Showing posts with label constitution. Show all posts
Showing posts with label constitution. Show all posts

Saturday, September 21, 2013

Bad Laws: A Conversation On Real Solutions

We freedom loving Americans often find ourselves in situations where we are met with laws we deem arbitrary, overly restrictive, pointless, designed to produce revenues for the government or whatever. We will just call these bad laws. So what is a person to do. Far too often the answer is to yell, scream or whine about it. The mean government is picking on me, blah blah blah. While a good tantrum rant releases tension it is not usually productive in terms of actually fixing the problem. Today I want to talk about potential solutions for those who are bored of simply complaining and actually want to change the situation.

[Far too many reading this only love their own freedoms. Though in fairness that is somewhat natural. You don't hear me yelling all the about home schooling or raw milk being over regulated to death. The simple reason is that I'm pretty ambivalent on both of these topics. A better way might be to say the significant issue is everyone wants to protect or create whatever freedoms they want while simultaneously being able to use governmental forces to control others doing things they do not like. The raw milk producing home schooling family believes they know best what should be allowed to happen in far away's bedrooms and lives so they try to control them. The other people who have never seen a milk cow, let alone a small family dairy believe they know better than the people whose family has been there for a hundred years. The real answer is that none of them know much about the other's lives and they all need to leave each other alone. Freedom for me means freedom for thee. So stop being a jerk who whines about rules that limit them whilst simultaneously trying to rule other peoples lives. End tangent.]

So there is a law we do not like. Fundamentally I see two broad options.

We can recognize that a rule is stupid but it is in fact the law so it has all those  nasty consequences. Since we do not want problems we will begrudgingly follow the arbitrary and stupid law most of the time. A good example of this is the fact that I do not on a regular basis physically assault people in public. At least once a week there is somebody I really want to smack around, if just because I am in a bad mood. My restraint comes not from fear of them but from not wanting to get arrested for assault then go through all that BS.

The other option is to accept that the rule has consequences but decide we simply do not care and are willing to take the risk of sometime being caught and potentially facing those consequences for the benefit of breaking the rule. We all know, or might even be, the person who drives over the speed limit on their way to and from work. Knowing where cops hang out on the route they rightly figure the odds of getting caught on any day are low. When intermittently busted they probably figure after the 100 times of getting away being caught once isn't a huge deal and it's just a fine anyway.

Which way I lean between these two varies on a case by case basis. First in my mind is the severity of the consequences should I be caught. A minor traffic ticket isn't a big deal so maybe it's worth doing 68 or 70 in a 65. The other obvious variable is the risk of being discovered. Let's say I lived alone and enjoyed a recreational substance that is currently in a murky legal status. If I produced it myself, only for myself, without the need for obvious precursor chemicals, etc and enjoyed said substance exclusively at home the odds of being discovered are very low. Though the penalties would be far higher than speeding a but the odds of being discovered are so low the law would probably not get in my way.

Aside from obeying or ignoring what can we do to get around these bad laws?
-Change them. Most levels of government in America have some way a normal citizen can, obviously with enough support, change, add or remove laws. The mechanics can be complicated and obviously a majority of voters is generally needed but it can be done.

-Change who is in charge. Don't like the dog catcher being a jerk, convince voters you will do better, take his job then do it better. Think the Sheriff (they matter A LOT) is not pro gun, push for a trusted member of the community to fill the position.

Changing and circumventing are probably most effective at lower levels of city and county then to a lesser degree the state level. City and county politics (at least outside big areas) are such a snooze few people participate and not many more pay attention or vote. An active campaign with half a decent point that gets normal people excited about an idea/ candidate stands a decent chance of success.

-Circumvent them. Figure out a similar way to meet the same end result without violating the law. This admittedly tends to work best when those who wrote the laws are ignorant on the topic. Guns are a good example here, after the .50BMG banning silliness it took a day or so for .499 rifles and ammo to start popping up. Ban that and .498 would only take 2 days. You get the idea. This has also been shown painfully clear in the area of financial and banking laws. A law is passed that says banks should not do X so they do Y which has the same end result.

-Vote with your feet. Do the research, travel to check it out then move to where you would prefer to be based on a variety of factors. In particular within the US we are seeing some very disparaging situations in terms of firearm and financial freedom develop over time. This makes strategic relocation worth considering. Instead of griping about California's gun laws move to Arizona, Nevada or Oregon all of whom are far more accommodating to gun owners and shooters.


Edited to include:

2 glaring omissions were made in the options which needed to be added for a full discussion.

-Legal Challenge. Find a law you think can be overturned for whatever reason (Unconstitutional seems to be the most common) then look for some schmoe who broke said law or was harmed by it and sue. Keep going until the law is changed or you have exhausted all appeals. This was a staple of business for all manner of leftists for decades and has recently been adopted by Team FREEFOR. The MacDonald case is a good example of this. The downside of this method is need for extensive free legal support or a deep pocketed backer to pay the bills.

-Resistance. The issue with government is that sooner or later everything is backed by force. Break all but the most minor rule and you will face the consequences or eventually men with guns will show up to take you away. You can run, comply or fight. If you fight somebody is going to be seriously injured. Should you get away all sorts of people will be after you. They might burn down your house with the family inside, shoot your wife in the head or who knows what else. Bottom line it doesn't end well.

