Once more I am moved to bang my head against the wall and talk about gun violence. I wish to talk about why someone/anyone’s 2nd amendment right to own any gun they wish trumps all other rights we have. An surprise it is logical but not reasonable.
The right to own any kind of gun is superior to all other rights because of the basic postulate the person starts with. Most of the time this postulate will not be acknowledged but it is there none the less. It is simply stated as follows “I get to do what I want to do because I want to do it.”
This translates into the debates on rights simple as “My rights are superior to everyone else’s rights.” Therefore your right to life must give way to my right to own any gun I want. This works if and only if a personal rights have either a Hierarchy or are unequal. Many people who have not studied the history and evolution of thought on constitutional rights fall into. No right is superior or takes precedence over any other right. They are all equal. The problem is when they come in to conflict. Or when someone uses a right to do wrong. Usually these conflicts are easy to identify when they happen. Unfortunately the misuse of guns it is not.
The other problem we have to deal with is what do we do when a right is misused? Usually the law try’s to make whole, again, when the right is miss used. Like damages for libel/slander when the right of free speech is misused. Again, unfortunately, when a gun is misused it is often impossible to make whole the victim of the miss use. How do you restore life to the dead, or an arm, leg, and or eye?
So I ask you, what should we do? The misuse of the 2nd Amendment right to keep and bear arms all to often has irreparable effects and the victim can not be made whole no mater what we do?
With the filing of a lawsuit to bar Donald Trump from that states Primary and General ballots we have now given Donals Trump what many, if not all, Presidential Candidates want……A truly historical election. Article III of the 14th Amendment has rarely been invoked and never been tested in the federal courts completely. We now have the chance to see just what, if anything it means in a practical real world way.
I will not be addressing whether what is happening is a good thing politically; I leave that for a later posting. Rather I want to encourage everyone to read up on the 14th Amendment, both its history and legal scholarship. I think you will be both shocked, surprised, and disappointed by what you find. I was but I was also please to note one thing. Since the Civil War the United States has had no significant insurrections , in fact I found only three possible candidates and all three could be and are no more than what happen on January 6th 2021 (excepting the occupation of the Capital). An until now the 14th’s Section 3 has been little thought of and invoked even less. Why this should be makes for a great history paper and I will refrain from do that here.
What is going to be happening, starting now, is a test of just what the 3rd article of the 14th Amendment really means. With the death of the last person to ever fight in the Civil War in 1959 is the 3rd article a “dead letter”? There are good arguments for this. The debate on the 14th Amendment hardly touched on the 3rd article an I have found nothing in the debates about disqualification. (See CREW for details of disqualification)This will be the first time since the 1860’s anyone on the level of a National office is in danger of being disqualified. This is important for both legal and political reasons. With Donald Trump facing this problem rest assured the MAGA-GOP will, somehow, take actions to apply disqualification to the first non-MAGA-GOP to run for President or Vice President. It will happen.
As for the law? I don’t know. I do know that every American needs to watch the coming trials carefully. I mean not just the trials of Donals Trump and his Co-Conspirators but also all of the trials dealing with who is allowed on the ballot(s). Even the most radical judge can be a good judge when they know they are being watch. Watched not only by their peers, nor the scholars of law, but by also by the electorate at large. You don’t have to do much, just let anyone and everyone know you are watching. An unlike the radical right, the common electorate needs no threats, just their eyes and minds.
With the Indictment of Donald J Trump last week and the first of the formal court proceedings (aka reading the charges) we are now entering what is the next phase of our Sheldon Crisis. We are now nearing one of the major crux of this crisis, I hope. In the next year or so we can expect to see one or more things happen, and I am taking this time to list the ones I see right now.
Trump is not convicted.
This can happen in several ways. First and most unlikely is that the Prosecution does an incredibly bad job and/or the Defense does an incredibly good job. As I said, not likely but it has happened in the past.
