Sunday, January 31, 2016


First, please see the post below which has links to relevant material.  Please post your comments to this post.

Enjoyed the presentation, questions and rebuttals.  From the questions it appeared that some did not get one of the main points.  I assume this was my fault and I went over my lecture notes.  The notes did not seem adequate on this point and I apologize.  Below is what I meant to say.

Why put an opening or prefatory clause in 2nd amend, when nothing else is the Bill of Rights has one?  You must remember that many political or government documents like constitutions are not only law, but they are often contain explicit or implicit political statements. 

Thus, If we are codifying this right of individuals, why talk about militia? There are two main reasons.

Although the prefatory  (‘militia)clause does not have a  legally limiting effect on the operative  (‘right of the people’) clause, it is logically related, as Scalia notes,  at the time, of drafting the amendment, the militia was composed of  all able-bodied white males. These males brought and used their own personal weapons.  thus,  a right of individuals to keep and bear arms enhanced the idea of such a militia, and, according to the anti-federalists,  made it difficult for the federal government and select-miltias to disarm the people.   Remember, however that the right actually codified was a pre-exisiting individual right that was not limited to militia service.  thus the right is designated ‘a right of the people” and not “a right of militia members.”

Finally, the Drafters may have wanted to make clear what are NOT reasons that the individual right were codified. The right was not codified

1  to encourage another  armed revolution, or 

2.  to encourage vigilantism.
I hope this helps.  I look forward to your comments.


Saturday, January 30, 2016


If you have been following this blog, you know I am not a big fan of the federal government.  However, I do not, knee-jerk and support every cause against the feds.  I believe the federal government has an important role to play in the American system.  I do not subscribe to anarchism or anarcho-capitalism and don't want to throw the baby out with the bathwater.

The current confrontation in Oregon over federal control of lands has resulted in one death and continues to be in the headlines.  What are these protestors really about?  Although this cause has attracted a variety of anti-fed protestors, some of the  the leaders seem to be from the Bundy family. One interviewer, quoted in the NYT, found:

"The difference between the Bundys and many other ranchers who rage over federal control of land is that they believe God is on their side.
I visited the Bundy family last year on their remote ranch and melon farm in southeastern Nevada for research I’m conducting on the history of Mormon culture and the use of public land. The Bundys are Mormons and interested me because of their extreme position against the government and their engagement of militia groups in their cause.
They were welcoming and eager to answer my questions. What emerged in our three hours of conversation in the living room of their modest ranch house was a passion and a sense of entitlement that they believe is anchored in their deep history in the region. They also embrace a strange amalgamation of Mormonism, libertarianism and a right-wing reading of the Constitution." (emphasis supplied)
It's sad now religion, political philosophies, and other principles are twisted to support the interests, personal hangups, and biases of people.  This has been going on for millennia. It's a sad commentary on human nature.  Perhaps we need a second Enlightenment/Age of Reason.  There are no real principles, just rationalizations and justifications.  The echo-chamber effect of the internet has made this problem worse.


Excessive use of force by police has probably been the dominant issue in criminal justice for about the last two year.A group of about 200 police leaders has released a new set of principles to deal with the horrendous problem of unlawful excessive use of force by police.  According to the NYT, these principles include focusing on de-escalating situations and avoiding escalation.  Police officers should aid anyone they hurt immediately.  Among the recommendations, police "should abandon a so-called 21-foot rule, which in some encounters with emotionally volatile people can result in fatal shootings. And they should follow standards higher than those set by the United States Supreme Court for using force."

Tuesday, January 26, 2016

S.Ct Victory for Sentenced Juvenile Offenders

The U.S. Supreme Court made an earlier decision retroactive and in effect created a chance for parole for many convicted of murder as a juvenile and sentenced to lift.

Monday, January 25, 2016

Presentation on 2nd Amendment, links

 Although I know most of you won’t be able to attend, I wanted to invite you to my upcoming presentation of the Second Amendment at the College of Complexes meeting at Roma’s Pizza (7402 Greenville Ave., Dallas) starting at 6 pm on Saturday night Jan. 30.  You might want to get there early as a big crowed is expected.  For information on the College of Complexes in Dallas see

A video of this presentation will be available on that website sometime later.  Check it out if you can't be there.