Now if someone is trying to take your children to a reeducation camp or your newly hated ethnic group is bring rounded up for cleansing by all means take out as many key individuals of the regime as you can culminating in a blaze of glory. On the other hand it's probably better to just pay the traffic fines, follow city ordinances about building, pay your taxes, etc all then go home for dinner followed by a drink and bed.

I do not mean to imply this list is all inclusive but it should give a framework from which you can problem solve to actually do something about these problems. As always thoughts are welcome.

Tuesday, June 18, 2013

Random Tuesday Thoughts

-It might be time to re read the Matthew Bracken novels as they seem to be playing out in real life.

-This whole discussion about the NSA, Verizon, etc all data gathering is interesting. First that stuff called 'meta data' matters, modern computers using well designed programs combined with various other open source stuff can come up with huge amounts of information. Think pattern and link analysis that is largely automated based on huge amounts of information. Along these lines the idea that has been posed "it is legal under our law but may not be constitutional" says a lot about the current problems in our country.

-Silver is at 21.5ish right now. If you have a few dollars to spare that is definitely a buy. I cannot say why gold is down either but if you can afford it that is another fine place to park a few dollars.

-Ammo prices seem to be coming down (except .22lr which is going up) but availability is still spotty for sure.

-TEOTWAWKI Blog's post on Resupply Caches is worth checking out. 

Sunday, December 30, 2012

Guns For Me But Not For Thee

As Chris pointed out If armed security guards are ineffective, why do anti gun people send their children to schools with lots of them?

Why do their kids deserve to be safer than my kid or yours? 

How is it that some cops who get to carry all the time off work anywhere and public officials or rich folks who have armed security think I should not be able to have a weapon?

The only conclusions I can come to is that A) they think they are superior to normal folks and B) gun control is not about guns it is about control.

Also on another note if I ever get to rewrite the Constitution I will add an amendment that all elected officials are required to send their school aged children to the worst performing public school in the area they represent. Maybe then they would get serious about fixing education.

Wednesday, October 17, 2012

RE: The Problems With Panic Buying

Sometimes I want to talk about something too much to make a comment. Today I am going to talk about a post stuff I found while searching for the end of the survivalist web.

The Problems with Panic Buying makes some interesting points. Here is a snippet "I’m 41 years old and I got my first rifle at 9.  Since that time I’ve bought, sold and traded hundreds of firearms.  I’ve shot hundreds of thousands of rounds, I’ve taught the craft for almost two decades now and have a very good understanding of what an AVERAGE SHOOTER is capable of.  Trust me folks… You are not as talented as you think you are."

I think it is worth noting that we need to separate the hardware and software issues involved in self defense shooting. The hardware issue is that you have weapons, magazines, ammunition and ancillary equipment to employ to defend yourself. The software issue is that you are capable of using the darn stuff!

Along the hardware lines I don't like panic buying. There are a few reasons for this. First trying to time anything is problematic. You might well be wrong and either have a false alarm or even worse be too late. Secondly most people do not have the resources to go out and buy all the gun stuff they want in a week or two, this stuff is expensive. While technically possible buying an AR-15 or 2, a couple Glock/XD/M&P's, maybe a bolt gun and a shotgun as well as mags, case upon case of .223, 9mm/.40 S&W /.45 acp ball ammo,  9mm/.40 S&W /.45 defensive rounds, .308, 12 gauge buckshot and whatnot to keep them going all at once isn't a viable option for most folks.

The last issue I have with panic buying is that it sort of goes against the whole proper planning prevents piss poor performance thing. The writing is on the wall. A significant percentage of our country does not feel the same way about the Second Amendment and military pattern weapons as rednecks, survivalists and hard core shooters do. We had an 'Assault Weapons Ban' for a decade and lots of folks want it back. Maybe these folks will be successful in seeking a ban and maybe not but we won't be able to say we didn't see the potential for it to happen.

However this ban has been rescinded for coming up on a decade. I am more inclined to buy with a moderate sense of urgency than to completely freak out every 2-4 years depending on who is running for what. When these elections come around (lame ducks are dangerous) I do not need to completely freak out because I've been making purchases as finances allow over time. That being said it is not a bad idea to look at your situation and maybe shift a few priorities higher. PMAG's or sweet new AR-15's might be entirely unavailable or more expensive next year while a nice rucksack or a CB radio almost surely will be.

So along the hardware lines panic buying is not a good plan. The panic buying crowd fails to acknowledge the importance of training and is almost entirely hardware focused. This is just stupid. Obviously on the software side panic buying is not a viable strategy. Unless you are a soldier, a SWAT cop or happen to be shooting competitive 3 gun/ IDPA/ High Power with a relative or friend's kit you are not building the skills to use the equipment. With those relatively rare exceptions aside most people are not proactive enough to seek out serious training opportunities for guns they do not yet own. Training takes time and costs money. While planning to panic buy a couple guns and a bunch of ammo is a bad plan it is a better plan then hoping to be able to get time off work and attend quality firearms training right before you need it.

Put time, money and effort into building your skills NOW before you need them. It is good wholesome fun but more importantly you do not know when these skills will be needed. It is possible (though haphazard and expensive) to deal with serious equipment shortcomings down the road. You could look for grandfathered items or fill shortages on the black market. However a shady contact and some cash can get you a piece but will not turn you into a serious shooter. A Daniels Defense carbine will not turn you into a shooter any more than a Corvette will turn you into a race car driver. Remember that it is the person behind the gun that really matters.

