Texit


The advisory vote in Great Britain, by which a majority of voters said yes to Brexiting from the European Union, had some catastrophic financial consequences in England, across Europe and even in the United States.

It has also motivated discussion of other potential “exit” plans … such as “Scexit” (Scotland departing from the United Kingdom) … “Unexit” (Sarah Palin’s looney suggestion that the U.S. leave the United Nations) … and “Texit” (an online petition proposing that Texas once again secede from the United States, which has garnered more than 100,000 signatures).

Texas State Flag

None of these proposed exits are going to happen, but the discussion reminded me of another alternative that Texans could actually implement.

The Joint Resolution for Annexing Texas to the United States, approved by Congress on March 1, 1845, and by which Texas became a state on December 29, 1945, included a provision allowing Texas to be sub-divided into up to four more states. Omitting the language related to slavery, the joint resolution provided:

“New States of convenient size not exceeding four in number, in addition to said State of Texas and having sufficient population, may, hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution….”

Texans have never made a serious effort to take advantage of this provision, but there have been a number of proposals for dividing up Texas into additional states … and I was able to find maps which could conceivably be used to make as many as 8 Texas states.

Here are some of the possible 5 state alignments:

Slide1

And some more 5 state alignments (the Houston Press plan by Jeff Balke appears to have been written tongue-in-cheek):

Slide2

And here are some maps dividing Texas into 3, 4, 6, 7 or 8 states. Other than the 4 state proposal, no one has actually proposed any of these alignments … and I included the state-shaped 3 state Texas flag only because I happen to think it would look cool on a US map.

Slide3

Texas is a huge state … here’s how big it is compared to central Europe:

Texas compared to European countries

And I can’t help wondering why there hasn’t been a serious effort to turn it into more than one state … after all, with five states, Texans would have 10 senators instead of 2 and comparably more influence in congress.

On the other hand, I also have to think it might be difficult to convince any of the prospective new states to give up the name Texas … which makes the Texas Department of Insurance Master Plan the most acceptable when it comes to the names of the new states: North Texas, West Texas, Central Texas, East Texas and South Texas.

Interestingly, this would also create for the first time in the nation’s history an “East” anything state … well, “Central”, too … to go with the North, South & West varieties that we already have.

Not suggesting that Texas should adopt any of these division plans, but all of them are better than the Texit plan that some Texans favor (especially since my youngest son and both of my grandchildren live in what might ultimately become North Texas!).

It is also worth mentioning that there have also been proposals to divide California into as many as six new states. Although the annexation of California to the U.S. contained no provision specifically authorizing it to split into more than one state, it is constitutionally permissible under Article IV, Section 3, Clause 1 of the United States Constitution, which provides:

“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

The most recent proposal to divide California was the so-called “Six Californias” initiative, for which insufficient signatures were obtained to include it on the 2016 election ballot.

Six Californias

The names of the six proposed California states would be Central California, Jefferson, North California, Silicon Valley, South California and West California … which would, once again, give us a “West” state without a comparable “East”.

—–ooooo—–

— FLA 82 —

There is no Gay Marriage “Slippery Slope”


Rainbow White HouseYesterday’s U.S. Supreme Court decision approving gay marriage throughout the country is a long overdue recognition that everyone has a right to love and to share marriage with the whomever they like, regardless of gender.

Unfortunately, the decision has already motivated an irrational — and, on the part of some, hysterical — reaction (listen, for example, if you can stand it, to Ted Cruz) by opponents of marriage equality.

For the most part, response to these rantings would be both futile and a waste of time. However, in two respects, it is worth the time and effort to respond — these are the related claims that this decision puts the US on the path to approval of, among other things, pedophilia and polygamy.

Pedophilia

The discussion regarding pedophilia exemplifies two significant rhetorical fallacies — the so-called “slippery slope” argument and another called “moral equivalence”.

In its simplest form, the “slippery slope” argument goes like this, “if A happens, B will happen” (often with disastrous results).

However, except under circumstances where B is inevitable (which are rare), and as long as discretion can still be exercised over whether or not B will happen, the argument fails.

An example of a valid “slippery slope” argument (which will also exemplify why they are rare): “If I jump out of a 10th floor window, I will fall to the ground”. (Likely with those disastrous results mentioned above.)