Next, a still unlikely the defense is able to convince at lest one juror to vote for acquittal . This would end up in a hung jury and most likely lead to a new trial. So the defense needs to get the presiding judge to declare the miss-trial with ’prejudice’.
What I think the defense is trying for is to get the presiding judge to throw out most if not all of the evidence of what Trump is accused of. This is very hard to do and timing will be everything. If at all possible these ruling(s) need to take place so that the prosecution has little or no time to appeal.
Trump is convicted
Now let’s get to the dangerous part. The trial runs its course and Trump is convicted on one or more counts. Now what happens?
Almost assuredly Trump appeals all the way up to the Supreme Court and it has one of several things it can do.
First it could just not hear the case. This could be the best for the Court if the lower court throws out the conviction. But if the conviction is still standing when SCOTUS hears it then the court still has several things it can do. The best for the court would be to put the case on what is sometimes called the ’Merit Docket’ hear all the arguments and then make it’s ruling. Unfortunately this case is the political hot potato of hot potatoes and this court has not shown itself to be willing to take on this kind of case in the ’Merit Docket’ To many people will see just who is a loyal MAGA who isn’t.
SCOTUS could also decide to take the case on what is called the ’Shadow Docket’. This is attractive in that it is done all behind closed doors and without any of the justices putting their name on the ruling. In fact no reasoning needs to be given. SCOTUS could just rule that the case is overturned with prejudice and say nothing else. The one major problem with doing this is that what ever the prestige SCOTUS has with the general public will take a very big hit.
Well my computer is now overheating with running all the Sheldon Equations so I’ll say good by for now.
For the past few months I’ve been hearing a growing alarm over the ”AI Problem”. First my credentials: lI have been a ”Coder/Programer/Software Engine/Software Designer” since 1973. A while I retired in 2013 I’ve kept up a lively interest in the industry. Also I am a great fan of Science Fiction, in fact some of my earliest favorite stores are Dr. A’s Robot novels & short stories. A while I have never directly worked on any Artificial Intelligence projects i have written a few programs that faked being human. It is not as hard to do as the layman thinks.
My suggestion to the current issues with AI is quite simple. Let’s just go back to the legal doctrine on who is responsible when a slave broke the law. Back in Roman times the owner of a slave was held responsible for any and everything a slave did, good or bad. Let’s just do the same thing with all programs, AIish or not. The person, corporate or individual, should be held responsible for anything the Program does. Criminal or Civil.
I know that it will take a lot of effort to work out the details on how the law(s) would work but we have a great deal of legal history to draw from, Roman, Byzantine, Islamic, and Chinese just to name a few. The benefits would be great. First and for most there is someone who can and should be held responsible for the use/misuse of a program. I also know that there can, and should be, objections to this idea but I am convinced this a place to start.
After watching the State of the Union last Tuesday and the reaction of the GOP to what President Biden said about some members of the GOP wanting to end Social Security I started looking into just what he could be referring to. Luckily the news media and the President made it very easy for me to find what I was looking for. In the large ’Pamphlet’ published By Senator Rick Scott in his effort to get GOP candidates elected to the US Senate.
“All federal legislation sunsets in 5 years. If a law is worth keeping, Congress can pass it again“
Such a simple phrase, so fraught with deadly effects. Lets just look at what it says: ”All federal legislation…..” That means every law, ever passed by Congress, from the first congress till today would nolonger be in effect after 5 years. If you don’t think that this means a lot of work, just look at the US Tax code. A conservative estimate is that we currently have 300,000 active statutes at this time. But let’s not forget all the other laws and acts passed by congress. Would this law include all of the 47 enabling acts that added new states to the union? Who would decide? The supreme court? What about all of the acts that established the size of the Supreme Court? Or just those acts that established the Federal Court system?
What about the acts that establish the Army, Navy, Air Force, and Space Force? Are they also sunseted? I don’t know. I don’t think anybody does. So I just ask this….Is it really worth the madness that would ensue just to play a trick move to get ride of two of the most popular laws in the country? An just what does proposing something this fraught with very bad side effects tell us about the the people and Party puting it fourward.
