Friday, March 30, 2007

Pain doc vs. the pleasure police

Whichever side you fall on in the debate over the "war on drugs," there's a subset of America's continuing experiment with Prohibition that really should have everybody unified in horror. As part of its efforts to make sure that nobody takes unapproved intoxicants, the government has waged an ongoing campaign against doctors who use powerful medications to control pain in often-terminal patients. By their very nature, these drugs can also be used recreationally, causing the pleasure-police to suspect every prescription as a fake and every doctor as a pusher. The current poster-child for physicians on the receiving end of the government's puritanical wrath is Dr. William Hurwitz, whose retrial began this week in Alexandria, Virginia.

John Tierney of The New York Times has been covering the case, and covering it well. If you're late to the story, Tierney has an excellent roundup of the situation in his Findings column.

Hurwitz is being tried a second time because the jury the first time around was improperly instructed to ignore whether Dr. Hurwitz had acted in “good faith.” That first jury convicted Hurwitz, sending him to prison allegedly for trafficking in narcotics under cover of medicine. A review of the trial shows that Hurwitz was railroaded by a litany of misrepresentations and junk science. As Tierney points out:

During the first trial, the prosecution argued that it was beyond the “bounds of medicine” for Dr. Hurwitz to prescribe more than 195 milligrams of morphine per day, but dosages more than 60 times that level are considered acceptable in a medical textbook. The prosecution’s supposedly expert testimony on dosage levels and proper pain treatment for drug addicts was called “factually wrong” and “without foundation in the medical literature” in a joint statement by Dr. Russell K. Portenoy and five other past presidents of the American Pain Society.

Tierney reports on his blog that the new trial is already starting off with a better presentation by the defense team. His initial post on the proceedings is here.

With luck -- and good lawyering -- Hurwitz will go free this time. That will be an important signal to doctors and patients that DEA agents won't be freely second-guessing medical decisions.


Thursday, March 29, 2007

Big Brother wants to know who your tenants are

Officials in McSherrystown, Pennsylvania are quite cross. It seems that several local landlords are refusing to surrender lists of their tenants, as required by law. A town ordinance requires landlords to report tenants' names to the borough every six months.

For what reason?

Your guess is as good as mine.

Failing to report on your tenants to the local authorities can carry a fine of up to $1,000, plus costs.

Local officials want information, so why not give them some? McSherrystown's city government can be reached at:

phone: (717) 637-1838
fax: (717) 637-3313

Give 'em an earful.


You may already be a terrorist

If your name -- or any monicker close to your name -- appears on a lengthy list of "specially designated nationals" maintained by the U.S. Treasury Department's Office of Foreign Assets Control, you may be unable to get a mortgage, buy insurance or purchase a car. That's because the federal government makes it illegal for businesses, under threat of both civil and criminal penalties, to have anything to do with individuals and organizations whose names appear on the list. As the Lawyers Committee for Civil Rights of the San Francisco Bay Area puts it in a recent report (PDF file):

[T]he law covered not just financial institutions or other businesses particularly susceptible to terrorist financing, but extended responsibility to all U.S. citizens, permanent residents, entities organized under U.S. law, and anyone present in the United States. In addition, the order made no exception for minimal transactions, so even a sale worth pennies could be penalized under the law.

Not surprisingly, many businesses choose to err on the side of caution rather than risk fines and jail time -- with civil penalties accruing for even inadvertent transgressions. The result is that innocent people have found themselves turned away for loans, purchases and insurance with little recourse except a drawn-out and potentially expensive effort to prove that they are not the same person as a sometimes vaguely identified terrorist on the watch list.

It's not a theoretical problem. The report, compiled by Shirin Sinnar, contains chilling anecdotes about normal people with common names turned away by mortgage brokers, car dealers and name-brand businesses like Western Union and PayPal.

In fact, the problem might be even worse except that many businesses aren't obeying the requirement that every potential customer be screened for terrorist connections. Many don't know about the law; others find the cost of compliance daunting, even in light of the penalties involved.

Major banks spend millions of dollars annually on checking the OFAC list and following other post-9/11 regulations. For smaller businesses, such as mini-marts that offer check cashing services, the burdens of implementation are even more formidable. The purchase of screening software alone can cost businesses thousands of dollars. ...

Theoretically, before a grocer sells a pint of milk, a deli serves a sandwich, or a doctor treats a patient, they should all be checking the OFAC list to make sure they are not assisting a person on the list.

Can you imagine how many thousands more Americans would become unpersons if the law was better known and more easily obeyed?

Your government -- protecting you from some guy with a slightly suspicious name.


Wednesday, March 28, 2007

Pricing Prohibition

Noted economist Gary Becker, of the University of Chicago, argued in 2005 that the ongoing war on drugs -- really, a crusade against personal choice -- has a stratospheric cost that can, at least in part, be measured in dollars and cents. wrote the noted Nobel Prize-winner:

After totaling all spending, a study by Kevin Murphy, Steve Cicala, and myself estimates that the war on drugs is costing the US one way or another well over $100 billion per year. These estimates do not include important intangible costs, such as the destructive effects on many inner city neighborhoods, the use of the American military to fight drug lords and farmers in Colombia and other nations, or the corrupting influence of drugs on many governments.

You might also add to that list of intangible costs the lives lost to misfired paramilitary police raids, the years wasted in prison by people engaged in victimless activities, and the liberty eroded in the name of pursuing a pointless and impossible ban on officially disfavored intoxicants.

Perhaps those soaring costs are why one-time drug warrior and former congressman Bob Barr has joined the ranks of political and law-enforcement figures who have had a change of heart. Barr, the one-time sponsor of a measure that that blocked the District of Columbia from legalizing medical marijuana, has taken on a new job as a lobbyist for the Marijuana Policy Project. The Politico quotes Barr saying:

“I, over the years, have taken a very strong stand on drug issues, but in light of the tremendous growth of government power since 9/11, it has forced me and other conservatives to go back and take a renewed look at how big and powerful we want the government to be in people’s lives.”

Barr's move is an important one. More than his recent affiliation with the Libertarian Party, it pretty much closes the door on his participation in GOP politicking. It's difficult to imagine him seeking office again as a Republican after having advocated marijuana decriminalization. That's what convinces me of his sincerity. For a politician, there's no advantage to be gained, and much to be lost, by being right on the drug issue.

$100 billion per year, plus "intangible costs," can sway minds in powerful ways. Opinions can change when the dollars -- and lives -- start stacking up.


Lifestyle on a leash

Well, it's fuzzy critter day on the blog.

Louisville, Kentucky, has a new law intended to penalize people who don't have their pets spayed or neutered -- that's all pets, not just dogs and cats.
Norman Auspitz, the owner of the Kentucky Colonels Cat Club, said he joined as a plaintiff because the ordinance is "anti-pet."

"It's a bizarre thing," Auspitz said. "The law talks about unaltered animals, be they dogs, be they cats, be they rabbits."

The law apparently started off specifically targeted at "pit bulls" and rottweilers, but in reaction to public criticism of a breed-specific ban, it was widened to apply to just about any animal you can imagine -- and to their owners. More than just requiring that animals be altered, it hikes licensing fees and even dictates how animals are kept and how they're restrained.

Jon Fleischaker, attorney for the 12 organizations and individuals suing the city, said his clients believe the ordinance violates the federal and state constitutions. The suit, filed in Jefferson Circuit Court, claims that the ordinance isn't even a "dog law."

"It is a law that restricts the freedoms of people," the suit says.

"The law allows unfettered discretion by city officials in dealing with the property of people, without standards and without guidelines," Fleischaker said. "This is an effort by city officials to dictate how people deal with their pets, when their pets aren't bothering anyone."

I'm not entirely sure what's up with the flurry of anti-dog and anti-pet laws that have appeared in the news recently. To a certain extent, some of these laws are reaction to isolated incidents of dogs attacking people or other animals. To that extent they're a revival of the "pit-bull"-fever that fueled some remarkable stupid breed-specific legislation of the 1980s. But some of these law, like the Louisville law and the attempted greyhound racing ban in New Hampshire, seem targeted more at the way people interact with their animals than at specific types of animals.

My guess is that these laws are less about animals than they are about legislating lifestyle. If I'm right, the Louisville law has less in common with the old pit-bull bans than it does with San Francisco outlawing plastic bags. It's a way for people of a shared mindset to say: "Here we are, and we're in charge!" The ability to bludgeon "others" into submission with the power of the law then becomes an expression of cultural solidarity.

Think of it as the totalitarian underbelly of democracy. The majority rules -- and it wants you to clean up after your neutered, leashed pooch with a biodegradable bag. Or else.


Control freaks lose a round

Advocates of leaving people along to make their own choices won a small victory yesterday when the New Hampshire House voted down a measure that would have banned greyhound racing and shut down the state's tracks. By a solid vote of 198-138, state lawmakers turned aside the latest attempt to outlaw an activity -- actually, two activities if you count both the racing and the gambling -- that is considered politically incorrect by a well-funded cadre of finger-waggers.

To judge by the news reports, however, the debate over the bill was depressingly devoid of libertarian sentiment. The control freaks predictably claimed that racing dogs is cruel and that gambling is a moral failing, and the victorious opponents of the ban argued primarily on economic grounds, citing the potential cost in jobs and revenue for the state. Few people, if any, seem to have come right out and said that the issue is none of the government's business.

That's a shame, because keeping government within its proper boundaries is the most important argument. It ties together issues that otherwise have to be dealt with in a patchwork way. That's not to say that the economic arguments have no validity -- they're important for winning over the fence-sitters and pragmatists. But beating the control freaks requires going to the core of their argument -- their claim that they have the right to dictate to the rest of us -- and not just dealing with the surface details.

But a win is a win. We'll take 'em as they come.

Tuesday, March 27, 2007

21st-century slavery

Slavery -- forced labor -- still exists in parts of the world, and not just in backward hell-holes like the Sudan. Cloaked in patriotism and pretty uniforms, slavery still exists in some "civilized" countries that otherwise possess all the trappings of relative freedom, including open elections and a free press. In these countries, slavery continues to exist in the form of conscription.

Bermuda is one of the "civilized" places that still forces people to work for the state or face prison terms. Young men in Bermuda have long faced the prospect of a potential draft into service in the Bermuda Regiment. Unsurprisingly, such forced labor is not universally popular among those subject to its call. Now a minor revolt threatens to overturn military conscription in the island paradise -- and it's upsetting local leaders along the way.

Fourteen young men subject to the draft have filed a lawsuit against the authorities, challenging conscription on the grounds that it breaches the human right to be free, and that it's gender-biased. The men are backed by Bermudians Against the Draft, which is providing the lawyers and funding needed to fight the case before the island paradise's Supreme Court.

BAD's leader, the Rev. Larry Marshall Sr., has labeled conscription "21st-Century slavery," and it's hard to take issue with his choice of words. Hard, that is, unless you're Governor Sir John Vereker, or Premier Ewart Brown, both of whom have objected to the whole idea of letting people choose how to live their own lives. Premier Brown, in particular, emphasizes his affection for enforced national service.

Americans shouldn't be too smug about this situation. we have our fair share of political grand-standers who'd love to see conscription revived on the mainland, despite widespread rejection of the idea by the public. Defeating the draft in a neighbor like Bermuda might be a shot across the bow to would be slave-drivers in the U.S.

To help Bermudians Against the Draft with its efforts, go here to contribute.

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Blow me

New Mexico may be poised to require new state residents with DUI convictions from elsewhere to install interlock-ignition devices on their cars, but Pennsylvania may go one step beyond. If State Representative Paul I. Clymer gets his way, all Pennsylvanians will have to puff into breathalyzers before starting their cars.

Clymer's proposal would require that, by 2009, all new cars sold in Pennsylvania have a device installed to estimate the amount of alcohol on the breath of a driver. If the machine believes the driver's BAC is greater than .025 percent -- significantly less than the legal limit of .08 percent -- the car will not start. By 2010, all motorists would be forced to install the devices on existing cars before being able to sell them as used vehicles.

.025 percent? Forget about having a beer at lunch and then heading back to the office. Forget, for that matter, about having a drink with dinner and then driving home.

And, of course, forget about the presumption of innocence; everybody will have to prove their sobriety over and over again if Rep. Clymer gets his way.

