Saturday, November 14, 2015

In Response

Today is not a day for partisan bickering, there comes a time when the childish games have to be put aside.  There comes a time to decide and to act, this is one of those times.

Yesterday, the Islamic State in Syria and Iraq (or Levant if you like, but since they like that name I won't use it again), killed more than 160 people in Paris.  It is their second attack in less than a year in that city.  The Parisians wonder why?  I must say I suspect why, but the larger question is what next?

The why I believe is this, the French have long embraced an openness, a liberty, which is at its core an anathema to the dictatorial ideals of any group seeking to re-establish a broad Islamic theocracy.  In the ISIS held areas of Iraq and Syria, there is no freedom of speech, of the press, of nearly anything and certainly no freedom of religion as exists here and in France.  Further, France is relatively open with it's borders and has allowed enormous immigration of refugees, from Algeria, from Syria (both former colonies) and from Iraq.  France has the largest Muslim population in Europe as a percentage of their total, and while I don't blame Muslims, it seems clear that with the larger population came along (or grew up) a small population of sympathizers with the "plight" of Arabs subjected to Israel or western imperialism, or any other of 100 excuses for murder such zealots make to justify their horrors.  Along with that population came as well, neighborhoods and families where such sympathizers can hide, protected by familial love, by neighborly concern for "the boy who has become a bit of a radical."  That ability to hide has been key, whether in Paris or in New York City.  It made travelling in Paris, living in Paris, hiding among those who dress similarly, like many of the same things, possible, and striking at the home of democracy, as the French feel they are, represented a great opportunity.  For those who demean the French, remember they were our first ally, they supported our democracy, certainly in part for their own interests, but also because they believed in our cause.  They have stood by our side in nearly every war in our history, and we by theirs.  Britain may now be our closest ally, but for a long time, it was France and not the least reason because they embraced protecting the liberties of the people.

So, what now? 

First, to the repulsive leadership of ISIS, you are fools.  While your awful, puny little state did little to antagonize the rest of the world, the rest of the world was ambivalent to your existence.  We understood you were the outgrowth of a power vacuum in Syria and Iraq and we expected that once that vacuum was gone, you would go with it because your brutish, anti-technology, anti-development ideals were nothing more than the criminal conduct of apostate young men seeking to rape, steal, and murder.  There might have once been some semblance of Islam's love in your cause, but that ended the first day you killed an innocent, the first night you raped a young girl.  You are damned, on Earth and in the afterlife.

For you see, second, the world is coming for you.  You missed your guess when you thought you could freely butcher the French like you butchered the U.S. populace on 9/11.  The French almost certainly will, and we should actively support, attack ISIS in Syria and Iraq.  They need no permission from Syria, it lacks a government to control it's populace.  Whatever permission it needs from Iraq should be easily offered.  The French are coming for you, and we must go along.   We must offer military and material support and we must keep at it until the Arab world is clear that the west does not consist of weak nations of fools, but of nations of laws who expect and demand lawful conduct by the citizens of ALL nations.  If the Arab world feels offended by the conduct of Israel or the support of it, there ARE in fact legal remedies, and even if those fail, ugliness on one side NEVER justifies killing innocents, not OUR innocents, nor theirs.  With that said, I am no supporter of building a nation in Syria or Iraq.  The Sunni radicals who established ISIS must be shown that no such nation will ever be allowed, not one which behaves in that manner.  They can chose their own government, they can have an internecine war with the Shia if they like, but they cannot try, by military force, to export their views or exact vengeance for perceived slights.  If that is their goal, it is time to meet force with force.  Beyond that, it's high time the leaders of Saudi Arabia were made to "toe the line" on ending support for ISIS.  That is the cost the US must impose. 

Inside France, and for that matter inside the US, it is time to start undermining the local sanctuaries which local neighborhoods may offer (unwittingly or god forbid wittingly).  I suggest the French offer $25,000 or even $50,000 per head for ISIS sympathizers who can be convicted of criminal activity related to terrorism.  I suggest we offer the same, though not obviously just for Islamic extremists, but all.   I do NOT suggest suspending the rule of law, or protection under the law, that would be repeating the mistakes of Afghanistan and make us no better than those we are fighting, but clearly most Muslims in France (or the US) have no love or patience for this conduct, clearly some people who might have been willing to "turn a blind eye" may be also willing to no longer do so if the right incentive is out there.  It's time to reduce their ability to hide for as David Patreaus noted, that is the key to ending any "insurgency." 