Even if you won’t be there, the links below might be of value if you are interested in the topic.

 I strongly recommend checking out presentations on topics of interest, as the presentations are always worthwhile.

I look on this presentation as being as much of an educational one as much as a piece of advocacy.

 If you are really into this kind of stuff, bring a copy of the Declaration of Independence and Constitution to the meeting and/or check them out beforehand.

 I will be drawing heavily and commenting on the U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller.  Focus is on Justice Scalia’s majority opinion and, to a lesser extent on Justice Stevens’ dissent.  You need to read both opinions to get both sides of the story.  If you are looking for material to challenge this presenter, this dissent is a good place to start.

The citation for this case is 554 U.S. 570 or 128 S.Ct. 2783. If you go to these opinions, be sure the check out the syllabus and headnotes first.  However, these  are available only for the majority opinion.  Or, go directly to

 Court opinions tend to be long and hard to read.  Wikipedia is usually accurate and relatively readable.




I also strongly recommend the very readable and entertaining book by Prof. Adam Winkler titled, Gun Fight: The Battle Over The Right to Keep and Bear Arms, which discusses the Heller case. 


You will have a chance to post your comments and rebuttals to the presentation on this post on this blog.  Even if you didn't attend and want to say something about the Second Amendment, feel free to post a comment.

Along with privacy, Fourth Amendment, and Freedom of Speech and Press, Second Amendment rights are also under current serious attack in this country.  Freedom of Religion is also threatened, but not as much as many people think.  (If possible) “Be there if you care, don’t be square.”

 Hope to see you there!



Wednesday, January 20, 2016


According to the Washington Post"
"The Supreme Court announced Tuesday that it will consider whether President Obama exceeded his powers in trying to shield millions of illegal immigrants from deportation, stepping into one of the most contentious topics in the nation’s political debate.
A positive ruling from the justices would provide Obama his last chance before leaving office to protect more than 4 million people who are parents of citizens or of lawful permanent residents and allow them to “come out from the shadows” to work legally, as he put it when announcing the program in November 2014. The initiative was challenged by 26 states and has been blocked by lower courts."

The Supreme Court has bailed out Obama twice on Obamacare, but this case looks like it may go the other way.  We can expect the 4 liberal ideologues  on the Court to uphold Obama and the 4 conservative ideologues to strike it down.  Kennedy will be the swing vote although  Roberts has disappointed conservatives in supporting Obamacare and  may spring a surprise on this one.  Although the Court has the chance to answer this separation of powers (executive v. legislative) issue, it may decide the case on narrower grounds.

Saturday, January 16, 2016

Conservatism and Capitalism, Rise of the teen consumer

Numerous sources, including this blogger have noted that the Republican Party and the conservatives seem to be self-destructing.
However, this problem reflects that fact there is a more fundamental potential split among conservatives that, could end, what little unity exists.  Conservatives/Republicans are basically of 2 types, social/cultural/religious and economic/big business.  The latter rely on capitalism.  However, capitalism is ONE of the major factors that promotes the cultural changes that the social conservatives hate.  Sex and violence sells books, movies, etc. and all sorts of products,  and pornography is a multi-billion dollar shadow industry,  Social conservatives are uncomfortable with all the sex and pornography.  
One of the turning points in this process was general affluence and the rise of business that targets young people.  Children and teens acquired spending money as the economy flourished and parental supervision of that spending diminished.  That market niche has been filled with what these consumers are often unhealthily interested in sex, drugs, violence and rebellion.  Capitalism is gutting much of  conservative culture.  When are the cultural conservatives going to wake up.  Problem is, that other than their own political party, which will have little chance of winning, they have no place to go.  The anti-religion, sexual freedom Democrats are even worse.


