Legal Issues

Why There’ll Never Be a Breakaway US State

Legal Issues, Society's Strangeness No Responses »

Mar 182018

There’s nothing magic about state boundaries. So why not change them now?

It is either a brave person or a fool who claims that something will never happen. But in this case, it seems fair to be so absolutist in predicting we’ll never see a breakaway state created by splitting an existing state into two, even though there are occasionally – and particularly at present – vocal minority groups calling for the creation of new states, primarily on the west coast.

There are also moves by some states to secede from the US, and that too is something we view as improbable. Let’s look at both these scenarios.

Splitting States in Two

In all the west coast examples, what we see is a minority group of people wishing to create a new state out of some part of a current state (California, Oregon, Washington), or perhaps out of some part of several states – part of CA and OR combined to make a new state, or part of OR and WA, or whatever. Examples of this include proposals for new states to be called Cascadia, Jefferson and Lincoln.

In all three cases, each state has a very stark split between a conservative rural population and a liberal city population, with the liberal city populations dominating both the state legislatures (sometimes even to the point of having super-majorities) and the senators who are sent to DC (all six senators from these three states are Democrats).

In addition, the three current states award all their electoral college votes to the candidate winning a majority of votes, unlike some states that award electoral college votes proportionally to represent the popular state vote, or by congressional district. California currently has 55 votes, Oregon has 7 and Washington has 12 – a total of 74 votes between the three states which are safely awarded in their entirety to whoever the Democratic Presidential Candidate may be.

Due to the strong Democrat majority in all three states, Republican voters have little or no say in either state or federal elections (other than for House of Representatives members) and feel disenfranchised, with their states increasingly taking positions that are further and further away from their own views. And because these people are not evenly distributed through the state, but rather are geographically concentrated in certain regions, it is understandable why they would feel alienated from the current concept of their state and seek to create a new state to better represent their values.

It is possible we might see new states added (Puerto Rico in particular), but the political balancing required to split existing states into two is unlikely to ever work, for the very simple reason that doing so will upset the political balance. In the past, there have been some accepted splits (Vermont out of New York in 1791, Kentucky out of Virginia in 1792, Maine out of Massachussetts in 1820 and West Virginia out of Virginia in 1863) but the most recent of those is 150+ years ago and well before the political balance coalesced so clearly into two bitterly opposed camps.

Think about what would happen if, for example, California split in two, with the result being a new state that solidly votes Republican and the remains of original California still continuing to vote solidly Democrat. At the national level, there will be little change in terms of how members of the House of Representatives are selected, because that is based more on population than on state lines, but in the Senate, an additional two seats have been created, and they will be almost surely filled by two more Republicans. In addition, the solid bloc of 55 Electoral College votes has now been split in two, diluting the Democrat advantage in Presidential elections.

What Democrat would willingly support a move that would see two more safe Republican senators added to the Senate, and to siphon off some of their safe electoral college votes? Never mind notions of fairness and what is honorable and just. Simple politics will override such concepts, and all Democrats will unite to prevent that happening – both at state and national levels.

So there is the paradox – a state that is dominated by one party will never ‘commit political suicide’ by enabling the minority to create their own additional state and to gain a voice over their region and in the national political forums.

To be even-handed, if there were also a move to divide a firmly Republican state in two, we’d expect the same behavior to be exhibited by the Republicans!

How The State Splitting Process Would Work

The process for creating new states is spelled out in Article Four, Section 3, Clause 1 of the US Constitution. It reads :

New States may be admitted by the Congress into this Union; but no new States 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.

This makes it relatively easy for entirely new states to be added, but the restrictive provisions after the first semi-colon requires that creating an additional state out of parts of one or more states requires both the agreement of the affected states and of Congress too.

So even if, as at present, the Republicans control both houses of Congress and the Presidency, the fact that at the state level the affected states are controlled by Democrats means that splitting a state will never happen.

Never Say Never?

There is, however, a very scary thought.

What say instead of a Republican controlled federal government, we had Democrats in control. What would prevent a large state such as California from credibly saying “We’re too big, we feel that it would be fairest for us to reduce in size to something more similar to other states”, and then gerrymandering the border split so that both the new states remained strongly Democrat?

The state legislature would happily vote for that, and so would the federal government, and the net result would be two more Democrat senators appointed.

Would a State Secede From the Union?

The other thing we’re seeing renewed interest in, during the Trump Presidency and the ever greater divide between his political views and those of certain Democrat-dominated states (yes, California, we’re talking about you) is a move from simple state defiance of the federal government (the ‘sanctuary’ nonsense) to a desire to leave the union entirely.

In California’s case, there are certainly many rational reasons for seeing this as a possible move and expecting the new nation to be viable. They have plenty of coast and deep-water ports, they have all the infrastructure they need, they have a large land mass (if a separate state, it would become the 59th largest in the world, smaller than Iraq and larger than Paraguay), population (it would become the 35th largest, smaller than Sudan and larger than Poland), and economy (if a separate state, it would be the sixth largest in the world – smaller than Britain and larger than France).

But the political implications are very complex in such a case, and there’s an amusing paradox for the Democrats to consider. If they were to abandon the US and secede, they’d be weakening the Democratic base for the rest of the US. Two fewer senators, 55 fewer electoral college votes, and a varying number fewer Congressmen.

So, Californian Democrats have to ponder – is their hate for Trump, who will be in office for at most seven more years – so great that they’d be willing to turn the rest of the US more strongly Republican by leaving the union? Or, in the interest of keeping the nation as a whole more strongly Democrat, will they tough out the balance of Trump’s first and possibly second terms?

There is also the fact that if California decided to secede, that would change the equation for the more conservative parts of the state. They would no longer be trying to split a state in two; instead, they would be part of a separate nation trying to be accepted into the US instead, and that no longer requires the consent of the rest of the nation they in turn would be seceding from.

Note that back in the Obama days, a number of primarily Republican states also grumbled about seceding, although of course nothing ever came of it.