So, in short, it is time for war.

Paris Attacks

Yesterday... again....

brutal, disgusting pigs attacked and killed upwards of 160 people in Paris as undoubtedly you know.  No site dedicated to current events can be mute to such events.  It was nightmarish to watch unfold, it was a further reflection of the depravity of extremism, and of man when self-righteousness trumps decency and morality.  These men were not moral, they were the most base form of murderers.  They were not fighting "assymetrical warfare", they were killing children and other innocents in an attempt to intimidate the world, nothing more.

But this is not about them, it is written to mourn the dead and dying, to express kindness and solidarity with the French people and those who knew and loved the lost (and injured).

But what can be said?  What words can anyone utter which capture the scope of the horror, the disgust toward the attackers and their supporters?  What utterance properly conveys the anguish we feel, once again, for those attacked?  Will we become immune to the pain and shock?  Gosh, I hope not.  That's not a world I want to be a part of. 

To any of those affected by this attack who might read these words, cheap as they may be, please accept my most deeply felt condolences.  Your sudden loss, is I'm sure, heartbreaking.  Know that the world cries with you.  Know that justice will come to those who helped do this, to those who support this kind of vile brutality, but I am sure that is of little solace right now, and it may not be ever.  I have no more words, I am sorry for that which has been taken from you and your loved ones.

In deepest sorrow.

Friday, November 13, 2015

Oathkeeper? Guess again!

Their site says:
Oath Keepers is a non-partisan association of current and formerly serving military, police, and first responders,  who pledge to fulfill the oath all military and police take to “defend the Constitution against all enemies, foreign and domestic.” That oath, mandated by Article VI of the Constitution itself, is to the Constitution, not to the politicians, and Oath Keepers declare that they will not obey unconstitutional orders, such as orders to disarm the American people, to conduct warrantless searches, or to detain Americans as “enemy combatants” in violation of their ancient right to jury trial. See the Oath Keepers Declaration of Orders We Will Not Obey for details
This refers to the statement that "shall be bound by oath or affirmation, to support this Constitution".

The problem is that this statement places them in violation of that oath since the basis of a Constitutional society is the rule of law, which is:
The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials.
Just because you disagree with a law does not mean it is unconstitutional.  And, unless you are a constitutional scholar, you really have no right making a legal opinion about what is constitutional or not (yes, I am a constitutional scholar and a lawyer).

Article VI, Section 2 contradicts the above statement by the oathkeepers and makes it clear that it is the rule of law which applies:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Additionally, other sections of the Constitution and US law go against the premise of their upholding their oath.

Article III, Section iii:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
14th Amendment, Section iii:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The laws on this conduct can be found at 18 USC Chapter 115 and 10 U.S.C. § 892

Dennis v. United States, 341 U.S. 494 (1951) puts paid to the insurrectionist theory and the belief that one can disobey a lawful order (whether one agrees with it or not):
The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.

It is an absurdity that a document which was intended to "form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity" would somehow allow for acts of rebellion, no matter how well intentioned. 

In other words, the Oathkeepers are the people they took an oath to protect us from if they are unwilling to live within the Constitution and the rule of law. They need to understand that should they fail to obey an order or enforce a constitutionally enacted law, that they are in violation of that oath.

Bottom line is that the reality is you are an oathbreaker than an oathkeeper if you fail to obey a lawful order you may not agree with.

Saturday, November 7, 2015

What fools these gun nuts be...(or Totally Texas).

The Texas Legislature has decided one of the best ways to commemorate a mass shooting now that we know that we can only tell if someone is a mass shooter is when they actually open fire.

The Texas Legislature passed a Campus Carry law that will allow concealed handguns in classrooms, offices, and dormitories. This law will go into effect on 1 August 2016.