Coming briefly back to hardware taking a balanced long term approach is really the way to go. Be dispassionate and get guns that suit your needs, not your sense of style or ego. In other words buy a Ruger .44 magnum or a Desert Eagle .50 because you have huge hands and live in rural Montana/ Alaska where open carry is common and there are bears all over the place not because you thing they are cool.

Ergonomics mean what is right for me might not be right for you but there are definitely good choices and less good choices. Most folks would be well suited with a universal service pistol like a Glock/XD/S&W MP and a rifle like an AK/AR/FN-FAL/HK-G3 variant. Just something to think about.

Taking a long term approach is important because doing it all at once simply isn't affordable for all but the highest budgets. However if you pick up a holster here, a couple mags there and some ammo now and again it is much more doable.

Anyway those are my thoughts on that.





Thursday, January 26, 2012

The Freedom To Make Bad Decisions


Alternate Title: Libertarians and Puritans
I am typically a pretty concrete writer. I write about things I have done, things I am doing or the like. I am far more likely to be talk about how to pack a bag, ways to get in shape or how to improve your finances than some philosophical or political stuff. These are my strengths and the things that typically interest me so I play to them. Today we are going in a whole other direction. I posted a picture recently (probably a couple weeks or even months by the time this posts)that basically said if you don’t want people telling you what to do don’t try to tell them what to do and it brought a lot of discussion. I replied to folks in the comments section but it got me thinking.

The thing about freedom is that it isn’t just about good decisions.  In fact I would argue that it is mostly about bad ones. Also there is the thorny issue of which omnipotent power decides what exactly constitutes a good decision and what gives them the right to tell anybody else what to do.

Everywhere you go there is some darn politician or expert who wants to be able to tell people what to do. Now I like experts. I have a money person, a weight training person, a conditioning person, some tactical training people, etc. The thing is that I choose to solicit their advice and follow it if I want to, for as long as I want to. If someone wants to tell me what I HAVE TO DO that is an issue for me.

Who the hell do they think they are? Why are they so inherently superior to me that they can tell me what I have to do? If their argument was actually convincing I will probably have gone along in the first place and they wouldn’t need a regulation or a law at all. I don’t think anybody has my best interests at heart more than I do.  More to the point if I am doing something that isn’t clinically and scientifically perfect but I really enjoy it then why should they get to tell me that I can’t? It could be smoking or drinking or eating ice cream or whatever. If I want to spend my time and money on something to try and bring some enjoyment or happiness to my life it really isn’t anybodies business.

Look at the First Amendment to our Constitution, freedom of speech and religion and a bunch of other stuff. You never hear about a freedom of speech case where a nice woman said something polite to her friend. Freedom of speech is about Larry Flint offending just about everyone and the Westborough Baptist “church” spewing ignorant  hate at military funerals. These things are offensive to any reasonable person.

Not many people would like to have Larry Flint over for Sunday family dinner.  Pretty much everybody hates that “church” full of idiotic hate mongers. If 20 rough men with ax handles showed up at their next funeral protest and cracked some skulls I would be fine with that, and I don’t think I would be alone.  The thing is that the freedoms built into our governmental protect those idiots. This is a good thing. It is built on centuries of accumulated customs and philosophy which culminated in the great nation of America. Really if you want to get deeper I believe these rights come from God.

The point of freedom is that you can do what you want unless it infringes on somebody else directly. Not “well studies show” or “second order effects of” or “society” but directly. Obviously Rapist Jim’s desire to rape doesn’t allow him to infringe on Suzie’s right not to be raped. More to the point as long as I am not threatening, menacing or vulgar I can tell anybody what I think of them at any time.

 I can quit my job and start hitchhiking around the country like some 50’s beatnik. If I could physically do it I could smoke a whole carton of cigarettes in a day. I can wear my shoes on the wrong feet and tap dance in the rain. I can borrow money I know I shouldn’t for stuff I don’t need.

All of the things I talked about are stupid. Quitting my job to chain smoke cigarettes and hitchhike around the country tap dancing in the rain while running up a huge visa bill would be stupid all around. The point simply put is that it is my life and I am free to do with it what I wish, good, negligible or bad.

I can bust my hump, save like crazy, start a business, invest wisely and then make huge money or I can get a shack in the woods, have a still and some chickens and get drunk in a hammock during the summer and a recliner in the winter.  It is my life to do with what I wish.

The thing about freedom is that it doesn’t mean freedom from consequences. I am free to tell a 6’8” 400 pound biker covered in prison tattoos that black leather and motorcycles are just a sad cry for help based on impotence, homosexual tendencies and mommy issues but I doubt that would end well. I am free to tell my boss what I really think of him and after that I would be free to find a new job. I am free to eat McDonalds twice a day every day if I want, and I will become obese and probably have a heart attack at 50. I am free to blow my earnings on gambling knowing full well the odds aren’t in my favor and if I play long enough losing is a virtual certainty but I have to deal with the after affects. I am free to neglect my family and start chasing cocktail waitresses but that is going to cause issues in my marriage and likely I would be doing it from a half empty studio apartment before long.

For everything we do there is a consequence or more accurately numerous ones. There are first, second and third order affects of everything we do if you look hard enough. Take enough simple little decisions like charging a nice dinner out or hitting the gym and skipping desert and they add up to huge things. 

