Monthly Archives: March 2008

“PATRIOT” Act used against Spitzer

It was indeed the so-called PATRIOT Act that brought Elliot Spitzer down:

When Congress passed the Patriot Act in the aftermath of the 9/11 attacks, law-enforcement agencies hailed it as a powerful tool to help track down the confederates of Osama bin Laden. No one expected it would end up helping to snag the likes of Eliot Spitzer. The odd connection between the antiterror law and Spitzer’s trysts with call girls illustrates how laws enacted for one purpose often end up being used very differently once they’re on the books.

The Patriot Act gave the FBI new powers to snoop on suspected terrorists. In the fine print were provisions that gave the Treasury Department authority to demand more information from banks about their customers’ financial transactions. Congress wanted to help the Feds identify terrorist money launderers. But Treasury went further. It issued stringent new regulations that required banks themselves to look for unusual transactions (such as odd patterns of cash withdrawals or wire transfers) and submit SARs—Suspicious Activity Reports—to the government. Facing potentially stiff penalties if they didn’t comply, banks and other financial institutions installed sophisticated software to detect anomalies among millions of daily transactions. They began ranking the risk levels of their customers—on a scale of zero to 100—based on complex formulas that included the credit rating, assets and profession of the account holder.
[…]
The new scrutiny resulted in an explosion of SARs, from 204,915 in 2001 to 1.23 million last year. The data, stored in an IRS computer in Detroit, are accessible by law-enforcement agencies nationwide. “Terrorism has virtually nothing to do with it,” says Peter Djinis, a former top Treasury lawyer. “The vast majority of SARs filed today involve garden-variety forms of white-collar crime.” Federal prosecutors around the country routinely scour the SARs for potential leads.

One of those leads led to Spitzer. Last summer New York’s North Fork Bank, where Spitzer had an account, filed a SAR about unusual money transfers he had made, say law-enforcement and industry sources who asked not to be identified because of the sensitivity of the probe. One of the sources tells NEWSWEEK that Spitzer wasn’t flagged because of his public position. Instead, the governor called attention to himself by asking the bank to transfer money in someone else’s name. (A North Fork spokesperson says the bank does not discuss its customers.) The SAR was not itself evidence that Spitzer had committed a crime. But it made the Feds curious enough to follow the money.

I’m glad to see that the PATRIOT Act is being used to stop such crimes so detrimental to the national security interests of the United States.

Bob Barr For President ?

Once again, there’s speculation that former Congressman Bob Barr may be running for President as a Libertarian:

Bob Barr for president? According to the Washington Times, the former Republican congressman from Cherokee County confirms he is considering a run for the White House as a Libertarian.

“There is great deal [of] dissatisfaction with the candidates for the two major parties, particularly among conservatives, but also a great deal of Internet and other support for a candidate like Ron Paul who advocates libertarian and true conservative principles,” Barr, who is now a Libertarian, told the newspaper.

Unlike last time, Barr is not denying the rumors either:

Former Congressman Barr has been receiving numerous calls for him to consider seeking the nomination of the Libertarian Party for the presidency of the United States. He understands this reflects in part the deep dissatisfaction prevalent among voters with the candidates of the two major parties. Congressman Barr is grateful for the many and continuing expressions of support for his potential candidacy. He has, however, made no decision in that regard.

In other words, he’s seriously thinking about it.

H/T: Jason Pye

There’s a word for Energy Independence: Poverty

One of the hot topics in this campaign is a call for “energy independence”. All the candidates for president, with the exception of Ron Paul are for it. The vast majority of the candidates for Congress are for it too.

Essentially, the proponents are arguing that if people living in the U.S. bought less oil from people living outside the U.S., there would be much less reason for American soldiers to be sent to go fight in the Middle East, and Middle Easterners would have less money with which to fund attacks on Americans. Additionally, the supporters all seem to believe a largely unspoken mercantilist argument that by not buying oil from foreigners, Americans are better off since wealth stays within the borders of the nation.

The supporters argue that to achieve this, the U.S. government should, through a mixture taxes and subsidies, encourage people to either produce oil domestically, or to develop alternate sources of energy.

Let us examine this idea using a reductio ad absurdum. Imagine we did not simply stop at energy independence for the United States, but rather required each state to be energy independent. Imagine if the Federal Government outlawed the transport of any electricity, any fuel oil and any wood across state lines. What would be the result?

At least they aren't dependent on foreign oil.

At least they aren’t dependent on foreign oil.

Well, California and Alaska would be awash in cheap energy, but what would people in Vermont do? Should they send children out in to the forest every day to collect the days firewood? Should they huddle in their homes through the harsh winters carefully rationing out the year’s chopped wood so that they can survive through to the spring thaw?

Why stop at energy? Why not make people be clothing independent? Surely we need to become food independent as well?

Why stop at states? Why not continue to make people freer by making them independent of each other? Why not make each person responsible for producing their own food, their own clothing, their own energy?

Of course, people living in Alabama would have to give up maple syrup, and we living in New England might have to limit our consumption of table sugar and salt to very special occasions as they would become ultra-rare luxury goods. Once again the poor would be reduced to going bare-foot, and clothing would become precious again.

So called “self-sufficiency” has been proposed many times in various guises; The North Korean juche program, the American unions’ “Buy American” campaign of the 1980’s leap to mind. In every case it leaves the practitioners worse off. Deprived of purchasing goods from the lowest cost producers, people are forced to go with higher cost producers, thereby limiting the purchasing power of their own production. The extra cost results in everyone (except for the lucky guy whom people are forced to do business with) being poorer. Their hours of labor buy them fewer goods and services. It is no accident that countries whose economic policies are intended to foster “economic independence” tend to be very poor.

Even though the politicians are not attempting to outlaw oil imports outright, the subsidies and economic interventions they are proposing are destructive. The ethanol subsidies are destructive to farmland and are raising the price of food. The government grants for energy research divert money out of the financial industry that would otherwise be invested in more profitable uses. The result is that what is produced is not as closely aligned with what people want to consume.

There is nothing wrong with the proponents of energy independence calling for people to voluntary avoid consuming petroleum products. There is nothing wrong with the proponents advocating for research and development of new forms of energy to replace the petroleum industry. But in using violence inherent in government action to force people to follow their commands, they are making their countrymen worse off.

We should not be supporting the politicians who pander to this movement.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Free Speech And Fraud

An interesting case-in-point raised by this article in The New York Times:

When Xavier Alvarez was asked to say a few words about himself at a meeting of a California water board last summer, he decided on these: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

Only the last three words were true. Mr. Alvarez never served in the Marines and was certainly never given the Medal of Honor, the nation’s highest award for valor in action against an enemy force.

He is, then, a liar. Is he also a criminal?

Mr. Alvarez is scheduled to go on trial next month in federal court in Los Angeles for violating the Stolen Valor Act of 2005, which makes it a crime to lie about having received certain medals.

Craig H. Missakian, the prosecutor in the case, is a brainy and literate fellow. “It’s a superinteresting area,” he said, beginning a discussion of Pericles’ funeral oration and the importance of honoring the legacies of those fallen in battle.

“You don’t want to stifle speech about opinions and ideas,” Mr. Missakian said. “But Congress, and rightfully so, recognized the great sacrifice that people awarded the Medal of Honor made on behalf of their country. To the extent we have phony Medal of Honor winners running around like Alvarez, it dilutes the value of their sacrifice.”

That rationale is reflected in Congressional findings. The law, Congress said, is meant “to protect the reputation and meaning of military decorations and medals.”