This date happens to be the Fiftieth anniversary of the University of Texas Mass Shooting where Charles Whitman killed 14 people and wounded 32 others in a mass shooting.

At first, I was willing to write this off to ignorance.  It seems this is more of a case of straight out stupidity.  The choice of date was no coincidence since the legislators who passed this law believe that if more people on campus had been armed, that tragedy could have been mitigated or averted all together.

The absurdity of such a position seems even more extreme when you consider that Whitman, a U.S. Marine trained sniper, was shooting from the bell tower. He chose this location because he knew that he'd have an excellent vantage point to shoot his victims, and he'd be able to defend his position. He was able to hold his position for 96 minutes despite counter snipers on the scene.

Police handguns and shotguns were utterly useless. What makes these legislators think that a civilian with a handgun would stop a similar situation, if not make the situation much worse.

There is at least one building on that Campus which bears the scars of Whitman's bullets, yet the memory of this event has been lost to the point that the Texas Legislature unwittingly stupidly allowed for guns to be allowed on Campus.

The gun free zone being a target is a myth.  The FBI tells us that active-shooter scenarios occur in all sorts of environments where guns are allowed—homes, businesses, outdoor spaces. 

Umpqua Community College (UCC) wasn’t a gun-free zone. Oregon is one of seven states that allow guns on college campuses—the consequence of a 2011 court decision that overturned a longstanding ban. In 2012, the state board of education introduced several limitations on campus carry, but those were not widely enforced.

School policy at UCC does ban students from carrying guns into buildings except as “authorized by law,” but at least one student interpreted his concealed handgun license as legal authorization.

John Parker Jr., an Umpqua student and Air Force veteran, told multiple media outlets that he was armed and on campus at the time of the attack last week. Parker and other student veterans (perhaps also armed) thought about intervening. “Luckily we made the choice not to get involved,” Parker told MSNBC. “We were quite a distance away from the actual building where it was happening, which could have opened us up to being potential targets ourselves.”

It seems most of the "good guys with guns" have similar cases of cold feet, which is good since they will probably cause a total clutterfuck should they decide to get involved.

Politico has a good article on how the "good guys with guns" turns out to be a myth with seriously detrimental consequences.

The upshot of this is that the tide has to change or 1 August 2016 may be the date of more than one mass shooting.

And the Texas Legislature may truly regret this action.

Friday, November 6, 2015

Guns in Public

Reagan's Comments on signing the Mulford Act
I’ve been saying all along that the pro-gun side is based on science fiction (literally). “An armed society is a polite society” comes from Robert Heinlein’s “Beyond This Horizon”. If you are unaware, this is a novel where duels may easily occur when someone feels that they have been wronged or insulted that is attributed as a custom that keeps order and politeness.

We have seen where the other arguments are based on misquotations and fake history.  I’ve long wanted to rip apart the revisionist history of the Second Amendment, but I now know that someone else will do that for me using the material I have provided.

I won’t even bother with John Lott and the serious overestimate of DGUs.  Where  are the heroes with guns when the daily mass shootings happen?

People carrying weapons in public is not a right (Presser v. Illinois, 116 U.S. 252 (1886), Robertson v. Baldwin,165 U.S. 275 (1897) at 282 [1], and DC V Heller, 554 U.S. 570, (2008)[2]). Heller mentions Rawle, which says:
This right ought not, however, in any government, to be abused to the disturbance of the public peace.
An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment.
The ultimate argument against open carry and guns everywhere are the Colorado Springs 911 calls relating to the mass shooting.Open carry comment at 2:49 of first call.

"Oh, it's OK if he isn't shooting....yet."

Do you know how bizarre your gun free zone arguments sound when a 911 operator gives a mass shooter a pass because he had a right to walk around with a gun?