Interestingly, the people's representative apparently never checked to see how much his proposal would cost each person who owns a car.

The state representative was unaware of the cost of the installation of the interlock ignition systems, which range from $700 to $1,200. Pennsylvania Interlock, which provides the systems to court-ordered DUI offenders, leases the units for $1,050 for one year. The cost includes installation, routine calibrations, and removal within a year’s time.

He says he might consider some minor modifications to the bill because of the cost. Of course, that's only a reprieve -- maybe -- until the technology becomes less expensive. Then, it's sayonara Fourth Amendment as everybody is forced to demonstrate their alcohol-free-status to their own automobiles.

Hat tip to Radley Balko at Hit & Run.


Webb's Second Amendment moment

I expect that Phillip Thompson, a "top aide" to Senator Jim Webb, will escape the mini-scandal surrounding him with little more than a warning. His "crime" -- carrying a pistol without a license and possession of an unregistered firearm and ammunition in gun-phobic Washington, D.C. -- seems to have been inadvertent. More importantly, he has Senator Webb -- the apparent owner of the gun and ammunition -- in his corner, making sure that the legal difficulties that befall little people don't ensnare a trusted political operative.

But while he's getting his aide off the hook, Webb might want to consider that a potential political plum has fallen into his lap. First of all, the incident demonstrates that Webb is not
as hostile to firearms as some of his Democratic colleagues. At the very least, he thinks that he should be able to own them. Now he needs to demonstrate that he extends that same consideration to the rest of us.

He's off to a good start. In a profile shortly after the election, Bloomberg columnist Andrew Ferguson described Webb as "an absolutist on Second Amendment rights -- the right to keep and bear arms." In an interview last year for the Daily Kos blog, Webb said:

I support the Second Amendment, for many of the same reasons that I am more "liberal" on social issues. I believe the power of the government should stop at my front door, and that I should have the ability to protect myself and my family.

Now he's a senator and it's time for Jim Webb to show he means what he says. He could publicly regret his aide's violation of D.C.'s gun laws, but then (after Thompson is off the hook) point out that the problem is with the law -- not with an individual transporting a firearm. He should make it clear that nobody -- not just politically connected apparatchiks -- should run afoul of the law for owning the means of self defense.

Webb could endorse the decision in Parker v. District of Columbia, and call on the Supreme Court to affirm the reasoning adopted by the court of appeals.

Basically, Webb could use this incident to put himself on the side of individual liberty -- at least so far as the right to bear arms is concerned.

Of course, doing so may cause some friction with his Democratic colleagues. The question is whether he's really the man of principle he claims to be, or whether he's just another ambitious politician.


Monday, March 26, 2007

Eminent anger

Two-thirds of Ohio voters would ban the use of public domain even for such public projects as roads, says a Quinnipiac University poll released last week. The press release summed up the poll's findings thusly:

Ohio voters support 78 - 17 percent setting limits on government use of eminent domain. In other questions on this issue:
  • Voters oppose 65 - 32 percent using government's eminent domain power to take private property for public projects such as roads;
  • Voters oppose 82 - 14 percent using eminent domain to take property for economic development;
  • Voters say 50 - 30 percent that government has abused eminent domain in the past.

"Despite their concerns about the economy, Ohio voters don't see the value of eminent domain as an economic development tool," Brown said.

Interestingly, opposition to the use of eminent domain for public use projects pulls a majority of support across Republicans, Democrats and Independents -- but is highest for Democrats at 67 percent, defying the stereotype that donkey-party voters are generally government-friendly. Hostility to the use of eminent domain for economic development is so overwhelming across the board that it should simply put the issue off the table for discussion by politicians.

It's no surprise that State Sen. Timothy J. Grendell told The Cincinnati Enquirer, "If we don't take responsible action in the Legislature, there may be groups that see those poll results and take the initiative to put something on the ballot that would be far more Draconian." With poll results like that, it's almost a given.

I think it's obvious that politicians and urban planners are reaping what they have sowed. Abuses of eminent domain have been so well-publicized, and the Supreme Court's
horrendous Kelo v. New London decision so roundly vilified, that the public is turning against the practice of forcible property takings for any purpose.

In the wake of Kelo, many local governments actually took advantage of the new legal landscape and stepped up their land-grabs -- promptly making headlines by doing so. Eminent domain rightly scares people under any circumstances, and all the more so when they see news reports about people just like them turned out of their homes.

In his column for The Orange County Register, Steven Greenhut captures exactly what's wrong with granting the government the power to seize property:

Today's code words and attitudes may be different than they were in the 1920s, but by giving government so much power to drive people off their land, we all are subject to the whims and rationales of officials. In the 1920s, officials didn't think blacks were "appropriate" for the neighborhood, and these days officials don't want "working-class people" enjoying prime land that could be home to upscale condos.

I would be happy to see eminent domain eliminated entirely. I flat-out don't see a justification for giving the government the power to forcibly displace people. Private property should be a refuge from the state, not a hostage to it.

Most reformers don't go as far as me and focus only on the abuse of eminent domain to displace people in favor of wealthy developers -- economic development, in other words. They're comfortable with -- or at least tolerant of -- the use of force to acquire land to build schools and roads. The ballot initiatives and bills of the past two years haven't sought to abolish eminent domain in its entirety.

But public opinion is a fickle things, and it can take strange turns when people have good reason to get angry. If that Quinnipiac poll is right, us radicals on the eminent domain issues are more in tune with the public than the moderates. Politicians might want to keep those poll results in mind.


Asset forfeiture abuse

Jeff Doles was acquitted of selling "drug paraphernalia" through his head shop in Gillette, Wyoming, but that didn't deter authorities. Turned away by a jury, Campbell County prosecutor Bill Eichelberger found a cooperative judge who allowed him to seize Doles's inventory anyway, even in the absence of a conviction.

The key is civil asset forfeiture, a convenient, if bizarre, bit of legal legerdemain in which a legal action is brought against objects rather than people. Money and inventory can be found guilty of a crime and seized, even when criminal defendants win their cases -- and some people are never even charged with a crime.

Civil asset forfeiture hit the headlines briefly in the 1990s after some well-publicized abuses of the power. Some of the uses, such as the confiscation by federal officials of $9,000 from a landscaper named Willie Jones, seemed indistinguishable from muggings. As a results, a modest reform measure, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) was passed by Congress and signed into law by then-President Bill Clinton, somewhat reining-in asset-grabs on the federal level. Forfeiture pretty much dropped off the public's radar after that.

But as Doles's case demonstrates, abusive uses of asset forfeiture didn't go away; the practice is alive and well across the country. Forfeiture Endangers American Rights, a national organization, keeps a close eye on the practice, and it has yet to run short of examples of government officials using the power of the law to bypass the requirements of a criminal trial.

The fate of Doles's inventory -- convicted in lieu of its owner -- will be decided by the Wyoming Supreme Court.

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NYPD watches over you

The New York Times confirms what many political activists of even a mildly radical stripe have long suspected: The NYPD is back in the business of spying on political groups.

The revelation comes almost three years after the 2004 Republican convention, in preparation for which city police officers traveled far and wide -- even overseas -- to monitor activist group's preparations for the upcoming event. Some of the results were, frankly comical.

Marco Ceglie, who performs as Monet Oliver dePlace in Billionaires for Bush, said he had suspected that the group was under surveillance by federal agents — not necessarily police officers — during weekly meetings in a downtown loft and at events around the country in the summer of 2004.

“It was a running joke that some of the new faces were 25- to 32-year-old males asking, ‘First name, last name?’ ” Mr. Ceglie said. “Some people didn’t care; it bothered me and a couple of other leaders, but we didn’t want to make a big stink because we didn’t want to look paranoid. We applied to the F.B.I. under the Freedom of Information Act to see if there’s a file, but the answer came back that ‘we cannot confirm or deny.’"

The primary goal of the police infiltrators was to forestall violence at the convention. This was all in the wake of 9/11 of course, and so fear of a terrorist reprise ran deep. Honestly, it makes sense that the police would keep an eye out for anybody who might see a major-party politial convention as a plum target for a bloody political statement.

Inevitably, though, perfectly peaceful individuals and organizations came under the watchful eye of the police.

In its preparations, the department applied the intelligence resources that had just been strengthened for fighting terrorism to an entirely different task: collecting information on people participating in political protests.

In the records reviewed by The Times, some of the police intelligence concerned people and groups bent on causing trouble, but the bulk of the reports covered the plans and views of people with no obvious intention of breaking the law.

The end results included the infiltration of harmless organizations, the compilation of dossiers on political dissidents and the arrests of perfectly peaceful people, including a grad student who designed a high-tech bicycle that could spray chalk political messages on the pavement as it was pedaled along.

The arrests, in particular, are what carry the NYPD's efforts over the line from over-enthusiastic to sinister. It's easy to see the surveillance having a chilling effect on speech and activism among people who'd really rather not spend nights as guests of the city of New York. Given the potential for being arrested for planning nothing more than a pointed expression of your views, it's tempting to leave the politicking to somebody with a stronger tolerance for jail cells.

This is why the NYPD got in trouble in the first case, with it's surveillance of anti-war groups back in the 1960s.


Friday, March 23, 2007

Pirate radio lives - online

Last month (OK, I'm a little late getting to this), the 9th U.S. Circuit Court of Appeals ruled against a San Francisco pirate radio station in a case that's probably most notable for how quaint it seems. In supporting the federal government's seizure of San Francisco Liberation Radio's broadcast equipment, the three-judge panel said, "Neither broadcasters nor listeners have a First Amendment right to engage in or listen to unlicensed broadcasts."

It was an unfortunate decision, but one which had less meaning for free speech than it would have just a few years ago. Indeed, pirate radio stations, despite their chaotic and sometimes heroic history, have less meaning for free speech than they did just a few years ago.

That's because technology marches on. In fact, San Francisco Liberation Radio had the ability to cover and broadcast the news of its own case, beyond the reach of the law. In addition to its traditional radio transmitters, the station maintains a Website and streams its shows across the Internet -- a medium much more free-wheeling and open to DIY entrepreneurs than the old-fashioned radio waves.

Which is not to minimize the loss suffered by the station through the seizure of its equipment, or the loss suffered by Americans in the court's legal nod to decades of government dominance and allocation of the broadcast spectrum.

But more people now than ever before have the ability to launch media operations and reach an audience beyond the stifling confines of government regulation. And the courts, as demonstrated by the just-decided case of American Civil Liberties Union v. Gonzales, seem inclined to keep regulators' mitts off the new medium, in stark contrast to the treatment of radio and television.

It would be best if radio were as free and unregulated as the Internet, but it's increasingly irrelevant that it's not. Someday, the broadcast media's near-exemption from First Amendment protections may well be seen as an odd blip between the dominance of comparatively freewheeling print operations and their online successors.


How about the death penalty for moving violations?

The Brooksville, Florida, city council proposes to seize homes -- yes, seize homes -- over unpaid parking tickets of as little as $5. Don't own a home, you say? Then they'll grab your car.

But what if you receive a bogus ticket?

Well, don't worry -- there's a handy-dandy appeals process just waiting for you.

Any motorist who believes a parking ticket may have been improperly issued must first pay a $250 "appeal fee" within seven days to have the case heard by a contract employee of the city. This employee will determine whether the city should keep the appeal fee, plus the cost of the ticket and late fees, or find the motorist not guilty.

Don't even ask what happens if you blow through a stop sign.


Whiff of smoke

It's hard to know whether the bar owner or his customers are the ones defying Washington's new smoking ban, but it's obvious that somebody isn't knuckling under to the mandate. Good for them.

County environmental health specialist Dale Tahja, who investigated the case, said Schnarrs was the only proprietor in the county who still was not compliant with the state anti-smoking law.

Tahja said he received a citizens complaint Jan. 10 about customers smoking inside the bar, as well as two similar reports by an off-duty county building inspector and code-compliance officer Jan. 19 and Jan. 26. In addition, Tahja said he did not see the required "no smoking" sign when he visited Schnarrs' tavern Jan. 11.

For his part, sports bar owner Frankie Schnarrs claims that he's trying to enforce the ban, but he can't always be in the bar monitoring his customers' activities. Given his past vows of defiance, that may just be a coy way of sliding out from under legal penalties that would otherwise be levied against him.

It's hard to understand the prosecutors' enthusiastic pursuit of this case. While the county didn't get its wish, its representatives sought fairly hefty penalties.