The NYT and other sources are complaining, about the shortage of black nominees for Oscars.  Suspicions of racism are lurking.    Although I am a strong advocate for equal protection and civil rights, and advocate for dimunition of dysfunctional income disparities,  and a strident opponent of the lost-cause and other white supremacist ideologies,  things sometimes are taken too far. I think many have become too ready to see racism every time something bad happens to a black person or blacks don't appear to be getting their "quota."  There are more white movie-goers, movie execs and Oscar voters than any race, but racism may not be the cause. Yes, racism exists, but it has become a cottage industry on the left to see racism everywhere and in everything.  "Crying wolf" too often weakens the movement for change.  Unfortunately, in today's politically polarized world, each side desperately searches for an issue to spin and perspective and rationality are lost. Real problems should be remedied, but we need to focus on the real problems--criminal justice, public schools, dysfunctional income disparity, civil rights violations, etc.   I fear for our polity in the current paranoid, demonizing and win-at-any-cost mentality.

Race and 'dysfunctional income disparity"

The issues of poverty and 'dysfunctional income disparities' (I prefer this term  for a variety of reasons including that not all disparities are dysfunctional, and I do not advocate eliminating income inequality) and race are interwoven in this country.  See this article. For some the issue ties in neatly with their white supremacy ideology.
  The poor of all races and ethnicities suffer because unlike their more affluent counterparts they have no significant financial reserves to cover often unanticipated problems like loss of job, car wreck, costly illness,  etc.  This can lead  usurious loans, loss of a job because of a lack of transportation, etc. and criminal activity in some cases. I'm  not saying poverty causes crime, crime is caused by a multitude of interacting facts.  If poverty caused crime, arguably there would be no honest poor and the wealthy would all be moral examples.  At another level, it is dysfunctional in that we rely on people viewing the system and government as legitimate and fair.  Stable government relies heavily on such legitimacy.  When people think the system is deliberately stacked against them, it loses legitimacy.  Even the middle class is starting to feel the pinch of rapid escalation of rent and costs of homes in many areas.  In New York City, I suspect most of the impoverished are homeless or live in public housing. Other poor people have managed somehow to get out.

Confederate flag, statute, names, etc. controversy continues

It appears that the South is beginning to abandon its lost-cause delusions and face the fact that southern history and culture were dominated by white supremacy, and government and private violence against free blacks for nearly a century.  White supremacy ideology existed everywhere in the country, but in the South it was imposed with  special brutality.  Even some people who call themselves "libertarians" are not immune. 

You might argue that this is ancient history, and needs not be discussed in detail.  Yet, white supremacy lives in the hearts and minds of many, and part of that ideology involves denial of white brutality. Conditions may change, but ideology lives on as it is passed from generation to generation and is supported by too many, parents, educators and "historians." Two encouraging developments are below. 

 "It was there in Anderson County [TX] that a white mob hunted down and murdered perhaps dozens, if not hundreds, of African-Americans in July 1910 . . .

For more than a century, the act has gone officially unacknowledged in Slocum, a small, incorporated community 17 miles southeast of Palestine, the seat of Anderson County.
On Saturday, that will change when Texas State Historical Marker No. 18212 is unveiled near Killgo Cemetery. The marker is the first in Texas to recognize 20th-century racial violence against African-Americans"

Although there were similar incidents in the North, there were a lot more massacres of  blacks through out the South.  Most incidents are ignored.  In a few places, such as Colfax Louisiana, euphemism such as "riot" are used.
 In  related action:

" Texas' largest school district has joined the national debate over whether communities should cut their ties to the Confederacy by renaming buildings or removing monuments.
The Houston Independent School District board voted 5-4 on Thursday night to rename four campuses named after Robert E. Lee or others linked to the Confederacy.
The board issued a statement afterward saying the decision was made "in order to represent the values and diversity of the school district," which has about 215,000 students at 283 schools.
Robert E. Lee High School plus three middle schools — Henry Grady, Richard Dowling and Thomas "Stonewall" Jackson — will get new names to be proposed by a committee from each campus. Four other schools that had also been on the name change list were pulled to allow trustees time to discuss the issue with communities from those campuses."