 The funny thing is you people don’t realise how stupid you sound with your silly arguments that are so obviously false if someone takes the time to fact check them.
Anyway,  It’s time that the debate began to be based on facts, not rubbish.  Congress needs to repeal the research ban on gun violence (come on, people, can’t you admit that your nonsense doesn't survive scrutiny?). [3]

Additionally, it’s time the Supreme Court owned up that the Second Amendment has fallen victim to desuetude. It would be a truly conservative act to make that admission.  Here is Justice Robert Bork (The Tempting of America (1990)) on this issue:
“There is a problem with laws (which are not enforced). They are kept in the code books as precatory statements, affirmations of moral principle. It is quite arguable that this is an improper use of law, most particularly of criminal law, that statutes should not be on the books if no one intends to enforce them. It has been suggested that if anyone tried to enforce a law that had moldered in disuse for many years, the statute should be declared void by reason of desuetude or that the defendant should go free because the law had not provided fair warning.”
The Second Amendment was obsolete when it was written. Joseph Story pointed that out in 1833:
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.[4]
The problem is that the protection intended is no longer needed.

And trying to somehow “modernise” it has met with resounding failure.

This is not something which is Liberal or Conservative.  After all, Jim Brady of the Brady Campaign was Ronald Reagan's Press Secretary.  I posted a meme of Reagan's comments from when he signed the Mulford Act, which banned carrying guns in public. 

This is a matter of public safety, not something that should be a subject for political machinations, which is the real perversion of the Second Amendment.

This is an obscure passage in the US Constitution that needs to be repealed since it is too prone to being misunderstood at the detriment of the principles the Constitution is supposed to promote.


[1]  “the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons”–Robertson v. Baldwin,165 U.S. 275 (1897) at 282

[2] Heller:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Which has as a footnote (26):

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
[3]  yeah. yeah.  I know you want to barrage me with your silly comments, but that’s all asked and answered.  Besides, I’m not out to persuade you of anything–I already know you are someone who doesn’t think. If you really want to have a response from me, go read this.  It’s generic, but it makes the point.

[4] Joseph Story, Commentaries on the Constitution 3:§1890 (1833). See also, Adam Smith, Wealth of Nations, Book V, Chapter I, Of the Expences of the Sovereign or Commonwealth, PART I Of the Expence of Defence particularly v.1.26-7.

Wednesday, November 4, 2015

Lawful Orders and Unlawful Conduct

An incident at Spring Valley High School in Richland county in South Carolina has gone viral after cell phone video of the incident was posted on the web.  The incident shows the a police officer, identified by students as officer Ben Fields, approaching a 16 year-old female student and asking her to leave the classroom.  The student refused, as she had refused the teacher and refused (apparently) the school’s guidance counselor to do the same.  When she refused the officer appears to try to grab the girl’s arm/hand and the student pulls away from him.  He then grabs her around the neck, she looks to in part stand up and also to have been dragged upward by the officer.  She and the desk she is in then flipped over backward hitting the floor (the officer stepped back and out of the way).  He then grabbed her arm and dragged her out of view, apparently dragging her headfirst into a wall where he took her arms and handcuffed her.  She and another male student were arrested at the scene and were potentially to be charged with disturbing the peace.

Now, first things first.  This student behaved badly, and badly is an understatement.  She refused to stop being a distraction, she refused to comply with the policies of the school on conduct and use of electronic communication in the classroom.  She refused to stop when asked, and did so repeatedly.  She refused her teacher, a counselor and the officer.  She deserved punishment, even suspension for her conduct.  Furthermore, she refused the orders of a police officer.  Whether those orders can be considered lawful orders, given that she was seemingly not violating the law (unless the school had ordered her removed from the premises which they hadn’t), consequently the officer was attempting to get her to adhere to school policy, not the law (or so it seems) and so his orders would not, seemingly, carry the weight of the law and so entitle him to act as if she were breaking the law (when she seemingly was not).

Furthermore, I raised my kids to obey the orders of police officers “no matter what” unless the officer were telling them to do something harmful to themselves or to others and then only to decline to do so with a comment like, “Officer, I mean no disrespect, but I do not believe it is lawful for me to obey you, I would like you to call my parents and an attorney.”    This student had no such claims.  The officer was not asking her to do something physically or emotionally damaging (getting off your phone/not texting isn’t emotionally damaging) and she was bound by common sense if nothing else to obey.  She was also bound by reason and good judgment, pissing off a cop is a bad idea in nearly any circumstance.  So, I can agree she behaved stupidly, if not unlawfully. 