To say you believe in freedom except for this that and the other thing doesn’t work. Really that is just “I am right and you are wrong”. To think that everything you believe is good should be allowed and everything you think is bad should be banned is the most egotistical and idiotic political philosophy out there. My son thinks that way. He will move things or throw them to suit his desires. He will hit people or try to move them or harass them if they don’t want to/ can’t pick him up or otherwise are bothering him. Whatever he wants is right and what he doesn’t is wrong. This is ok because he is a one year old and thinks the world revolves around him. Over the next few years he will grow out of this. I expect it from him so I don’t think it is too much to ask of adults.

That reminds me of the Puritans who fled England because they were persecuted and ultimately came to America, where they promptly persecuted anyone who didn’t believe exactly what they did. I find the comparison between the modern religious right and the pilgrims to be striking. They have strong beliefs and think they should be able to force you to have the same beliefs. Moreover they think they have the right to punish you if you do not have those beliefs. At least the pilgrims went to a new place to force everybody to act like them (though they did it because they were persecuted back home) unlike the religious right who think they can make everyone act like them wherever they are. 

My family is very socially conservative. This is for a lot of reasons but it boils down to us believing it is the right way to live. Other than the various sects that say we can’t have booze and have to do other wacky things we live a lifestyle that meshes quite well with conservative republican/ Christian standards. That isn’t the issue. The issue is that we choose to live this way; we don’t do it because somebody told us to or wants to compel us.

I have realized recently that I can’t even call myself a Republican with a straight face anymore even though I may (or may not) vote for them. There are probably some republicans who are not fascists or puritans but they have been keeping a low profile for awhile now. Is it too much to ask for a candidate who isn’t a shameless whore to big business (crony capitalism, not free markets) or an evangelical who wants to force me to live by his particular religious code?

I just don’t see why anybody has the right to tell me what to do with my own life, money and body and by logical extension I don’t get to tell them what to do with theirs. When it comes to some religious issues I do not see why it is any different. I’m certainly not going to live under Islamic law and someone who is a Buddhist or an atheist shouldn’t have to live under a set of rules they don’t agree with. Also I tend to think that religious issues get sorted out elsewhere.

I have a live and let live philosophy about other people’s beliefs and ways of life. This extends from whacky religious nut jobs and vegans all the way people into weird sex stuff, drug users and the like.  To paraphrase Commander Zero “I don’t really care if people have gay orgies while snorting a mountain of cocaine on top of rocket launchers as long as they do it on their own land and kids are not involved.”  It doesn’t mean that I approve of it, just that it is none of my business and as such I stay out of it. We all have to bite our tongues now and then but we get to do what we want, seems like a fair trade off to me. Also life is short and if a person thinks something will make them happy then I wish them the best.

In closing the freedom to make bad decisions is something I firmly believe in.

Monday, November 22, 2010

Two Things That Are Really Bothering Me

I can honestly say I am a lot more pro law enforcement and government in general then most bloggers. However a couple things have really been hacking me off recently. First are supposed laws which make it illegal to film cops/ sheriffs/ meter maids/ whomever. These really anger me. Second the TSA is recently getting their way onto the same list.

I think the filming thing is one of the biggest examples of jack boot Stalinist tactics out there. They are also probably the biggest example of "lets try to call everything we don't like illegal" that I can think of. Of course some guy with a video camera following youaround would get annoying to anybody. However a cop who follows the rules and generally doesn't act like an Only One/ brown shirt doesn't have anything to fear. It is the cops who do shady illegal stuff all day long knowing that dirt bags (sorry but you know what I mean) who get treated like dirt or strait up harrassed won't say anything. Heck even if a normal non dirt bag complains about a cop of course the cop must be right. Often a recording of some sort by a third party is the only piece of evidence a DA or jury will actually believe that can refute a cops testimony. When bad cops (I don't think they are all bad) lie a video tape is just about the only way to disprove them.


What hacks me off even more about this is that cops try to record everything. I recall the case of some drunk college kid awhile back. He got arrested for disturbing the peace, drunken disorderly and attacking a cop. The kid was in serious trouble. However a few days later a video from across the street came out. The kid staggered around a corner and the cop body checked him with a horse then whooped the hell out of him with a stick. Aside from having too many drinks while watching college sports he didn't do a single thing wrong. The only thing that saved that kid from serious trouble was that video tape.

Some cops need to be held accountable for their actions and also the 'blue wall of silence' needs to be broken down. The only way I see that happening is by citizens holding them accountable in a manner people will act upon which means video (or I guess audio) tapes. This seems like a great cause for the ACLU.

The TSA probably have the biggest chip on their shoulder of any government agency. I think it is because deep down they know they are slightly above minimum wage wanna be security guard lackies. A chip on ones shoulder coupled with a bit of very narrowly defined power breeds a serious attitude problem.They are all over the media these days. They will pornoscan you or feel you up.

The whole thing is just so rediculous I don't even know what to say about it. What does this say about the sad state of our country; that we are more willing to force little kids and grandma's to get felt up by some slightly above minimum wage former mall security guard loser then openly admit what everyone knows anyway that the entire terrorist threat comes from males between about 17 and 40 of Arab nationality. More specifically Arab males who have just recently come to the US. Despite homeland security, the TSA, FBI, CIA and a few other agencies bungling we can at least accurately identify the group in question. There is no need to pornoscan grandma's from Minnessota or grope 10 year old soccer players from Iowa.

