Category: Constitution

Effective gun laws

Democrats believe that expanded background checks will curb gun violence, and are planning legislation towards that end:

House Democrats Pledge Passage Of Expanded Gun Background Checks Bill

Unfortunately, their efforts will do little but provide the government with more data on law-abiding gun owners while interfering with their constitutional rights. Any limits on such rights should dis-proportionally effect the criminals they target, rather than the vast majority of the population who are not involved in crime.

The fact is that, according to a past study by the Department of Justice, almost 40% of crime guns were obtained from friends and family with almost another 40% from illegal street sources. Approximately 12% were purchased legally from a licensed dealer. This means that only 8%  of crime guns (including 0.7% purchased at gun shows) will be affected by expanded background checks.

To really have an impact on gun crime we must work to eliminate the supply of crime guns from friends/family and illegal street sources.  One way we can do this while preserving rights guaranteed under the 2nd amendment is to pass a law making it illegal, with or without knowledge of their status, to pass a firearm to a prohibited individual. This law should include a low-cost or free means for the general public to verify that a buyer is not prohibited and facilitate the firearms transfer. This could be accomplished through a background check similar to that now in place in most jurisdictions, but administered by the local police or sheriff’s department for a nominal fee. The law should also require that all crime guns used by prohibited individuals be traced to their source and – where applicable – the source charged with illegal transfer of a firearm. The law should also include a penalty or sentence enhancement for criminals who do not cooperate in the tracing of firearms they use in a crime.

In this way the transfer of firearms between well-acquainted parties is not restricted, but the risk is assumed by the transferer. This will encourage use of the free or low-cost police-based background check and transfer system when even the slightest doubt exists. At the same time it will encourage criminals to assist in the tracing of their guns, resulting in prosecution of those who provide prohibited individuals with  firearms and thus reduce the illegal supply on which they depend.

So, in summary, Congress should instead pass a law that:

  1. Criminalizes the transfer of a firearm to a prohibited person, whether or not their status was known to the transferer, unless a licensed firearms transfer service is used.
  2. Allows private transfers between well-acquainted parties, so long as the transferer assumes the risk of criminal charges in the event the transferee is a prohibited individual.
  3. Establishes a low-cost or free law-enforcement based firearms transfer system for the general public to use that frees them from criminal liability.
  4. Traces every crime firearm to its source, and prosecutes those who provide these firearms.
  5. Provides sentence enhancements for criminals who do not assist in the tracing of their firearms.

If we start locking up those who provide firearms to criminals, we will have a dramatic effect on common sources of crime guns while minimizing the impact on law abiding citizens seeking to exercise their constitutional rights.

Write your congressman. Forward them a link to this post. Demand useful action that keeps guns out of the hands of criminals – action that does not restrict the rights of law-abiding citizens.

I hate being right…

I’ve explained before how ERPOs (Extreme Risk Protection Orders) can be abused to restrict the constitutional rights of law-abiding citizens. Here is one example:

Attentive student foiled possible school shooting, Vermont police say

In this case, two juveniles allegedly intended to take firearms from a relative’s home to use in a school shooting. The police used an ERPO to confiscate the firearms of the relative – someone who had committed no crime – even though they had noted that the firearms were secured in the home. In the words of Middlebury, VT Police Chief Tom Hanley:

“We executed what is called an ‘extreme risk order’ (Monday) night at a relative’s house who had all these firearms,” Hanley said. “They were locked up (in the home), but one of these kids said he had access to them and could get them. So we took advantage of that extreme risk order statute that was passed.”

So now if the police determine that a criminal is conspiring to steal your property, they confiscate your property instead of protecting it? Why did the police not simply advise the (innocent) relative to verify the security of their firearms while arresting the would-be robbers? Wouldn’t that have protected both the public and the constitutional rights of the property owner?

Seizing the property of a potential theft victim to prevent theft is, well… theft. Such actions by the state should be condemned in the harshest manner.

Juvenile Extreme Risk Protection Orders

I’m a little concerned about this new take on ERPOs (Extreme Risk Protection Orders) out of Washington state, which are used to seize the firearms of those individuals deemed by police or family members to be a danger to themselves or others.

‘Red flag’ gun law should include minors, Washington state prosecutors say

Since a juvenile does not have the right to own firearms, whose firearms are they going to seize? Those of the parents (even if securely locked in a safe)? How about those of siblings living in the same household who are not subject to the ERPO?

Where would we draw the line on if we extend ERPOs to people who are not legally allowed to have firearms, but who have contact with people who do? What if a fellow housemate is the subject of a ERPO? Does that mean the police can seize all firearms in the household, regardless of ownership, even if properly secured from unauthorized use? How about if an adult child is the subject of an ERPO, and has keys to his parents home for emergency purposes? Is it acceptable for the police to seize the guns of the parents in this case? How about those of the girlfriend/spouse?

Where would it end?