One of the first things I notice about Justice Alito’s option in Dobbs v Jackson was it was very careful about all of the texts in the Constitution it thought would apply or be affected by the decision. Except one. The IX Amendment (see above). Years ago when I first started to really started to study the Constitution one of my Professors called the IXth the forgotten amendment. We spent quite some time on just why it was forgotten and why it is so important.
Take a moment to look at it carefully. Now think about just what it is saying. It is just one sentence but it says something very important to all of us. In more modern language it says that the enumeration of specific rights, does not mean and should not be taken to mean, that the people do not still retain those rights. What Justice Alito’s ignoring of the Amendment seems to be implying is that the Federal Courts, and the Supreme Court in particular, has no role in protecting these unenumerated rights.
This idea is just one of many issues I have with both the ”Originalist” and/or ”Textualist” doctrines on interpreting the Constitution. I will not go into all of my issues with these two doctrines for they are legion. In stead I will concentrate on just one issue bought to light here. This is the idea that Enumerated Rights take president over unEnumerated rights to the extent that the IX Amendment is meaningless.
Before I start I’d like to point out one fundamental principle I have in reading the Constitution. There is nothing in it just for ”show”. Every word, every phrase, everything is there for a reason and therefor can not be ignored. Too many modern scholars of the Constitution seem to be unaware of this principle. They read the Constitution like “ Elmer Gantry“ read scripture. Quote what supports your view and ignore what contradicts you. We have seen this before in the “Great 2nd Amendment Debate” where the entire first clause is totally ignored. The same thing is being done with the IX Amendment, except it is the entire text being relegated to the trash bin.
What is truly fascinating about Dobbs is that in many many cases it takes head on the many of the clauses they wish to overturn in the reasoning of Roe vs Wade. Justice Alito does this in with the 15th Amendment. He does not with the IX. I think this is because, like himself, Roe vs Wade also ignores the IX. It also could be that he thought that the IX Amendment had no bearing on the case before the Court. (By the way, I accept this is a perfectly acceptable thing to do.) This seems to be stretching things just a might as Dobb’s deals with rights not enumerated in the Constitution (ie Privacy) and the IX Amendment is all about unenumerated rights.
In closing all we can really say is the Dobbs totally ignores the IX Amendment and we don’t know why.
The Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States
With the news that the Gov. of California is thinking of using the Texas anti-abortion law as a blue print for an anti-assault gun law I’ve heard from several sources the idea that SCOTUS will be faced with the problem of how to up hold one while striking down the other. While it maybe a little difficult anyone who has studied the history of the court knows this will not be the first time SCOTUS has faced this problem. I, for one, see this as a golden opportunity for the ‘Textulests’ and ‘Originalist’ of constitutional legal theory. Both of these philosophies have a fundamental aversion to the concept of “Implied Rights”.
Before we dive deeper let me give you my understanding of “Implied Rights” as it deals with the Constitution. For me there are basically two kinds of “Implied Rights”. In both cases the right is not enumerated, stated explicitly, in the text of the constitution. The first kind of “Implied Right” is of the kind that if the right didn’t exist, then an stated right would be functional meaningless. A good example of this is the “Implied Right” to have a vote counted. The right to vote assumes that once a vote is cast it will be counted, otherwise the casting of the vote has no reason to be. The next “Implied Right” is much more nebulous. This is the right of liberty in our person. This is the right that is at issue with ‘Roe vs. Wade’. The right to liberty is not expressly stated in the constitution.
The closest the Constitution gets to granting the right to Liberty is in the Preamble where is states the Constitution is established to “Secure the Blessings of Liberty.” The inalienable rights are given in the Declaration of Independence, not the Constitution. An while SCOTUS has stated the Declaration is part of our fundamental national law the Constitution takes no note of it. In my view to exclude the Declaration would make a mockery of the Constitution, it is quite possible for some future court to do that. So where does that leave us with the new Texas legal theory?