Hopefully the backlash against the TSA is finally reaching critical mass to the point where it cannot be ignored. Maybe there will be enough news pieces and people writing and calling their various representatives that they do something about it. I don't think the topic of security or anything that gets pushed under that umbrella should be beyond reproach.

All of this stuff is so stupid and the only real explanation for it that I can see is conditioning. Conditioning people to subject themselves to whatever kind of indignities some random employee of an obscure government agency tells them to. Conditioning them to not ask questions. One more paranoid than I could say the slippery slope to travel passes and inspection checkpoints a la Stalinist Russia isn't that long.

I personally don't worry about it much. Not because I like it at all but because I don't have another option. As a military family and particularly a military family overseas if we want to see our family we have to fly. It would take a lot to stop us from doing that. It is however interesting to theorize about this stuff.

Wednesday, July 21, 2010

Tuesday, June 29, 2010

State Rights (in a nut shell)

The other day I posted a guest post about the new gun case from the Supreme Court. I drive my tractor in pearls... Asked, "Do the people of the state have the right to run their state as they see fit?" The answer to the question is no. Here is how we got there.

Article IV, Clause 2 of the Federal Constitution states that federal law is the "supreme Law of the Land." This created the american hierarchy of law. At the top is the US Constitution. Anything which violates the US Constitution is void. Next is Federal law. Anything, except the US Constitution, which violates Federal law is void. Next, State Constitutions, which can only invalidate state law, and finally state law. It is important to note that Federal law can invalidate state constitutional provisions. For example, if California decided to amend its constitution to make controlled substances legal, controlled substances would still be illegal under federal law, and thus, illegal in California.

For a long time, this was not really a problem. First, the Federal Constitution only applied to the Federal government. If a state law violated the 1st amendment right to free speech, and the state constitution didn't have a free speech right, the law was fine. With the passage of the 14th Amendment, Federal Constitutional provisions started being held against the states. Technically, limitations of the free speech of citizens, by a state, violates the 14th Amendment, not the 1st amendment.

The second protection of state rights was that the Federal government didn't do much. The fed has limited power under Article I, section 8 and 9. One of the big debates was whether to have the Bill of Rights at all because, under the limited federal power, Congress couldn't infringe on any of those rights anyway.

Things when to shit in the 1930s. First, the Supreme Court, in the move known as the "Switch in Time that Saved Nine," started granting the Federal government unlimited power to do whatever they wanted, under the Commerce Clause (Art. I, Sec. 8). Suddenly, the government could regulate everything, and it did. The more areas which the federal government passed laws in, the fewer areas states could have any say. This is the situation we find ourselves in today.

In short, if California decided to pass a constitutional amendment banning firearms, it would be void as unconstitutional. If Idaho passes a constitutional amendment forbidding any firearm restriction, it would invalidate state law, but federal law would still be enforceable.

At the end of the day, this is all our fault. We, as Americans, constentially ask the federal government to fix what we think is a problem in a place we don't live. This article basically sums it up. At the end of the day, people in New York are trying to tell people in California how to live, and the only way they can is through the federal government. The problem with this idea is that people in California can force people in New York to live a certain way. Right now, the federal government, and the federal constitution, is deep in a battle over who gets to tell us all how to live. This wasn't how it was supposed to happen, but thats how its playing out.

Constitutional Gun Rights in Plain English (Guest Post)

McDonald v. City of Chicago is a complex constitutional law case that probably takes two semesters of Constitutional Law, a semester on American legal history from the antebellum period to the present, and a 30 min. lecture on the outlay of the current case to fully understand. Hell, the Court’s opinion was 214 pages long. That’s a short book, written for the legally trained, on a single case. So instead of the full explanation, here’s the “what you need to know” version.

A while back, the District of Columbia passed a new gun control law. It made it illegal to have ammo in your gun at all times. It also demanded that the gun have a trigger lock or disassembled at all times (take your pick). Finally, you could not exit your household with a gun. In other words, if someone started breaking into your house, then you would have to either remove the lock or reassemble your gun, then load it, and finally shoot it from inside your house. Hopefully, the guy breaking in wouldn’t have killed you by then. So this new gun control law was effectively a prohibition on guns.

In 2007, a brilliant lawyer by the name of Alan Gura sued the District of Columbia, claiming that this law was in violation of the 2nd Amendment. In 2008, Gura stood before the Supreme Court and explained why he thought the Court had to strike down this law as unconstitutional. In a 5-4 decision, the Supreme Court agreed with Gura. D.C. v. Heller is the name of the case, and it stated that while the government can regulate guns, it cannot effectively prohibit them. The “conservatives” and Kennedy all thought if the 2nd Amendment was to have any sort of meaning as a constitutional provision, the D.C. law would have to go.

The liberals disagreed. Stevens, Ginsburg, Breyer, and Souter all agreed that there was virtually no support in American history for the right to own a gun. (No, I’m not making this up – the liberal justices really believe that American legal history and the words of the 2nd Amendment do not support any right to gun ownership, or at least in any form that you or I understand it.) This ruling however, only applied to the Federal government, not the states, so the case had a pretty limited effect at the time.