Wednesday, January 13, 2016

Fla. death sentencing statute violates Sixth Amendment

 "Florida’s unique system for sentencing people to death is unconstitutional because it gives too much power to judges — and not enough to juries — to decide capital sentences, the Supreme Court ruled Tuesday.
The 8-1 ruling said that the state’s sentencing procedure is flawed because juries play only an advisory role in recommending death while the judge can reach a different decision.
The decision could trigger new sentencing appeals from some of the 390 inmates on the Florida’s death row, a number second only to California. But legal experts said it may apply only to those whose initial appeals are not yet exhausted.
The court sided with Timothy Lee Hurst, who was convicted of the 1998 murder of his manager at a Popeye’s restaurant in Pensacola. A jury divided 7-5 in favor of death, but a judge imposed the sentence.
Florida’s solicitor general argued that the system was acceptable because a jury first decides if the defendant is eligible for the death penalty.
Writing for the court, Justice Sonia Sotomayor said a jury’s “mere recommendation is not enough.” She said the court was overruling previous decisions upholding the state’s sentencing process.
“The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death,” Sotomayor said.
The justices sent the case back to the Florida Supreme Court to determine whether the error in sentencing Hurst was harmless, or whether he should get a new sentencing hearing."

Friday, January 08, 2016

Tuesday, January 05, 2016


Here is the Washington Post's data on persons killed by police in 2015.  It's 2-3 people per day.This is probably the best data available.   The "official statistics" show less than a third of this figure.  90 Individuals were unarmed.  However, this does not automatically make the shootings unlawful. Some undoubtedly were illegal, but we have no easy way to make that determination.
"In a year-long study, The Washington Post found that the kind of incidents that have ignited protests in many U.S. communities — most often, white police officers killing unarmed black men — represent less than 4 percent of fatal police shootings. Meanwhile, The Post found that the great majority of people who died at the hands of the police fit at least one of three categories: they were wielding weapons, they were suicidal or mentally troubled, or they ran when officers told them to halt."  Not all of the majority category are going to be lawful and

While 4% is not a not a big percentage,  that's about 38 people whose lives may have been taken unlawfully.

Speaker loses 1st Amendment case

Although I am a strong supporter of freedom of speech, the right is not absolute.  This is a case that the Plaintiff deserved to lose.


The Oregon standoff regarding federal land is calm for now.  In recent years the feds have learned patience in these types of situations.  The best strategy for the government is to wait it out and the occupiers will get tired, hungry, bored and start to miss their homes and families.
 As much as I worry about federal power and individual rights, I suspect that what is really going on here is greed that is dressed up in fancy talk about the constitution, rights etc.   This happens way too often and is a tactic used by both the left and right.  "The fight itself stretches back to the passage of the Federal Land Policy and Management Act of 1976, which confirmed the policy of federal retention of public lands."  The conviction of the ranchers for arson seems valid to me as does the new sentence.  Seems like in the heat of the moments, people forget about our bedrock principle of the rule of law.  One of the components of this is that property changes hands through legal means.   I suspect that many of these fed-haters still haven't gotten over the Civil War, the 13th Amendment and having to treat blacks like legal equals.  I could be wrong on all this, what do you think?

5 best-selling guns of

Although this is only partial data, it gives some insight into the massive number of gun sales in recent years.  Note that all are semiautomatic pistols than  can take/have '"large capacity magazines."

Friday, January 01, 2016

15 Memorable Crime Stories from 2015

See here.