Can a State Secede From the Union?

The preceding section ignored an important question – could a state ever secede from the union? Surprisingly, the Constitution is entirely silent on this point. As far-sighted as its drafters undoubtedly were, they clearly never thought that a state, once joining, would ever want to leave again.

There is, however, a famous Supreme Court case that spoke to the subject, known as Texas v. White, back in 1869. The key part of the verdict is usually quoted as being :

When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States.

This quote is accurate, and is shown on page 726 of the Court’s decision.

But whenever you see a quote, you should always go to the source, and read it in context. In this case, there are three points of note.

The first is the nature of the case itself. It was primarily about the ownership of some bonds and whether the state of Texas lost or retained ownership of those bonds during its period of self-declared independence and the Civil War. The nature of the state’s potential for independence was possibly secondary to its bond ownership and obligation, and whenever a Court comments on something that is outside of the direct purview of the case, those comments become known as ‘obiter dicta’ and don’t bind future courts and rulings.

It is debatable as to if the above paragraph is obiter or part of the binding decision, but anything that is debatable can indeed be debated, and the Supreme Court has managed to come up with new opinions and policy reversals on much weaker grounds in the past, when it chooses to.

The second point is that there is another sentence in the same paragraph that was quoted above. That sentence adds an important exception to the preceding global assertion.

There was no place for reconsideration or revocation, except through revolution or through consent of the States.

So, even though the judgment started off by asserting the permanent nature of the union of states, it also countenanced two mechanisms – neither clearly defined or explained – that would allow states to secede, albeit one of them a mechanism which required the concurrence, in some form, of some number of the other states in the union.

It is also relevant to note that the concept of the word “revolution” is far from clear. We’re in an age of ‘peaceful revolutions’ that have occurred throughout Europe; a revolution may as likely be a sweeping tidal wave of public opinion on a matter, without requiring bloodshed, and without also requiring the concurrence of some external authority. The fact that revolution is cited as a separate means for secession would imply the Court understood that revolution does not require ratification by Congress or the other states; but we are not told what would constitute a qualifying revolution.

The third point is that this was not a unanimous decision of the Court. It was a majority decision, with five justices agreeing and three disagreeing. While the majority rules, the dissenting judgments by other justices can often be used in subsequent court cases to ‘distinguish’ cases from previously decided cases and to support overruling future cases. There is plenty of material in the dissenting judgments, should any future court be so minded.

A combination of the paragraph possibly being considered as obiter dicta, and the dissenting opinions provides future courts with plenty of rich opportunity to rewrite this finding.

So, while the simple answer to the question ‘can a state secede from the union’ is usually given as an emphatic ‘No!’, the actual answer is more nuanced. Clearly, through some sort of peaceful process and with some degree of acceptance by the remaining states, secession is possible, and similarly, whether it be peaceful or not, revolution could also result in secession.

Our feeling though is that these days there will never be sufficient consensus within a single state to create the overwhelming groundswell of opinion and popular support for a secessionist movement to be successful.

The Real World Possibilities

While there are some genuine and ardent supporters advocating either carving states up into additional states or simple seceding from the union as a whole, the number of such people have never risen to any appreciable percentage of the population.

Until there is a real true public demand for such actions, of course no such thing will occur, and indeed, even if the supporters of such a move become broader based and more vociferous, the extremely contentious nature of such actions are likely to see nothing happen.

Military Style Policing Is Destroying Our Civil Society

America in Decline, Legal Issues, Military and Police Matters, Police and Crime, Society's Strangeness No Responses »

Jul 212013

How did our police transition from being friendly locals to impersonal hostile strangers? Has this change made us safer?

The cornerstones of modern effective policing actually date back to 1829 and England, when Sir Robert Peel established the Metropolitan Police Force in London, based in Scotland Yard (hence them sometimes being referred to as Bobbies, or, in a more pejorative sense, as Peelers).

Arising out of his reforms came what are known today as the Principles of Policing, and we’ll list all nine of them before moving on with our article.

The basic mission for which the police exist is to prevent crime and disorder.
The ability of the police to perform their duties is dependent upon the public approval of police actions.
Police must secure the willing co-operation of the public in voluntary observation of the law to be able to secure and maintain the respect of the public.
The degree of co-operation of the public that can be secured diminishes proportionately to the necessity of the use of physical force.
Police seek and preserve public favor not by catering to public opinion, but by constantly demonstrating absolute impartial service to the law.
Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice, and warning is found to be insufficient.
Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent upon every citizen in the interests of community welfare and existence.
Police should always direct their action strictly towards their functions, and never appear to usurp the powers of the judiciary.
The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with it.

The core concept is that the police operate with the support and approval of the citizenry they serve. This was evidenced by the concept of police officers walking the beat, armed with nothing more than a short wooden truncheon discreetly in a pocket, and integrating into the neighborhoods they serve. Peel’s most famous statement stresses the integration between the police and community by saying ‘The police are the public and the public are the police’.

We can see the epitome of Peel’s principles expressed in that lovely television series from the 1960s, The Andy Griffith Show, which ran from 1960 through 1968. As you surely know, Sheriff Andy Taylor was known, respected and liked by all in his North Carolina (fictitious) town of Mayberry, and he never carried a gun. He didn’t need a gun, because a friendly word, a fatherly word, sometimes a stern word and sage advice was all he needed to keep the peace.

The year after The Andy Griffith Show ended its run, policing in the US took a turn for the worse. After several years advocating the concept, the then police inspector Daryl Gates of the LAPD (subsequently to become a controversial police chief) was given permission to develop the nation’s first SWAT team, which deployed for in 1969, first in a raid against a holdout cell of the Black Panthers. The SWAT concept was modeled after the Marine Special Forces.

After some controversy, Congress provided the next tool for the militarization of the police, when in 1970 it passed a new law authorizing ‘no knock’ raids for federal narcotics agents. After repeated abuses of this power and many probably unnecessary casualties as a result of such raids, the law was repeated in 1974, but strangely, the concept lives on to this day, even without a federal law authorizing it.