As one law professor notes, there is a First Amendment concern here:

“If the government cannot under the First Amendment compel reverence when it comes to our nation’s highest symbol,” asked Ronald K. L. Collins, a scholar at the First Amendment Center in Washington, “why then can it compel reverence when it comes to lesser forms of symbolic expression?”

Eugene Volokh, though, says that the law isn’t really on Alvarez’s side:

“On the other hand,” Eugene Volokh, a law professor at the University of California, Los Angeles, wrote on his blog, The Volokh Conspiracy, “the legal issue is not as clear as one at first might think.” He cited the somewhat muddy Supreme Court jurisprudence in this area and an October decision of the Washington Supreme Court that struck down a state law making it illegal for politicians to lie about candidates for public office.

“The best remedy for false or unpleasant speech is more speech, not less speech,” Justice James M. Johnson of the Washington Supreme Court wrote. It is hard to muster much sympathy for Mr. Alvarez. But it is easy to envision cases in which laws to protect symbols are misused.

The more important question, as I see it, is what harm has Mr. Alvarez actually caused here ? Yes, he’s a jerk and yes he offended veterans, but, based on the facts presented, its clear that nobody lost money because of his misrepresentations, nobody had any of their rights violated or was deceived by him in a way that caused them to suffer a quantifiable case.

Given that, why should he be subject to a criminal prosecution for being stupid ?

A Presidential Candidate We Can Believe In

His policy statements are vague, he’s got no experience and I’m about 80% sure he’s still on drugs, but damned if he isn’t a likeable scamp who can belt out a good tune, so I’d consider tossing the man a vote.

It’s time for America to drink from the hose once again (and barbecue on Tuesdays).

H/T:  Reason Hit & Run

I Can’t Think Of A Catchy Title

I suppose the best way to describe myself would be to say that I have a problem with authority. I’ve always disliked when people told me what to do, even as a young child, and I’ve always preferred to find my own path through life and make my own decisions, even if it occasionally went against the conventional wisdom and sometimes worked to my short-term disadvantage. My dad said I inherited it from him, but that I’ve taken it to a whole new level. When I was young I wanted to be a journalist, until I got to college and realized that journalism was less about the search for objective truth than it was about writing the stories that best suited your employer’s interests, whether they were true or not (which didn’t sit well with me at all). So I drifted aimlessly through a couple of years of college as an indifferent (often drunk) student, unsure of what to do with myself until one of my fraternity brothers gave me a copy of “The Fountainhead” and I got hooked on the ideas that success and a refusal to conform to societal standards were not mutally exclusive, and that the greatest evil in the world was society and government’s failure to recognize or accept individuality and individual freedom as a strength, not a weakness. So I threw myself into studying politics and history, worked in a few political campaigns after college, had some success, and thought about doing a career in politics until I realized that most of the people I knew who had never had a career outside of politics had no comprehension of how the real world actually worked and tended to make a lot of bad, self-absorbed decisions that rarely helped the people they claimed to be representing.

That didn’t sit well with me either, so I decided to put any thoughts of going into politics on hold until I’d actually had a life and possibly a real career, and I spent the next couple of years drifting between a series of random yet educational jobs (debt collector, deliveryman, computer salesman, repo man, dairy worker) that taught me the value of hard work, personal responsibility and the financial benefits of dining at Taco John’s on Tuesday nights (2 tacos for a buck) when money got tight.

After awhile, however, the desire to see the world (and the need for a more consistent and slightly larger paycheck) convinced me to join the Army, where I spent ten years traveling around the world on the government dime working as an intelligence analyst. I generally enjoyed my time in the military, despite the aforementioned problem with authority (which wasn’t as much of an issue in the military as many people might think it would be), and I got to see that the decisions our political leaders make were sometimes frivolous, often ill-informed, and always had unforeseen repercussions down the road…especially on the soldiers tasked with implementing those decisions. I was fortunate enough to spend most of my 10 years in the military doing jobs I enjoyed, traveling to countries that I always wanted to see (Scotland is the greatest place in the world to hang out, Afghanistan is very underrated) and working with people I liked and respected, until I finally decided that at 35 it was time to move into a job where I didn’t have the threat of relocation lying over my head every two or three years, where I didn’t have to worry about my friends being blown up, and where I didn’t have to work in any capacity for George W. Bush.

I work now for a financial company in Kansas where I’m responsible for overseeing, pricing and maintaining farms, commercial and residential properties, mineral assets, insurance policies, annuities, etc. In my spare time I like to read books on economics, history, and politics (I’m preparing to tackle Murray Rothbard’s “Man, Economy & State” and Von Mises’ “Human Action”…should take me about a year at the rate I’m currently finishing books), watch movies, and destroy posers on “Halo 3″ (where I’m signed in under “UCrawford” for anyone interested in taking a shot at me some time). I used to play rugby until age, inconsistent conditioning, and a string of gradually worsening injuries finally convinced me to quit. I’m a rabid fan of the Kansas Jayhawks in general and their basketball and football programs in particular and I’m also a devoted fan of the Kansas City Chiefs and Royals. I’m also fond of going online and debating/picking fights with people on the merits of the philosophy of individual freedom…sometimes to the point of being an asshole (but hopefully a reasonably well-informed asshole). I’ve been a big fan of The Liberty Papers ever since finding it online, I respect the body of work they’ve put out, and I’m honored that Brad Warbiany invited me to join his jolly band of freedom fighters. So cheers, Brad, and to everyone else I look forward to reaching consensus or locking horns with you in the near future.

A Personal View of the DC VS. Heller Oral Arguments

I watched/listened to the oral arguments in DC vs. Heller this morning, and in my view (solely based on my knowledge of the justices, and the questions and arguments raised today; which is always iffy) we’re looking at a mixed bag.

Well, first the good news. It seems clear that the entirety of the court, even Souter, Breyer, and Ginsburg, agree that the second amendment protects a pre-existing individual right right to keep and bear arms.

The rest of the question gets a bit thornier however.

Clearly, the position of the courts is, and has always been; that all rights protected by the constitution are, under some circumstances, subject to regulation or restriction. I can for example say whatever I want in the privacy of my home, or make any criticism of the government that I want, but I cannot publish malicious lies about someone. Preventing libel, is a reasonable restriction on the first amendment, and is a compelling interest of the state.

Given this historical and legal basis, folks who say “What part of ‘Shall not be infringed’ don’t you understand” are just being silly (and often offensive, threatening, etc… etc…).

At this point, it seems clear that all of the justices believe that some regulation is reasonably allowed under the second amendment. The question then devolves down to “what is a reasonable restriction”… therein lies the rub.

DC presented the position that not only was there not an individual right; but that even if there were, that local legislatures had nearly unlimited power to regulate such rights (in fact, their lawyer suggest that they had plenary authority, a position flatly rejected by the court).

Walter Dellenger, who argued the case for DC, was absolutely DESTROYED by all the justices during questioning. Even the liberal justices tore him to pieces. It was clear he was disingenuous in his arguments, and presented no clear or coherent logic, justification, or defense of their positions. Even Ginsburg and Breyer, who nominally support strict regulation of firearms, seemed unswayed and unimpressed.

Paul Clement, the Solicitor general of the U.S., argued a “middle road” standard; presenting very strong arguments for the individual right position, which seemed to impress the justices. He was much weaker on his other contention however that reasonable restriction and a broad standard of review were necessary to protect the public interest in regulating firearms; specifically citing machine guns and “plastic guns designed to get through metal detectors” (a fantasy commonly used by gun banners to scare people into agreeing to bans in principle).