On the other hand, the suggestion that “legalization of gay marriage will lead to legalization of pedophilia” is a false argument because society (through its various legislatures) still has the discretion not to legalize child molestation. And the likelihood is quite high that no legislature will ever legalize child molestation in part because of the second rhetorical fallacy here:

“Moral equivalence” is an argument that compares two things, implying that they are equal or at least similar, when in fact they are not. The significant difference between gay marriage and pedophilia is that in the former, the two participants are consenting adults who mutually desire to enter into a marriage … while in the latter, one of the two participants is a minor and therefore legally incapable of consenting to any sexual activity (and also probably mentally and emotionally too immature to make a rational decision on the subject in the first place).

Ergo, “gay marriage” is not morally equivalent to “pedophilia” and there is not logical reason to conclude that approval of the former will in any way lead to approval of the latter.

Polygamy

Similarly, the suggestion that “legalization of gay marriage will lead to legalization of polygamy” is a false argument because society also still has the discretion not to legalize polygamy.

Which is not to say that the ongoing changes in societal attitudes that have led first to acceptance of interracial marriage and now to acceptance of gay marriage will not someday lead to acceptance of polygamy … for they surely may. If they do, however, then it will be fair to say that, like gay marriage, perhaps polygamy isn’t such a bad thing after all.

As with the animosity toward gay marriage, the current strictures against polygamy are fundamentally religious in nature, albeit enforced through governmental compulsion. On the other hand, polyamorous relationships are already quite common (in the United States and other countries), even if not legally sanctioned.

Historically, polygyny (the technical name for a single male married to multiple wives), polyandry (one woman married to more than one husband) and plural marriages (families composed of multiple intermarried adult males and females) were quite common throughout the world prior to the rise of the Roman Empire and Christianity. Hindu, Jewish and Chinese history are all replete with examples of men taking multiple wives.

Polygamy is currently legal in several African and Middle Eastern countries and is acceptable in some religions other than Christianity. Muslim men, for example, may marry up to four wives (with the significant caveat that the man has to be able to care for each equally).

One historical reason (the tendency of men to get themselves killed in wars) for the acceptance of polygyny was that it helped to insure that some women and children, who would otherwise lack support, would have a man to provide for them. That historical justification is less valid today, but it remains the case that there are significantly more women than men in the world … which leads inevitably to the conclusion that if each woman is to enjoy the benefits of a legalized marriage, at least some degree of polygyny is not only acceptable, but necessary.

Separate and apart from all of that is the underlying fundamental issue of personal freedom and the right of consenting adults to enter into the romantic relationships of their choice.  If two women want to marry the same man … and he is amenable to that arrangement … it is no business of mine — and, by extension, no business of the government’s — to tell them that they cannot do so.

There are certainly some legitimate societal issues involved, most notably the ability of the polygamous family to be self-supporting, so as not to be a burden on society (see comment above re the Muslim practice). That particular imperative, however, is no more compelling with respect to plural marriages than it is with respect to traditional marriages, into which many people enter despite a lack of financial stability and responsibility on the part of the couple.

Into the Future

It is fairly clear to me that whatever change to American society results from the Supreme Court’s marriage equality decision, it will not be the end of the world as we know it.  And, to the extent that it is the end of the world as we know it, we will be a better society — and country — for the change.

——————————————————————————–

In 2008, when gay marriage was a significant issue in California, I blogged extensively on the subject.  I am not so modest that I cannot observe that now both the California Supreme Court and the US Supreme Court agree with my legal and practical opinions!

My previous gay marriage blogs (which some excerpts):

https://freelegaladvice.wordpress.com/2008/05/15/california-supreme-court-yes-on-gay-marriage/

https://freelegaladvice.wordpress.com/2008/05/16/comment-re-gay-marriage-posted-on-slate/

“Remember these words: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’

“I see nothing there which justifies a majority of people of any state (or, for that matter, all of the states) in denying to a minority group of people a right which the majority enjoys. Nor is there anything in the Constitutions of the United States or the State of California which would support denying people the right to join in a same sex marriage if they choose to do so.”

https://freelegaladvice.wordpress.com/2008/05/16/will-california-gay-marriages-be-legal-in-other-states/

“… it appears to be the current state of constitutional scholarship (derisive laughter in the background) that ‘full faith and credit’ need not be given by other states to California same sex marriages.

