For the Wikipedia article List of countries by intentional homicide rate”, see:

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

Note 4:  For the full text of Ron Paul’s statement, see his webpage here:

http://www.ronpaul.com/2012-12-25/ron-paul-seeking-total-security-leads-to-a-totalitarian-society/

Trashing the 1st & 2nd Amendments in Tennessee


.

James Yeager is the owner of Tactical Response, a weapons training center in Camden, Tennessee.  His business trains people in weapons use and tactical skills — a sign on door of the business warns that the staff is trained to kill.

In response to reports that the Obama administration might take executive action to impose additional restrictions on individual rights under the 2nd Amendment, Yeager posted a You Tube video in which he said, among other things, “I’m telling you, if that happens, it’s going to spark a civil war, and I’ll be glad to fire the first shot,”

In response to Yeager’s comments — and in blatant violation of both the 1st and 2nd Amendments — the Tennessee Department of Safety & Homeland Security suspended Yeager’s carry permit.  TDS&HS Commissioner Bill Gibbons said in a news release announcing the suspension, “The number one priority for our department is to ensure the public’s safety. Mr. Yeager’s comments were irresponsible, dangerous, and deserved our immediate attention. Due to our concern, as well as that of law enforcement, his handgun permit was suspended immediately. We have notified Mr. Yeager about the suspension today via e-mail. He will receive an official notification of his suspension through the mail.”

Perhaps the “number one priority” of the TDS&HS ought to be upholding the 1st and 2nd Amendments of the US Constitution.  And perhaps Commissioner Gibbons ought to be more concerned about upholding the oath of office he took upon assuming control of his department, in which he swore to “support the constitutions of Tennessee and the United States”.

This suspension is clearly and unequivocally a violation of Yeager’s 1st Amendment right to free speech.  As decided by the United States Supreme Court in the 1965 Brandenburg v. Ohio case, the government cannot punish an individual who engages in “inflammatory speech” unless it is directed to inciting, and is likely to incite, “imminent lawless action“.

Yeager’s comments were unquestionably “inflammatory”.  Nevertheless, they are constitutionally protected against punishment by the State of Tennessee by the 1st Amendment, as applied to the states through the 14th Amendment.

In Brandenburg, a per curiam (unanimous) decision, the court said, “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  (emphasis added)

Because comments were conditioned on uncertain future events (“if that happens”), they cannot be taken as “inciting or producing imminent lawless action” and cannot be “likely to incite or produce such action”.  As the Brandenburg court also noted, “The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.”  (emphasis added)

In unlawfully punishing Yeager for the exercise of his 1st Amendment rights, the state of Tennessee has also “infringed” on Yeager’s 2nd Amendment right “to keep and bear arms” — a constitutional “two fer”, if you will.

Yeager has since revised his You Tube video to remove some of the more inflammatory comments.  He is now referring all questions about the situation to his attorney and intends to pursue a legal review of his license suspension.

______________________________________

The Huffington Post article about Yeager’s diatribe is here:

http://www.huffingtonpost.com/2013/01/10/james-yeager-start-killing-people-obama-gun-policy_n_2448751.html

The MSNBC post regarding the suspension of Yeager’s handgun carry permit is here:

http://www.msnbc.msn.com/id/50429293

The Tennessee Department of Safety and Homeland Security website is here:

http://www.tn.gov/safety/

The Wikipedia article on Brandenburg v. Ohio (which discusses the Supreme Court 1st Amendment decisions on this issue which preceded Brandenburg) is here:

http://en.wikipedia.org/wiki/Brandenburg_v._Ohio

The Brandenburg decision is available on Justia.com here:

https://supreme.justia.com/cases/federal/us/395/444/case.html

More on the 2nd Amendment & Gun Control


 

My December 29th post “What Now for the 2nd Amendment and Gun Control?” …

https://freelegaladvice.wordpress.com/2012/12/29/what-now-for-the-second-amendment-gun-control/

… motivated a lengthy and somewhat contentious email conversation among my West Point classmates.  There are several aspects of that conversation which I will address in my blog over the next few days, starting with some perceptive and pertinent comments and questions by Terry Atkinson.