"Clearly, he didn't get the message," Deputy Prosecuting Attorney Jane Futterman told Hirsch on Friday. Futterman had asked the judge to impose fines against Schnarrs of $100 per day dating to the Dec. 29 injunction, or $7,500.

Is the county so crime-free that it can afford to expend resources to punish consensual behavior that business owners permit on their own premises? Actually, my guess is that it's a matter of pride -- government officials just can't stand it when the masses don't do their bidding.


Thursday, March 22, 2007

Setback for property rights

Utah Governor Jon Huntsman joined his state legislature in bucking the national tide of concern for property rights; he signed a contemptible law expanding the use of eminent domain.

House Bill 365 allows a public body, a redevelopment authority, to condemn blighted land if 80 percent of owners in the targeted area agree.

The bill also requires a two-thirds vote of a community’s redevelopment board to approve the condemnation.

It is a significant change in a state that had a moratorium on the use of eminent domain for private development.

Among other consequences, the law is expected to pave the way for the city of Ogden to condemn land so that Wal-Mart can open a new store in its preferred location.


Big win for online free speech

A high-profile federal attempt to censor the Internet took a body-blow today when a federal court ruled that the Child Online Protection Act, the great blue-nose hope of 1998, is unconstitutional. COPA was intended to restrict children's access to "harmful" material by imposing age-verification requirements on Web sites that host such content. Penalties for violating the law included a $50,000 fine and up to six months in prison -- a hefty incentive to self-censor or relocate overseas for online publishers of even mildly risque material.

In his ruling in the case of American Civil Liberties Union v. Gonzales (PDF file), Judge Lowell A. Reed, Jr. of the U.S. District Court, Eastern District of Pennsylvania, found that COPA violates both the First and Fifth Amendments to the Constitution because:

(1) COPA is not narrowly tailored to the compelling interest of Congress;
(2) defendant has failed to meet his burden of showing that
COPA is the least restrictive and most effective alternative in achieving the compelling interest; and
(3) COPA is impermissibly vague and overbroad.

He issued a permanent injunction against the law's enforcement.

Not surprisingly, Judge Reed found that COPA is overinclusive -- that is, it censors too much -- because it "prohibits much more speech than is necessary to further Congress' compelling interest."

For example, as discussed above in Conclusions of Law 3 and 4, the definitions of "commercial purposes" and "engaged in the business" apply to an inordinate amount of Internet speech and certainly cover more than just commercial pornographers, contrary to the claim of defendant.

Interestingly, Judge Reed also found that COPA is underinclusive because "there is a significant amount of sexually explicit material on the Internet which originates from outside of the United States" that is not subject to the law -- indeed, is beyond the reach of U.S. law.

On both points, the judge said that Internet content filters chosen by parents would be "at least as effective" in fulfilling the purpose of the law.

The court's ruling is a welcome one for advocates of free speech -- especially those of us who enjoy the DIY publishing power of the Internet. Laws like COPA threatened to impose burdens on everybody, but they posed special hazards for small-scale operators who may have the power to post to the Web, but who lack the savvy or resources to set up age-verification systems, or to transfer their operations to overseas servers.

At least for the moment, free speech prevails.


What do you do again?

If you want to work in New Mexico -- and four other states as an interior designer, you can go ahead and do so. But if you want to call yourself an "interior designer," you'd better take a state-mandated licensing exam, or face the full wrath of the law. And that barrier to accurately describing your profession on your business cards and in the yellow pages isn't exactly a low hurdle. According to the Institute for Justice:

New Mexico’s speech-licensing requirements for interior designers are not easy to meet. First, applicants must pass an exam administered not by the State, but by a private, national credentialing body called the National Council for Interior Design Qualification (NCIDQ). But not just anyone may take the NCIDQ exam. Just to sit for the exam, NCIDQ requires people to have six years combined college-level interior design education and work experience.[15] That education/experience requirement is reflected in New Mexico law, which likewise provides that applicants for an interior design free-speech license must either have six years total experience and education from an “accredited institution” or an eight-year apprenticeship under a designer who has passed the NCIDQ exam described above.[16] Essentially, what New Mexico has fashioned is a guild of interior designers.

Four other states go even further: Alabama, Florida, Nevada and Louisiana plus the District of Columbia all prevent people from even working as interior designers unless they jump through hoops established by government bureaucrats.

Not surprisingly, these licensing laws have been pushed not by consumers suffering bad feng shui from the ravages of incompetent interior designers, but by the design industry itself. The American Society of Interior Designers has waged a campaign to "professionalize" the industry -- and, incidentally, limit the competition -- by establishing legally enforceable barriers to entry.

Fortunately, most states see little reason to test and license people before allowing then to decide where to put your sofa. But the residents of New Mexico are among the minority who have to beg, hat in hand, to be allowed to openly and fully practice their craft.

So IJ has taken on the task of representing New Mexicans who work as interior designers and want to exercise their right to accurately describe to the public what they do to earn their keep.

The Institute’s legal challenge is straightforward: prohibiting people from truthfully describing what they do—interior design—violates their First Amendment right to free expression. With very narrow exceptions, all types of speech are protected by the Constitution, including so-called “commercial speech” that “does no more than propose a commercial transaction.”[21] Thus, to regulate advertising, the government must have a substantial reason for restricting speech, and any limits must be carefully designed to actually achieve the government’s objectives while having only the narrowest infringement on speech.[22]

Offering your services to willing customers is a right -- not a privilege. And, as IJ points out, accurately describing the services you offer is simple free speech.

Here's hoping IJ and the plaintiffs prevail.


Wednesday, March 21, 2007

Nannies in the news

The nanny state is in the news again. This from Associated Press:

Lawmakers around the country are passing or proposing laws to regulate the grease your doughnuts are fried in, the calls you make from the road, what you listen to when you cross the street, even the bat your kid hits a baseball with.

The ideas are offered with the best intentions -- usually to minimize a newly recognized danger or to encourage healthy behavior. Lawmakers worry, for example, that text-messaging while driving can be deadly, and that foods fried in trans fats promote heart disease.

Critics counter that regulating french fries and Blackberries infringes on personal liberties. "Nanny government" some critics call it, and they point to a playpen full of behavior-related bills before city councils and state legislatures.

The Cato Institute's David Boaz gets in an excellent quote:

"If I prefer doughnuts to the promise of a long life, well, I think that's my choice."



Showdown in Cowlitz County

Washington state voted down I-933, and the fallout is already painful. I-933 would have required government to compensate landowners for the loss of use and value in their land due to intrusive regulations. It was a carefully crafted ordinance, modeled on one in effect in Oregon and similar to one approved here in Arizona, but it lost in Washington largely due to urban disinterest in property rights. As many homeowners are discovering, that's a shame.

Localities are required by state law to maintain and update "critical areas ordinances" -- laws dictating where people can and can't build on their own property. Some places -- rural areas in particular -- held off on doing so pending the outcome of the vote. Rural Cowlitz County voted for I-933, but the locals swam against a state-wide tide. Now their officials are getting with the program dictated by state politicos.

The consultant from Portland stood at the front of the room in a pair of dress slacks. The rural landowners, a long beard here, a pair of work jeans there, lined up in chairs.

"It's called socialism!" a man in the crowd shouted.

"Vote Republican!" crowed another.

Yet another man said the government is run by "overeducated idiots."

"We're getting awful tired of it," he said.

The flyer said the meeting would be about Cowlitz County's critical areas ordinance, the local environmental regulations that govern where people can and can't build on their own property.

But, really, it was about much more. The landowners said they didn't like laws being shoved down their throats by educated elites.

Local reaction is understandable -- the law is being shoved down their throats by self-appointed elites who have accumulated political power and aren't shy about imposing their desires on people who live far away. To such people, individual rights are unpleasant and archaic obstacles to policies intended to make the world a better place -- better to their taste, of course. It's pure hubris, but it's an attitude that prevails in today's America -- to the point that it's barely concealed.

Jason Franklin, who works for Parametrix, the firm hired to help update the ordinance, said the "best available science" would be used to determine what's a wetland, what isn't, where it's OK to build, where it isn't.

"I don't agree with coming out of college, reading best science and making decisions unless you've been out there," said Bob Janisch of Castle Rock.

"We have some higher degrees between us," Franklin acknowledged. "Those smarty people that read all those studies and write all those books --- that's us. ... We have a lifestyle that we choose and you choose yours and we try to meet in the middle."

In a county typically feisty about property rights, those were fighting words.

"These laws that they want to make today is just a screw down on you," another landowner, Jerry Reagor called out to his comrades. "It's not about protecting the environment. It's about controlling your life."

Am I alone in thinking that the consultant from Parametrix sounds like a condescending putz?

Absent the protections of legislation like I-933, the landowners of Cowlitz County -- and elsewhere -- are probably doomed. Angry public meetings don't matter to urban-based authoritarians who make the rules -- and who frankly have the support -- for now -- of a majority. Homeowners like those in this article will simply be outvoted and ignored.

If people get angry enough -- if -- they may yet have another chance at the ballot box.

Or maybe Cowlitz County -- among other places -- needs an open revolt.


Surprise! The FBI abused its power

Oh my, the FBI has apparently been very bad indeed over the past few years. Who knew that handing J. Edgar's boys (and girls) new, intrusive tools would lead them to abuse those tools the way they've abused the power given them in the past?

Well, anybody with realistic expectations, I guess.

This from The Washington Post:

The Justice Department's inspector general told a committee of angry House members yesterday that the FBI may have violated the law or government policies as many as 3,000 times since 2003 as agents secretly collected the telephone, bank and credit card records of U.S. citizens and foreign nationals residing here.

The IG testimony fleshes out the details of the report released earlier this month on FBI use and abuse of national security letters. In particular, the IG admits that upwards of 600 of the violations may be "cases of serious misconduct" in which the FBI improperly used the letters to force companies to surrender information about their customers. More troubling is that these abuses are in addition to the improper uses of national security letters already detailed in the report.

Fine's extrapolated tally of 3,000 likely illegal or improper letters did not include three other categories of wrongdoing disclosed in his report: One was a headquarters unit's use of 739 "exigent circumstances" letters to obtain telephone records from AT&T, Verizon and MCI on an emergency basis using false statements or improper documentation. The second was an improper use of 300 national security letters to obtain information for a single classified project. And the third was the FBI's use of improper letters to obtain the financial records of 244 people from banks.

Strictly speaking, I'm not at all surprised that the FBI abusively used national security letters. This is a federal agency that has a history of overstepping the bounds of its power. The bureau has been caught spying on political dissidents and even covering up crimes. To hand the bureau the authority to compel private organizations and individuals to surrender records without any judicial oversight is equivalent to dangling a bottle of whiskey in front of an alcoholic. You're just begging for bad results.

The only way to keep an agency like the FBI within spitting distance of proper conduct is to strictly limit its power and carefully oversee its activities. In the absence of enforced boundaries and the scrutiny of skeptical eyes, the FBI will transgress again and again.

And we'll act like we're surprised each time.

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Tuesday, March 20, 2007

Joe Frederick's free-speech battle

How far can public school officials go in muzzling their charges when the little darlings go "off-message"? Does the authority of school officials reach beyond the classroom -- even off school grounds? Those questions and more are raised by the case of Joe Frederick, a former high school student in Juneau, Alaska, who was punished for exercising his right to free speech in a forum that many people would consider beyond the reach of teachers and administrators.

In 2002, Frederick and his fellow students were released from school to attend a Winter Olympic torch relay event along a public street. As TV cameras panned across them, Frederick and his buddies unfurled a banner reading, "Bong Hits 4 Jesus." Whether Frederick and company meant it to be a pro-drug message, or were just being wise-asses is unclear. But Principal Deborah Morse had no doubt as to the banner's meaning. She tore down the banner and suspended Frederick for ten days.

Frederick sued, alleging that his free speech rights had been violated. A lower court disagreed, but the Ninth Circuit Court of Appeals sided with the prankster, and the case has now reached the U.S. Supreme Court.

What's important to remember is that, even if Frederick had pulled his stunt on school grounds, the case wouldn't be a slam-dunk for school officials. According to the standard set in Tinker v. Des Moines, schools can restrict students only if their speech is disruptive to the educational process. It's not obvious that the banner represents any such thing.