Just this: the Texas law deals with an “Implied Right” and the proposed California law deals with an enumerated right (the Second Amendment). All SCOTUS needs to do is find some reasoning that says that “Implied Rights” don’t get the same degree of protection, if any, as “Enumerated Rights”. This would be a very interesting slippery slope to go down an I invite you, my dear reader, to think upon all of your ‘Rights” that an just an “Implied Right” and not explicitly stated in the Constitution.
With all the ‘talk, talk, talk’ going on about the Impeachment investigation I thought it would be nice to lay out the possible paths we may be fallowing in the near future. I’ll start with where we are now, with the Secretary of State Pompeo not honoring the House subpoenas for depositions by State Department employees. We can now ignore, or prune, that branch of the tree that starts with full cooperation.
What are the possible actions now? In no particular order of preference there seems to be three possible branches. Branch one: Increased resistance by the Executive branch. The next Branch is that the resistance stays as low key as possible and the final branch is acquiescence to the subpoenas.
I do not find the third Branch likely but it is the cleanest/simplest. What can follow it is that the House Committees either find sufficient evidence to recommend to the House to vote Impeachment or It doesn’t. If the person(s) being investigated are truly innocent of any impeachable actions this would be the best course for everyone concerned. Given the current evidence available to the public this does not seem likely as it does seem to show that Donald Trump did, in fact, attempt to get a foreign government to provide a thing of value for his upcoming campaign. Of course it is possible for the President to argue that Op Research is not a thing of value. Also it can be argued that he really didn’t ask for this. The problem is both arguments are quite thin and really don’t play well with an impartial jury.
So let us take on the first Branch of the tree, complete non-compliance subpoenas has and total resistance to giving evidence to the House Committees. This branch leads very quickly to either the House caving in and waiting to see just what the election in 13 months brings. Or the house can attempt to use it’s more usual method of enforcing it’s subpoenas by asking the Justice Department to bring criminal contempt charges. This would lead to another set of branches, the JD could honor the request or just ignore the request or responded that they see no merit in the request.
Let’s look at this last one first. Finding that the request for criminal contempt was with out merit would force the House to either just cave in or move quickly to using inherent contempt. More on inherent contempt later. Just ignoring the request has the advantage of burning time while leading eventually to the same two branches of finding no merit. As far as honoring the request for Criminal Contempt this leads to the problems of having the Attorney General go against the wishes of the President, something the current President doesn’t take well. Look for this to happen if Pres. Trump has found a way to get someone else to take the fall. In any case this path leaders inevitably to either the House passing/not passing a bill of Impeachment.
So now let us look at the possibilities of those branch’s above that lead to the use of inherent contempt which will entail having the House Sargent at Arms arresting the person or persons. As inherent contempt has not been used since 1934 (85 years) it is almost anyone’s guess on just how it will be worked now. Something to what for is actions taking place in the House Sargent at Arms office and in/around the cells in the House basement. This action by the house could quite easily lead to one of two events/branches. First, and most likely is that the person or persons peacefully submit to arrest. They also could resist the arrest. The resisting could take many forms, all the way from just not letting the persons from the House Sargent at Arms into the building the person to be arrested is in all the way up to having the persons own security detachment forcefully protecting their charge from the people attempting to make the arrest. This last would be very bad for all concerned and while possible I really don’t see it happening.
Let us look at the breach that leads to the person or persons who are defying the Congressional Subpoena(s) being taken into custody. The House would have to hold a trial and this trial could be long or short depending on the House Membership and just how strong the person(s) being held is. It is customary to drop the Contempt Charge(s) if the person so charged takes action to make amends. If the House does find them in Contempt they have several options ranging from fines to imprisonment. This can last till the current congress expires in just over a year from now. It is also possible that if these persons are of sufficient rank, that is they hold a non-selective service job (and in some cases even if they do) they too can be impeached and removed from office. (Please note that being removed from office by conviction on impeachment is tantamount to being fired for cause and you loose all benefits etc.)