Alan Gura, the chief council for Heller, was very strong on presenting the individual rights position; but was very weak and unfocused in his arguments on the position of what constitutes reasonable regulation, and why. I think he was expecting most of the challenge to come from the “individual rights” argument, and not as much from the ‘reasonable regulation” argument. Though he was certainly prepared with facts and citations (his knowledge of 300+ year old statutes and precedent in both American and English common law was impressive), his arguments lacked coherent structure or flow.

For example, Justice Breyer repeatedly asked questions to the effect of “do the 80,000 deaths per year by handguns in the united states constitute a basis for reasonable regulation, or can they be considered in crafting such regulation?”. Were Gura prepared to argue the basis of reasonable regulation, his response should have been something along the lines of “We contend that crime rates are neither affected by, nor relevant to, the lawful possession and use of arms; and that regulation and restriction of the use of arms by law abiding citizens does not serve the compelling interest of the state in preserving public safety”. Instead he made vague arguments about reasonable standards of review etc… etc…

Dellenger in fact seized on this waffling about standards, to suggest during his rebuttal that if the court specified a strict standard of review (something they seemed inclined towards), that it would result in hundreds of judges around the country determining what was and was not protected by the second amendment, on an individual case by case basis.

So, as I said, a mixed bag.

Kennedy, Scalia, Roberts, Alito, and Thomas all clearly believe (both from questioning in this case, and in previous opinions and writing) in a strongly protected INDIVIDUAL right to self defense, and to keep and bear arms. It also seems clear that they support a strict standard of review for legislation; and a very limited scope for legitimate regulation.

Surprisingly, it also seems that Souter and Ginsburg agree that there is a right to self defense, AND that there should be a strict standard of review; however it seems they believe in a broader scope for legitimate regulation.

Stevens and Breyer, although they both seem to believe there IS an individual right, also seem to believe that very strong regulations or perhaps bans, are acceptable.

My prediction… that’s a tough one…

I think that we will see an absolute affirmation of the individual right to keep and bear arms, and that this right includes explicitly the right to self defense. In fact I think we may see some language to the effect of “for all lawful purposes, including hunting, sporting uses, and self defense”.

I also think we will see a strict standard for review, and application of that standard to the entire United States, including the states individually (under the 14th amendment and equal protection clause), rather than limiting the scope to D.C. or to the federal government only.

What I really have no prediction on, is what standard of “reasonable regulation” they might promote.

What seems clear, is that the entire court believes that US V. Miller (one of the few cases directly addressing the second amendment), and the standards it presents, are deficient. Scalia, Alito, Breyer, and Ginsburg all made comments to that effect. What that means for the future though… I think its anyones guess really.

I think we have a good shot at striking down all total bans on any gun, or even any class of gun, excepting perhaps machine guns and destructive devices. I believe they may explicitly approve of some licensing provisions provided that the licensing standard is non discriminatory. I believe that they would explicitly approve of regulations that restricted the rights of felons and minors.

I have no real read though on what their take is on the legitimacy of state and local regulations, such as trigger lock requirements, ammo bans, safe storage requirements, etc… I’m sure they will rule that state and local regulation are acceptable, but what standard of “reasonable regulation” will apply… who knows?

As it is though, under any possible construal of “reasonable regulation”; I would expect that the majority of the gun laws in California, Massachusetts, New York, Illinois, New Jersey, and Hawaii; would be in whole or in part, struck down.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

District of Columbia v. Heller Gets Its Day In Court

The Supreme Court had allotted 75 mintues for oral argument in D.C. v. Heller today — 30 minutes for each side and 15 minutes for the U.S. Solicitor General — but they actually ended up running nearly half an hour longer as the Justices considered the interpretation and application of an Amendment that has been largely ignored:

A majority of the Supreme Court today seemed to clearly indicate that the Second Amendment provides an individual right to possess a firearm and several justices appeared skeptical about whether the District of Columbia’s handgun ban could be considered a reasonable restriction on that right.

Two justices cleanly framed the issue confronting them after about 90 minutes of intense arguments that took a trip back to the English Bill of Rights and the founding of a new nation on this continent.

Justice Stephen G. Breyer noted the number of people killed by handguns and asked if it was unreasonable for a “city with a very high crime rate to say ‘no handguns here.’ ”

From the other side, Chief Justice John G. Roberts Jr. asked: “What’s reasonable about a total ban on possession?”

The justices peppered lawyer Walter Dellinger, who represented the District, about whether the law provided any adequate measure for residents to own and use a firearm for self-defense.

“Is there anything to show the District considered self-defense?” asked Justice Samuel A. Alito Jr. Dellinger said laws that allowed residents to own rifles and shotguns were an adequate provision.

Justice Anthony M. Kennedy, often seen as the deciding vote on the divided court, immediately made it clear he did not accept the District’s arguments — and the views of a vast majority of federal appeals courts — that the Second Amendment provided only a collective right to gun possession in furtherance of military purpose.

(…)

Kennedy said he thought the much-debated first clause was simply “reaffirming” the importance of the Constitution’s militia clause and that it clearly stated “there is a right to bear arms” that is separate.

It is often risky to make judgments about where a Judge or Justice stands based upon the questions they ask during oral argument, but in this case there were clearly four Justices who seemed to accept Heller’s argument that the 2nd Amendment provides an individual right to keep and bear arms — Justices Scalia, Alito, Kennedy, and Chief Justice Roberts. Justice Souter asked questions of both sides but also seemed more sympathetic to the individual rights interpretation, and Justice Thomas has previously hinted that he would fall into this camp as well (and given the way Thomas decides cases, it would be shocking if he didn’t.)

If that’s the case, then it would appear that the worst fears that libertarians and gun rights proponents had about this case — that it might result in the Court saying that the 2nd Amendment provided a collective rather than individual right — will be proven to be unwarranted.

One can only hope.

As I noted yesterday, though, that was only one portion of the issue before the Court, and the question of what standard to apply in the case was hotly argued as well:

Solicitor General Paul D. Clement told the justices that too strict a standard would imperil the federal government’s efforts to restrict machine guns or “plastic” guns meant to avoid metal detector screening.

The right to bear arms, Clement argued, “always coexisted with reasonable regulations of firearms.”

Alan Gura, representing those challenging the District law, said he agreed that the “government can ban arms that are not appropriate for civilian use,” but he said handguns clearly are not included in such a restriction.

Walter Dellinger, who represents the District, argued, of course, that the lowest standard of review should be applied and that even the District’s outright ban on handguns, along with the other regulations challenged was entirely reasonable. While I have a bias in this case, I’ve got to say that I don’t think Dellinger defended his position on this, or on the individual vs. collective right issue, all that well under questioning.

Over at ScotusBlog, Lyle Dennison has an extensive analysis of the oral argument:

In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. “Why does any of that have any real relevance to the situation that faces the homeowner today?” Kennedy asked rhetorically.
With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the deciding vote. There also remained a chance, it appeared, that Justice Stephen G. Breyer, one of the Court’s moderates, would be willing to support an individual right to have a gun — provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates.

As Dennison goes on to note, one theme that emerged throughout the argument was the question of what the purpose of the Second Amendment was and what role, if any, an individual right to self-defense might play in the case. As the attorney for Heller noted at one point, the District’s ban on handguns and regulations on other weapons, along with a history of prosecuting people who used banned weapons in self-defense, means that District residents are essentially defenseless against an intruder breaking into their home in the middle of the night. What role that might play in the decision is unclear, but it was a powerful point.

So now, we wait, most likely until the very end of June when the Court’s term ends.

A transcript of the oral arguments can be found here.

I’ll post a link to the audio track when it’s available.