“At least, that is, unless and until the U.S. Supreme Court steps in and recognizes that same-sex marriage is protected by the federal constitution. That court has already held in Lawrence v. Texas that homosexual sex is constitutionally protected, in the process invalidating a Texas law criminalizing sodomy. So it is, perhaps, not that big a step to full-fledged constitutional protection of gay rights and same-sex marriage.

“As an interesting (at least to me) aside, Justice Antonin Scalia, the self-styled “originalist” (his way of saying he’s a “strict constructionist” based on the “original” language of the constitution), dissented in Lawrence. Among other things, he complained that, by its majority opinion in that case, the court had:

“‘… largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.’

“He also worried that the decision would undermine other state laws relating to sexual activities, including those prohibiting same-sex marriage. So much for ‘originalist’ interpretation of ‘equal protection’ and ‘due process’, never mind what little is left of ‘full faith and credit’.”

https://freelegaladvice.wordpress.com/2008/05/17/redefining-marriage/

https://freelegaladvice.wordpress.com/2008/06/14/randy-desoto-on-gay-marriage/

In which I responded to the following question:

“… if courts were to follow the Supreme Court’s reasoning to its logical ends, how could judges possibly uphold any state or federal law regarding private sexual conduct including incest, prostitution, polygamy, child molestation and child pornography?”

My response:

“The California Supreme Court decision held that consenting adults, even if of the same sex, have a right to marry. There is nothing ‘logical’ about extending that reasoning to such conduct as child molestation or child pornography, in particular, since neither involves consenting adults.

“The argument that this decision could lead to legalization of incest is a ‘slippery slope’ argument — there is a logical legal basis for differentiating between unrelated consenting adults and those whose degree of consanguinity would bring them within the definition of ‘incest’.

“Furthermore, the California court’s decision is based on the right of each individual ‘to establish a loving and long-term committed relationship with another person’, which would hardly seem to include the typical prostitutional relationship.

“The only one of the perceived ‘evils’ which might constitute a logical extension of this ruling is polygamy. That possibility, alone, hardly seems a reasonable basis on which to deny gays the right to marry.

https://freelegaladvice.wordpress.com/2008/06/24/point-counterpoint-with-randy-desoto/

“… proper constitutional interpretation starts not with the question of whether a particular right is ‘granted’ in the Constitution, but whether by anything contained in the Constitution the people have specifically given the government the power to deny the right which is the subject of controversy. In short, not ‘is there anything in the Constitution which gives gays the right to marry?, but rather ‘is there anything in the Constitution which gives the government the power to deny gays the right to marry?’

“… the Constitution is silent on the subject. That being the case, proper constitutional interpretation leads inescapably to the conclusion that the people have not given the government the power to deny gays the right to marry. To the extent that the court in the precursor case of Lawrence v. Texas found a ‘new right’ to make one’s own private sexual choices, it was mistaken … not because there is no such right, but because that right has been there since the day the Constitution was ratified and is not new at all.”

https://freelegaladvice.wordpress.com/2008/06/25/california-anti-gay-marriage-initiative/

https://freelegaladvice.wordpress.com/2008/07/17/california-supreme-court-agrees-with/

“… there is a religious basis for objecting to gay marriage, but religion is perhaps the worst of all foundations on which to base social policy. Which is to say nothing of the fact that our government is constitutionally prohibited from doing so.”

————————————————————————————————-

FLA 69

“Take It Down”??


The Battle Flag of the Army of Northern Virginia

The Battle Flag of the Army of Northern Virginia

I have been giving a lot of thought to the issues raised by the flying of the so-called “Confederate Flag” — which, of course, ISN’T the “Confederate Flag” at all — see my previous blog post on that subject:

https://freelegaladvice.wordpress.com/2015/06/19/that-is-not-the-confederate-flag-flying-in-south-carolina/

The shooting at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, and the flying of the Battle Flag of the Army of Northern Virginia on the grounds of the South Carolina state house, have motivated a wide-ranging re-evaluation of how the United States deals with the issue of racial hatred and discrimination.

Rebel Battle Flag on grounds of South Carolina State HousejpgThere are now calls for the removal of the Rebel Battle Flag from the state house grounds in Columbia, South Carolina, and the South Carolina legislature has agreed to debate the issue.

The Citadel Confederate Naval JackThe governing board of The Citadel, a military academy in Charleston, voted to remove the Confederate Naval Jack from the school’s chapel. One of the Emanuel shooting victims was a graduate of The Citadel.

Virginia’s governor has ordered the removal of “the Confederate Flag” from all of his state’s license plates (thereby joining the chorus of people incorrectly identifying the battle flag, which appears as an optional design on some Virginia license plates). Politicians in several other states, including Maryland, North Carolina and Tennessee have vowed to do the same with their states’ license plates.

Mississippi State FlagMississippi’s Republican speaker of the house issued a statement calling for the removal of the Confederate battle cross from the Mississippi state flag (at least he knows what the symbol actually is).

Alabama Confederate MemorialAlabama Governor Robert Bentley ordered the removal of the Confederate battle flag (he got it right, too) and three other flags from the grounds of the state Capitol in Montgomery, where they stood in front of a memorial honoring Civil War soldiers. The other three flags? The three versions of the actual Confederate flag.

Jefferson Davis Statue Capitol Rotunda Frankfurt KentuckyAnd it’s not just the flags and symbols of the Confederacy that are drawing fire. The president of the Kentucky state senate said in an interview that a statue of Jefferson Davis, President of the Confederacy, should be removed from the Capitol rotunda in Frankfurt, Kentucky.

Nathan Bedford Forrest Bust in Tennessee State HouseIn Tennessee, politicians of both parties have also said that a bust of Confederate General Nathan Bedford Forrest, who was an early leader of the Ku Klux Klan, should be moved out of the state house.

Lake Calhoun MinnesotaIn Minnesota, not exactly a hotbed of confederate fervor, activists have demanded that a lake named after John C. Calhoun be renamed because Calhoun, though both a US Senator and American Vice President, was from South Carolina and a supporter of slavery.

South Carolina State Senator Paul ThurmondEven South Carolina State Senator Paul Thurmond, son of US Senator Strom Thurmond, who ran for president in 1948 as a segregationist, announced that he would vote to remove the battle flag from the state house grounds, saying that he is “not proud of this heritage”.

Walmart Sears eBay & Amazon LogosPrivate companies are also weighing in … Walmart, Sears, eBay and Amazon have all announced that they will no longer sell confederate themed items.

The Baltimore Sun LogoIn Maryland this past Monday, the Baltimore Sun opined in an editorial, “For a state to endorse a symbol of the defenders of slavery by putting the Confederate flag on representations of government speech is unconscionable.”

It therefore appears that supporters of slavery — and the symbols of that support — are under unrelenting pressure which is going to result in the permanent removal of both from public display. I personally support the banishment from public places of all versions of the Confederate flags (albeit, as mentioned in my earlier blog post, I also support the right of private persons to display Confederate symbols on their private property).

Shortly after being transferred to the Sixth Naval District in Charleston in January 1969, I encountered what I thought at best an odd circumstance — the Charleston Naval Base, bowing to political pressure from the state of South Carolina, was to be closed for a holiday on the birthday of Jefferson Davis, but all personnel were to work on Abraham Lincoln’s birthday, then a national holiday. I wrote a letter to the editor of the Charleston News & Courier, suggesting that it was time for South Carolina to rejoin the union. I signed it “James T. Reilly, LTJG, US Navy”, which earned me a visit with my boss, the Sixth Naval District commander (a rear admiral), who allowed as how I had the right to express my opinion, but asked me to please sign any future letters with my name only, omitting my military rank.

However, and this is the point of this blog post, if we are going to vanquish memorials to rebellious supporters of slavery and their symbols of oppression, the measures described above are manifestly inadequate. To do this job right, we will also have to vanquish from the public forum memorials to ALL rebellious supporters of slavery and slave owners, starting with …

George Washington… George Washington (the “Father of our Country”) …

Thomas Jefferson… Thomas Jefferson (the primary author of the Declaration of Independence) …

James Madison… James Madison (the primary author of the Constitution) …

Patrick Henry… Patrick Henry (he of “Give Me Liberty or Give Me Death” fame) …

John Hancock… John Hancock (whose signature is the most prominent on the Declaration of Independence) …

Benjamin Franklin… Benjamin Franklin (who owned slaves for 40 years before finally becoming an abolitionist in 1785) …

Founding Fathers… and many other Founding Fathers who were also slave owners.