Fast forward two years. Alan Gura stands before the Supreme Court again, arguing that Chicago’s gun laws, almost exactly the same gun control laws as in D.C. v. Heller, have to go. The crucial question in this case, McDonald v. City of Chicago, is whether D.C. v. Heller applies to the states. Whether a provision of the Constitution applies directly to the states is a complex legal question. In one sentence, the question in McDonald was: ‘Whether the right to arms is properly numbered among those that are so “deeply rooted in this Nation’s history and tradition” as to justify a high and proud place in the legal realm of “ordered liberty.”’ (To fully understand this statement, you pretty much need a law degree. It’s that annoying)

Today, the Supreme Court in a 5-4 decision said yes to that question. In other words, gun control laws like in D.C. v. Heller and McDonald v. City of Chicago are unconstitutional, whether the federal government or the states write them. Gun regulation however, is still fine. The government cannot effectively prohibit gun ownership or use, but it can place some regulations on these acts. For example, its fine of the government says that you have to wait 7 days to buy a gun or that you cannot buy an Abrams tank. But if the government said that you have to keep your guns unloaded at all times, then the courts will strike it down.

This is what you need to know. There’s some other stuff about the Privilege and Immunities Clause of the 14th Amendment, but since it didn’t win, you don’t need to know about it.

Wednesday, June 16, 2010

Can it happen here?

I was reading Time today (as usual) and came across a story about Australia's new massive Internet censorship plan. It started me thinking: can that happen here? I didn't think too long, because the answer is, under current law, yes. Easily. Here is how.

We need to understand that the Federal Constitution, under the supremacy clause, is the highest law in the land. After it, there is federal law, then state constitutions, then state law. Note, federal law trumps state constitutions. The State of Oregon is often used as a case study for this, because, unlike most states, the Oregon Constitution is interpreted very differently than the Federal Constitution (no matter where you go to law school, if you take a class on how state constitutions work, you will focus almost exclusively on the Oregon Constitution). Under the Oregon Constitution, there is a complete ban on content regulation of speech; under the Federal Constitution, there is a multi-part test, which I will be discussing later. The Oregon Constitution is MUCH more protective of free speech than the Federal, but it only applies to state law. If a federal law is in violation of freedoms protected in the Oregon Constitution, it can still be applied to citizens of Oregon.

On a side note, for those of you who follow the blog, you have noticed that Ryan and I don't say where we are from. There is a reason for this; Ryan is in the military, and I will be a lawyer soon. This blog could have a negative impact on our careers, and the nice thing about the Internet is it allows us to say what we actually think. I mention this only to tell you that, no, I am not from Oregon. Nice try, keep guessing (not that you care).

Anyway, when looking at free speech issues, there are two lines of analysis. Speech regulations are either content based, or conduct based. For example, a law saying no yelling in city parks between the hours of 9pm and 6am, is conduct based; it applies to people based on what they are doing. A law saying no supporting libertarians in city parks is content based; the law specifically targets the content of the speech. The law in Australia is content based; it targets certain types of speech.

When a law is content based, the strict scrutiny test is applies. It requires that the law must be "narrowly tailored" to a "compelling government interest". Strict scrutiny basically means the law fails. While this is not universal to all cases (this test also applies to Equal Protection claims and affirmative action has passed it), the overwhelming result is that a law is invalidated.

Right now you are saying "but Ryan, J.D., you said it can happen here! You are a lair!" There is a second prong of the analysis. There is some speech which the Court has said is simply not protected. Strict scrutiny does not apply, its completely free to be banned. Here are the 3 big categories, with explanations.

1) Inciting- Speech can be banned if it creates a "clear and present" danger of lawless action, the conduct is likely, and the speaker intends it to cause the conduct. In the South, during the civil rights movement, MLK telling people to engage in sit-ins, could be a crime. Its not protected.

2) Fighting Words- Abusive words which are likely to cause a physical reaction from a reasonable person. If you say anything which makes me want to hit you, it can be banned. Please note here, this actually applies to anything. Saying you are a libertarian at a democrats house could be considered fighting words. It hasn't gone that far, but it rationally and easily could.

3) Obscenity (my personal favorite)- Speech that is sexual, offensive, and "lacks serious value" can be banned. As Justice Stewart famously said in Jacobellis v. Ohio,
"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ("hard-core pornography"); and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." While the Court does not currently use the "I know it when I see it" standard, this phrase sums up how the Court actually views obscenity.

Anything which falls under these categories could be banned nationally from the Internet. Porn is gone. Anything saying a law is unjust could be censored. Anything which makes someone else want to hit you, good bye.

As noted before, this law would even apply in Oregon. In Oregon, it could not happen. There is no test to determine whether the constitution is violated other than, does the law restrict speech based on content. If the answer to that question is yes, the law is unconstitutional.

I love the Internet, because it allows me to say what I think. Are there down sides? Absolutely. The KKK assholes get to say what they think. However, that is what the Freedom of Speech is all about. You can think and say whatever you want, and I get to think and say that you are an asshole. You can do the same to me. That's the beauty of it. Once you take that away, freedom becomes meaningless.

Wednesday, June 9, 2010

Judicial Activism

I have been reading a lot of Time magizine as of late, and today they posted a responce to the question Are Liberal Judges Really 'Judicial Activists'? As you can guess, their answer is no, conservatives are the true judicial activists, and we should praise everything each and every liberal judge does (slight exaggeration).