CSPAN audio can be found here (Realplayer required)

Gun Rights On The Docket Today At The Supreme Court

Beginning at 10am today and lasting for 75 minutes, the United States Supreme Court will hear argument in the most significant Second Amendment cases ever to come before it.

Today, in the Boston Herald, Robert Levy, one of the lead attorneys for the citizens in the case, gives a preview of the argument he’ll be making in less than an hour.

Meanwhile, in the Wall Street Journal law professor Randy Barnett gives a layman’s guide to the issues before the court today.

First, Barnett notes that, because of the lack of significant Second Amendment case law, the case will revolve around an originalist interpretation of the Constitution:

[B]oth sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual “right to keep and bear arms” that “shall not be infringed.” In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intention of the Framers of the Second Amendment was to protect the continued existence of “a well regulated militia,” the right it protects was limited to the militia context.

So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution.

Barnett also argues that the only consistent originalist interpretation of the Second Amendment requiresa finding that the amendment protects an individual right:

In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called “collective right” of states to preserve their militias — notwithstanding that, everywhere else in the Constitution, a “right” of “the people” refers to an individual right of persons, and the 10th Amendment expressly distinguishes between “the people” and “the states.” Now even the District asserts the new theory that, while this right is individual, it is “conditioned” on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won’t be based on a “collective” right of the states.

Finally, Barnett points out that Heller’s impact will be muted by the fact that it will only apply to Federal and D.C. law. The question of whether the Second Amendment applies to the states will have to wait for another day and another case.

I previewed the arguments in this post yesterday.

As for the mechanics, SCOTUS Blog has all the information:

At 10 a.m., the Court is scheduled to hear argument in District of Columbia v. Heller (07-290), involving a Second Amendment challenge to the District’s firearms regulations. Walter Dellinger of Washington, D.C., will argue for the petitioner, Alan Gura of Alexandria, Va., will argue for the respondent, and Solicitor General Paul D. Clement will argue for the United States as amicus curiae.

The argument is scheduled to last 75 minutes, and will be rebroadcast on CSPAN shortly after its conclusion. We will provide a link to the audio feed as soon as it is available.

A momentous day awaits us.

Would You Pimp Your Kids For Obama?

Some parents apparently said yes. Click that link first. Watch the video. Digest it for a second. Then come back.

And look at some of the comments:

Those kids will feel very proud of themselves in in the? next decade

I? am crying watching this video. I wish and pray for all kids around the world.

cute kids… let’s give ‘em a good future.

I don’t know what makes me more angry about this crap.

1) To see that these kids, who are not capable of rationally understanding the issues they’re discussing, are simply being paraded out as cute little actors in order to tug at peoples’ heartstrings.
2) To know that the adults watching that video probably aren’t rationally able to understand the issues either.
3) To know that the video might actually work, and that idiot voters will respond favorably to such ridiculous pandering.
4) To think that the people leaving comments to that video have the power to vote my liberties away?!

There’s just so much wrong about this that I can’t even begin to describe it. It’s days like this that I think that we’re too far gone to recover liberty. Nearly everyone now in our nation was educated in progressive public schools, and not enough people have learned how to wake up and think critically about what’s happening around them.

Part of me is reminded of what my coworker, who has a 10-year-old daughter, told me. She came home from school one day, and they had to write a report about how they would choose whether to vote for Hillary or Obama. They were never even told that there were other options. No assignment to choose between McCain and Huckabee (this was several weeks ago, when both were still in the race). I’m sure there won’t be any follow-up assignment about whether to vote Democrat or Republican, because Little Miss Brainwashing Teacher will probably explain that only oppressive assholes vote Republican.

So what’s worse, the brainwashing of our kids, or the perhaps very effective brainwashing of our adults through bullshit ads like this one? I know the ad is filled with cute little kids, but if you can watch that ad and not feel disgusted, you’re missing the big picture.

Hat Tip: Billy Beck

District of Columbia v. Heller Preview

Tomorrow, the Supreme Court will hear oral argument in District of Columber v. Heller, the case challenging the District of Columbia’s decades-old and near-complete ban on gun ownership by city residents. At stake is interpretation of an Amendment that has received almost no judicial scrutiny in 209 years since it was enacted.

One blogger, former Washington area talk-show host Chris Core, makes this point about what we might expect:

I, for one, have wanted a Supreme Court case on this for years. Let’s have the court finally tell us which side has the correct take on what the Founders meant. Both gun control and gun owner advocates have been trying to avoid such a case for fear of losing in the Court. Until now. Finally, probably in June, when the Court hands down its decisions, we will have clarity.

Or will we? I am betting we won’t. As often happens, I think the court will parse this one too finely to please either side. My thinking focuses on two of the words: “bear” and “arms”. There is a lot of wiggle room here. Does “bear” literally mean the right to carry a gun with you wherever you go, or is the fact that you can have one in your home enough? And “arms”–does that mean you can have absolutely any kind of weapon you want and can afford, or does the state have the right to say which arms are permitted and which are not? As much as I, and probably you, would love a definitive answer, I doubt we will get one. Nonetheless, this is the most interesting Supreme Court case to watch since Roe v. Wade.

Chris is right that we are unlikely to see complete resolution of the gun control issue from this case, and part of that has to do with the fact I noted above — since the Second Amendment was ratified in 1791, there have only been a handful of cases that addressed it and none of them have dealt with one of the central issues in Heller.

The other reason is because Heller isn’t just a simple question of whether or not the Second Amendment protects an individual or collective right to gun ownership. To make a complex case simple, Heller really comes down to two questions:

  1. Does the Second Amendment create an individual right to keep and bear arms, or does it merely mean that the states can maintain militias made up of members of the citizenry ?
  2. Assuming that the right is an individual one, what constitutes an infringement of that right ?

On the first question, I think there’s a good chance that the Court will find that the Second Amendment right is an individual one. From an historical perspective, which is really the only guide that the Justices will have, the argument that the drafters of the Bill of Rights did not intend to protect the right of individual citizens to keep and bear arms is simply absurd. Yes, it’s possible that they will reverse the Court of Appeals — and, if they do, that is essentially the end of the day and, I think, the end of individual gun rights in the United States.

The second question, though, is much more nuanced and, as SCOTUSBlog’s Wiki on the case notes, the two sides disagree significantly on the answer:

Even if the Court should opt for an individual, private right to have guns, the two main briefs divide on how to judge when such a right were violated by a gun control law. The city government backs a reasonableness standard, the gun rights challengers favor “strict scrutiny.” And, it is no surprise, applying the standards that each advances would determine the fate of the handgun ban in the District.

In previous cases, the Supreme Court has held that nearly all of the other rights guaranteed by the Bill of Rights are subject to a “strict scrutiny” standard; meaning that any law that would abrogate those rights would have to pass the following test:

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this ‘least restrictive means’ requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

Under that standard, obviously, almost no restriction on a constitutionally protected right can pass muster.

There are lesser basis of review, though; under “rational basis review” all that the government needs to show is that there is some rational basis for the law, and, under so-called “intermediate scrutiny” where the government only needs to show that the law or regulation involves important governmental interests that are furthered by substantially related means.

The Court could decide that the regulations that impact Second Amendment rights only need to pass one of these lesser standards of review, meaning that some forms of gun control legislation would be acceptable.

Finally, it’s important to note that whatever happens in D.C. v. Heller may not have the widespread impact that some believe because the Supreme Court has never ruled that the Second Amendment applies to the states:

It is a somewhat curious fact of the history of the Second Amendment that, unlike most of the other parts of the Bill of Rights, it simply does not apply to state or local laws. Thus, the numerically much greater array of state laws on gun control — such as laws against carrying a concealed gun — are not immediately affected by the Amendment, however it is interpreted.