And that’s where it stops.  This officer didn’t have the right to react with force out of proportion to the offense.  Let’s assume she indeed broke the law by not obeying him, he has the right to arrest her, but he does not have the right to assault her.  He has the right to affect that arrest, but he does not have the right to assault her.  That’s in part where this controversy starts (but hardly where it ends).  Many cops, and many people who carte blanche support cops, believe that “anything goes” if a cop tries to arrest you and you put up any sort of resistance.   Should we then allow cops to beat someone into submission if they pull back there hand?  DO we allow it?  The answer is, no we do not.  The officer here had a responsibility if this were an adult, to act in proportion to the original offense.  There simply was no need to try to affect a physical arrest.  She was doing nothing more than sitting on someone’s doorstep longer than they wanted.  Turning that into a physical confrontation was HIS choice, and a choice cops all-to-often make, namely, to become aggressive and physical because the person they are talking to isn’t as respectful as the cop likes.   

But that’s not what was the case here, this wasn’t an adult.  It was a 16 year old.  Cops, as with ALL adults, have to temper, MUST BE TRAINED TO TEMPER, there reactions to the person they are dealing with.  16 year olds are kids, sure they could carry a gun, but there was no question this kid wasn’t presenting a physical threat to the officer.  They (16 year olds) make bad, even stupid, decisions.   They behave badly, just as this student did.  It is the job of the “adult in the room” to remember to be the “adult in the room.”  This police officer was fired because he didn’t follow protocol, he used excessive force for the given situation (the person wasn’t violent and wasn’t presenting a danger), but he also used excessive force given the “perpetrator” (if we want to call her that).  He needed to de-escalate, not escalate.  Would he have been “ok” if this had been a 12 year old?  I suppose some would say “depends on how big he/she were” but that’s not true, what if it were a 5 foot 2 inch , 160 pound 6 year old?  (they happen).  The judgment isn’t on his/her size, it’s on his her maturity, cognition, and decision-making skills.  I have a 16 year old, she’s great, but she’s not an adult.  She makes good choices, she also makes not-so-good choices.  His job, as a police officer, is to show extreme discernment, far beyond that of regular civilians, in when to use and when NOT to use force.   He erred massively here.  She was a child acting out, we don’t throw them to the ground, we don’t put them in head locks or arm bars, unless they present a danger to themselves or someone else, and we sure as hell don’t slam them headlong into a wall.

Last, and my daughter pointed this out when I said I thought this cop would have done this with anyone, it was his pre-disposition to using force, she said that maybe, but maybe not too.  It is possible, she said, that this cop would well have reacted differently had she been Caucasian rather than African-American.  I started to say “no” and then thought better of it because, you know, there’s just way too much evidence out there of differing reactions by police based on race.  So, while this cop behaved incorrectly with respect to the situation, it may ALSO be true that he behaved incorrectly, out of protocol and in a way he wouldn’t have had it been a pretty young 16 year old white girl.  In thinking about it, there may well have been three problems, one is a cop who took his authority FAR too far, two was a student who behaved like a “stupid kid”, and three, the one that gets people fired up ALONG with the first problem, it may well be we had a police officer who became physical when he would have otherwise not, in part because of the student’s race.  Before you dismiss her complaints, ask yourself, are you 100% sure (or even 90%) that this officer would have treated a white student identically?  If so, why? 

This officer could have sat down with the girl, found out what was going on (her mom had died a couple weeks before), he could have simply drug the desk out, with her in it, he could have asked the teacher and the rest of the students to leave for a moment (there already was a major disruption, so please don’t tell me that would have been a worse one that watching her get drug around the room), in short, he had options.  He failed to use them.  She behaved unacceptably, but unacceptably from a SCHOOL’s perspective, not the law’s.  The remedies here were those afforded the school (punishment, detention, suspension, expulsion).  We don’t kill people for jaywalking and we sure don’t kill kids for it, more important still, we don’t kill black kids and give white kids a stern talking to.