Violence as a response to speech

No charges for FedEx driver who fatally punched man calling him racial slurs

Do you really think that the FedEx driver in this case felt physically threatened in any way while he was driving by in his truck? How about the obnoxious speaker, when confronted by the driver? This driver had the opportunity to let the matter go and drive on, but he chose instead to stop and exit his vehicle to physically confront the source of his verbal insults. By doing so he became the aggressor, and he should be held responsible for the results. Oregon may have no duty to retreat, but there is no excuse for deliberately escalating a verbal exchange into a physical confrontation. Free speech is just that – even when those speaking are insulting you in the most egregious manner. Speech can never be used to justify a physical assault.

Of particular concern are the comments by Senior Deputy District Attorney Adam Gibbs of the Multnomah County District Attorney’s Office regarding the decision not to pursue charges against the driver:

“…the decision by Mr. Warren, who is black, to not let the racist vitriol to which he was being subjected go unanswered is not of legal significance.”

Mr. Gibbs has essentially condoned physical confrontation as an acceptable response for speech with which you don’t agree, even when it leads to violence. I hope Mr. Gibbs lives in Portland so he can witness the results of his action first-hand.

One more reason not to move to Portland (others here, here, and here, to name a few).

Democracy, Shemocracy!

Ok, so for those of you who are so uninformed as to believe that we live in a democracy – shame on you. You’re idiots, and don’t deserve the honor of citizenship.

Pure democracies are troublesome. To assume that the wide range of people who make up a population all have the intelligence, knowledge and wisdom to govern is a fool’s errand. Another problem with a pure democracy is that some people are easily swayed by demagogy. Once so swayed, a 50.1% majority can make rules that quickly destroy freedoms for the remaining 49.9%. The founders of our nation sought to address these concerns in our system of government.

In the United States we live in what one could call a democratic constitutional republic. Others might call it a constitutional republic, or even a republic. I prefer the first designation because it most closely describes our system. Let me take a moment to explain.

We are a republic in that we assign the job of running our country to representatives. It is these representatives that make the laws and regulations that govern our society, and enforce the same. These politicians are democratically elected by the people to serve as their representatives, hence the democratic designation. However, the power of these representatives (and thus the people by their vote) are limited by a constitution that serves as protection against a simple majority to ensure that basic rights are not infringed. Hence, we are a democratic constitutional republic.

To change the constitution requires much more than a majority; a 2/3 vote of the legislatures as well as ratification by 3/4 of the states is necessary to amend the constitution . What is troubling today is the insistence among politicians that a simple majority should give them the right to dictate policy in contradiction of the constitution. One significant attempt that we are witnessing is the ongoing assault on the 2nd amendment. Making restrictive laws regarding firearm possession and use is much easier than changing the constitution, but can have the same effect. Another attack on the constitution can be seen in the attempts to limit some speech, in violation of the 1st amendment, by labeling it as “hate speech”; the question is: who determines what is hate speech, and will that definition change with whatever majority is in control? The framers have used a constitution in an attempt to protect the people against what John Stuart Mill termed “…the tyranny of the majority…”; unfortunately, politicians from both sides seem to forget this concept whenever it is convenient.

The founders of the United States had a pretty good plan; how about we stick to it. Don’t like guns? Don’t like free speech? Then change the constitution (if you can). But stop trying to circumvent the constitution using majority-rule partisanship in the name of “democracy”.

“Ranked choice” voting

The candidate with the most votes loses. Welcome to ranked choice voting.

Maine congressman loses seat in controversial ranked-choice voting race

I predicted that ranked-choice voting would be used to game the system – with Libertarian and Independent voters as pawns – and that’s exactly what has happened. Independent candidates became vote-gatherers for the Democratic party in this Maine election, rather than the spoiler candidates of previous elections.

I expect our elections to become like a monkey fight at the zoo if this “second chance” voting system is ruled constitutional. Let’s keep our fingers crossed that the Federal courts will rule to ban ranked-choice voting schemes.

But they can vote?

From a Washington state voter-passed initiative to, in part, restrict the purchase of semi-automatic rifles to those 21 years of age or older:

“…studies show that eighteen to twenty year olds commit a
disproportionate number of firearm homicides in the United States

and research indicates that the brain does not fully mature until a later age. Raising the minimum age to purchase semiautomatic assault rifles to twenty-one is a commonsense step the people wish to take to increase public safety.” (emphasis mine)

OK – so we acknowledge that their brains are “…not fully mature…” and as a result they should not own semi-automatic firearms. But it’s OK for them to vote? On this initiative, no less? Really??

Now, to be fair, as a general rule I agree with restrictions banning semi-automatic firearms for those less than 21 years of age (as I have discussed before here and here). I just think that those under 21 should not be able to vote, either, based on the same “… not fully mature…” argument.

However,  I disagree with the position that we should restrict access to firearms for a particular group because they “…commit a disproportionate number of firearm homicides in the United States…”. Such claims are ripe for abuse, and can be used to punish or subdue a significant portion of the population for the actions of a very small minority. Why couldn’t it be argued that whites have committed a higher percentage of mass shootings in America than any other race (63%, according to Politifact, although that is less than their 72.4% share of the 2010 population) and use this statistic to disarm all whites? Think, too, about how this could be applied to other races for firearm-related crimes. Now do you see the problem with such restrictions? I hope so.