In a process that began in the late 19th Century, the Court has “incorporated” almost all of the other guaranteed constitutional rights into the scope of the Fourteenth Amendment, thus applying them as limits on state and local government activity. But the Supreme Court has never reconsidered an 1886 decision, in Presser v. Illinois, saying that the Amendment is not binding on the states.

The most likely outcome of the Court’s decision in Heller, whatever it might be, is that it will merely be the beginning of an entirely new area of Constitutional jurisprudence. Ten years from now, Second Amendment cases may be as common in the Supreme Court as First Amendment cases once were, and that will continue until the Court hammers out a coherent Second Amendment case law.

Death Row Appeal Denied Despite Recanted Testimony of 7 Witnesses

ATLANTA (AP) The Georgia Supreme Court denied a new trial Monday for a death row inmate convicted of killing a Savannah police officer in 1989, even though several witnesses against him recanted their testimony.

Troy Davis, 39, was a day away from being put to death last July for the fatal shooting of 27-year-old Officer Mark MacPhail when the state Board of Pardons and Paroles issued a stay of execution.

MacPhail was shot twice after he rushed to help a homeless man who had been assaulted.

Davis appealed to the state Supreme Court, which ruled Monday in a 4-3 decision that a lower court did not err in refusing to grant Davis a new trial.

Writing for the majority, Justice Harold Melton said that the high court considered the core question of whether a jury presented with Davis’ allegedly new testimony would probably find him not guilty or give him a sentence other than death.

“Most of the witnesses to the crime who have allegedly recanted have merely stated that they now do not feel able to identify the shooter,” Melton wrote.

He added that one of the witness affidavits “might actually be read so as to confirm trial testimony that Davis was the shooter.”

“We simply cannot disregard the jury’s verdict in this case,” Melton wrote.

[…]

Davis’ lawyers say seven witnesses have recanted or contradicted their testimony that they saw Davis shoot the officer, saw him assault the homeless man or heard Davis confess to the slaying.

Three people who did not testify at trial have said in affidavits that another man, Sylvester Coles, confessed to killing the officer after Davis was convicted. After the shooting, Coles identified Davis as the killer.

This case is an example of why I have a problem with the death penalty. I have seen government on every level make too many mistakes for me to continue to hold the view that the government is competent enough to execute someone convicted of a death row offense. If a person serving a life sentence is wrongfully convicted but is later determined to be not guilty of the crime, at least the wrongfully convicted person can be set free. A person wrongfully executed cannot be resurrected.

Did Troy Davis kill Officer Mark MacPhail in 1989? I have no idea; this is the first I’ve heard of the case. I do, however, have a problem with the idea that 7 witnesses could recant their testimonies and a court could decide that such a development would not warrant a new trial. Justice Harold Melton says he believes that the witness affidavits “might” still identify Davis as the shooter.

Might?

This statement in itself is very chilling. Why guess what the new evidence might say; why not allow a new jury determine if Davis was the shooter based on the remaining forensic and circumstantial evidence? If the prosecution has a strong enough case they will not need the unreliable testimony.

Which leads me to another point: eyewitness testimony has been shown to be extremely unreliable. The Innocence Project has states the following regarding eyewitness misidentification:

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.

Think about it: have you ever witnessed a crime? I have. One night, I saw several young Hispanic males breaking into a vehicle in the parking lot of the apartment complex I was living in at the time. I got a very good look at the face of one of the criminals because he spotted me in my pickup. The man walked right up to my window, looked directly in my eyes, put his finger to his lips to tell me to keep quiet, and then left (I nodded “yes” because I knew I was outnumbered and didn’t know if any of them had weapons; this was a very frightening experience). Even though I got a very good look at one of them, I could not confidently pick this individual out of a lineup even if the lineup was an hour or so after the fact. No matter how hard I tried, I could not remember exactly what he looked like. I could offer a description of the man but I would not be able to make a positive I.D.

This experience forever changed what I thought about eyewitnesses. Most eyewitnesses are probably very certain they have identified the right person but are mistaken. If the prosecution’s case hinges solely on eyewitness testimony of complete strangers, the man should be set free. Unfortunately, it seems that the Georgia Supreme Court has forgotten that the burden of proof is on the state; not the other way around.

John Adams

Let all become attentive to the grounds and principles of government, ecclesiastical and civil.

Let us study the law of nature; search into the spirit of the British constitution; read the histories of ancient ages; contemplate the great examples of Greece and Rome; set before us the conduct of our own British ancestors, who have defended for us the inherent rights of mankind against foreign and domestic tyrants and usurpers, against arbitrary kings and cruel priests, in short, against the gates of earth and hell.

Let us read and recollect and impress upon our souls the views and ends of our own more immediate forefathers, in exchanging their native country for a dreary, inhospitable wilderness.

Let us examine into the nature of that power, and the cruelty of that oppression, which drove them from their homes. Recollect their amazing fortitude, their bitter sufferings, — the hunger, the nakedness, the cold, which they patiently endured, — the severe labors of clearing their grounds, building their houses, raising their provisions, amidst dangers from wild beasts and savage men, before they had time or money or materials for commerce. Recollect the civil and religious principles and hopes and expectations which constantly supported and carried them through all hardships with patience and resignation.

Let us recollect it was liberty, the hope of liberty for themselves and us and ours, which conquered all discouragements, dangers, and trials. In such researches as these, let us all in our several departments cheerfully engage, — but especially the proper patrons and supporters of law, learning, and religion!

Let the pulpit resound with the doctrines and sentiments of religious liberty. Let us hear the danger of thralldom to our consciences from ignorance, extreme poverty, and dependence, in short, from civil and political slavery. Let us see delineated before us the true map of man. Let us hear the dignity of his nature, and the noble rank he holds among the works of God, — that consenting to slavery is a sacrilegious breach of trust, as offensive in the sight of God as it is derogatory from our own honor or interest or happiness, — and that God Almighty has promulgated from heaven, liberty, peace, and good-will to man!

Let the bar proclaim, “the laws, the rights, the generous plan of power” delivered down from remote antiquity, — inform the world of the mighty struggles and numberless sacrifices made by our ancestors in defense of freedom.

Let it be known, that British liberties are not the grants of princes or parliaments, but original rights, conditions of original contracts, coequal with prerogative, and coeval with government; that many of our rights are inherent and essential, agreed on as maxims, and established as preliminaries, even before a parliament existed. Let them search for the foundations of British laws and government in the frame of human nature, in the constitution of the intellectual and moral world.


–John Adams, “A Dissertation on the Canon and Feudal Law”, Boston Gazette, 1765

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Should It Be Easier To Amend The Constitution ?

The Constitution has only been amended 27 times in it’s 219 year history.

Ten of those amendments, The Bill of Rights, were passed within two years of when the Constitution first went into effect, and two of them, the 18th Amendment and the 21st Amendment, essentially cancel each other out. Moreover, with the exception of the 12th, 13th, 14th, 15th, 17th, and 19th, Amendments, it’s fair to say that few of the Amendments enacted after 1791 actually brought about major change in the way America is governed or to American society itself. To make the point even further, the last contemporary Amendment to the Constitution was ratified in 1971 (the 27th Amendment was ratified in 1992 but was actually part of the Bill of Rights that was not ratified back in 1791.)

