Monthly Archives: October 2017

My Thoughts on the Second Amendment

2nd Amendment on a scroll

Let’s be clear here, I am a student of Constitutional  Law, I am not a scholar nor a jurist (practicing or otherwise).  I have studied and followed Constitutional Law since I was first introduced to my first Supreme Court decision in the 12th grade (way back in 1968).  I graduated collage with a degree in Political Science, specializing in Jurisprudence (Law) with the hope of become a Constitutional  lawyer .  It didn’t happen, I became a programmer.  So that said, I love talking about the Constitution, no I’m not an expert but I do understand it just a bit better than most.

To move on, please read the image above.  It is an accurate rendering of what is in the Constitution (feel free to check).  Next I’d like to share with one of the first things my first Professor of Constitutional Law beat into my head.  “There is NOTHING in the Constitution just for show.  Everything is important and has bearing on what is being said.” For me this means that while the Constitution is a beautiful work of rhetoric nothing in it simply rhetorical.  More on this later.

Next, like all American Citizens, I reserve the right to my own interpretation of the Constitution.  BUT, the Supreme Court of the United States has the last word in how the Constitution is applied in law.  I can disagree with SCOTUS, but in court they win.

To start, here is a list of SCOTUS cases dealing with the 2nd Amendment .  All the cases are important but some are more important than others.  I have read both the brief given with the list and the cases themselves and the briefs seem good to me but feel free to send me you views.  As you can see that while the debate over the 2nd Amendment has been going on for sometime, it really wasn’t under debate before 1875.  I think that is significant, for 88 years there was little dispute on just what it meant. Just a few of the questions now being discussed:  What does “Malitia” mean?  What did it mean in 1786 and what does it mean now?  What does  “well regulated” mean, again 1n 1786 and new.  What does the word “Arms” mean?  What does it encompasses, all weapons and weapons systems or just some?

So, you can see the problem we are facing just with the words.  I shan’t go into the problems with all of the different legal philosophies on how to interpret the constitution, other than to say there are more than just “originalizem, Texturalizm, Intentualizm, Pragmatizium, and Natural Law. (Please see this link for details.)  First because they are all complex and secondly I know of know one who ever follows them completely.

So what do we do?  All we can do is follow the decision(s) of SCOTUS.  We can also demand and motivate SCOTUS to make good Law.  That is law that is clear, concise, capable of being enforced, and, hopefully just to all.  To this I say that I hold that  District of Columbia vs Heller is not very good law.  While it clearly stats that the right of an individual to keep and bear arms is a fundamental right and any law has to pass the “strict construction” test it does not supply any kind of example of what this test should be.  An while SCOTUS has c learifed that in the case of the 2nd amendment Arms means Bearable Arms, it has yet to give a clear indication of what Arms fall under the title of Bearable Arms Arms.

Just think of what might have happened if in Las Vegas instead of modified simi-automatic rifles being used a RPG or just a basic 40mm  grenade launcher had been used?  Both are quite capable of being born by an single individual, are they considered Bearable Arms?  I don’t know and the court has yet to say?



Argumentum ad Hominem

Hand up stop sign

With the debate over Gun Control is heating up agian, I thought I’d take the time to talk about one of the reasons why it is going to be so difficult to get both sides to sit down at the table.  I submit for you consideration that one cause is the rash of the use of the logical fallacy “Argumentum ad Hominem“.

For those of you who want to read up on this fallacy, just follow the link, for all the rest here is a simple working definition: an attack on the person making the argument.  In the case of gun control, both sides are all too often falling into this logical fallacy.  Or rather, I should say, all to often they think they are being attacked by the other side.  Because of this both sides of the debate end up talking past each other even before anyone starts talking.  This is a basic offense against debating.  If you come into a discussion assuming the other side is not and will not listen to what you are saying the debate is over before it starts.

Anyone who knows me, knows I love to debate.  I was raised in a family where free an open debate (arguments some would say) was not only allowed but encourage.  While my Dad was a engineer, he loved logic, my Mom was a sometime speach couch.  When ever the debate got personal one or the other them, sometimes both, would step in an say it was getting personal and it was time to stop.  Well, with the debate on gun control it is time to stop, take a deep breath and calm down.