Birthright citizenship

Note: I am NOT an attorney. I could be completely wrong here, and welcome any comments.

This NPR article attacks President Trump’s claim that birthright citizenship can be eliminated via executive order. The article goes on to claim that “Most legal scholars say…” that this is settled law, and interview a few people who support NPR’s claim.  Unfortunately, NPR ignores those who think otherwise – even though the article  acknowledges that Trump’s claim is supported by “…a small but vocal group of conservative legal scholars who argue the 14th Amendment has long been misread.” Note that these are conservative legal scholars, not political operatives; why then did NPR not present their view as well?

In addition, NPR completely ignores the mechanism behind how an executive order could effectively alter birthright citizenship. I agree that an executive order cannot change the Constitution; however, it could set up a Supreme Court case that would re-evaluate the meaning of the 14th amendment and its subsequent related court decisions.

The 14th amendment states, in part:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

The question has become: What is meant by the phrase “…and subject to the jurisdiction thereof…”? Does this term denote only children born to people in the U.S. legally, with the permission of the federal government? Does this include children born to temporary residents, such as visa holders, and does the type of visa applicable to the parents matter? What about parents here illegally, who have no right to be on U.S. soil; would they be considered foreign invaders, and as such would they be excluded by this phrase?

These questions were partially answered in United States v. Wong Kim Ark (1898), where the Supreme Court ruled that the 14th amendment applies to some aliens, “…including all children here born of resident aliens…” (emphasis mine). However, since this decision consider only those in the country legally (resident aliens), it still leaves open questions with respect to illegal aliens.

Some claim that this remaining question was answered in Plyer v. Doe (1981), when the Supreme Court decided that denying educational benefits to children not legally admitted to – but residing in – the United States violated the 14th amendment’s equal protection clause. However, the equal protection clause is separate from the citizenship clause, and this decision did not shed any light on anyone’s citizenship status. While the decision does guarantee anyone in the United States – legal or not – the full rights afforded a U.S. citizen, no one would argue that these rights impart citizenship. Questions regarding the citizenship status of children born to illegal aliens remain unanswered.

In short, it may well be that President Trump intends not to actually change the Constitution by issuing an Executive Order, but instead intends to force a Supreme Court review of its meaning. And, quite frankly, I think he’s got a chance. Ignore him at your own peril.

(Editor: All that being said, my position is that we should grant birthright citizenship to children born to legal U.S. residents, regardless of the citizenship of the parents. However, I oppose granting citizenship to children born to parents who are in the U.S. illegally – including those parents whose visa or residence permit expires prior to their giving birth. People who ignore our immigration laws and trespass against our country should be treated as foreign invaders whose children are ineligible for birthright citizenship.)

Selective memory

NPR quotes Senator Patrick Leahy (D-VT) as he laments Republican action to fill federal judicial vacancies:

…Sen. Patrick Leahy …  is “disgusted” by what he sees as the dismantling of a long-standing system that was aimed at achieving a limited bipartisan consensus on judgeships.

Really? Has Senator Leahy forgotten how Harry Reid (D-NV) exercised the “nuclear option” so that Democrats would not have to achieve  “limited bipartisan consensus” for their appointees to the federal bench? It was Reid’s action that ending all pretense of consensus for such appointments; where was Senator Leahy’s disgust then?

Note, too, how Reid’s actions allowed President Obama to reshape the federal circuit courts without any concern for bipartisan approval. Is there any wonder that Republicans want to restore a balance to the Federal judiciary, and would use similar tactics as the Democrats?

Oh – and thanks, NPR, for the misleading statement:

The GOP-controlled Senate has confirmed 29 Trump nominees to federal appeals courts, compared to confirming just two nominees over the last two years of the Obama presidency.

It is interesting that you chose to compared current Republican appointees only to Obama’s last year in office, ignoring the record number of Obama judicial appointees confirmed after Reid’s rule change. From a CNN story on the matter:

During the first year of the congressional session, before the nuclear option, the Senate confirmed a total of 36 federal district and circuit court judges appointed by the President. After the rules changes, which took place Nov. 21, 2013, the number of judges confirmed more than doubled to 84.

Nice job at showing your political bias, NPR.

Political chess

The liberal left is still up in arms over the Kavanaugh Supreme Court appointment, claiming that the seat was “stolen” from Merrick Garland. Sorry, folks, but that’s not what happened. The Republicans played by the rules (as spelled out clearly in the Constitution of the United States) and won, fair and square. The fact that the Democrats are sore losers in a fair fight does not justify an effort to change the rules of the game, yet that is exactly what many academics are suggesting.

In fact, the Democrats are directly responsible for the initial rule changes (the so called “nuclear option”, with the “stacking” effect it had on the lower courts) that led to Republican-led rules changes and Kavanaugh’s Supreme Court win. Maybe the Democrats should think a little harder before attempting any more rule changes.

It’s a game of chess, folks; sometimes you lose. Don’t be sore losers.