In some sense, this is a testament to the resilience of the Founder’s Constitutional structure, but it’s also a function of just how difficult it is to amend the Constitution due to the requirements of Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;

Over at PrawfsBlawg, Rick Hills asks whether the requirements of Article V are too stringent:

The Article V process is so onerous that it prevents constitutional change even when an overwhelming majority of Americans desire such change. Under Article V, 14 states can veto an amendment. But the fourteen least-populous states have a combined population of less than 6% of the entire nation. Hence, an amendment supported by 94.5% of the people can be blocked by a tiny minority of thinly populated states. (The census figures are included at the end of this post). Moreover, this 5.5% of the population does not merely have suspensive veto that would require 95% of the population to approve an amendment repeatedly: The 5.5% have an absolute veto that they can deploy year after year, regardless of how sustained the level of support for an amendment desired by 94.5% of the population.

Eugene Volokh argues quite persuasively that the difficulty of amending the Constitution may be one of the influences behind judicial activism:

[T]he difficulty of promoting constitutional change through Article V has channeled demands for change into other, less desirable, avenues. One of the reasons why judicial confirmations are so hotly contested is that political movements have found that it is much easier to “change” the Constitution through creative interpretation by sympathetic judges than to go through the almost insuperable obstacle of the amendment process. Although it’s difficult to prove, I suspect that constitutional change surreptitiously achieved through creative judicial interpretation is likely to be of lower average quality than change enacted through a supermajority amendment process that is somewhat easier to get through than Article V. In this 2003 article, I discussed some of the negative aspects of the massive constitutional changes imposed outside the amendment process during the New Deal period.

Readers who, like me, are sympathetic to textualism and originalism should also be aware that Article V is one of the reasons why these methodologies are not more widely accepted by judges than they are. Some judges inevitably fear that if they don’t “adjust” the Constitution to take account of changing conditions, great disasters might occur because Article V makes it too difficult to enact the needed changes through the amendment process. On balance, I think that textualism and originalism are usually (though not always) superior to the available alternatives even with Article V. But that argument would be much easier to make if we had a less difficult amendment process.

Volokh suggests reducing the 3/4 state ratification requirement to 2/3, meaning that only 33 states would need to ratify a proposed amendment rather than 38. This would maintain the supermajority requirement that seems essential to making sure that the amendment process doesn’t become just another way for majorities to trump minority rights and interests while also ensuring that, when it comes to changing the structure of government, the will of a substantial majority isn’t thwarted by a small minority.

Of course, in order to do this, we’d have to amend the Constitution, which means following the requirements of Article V.

D.C. v. Heller Comes To The Supreme Court

On Tuesday, the United States Supreme Court will hear argument in what is clearly the most important Second Amendment case in decades:

Despite mountains of scholarly research, enough books to fill a library shelf and decades of political battles about gun control, the Supreme Court will have an opportunity this week that is almost unique for a modern court when it examines whether the District’s handgun ban violates the Second Amendment.

The nine justices, none of whom has ever ruled directly on the amendment’s meaning, will consider a part of the Bill of Rights that has existed without a definitive interpretation for more than 200 years.

“This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent,” said Randy E. Barnett, a constitutional scholar at the Georgetown University Law Center. “And that’s why there’s so much discussion on the original meaning of the Second Amendment.”

The outcome could roil the 2008 political campaigns, send a national message about what kinds of gun control are constitutional and finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.

“The case has been structured so that they have to confront the threshold question,” said Robert A. Levy, the wealthy libertarian lawyer who has spent five years and his own money to bring District of Columbia v. Heller to the Supreme Court. “I think they have to come to grips with that.”

Perhaps recognizing the importance of the case, the Supreme Court Clerk will make complete audio of Tuesday’s hearing available at the Court’s website almost immediately after argument is concluded on Tuesday morning. The decision itself, of course, won’t come until some time late in the Court’s term, which ends in June.

Complete background on the case, including links to all of the briefs filed by the parties and various other organizations can be found at ScotusBlog’s wiki for the Heller case.

The Least Understood Founding Father

Starting tonight, HBO will begin running what looks to be an amazing mini-series about one of America’s most misunderstood Founding Fathers:

When in the course of media events, a network devotes six Sunday nights, more than seven hours of airtime and $100 million to a miniseries, it’s likely that the show will be awash with sex and violence.

HBO, however, is about to depart radically from just that sort of thing and take a brave, glorious gamble. “John Adams” dramatizes the life of the second president, a Founding Father whose name is familiar but whose persona isn’t.

That is about to change.

(…)

“Adams” is the kind of classily intelligent production that can be happily recommended to everybody. The filmmakers, including executive producer Tom Hanks, have attempted to re-create and enliven history — and they succeed grandly.

Adams’ reputation has suffered over the years mostly because of some of the actions he took as President, most notably the Alien and Sedition Acts, and he was largely overshadowed by the man who succeeded him in office, but his role in the American Revolution was as crucial as Jefferson or Washington, if not more so and his commitment to liberty was second to none.

This miniseries looks to be well worth the attention of anyone interested in the men and ideas that gave birth to this nation.

President Bush Is A Liar And A Coward

On Thursday, President Bush decided to offer some encouragement to the troops in the war Afghanistan (a war he has often neglected in favor of his disastrous vanity project in Iraq) by offering this bon mot on his personal feelings about the mission and the service rendered by our armed forces:

I must say, I’m a little envious. If I were slightly younger and not employed here, I think it would be a fantastic experience to be on the front lines of helping this young democracy succeed. It must be exciting for you … in some ways romantic, in some ways, you know, confronting danger. You’re really making history, and thanks.

Often this is the sort of wistful atta-boy mentality one will find stated in any number of mediums…old war movies,  recruiting posters, articles by crappy journalists, pro-war speeches by notable personalities, etc.  I’ve heard it myself a few times, usually whenever somebody I’ve recently met who’s never served in the military finds out that I’m a veteran and they’re trying to stretch a polite compliment into personal bonding.  Usually it’s not so much offensive as it is thoughtless, but it never ceases to grate on me nonetheless…partly because it smacks of sucking up (a character trait I can’t abide); partly because if you ask the follow-up question of why they didn’t follow through on their desire to serve their response is either an awkward silence or a string of transparent rationalizations that boil down to “I wasn’t actually considering it.” (exposing them as rather crappy and dishonest suck-ups); but mainly because I tend to have little patience with or respect for people who wholeheartedly rah-rah the idea of jumping quickly into any war so long as people other than themselves are the ones getting shot at. 

While part of that attitude is obviously due to my belief in the benefits of individual choice and my libertarian distrusts of the idealism of politicians and the wisdom of government planning, part of that dislike is very much a factor of realizing, from a personal perspective, just how destructive and long-lasting the damage of wars are…particularly wars that have little or no coherent purpose any more.  When Bush talks about the “fantastic experience on the frontlines” I don’t envision WWII Rangers scaling the cliffs of Normandy on D-Day or John Wayne gunning down swarms of Japanese troops on Iwo Jima, I think about what happens to those men and women Bush “envies” after the “glory” of combat is a distant memory to the uninvolved bystanders.  I think about one of my former soldiers whose marriage was falling apart after he re-deployed because his post-traumatic stress disorder made it almost impossible for him to relate to his wife and his nightmares of having to shoot a 12-year old kid in the face in Afghanistan wouldn’t let him sleep more than an hour or two a night, but who was scared of seeking psychiatric help because his previous unit punished people for doing so.  I think about my best friend Tom who’s racked with guilt because he, while trying to do a counter-fire mission in reaction to an insurgent attack, ended up dropping artillery rounds on an Iraqi family thanks to receiving a bad set of coordinates and a freakish wind change.  I think about the time that an officer who didn’t know anything about intel, and wasn’t in the mood to hear one of her NCOs point out that she was factually mistaken, cherry-picked one of my reports to authorize an A-10 strike that killed nine little kids and zero insurgents because she thought taking decisive action would look good on her rating.  And I look at the fact that, almost seven years down the road, we’ve still yet to accomplish the one primary goal we went to Afghanistan to accomplish, or to put forth any realistic strategy for “victory” Iraq (besides stalling tactics) and I wonder, “What was the point?”