This will not be easy, for either side.  To the pro gun control side I say “don’t take the action of the NRA personally and don’t take their bait”. The NRA is a professional lobby and one of the favorite tactics of any Lobby is to get the other side upset.  To the pro gun side I say “don’t take any limitation to the 2nd amendment as a personal attack, it’s not.”  One of the first truisms of Constitutional Law I learned was this “Your right to swing your fist ends at my nose.”  Simply put, all rights have limitations.  Period, Stop, Close Quotes.  Finally I say to everyone, assume the good intentions of the other side.

That’s it, just grant the other side what you demand for yourself.  That they are good people trying to find a workable solution.

A Challange to the Pro Gun folks

Rattlesnake Flag

It has been over a week since Las Vegas so it is, in my opinion, time to start talking about how we can prevent an occurrence.  As has become habitual we basically have two sides, the pro gun control side and the pro gun side.  Today I am going to address just the pro gun side.  What I’m not going to do is say you are wrong, nor am I going to challenge any of your arguments favoring gun ownership.  What I am going to do is issue you a specific challenge and wait and see if you are willing to take it up.

What and/or How do you propose to take action to prevent the kind of mass murder that took place in Las Vegas?  There are some conditions

1) No changes to the laws in regards to guns.  None.

2) No change in how we inforce the current gun laws on the books.  Not Federal, not State, not Local.

That’s it.  Guns are off the table.  Ammunition is off the table.  Anything doing with pistols, or long arms is off the table.

I really do want to hear from you and see your ideas.  I’m sick and tired of people talking past each other on this issue.  Now is a great time for the pro gun lobby to step up and show what they are made of and put forth good solid ideas on what we are going to do mass murder that uses firearms.  Can you do it?

WARNING: If I don’t hear anything, if no suggestions or ideas are put forward I will take that as tacit agreement that the pro gun lobby holds that we just have to accept these casualties.  More on this later if I hear nothing.

The GOP and the “Rock and Hard Place”

Recently I happened to read an article on the Politico website titiled “Angry GOP donors close their wallets” and it got me to thinking about just where the Republican Party has gotten itself.  The old saying my folks you to say to me “Well, Beau, you’ve gotten yourself stuck between a rock and a hard place.  Now what are you going to do?”  I think this is quite fitting to say to the GOP. So what is the Rock and wht is the Hardplace?

I think I will start with the Hardplace as it was the subject of the Politico article that started it all.  Simply put the Hardplace is all the Big Money the GOP and conservative have been freeing up the last few decades.  I’m not just talking about the individual donors, we’ve always had them, but also the dark money PACs.  We’ve all seen them with the great names like “committe to make america great again” or “Protect American Freedoms Committe” that tells you absolutely nothing about just what agenda they’re pushing.  An before you jusmp all over on me, yes there are PACs like this on the Left, it is just the Right is Soooooo much better at creating and funding them that the PACS are now causing the GOP more and bigger problems than the Democrats.  If you just look at the political science studies on campaign financing  you will see the GOP has more big money donors than the Democrats.  Warning: Becareful where you look way too many of the Think Tanks out there have a political bias that is often not obvious.

The Rock is a bit less obvious, it is the result of two factors.  First the gerrymandering of congressional districts and the 2nd is the ‘Make no Compromise ‘ mindset current in American politics.  Because of the extreme gerrymandering of too many of our congressional districts in too many of our states the only real threat to an incumbent GOP congressman is in the primary.  Given the fact that primaries usually have low turnout it is only the most ardent party members who vote.  Given, next, we have the “Don’t Compromise” attitude of the party faithful. Congressmen are more worried about angering a relatively small number of dedicated voters.  The problem is these self same voters are more often than not small donors, not Big Money Doners of the Hardspot.  Now add in that the Donor class and the dedicated voters often don’t want the same thing.  This problem can be handled if your careful.