But Frederick was, in fact, on a public street. His free speech rights should be even more strongly protected there, beyond the conformist embrace of the holding pen managed by Ms. Morse. School officials may not like their students to voice opinions contrary to what they're being taught in the classroom, but there's no obvious reason why they should be able to gag students who want to voice dissent -- unless that dissent is expressed in such a way that it actually disrupts the function of the school.

But Tinker was a bit of a high-water mark for students' free speech rights. Our black-robed high priests of legaldom have hedged their bets on the issue in decisions ever since, finding repeatedly in favor of administrators' power to regulate speech.

With public schools housing and (allegedly) educating the vast majority of America's youth the stakes are high. If school officials can control what students say on -- and off -- school grounds, they'll exercise enormous power over the boundaries of debate permitted to young people. Any opinion deemed to vary too greatly from the official stance of government-run schools could essentially become off-limits to students until they achieve adulthood and suddenly, like prisoners emerging from dark cells, enter a world where speech is still protected.

That's enormously dangerous.

A decision in Joe Frederick's case is expected in June.

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Monday, March 19, 2007

He should have known

Until recently, New York allowed government agencies to seize private property after nothing more than an obscure public notice published in a newspaper. The notice's publication started a 30-day clock ticking, at the conclusion of which property owners lose the right to appeal the condemnation. Government officials can then proceed at their leisure. Empire State legislators have since amended the process to require mailed notice of pending land-grabs to property owners -- but that won't help William Brody.

Brody lost his land years ago, and he's been fighting to get it back. While a federal appeals court has already ruled in his favor, the case continues, and it may be small comfort if he wins. That's because his property has already been "redeveloped" by the city of Port Chester. As the Institute for Justice puts it:

While Bill Brody was restoring four abandoned buildings in Port Chester, the village issued him permits but never once informed him that in the end it planned to take his buildings, bulldoze them, and hand the land over to a private developer for a Stop & Shop supermarket parking lot. Instead of mailing Bill notice of the imminent loss of his rights, the village published a legal classified ad that didn't mention anything about the fact that property owners would be waiving their rights if they didn't file a lawsuit within 30 days. Now, six years into his legal fight—and after scoring two victories in federal appeals courts overturning various trial court decisions—Bill Brody remains in federal court fighting for his rights and his property.

While a court has already found that Brody's due process rights were violated, Port Chester insists that he's not entitled to any redress because he should have known anyway that his land was targeted for a taking. City officials continue to battle the man in court.

Brody's rights remain up in the air -- but then again, as this case illustrates, so do yours.


Taxed for tinkering

Just how petty and intrusive can the government get? Ask David and Eileen Wetzel of Decatur, Illinois. The environmentally conscious -- and technically innovative -- couple are wrestling with Illinois tax authorities over their efforts to reduce fossil fuel use by running a 1986 Volkswagen Golf on used vegetable oil.

Illinois law apparently allows no exceptions from the fuel tax for people who run their vehicles on the waste fat from fried foods -- and the authorities take their mandate very seriously. When the Illinois Department of Revenue heard about the Weitzels' canola-mobile, they sent a couple of agents around to pay a call.

"They told me I am required to have a license and am obligated to pay a motor fuel tax," David Wetzel recalled. "Mr. May also told me the tax would be retroactive."

Since the initial visit by the agents on Jan. 4, the Wetzels have been involved in a struggle with the Illinois Department of Revenue. The couple, who live on a fixed budget, have been asked to post a $2,500 bond and threatened with felony charges. ....

Eileen Wetzel, a former teaching assistant, calculated that the bond, designed to ensure that their "business" pays its taxes, would cover the next 51 years at their present usage rate.

The taxes are bad enough for a fixed-income couple creatively relying on alternative fuels. The threats of criminal prosecution are even worse.

A couple of weeks later, David Wetzel received another letter from the revenue department, stating that he "must immediately stop operating as a special fuel supplier and receiver until you receive special fuel supplier and receiver licenses."

This threatening letter stated that acting as a supplier and receiver without a license is a Class 3 felony. This class of felonies carries a penalty of up to five years in prison.

Five years in prison for running your car on used fryolator oil? Surely, they're joking!

But they're not. Illinois government officials make no allowances for tinkerers following the great American tradition of invention. To experiment with alternative fuels, as far as the Department of Revenue is concerned, is to be a refinery -- with all the red tape that entails.

Government -- an institution where common sense need not apply.

Hat tip to Radley Balko at The Agitator.


Civil disobedience and public health

Over at FindLaw, Julie Hilden details the process by which a New York Times reporter defied a court order to ferret out health problems linked to the widely used anti-psychotic drug Zyprexa. Zyprexa, produced by Eli Lilly and Co., has been linked to serious weight gain and diabetes among patients who take the drug to control ailments including schizophrenia and bipolar disorder -- a fact the public might not have learned had reporter Alex Berenson stayed on the "right' side of the law.

As befits an officer of the court, Hilden, more in sorrow than in anger, criticizes reporter Alex Berenson and his allies for their tactics in evading the court order -- after she takes Judge Jack Weinstein to task for issuing the order to begin with. Her position is that Berenson should have gone through official channels to obtain the documents instead of setting up a clever ruse to bypass the court.

Well, official channels and a buck will get you a cup of coffee.

It's the information about the ruse, though, that's so interesting.
Here's how the ruse worked: Berenson - with the help of one of the experts in the case, who was bound by the protective order -- convinced an Alaskan attorney to subpoena the documents by intervening in a separate case. (In a civil case, attorneys can typically serve subpoenas themselves, without court approval; if the recipient believes the subpoena is improper, she can legally fight it in court, and not comply until she gets a ruling.) Since the protective order contained an exception for the production of information sought pursuant to a valid subpoena, the documents were produced.

Not only did the ruse participants hide their real identities with the subpoena gambit, using the Alaska attorney as a "beard," they also "gamed" Lilly regarding the timing of the matter - so that Lilly believed it had more time to challenge the documents' production, than it actually did. Ultimately, the documents ended up all over the Times, then all over the Web.
It's a peek inside the complicated and sometimes fascinating world of court procedures -- and the even more fascinating ways those procedures can be gamed by people who know what they're doing.

Just as important, the story is an important lesson, pace Hilden, in why it's important to not take official decrees too seriously. If Berenson had sought these documents the "proper" way, they may, eventually, have been revealed in whole or in part. On the other hand, a little creative guerrilla action definitely brought to light in a timely manner all of the relevant information about important health issues involving a popular drug.

Is defiance of court orders always justified? No -- no more so than is obedience. But a little well-exercised judgment is preferable to blind allegiance to "proper" procedures.


Friday, March 16, 2007

Guru of Ganja's ordeal nears end

The federal government's vendetta against so-called "Guru of Ganja" Ed Rosenthal may finally be over. After first dismissing money-laundering and tax evasion charges against Rosenthal on the grounds that they're the result of vindictive prosecution, U.S. District Court Judge Charles Breyer granted the prosecution's motion for a postponement -- and then urges the government to seriously consider whether it's worth going forward with the retrial.

Rosenthal was convicted in 2003 of growing marijuana by a jury that was not informed that he had been working for the city of Oakland, California, as part of a medical marijuana program. After the fact, five of the jurors held a press conference to denounce the prosecution and call for a new trial.

The government was a little embarrassed.

Judge Breyer sentenced Rosenthal to one day in jail, which he served before his conviction was overturned. The remaining indictment against Rosenthal is the growing charge for which he already served time.

Notably, after the Rosenthal trial, the jurors were publicly asked -- by Matt Gonzalez, president of San Francisco's Board of Supervisors, among others -- why they didn't nullify the law if they suspected that the prosecution was wrongheaded. One of the jurors, Marney Craig, replied that they'd had no idea they had the power to disregard the law, and so had followed the script the government prepared for them.

It's good that Ed Rosenthal's ordeal is finally coming to an end. But he could have been spared much pain and expense if the jury had been aware that it didn't have to participate in a kangaroo court proceeding, and could free him no matter what the prosecutor and the judge said.

And Rosenthal's case was widely publicized and watched. How many other Ed Rosenthals are out there, suffering because jurors don't know their own power?

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Caught in the spiderweb

The grassroots tyranny represented by the spiderweb of local laws and regulations with which we increasingly live is aptly exemplified by the plight of Dale Sanders and his trucking business in Ridgefield, Washington. For years, Sanders ran his business from a rural, six-acre lot, providing jobs for 22 employees. Then, about two years ago, the state decided it wanted his land.

Sanders was "offered" $470,000 for the land -- an amount that wouldn't begin to cover the property's replacement cost. That's because the trucking business was located on land zoned "residential," reducing the offer well below the property's commercial value. And the culture that once treated zoning laws with the casual contempt they so richly deserve eroded in the years that Sanders has been in business; in the spotlight as he was, he now had to find commercial land for his business.

After a year of fruitless searching for a suitable site, Sanders persuaded the state to raise -- almost double -- its offer. With more money in-hand, he was now able to find commercial land to relocate his business. But even the new offer didn't cover the cost; Sanders was left with a hefty mortgage as his compensation for being forced off his own property. Commercial land for trucking is an increasingly rare commodity in Clark County -- not because land is scarce, but because restrictive laws make such uses nearly impossible.

At one point, Sanders said, a state Department of Transportation worker advised him to look for a residential site with "big bushes where nobody will see you."

Of course, Sanders is still in business despite running afoul of eminent domain and zoning laws. That can't be said of everybody on whom the government paints a target.

I guess you can count Dale Sanders lucky.


Expensive scenery

Two years after the news first broke, New Hampshire taxpayers are still struggling with the taxman over the value of their scenic views. It seems that, when calculating property tax bills, state officials add an estimate of the value of the view from the property in question -- a picture-perfect view of the mountains can add a hefty tax premium to even a humble shack.

New Hampshire's David Bischoff built a one room hunting cabin with no power, no water, just an outhouse.

And a "200,000 dollar view," he says.

State officials insist that they've been including views in their tax calculations all along -- they're just now openly including the item on the tax assessment forms. But property owners want to know why their taxes have skyrocketed since the state "came out" about the view tax.

The answer should be obvious: The state wants more money and found a new and intangible asset to tax. A view is worth whatever an official says it is, so it's an open-ended source of income.

Somebody needs to launch a tax revolt.


Thursday, March 15, 2007

Smoldering revolt

In Colorado Springs, bars are in open revolt against the state's smoking ban. Rejecting the government's demand that they snuff out their patron's cigarettes, several taverns are openly advertising their refusal to knuckle under to the state's bullying.

Even though four of the bars have been slapped with fines for their defiance, they show no signs of backing down.

Customers openly smoked at the bar of Murray Street Darts early Friday afternoon, about an hour after a visit from police officers and state liquor inspectors ended with owner Bruce Hicks holding a stack of tickets listing 22 suspected violations of the law, each carrying a $200 fine.

“They are trying to shut us up,” said Hicks, who has tried to organize bar owners to join him in a rebellion against the ban that calls for each to collect $1 from customers who choose to smoke for a “get-out-of-jail” fund. He said he does not plan to change course now.

“Do you think it will make a difference if they give me four or five more?” Hicks asked.

Actually, it might. The state is making noises about pulling the liquor licenses of the dissenters. That should put to rest any doubt that that's what government licensing is all about -- giving the state an extra club with which to beat its opponents. Anything that can be done only with the government's permission becomes a privilege to be revoked by offended officials.

Even so, the bar owners are talking about taking their revolt state-wide.


Shady regard for sunshine

This from Tucson's Arizona Daily Star:

County officials who are responsible for maintaining area emergency-response plans in Arizona aren't willing to share that information with the public even though it's required by federal law. ...

As part of a national audit, journalists and volunteers across the country — including two from the Arizona Daily Star — descended on local emergency-management offices and asked for the Comprehensive Emergency Response Plans for their communities. Officials said "no" more than one-third of the time, and one in five provided only partial reports.

This has become a regular game in Arizona, as well as elsewhere. Every so often, as part of "Sunshine Week," journalists posing as regular members of the population-at-large go around to various local agencies, requesting public records that should, by law, be freely available. They are routinely turned away -- and sometimes interrogated or otherwise intimidated. The press reports the whole embarrassing mess and various government officials promise to change their ways. And then the whole thing happens in exactly the same way the next time around.