I also think about the injured or disabled vets who come back from this war who will end up needing the assistance of the often substandard military medical system, sometimes for the rest of their lives.  Or the vets who will go undiagnosed for psychiatric problems and end up on the streets once they’re out of the service and aren’t the government’s “problem” anymore.  Or my cousin Mike, an infantryman in Vietnam, who, 40 years after serving, still struggles with a case of PTSD so severe that he can’t discuss what happened to him back then without having nightmares for a week now and which has made him the proud recipient of a couple of heart attacks.  And I wonder if that’s what the current generation has to look forward to in 40 years and whether it will all have been worth it for what we’ll have actually accomplished.  Somehow, I doubt it.

War is hell, and not just for the people who “deserve” it.  People like Bush, who has some rather odd impressions of combat and actually ducked the chance to serve in his generation’s “romantic” war (which would make his comment slightly less than honest) never seem to figure that out.  But then, why should they?  They’re rarely the ones with something to lose.  The same principle that Milton Friedman once applied to other peoples’ money also applies to other peoples’ lives…nobody will spend what’s yours as carefully as you do.  And nobody is as willing to avoid an unnecessary war as much as someone who understands what it actually costs.  Sadly, that’s wisdom rarely found among the ranks of the chickenhawks.

I Can’t Think Of A Catchy Title

I suppose the best way to describe myself would be to say that I have a problem with authority. I’ve always disliked when people told me what to do, even as a young child, and I’ve always preferred to find my own path through life and make my own decisions, even if it occasionally went against the conventional wisdom and sometimes worked to my short-term disadvantage. My dad said I inherited it from him, but that I’ve taken it to a whole new level. When I was young I wanted to be a journalist, until I got to college and realized that journalism was less about the search for objective truth than it was about writing the stories that best suited your employer’s interests, whether they were true or not (which didn’t sit well with me at all). So I drifted aimlessly through a couple of years of college as an indifferent (often drunk) student, unsure of what to do with myself until one of my fraternity brothers gave me a copy of “The Fountainhead” and I got hooked on the ideas that success and a refusal to conform to societal standards were not mutally exclusive, and that the greatest evil in the world was society and government’s failure to recognize or accept individuality and individual freedom as a strength, not a weakness. So I threw myself into studying politics and history, worked in a few political campaigns after college, had some success, and thought about doing a career in politics until I realized that most of the people I knew who had never had a career outside of politics had no comprehension of how the real world actually worked and tended to make a lot of bad, self-absorbed decisions that rarely helped the people they claimed to be representing.

That didn’t sit well with me either, so I decided to put any thoughts of going into politics on hold until I’d actually had a life and possibly a real career, and I spent the next couple of years drifting between a series of random yet educational jobs (debt collector, deliveryman, computer salesman, repo man, dairy worker) that taught me the value of hard work, personal responsibility and the financial benefits of dining at Taco John’s on Tuesday nights (2 tacos for a buck) when money got tight.

After awhile, however, the desire to see the world (and the need for a more consistent and slightly larger paycheck) convinced me to join the Army, where I spent ten years traveling around the world on the government dime working as an intelligence analyst. I generally enjoyed my time in the military, despite the aforementioned problem with authority (which wasn’t as much of an issue in the military as many people might think it would be), and I got to see that the decisions our political leaders make were sometimes frivolous, often ill-informed, and always had unforeseen repercussions down the road…especially on the soldiers tasked with implementing those decisions. I was fortunate enough to spend most of my 10 years in the military doing jobs I enjoyed, traveling to countries that I always wanted to see (Scotland is the greatest place in the world to hang out, Afghanistan is very underrated) and working with people I liked and respected, until I finally decided that at 35 it was time to move into a job where I didn’t have the threat of relocation lying over my head every two or three years, where I didn’t have to worry about my friends being blown up, and where I didn’t have to work in any capacity for George W. Bush.

I work now for a financial company in Kansas where I’m responsible for overseeing, pricing and maintaining farms, commercial and residential properties, mineral assets, insurance policies, annuities, etc. In my spare time I like to read books on economics, history, and politics (I’m preparing to tackle Murray Rothbard’s “Man, Economy & State” and Von Mises’ “Human Action”…should take me about a year at the rate I’m currently finishing books), watch movies, and destroy posers on “Halo 3″ (where I’m signed in under “UCrawford” for anyone interested in taking a shot at me some time). I used to play rugby until age, inconsistent conditioning, and a string of gradually worsening injuries finally convinced me to quit. I’m a rabid fan of the Kansas Jayhawks in general and their basketball and football programs in particular and I’m also a devoted fan of the Kansas City Chiefs and Royals. I’m also fond of going online and debating/picking fights with people on the merits of the philosophy of individual freedom…sometimes to the point of being an asshole (but hopefully a reasonably well-informed asshole). I’ve been a big fan of The Liberty Papers ever since finding it online, I respect the body of work they’ve put out, and I’m honored that Brad Warbiany invited me to join his jolly band of freedom fighters. So cheers, Brad, and to everyone else I look forward to reaching consensus or locking horns with you in the near future.

The Founders And Earmarks

Earlier this week Senate Majority Leader Harry Reid made this rather absurd comment in the debate of earmarks:

“As we look back in history, the Founding Fathers would be cringing to hear people talking about eliminating earmarks,” Reid said, noting that the Founders dictated in the Constitution that all spending should originate in Congress, not the executive branch.

Senator Tom Coburn has this response today:

Although our Founding Fathers disagreed on many matters large and small, they were united in their skepticism of a secretive, backroom process to allocate taxpayer funding. George Washington noted in 1792 that no mischief is “so afflicting and fatal to every honest hope, as the corruption of the legislature.” Congressional approval ratings are now at record lows because taxpayers do not believe that we are being honest or open about how we spend their money.

Instead of offering dubious defenses of the propriety of earmarking, congressional leaders should seek to restore the confidence of the American public in their ability to govern by reacquainting themselves with the very document upon which our system is based. According to the Senate’s own website, the first bill ever passed by the United States Senate created a simple 14-word oath of office for all federal lawmakers and civil servants: “I do solemnly swear that I will support the Constitution of the United States.” Conspicuously absent from that oath is any mention of the so-called duty of members of Congress to send taxpayer-funded projects to their hometowns.

The revisionist history justifying today’s earmark favor factory is hardly the fault of the Senate Majority Leader or even his party. Sadly, this idea has currency in the party of limited government in which members should know that the effective legislator is not one who sends money back to his or her state through pork, but the one who prevents money from leaving their state in the first place.

Something tells me Coburn’s got the better argument on this one.

Should We Thank Veterans For Our Freedom ?

A reader passed on to me a link that asks a question with what would seem like an an obvious answer, but at least one libertarian thinks the answer is no:

Why not? Because no living veteran of any US foreign military incursion has done anything to protect a US citizen. “Gee, Joe, you’re a heartless bastard. How can you say that?” Because no US war since the Revolutionary War has been a just war.

First is that really true ? Yes, the history of America’s war has been rather unpleasant. It’s hard to find real justification for the Spanish-American War or the Mexican War, for example, and America’s involvement in World War One may be among the worst foreign policy decisions ever made by a President — yes, I would argue, even worse than the Iraq War.