There are currently three strains of constitutional interpretation. Viewing these types of interpretation is a much better way to break down the court, as opposed to the conservative/liberal labels. "Textualism" is the idea that the Constitution should be interpreted exclusively by the text (Thomas is the closest follower to this idea); "Originalism" is the idea that the Constitution should be interpreted by the ideas of the original understanding of the writers of each part of it (Scelia is the closest follower of this idea); "Living Constitutional Theory" is the idea that as time moves forward, our interpretation of the Constitution must evolve to fit new situations (Stevens is a close follower). It should be noted that I said the justices were close followers of these ideas; none rely exclusively on one idea.

To start, I can agree that constitutional interpretation is not easy, especially when there are conflicting ideas. However, one group, those following Living Constitutional Theory, has consistently interpreted the constitution following specific political agendas.

The article states that conservatives generally defer to the elected political branches. This is true, especially when dealing with Due Process. However, this highlights judicial activism from those following the theory of a living constitution. Due Process was intended to promise procedural due process. However, starting in the 1950s and 1960s those who believed in a living constitution started adding in new rights through due process. This is where we get the Right to Privacy (although it doesn't actually restrict the governments ability to gain information about citizens, so it has nothing to do with privacy). All of a sudden, abortion, which the political left was unable to make legal everywhere, was a constitutional right. When conservatives defer to elected political branches, it means that unless something violates the constitution, either textually or historically, its fair game.

The article makes a big deal about the use of the Equal Protection Clause to strike voluntary racial integration programs in Seattle and Louisville. The test for Equal Protection is that if the law breaks people into suspect classes (race being one of them), the strict scrutiny test is applied, where the government must show a compelling state interest, and the law is narrowly tailored to that interest (only available option). This test basically means the law fails; strict scrutiny is used in many different constitutional tests, and I can count on one hand how many times a law has survived (and when a law survives, everyone is quick to point out that the Court was being intellectually dishonest, and outcome determinative).

So, in those cases, there was a law, which divided people according to race, so strict scrutiny applies, and the law fails, right? Well its not that simple. One of the cases that survives strict scrutiny is racial integration (thanks to living constitutionalist justices in the 60s). When we have racial integration, in order to be narrowly tailored, there must be past intentional de jure (by law, as opposed to de facto, by fact) racial segregation, the segregation must still exist, and the law must have a termination point in the near future (20 years is considered the near future). The law, in essence, can pass the test if it is a remedy for previous laws discrimination. Good discrimination is allowed if there used to be bad discrimination.

So why was this law struck? Seattle and Louisville could not show that there was de jure racial discrimination. They didn't have laws segregation schools, which had to be remedied. There was no bad discrimination, so the good discrimination was not allowed. Is this activism? The dissents view was that the law should be updated to remove the need to show previous de jure discrimination. That is judicial activism. Changing the law, in order to become outcome determinative, and not being bound to previous cases makes having previous cases, and tests, meaningless.

Off all the justices, only Thomas is non-activist. He is the only justice who is willing to say, while this law offends me, it does not offend the Constitution. However, only one type of judicial interpretation makes judicial activism its method for interpreting the Constitution, Living Constitutional Theory.

To answer the question Are Liberal Judges Really 'Judicial Activists', the answer is yes. Judicial activism is how they interpret the Constitution, so that would make them judicial activists. Originalists and textualists also can be activists, but they are restrained in what they can do by their methods.

Tuesday, February 9, 2010

Breakin The Law, Breakin The Law

One of the interesting and thought provoking parts of the book I am reading is that it discussed breaking the law. It is too tempting and easy to think that in any situation worse than a weekend power outage you will just saw the barrel of your Remington 870 flush with the tube and carry it around all the time shooting people who do things you do not like or otherwise doing whatever you want. Matter of fact almost every serious worst case scenario worth considering will have law and order and LEO's in some form or another. Making difficult choices in an environment which is probably more harsh and restrictive isn't a pleasant idea but it is a realistic one. Both Matthew Bracken's "Enemies" series and the recent and enjoyable "John Galt" blovel show that things can get really bad AND you will still have cops and laws to worry about.

This book discussed breaking the law in an interesting and dispassionate manner. Look at what you can lose or gain from breaking a law. Look at the cost to benefit of both sides. For example I firmly believe anybody who does not keep a valid drivers license, have a vehicle that is properly registered and maintain the necessary auto insurance is seriously asking for a ton of trouble. You can get pulled over and provided you have the previously mentioned basic stuff you can go on your way without a hassle. If you want to argue about the legality of drivers licenses or whatever you could well end up like the brothers in Patriots. A drivers license costs a few bucks and they are good for several years. Vehicle registration sucks but if you drive an older and modest vehicle it isn't that bad. Assuming your driving record is halfway decent and you drive an older vehicle the bare minimum liability insurance should not hurt your pocket that nuch. For the cost of being able to drive wherever you want carrying whatever you feel like and getting out of a police stop with just a modest fine to me this is well worth it. Often the alternative means real problems when getting pulled over, even for what would surely be a warning like a dead tail light. Getting pulled over and not having these simple documents (Papers Please!) will almost surely mean your vehicle is going to get towed. In order to be towed it needs to be 'inventoried' and depending on what you have in it that day things could degenerate significantly from there. At a minimum it will cost money, take time and inconvenience you significantly.

What law would it be an easy decision to break? Well ones that are not actively enforced and do not carry significant penalties come to mind.