Nothing ever changes.

Arizona's Maricopa County apparently has a formal policy to actually discourage requests for records.

In Maricopa County, residents wanting to review hazardous material release and inventory reports would be required to present a driver's license for the office to copy and explain why they want the documents, county emergency officials said.

Warren Leek, director of the Maricopa County Department of Emergency Management, said that if people wanted access to information on facilities outside the vicinity of their home or workplace, or behaved in a manner that raised the staff's suspicions, the staff would not release the document immediately.

Arizona isn't even the worst offender. The article reveals that "[t]he highway patrol in one state even launched an 88-county alert seeking more information about one requester."

As frustrating as it is to see the same game played out year after year, the journalists who go about the thankless task of requesting records and being hounded in return by bureaucrats and cops deserve our thanks. It's eye-opening to see how little respect government officials have forthe public -- or for the laws they routinely disregard while insisting that the rest of us dot every "i" and cross every "t."


Oh yeah, government fails because of its critics

Marie Cocco of the Washington Post Writers Group has come up with a truly bizarre explanation for government foibles, misconduct and general failure to meet even the lowest standards: It's all the fault of us nasty, anti-government types.

A culture of contempt for government infects those who govern. It has shamed America and left the government itself in a shambles.

It is seen in the callous maltreatment of gravely wounded soldiers who’ve returned from Iraq. The scandal of Walter Reed Army Medical Center is compounded by a veterans’ health care system starved of funds needed to accommodate a new generation of the disabled and disfigured — a shortfall that has long been clear to those who use the system and who lobby for veterans, but not to those who blindly protect the Bush administration’s tax cuts above all else. ...

It is the same cavalier incompetence that led to the debacle of the Hurricane Katrina response, its nightmarish aftermath still lived by the uprooted and the abandoned.

Talk about blaming the messenger! Cocco would have us believe that those in power are steadily dismantling and undermining government authority and preventing Leviathan from doing all of the good things it could do if the nay-sayers would just go away and leave the poor beast in peace.

If only it were so.

To make her argument, Cocco has to claim, presumably with a straight face, that President Bush governs "not only with an ideological antipathy toward government but with such disdain for it that his administration refuses to finance its basic functions ..."

This is the same President Bush who put forward the enormous Medicare drug boondoggle and who tells Americans to place complete faith in the government when it comes to surveillance, detentions and whether or not accused terrorists should get anything that resembles a fair trial.

This is the same President Bush who, according to the Cato Institute, "has presided over the largest overall increase in inflation-adjusted federal spending since Lyndon B. Johnson."

Yeah, that President Bush is Marie Cocco's anti-government ideologue-in-chief.

There's another explanation for why government has turned out to be so incompetent, brutal and corrupt: It's the nature of the beast. Government is a ponderous institution that exists primarily to force people to do things they would not do by choice. It is virtually incapable of reacting quickly as bureaucratic gridlock sets agency against agency and priority against priority, and when it finally does move to action, it's a sure bet that somebody will get crushed in the process.

Government may be good at a few things, but those few things revolve rather heavily around two skills: Killing people and spending money. And even there the government manages to get it spectacularly wrong in headline-grabbing ways, raining bombs out of the sky on wedding parties and lining the pockets of well-connected cronies.

We might wish that the halls of government were full of people skeptical about the use of its power (and in the process aggravating the Marie Coccos of the world), but the evidence suggests otherwise.

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I knew you were going to say that

In news of the truly creepy ... The Associate Press reports that German scientists have found a way to read minds.

At a laboratory in Germany, volunteers slide into a donut-shaped MRI machine and perform simple tasks, such as deciding whether to add or subtract two numbers, or choosing which of two buttons to press.

They have no inkling that scientists in the next room are trying to read their minds -- using a brain scan to figure out their intention before it is turned into action.

As the article suggests, the technique isn't exactly "Minority Report" come to life -- yet. And the success rate at predicting which button a subject is going to push is only 71%. That's not exactly a clear view inside our souls.

But the story does suggest some spooky possibilities for the future. What happens as the technique is refined and made more reliable? To what extent will our thoughts and intentions be readable be people with the proper equipment?

At the very least, job interviews and police interrogations promise to become a lot more revealing than has traditionally been the case.

And make no mistake about it -- this technology will be developed. The only questions are: Who will use it? And to what use will it be put?

Oh yeah: And will tinfoil hats really prevent our minds from being read?


Sick decision

There's nothing in the Constitution giving the federal government the power to regulate what people put in their bodies -- it took a full-on constitutional amendment to authorize Prohibition -- but don't tell that to the courts. Yesterday, the the Ninth U.S. Circuit Court of Appeals ruled, in the case of Raich v. Gonzales (full PDF file available here) that the federal government could continue to prosecute medical marijuana patients in California, even though the state has legalized the use of the drug for medicinal purposes.

The plaintiff in the case, Angel Raich, suffers an array of ailments that together make for a painful life. Marijuana has so far proven to be the most effective medication available for treating her illnesses. As the court itself summarized:

Appellant Angel McClary Raich is a Californian who uses marijuana for medical treatment. Raich has been diagnosed with more than ten serious medical conditions, including an inoperable brain tumor, a seizure disorder, life-threatening weight loss, nausea, and several chronic pain disorders. Raich’s doctor, Dr. Frank Henry Lucido, testified that he had explored virtually every legal treatment alternative, and that all were either ineffective or resulted in intolerable side effects. Dr. Lucido provided a list of thirty-five medications that were unworkable because of their side effects.

Marijuana, on the other hand, has proven to be of great medical value for Raich. Raich has been using marijuana as a medication for nearly eight years, every two waking hours of every day. Dr. Lucido states that, for Raich, foregoing marijuana treatment may be fatal.

Raich's home state, California, like many other mostly western states, has opened the door to the cultivation, purchase and use of marijuana by people with a medical need. But the federal government claims that its harsh anti-drug laws supersede those of the states. The courts, so far, have agreed -- mostly because they are bound by Supreme court decisions that find federal authority to regulate purely intrastate dealings in substances like marijuana where the Constitution would seem to differ. The Ninth Circuit has actually been overruled on this matter.

Having earlier had her claims that the federal government has no authority to regulate trade in marijuana that crosses no state lines, Raich argued "claims based on common law necessity, fundamental rights protected
by the Fifth and Ninth Amendments, and rights reserved to the states under the Tenth Amendment. She also argues for the first time that the Controlled Substances Act, by its terms, does not prohibit her from possessing and using marijuana if permitted to do so under state law."

It's these arguments that the Ninth Circuit rejected in its ruling yesterday. The Ninth Circuit found that, although people do have a right to make fundamental choices, such as those involving personal sexual conduct, "the use of medical marijuana has not obtained the degree of recognition today that private sexual conduct had obtained by 2004 in Lawrence." The court went on to say:

We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is "fundamental" and "implicit in the concept of ordered liberty."

Raich's Tenth Amendment claim was dismissed on the grounds that the Supreme Court had already ruled that marijuana regulation falls within the federal government's purview under the Commerce Clause, so it can't violate the Tenth Amendment.

The only glint of hope comes from the fact that the court didn't outright reject Raich's medical necessity claim; it just ruled that she'd have to be arrested before she could raise it, saying, "Though a necessity defense may be available in the context of a criminal prosecution, it does not follow that a court should prospectively enjoin enforcement of a statute." This leaves Angel Raich with the unpalatable prospect of risking prison in order to find out whether she'll be allowed to plead necessity as her reason for using marijuana in defiance of federal law. That's an unpleasant thing to ask of anybody, let alone a woman with debilitating illnesses. It does, however, hold out some promise for other people who happen to run afoul of federal law while using or dealing in marijuana for medical purposes.

Overall, the Raich decision was a blow not just against the medical marijuana movement, but also against federalism. It upholds a line of reasoning that allows the federal government to claim the authority to legislate and regulate anything and everything -- and leaves the states with little ground to be more lenient and experiment with alternative policies.

Medical marijuana might yet win as an issue -- if it can be pushed through Congress (a slim hope). But federalism is every bit as ailing a patient as is Angel Raich.


Wednesday, March 14, 2007

School rivalry

The headline says "Charter Schools Causing Public Schools To Suffer," which, if you take it literally, suggests that roaming gangs of privately managed places of learning are giving their publicly managed cousins wedgies, stealing their lunch money, and otherwise paving the way for years of expensive therapy. The actual story, though, is a bit different -- and a lot more interesting.

What's happening in Pueblo, Colorado, is that students are fleeing the private schools for charter schools, filling the classes and waiting lists -- and taking their funding with them. The waiting list for one school, Cesar Chavez Academy, is in the thousands at an institution that currently teaches 1,100, students.

Just this year the district has lost $1 million and here's why.

"Charter schools get 100% of the per pupil funding for every one of their students", says Lueck.

That leaves less money to go around for public schools.

If we were looking at two competing brands of anything else -- toothpaste, say -- we wouldn't worry about who was "suffering." Instead, we'd be remarking on the success one vendor was having in pleasing customers -- and so winning patrons from the other. That's a market success story -- and an opportunity for the failing vendor to change its ways.

So it is with charter schools in Pueblo, Colorado; they're clearly a brand (or multiple brands) that meets the needs of the customers. Public schools are losing students to the charter schools because they don't satisfy their students and those students' families to the same extent.

But competition doesn't have to meet the death of one brand and the ascendance of another. Smart participants in the market change their ways to win back customers. School district officials say they're "figuring out a way to adjust" to the loss of students to charter schools. If they know what they're doing, they'll start providing better-quality education to compete with the competition.

And then everybody will benefit.


Take your smoking ban and ...

Hawaii has one of the toughest smoking bans in the United States. Bars and restaurants are flat-out forbidden to decide for themselves whether they'll permit their customers to smoke. Maybe the totalitarian nature of the law made it inevitable that a rebellion would brew -- and that many bar owners would simply refuse to comply.

Customers continue to light up in some Hawaii bars and bar owners are getting increasingly bold in their efforts to challenge and overturn Hawaii's three-month-old anti-smoking law.

Bar owners are taking advantage of an only-in-Hawaii bureaucratic complication that has stopped the state Department of Health from citing violators: while the law bans indoor smoking, the administrative rules giving the state the authority to actually ticket anyone are still being drafted.

As elsewhere, many bar owners cite lost business as the spark to their defiance -- despite the insistence of ban advocates that little or no business will be lost. But other business owners get to the core issue: Choice. They say it's their right to decide on policies for their own businesses, and the government shouldn't intrude.

Anti-smoking crusaders often insist that the ban is for the good of bar and restaurant employees, so they don't have to work in a potentially unhealthy environment, but their intended beneficiaries aren't as grateful as they might hope. In fact, many bar workers prefer working in establishments where smokers are welcome to practice their vices -- and to tip accordingly.

Hawaii's anti-smoking law originally was designed to protect employees and the public from exposure to secondhand smoke. But some employees say it should be left to them to decide what type of environment they want to work in.

"It should be up to the worker if they want to work in a nonsmoking bar or a smoking bar," said Michael Ellis, the manager of Pigskins. "Basically, my tips dropped dramatically. Say I was making $200 a night in tips, now that's down to $50."

So hats off to the tobacco rebels. Here's hoping the rebellion continues to smolder.


Real ID revolt

In all the hubbub of the past few days, I almost missed this bit of good news: Idaho lawmakers announced their intention to refuse to comply with federal Real ID standards. That's one more state going on record as rejecting the conversion of its drivers licenses into national ID cards.

The bill states in part that Idaho, "shall enact no legislation nor authorize an appropriation to implement the provisions of the Real ID Act in Idaho, unless such appropriation is used exclusively for the purpose of undertaking a comprehensive analysis of the costs of implementing the Real ID Act or to mount a constitutional challenge to the act by the state Attorney General."

Maine was the first state to formally reject Real ID and Arizona is poised to follow -- the more states that refuse to comply, the sooner the national ID requirement can be buried.

And it's important that many states reject Real ID. If only two or three opt out, those state's residents may be left dangling in the breeze, their drivers licenses no longer accepted as identification at the airport or the Post Office.

So bug your legislators to join the rebellion. It will give them something worthwhile to do for once.

More on Real ID here.