Originally, in the 1970s, there were only a few hundred SWAT raids each year, but since that time, the number has been inexorably growing, while the trigger point for requiring a SWAT deployment has been successively lowering. This article says the number of no-knock raids increased to 3,000 in 1981, and grew massively further to 50,000 in 2005 (that’s 136 times every day), and suggests that over 40 innocent bystanders have been killed.

As well as the 40 innocent bystanders who have been killed in gratuitous shoot-outs, many of the people being raided have also been killed in totally unnecessary circumstances, in situations that would not have occurred if one policeman had simply and calmly knocked politely on the guy’s door and had a discussion with the person when he answered.

The article also points out that criminals sometimes now pretend to be police on a no-knock raid, and, even worse, the police have moonlighted as criminals, conducting unauthorized no-knock raids to seize cash and drugs for their own personal gain and resale.

The article (it is short and you should read it) also points out just a few of the too many dubious uses of lethal force by police in no-knock raids. What it does not and apparently can not point out, however, is any case where the ‘official review’ of use of force in a no-knock raid has ever been ruled unlawful or inappropriate, or any charges being filed against the police who conducted the raid (or, even better, filed against the judge who inappropriately authorized it). Our police are increasingly unaccountable for their actions, even when their actions result in the unnecessary loss of life.

Until recently, one of the worst cases of no-knock raids was the shooing of US Marine veteran Jose Guerena in Tucson. After shooting at him 71 times (and hitting him 22 times), the police then did not allow any medical aid, and watched Guerena slowly die from his wounds over the next hour. In justifying their actions, the police claimed that Guerena shot at them first, but subsequently it was shown that his rifle was unfired and the safety catch still on. An official report exonerated the police (naturally). Details here.

In addition to no-knock warrants, the ‘knock and announce’ type warrant has become more and more closely identical to a no-knock warrant. In theory, a knock and announce warrant requires the police to knock on the door and call out to the occupants, giving them a chance to voluntarily open the door prior to breaking it in and invading the property. But how loud a knock, how loud an announcement, and how long a wait is involved prior to the police then breaking down the door and swarming inside, with their fully auto weapons ready to gun down anyone they encounter? That’s a grey area, and the courts have been increasingly permissive about what the police can get away with.

There are also repeated allegations that police did not knock and announce prior to breaking in to properties. Of course, in a situation where you have a team of half a dozen or more police officers all claiming they followed procedure fastidiously, and one or two citizens, now either dead or in custody for some trivial crime (perhaps ‘resisting arrest’), who will the courts believe? The police, every time. The police are no longer accountable.

After the ‘success’ of the first LAPD SWAT team, other police departments were quick to copy. After all, it gave the police new fancy clothes to wear, new vehicles to drive, and new toys to play with – who wouldn’t love that. By 1975, there were approximately 500 SWAT teams around the country.

More recently, in the hysteria fueled by 9/11, the new Department of Homeland Security (now the third largest cabinet level agency in the country, with only the DoD and Veterans Affairs larger) has been awarding grants, totaling over $32 billion so far, enabling police departments everywhere in the country to outfit themselves with military vehicles and military weapons. The federal government seems to want to encourage the militarization of even the smallest town’s police departments.

Does any Police Department not have a SWAT team now? Even small towns have SWAT teams. In 1983, already 13% of towns sized between 25,000 and 50,000 people had a SWAT team, and in 2005, that number had grown to 80%.

It isn’t only PDs that have SWAT teams these days. Some of the most unlikely federal agencies also have SWAT teams, including the Fish & Wildlife Service, NASA, the Department of the Interior, and the Department of Education.

SWAT raids now seem to be the standard way for the police to interact with the citizens they are protecting and serving. Whether it be the SWAT team that raided a small group of Tibetan monks who had overstayed their visas while on a peace mission, or the repeated SWAT raids on home games of poker, any and every police action seems to warrant a full SWAT deployment.

Think about the slogan ‘To Protect and To Serve’. The police are neither protecting us nor serving us when they hide behind face masks, helmets, and body armor, and break into our houses in the dead of night for no substantial reason. They’ve totally lost sight of their mission. Instead of protecting and serving us, they are recklessly endangering us and dominating us.

Here’s a great history of the rise of SWAT culture in US policing. (If the link is dead, search for ‘Rise of the Warrior Cop’ in Google, you want to find a Wall St Journal article from July 19, 2013.)

All of the preceding has merely been introduction. Please now read an appalling story of the latest SWAT raid, and in particular, the circumstances in which it took place. The police received an anonymous tip suggesting that a child rape suspect was somewhere inside an apartment complex. They had no specific information that the suspect was in the woman’s apartment that they terrorized, and they had no warrants supporting any of their activity. But when the woman was slow to comply with their demand to let them in and search with no warrant, that ‘confirmed’ to them that he must have been in her apartment.

Yes, if you don’t voluntarily surrender your constitutional rights, you are now presumed guilty of harboring a rape suspect, it seems, even if you are a 59 year old middle class nurse with no police record or past problems.

Details here.

Look back up to the nine principles of policing. How many of those are still being observed today?

We read a lot about the terrorist threats against the US. Some might think that the greatest threat, and the greatest acts of terrorism, involve not Muslim extremists, but our own law enforcement officials, and rather than breaking the laws, they are aided and abetted by permissive laws and even more permissive courts.

US Court Forbids First Amendment Defence and Prohibits Defendant from Talking to the Media

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Jun 302013

Judge Howard Shore of the San Diego Superior Court.

Okay, so some people might disagree with what the defendant did, but that’s not to say he shouldn’t be allowed a full defence in his criminal trial on 13 charges of vandalism.

Jeff Olson, a left-wing anti-bank political activist (gack) had been scribbling messages such as ‘Stop big banks’ on the sidewalk outside Bank of America branches in San Diego, using chalk to do so. You know – what kids use, sidewalk chalk, the stuff that can be washed off or which just ‘disappears’ all by itself in double quick time anyway.