As you may ask, why are the Donors the Hardplace and the Voters the Rock.  Basically it is this, the Donors don’t need to do anything.  They just stop giving money and fade into the background. The Voters on the other hand have to move to have any effect at all.  I’d also like to point out that many of the Big Money Donors are very good at various forms of gambling, be it dice, cards, horses, or stocks.  As the song “The Gambler” goes:

”You need know when to hold them, know when to fold them, know when to walk away, know when to run.”

What has been going on for way to long (I’d say since Nixon’s Southern Startagey but I could be quite wrong) is to come up with nice sounding theories on finance, easy fall guys to blame, and all the other classic political tricks and you can keep the average vote from noticing that they aren’t getting what they were told they would get.  Like, passing big tax cuts that go mostly to the very wealthy and corporations and give it a nice sounding name, say “Trickle Down Economics”.  Next when the average vote fails to see any positive change in there economic situation tell them they really didn’t get “Trickle Down Economics”  because of the “Libretard Socialist” who fought the tax simplification.  If that doesn’t really work you next blame it on all of the “Illegals” taking their jobs.  Now finally consider this; in politics, like all human activities, eventually you have to pay the piper.

You always have to pay the piper, always.  The time is coming that the Conservatives are going to have to face up to the fact that the GOP has been playing them for over 30 years and failed to deliver much, if anything, they have been promising.  The rock started moving when Donald Trump wan the GOP nomination and now the Hardspot has reared up.  Soon we will get to ask the GOP “What are you going to do now?” Because it looks like the Donor class is deciding to get up from the table and the only question t left is whether to walk or run.

Another Test of the NRA Meme(s)

I am sorry to see that once more a mad man with a gun(s) has come forth and provided us with data to test the NRA memes about how much we need “Good Guys with a gun”.  Before I start I wish to say I am heart broken that so many people have had to suffer and die.  To all the friends and families of the victims of the Las Vegas mass murder I can only say I grieve and sorrow with you.  My grief is not your grief, my sorry is not your sorrow.  I say this to you in the small hope that you get some small comfort knowing a total stranger grieves with you in some small way.

I do not know, and I will not even attempt to predict why this massacre in Las Vegas happened.  It is too early and we know too little to say anything definitive about motive of the perpetrator.  Nor will I enter into any discussion of pro and cons of gun control, this is not the time for this to take place.  What I will be talking about is the meme that the NRA is always pushing that the only way to stop a bad man with a gun is a good guy with a gun.

This is a very insidious meme.  Without a doubt this bad man with a gun was stoped by good guys with a gun.  The problem is that the good guys in question were highly trained professionals.  These good guys were not just someone who likes shooting, they were not just great marksmen, they are men and women who train for just this kind of crises.  They train individually and they train togeather.  They know what they are doing and they know what their team mates are going to doing and going to do.  An this is why the meme of a ‘good guy with a gun’ is so insidious.

This meme gives the impression that any good guy with a gun would be an asset in the kind of situation that happened last night in Vegas.  Nothing could be farther from the truth.  Don’t just trust me, go ask any policeman or other first responder just what the effect of a bunch of armed civilians running around in the CF that Las Vegas was last night.  I won’t even attempt to give you any of the many scenarios that come to my mind as I write this.  What I will do is talk about ‘seeing the elephant ‘.

Let’s do a little experiment here, go find a combat vet.  Find an marine, or an army fire team member.  Someone who has been in actual combat.  Someone, as Bill Malden put so eloquently “a member of the benevolent and protective order of those who have been shot at” and ask them this:  What happens to someone the first time they are in combat, the first time they are shot at?  I think they will tell you there are just three things you will do

1) Break and run-a-way

2)  Freeze

3) Follow training/orders

An they will tell you one other thing; until you are in actual combat you have know idea which one of the three you will do.  If you are real real lucky and well trained it will be 2 or god helping 3.  But you will not know till you really do see the elephant.

This is why I will always fight this meme.

Incloseing I’d also like to point out that Nevada is a functionally ‘Open Carry’ state.  That is to say that the state laws regarding the open caring of firearms are enforced with a very light hand.  Next Las Vegas was getting ready for several gun shows and there was an influx of people with many many guns for these show already.  Given this there should be a good number of ‘good guys with a gun’ in the area of the shooting.  I await with great interest to see the data on just what all of these gun toting good guys did when the massacre started.