The Constitution of the United States, adopted in 1787, authorized the continuation of slavery in the country and counted slaves as “three-fifths of a person”. And so, to truly eliminate all vestiges of rebellious supporters of slavery …

Washington Monument… it is down with the Washington Monument …

Jefferson Memorial… demolish the Jefferson Memorial …

Benjamin Franklin Memorial… and the Benjamin Franklin Memorial …

Mount Rushmore… blast Washington and Jefferson off of Mount Rushmore …

Currency & Coinage Washington Jefferson & Franklin… remove Washington, Jefferson and Franklin from our currency …

American Flag Betsy Ross & George Washington… and get rid of the Stars & Stripes, which waved over slavery for nearly a century.

Not doing so may be seen as a particularly disingenuous form of hypocrisy.

______________________________________________

FLA 68

More Zero Intelligence from our So-Called “Educators”


Recently proposed legislation in South Carolina would require schools to spend three weeks teaching about why the 2nd Amendment was included in the U.S. Constitution.

See:  http://bearingarms.com/lawmaker-wants-mandate-second-amendment-education-schools/?utm_source=bafbp&utm_medium=fbpage&utm_campaign=baupdate

Three weeks on the 2nd Amendment seems like a bit much, though a three week section on the entirety of the Constitution would be a good idea.  That, however, is not what prompted me to write this. Rather, it’s to comment on the underlying reason for this proposed legislation.

See this article:

http://blog.sfgate.com/sfmoms/2014/08/21/high-school-student-arrested-for-writing-story-about-shooting-dinosaur/

It describes a circumstance which can only be characterized as bizarre in the extreme. For one of his assignments, a 16-year-old high school student wrote a fictional “Facebook-type status report telling something interesting about himself” which read:

“I killed my neighbor’s pet dinosaur. I bought the gun to take care of the business.”

For this, he was taken in by cops for questioning, while they also searched his locker and backpack for guns. None were found.

Police said that the student was “difficult” during questioning, so they arrested him and charged him with disturbing the school. He was also suspended for a week.

His mother said that she “understands the gravity of the situation”, but appears to have been referring to what her son wrote. The real gravity of the situation is that the school and police authorities so flagrantly over-reacted — if I was this kid’s parent, I’d be publicizing this everywhere I could, suing both the school and the police, and doing everything possible to have the school officials fired.

This is just one more example of why zero tolerance = zero intelligence.

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


.

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/

Trashing the 1st & 5th Amendments in Illinois


.

It is a never-ending source of amazement to me just how badly American public schools are being administered these days.  I am compiling a collection of “Zero Tolerance” articles for use in a future blog post, but today am motivated to write by an event which occurred on April 18 at Batavia High School in Batavia, Illinois.

On that date, Batavia High social studies teacher John Dryden discovered that the school was administering to students a “survey” in which they were asked, in part, about their use of drugs, alcohol and tobacco — use of all of which is, of course, illegal for high school students.  The name of each student appeared on these “surveys”, which also asked about other highly personal matters, including mental health.

Dryden John Batavia (Ill) High School Teacher

Upon discovering the content of the “survey”, teacher Dryden reminded his students in several of his classes of their 5th Amendment right not to incriminate themselves.  For this lesson in civics and constitutional law, Dryden has been threatened with placement of a “letter of remedy” in his personnel file.

Under Illinois law, a “letter of remedy” informs a teacher that his conduct was improper.  The school board can impose adverse consequences ranging all the way up to dismissal.

Former students, parents of current students and even one Batavia alderman have rallied to Dryden’s support and a “Defend and Support John Dryden” petition has garnered more than 1000 signatures (though some apparently are duplicates).

Separate and apart from the absurdity of disciplining a teacher for teaching his students about their constitutional rights, the survey itself raises other concerns.  It was prepared by a private company and is being reviewed by school officials, including social workers, counselors and psychologists.

According to an article in the Batavia Herald, Mr. Brad Newkirk, the school’s “chief academic officer” (whatever that is), commented that, “The survey was not a diagnostic tool, but a ‘screener’ to figure out which students might need specific help.”  Newkirk and other school officials involved in distributing this “survey” are apparently oblivious not only to the constitutional implications, but also to the blatant invasion of personal privacy and the fact that none of this is any of their business.