Rather unbelievably, one of the Bank of America branches claimed it had cost them $6,000 to clean up the chalk slogans. Presumably the bank can do this if it wishes, although the city not the bank owns the sidewalk outside the bank building.

After pressure from the bank, the City of San Diego agreed to bring 13 charges of vandalism against the sidewalk chalker.

Which brings us to our headline. In a pre-trial motion hearing, Judge Howard Shore granted the city’s motion to prohibit the defendant from claiming or even mentioning any rights possibly extended to him under the First Amendment.

The learned (?) judge said that because California’s Vandalism Statute didn’t specifically provide an exemption for First Amendment rights/claims, that means that a First Amendment based defense would not be allowed in his court.

Now, goodness only knows that we’re not attorneys, but we do remember from our law school days a quaint notion being that the Constitution (including all Amendments) was the Supreme Law of the Land. And no matter what lesser federal, state, county and city laws might or might not say, they could not ignore or overrule the Constitution.

Perhaps Judge Shore skipped class the day this was taught.

It is also surprising that the Judge has prohibited even mentioning the First Amendment in the trial. It may well be that the First Amendment doesn’t apply to the facts of this particular case, but to prohibit it being raised is an unfortunate decision.

But wait, there’s more. After word of his ruling filtered out of the court-room, the judge found himself facing a tidal wave of criticism – from the defendant and his attorney of course, from the public, from media, and even from the Mayor of San Diego.

So the judge’s next step was to forbid the defendant or his attorney from talking about the case to anyone!

Secret justice? That’s an oxymoron, and is totally the opposite of our American notions of the need for justice to proceed in an open court, holding all parties accountable to public scrutiny and review.

That’s another class that Judge Shore may have skipped.

Here’s some background on the case, and here’s a report of the judge’s first decision banning the First Amendment, and here’s a report of the judge’s gag order.

Knowing When NOT to Shoot

Guns 'n Ammo, Home Defense, Legal Issues, Military and Police Matters, Police and Crime, Political Correctness, Self Defense, Society's Strangeness No Responses »

Feb 112013

Don’t learn your lessons from the movies. Dirty Harry isn’t real. And you’re not a cop.

So there you are. You’ve surprised three felons about to burglarize your property. Fortunately, you have your handgun with you, and when you confront them as an armed homeowner, the three felons very sensibly turn tail and flee.

Great. So far, so good. Bravo.

But what happens next can completely change your day if you’re not careful. There you are – heart pounding, blood surging, adrenalin levels off the scale, full of righteous anger, and your gun is in your hand. Maybe you even have some vague fuzzy perception that it is legal to shoot after felons, perhaps because you are ‘in hot pursuit’ or something like that.

Do you shoot after the bad guys? Or do you carefully holster your handgun and call the police?

Don’t just answer this question in the calm and comfort of where and how you’re reading this. Try and really put yourself in the scene, and understand how you’d be thinking and reacting.

Now – the answer. Would you shoot after the bad guys?

If you answered ‘yes’, go take a cold shower. Then come back and please continue reading.

If you answered ‘no’, congratulations, but don’t relax. Drill that ‘I must not shoot’ thought hard into your brain, so that when the situation actually occurs and you’re operating more on instinct and emotion, your rational self can still fight away the blood lust and desire for vengeance and correctly guide your actions.

Don’t just take our word for it. Read this short news item about a homeowner in a scenario pretty much as we just depicted. He did the wrong thing, and got locked up for it, and now is facing an expensive journey through the legal system, with the only certain thing in his future being tens of thousands of dollars in legal fees, many sleepless nights full of worry, and possibly – probably – a criminal conviction on his record and maybe even some prison time.

Two things to remember :

First : Your state may or may not have a long laundry list of situations in which it might be legal to use lethal force. But the only one of these which is likely to be unimpeachable is when you or your loved ones are staring certain death or severe injury in the face, and you have absolutely utterly no way to avoid that outcome, other than to use the least amount of deadly force possible. All the others are less black and white, and you can find yourself trapped in very unpleasant grey.

As soon as you retreat away from that ‘worst case’ scenario, you start to facing a growing subsequent alternate worst case scenario – either criminal and/or civil action against you after your shooting. Depending on the jurisdiction you live in, your state’s laws on deadly force may be interpreted permissively or restrictively, and concepts such as ‘what would a reasonable man be expected to do in the circumstances’ could be answered – in a court of law – in very different ways.

Remember also that juries are fickle. You can never guarantee what verdict a jury will reach. Get a couple of vociferous anti-gun people, a few others who believe that ‘nothing can ever justify taking a human life’, and have the others basically conciliatory and passive, and before you know where you are, you’re guilty of whatever the prosecutor has decided to throw at you.

Maybe the local community is currently experiencing a backlash against some gun tragedy somewhere in the country, and it is just your bad luck to be the recipient of that backlash. Maybe you are white and shot at black criminals, and the case has been perverted into a cause celebre for ‘black rights’ and you are made to look like a racist rather than an ordinary homeowner. And so on and so on.

The bottom line : Any shooting may have extremely unfair criminal and civil consequences. Avoid the risk of such consequences, by avoiding the need to shoot.

Second : Go stand in your driveway and imagine yourself doing like the guy in the news story did, shooting at the would-be burglars as they make their getaway. Now look carefully at what is in the background. What do you see – and also what are behind the bushes and fences that you can’t see (but which your bullets can reach)? Houses. Apartments. Cars. And, most of all, people.

In most residential areas, there’s no such thing as a safe direction to shoot in. Even if your shots hit the bad guys, they might still travel through and on and cause other damage elsewhere. Police departments regularly average $10,000 and up, for every shot fired by their officers, in terms of the costs they incur repairing the damage from the rounds expended. You can expect the same, and it will be money out of your own pocket, because your insurance will refuse to cover you.