California's Gun Confiscation Laws

This law is the first of its type in America but is similar in many respects to firearms bans in many state domestic violence protective orders.  Most of these have been found constitutional. See below from the Guardian USA.
"A California gun statute going into effect on 1 January gives the police or family members the option to petition the courts to seize the guns and ammunition of someone they think poses a threat, the first law of its kind in the country.
But the “gun violence restraining order” law, passed last year, has raised concerns from lawmakers and pro-gun groups about civil liberties and questions about how effective it will really be.
Modeled after firearms prohibitions in domestic violence restraining orders, the statute allows for law enforcement or “immediate family members” to ask a judge for a restraining order if they feel that someone is a danger to themselves or others. The order would also bar the person from purchasing a firearm by placing them on the state’s do-not-buy list.
Former California assemblywoman Nancy Skinner introduced the bill, AB 1014, in 2014, just two days after a 22-year-old man, Elliot Rodger, went on a murderous rampage in Isla Vista, California, killing six people and then himself.
“The shooter’s mother and his father were aware that this man was basically threatening violence,” Skinner, a Democrat, said this month. “They did everything they felt they had the ability to do to try to intervene to stop their son from doing something violent, but they didn’t have any tools.”
Republican assemblywoman Melissa Melendez said she voted against the bill because she believed it violated due process by seizing guns without a hearing for 21 days. She did successfully amend the law’s language to allow for a gun owner to sell or store their guns with a licensed firearms dealer.
To request a firearms restraining order, a petitioner has to tell the court why they believe someone presents a danger to themselves or others because they are in possession of a gun or intend to get one. The petitioner also has to explain why a restraining order is necessary to keep the subject of the order from harming anyone.
If the order is granted, a judge can issue a temporary firearms restraining order within 24 hours. The subject would then be served with the order and would have to surrender their guns and ammunition within 24 hours.
Before the order expires, a judge decides at a hearing attended by both parties whether to terminate the order and return the subject’s firearms and ammunition, or extend the order for a year.
Before the order expires, a judge reviews evidence – which can include written witness testimony, photos, damaged property, threatening messages – and decides at a hearing attended by both parties whether to terminate the order and return the subject’s firearms and ammunition, or extend the order for a year.
“It’s really designed so that if you really feel that the person you’re concerned about is really making credible threats of violence to themselves or others that you can get the police to act very quickly,” Skinner said.
But you “still have a due process so that if the person feels like that was acted on maliciously and they can demonstrate that they’re not really a threat or they’re not at risk – they can get their weapons back in a pretty quick period of time if that’s the case,” she added.
It will become clearer after petitions begin to flow through the California courts what kind of evidence, minimally, could result in the issuance of a temporary firearms restraining order.
If the order is extended for a year, a gun owner may petition the courts once to get their weapons back during that time. After that, they may petition again if the restraining order is renewed for a second year.
“Every once in a while, there’ll be a case where a family knows that someone needs serious help and shouldn’t have guns,” said Adam Winkler, a UCLA law professor and author of Gunfight: The Battle Over the Right to Bear Arms in America. “But it’s not going to be a panacea.
It’s not going to radically change the number of mass shootings or even slightly change the number of mass shootings. And it’s not going to likely have significant effect in reducing gun violence just because it’s going to be used only exceptionally.”
Still, for some pro-gun groups any gun control is too much regulation, and an infringement on second amendment rights.
“In California we have no more loopholes. They have already tried and done everything regarding gun control,” said Sam Paredes, executive director of Gun Owners of California. “It’s a kneejerk reaction that would do nothing to prevent the incident that inspired it.”
The term “immediate family member”, according to the new law, includes a range of relatives, blood ties or not. It also includes anyone who has “within the last six months, regularly resided” in the same household.
Additionally, court documents state that even if you don’t have the necessary relationship, you may notify law enforcement of a potential problem, and an officer could investigate and file a petition for the order.
According to the California department of justice, as of 11 December 2015, there were 13,305 people actively prohibited from owning or possessing a firearm."

    HAPPY NEW YEAR, suggested resolutions

    HAPPY NEW YEAR!  I strongly recommend these do-every-day New Years Resolutions.

    Hillary Clinton, ethically challenged but potentially next President

    A lot of Republicans and conservatives I've talked to are saying they may be forced to vote for Hillary Clinton if the Republicans don't come up with an acceptable, electable candidate.  The handwriting is on the wall!  Ethically challenged Hillary for President?  Scary thought.  You're probably familiar with the e-mail scandal, but there's more. One of the biggest is below.