Despite being targeted for possible discipline, Mr. Dryden defended the school’s administrators, generously stating, “These are good, professional, smart people on the other side who want to do what is right by kids.”  On that point, I disagree with him.  If these administrators really want to “do what is right by the kids”, they will concentrate on teaching and leave law enforcement and mental health issues to professionals qualified to act on those issues.

___________________________________________

The Batavia Herald article discussing this issue is here:

http://www.dailyherald.com/article/20130525/news/705259921/

The petition supporting Mr. Dryden, which I have signed, is here:

http://www.thepetitionsite.com/927/122/050/defend-and-support-educator-john-dryden/

Why You Should Never Talk to the Cops


.

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.

_________________________________

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

_________________________________

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

2nd Amendment Letter to the Editor June 17, 2000


.

While looking through an old file today, I ran across this clipping of a letter to the editor of the Marin County Independent Journal (IJ) that was published on June 17, 2000.  Thirteen years later, it would seem that little has changed.

Note in particular the final sentence of the letter.  It presages where the government would now like to go — registration of every gun in the country, so that government officials know where all guns are.  Well, I own one, obtained before changes in the law required government involvement and approval.  I remain of the opinion expressed in this letter:  Unless and until I commit a crime using one, it is none of the government’s business whether I own a gun.

Letter to the Editor, Marin Independent Journal -- June 17, 2000

Letter to the Editor, Marin Independent Journal — June 17, 2000

Trashing the 1st Amendment in Arizona


.

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. 

______________________________________________________________

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”


.

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.

___________________________________

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


.

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

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

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).

English as our “Official Language”?


My youngest sister Suzie sent me this question today:

Jim, I’m sure you’ve heard of or seen this email before. I’ve received it several times. Do you have any idea why these Senators would vote against English as the official language of the US.

Continue reading

California Supreme Court agrees with …


… me … see my post on the anti-gay marriage initiative at:

https://freelegaladvice.wordpress.com/2008/06/25/california-anti-gay-marriage-initiative/

… and, coincidentally, with proponents of the anti-gay marriage initiative.

Continue reading

The 1st Amendment — Dialog on Religion & Government


My recent posts here regarding Randy DeSoto’s The Conservative Voice columns were an outgrowth of an ongoing conversation among a group of West Point graduates regarding 2008 presidential election issues. John Sloan, Class of 1955, a frequent contributor to this discussion, provided a lengthy and thoughtful comment on my post on the role of religion in government, to which I will respond here.

Continue reading

The Role of Religion in Our Government


Randy DeSoto sent me an email with a link to his latest article on the website “The Conservative Voice”, in which he discusses what he calls “Obama’s Schizophrenic Views on Faith.”

Continue reading

Supremes Uphold Individual Handgun Ownership Right


In a major victory for the rights of individuals, the U.S. Supreme Court today held in a 5-4 decision that the 2nd Amendment to the U.S. Constitution does indeed protect the right of individuals to “bear arms” even if they are not part of a “well-regulated militia”.

Continue reading

California Anti-Gay Marriage Initiative


Today I received the following email and inuiry from a fellow West Pointer, Ed Colchado, Class of ’76:

Jim,

What is your opinion of recently filed suits to bar the November initiative on the basis that the “measure would change the state’s Constitution so profoundly that it would amount to a revision. Under the law, the Constitution cannot be revised by initiative alone – a two-thirds legislative approval is also needed before the measure goes to the voters.”

Continue reading

Point-Counterpoint with Randy DeSoto


I have received an email from Randy DeSoto regarding his column on the California gay marriage case, to which I respond here:

Continue reading

Randy DeSoto Wrong on Gay Marriage


I received today an email with a link to an article by Randy DeSoto on the website The Conservative Voice. In this article, he discusses the recent California Supreme Court decision on gay marriage. DeSoto’s “constitutional” analysis of the issues is, however, deficient in several significant respects:

Continue reading

Will California Gay Marriages be Legal in Other States?


A straight-forward reading of Article IV, Section 1, of the U.S. Constitution, would seem to indicate that the anwer to this question is an unequivocal yes.

It isn’t.

Continue reading