Here’s the unfair thing (and – get this – everything about these types of situations is unfair, right from the get go). If you hold your front door open for the burglars and help them carry away all your gear; insurance will reimburse you as per the policy you have. They see that as an accident or event you have no control over.

But if you protect your property and shoot at the burglars, the insurance company won’t thank you for acting to reduce the amount of loss they have to pay out. Instead, they say this was a deliberate act on your part, not an accident or random piece of bad luck, and they’ll refuse to reimburse you any of the costs you might incur as a result of where the bullets went and the damage they caused.

Dirty Harry never had to worry about these things. He was a policeman, more or less acting, on duty, as employed to do. Sure, the mayor and his superiors would often berate him for the damage he caused, but Harry never had to pay any of that himself. The city and the police department, and all their attorneys, would run interference for him.

You have none of this behind you. Instead, it will all be ranged in front of you and against you.

Bottom line? Don’t shoot, unless you have no choice, and it is the only option open to you, and necessary to save you or your loved ones from imminent and severe harm or death. And force yourself to stop shooting as soon as the situation changes.

Update : The citizen who shot at the fleeing burglars ended up agreeing to a plea bargain. He has given a guilty plea, and is receiving a $700 fine, must take a weapons safety class, and has been required to forfeit his handgun. Maybe he got off lightly, depending on your perspective. Add the incarceration, now having an arrest and criminal record, and thousands of dollars in attorney fees, and those two shots truly changed his life. Details here.

Gun Sales Skyrocket

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Nov 272012

Gun stores and gun shows are all reporting massive increases in business.

Black Friday this year set a new record for gun sales nationwide, which were up 20% on Black Friday last year.

Gun sales can be loosely tracked to the number of calls to the FBI’s NICS background check service. Any time a person buys a firearm from a registered gun dealer, the dealer needs to call the NICS service for an instant background check and obtain an approval code for the transaction. Of course, not all sales are from registered dealers (private party sales are excluded) but probably all new gun sales necessarily go through dealers, and so the NICS call volume gives us a way of understanding the number of new guns being purchased and added to the country’s overall supply of guns in private hands.

One call to NICS can sometimes be for multiple guns being sold at the one time, so from that perspective, sometimes the count of guns sold could actually be higher than the NICS call number. On the other hand, some states also call NICS to validate CCW licenses, and so these other calls to NICS, for purposes other than people buying new/additional guns, tends to mean that the total guns sold are less than the number of NICS calls.

However you adjust the raw NICS numbers, there remains the simple fact that, in general terms, the higher the number of calls to NICS, the greater the number of new guns sales that are being conducted, and this is particularly true on days when state and local authorities are probably closed and not calling NICS for other purposes (ie, Saturdays, Sundays, and public holidays, such as probably is the case in most areas for Black Friday, the day after Thanksgiving).

In 2012, Black Friday saw 154,873 calls in to NICS, a 20% increase on the 129,166 calls for last year’s Black Friday. Call volumes were so high that the FBI computer system overloaded and crashed on two separate occasions.

Every month for the last year has seen more NICS calls than for the same month the previous year, and every year for the last ten years has seen more NICS calls for the full year than the previous year. Here’s the FBI official statistics on a monthly basis for every month since the NICS system started in November 1998.

Now that President Obama has gone on record, in the Presidential debates, as saying he advocates a re-introduction of an assault weapons ban, and with the renewed threat of a UN weapons treaty abridging our second amendment rights as well, we agree with the flood of people racing to buy firearms that there is good reason to be concerned with the status of our second amendment rights.

As some people have wryly pointed out, Obama has been the ‘best friend’ the gun industry has ever had. His presidency has seen an unparalleled growth in new gun sales, which seems destined to continue into the future.

Oh – don’t forget stocking up on ammo, too. Continued attempts to tax every bullet sold, and/or to outlaw lead in bullets, show that the gun-banners are exploring every possible way of diminishing your rights to affordably own and use firearms.

Retired Supreme Court Justice Stevens’ Gun-Hating Lunacy

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Oct 162012

Liberal gun hater Justice Stevens, in a 2006 photo.

John Paul Stevens was the nation’s third longest serving justice on the Supreme Court, having been appointed by President Ford in 1970, and retiring in 2010 (allowing for Obama to replace him with Elena Kagan, who Stevens described as ‘a brilliant justice‘).

Although nominally a conservative prior to his appointment, Stevens generally sided with the liberal side of the court (in case that isn’t obvious from his quote about controversial Kagan). And so, unsurprisingly, he is also anti-gun, having taken the losing (anti-gun) side in both the two huge Supreme Court Second Amendment cases in recent times – Heller in 2005 and McDonald in 2010.

Although now thankfully retired, he is unable to keep quiet, and this article reports him offering up unwanted advice about how he believes that some classes of firearms can still be lawfully banned, as could also carrying of weapons pretty much anywhere.

About the best news part of this is that having been wrong twice in the two recent Supreme Court decisions, the chances are he remains consistently wrong on these matters too, and that he is confusing wishful thinking on his part with the actual law of the land.

If you can manage to read the whole article, there’s a ‘reward’ for you near the bottom, where the article quotes him as saying :

Stevens also had a recommendation for people who keep a weapon in their homes for self-defense purposes. “Maybe you have some kind of constitutional right to have a cell phone with a pre-dialed 911 in the number at your bedside and that might provide you with a little better protection than a gun which you’re not used to using,” he said to laughter.

Unfortunately, the laughter that greeted this comment was unlikely to be laughter at the idiocy of his statement, being as how he was making it to the Brady Center to Prevent Gun Violence’s Legal Action Project.

His comments, and his judicial record, expose two ugly truths. The first is that Supreme Court judges may be experts on the law, but they are seldom experts on the matters they are required to apply the law to (in this case, the best way to respond to an intruder threatening you in your own home). The second and sadder of the two is that Supreme Court judges will sometimes let their own personal ideologies interfere with their supposedly neutral interpretation of the law.