To me this isn't about saying "I am a free American and I can do whatever I want". For instance breaking federal firearm laws will almost surely bring a serious penalty. Mr. "The Constitution gives me the right to saw off this shotgun barrel" could well find himself in prison. One who was a bit more pragmatic might note that the difference between an 18 1/4 inch barrel and a 17 3/4 inch barrel is a half inch OR a few years in the pen. It is about taking an objective look at how breaking certain laws could make you more free as well as the risk of legal consequences and the severity of those consequences.

Just think about it.

Ryan

Sunday, October 11, 2009

quote of the day

"World history is not full of good governments, or of good voters, either. One of the great things about the U.S. Constitution is that it outlines a republic limited in scope and able to operate in spite of damnable officials and a chowder-head electorate-as 222 years of American history prove. "
-P.J. O'Rourke

Monday, August 3, 2009

quote of the day

We're all free men protected by the Constitution"
-Jax

Saturday, August 1, 2009

Guest Post:

TOR here: I am not posting today. John was kind enough to write a great guest post for your reading pleasure.

Hi Ryan,

After our emails the other day i did alittle research about laws and training. This might be too long for your blog. If it is, you might find it interesting. The videos are an eye opener.

John

Gun Control In Canada and A Warning To Gun Owners In The US

I recently emailed Ryan suggesting a topic about handgun training for his blog. [TOR adds: I would love one:] He emailed me back and suggested that I write about Laws and training in Canada. This one is about Canadian gun laws. In doing some research I can't find the law referring to handguns that predate 1995. I do know that ever since i bought my first handgun in 1992 it had to be registered and that i was only allowed to take it to a range. Rifles and shotguns did not have to be registered. You could drive around with your rifle or shotgun on a rack in your truck window if you wanted, but things have changed a lot since then.

I'll give you a brief history of when things began to change in Canada. In December of 1989 Marc Lepine ( born Gamil Rodrigue Gharbi ) The son of an Algerian father and a Canadian mother walked into Ecole Polytechnique Engineering School in Montreal and killed 14 women, wounding 10 more women and 4 men. Like his father, he believed that women were only there to serve men and blamed women for for everything wrong in his life. Reading his Wikipedia page I found out that he had appyied for and received his Firearms-acquisition Certificate ( what was needed at that time to buy a firearm ) and then bought a Mini 14. He entered the school, seperated the men from the women and told the men to leave. He then went on his rampage.

Political power in Canada is simple to understand. If you live in eastern Canada, your vote counts, if you're in western Canada, suck it up and do what the east tells you to do. The Liberial government ( which was already anti-gun ) agreed with the anti-gun movement and started looking into restricting firearms in Canada. Bill C-68 became law in 1995. It banned many types of guns and called on everyone that owned any handgun, rifle and shotgun to register them. The western provinces demanded that the law be regional since we are a more rural area. The Federal (eastern) government said no. The province of Alberta took the Fed to court and lost in 2000. This new law was to cost the tax payers 2 million dollars with the rest being paid by gun owners with registration fees ( we had to pay for our licences and pay to register each gun) according to the Liberial government at the time. From the period of 1995 to 2005 the gun registery has cost the tax payers over 2 billion dollars. That's 2 billion dollars that could have gone into crime prevention, improving schools, feeding kids or anything that didn't go down the toilet. We no longer have to pay to register each gun, but it's still a pain in the ass.

Here is what it takes to buy, own and store a gun in Canada. First you have to pay for a safety course test for rifles and shotguns ( pay for a second test if you want to buy a handgun ). After paying for those, you have to pay the government for the licence they give you. Without this licence you can't even buy ammo or reloading supplies. When you buy your gun or guns of choice the seller or gun store has to call the Gun Registery and give them your name, licence number, gun serial number and a few other things. If it is a rifle or a shotgun, you can take it home then ( with a trigger lock and in a locked case). If it's a handgun you have to wait until you get a piece of paper from the government allowing you to transport your handgun. Once you have your guns at home, you have to keep them locked in a gun locker that has to be secured to a wall ( nothing with breakable glass ). Unless you are hunting, your rifle or shotgun must be transported with a trigger lock in a locked case. You can only take your handgun to an approved range or to a gunshop. It has to have a trigger lock and be in a locked case. Your ammo has to be in a seperate locked case. I can't take my handguns to my brothers acerage or a friends farm to shoot or carry any of them in the bush legally. According to a government webpage, they will issue a carry permit for handguns to anyone that can prove they need one, but further research says that this permit is very rarely issued to anyone.

I came across 2 videos that you might find interesting. They both are about gun rights being taken away in England and Canada and they warn about what Americans should watch out for.

http://www.youtube.com/watch?v=qGVAQOUi6ec

http://www.youtube.com/watch?v=nmrqT9SIkQw

John

TOR here: Thanks a lot for the guest post and insights on our friendly brother nation to the north.


Sunday, June 21, 2009

Disturbing Potential Law

Block gun sales to those on the no fly list? Don't even get me started on the no fly list. People end up on it for weird vague reasons which include some .gov employee transposing a number or missing a key. It is also just about impossible to get off of this list once on it, even if you are a 5th grade teacher from St Paul MN who has never even had a traffic ticket of left the Midwest.

I think using this questionably legal and totally screwed up list as a starting point to steal peoples Constitutional rights is a fucking great idea.
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