That is all I can foresee for now. More later as thing become either more murky, less murky, or stay the same.
A great deal has been written the past few days over just what and why Alabama passed such a draconian anti-abortion law. Mostly they all agree that it is to make a test case for the Supreme Court to over turn Roe vs Wade. An this may well be the case, but I think the Alabama Legislative may just have gone a bit to overboard in their enthusiasm. I see a way for the court to dodge the issue of abortion entirely and still overturn the law.
The Alabama law makes it illegal for a person (aka woman) to travel out side of the state to get an abortion. This one little clause. The first that came to mind was the ‘full faith and credits’ clause of the Constitution. Later, as I started writing this post in occurred to me that it also violates the right of any Citizen of the United States to freely travel between states with-out hindrance (with a few notable exceptions for convicted felons). Here are your citations: Full faith and Credit see Article IV Section 1. Right of movement see link.
SCOTUS could, or even a lower court could, declare the law unconstitutional on either one or both grounds and never even look at the issues of Roe v Wade. It is quite possible SCOTUS will not even hear the case if the appeals court rules the law unconstitutional on theses grounds. They could just let the lower court ruling stand.
To my way of thinking this is the end this law deserves. It is a bad law, badly written, badly intended, and was never intend to work except as a ‘cause celeb’ of the anti-abortion movement.
With all that has happened the past week and a half I thought it was good to point out how the Seldon Crisis I’ve been blogging about is progressing. For you who are still unclear on just what a Seldon Crisis is just follow the link. What I’m seeing now is part of a Seldon Crisis is one of the internal half of the crisis. With the release of the Mueller Report (redacted) and the demand of the House Judiciary Committee for both the complete report and all of the underlying data.
The action taken Pres. Trump to place everything and everyone dealing with the subject of the report under Executive Privilege I agree with Chairman Jerry Nadler that we are interning a Constitutional Crisis.
Time out for a disclaimer
I am not a Constitutiona scholar, nor lawyer. I am merely a long time student (49 years and counting). So anyone who is either a scholar or lawyer of the Constitution please jump in with your views, just be sure and identify your selves as such. I will listien very attentively. Everyone else be ready for possible snark.
Back to the blog
I have been thru two Presidential impeachment investigation, Nixon and Clinton. Neither was fun or the least bit enjoyable. One, Nixon, was successful even though Pres. Nixon was never tried in the Senate. An while the impeachment of Pres. Clinton was successful he was not convicted by the Senate. Also both were very different from each other. Both in how the investigations leading up to Impeachment and how the House voted on the impeachment. Also both Nixon and Clinton Impeachment’s are very different from the situation we are facing now.
I shan’t be going into all the details of the involved with Pres. Trump and the possible impeachment he is facing. Primary because I’m going to wait till actual impeachment hearings, if any, are being held to write several blogs here. I’m not even sure there will be hearings, much less a vote. But equally important to me is that we have a very important legal/political batter shaping up.
The battle is not the one you will see in the News/Media. It is none the less critical. I’m talking about the proper way for the congress to enforce it’s subpoena power. Historically we have two ways of enforcing a congressional subpoena. Once, over a hundred years ago the House, or Senate, would send out it’s Sargent at Arms to ‘arrest’ the person(s) who was defying subpoena. Now we turn everything over to the justice department. In the current situation this would come of nothing an be bothering more that a bit of Political Kabuki. Some think that this is just what the House Democrats are working for. Some people also think that this is just what the Trump White House is expecting. Me, I think some people are quite wrong.
If this whole battle ends up as a bit of political Kabuki I will be very disappointed in the House leadership (both parties) as this will lead to the effect end of congressional investigations and oversight. What I’m hoping for is that the actual people who are served with the subpoena(s) will defy the orders of the White House and will comply with the subpoena(s). I do not expect this. What I do expect is that the House will clean up it’s holding cell (I hear it is quite disreputable) and then send their Sargent at Arms out to arrest those person(s) who are defying them.
I wait with baited breath to see if we will have Kabuki or action.