However, supporters of the Second Amendment can take encouragement from one thing he said. A spurious argument raised by some anti-gunners is that the Second Amendment only covers weapons that were available in the mid/late 18th century, not more modern weapons such as are available now. But when Justice Stevens refers to constitutional rights to cell-phones with pre-programmed speed dial numbers, he clearly accepts that the Constitution applies not only to the things in place when it was written, but to derivative and more modern things that have subsequently been created. Such as, for example, semi-automatic pistols and fully automatic rifles.

Nationwide Concealed Carry Moves a Step Forward – HR822 Passes

Legal Issues, Police and Crime, Politicians' Nonsense 3 Responses »

Nov 212011

HR822, the National Right-to-Carry Reciprocity Act of 2011, has now passed the House

One of our ‘holy grail’ objectives is to replace the current crazy patchwork quilt of state level laws about concealed carry reciprocity with other states, and create instead an integrated nationwide program whereby a single license from your home state would be recognized throughout the country.

Sounds impossible? Sounds impractical? Well, certainly before the renaissance in concealed carry laws over the last two decades, it would have been both (and pointless too!) because few states allowed any type of concealed carry at all.

But there has been a steady restoration of concealed carry rights, state by state, and as our earlier article on the steady improvement of state concealed carry laws shows, we have gone from only eight states permitting concealed carry in 1986 to now only one state outright forbidding it in 2011. Sure, there are a few other states that don’t play very fair with their issuing policies, but no-one can deny there’s been a huge change in concealed carry policies.

This has revived hopes for a framework whereby one state’s concealed carry permit would automatically be recognized by all other states. At present it is tremendously difficult to know, for sure, which other states your home state permit may entitle you to carry in, and the truth changes fairly regularly as states add or remove other states from the list of states they will accept concealed weapons permits from. Those of us who travel regularly typically end up with two, three, or even more permits in our wallets, and even with all of that, feel somewhat nervous and anxious!

There’s a clear analogous example – driving licenses. A car is every bit as lethal a weapon as a pistol, and there are for sure way more auto deaths and injuries each year than there are firearms related deaths or injuries. Different states also have slightly different driving laws (eg turning right on red, speed limits, talking on a cell phone, child car seats, etc) and these variations have not presented any problems in enabling a license issued in one state to be recognized in all other states (and most foreign countries too).

For the last many years, there has been a growing swell of support for a nationwide carry law, and just last week, the House of Representatives passed the ‘National Right-to-Carry Reciprocity Act of 2011’, currently in the form of HR 822 (click the link to see the text of the bill).

The bill was passed by a solid majority of 272 to 154 (click the link to see how your congressman voted). A rush of amendments that would have massively watered down the provisions of the bill were all defeated by similar or even greater margins. Anti-gun amendments were most recently proposed by Reps Sheila Jackson Lee (D-Texas), Alcee Hastings (D-Fla), Carolyn McCarthy (D-N.Y.), Hank Johnson (D-Ga), David Cicilline (D-R.I.) and by a Republican too, Rob Woodall (R-Ga).

Before it becomes law, two more steps remain. It needs to also be passed by the Senate, and then signed into law by ~~Barry Soetoro~~ Barack Obama.

There is of course a Democrat majority in the Senate, unlike in the House, so this makes for a tougher passage. But as the most recent opinion polls show, gun ownership is enjoying the most favorable level of public support in decades, and so at least some Democrat senators may prove sensitive to the winds of public opinion and join the Republicans to pass the measure.

Which leaves our President’s approval as the remaining obstacle. For whatever reason, the current President has shied away from overt anti-gun acts, and in total, he has only vetoed two pieces of legislation in his almost three years in office.

He has been silent so far on whether he would support the legislation or not, so who knows what would happen at that point.

Criticism of HR822 – Is it a ‘Trojan Horse’

Some normally pro-gun rights groups have spoken out against HR822, claiming that it would create a new federal right to interfere in state level gun rights. These people believe that any time we pass any element of gun related rights and legislation to the federal government, to the Department of Justice and to the BATF, we risk having those rights surreptitiously diminished and taken away.

We can certainly understand the cynicism of such people. But if you read the text of the bill that has been referred on to the Senate, there is nothing in it at all to be concerned about. Furthermore, the various amendments that would have indeed added provisions that would be negative or constraining were all soundly defeated.

So, if HR822 passes as it presently is written, we would seem to have a great bit of legislation that removes rather than adds gun control restraints on us. And if there are attempts to rewrite HR822, at least at present there is little reason to believe such attempts would be successful.

The Inequity of HR822

Although we are enthusiastically supporting HR822, we have to observe that it is not without its problems. We can understand the reasons some states require its citizens to pass a formal education course, and in a few cases, even to pass a range test too, before allowing its citizens the right to carry a concealed firearm. It could be said this is similar to the process of getting a driver’s license – every state requires its residents to pass both a theory and practical exam before giving them a driving license.

At present, many of the states that require a format course of study prior to granting a concealed weapons permit have chosen to only recognize permits issued by other states that have similar training requirements, and have refused to recognize permits from states that issue permits without requiring any training at all.

HR822 would now obligate states with more restrictive training requirements to accept permits from out-of-state citizens who were granted permits on a more liberal basis. And so you might have two people walking down the street, both with a concealed weapon, one a resident of the state who had to attend an eight hour class and then pass a range test for safety and accuracy in shooting, and who has to renew his license every five or fewer years, and the other, a visitor from another state who has a seven year permit which he got simply by paying a fee and filling out a form back home. That feels a bit wrong, somehow. At least there are some elements of standardization on driving license testing across the country.

But we’d much prefer ‘a bit wrong somehow’ to the situation instead where the out of state visitor can’t carry at all. Furthermore, there is no evidence to suggest that people who have attended mandatory classes are any more (or less) likely to pose a risk to public safety when carrying their weapon than is the case with people who have not attended any mandatory classes.

What You Can Do

Please phone or email or fax or write to your two Senators, asking them to support HR822, the National Right-to-Carry Reciprocity Act of 2011, and to ensure its speedy passage through the Senate. You can get contact details for your senators here.

If you are writing a letter, you could adapt one of these two letters and personalize it a bit before sending it.

To a Republican senator

Dear Senator (name)

HR822, the National Right-to-Carry Reciprocity Act of 2011, passed the House last week by a strong majority of 272 to 154, including almost every Republican Congressman. It now needs to be passed in the Senate, too.

I know we have to carefully consider the implications of all legislation that may potentially either expand or diminish current gun rights in this country, and I know we must be respectful of state rights. But with now 49 of the 50 states recognizing, in some form or another, the right to carry a concealed firearm, this legislation is not an end-run around the states. It is merely a necessary national codification of the currently very confusing patchwork quilt of state/state reciprocity agreements in terms of which states will accept carry permits from other states.

We can do it for driving licenses (and I’m sure I don’t need to quote the appalling levels of deaths and injuries suffered as a result of vehicle accidents, massively in excess of those resulting from firearms). We need to do it for concealed carry licenses too.

I’ve been licensed to carry a concealed pistol for many years, and have never created any problems. But as soon as I cross the state line, I either lose that right entirely, or risk ending up in a twilight zone of uncertainty – an uncertainty shared by each other state’s law enforcement agencies, too. Who knows what the most current and correct situation is in each state for each of the other states’ licenses? Probably no-one!

This necessary legislation makes it easy, simple and straightforward for everyone. It doesn’t trample over state rights, because out of staters still must follow all the applicable rules of the state they are visiting (the same as with driving). It merely allows a person duly approved and licensed to carry a handgun in one state the certainty of knowing they can safely do so in other states without risking becoming an accidental felon.

Please may I ask for your support of this sensible measure and to help its speedy passage through the Senate.

Respectfully

(your name)

To a Democrat senator

Dear Senator (name

HR822, the National Right-to-Carry Reciprocity Act of 2011, passed the House last week by a strong bi-partisan majority of 272 to 154, including 43 of the Democrats.

Please may I ask for your support of this sensible measure and to help its speedy passage through the Senate.

Respectfully

(your name)

Flash Mob of Hundreds of Black Youths Attack White Fair Goers – What Would You Do?

Legal Issues, Self Defense No Responses »

Aug 072011

Mayhem and potentially murder when riots rage around you

The good news is this appalling incident is less likely to happen much more in the future, because it occurred in Wisconsin, which last month passed a law allowing its citizens to get concealed weapon permits.

But the bad news is that it happened at all. I don’t know if it is a passing craze, or a new media focus, or whatever, but my sense is there are a growing number of ‘flash mob’ type mini-riots occurring in the country these days, situations where a group of people suddenly congregate and go wild for no apparent reason, attacking ordinary peaceful other citizens in a location that you’d not normally consider an at-risk location.

Here is a report of this particular flash-mob that formed at the exit to the Wisconsin state fairgrounds. You’ll note that the police were less than effective, and some police, a mere block or two away, busied themselves with directing traffic rather than going to assist at all! Although some police did get into the middle of things, and were even injured, they were woefully outnumbered and unable to protect and prevent lawful citizens leaving the fairgrounds from being victimized, terrified, and assaulted.

Once again, we’re reminded that the only people we can count on to defend us in an emergency is our own selves – us personally and hopefully the loved ones and close friends with us.

Note also the muted reporting on the subject of whether it was black people selectively attacking white people only. On the other hand, this report quotes people with obviously vested interests as saying it was only black people fighting other black people. Ordinary citizens saw black people selectively attacking white people, but public officials did not. Hmmmm……

What Would You Do?

This sort of situation raises a very difficult question. What would you do if you found yourself in the middle of such a mob, and a group of youths attacked you? (Assume, for the sake of this discussion, that you were carrying a pistol with you, as hopefully you always do.)

The significant outcome of most of these flash mob attacks is that no-one has been killed, or even gravely/critically wounded. Sure, people have been punched up, kicked down, and generally injured, but is it really a situation where you can truly say you feared for your life; is it truly a situation that warrants the use of deadly force?

On the other hand, it may well be that you had no ability to retreat. If your state has a ‘stand your ground’ law, why should you either try ineffectively to run away, or passively accept a beating? And just because few people have been critically injured or killed, that’s no guarantee that you might not be less fortunate.

Let’s think what would happen if you did resort to your gun. When you pull it out, if you don’t start shooting immediately, one of three things will happen. Either the flash mob will run away screaming, or it will taunt you and get closer to you (and they may already be way too close for comfort), forcing you to either use your gun or lose it, or, option three, someone in the flash mob also has a gun, and he (or they if more than one) will draw it and shoot you first.

If the flash mob runs away screaming without you needing to fire a single shot, then good job, well done. But how likely is that?

Let’s think about scenario #2. They crush in towards you, leaving you no choice but either to surrender your gun (and risk having it used against you) or to start shooting. Even if you managed to disable the weapon before it was taken from you (at the very least, releasing the magazine and kicking it away) you’ve raised the odds and probably increased the severity of the beating you’ll get.

Maybe you fire a warning shot in the air (not really advised by most experts). Perhaps they’ll now turn around and run away screaming, but even if they wanted to, maybe – if there is a crush of others behind them, they can’t. Do you then start shooting for real, or do you surrender your weapon and hope for the best?

And what if you start shooting? You’ll have half a dozen people all crowding in on you, and more behind them. How to fight them all off with only one gun and however many rounds in its magazine?

The answers to these questions fall into two parts – legal issues to do with the justifiability of you shooting at these attackers, and the tactical issues of how best to get a positive outcome from your situation.

I asked a respected attorney who specializes in gun law issues for his opinion on the situation. Unfortunately, his opinion is only valid in the one state he practices law in, and each state has different legislation (and customary practice) in terms of what is acceptable use of deadly force and what is not.

Based on the laws of his state, he believes that shooting at your attackers would probably be justified in his state – a state that says there is no obligation to retreat, and which allows you to shoot in self defense if you have a reasonable fear of imminent danger to yourself or loved ones and if such an action is what a reasonable person could be expected to do.

But your state laws may be very different, and no matter what your laws are, there is also this very vague standard of what a ‘reasonable’ person would do. Maybe your state law allows for use of deadly force in terms of the theory of the legislation, but maybe the practice of how the case law has modified and interpreted the words of the law is such that what you think is a permissive empowerment to defend yourself is actually no such thing.

Maybe a ‘reasonable’ person in your state might think it more reasonable to submit to a beating than to kill one or many attackers? Surely you’ve heard people say ‘nothing ever justifies taking a human life’ – maybe they say this in opposition to capital punishment, even for the most depraved mass murderers, and often they say it when explaining why they think no-one should be allowed to own guns. Normally you might just roll your eyes when hearing this and move on, recognizing a viewpoint that you have nothing in common with and are unlikely to change. But what would you do if you were faced with a jury of people who all subscribed to that point of view – all viewing your actions as ‘unreasonable’ by their fervently held viewpoints?

So the legal issues are murky. Let’s all pray you don’t find yourself becoming a test case in your state. If you have a genuine concern, you should consult a good attorney in your state who specializes in firearms and self defense law, and if you get a written opinion with him, please share it with us so we can share it with everyone else.

Tactical Issues

Okay, so if you find yourself where you are forced to shoot, what is the best way to solve the problem you are confronted with, causing minimum loss of life and ensuring your own safety?

I asked two people, both with a huge amount of real world experience, what they would recommend. One is a former Marine, and a former LAPD officer in some of the worst neighborhoods of Los Angeles, and is a massively credentialed firearms trainer. The other is a former Navy officer and sworn member of one of the Justice Department’s many branches, and again a well credentialed firearms trainer.

They both agreed that the thing to do is to assertively point your weapon at the person who seems to be ringleader, simultaneously look him straight in the eye, and tell him ‘Back Off! Or you’ll be the first person I shoot!’ Then point it at a second person and say ‘You’ll be second! Back Off!’ and perhaps give the same warning to a third person.

Then, if they continue to advance, and particularly if they are getting to ten feet or so of you, and they have ignored your warnings, you’re going to need to start shooting. One of these two people said ‘If there are other people behind them (and there probably will be) consider dropping down on one knee and then shooting up at the person’s head so that the round doesn’t pass through their body and into additional people behind them’.

I understand the good sense of that advice, but you’re sacrificing dexterity and maneuverability in doing so, and head shots are more difficult to take at the best of times. Do you really want to put yourself at much greater risk so as to make it safer for the person behind the first bad guy – a person who is far from being labeled as an ‘innocent bystander’? Furthermore, by dropping down to this position, you’re less authoritative – although it could be argued that the gun in your hand that starts shooting compensates for that!

If you’re comfortable with your ability to drop to a one knee position and still command the situation, shoot accurately, and fight effectively, by all means do so. But right now, your highest priority is your personal survival, not protecting the people who you may well be forced to shoot in a few seconds time.

A Force Multiplier

Lastly, a thought that you need to get front and center into your mind, always. Try and encourage the people who go places and do things with you to also be armed. This will not only enhance their own personal safety, but yours too.

Which would you rather experience? A deadly threat from multiple attackers where you have to simultaneously protect you and a second, defenseless person; or a deadly threat where you have a partner alongside you, also armed and skilled at the use of their firearm?

Friends don’t let friends be unarmed.

One last thought. You are less likely to need to use your guns if there are two of you and both armed, because you’re a much stronger adversary and you can probably defuse the situation without needing to resort to lethal force. Which is an interesting concept to tell a friend who is not sure about carrying – ‘If you have a gun, too; then we’re less likely to need to use them than if I am the only one armed’.

We’ll return to the topic of encouraging your friends to become armed citizens in a subsequent post. It is a very important topic, deserving of its own standalone post.

Police Brutality in the US – Caught On Video

Legal Issues, Police and Crime 2 Responses »

Apr 222011

LVPD Officer Colling just before beating Mitchell Crooks

Here’s a video that should make your blood boil. A private citizen – Mitchell Crooks – was filming police activity. He was on private property at the time. Filming the police is perfectly lawful, on public or private property.

A police officer approaches him, demands Crooks stop filming – something he has no right to demand, then beats Crooks up when Crooks claims he is within his rights to videotape the scene, then arrests him for obstructing a police officer; a charge subsequently upgraded to battery on a police officer and obstruction of justice. I guess the officer claimed ‘his nose viciously beat my fist, and his stomach attacked my foot’.

Fortunately the idiot police officer was such an idiot that he didn’t delete the video and audio in the camera, so we all can now get to listen to Officer Colling taunting and gloating about how he put Mitchell Crooks into ‘a world of hurt’.

Colling knows all about putting citizens into a world of hurt. In his 5 1/2 years as a police officer, he has already killed two citizens, both deemed justifiable slayings. Crooks should consider himself lucky for merely suffering a deviated septum, chest wall injury, and possibly broken ribs.

Have a look at the video in this article, and wonder why it is that a month later the Los Vegas Police Department is still passively investigating the encounter and the total lies written by their officer in his arrest report, while the officer in question remains proudly on duty and earning full pay.

This is police brutality that would be out of line in the most despotic of dictatorships, and it shouldn’t take more than a minute or two for Colling’s superiors to recognize it for what it is and to act appropriately. Such behavior has no place in the United States, and Officer Colling should now experience the full force of the law and its severest consequences, as should his stonewalling superiors who are going as slowly as possible and doing as little as possible to make Colling responsible for his outrageous actions.

One other point of note. Crooks was screaming for help at the top of his voice. He even said to the police officer ‘All my neighbors know what you are doing’. But did a single neighbor come out? Nope, not a one. The police state is a terrifying place to live, and his neighbors all knew better than to risk a beating themselves.

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