Tuesday, March 13, 2007

Hot air

I'm an agnostic when it comes to climate change. I don't pretend to have the scientific understanding to judge the degree to which the Earth is -- or isn't -- warming, whether that change is historically unusual, and whether human beings are likely to play a strong causative role in that change. I am, however, inherently skeptical of doomsday scenarios like those peddled by the worst global-warming scaremongers -- such as Al Gore. So it's with interest that I read this New York Times article that describes the discomfort with which many scientists greet Gore's "An Inconvenient Truth."

Among the important information in the Times article:

Geologists have documented age upon age of climate swings, and some charge Mr. Gore with ignoring such rhythms.

"Nowhere does Mr. Gore tell his audience that all of the phenomena that he describes fall within the natural range of environmental change on our planet," Robert M. Carter, a marine geologist at James Cook University in Australia, said in a September blog. "Nor does he present any evidence that climate during the 20th century departed discernibly from its historical pattern of constant change."

In October, Dr. Easterbrook made similar points at the geological society meeting in Philadelphia. He hotly disputed Mr. Gore's claim that "our civilization has never experienced any environmental shift remotely similar to this" threatened change.

Nonsense, Dr. Easterbrook told the crowded session. He flashed a slide that showed temperature trends for the past 15,000 years. It highlighted 10 large swings, including the medieval warm period. These shifts, he said, were up to "20 times greater than the warming in the past century."

The degree of uncertainty over climate change and its causes represented in this article is important not just as a matter of scientific curiosity, but also because of the vast and potentially expensive policy proposals that have been put forward as solutions to global warming. With responses ranging from the Kyoto Protocol to banning incandescent light bulbs, climate policy threatens to be deeply intrusive and may well have a severe impact on people's standard of living and the details of their everyday lives.

If we're going to hand vast new powers to government officials and give up some of the benefits of modern industrial civilization, we need to know beyond a shadow of a doubt that it's for a good reason -- and that it's better than the alternatives.

Al Gore may make rousing cinema, but he hasn't had the final word in the discussion.

Power to the jury

Jury nullification is one of those practices that drives judges and prosecutors into hysterical fits, which implicitly suggests that it's a good idea. Nullification has a long an honorable history; jurors have used their power to disregard the law to free abolitionists, moonshiners and draft resisters, among other victims of unjust and oppressive legislation. So it's encouraging that the New Hampshire Legislature is considering House Bill 906, a measure that would require judges in criminal cases to:

instruct the jury of its inherent right to disregard the law and the facts in controversy and to nullify any and all actions they find to be unjust. The court shall also allow the defendant or counsel for the defendant to explain this right of jury nullification to the jury.

A similar bill was rejected by the New Hampshire House in 2001, so the prospects for HB 906 are a bit dim.

I've personally been called for jury duty three times but -- oddly, considering the vast amount of control-freakery on the books these days -- I've never been in a situation where nullification was appropriate. That's unfortunate, because I keep a mental laundry of laws I'd love to nullify. I think I'd make my year if I helped turn loose a defendant who otherwise faced a long stretch in prison for doing nothing more than living his or her life in ways of which a ruling cabal of politicians disapproved.

It's worth remembering that you don't need instruction from the judge, like those proposed in New Hampshire, to exercise your power to nullify laws. It's something we all can, and should, do with or without official sanction.


You mean there's a good presidential candidate?

As cynical as I am about the potential for shrinking government and restoring some measure of liberty through the questionable means of the ballot box, I'll admit to a certain embarrassing thrill from time to time when a promising candidate throws his or her hat in the ring and declares an intention to submit to the reverse-Darwinian weaning process that is electoral politics. So it is with the announcement by Representative Ron Paul of Texas that he's seeking the Republican nomination for president.

Paul, who represents southeastern Texas’ 14th District, announced on C-SPAN’s “Washington Journal” program that he is taking his presidential bid beyond the exploratory phase that he had announced in January. His campaign said it filed paperwork later Monday with the Federal Election Commission (FEC) to establish a presidential campaign fundraising committee.

Rep. Paul is a decent guy -- I met him once during his 1988 run for president as a Libertarian -- and the best friend freedom has in Congress. That means, of course, that he has fuck-all chance of winning the nomination, let-alone the presidency. It's candidacies like his that keep people who should know better coming back for another heartbreaking tilt at the political windmill long after they should have written off the process and torn up their voter registration cards.

But Paul's candidacy creates an excellent opportunity for injecting actual important issues into the presidential race. As an anti-war, pro-civil-liberties Republican, he can influence the debate and force other candidates to address the Iraq fiasco and the erosion of individual rights since 9/11. The war and liberty won't just be partisan donkey vs. elephant issues when he calls for bringing the troops home and repealing the Patriot Act. He can make the other candidates -- Republicans in particular -- stake out positions on these issues and clarify the choices we have going into the 2008 election.

There I go, getting up my hopes again.

Monday, March 12, 2007

Nannies all around

Political lefties have taken a well-deserved pounding in recent days for silly nanny-state legislation that, for instance, bans trans fats, outlaws foie gras, effectively confines smokers to their own homes and even (in California) would forbid the sale of incandescent light bulbs. The urge to rule manifests itself in the most surprisingly petty ways, among some government officials.

But, just in case we needed it, now comes a reminder from Georgia that lawmakers sitting on the right side of the aisle can be intrusive busybodies, too, when the urge hits them -- they just have a different set of issues over which they like to boss people around.

The controversy in Georgia is over Sunday alcohol sales -- whether they should be allowed, that is. After making a brief stand against a smoking ban in the name of individual liberty, Governor Sonny Perdue is jettisoning his minimal libertarian cred to oppose an effort to let voters decide for themselves if they want to keep the state's oppressive and annoying ban in place.

As always, it's a tug of war between people who believe, at least to some extent, that individuals ought to be left free to make their own decisions, and those who insist that their personal preferences should be jammed down the throats of the population at large. Those who would control us come in different flavors, from radical animal rights activists, to health-nazis to religious fanatics, but, in the end, it all boils down to somebody in a uniform writing you a citation because you want to live life your own way.

The urge to rule seems to be especially in vogue these days, so I expect to see more finger-wagging laws coming our way in the near future. Frankly, it's becoming increasingly difficult to find an area of life in which somebody doesn't want to legislate -- whether for our own good, or on behalf of that perennial standard of political bullies everywhere: The children.

Honestly, we have only ourselves to blame -- or our neighbors, anyway. Politicians wouldn't bother with the nanny-statism if they didn't get a big "attaboy" as a reward for their efforts when they stand for reelection.


Public use is no bargain

Most of the discussion of eminent domain over the last couple of years has revolved around land-grabs intended to benefit private parties. Except for such disreputable creatures as urban planners and politicians, everybody seems to be in rare accord that stealing homes and businesses so that private developers can make a mint is a bad idea. Well, bully for us.

But "pure" eminent domain takings -- seizures of land for public use -- also create winners and losers. It's sometimes easy to forget that even the proper use of the law leaves victims strewn in its wake. Such is the situation -- potentially -- of Mike Weit and Debbie Hale in Newmarket, New Hampshire. Weit and Hale wait on the outcome of a town election to learn if town officials will be granted to the money they need to nab 13 acres of prime real estate from the unwilling sellers. The town wants the land to build a $20 million high school close to other schools as part of a common campus.

The town initially offered an insulting $52,000 for the land, later raised to $400,000. Weit and Hale say they won't sell at any price.

"It's not about the money. They could add one more zero to the (offer) and they still wouldn't sell," the couple's attorney, Christopher Boldt, said.

The land has been in the family's hands for four generations and houses gravesites that date back to the Revolutionary War.

Through their attorney, Weit and Hale promise to fight in the courts for as long as it takes. They deserve praise for their resolve in a situation that would cause many people to cash the check and meekly walk away.

And town officials deserve a few choice words. You can reach those sticky-fingered thieves at: (603)659-3617 or through their Website here.


More on Parker v. District of Columbia

After rereading what I wrote, I think my original take on the Parker v. District of Columbia appeals decision (full PDF file available here), which overturned some of the capital city's more-severe gun restrictions on Second Amendment grounds, underplays the importance of the decision. After all, this was the first federal court decision to overturn limits on the right to bear arms because such limits are unconstitutional. That's a big deal.

I continue to believe that the decision was a moderate one. While recognizing that the Second Amendment protects individual rights, the court left the door open for fairly intrusive regulation of those rights, including such controversial and potentially dangerous requirements as gun registration, which many liberty-minded people would never obey. That's a far cry from wiping away the nation's gun control laws, since few jurisdictions impose restrictions as draconian as those enforced in the District of Columbia, which amount to outright abrogations of individual rights.

But while the court's decision was moderate, it stands in stark contrast to a history of immoderate positions taken by government officials, including judges. After decades of bogus claims that the Second Amendment protects only a collective right of the states to organize militias, and that it is nothing more than an archaic artifact, since the National Guard replaced those militias, it's nothing short of revolutionary to see a federal appeals court rule that the Second Amendment means what it says.

The decision is likely to have an effect only in those few places -- D.C., New York City, Chicago, etc. -- that go beyond regulating the right to bear arms to explicitly preventing its exercise. And it will only have an effect in most of those places if its reasoning is adopted by other courts of appeal, or if the Supreme Court endorses the D.C. court's position. In most of the country, laws are less restrictive than the court would allow, and an individual right to bear arms is implicitly assumed by local lawmakers.

In fact, the D.C. decision may strengthen the hand of gun-controllers in an odd way. By taking absolute bans off of the table, the decision may alleviate the concerns of millions of gun owners who have, so far, seen every restriction as a step toward ultimate confiscation. Restrictions are more palatable to many people when they know those restrictions can only go so far and no farther.

It's enlightening, therefore, to see the howls of outrage coming from fans of gun restrictions. For example, a Brady Campaign press release complained: "By disregarding nearly seventy years of U.S. Supreme Court precedent, two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports."

But the only laws taken off the table by the appeals court are explicit bans on firearms. That makes it wonderfully clear that the Brady Campaign isn't about restricting guns so much as it's about completely disarming people -- the law-abiding ones, that is.

If nothing else, the appeals court decision really put everybody's cards on the table.


Boot Bush?

Senator Chuck Hagel is launching his not-quite bid for the presidency in an intriguing way: By suggesting that the sitting president from his own party may be guilty of sufficient crimes against the Constitution to warrant impeachment.

Hagel, an increasingly vocal critic of the Bush administration's handling of the war, called President Bush's plan this year to increase U.S. troops in Iraq "the most dangerous foreign policy blunder in this country since Vietnam." ....

Hagel also told Esquire that Bush appears to believe he's no longer accountable. "You can impeach him, and before this is over, you might see calls for his impeachment. I don't know. It depends how this goes."

Gee, ya think?

Obviously, Hagel is maneuvering for political position. Still, I give him credit for going out on a limb to openly denounce the war and question the legitimacy of the president's actions; that's a stance that even most Democrats have been reluctant to assume.

Do I think Bush will actually be impeached? No -- I don't see the House Democratic leadership having the nerve to try, with memories of the fumbled Clinton impeachment as fresh as they are. Even if they did, Senate Republicans would certainly prevent a conviction -- they wouldn't want it hanging over them going into the '08 election.

But Bush certainly deserves to be taken to task for running roughshod over our liberty, constitutional protections and international peace.

Sunday, March 11, 2007

D.C. just got a little more livable

The folks who would disarm us all and leave us at the mercy of criminals -- and at the mercy of the authorities who are not always much better than the criminals they supposedly oppose -- took a shot to their figurative groins on Friday, March 9. That's the day the United States Court of Appeals for the District of Columbia Circuit ruled that D.C.'s severe restrictions on keeping firearms for self-defense violate the U.S. Constitution, and in the process further reinforced the already strong foundations of the school of thought that holds the Second Amendment to be a guarantee of the individual right to bear arms.

The case of Parker v. District of Columbia (full PDF file available here) was brought by a half-dozen residents of the nation's capital in protest of the city's all-but-explicit ban on owning handguns and its tight controls on long guns that effectively preclude their use for protecting life and property. As the court summarized their argument:

Essentially, the appellants claim a right to possess what they describe as "functional firearms," by which they mean ones that could be "readily accessible to be used effectively when necessary" for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District's authority per se to require the registration of firearms.