First, Terry commented:  The logic behind the belief that the 2d amendment’s protection of an individual’s right to own arms is limitless eludes me. If one truly believes that, as Jim states fairly unequivocally in his blog discussion, then it must follow that ‘arms’ such as M109 howitzers  enjoy the same protection as handguns or semiautomatic weapons. It seems to me, however, that the logic would also cover such weapons as nuclear weapons and, let’s say, B-1 bomber delivery systems. If, indeed, you all belief that, it seems to me that your logic fails the common sense test.  I can’t imagine any country that allows its citizens unfettered access to say nukes, thousand pound bombs, napalm canisters, sarin gas canisters, cobra gunships with flechette rockets, or any number of mass-killing weapons would last.

Actually, my “strict construction” view of the 2nd Amendment does not envision a “limitless” right to own weapons.  In fact, a strict construction reading of the amendment’s language makes clear that it does not apply to modern warfare weapons such as howitzers, nukes and bombers.

A thorough analysis of the 2nd Amendment requires a thorough review and understanding of the amendment’s language and what that language meant at the time it was ratified.  To be a “strict constructionist”, one must strictly construe the entirety of the particular constitutional provision being discussed.  Therefore, to respond to Terry’s first point, it is primarily necessary to understand what the term “to keep and bear arms” meant when the 2nd Amendment was ratified in 1791.

First and most important, what did the word “arms” mean at that time?  Historical commentary and arguments both for and against the adoption of this amendment make it clear that by “arms”, the author of the Bill of Rights (James Madison), and those who voted to ratify it, meant weapons that were neither designed for military use nor typically put to such use.  By “arms”, the amendment was intended to refer to personal weapons, such as pistols, rifles and shotguns.  It clearly was not intended to refer to military-style, 18th century artillery pieces and, by analogy, cannot now be thought to refer to the 21st century successors to such military weapons.

The phrase “to keep and bear” arms confirms this interpretation.  To “keep … arms”, of course, means nothing more than to be able to have them in one’s possession.  At the writing of the 2nd Amendment, “to bear” meant “to carry”.  Although that term is now somewhat archaic, it clearly refers to weapons which an individual could carry with him on his person.

Thus, the phrase “to keep and bear arms” meant (and means) that the government cannot infringe “the right of the people to have and carry personal weapons such as pistols, rifles and shotguns”.

This would currently exclude from constitutional protection such weapons as fighter aircraft, naval ships and weapons, artillery pieces, napalm, nukes & other bombs, as well as even such lesser weapons as 50 caliber machine guns, shoulder mounted rocket launchers, flamethrowers, hand grenades and most other military-style weapons.

The US Supreme Court holding in District of Columbia v. Heller, 554 U.S. 570 (2008), reached the same conclusions.  The court in Heller said that the previous Supreme Court decision United States v. Miller, 307 U.S. 174 (1939), did not “limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes”.  The court went on to find support for this conclusion in what it called the “historical tradition” of prohibiting the carrying of  “dangerous and unusual” weapons.

Terry’s second comment:  If you don’t believe that nukes and these other weapons enjoy the protection of the 2d amendment, then it seems to me you are recognizing a limitation to the amendment — a limitation that does not appear to be written into the ‘strict constructionist’s’ reading of the amendment. Logic then suggests that there ARE limits to the constitutional right based on ‘reasonableness’ or current conditions or changing societal mores or something. If true, it seems to me the issue is no longer whether the 2d amendment prevents the government from restricting arms ownership but rather a question of where the line of reasonableness is drawn. This, IMO, is an entirely different argument and one that I can understand.

As should be clear from my preceding comments, I do not believe that nukes and other military weapons are protected by the 2nd Amendment.  I disagree, however, with Terry’s conclusion that this implies a “limitation” on the 2nd Amendment’s protections.  Rather, my “strict construction” interpretation of that amendment is that such weapons were not then and were never intended to be covered by the 2nd Amendment.  A true “strict construction” of the amendment still leads to the conclusion that the government cannot infringe on “the right of the people to keep and bear arms”, within the original meaning of that language.  This reading has nothing to do with “reasonableness”, current conditions or changing societal mores.

Nevertheless, the end result is, with respect to military style weaponry, the same and it appears that Terry & I agree that the government can constitutionally restrict individual access to, or possession and use of, such weapons.

Terry’s third point was in the form of a question, and a very good one, at that:  Where in the 2nd amendment or constitution for that matter does it state that the rights stated therein do not cover persons who have committed crimes or are diagnosed with mental illnesses? My “strict interpretation” of the Constitution tells me that anyone can own a weapon whether they have a criminal past or not. Isn’t that right?

Answering this question requires further analysis — initially, what governmental action would “infringe” on the individual’s right to bear arms?  Or, in simpler terms, what did (does) the word “infringe” mean?

The oldest definition I can find is from Webster’s Dictionary of 1828, which likely reflects fairly closely what the word meant in 1791:

1.     To break, as contracts; to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance. A prince or a private person infringes an agreement or covenant by neglecting to perform its conditions, as well as by doing what is stipulated not to be done.
2.     To break; to violate; to transgress; to neglect to fulfill or obey; as, to infringe a law.

With this meaning of “infringe”, a “strict construction” interpretation of the 2nd Amendment would be that the government cannot “break or violate” (or perhaps “deny”, as in “neglect to fulfill”) “the right of the people to have and carry personal weapons such as pistols, rifles and shotguns”.

What the 2nd Amendment itself does not address, however, and what must then be considered both in terms of the contemporaneous understanding of what the amendment meant and what it must be understood to mean now is whether or not, and if so, how a particular person can lose his constitutional rights, including his “right to keep and bear arms”.

Although neither the Bill of Rights nor the Constitution proper address that possibility, there are constitutional provisions which provide guidance in this regard.  Article I, section 8,  and Article III, section 3, empower Congress to define certain federal crimes and to establish the punishment to be imposed for violations thereof.  Article III, section 2, and Article IV, section 2, acknowledge that the states have the authority to define crimes and punishments.  Furthermore, it is clear that all of the Founding Fathers of this country, and probably the vast majority of the populace, recognized that the government could revoke even the “inalienable rights” of the people by fining, imprisoning or, in extreme cases, executing those who violated the laws of the country or the states.

Clearly, the right to “life, liberty and the pursuit of happiness” could be forfeited by those who committed crimes.  There is neither any logical reason nor any historical interpretation by which it could be concluded that the 2nd Amendment “right to keep and bear arms” was somehow exempted from forfeiture as a result of a sufficiently serious criminal conviction.  Nor is there any logical reason to conclude that this right cannot now be forfeited for the same reason.

Thus, as a general proposition, a person who has committed a sufficiently serious (felony) crime no longer has a right to keep and bear arms to be infringed.  And governmental restriction of that person’s access to firearms or other weapons would not violate the 2nd Amendment.

I do have personal reservations about the constitutionality of the extensions of this concept being enacted by some states, including denial of access to firearms based on misdemeanor criminal convictions, such as domestic violence.  That, however, is really a subject for a separate discussion at another time.

With respect to the remainder of Terry’s question in this regard, the issue of denying 2nd Amendment rights to people suffering from mental illnesses is constitutionally troublesome.  There is nothing in the Constitution by which it can be inferred that either the federal or state governments have lawful authority to revoke the rights of a person due to mental illness.

Nevertheless, it was common practice in the 1700s and early 1800s for local government to confine the mentally ill to either jails or poorhouses.  Since the Constitution does not otherwise address the issue, it must be understood in the context of the times.  The implication of this historical perspective, of course, is that the mentally ill could, on that basis alone, lose some or all of their “rights”.  Presumably, Madison and those who ratified the Constitution and the Bill of Rights, were aware of this common practice and had it in mind when formulating and ratifying those documents.

Therefore, a strict construction of the 2nd Amendment would also require that it be understood in that context.  Which means that the mentally ill, like convicted felons, can be thought of as not having any 2nd Amendment right to be infringed by governmental action.

There are, of course, other issues with respect to the 2nd Amendment, such as whether or not licensing requirements and concealed carry restrictions are constitutional or whether it is constitutionally permissible to restrict the carrying of weapons into certain places (such as public buildings).  And there is the question of whether gun control is a meaningful and effective way of dealing with the problem to begin with.  I will address some of these issues in future blog posts.

__________________________________________

The full 157 page opinion of the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), is available here:

http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

The Supreme Court decision in United States v. Miller, 307 U.S. 174 (1939), is available here:

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html

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