    "At Hillary Clinton’s confirmation hearing for secretary of state, she promised she would take 'extraordinary steps…to avoid even the appearance of a conflict of interest.'"

    "Later, more than two dozen companies and groups and one foreign government paid former President Bill Clinton a total of more than $8 million to give speeches around the time they also had matters before Mrs. Clinton’s State Department, according to a Wall Street Journal analysis. Fifteen of them also donated a total of between $5 million and $15 million to the Bill, Hillary and Chelsea Clinton Foundation, the family’s charity, according to foundation disclosures. In several instances, State Department actions benefited those that paid Mr. Clinton. The Journal found no evidence that speaking fees were paid to the former president in exchange for any action by Mrs. Clinton, now the front-runner for the Democratic presidential nomination...."

    No Good Data on Killings by Polce

    According to USA Today: "The deaths, and other instances of police violence that disproportionately target African-American communities, have fueled demands for greater transparency in reporting by police forces nationwide.
    A major impediment to justice and accountability for police violence is the lack of comprehensive data on law enforcement-involved shootings and use-of-force incidents. Now, however, Attorney General Loretta Lynch has come out against a federal mandate on reporting deaths in police custody. I beg to differ: Police transparency should not be seen as a hindrance to responsible policing. Rather, it is critical for accountability and vital for public trust in our police forces."

    Current sources are unreliable because not all agencies report and not all report accurately. "How can it be, in this era of open data, that we know so little? Much of what we do know is thanks not to government records, but rather to old-fashioned reporting by a few dedicated journalists. Wall Street Journal reporters collected and analyzed the latest data from 105 of the country’s largest police agencies and discovered that "more than 550 police killings (between 2007 and 2012) were missing from the national tally or, in a few dozen cases, not attributed to the agency involved." Reporters for The (London) Guardian and The Washington Post compiled data on differing aspects of law enforcement-involved violence, but they had to do so by poring over news accounts, police reports and other records to try to capture a fuller picture on the issues."

    There are no penalties for reporting failures, but a bill has been introduced in Congress to try address the problem.

    New Year, New Laws incl. Gun Controls

    Among the new laws, California's  "gun violence restraining order" raises a number of constitional issues. According to USA Today:  "The New Year has brought a slew of new laws across the country, including a controversial California law allowing judges to seize the guns of people judged a danger to themselves or others.
    California’s “gun violence restraining order” lets judges remove guns from from someone deemed a risk. Proponents say it will reduce suicides and other shootings by empowering family members to take away guns from someone they believe poses a danger. The National Rifle Association called it “one of the most egregious violations of civil liberties ever introduced” in the state.
    California law already allows police officers to seize any weapons found during a domestic violence incident and hold them for 48 hours; the new law gives officers the power to search someone's property if a judge issues a gun violence restraining order.
    California isn’t the only state where new gun laws took effect Jan. 1. In Oregon, a person subject to a restraining order or convicted of certain domestic abuse offenses cannot have guns or ammunition.
    And in Texas, licensed owners will be allowed to visibly carry holstered handguns without a special permit. Texas joins 44 other states that currently allow open carrying of guns. Not everyone, however, is onboard with the open-carry law: Three grocery store chains in Texas have said they will bar open carrying of weapons on their premises, and the pushback against the law has gathered attention under the Twitter hashtag #GroceriesNotGuns."

    Bystander shot by police in Chicago

    The mayor promises more training, tasers, etc but problems continue in Chicago.   According to the NYT: "On Saturday, an officer fatally shot Quintonio LeGrier, a 19-year-old college student said to have been wielding a metal baseball bat. During the same episode, police gunfire also accidentally struck and killed a bystander, Bettie Jones, 55."  Hopefully, the death of a totally innocent person will spur real reform in Chicago. How many other innocent bystanders will have to die before cities like Chicago pull it together?

    Obama's Top 10 Constitutional Violations in 2015

    From the Cato Institute a libertarian, free-markets, etc. think tank. I don't agree with all of their assessments.  Check it out and see what you think.