The plaintiffs lost their case at the district level, but won a rousing victory on their appeal in a decision that reads like an in-depth summary of modern Second Amendment scholarship. The majority on the appeals court effectively dismantled arguments that the Bill of Rights's most controversial provision protects some sort of a vague "collective right" of the states to maintain militias. They pointed out that attorneys for D.C. were essentially arguing that the Second Amendment was no longer a relevant document.

But because the District reads "a well regulated Militia" to signify only the organized militias of the founding era—institutions that the District implicitly argues are no longer in existence today—invocation of the Second Amendment right is conditioned upon service in a defunct institution. Tellingly, we think, the District did not suggest what sort of law, if any, would violate the Second Amendment today—in fact, at oral argument, appellees' counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District’s position to be that the Second Amendment is a dead letter.

The majority pointed out that, contrary to the District's assertions, the Second Amendment was worded to protect "the people" in the same way as other parts of the Bill of Rights that have long been recognized as shielding individual rights.

In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—"the people." That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”—indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between "the people," on the one hand, and "the states," on the other. The natural reading of "the right of the people" in the Second Amendment would accord with usage elsewhere in the Bill of Rights. ...."

"Every other provision of the Bill of Rights, excepting the Tenth, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity. The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well."

In a nod to the revolutionary origins of the United States, the court's majority acknowledged that the right to bear arms is not just essential, but a fundamental out-growth of the individual right to defend one's self against all threats -- including out-of-control politicians and bureaucrats.

The pre-existing right to keep and bear arms was premised on the commonplace assumption that individuals would use them for these private purposes, in addition to whatever militia service they would be obligated to perform for the state. The premise that private arms would be used for self-defense accords with Blackstone’s observation, which had influenced thinking in the American colonies, that the people’s right to arms was auxiliary to the natural right of self-preservation. ... The right of self preservation, in turn, was understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government."

But what about that opening clause of the Second Amendment, the problematic and notorious "militia" part of the provision? How can that be reconciled with the "right of the people to keep and bear arms"? Well, the court says it's not as confusing as some people would have us believe; in fact, the amendment's construction isn't all that unusual.

It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it. Volokh, supra, at 801-07. We think the Second Amendment was similarly structured. The prefatory language announcing the desirability of a well regulated militia—even bearing in mind the breadth of the concept of a militia—is narrower than the guarantee of an individual right to keep and bear arms. The Amendment does not protect "the right of militiamen to keep and bear arms," but rather "the right of the people."

So the court winds up its Second Amendment analysis thusly:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).

The appeals court goes on to consider the laws that triggered the case, and finds that handguns are just the sort of personal arms intended to enjoy the Second Amendment's protection. As they say, "Once it is determined—as we have done—that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them."

The judges are careful to state that not all restrictions are barred by the Constitution. In fact, "The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment." In particular, they allow for bans on concealed weapons, registration requirements, bans on possession of weapons by felons, and laws against carrying weapons when intoxicated.

But the District of Columbia can't outright ban firearms, says the court; nor can it require that they be kept locked and unloaded, in a state useless for self-defense.

Finally, there is the District's requirement under D.C. Code § 7-2507.02 that a registered firearm be kept "unloaded and disassembled or bound by trigger lock or similar device, unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes within the District of Columbia.".... Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold
it unconstitutional.

The majority's analysis is impressive, extensive and rather moderate in its conclusions. While fans of gun restrictions are already getting their panties in a bunch over the decision, the court, in the process of voiding D.C.'s draconian laws and recognizing the right to bear arms as an individual right protected by the second Amendment, left the door open for restrictions more extensive than those enforced in most of the United States.

Specifically, the court allowed for registration -- a requirement strongly opposed by liberty-minded people as a dangerous tool to leave in the hands of government officials. Many gun rights activists fear that registration records could be used by the government to persecute gun owners and to round up firearms at some future date.

So the court's decision is remarkable primarily for recognizing what should be obvious to all observers: That the Second Amendment protects individuals, and its guarantees have to be taken seriously by all jurisdictions in the country.

That really is a moderate result, but one likely to go too far for one of the varieties of control freaks that plague our republic.

Which is one reason why this issue is unlikely to be finally settled as a legal matter until the U.S. Supreme Court weighs in on the subject. But it's nice to see things go the right way at the appeals level.

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Friday, March 9, 2007

Watching the detectives

In contrast to the FBI's seemingly harmless fumbling of the library provision -- Section 215 -- of the Patriot Act, is its serious misuse of "national security letters." The Patriot Act expanded the power of the FBI to issue these directives which, according to a report, also issued today, can be used "to obtain information from third parties, such as telephone companies, financial institutions, Internet service providers, and consumer credit agencies. In these letters, the FBI can direct third parties to to provide customer account information and transactional records, such as telephone toll billing records." Before the Patriot Act, rather open-ended national security letters could be used only against foreign powers or agents of foreign powers; under the new law, the letters can be issues so long as the words "terrorism" or "espionage" are invoked.

If the FBI's implementation of Section 215 was charmingly incompetent, its use of national security letters indicates that the bureau can be both efficient and abusive when it so chooses. "A Review of the Federal Bureau of Investigation’s Use of National Security Letters" points out that the use of these letters soared from 8,500 in 2000 (before the Patriot Act) to 39,000 in 2003, 56,000 in 2004, and 47,000 in 2005. Each letter may contain more than one request for information, so even those figures understate the matter.

Even worse, the FBI underreports its use of national security letters. Says the report:
Overall, we found approximately 17 percent more national security letters and 22 percent more national security letter requests in the case files we examined in four field offices than were recorded in the OGC database.
The report also found numerous instances in which the letters were recorded as being used against non-Americans, when they were actually targeted at U.S. citizens.

That's especially problematic since the FBI apparently does a bad job of safeguarding the information it gathers with national security letters. The data is routinely shared with United States Attorneys' offices and, even worse, is stored in databases where it is accessible to FBI personnel and Joint Terrorism Task Force Members who have no connection to the cases in question.

At least as worrisome are the overt abuses of the national security letters.
The FBI identified 26 possible violations involving the use of national security letter authorities from 2003 through 2005, of which 19 were reported to the IOB. These 19 involved the issuance of NSLs without proper authorization, improper requests under the statutes cited in the national security letters, and unauthorized collection of telephone or internet e-mail transactional records, including records containing data beyond the time period requested in the national security letters.
Twenty-six incidents out of tens of thousands of uses of national security letters sounds like minimal abuses of the system -- and they would be, if they were a full summation of the problem. But those are only the abuses the FBI found itself -- the report found many more.
[I]n addition to the violations reported by the FBI, we reviewed documents relating to national security letters in a sample of FBI investigative files in four FBI field offices. In our review of 77 FBI investigative files, we found that 17 of these files -- 22 percent -- contained one or more violations relating to national security letters that were not identified by the FBI. ... [W]e believe that a significant number of NSL-related possible violations are not being identified or reported by the FBI.
The report goes on to document "many instances" in which the FBI circumvented even the skeletal requirements for obtaining national security letters in order to obtain billing records and subscriber information from telephone companies. The circumventions took place in non-emergency situations and often involved false claims by the FBI that the bureau had requested subpoenas for the information it sought.

Overall, "A Review of the Federal Bureau of Investigation’s Use of National Security Letters" goes a long way toward dispelling its sister report's image of the FBI as an agency mired in harmless incompetence. Instead, it portrays the bureau as deceitful and abusive in its use of national security letters, and unwilling to abide by even the minimal safeguards that adhere to the use of those letters.

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Federal foul-up

The federal Justice Department's Office of the Inspector General slams the FBI for its use of part of the Patriot Act in a report released just today. The provision at the heart of the report is Section 215, often called the "library provision" for its potential for secretly digging up the reading habits of library patrons with relatively little oversight. The most interesting aspect of this report is not the extent to which J. Edgar's people tread on anybody's civil liberties, but instead the degree to which they managed to turn implementation of Section 215 into a cock-up worthy of the Keystone Kops.

According to "A Review of the Federal Bureau of Investigation’s Use of Section 215 Orders for Business Records", Section 215 is a provision that "allows the FBI to seek orders from the Foreign Intelligence Surveillance Court for 'any tangible things,' including books, records, and other items from any business, organization or entity provided the item or items are for an authorized investigation to protect against international terrorism or clandestine intelligence activities."

Overall, Section 215 is supposed to provide a streamlined process, with a lower evidentiary threshold, for the FBI to go digging for information not just about people under investigation, but also about people connected with the targets of investigation.

It hasn't worked out that way. The report details delay after delay, usually due to departmental in-fighting or bureaucratic hassles. Two abuses of the 215 process were uncovered, but they are attributed to incompetence rather than malice. The FBI never even developed formal procedures for implementing Section 215 requests, leaving the provision to be handles on an ad hoc basis. Basically, the FBI was handed a powerful, potentially dangerous tool -- and fumbled the thing.

We uncovered no evidence of harm to national security in any specific cases caused by the delay in obtaining Section 215 orders or by the FBI's inability to obtain information that was requested in Section 215 requests. However, we found that the multi-layered review process, combined with the other impediments described above, resulted in long delays in obtaining Section 215 orders. As a result, the FBI did not receive approval to obtain the Section 215 information until many months after the original request was made.

The result of all of that fumbling and bumbling?

[T]he evidence showed no instance where the information obtained from a Section 215 order resulted in a major case development, such as the disruption of a terrorist plot.

I take it as encouraging that a government agency can be handed such secretive power and not turn it into a significant civil liberties crisis. On the other hand, we were spared not by the FBI's benign intent, but by the bureau's sheer inability to overcome its own bureaucratic inertia.

Maybe, at the end of the day, that's our best defense against government overreach.

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Fair trials, anybody?

Congressional Democrats may be poised to take a tentative step toward doing what they were elected to do: Rein in the Bush administration's excesses. Donkey party members of the House want to shut down Gitmo and bring the detainees to military brigs in the United States -- where they'll be somewhat more under the watchful eye of human rights organization. They'll also have have a better shot at access to the protections of the American legal system.

"It sets us back in the war on terrorism to be maintaining Guantanamo," said Rep. Jim Moran (D-Va.), who's heading an investigation of the facility for the House Defense Appropriations Subcommittee.

"It will enhance our reputation to close it down and to apply our system of justice to all of these detainees," he added.

The move comes as a welcome one for anybody who cares about the rights of the accused -- and about America's reputation in the world at large. But I wouldn't hold my breath quite yet in anticipation of fair trials for the detainees. The shut-down of Gitmo is slated for the next defense appropriations bill -- and the new fiscal year doesn't begin until October 1.

So the Democrats aren't exactly off to a rousing start in terms of restoring civil liberties and curbing President Bush's military adventures. Maybe they'll have something to offer in time for the 2008 election.

The ACLU sounds off on the legal and moral problems with detention here.


Thursday, March 8, 2007

Real ID dying on the vine

I've said it before and I'll say it again: I'm proud of Arizona's gut-level libertarian impulses. The latest evidence that such impulses are alive and kicking comes courtesy of the state Senate's slap at the federal Real ID mandate.

The Arizona Senate has voted to prohibit Arizona from implementing a federal law requiring states to comply with security guidelines for driver licenses.

The Senate's vote today sends the bill to the state House.The deadline for states to comply with the Federal Real I-D Act is May of next year, though states can get extensions through the end of 2009.Supporters of the Arizona bill have criticized the federal mandate, saying it's unfunded and would effectively create a national identification card.

I'd like to believe that this is the final word on this matter -- at least for Arizona -- but it's not. The federal mandate has sharp teeth: Drivers licenses that don't conform to the national standard won't be accepted as identification by federal agencies. That could well include the attitude-deficient TSA goons who decide whether or not you're allowed to board your flight at the airport. That means there are fights ahead and potential consequences for residents of states that resist.

But, the Arizona vote -- assuming it's echoed in the House -- follows on a similar move by Maine. And the Arizona vote was spearheaded by Republicans -- members of the same party as the Bush administration, which has been pushing the Real ID standard. This just may be a trend.


Maybe a twister will take care of the problem

The Federal Emergency Management Agency (FEMA) may have been a day late in its response to Hurricane Katrina, but nobody can argue that it was a dollar short. The Washington Post reports that (shock! surprise!) the Federal Emergence Management Agency managed to fritter away a fortune while mismanaging care for the refugees from the natural disaster.