But not all of our wars have been unjust.

World War II, after Pearl Harbor, would clearly seem to have fallen within the category of just wars. The War of 1812, which was initiated after the British Navy was intercepting American shipping and kidnapping American sailors and merchantmen, would also seem to fall into that category. So, under the analysis of the author, the veterans of those wars would be worthy of respect. For different reasons, I would argue that the first Gulf War, and possibly the Korean War, could also be considered a just war.

But that just raises another question.

Why should the respect that is owed a member of the military be affected by whether or not the war he fought in was “just” by someone’s standards ?

Members of the military don’t make a decision to fight a particular war, they take orders from the civilian leaders who make those decisions. Why should they be held responsible for bad decision making in Washington ?

Moreover, up until the draft was ended, most of the men who fought in America’s wars had no choice. They were drafted in to the military and they did what was asked of them. Why shouldn’t they be thanked for that ?

And what about veterans who served in peacetime ? They certainly cannot be tarred with having fought in an unjust war and, to the extent that they were acting in defense of the United States, they were, in fact, protecting American citizens seven days a week, twenty-four hours a day.

I’ve known many members of the military, including family members and a Great Uncle who was among the first group of Americans to cross the Rhine River into the Third Reich itself, and they’re not evil people. Branding them with the responsibility for decisions they had no role in making is as bad as when people spit on Vietnam Veterans when they returned home.

America can do better than that.

Lessons From The Spitzer Debacle

First of all, I’ve got to say that I agree wholeheartedly with Stephen’s sentiments, expressed here and here, that Elliot Spitzer pretty much deserved everything that has, and will, come to him.

During his time as Attorney General of New York, he was a no-holds-barred zealous prosecutor that cared little for the facts or for the lives that he ruined. He was, as someone mentioned on the radio today, what Mike Nifong would have been like if he’d been something much more powerful than a North Carolina District Attorney. If nothing else, this scandal removes the possibility that he will ever by Attorney General of the United States, or, God forbid, President — positions for which his name was mentioned up until Monday, March 10th.

That said, there are a few things about this case that should have libertarians thinking twice.

The first, as Megan McArdle points out, is that relic of the 19th Century, the Mann Act.

That law makes it a federal offense to transport someone across state lines for “immoral purposes” and it is one of the several potential Federal crimes that Spitzer could be charged with. Throughout it’s history, the Mann Act was used in a discriminatory manner. More importantly, though, it’s simply outdated and beyond the scope of powers granted to Congress under the Constitution.

The second lesson involves the manner in which Spitzer’s use of prostitutes was uncovered:

Last July, the North Fork Bank raised a red flag about suspicious financial transactions involving Gov. Eliot Spitzer. But for several months, the electronic report languished unnoticed in a vast Treasury Department database in Detroit.

In early fall, however, a separate report was filed by the HSBC bank about suspicious transactions connected to two shell companies, which drew the attention of investigators. That touched off an inquiry that led investigators to discover the July report on Mr. Spitzer, which showed he had made several wire transfers to those companies, according to three people briefed on the inquiry.

(…)

Following the bank’s alert, agents for the Internal Revenue Service in Hauppauge, on Long Island, began examining the shell companies, which are allegedly connected to a Web-based prostitution service named Emperor’s Club V.I.P. At that time, the agents had no idea how the QAT front companies had collected hundreds of thousands of dollars in revenue.

“They still didn’t know what the business was, and they started digging into the account — is it drugs, money laundering?” said one of the people briefed on the inquiry. “They then start to see money from Spitzer.”

In other words, the fact that the Governor of New York was uncovered because of reporting requirements placed on banks as part of War on (Some) Drugs and the War on Terror which are purportedly aimed at uncovering money laundering, suspicious cash transfers, and illegal payments:

As part of the “know your customer” requirements, banks must assess their clients’ financial patterns and set guidelines to ensure that an alarm is sounded if there are unusual transactions, said Bob Serino, a former deputy chief counsel at the Office of the Comptroller of the Currency who now advises banks and individuals on anti-money laundering regulations.

(…)

Once a bank determines that a transaction is suspicious, it is obligated to file a Suspicious Activity Report with FinCEN, the Financial Crimes Enforcement Network, a division of the Treasury Department. The standard for filing such reports has diminished since 9/11, with banks erring on the side of caution out of fear that the government will later second-guess its decisions, experts said.

Whether you like it or not, your bank has become an agent of the state and is monitoring your deposits and withdrawals for “suspicious” activity, whatever that might be.

As Jack Balkin notes, there is good reason to be concerned about this:

If computing power increases enough, there is no reason why governments might not lower the threshold for reporting of suspicious transactions, or, indeed, require that every transaction over 100 dollars be reported. All this information could later be sifted through by data mining programs, in order to spot patterns of suspicious activity. The only limit is the technology and the manpower that law enforcement is willing to devote to analysis of financial transactions.

The Spitzer story shows both the promise and the threat of these developments. On the one hand, reporting financial transactions makes the job of law enforcement easier, and it uncovers crimes (and terrorist plots) that might never be discovered otherwise. Mandatory disclosure (or in this case, voluntary disclosure by banks) of private individual’s financial transactions, and sharing of data between intelligence services, federal, state and local law enforcement helps the state identify patterns of criminal activity, prevent crimes before they occur, and punish them after the fact. These techniques and technologies allow governments to do the jobs entrusted to them more powerfully and more efficiently than ever before.

On the other hand, these developments carry all of the potential risks of a powerful National Surveillance State: Governments can make mistakes in assessing levels of criminality and dangerousness; and their data mining models may characterize innocent activity as suspicious. Without sufficient oversight and checking functions, government actors may misuse the additional knowledge they gain, for example, by instigating abusive prosecutions, or creating discriminatory systems for access to public and private services (like banks, airports, government entitlements and so on). And the more powerful government becomes in knowing what its citizens are doing, the easier it becomes for government to control people’s behavior.

It may not be 1984, but Big Brother is watching.

The Case For Legalizing Prostitution

Steve Chapman takes up the cause at Reason:

Outlawing this commerce serves mainly to make things worse, not better. It assures income to criminal organizations with long experience evading the law. It makes prostitutes vulnerable to abuse. It prevents measures to protect the health of providers and patrons.

It exempts an industry from the taxes and fees that legitimate businesses have to pay. It squanders police resources that could be used to fight real crime, while clogging jails and courts with offenders who will soon be back plying their trade.

Supporters of the status quo say the sex industry is filled with victims of human trafficking—foreigners forced to work in servitude. Whether such modern-day slaves amount to more than a tiny fraction of hookers, however, has never been proved.

Similar claims have been made about migrant farm laborers and domestic workers—which is not taken as grounds to ban fruit picking or home cleaning. Someone whose very job is illegal, in fact, is an ideal candidate for such exploitation, since she is unlikely to go to the cops.

But all this is secondary to the priority of human freedom. We no longer believe the government has a right to prevent homosexuals or heterosexuals from engaging in sexual practices. In 2003, the Supreme Court had the wisdom to strike down a Texas sodomy prosecution against two homosexuals caught in the act.

(…)

Some brilliant lawyer ought to ask the courts why the state may ban one type of sex between consenting adults but not another.

I agree with Chapman’s argument, but not with his suggestion for how to go about achieving it. The Courts have no business overturning laws against prostitution as this is clearly something that has traditionally fallen within the police power of the state. And they’re not going to do it any time soon.

In the long run, legalizing prostitution makes eminent sense, but it’s not going to happen by judicial fiat.

1 2 3 4