Stored in such places as the vacant land near an airfield in Hope, Ark., an industrial park in Cumberland, Md., and a warehouse in Edison, N.J., are the results of one of the federal government's costliest stumbles in the aftermath of Hurricane Katrina -- tens of thousands of empty trailers.

The Federal Emergency Management Agency hurriedly bought 145,000 trailers and mobile homes just before and after Katrina hit, spending $2.7 billion largely through no-bid contracts. Now, it is selling off as many as 41,000 of the homes, netting, so far, about 40 cents on each dollar spent by taxpayers.

Thousands of the mobile homes have never even been used -- not even by the homeless survivors of more-recent storms, who could use a roof over their heads. That's because the regions hit by the storms have not been declared federal disaster areas, precluding FEMA's involvement.

Now FEMA stands ready to unload tens of thousands of mobile homes all at once, inevitable depressing prices for new trailers and potentially wiping out major private-enterprise players in the industry.

Still, the number of homes the agency can sell has industry groups worried about a market glut. FEMA's potential for-sale inventory is nearly equivalent to 30 percent of the recreational-vehicle industry's U.S. sales in 2006.

Do I really need to point out that when the federal government pisses away billions of dollars, winds up failing to help those it's supposed to serve and ends up poised to crush an entire industry as a side effect, it just may not be the agency we want to rely on in the clutch?

Check out my thoughts on who should and shouldn't be responding to disasters in this 2005 column for The Las Vegas Review-Journal.


Arizona two-step

As a former New Yorker, I'm all too familiar with silly restrictions on dancing. For a city with a wide-open reputation, the Big Apple has a surprisingly Footloose-like attitude toward shuffling your feet to the beat. Bars and clubs need a hard-to-get "cabaret" license or they risk hefty fines for letting their patrons sway to the music.

But until now, I thought strict regulation of dancing was an affliction peculiar to New York.

Now comes word from Pinal County, Arizona, that the jitterbug cops are loose and sniffing out fun in the Grand Canyon state. The case revolves around the San Tan Flat steakhouse, which has an outdoor patio where live music is hosted, which sometimes inspires people to get up and dance.

Bell, 56, is in the middle of a lengthy battle with Pinal County that began shortly after he opened his Western-theme steakhouse and saloon in late 2005. He challenged the county when it said he was violating zoning ordinances by allowing his customers to dance when a one-man band played on an outdoor stage.

Bell has argued repeatedly that he is not the dance police and has gone so far as to place "no dancing" signs at his restaurant.

County officials, during a two-day zoning hearing in January, said they were not aware that Bell planned to host live music on an outdoor stage, despite seeing drawings of an outdoor stage on plans for the restaurant. The county has said Bell is operating a dance hall by allowing his patrons to dance outdoors.

Fortunately for owner Dale Bell, who faces a $5,000-per-day fine if his patrons dance, the Institute for Justice has stepped in to take his case. IJ has made an excellent name for itself in Arizona ever since it beat back the city of Mesa in a battle over the use of eminent domain to "redevelop" a thriving brake shop.

Let's hope Bell and his allies at the Institute make county officials face the music.


Gettin' hitched

Getting government out of the marriage business has long been a libertarian idea. Unless you hold the state in much higher regard than it deserves, there's no reason to have government officials endorsing some relationships, and denying their sanction to others. Really, marriage, in my opinion, should be a personal matter between the people getting married, the people with whom they want to celebrate, and the representatives of their faiths -- or lack thereof.

That would certainly bypass all of the debate over gay marriage, polygamy, and whatever other variations people might come up with out of their fertile imaginations.

All of the legal and financial accretia that make civil marriage so "necessary" in some people's eyes could be handled by contract.

Now it looks like the idea of getting government out of the marriage business is gaining some mainstream momentum. Seattle Times staff columnist Danny Westneat raised the idea in a recent column.

I have long thought the solution to the marriage fight is to get government out of the marriage business. Let churches marry — or refuse to marry — whomever they choose. Have the state support families through civil contracts. For the most part, families are what they define themselves to be.

That's exactly my view, and it's a rare thing for me to be able to say that about anything written by a newspaper staffer.

I don't expect government to leave marriage alone as a private matter anytime soon, but it's nice to see the idea in play.

Where there's smoke, there's ire

I'm lucky enough to live near the beautiful red-rock country around Sedona, Arizona, and even luckier to not live in Sedona itself. It's not that Sedona doesn't have much to offer -- in addition to the film-friendly natural wonders of the area, the town has a thriving arts scene, including a jazz festival and a film festival, and a very colorful New-Agey culture. Unfortunately, though, like a lot of wealthy, flamboyantly hippy-dippy towns, Sedona's politics reek more strongly of Joseph Stalin than of Abbie Hoffman. Increasingly, Sedona's city government is binding its residents in a web of petty rules and regulations.

One that gets my goat in particular is a law passed a couple of years ago banning the installation of new wood-burning fireplaces in local homes. The claim was that fireplaces and woodstoves are unnecessarily polluting the rather pristine rural air, so must be outlawed -- with existing stoves, such as those owned by the city council members, grandfathered in, of course.

Not only did the law strike me as intrusive, but also as destructive and elitist. In my own home, I rely pretty heavily on a woodburning stove for heat, as do many of my neighbors. It's an especially attractive alternative to paying skyrocketing bills for propane. The Sedona law was based on the premise that fireplaces and wood-burning stoves are purely cosmetic, and optional; it's the sort of assumption that only the well-heeled busybodies who get elected to Sedona's city council could make.

Now, I know for a fact that not everybody is obeying Sedona's law. It's not that hard to install a wood-burning stove yourself -- or with the assistance of a trustworthy handyman -- and more than a few people are doing just that. But that sort of quiet defiance, as commendable as it is, isn't enough to head off the government busybodies. It seems to me that something more direct is in order.

I got a little inspiration from an incident in King County, Washington, where dozens of rural landowners dumped a load of noxious weeds on the doorstep of County Executive Ron Sims. Infuriated by controversial new land-use restrictions that have weeds sprouting where business and home-expansion dreams once grew, protesters launched a symbolic attack on the home of one of the law's prominent boosters.

Sedona is a small town, and people know where their rulers live should they choose to send a message home. It wouldn't be too hard to drive up to an empty city councilmember's house, climb to the roof like you belonged there, and dump a load of quick-setting concrete down the chimney. It's peaceful and it's as appropriate as the King County action. It would also help city officials to live by the laws they impose on their long-suffering subjects.

And that's something few politicians want to do.


Wednesday, March 7, 2007

Fat chance

It's just a thought, but with all of this fuss over the use of trans fats and with Philadelphia and New York City actually banning the tasty stuff, it may be time to go back to basics. That's right: Animal fat. It's hard to get tastier than butter and lard -- in fact, they were the preferred fats for a lot of uses before trans fats were adopted as a "healthier" alternative.

Now, butter and lard aren't actually "healthy" in any absolute sense -- nothing is for that matter. In fact, they contain small amounts of trans fats themselves. But they are naturally occurring fats, which should help to insulate them against the sort of attacks leveled at artificially created trans fats.

So, back to the basics, I say. Bring back butter and lard.


Opting out of silly laws

The Sunriver Service District says it was the Sunriver Owners Association's idea, and the HOA responds that the District is being coy, but whoever came up with the scheme, it's brilliant. In this little community south of Bend, Oregon, where the roads are privately owned, police are not allowed to enforce minor traffic laws.

Sgt. P.J. Beaty watches people in this upscale development breaking traffic laws, and sees plenty of them. But he can't pull them over. A man swerved head-on into Beaty's lane, and then back out again and Beaty couldn't lay a glove on him.

For years, he and the department's 10 other sworn officers could have pulled him over.

But the Sunriver Service District, which governs police and fire departments, voted in February to tell officers to make Sunriver's roads, which are private but open to the public, exempt from minor vehicle infractions.

The authorities are full of warnings about what might happen with the law's hands tied as they are, but, so far, little if any harm has resulted.

This would be a nice experiment to try in more communities around the country.


It's a start

Americans aren't bending over and taking it quite as enthusiastically as the Internal Revenue Service would like. According to the Associated Press:

An IRS study last year concluded that the tax gap in 2001 was $345 billion. Of that, $197 billion came from underreporting on individual income tax returns and $88 billion from underreporting by corporations and the self-employed. The rest came from those not filing or not paying the proper amount.

That gap narrowed to $290 billion after enforcement efforts and late payments were factored in. Still, that left the government collecting only 86 percent of the more than $2 trillion it was owed in 2001.

Eighty-six percent compliance? That's still too high. If we're going to starve the beast, Americans are going to have to get more creative about denying a share of their hard-earned money to the sticky-fingered thieves in D.C. and to their counterparts in the various state capitals.

As encouraging as the news story is, it does contain a bit of nonsense.

That translated into a "surtax" of about $2,680 per household in 2001, the national taxpayer advocate said at a recent hearing of the House Budget Committee. "That is an extraordinary burden to ask our nation's compliant taxpayers to bear every year," Nina E. Olson said.

No it isn't. American taxpayers are very definitely not paying more money to the government because of non-compliance. The government taxes as much as it thinks it can get away with; non-compliance simply lowers the take. Were the IRS to magically develop a means to enforce universal compliance, the tax rate wouldn't drop by a penny -- the government would just have more to spend.

Why is it a good thing that the government isn't getting as much tax money as it wants? It's a positive development for two reasons.

For one thing, it's always good to not be mugged. Money kept in your pocket and not handed over to the government is money that you can save, spend and invest as you wish; it won't get wasted on programs that you wouldn't choose to fund on your own.

Denying taxes to the government is also good because, as P.J. O'Rourke wrote, "Giving money and power to government is like giving whiskey and car keys to teenage boys." The government makes mischief -- often nasty, violent mischief. Every dollar denied to the beast is a dollar that won't be spent to kick in doors, ensnare businesses in red tape or spy on Americans going about their daily lives.

But don't expect the government to take non-compliance lying down. Politicians and bureaucrats don't like defiance. It makes them itchy. And then they start looking for ways to squeeze the taxpayers even harder.

In Congress, a bipartisan group of lawmakers is pushing one of the administration's proposals: requiring brokers and mutual fund companies to track and report to taxpayers and the IRS investment information related to capital gains taxes. That would make it easier for taxpayers fill out their returns and help close an annual gap in capital gains taxes estimated at $17 billion.

And so the leviathan that compliant taxpayers enable becomes just a bit more intrusive and oppressive.

So what do you say? How do we get that compliance rate lower?


Those evil guns

Is it the '90s again?

In a blast from the Clintonian past, Illinois legislators are considering a bill that would ban so-called "semi-automatic assault weapons." Bans on this category of firearm have always been problematic for the simple reason that there's no such thing. There are "assault rifles" which are fully automatic and already tightly regulated in the U.S., and there are semi-automatic rifles which include a wide range of popular hunting and target weapons that are tough to sell as targets of a ban. There's no such thing, however, as a "semi-automatic assault weapon."

Senate President Emil Jones, the sponsor of this bill, gets around the annoying details by defining the category to consist of "any of the firearms or types, replicas, or duplicates in any caliber of the firearms, known as" a listing of rifle makes and models that are largely semi-automatic versions of military-style rifles and shotguns. The list includes "Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs" (presumable the word "duplicates" would cover the dozens of other makers of the AK-47 and AK-74), Uzi and Galil, FN/FAL and a laundry list of other guns.

Interestingly, the word "replicas" would seem to ban non-functioning versions of the same firearms, making the possession of certain toys subject to legal sanction.

The bill then goes on to ban high-capacity magazines, some pistols (I think the broom-handle Mauser gets banned, if I read the law right) and .50 caliber rifles.

The bill exempts police officers from its wrath -- presumably because they're so trustworthy. We can't have the police subject to the same laws as the public at large, of course.

Basically, it's an early Christmas wish-list for gun-haters, including all of their fears in one vomited-forth piece of legislation. It's the sort of nonsense we so over and over again during the 1990s, all condensed into one nasty bit of authoritarianism.

And there's nothing in the bill that would seem to offer even the faintest hope of reducing crime. In fact, by criminalizing many gun owners, it's likely to increase crime -- and the alienation felt by many residents of Illinois toward the government.

I sincerely hope that gun owners will decline to obey this bit of nonsense if it happens to pass. In the meantime, drop a few pointed thoughts to Senator Jones at: