Constant Conservative

From the annals of how stupid can we be comes the following story:

Admitted thieves are going free, while an elderly Wheat Ridge man is facing the possibility of spending the rest of his life behind bars, all, he says, for trying to defend his property and his life.

82-year-old Robert Wallace said in February that he looked out his window and saw two men hooking his flatbed trailer up to their pickup. He yelled at them to stop, but they sped away, stealing his trailer. He told police he fired two shots at the pickup.

Minutes later, police say 32-year-old Damacio Torres dropped 28-year-old Alvaro Cardona off at a hospital emergency room with a gunshot wound to the face.

Go read the whole story, which notes that the duo came close to running over the owner of the trailer and that they are probably not here as citizens (or with green cards).

Someday we’ll figure out just why it is that the federal government does not like to enforce existing federal immigration laws. Meanwhile, Ace makes very good sense:

Yes, a state law cannot conflict with a federal law in an area of federal jurisdiction, but can a state policy conflict with a federal policy if both state the same law?

In other words — Arizona’s law is the same as the feds’. The big difference is not in the law, but in the policy: the feds have a policy of non- or minimal enforcement; they are angry at Arizona not because Arizona has passed fresh law but because Arizona intends a different policy — a policy of actual enforcement.

So yes, federal law trumps state law, but does mere federal policy trump state policy, especially when federal policy is in fact at odds with its own stated law?

If policy does trump the law, then what point is there to having a law to begin with? After all, every administration can simply define its own policies and not worry about the pesky laws at all.

Oh, wait a minute . . . .

There is nothing wrong with maximizing one’s income, is there? Well, there is legal and then there is moral:

Greg Royer ranks among the state’s top-paid employees, with a salary of $304,000. But that’s just part of his income. For nearly seven years, he’s also collected an annual pension of $105,000.

Royer, the vice president for business and finance at Washington State University, tops a long list of college administrative staff members who’ve been able to boost their incomes by up to 60 percent by exploiting a loophole in state retirement laws.

A Seattle Times investigation has found that at least 40 university or community-college employees retired and were rehired within weeks, often returning to the same job without the position ever being advertised. That has allowed them to double dip by collecting both a salary and a pension.

The pattern of quickie retirements has continued despite the Legislature’s efforts to crack down.

A Times analysis of state payroll and retirement records shows that, as of the beginning of this year, about 2,000 people were collecting both wages and a pension from the state. In about two-thirds of those cases, however, retirees had returned to a state job on a part-time or on-call basis.

The context is the state of Washington and a very poor fiscal situation–including within the university system. Many people have been laid off in the last few years because of shrinking education dollars.

Here’s the response of one of the people who benefits:

In an interview, Tapfer, 58, who collects a salary of $70,000 and a pension of $36,000, said he had “no inkling” that he might get rehired at the time he left WSU.

“I’m an ordinary guy who is working for a living. I put in a lot of years, and you’re making out like I’m doing something wrong,” he said. “If you want to criticize the system, fine, but don’t criticize the individual.”

Retired and rehired at 58. Ordinary guy. Don’t criticize the individual. Right. Once again, something being legal does not make it moral.

Are these people taking advantage of a broken system? It would appear so. And to all who would say something along the lines of “they’re just looking out for themselves,” allow me to remind you that they are state employees who are to be serving the educational needs of the state’s residents, not milking the system.

[M]ost state employees can return to work for only up to 40 percent of the hours they worked as full-timers — or lose some of their pension benefits. But thanks to a glaring loophole, many higher-education employees have been able to skirt the rules.

It’s because colleges and universities typically have two parallel retirement systems — the state system and a separate system administered by the institution. Administrative employees can often retire under the state system and return to work under the university plan.

By switching plans, the workers put themselves beyond the reach of state limitations on double dipping. In the eyes of the state, it’s as if the workers returned to a job in the private sector. In reality, the only thing that has changed is some paperwork.

If they were getting payout from a personal IRA or 401k, then that would be one thing. Such money would, after all, be the direct result of their own investments. But that does not seem to be the case:

[A]lmost all employees enrolled in the system stand to gain far more back in pension payouts than they ever contribute through paycheck deductions. Most people will receive back their lifetime contributions and then some within three years of retirement, according to a Times analysis.

In closing, let’s hear a final argument from one of these fine folks:

“I had served 30 years and consequently was entitled to the pension,” he said. “And as far as the college was concerned, they needed a president.”

The man was entitled, so be quiet.

Wickedness (to use the old-fashioned, but entirely appropriate term) lies in people’s hearts–not in their gun cabinets. Nevertheless, the United Nations has determined that it will stop world conflicts by doing away with “small arms.” Apparently, everyone will get a stipend to work out and bulk up his/her biceps and triceps . . . oh, sorry, wrong arms. No, the United Nations wants to stop everyone (in certain categories), everywhere from access to firearms. John Lott gets it right:

According to the U.N., guns used in armed conflicts cause 300,000 deaths worldwide every year. Their proposed solution is a simple one. Keep rebels from getting guns by requiring that countries “prevent, combat and eradicate” what those countries define as “the illicit trade in small arms.”

[...]

Many countries already ban private gun ownership. Rwanda and Sierra Leone are two notable examples. Yet, with more than a million people hacked to death over the last decade-and-a-half, were their citizens better off without guns?

Hmm. Almost as though guns are not the real problem here.

[T]he treaty is a backdoor way to get more gun control laws adopted in the US. “After the treaty is approved and it comes into force, you will find out that it has this implication or that implication and it requires the Congress to adopt some measure that restricts ownership of firearms,” Former UN Ambassador John Bolton warns. “The [Obama] administration knows it cannot obtain this kind of legislation purely in a domestic context. … They will use an international agreement as an excuse to get domestically what they couldn’t otherwise.”

In addition, to keep track of guns, licensing and registration will be pushed, despite their complete failure to trace crime guns in the places in the US that have tried it or Canada.

“Hey, Junior. I know that the tractor’s out of gas, but would you crank it one more time? It might just start.”

The Small Arms Treaty is just a back door way for the Obama administration trying to force through gun control regulations.

For anyone to think otherwise is to ignore the “I don’t care how, but we need to get this done” approach which the Obama administration continues to take with just about every contentious policy issue at hand.

Crime rates in Chicago are attracting the attention of its political leadership. However, at least one of those leaders is going about matters with a remarkable short-sightedness:

If you needed another example of public officials woefully unaware of restraints on government power, look no further than the city of Chicago. The Austin Weekly News reported on April 28th that State Representative LaShawn Ford (D) is calling for the deployment of National Guard units on the streets of the Windy City to deal with escalating gang violence. Ford wants the military to augment the 13,400 strong Chicago Police Force, which is already the second largest in the nation.

Ford, along with fellow State Rep. John Fritchey (D), is encouraging Illinois Governor Pat Quinn to work with Chicago Mayor Richard M. Daley to militarize the streets of the nation’s third-largest city. In a press release, Ford reasoned that local law enforcement should be backed up with armed forces because “we cannot accept it as a normal situation that someone is shot and killed in Chicago almost every day, with the West Side citizens whom I represent being affected at a much greater rate.”

The article goes on to say a number of things, but one of them in particular stood out for me, a quote from the National Black Police Association:

A police department’s officers are trained to enable Constitutional due process safeguards. Armies are not designed with this purpose – armies are trained to kill.

At the site Of Arms and Law, David Hardy makes the following observation:

[A]t the same time that we are militarizing police, we are orienting the military toward civilian police standards. The objectives are increasingly toward arresting suspects, as opposed to destroying the enemy.

Those who see benefit in using a military force to perform policing functions in Chicago–or anywhere else in the country–are missing the point and addressing the symptoms of underlying issues.  They show nearly as great an  ignorance as those physicians of time gone by who would bleed patients suffering from physical maladies.

Good intentions do not obviate the wrongness of either approach. If Chicago would like to address its burgeoning crime rate, it would do well to admit that personal responsibility (and allowing homeowners and residents to protect themselves) is the key.

I am a firm believer that the best defense is a good offense. With that is my regular and continuing support for our armed forces–particularly those in current hot areas such as Iraq and Afghanistan.

It is therefore with some concern that I read the following in the Army Times:

Beginning Oct. 1 for 12 months, the 1st BCT will be under the day-to-day control of U.S. Army North, the Army service component of Northern Command, as an on-call federal response force for natural or manmade emergencies and disasters, including terrorist attacks.

It is not the first time an active-duty unit has been tapped to help at home. In August 2005, for example, when Hurricane Katrina unleashed hell in Mississippi and Louisiana, several active-duty units were pulled from various posts and mobilized to those areas.

But this new mission marks the first time an active unit has been given a dedicated assignment to NorthCom, a joint command established in 2002 to provide command and control for federal homeland defense efforts and coordinate defense support of civil authorities.

All of those other federal agencies which are to take care of disasters–not to mention all of the state agencies including the National Guards and we need a group of  combat-trained soldiers (whose group has spend half of the last 5 years in and out of battles in Iraq) to deploy on American soil?

They may be called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios such as massive poisoning and chaos in response to a chemical, biological, radiological, nuclear or high-yield explosive, or CBRNE, attack.

Training for homeland scenarios has already begun at Fort Stewart and includes specialty tasks such as knowing how to use the “jaws of life” to extract a person from a mangled vehicle; extra medical training for a CBRNE incident; and working with U.S. Forestry Service experts on how to go in with chainsaws and cut and clear trees to clear a road or area.

The 1st BCT’s soldiers also will learn how to use “the first ever nonlethal package that the Army has fielded,” 1st BCT commander Col. Roger Cloutier said, referring to crowd and traffic control equipment and nonlethal weapons designed to subdue unruly or dangerous individuals without killing them.

The package is for use only in war-zone operations, not for any domestic purpose.

Glad to have the clarification of that last sentence, but still . . . “help with civil unrest”? Why would soldiers be trained in something offensive which they will not use? Does the army not know that as citizens we are glad we do not live in a state where members of the military are simply an extension of law enforcement?

In an article titled “The Myth of Posse Comitatus” written almost 10 years ago, a member of JAG says the following:

The erosion of the Posse Comitatus Act through Congressional legislation and executive policy has left a hollow shell in place of a law that formerly was a real limitation on the military’s role in civilian law enforcement and security issues. The plethora of constitutional and statutory exceptions to the act provides the executive branch with a menu of options under which it can justify the use of military forces to combat domestic terrorism. Whether an act of terrorism is classified as a civil disturbance under 10 U.S.C., 331–334, or whether the president relies upon constitutional power to preserve federal functions, it is difficult to think of a domestic terrorism scenario of sizable scale under which the use of the military could not be lawfully justified in view of the act’s erosion. The act is no longer a realistic bar to direct military involvement in counterterrorism planning and operations. It is a low legal hurdle that can be easily cleared through invocation of the appropriate legal justification, either before or after the fact.

In other words, the Federal government may use whatever justification it chooses to deploy troops on American soil without becoming concerned with legal matters. It would appear that this law has been ignored or circumvented to the place where it (like several portions of the US Constitution) is little more than history–and a bothersome history at that.

Much has been written with reference to the Slaughter solution for the current health care legislation impasse. However, I’ve not seen a clearer argument against this solution than the following from Michael W. McConnell. I’m linking you to the write up in PowerLine because the article is behind the paywall at the WSJ.

Here is the key piece:

[]The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.[]

Imagine that. The Constitution was drafted to prevent trickery from occurring at the very highest levels of government. Here is hoping and praying that a sufficient number of legislators will understand that what they are attempting via the Slaughter solution is patently un-Constitutional.

Why can’t our legislators balance the budget instead of worrying about whether or not folks have prescriptions for their contact lenses?

People who want contact lenses to make their brown eyes blue might soon need a prescription in South Dakota.

[...]

Supporters say contact lenses should only be worn by people who have obtained a prescription from optometrists and ophthalmologists. They say some people in South Dakota have developed eye infections after buying nonprescription lenses to enhance or change the color of their eyes.

How is this any of South Dakota’s business? What’s next, getting prescriptions before having body piercings or tattoos? Please. If one does not know that putting foreign objects into one’s eyes or skin or elsewhere is potentially dangerous, then perhaps one should be concerned that one’s parents haven’t been doing their job.

I think that this bill is little more than an attempt by segment of the eye business to use the state to cut down on competition.

Good news, in the opinion of most of us who are the proprietors of sites such as this one. Of course, my position on this matter is hardly unbiased. I am a bit surprised at the tone of the AP article on this, however. Here is the title:

Move To Identify Anonymous Blog Defamers Rejected

Just the news folks, just the news–unmixed with the news reporter’s opinion.

ACLU of South Dakota Concerned By Two Bills in South Dakota House That Chill Free Speech

FOR IMMEDIATE RELEASE
February 5, 2010

Contact:
Robert Doody, ACLU of South Dakota, (917) 385-5702 or rdoody@aclu.org

SIOUX FALLS, SD- The American Civil Liberties Union of South Dakota is deeply concerned by two bills that have been introduced into the South Dakota Legislature this week. Both bills seek to add serious constraints to websites that allow users to post anonymous opinions. HB 1277 and HB 1278 mandate that websites in South Dakota that allow for unnamed posting of comments, opinions and other speech items must track those who are posting on their web pages and keep records of IP addresses and other potential identifying and private information.

“These bills seek to address issues of defamation on internet websites but do so in a way that is so excessively broad that it suppresses South Dakotans’ rights to freedom of expression and infringes on their right to privacy,” states Robert Doody, Executive Director of the SD Chapter of the ACLU. “Placing burdensome requirements on bloggers, website owners and others who operate internet-based sites that accept anonymous comments chills freedom of expression to its very core,” said Doody.

The two companion bills seek to undermine and discourage freedom of expression while forcing individuals who operate web-based forums to track their users. If HB 1277 passes, individuals would have the right to sue bloggers, website owners and operators, and others to force them to turn over their business records which identify those who post anonymous comments that might be viewed as defamatory. HB 1278 mandates that “content providers,” those who manage and run websites, blogs, and other forms of internet-based media, track and keep records of all identifying information of their website users.

“Defamation is not protected speech, but anonymous speech and the right to exercise your First Amendment rights are at the very heart of our democracy,” exclaimed Pat Powers, author of South Dakota War College, a blog which allows anonymous comments and which discusses political issues in South Dakota. “Blogs, online newspapers, hospitals, your local funeral home, anyone who allows anonymous comments must install tracking software if this law passes,” according to Pat Powers.

“Defamation is not protected speech on the internet or in any other forum; however, the current bills seek to make anonymous speech a virtual liability for any website owner,” according to Robert Doody of the ACLU of South Dakota. “The ACLU is particularly concerned with how HB 1277 and HB 1278 will chill speech about politicians and other public figures. “Anonymity is a shield from the tyranny of the majority…It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation…” as stated by the United States Supreme Court in Abrams v. United States, 250 U.S. 616 (1919).

Although HB 1277 and HB 1278 have the express purpose of helping combat defamation, both bills place undue burdens on websites to the point where the ability to make anonymous comments would be curtailed and in turn limit the ability to exercise the First Amendment. “There are other avenues to address online defamation through the legal process besides passing such chilling legislation,” said Doody.

As noted previously, there were rumblings of a bill that would seriously curtail certain anonymous speech in South Dakota (commenting on blogs and other websites). Now, the bill is here. Pat Powers is staying on the situation with his post here (including the full bill) and the follow up (addressing those who would be affected).

Here are a few questions:

1. Where are the circumstances where the lack of this law has resulted in grievous harm to a person or persons? Generally, one passes laws to correct gaps in existing law. It would be nice to know exactly what situation/crime prompted this law.
2. Does this law only pertain to blogs/websites which are hosted in South Dakota or simply those which are written/administered by South Dakotans? For example, if I were part of a group blog with one (or dozens of) other writers–does this apply even if I am the only South Dakota blogger in the group and the blog is hosted in Seattle?
3. Does the hosting company have any legal requirements to ensure that the logs are kept? After all, I might keep the logs, but the hosting provider might remove them to keep me from running out of the space I have rented from them on the server (for example) unless I wish to pay for more space.
4. How long must the logs be kept? If I shut down my blog/website, do I need to store these somewhere for a certain number of years?
5. How would this works for stuff like Facebook, MySpace, Twitter, Tumblr–where as one user among millions, I don’t have access to the logs? Does it mean that each of these companies is on the hook because some of their users live in South Dakota?
6. And, the most important question: Under what part of the South Dakota  or United States constitution do the sponsors of this bill find legal basis for this direct curtailment of free speech?

I’m sure there are even more questions which could be asked, but this enough for now. Yes, there are times when people take advantage of being anonymous to say unkind things about other people. People do this in large groups at political rallies, at sporting events, etc. People do this on blogs.

Part of being human is knowing that other humans will be unkind. However, when someone is unkind in my house–it is my personal responsiblity to deal with it in the way I deem most correct. Sometimes that means I invite the person to leave, sometimes it means I stop having guests at all. If I want to allow the person to stay and say what they will, I can choose that as well.

This bill is intended to address libel and slander. We already have a number of laws which handle that. Not to mention that the threshold for such findings is (and should be) quite high.

To all the senators and representatives who are backing HB 1278, I appreciate your desire to right the wrongs of public speech–but it really is none of your concern as duly elected public servants. The only thing which is worse than putting no law in place is putting in bad law. Allow me to state, for the record, that I mean no libel or slander against any of the following individuals by any of the above:

Representatives Hamiel, Bolin, Brunner, Carson, Cutler, Deadrick, Fargen, Gibson, Gosch, Greenfield, Hoffman, Hunt, Iron Cloud III, Jensen, Juhnke, Kirkeby, Kopp, Krebs, Lederman, McLaughlin, Moser, Olson (Betty), Schlekeway, Sly, Sorenson, Turbiville, Vanneman, and Verchio and Senators Turbak Berry, Brown, Dempster, and Vehle.

If any of these individuals represent you–please let them know that their representation is lacking.

Not too long ago, a group of people in South Dakota requested that certain injuries to animals be elevated (or lowered, depending on your perspective) to the status of felonies. A felony, by definition, is a serious crime which can result in at least one year of incarceration. Historically, murder, rape, robbery, kidnapping and the like were classified as felonies. Over the years, a number of other things have made it into the category.

Most (if not all) states now include thefts above a certain dollar-value amount as being felonies even if the crime was not one of robbery. I recall working for a manufacturer in South Carolina whose employee fabricated time-cards for three weeks–thereby putting him over the $1000 threshold for felony theft. All of this to say that so many things are classified as felonies these days that the category itself has lost much of its value. Here in South Dakota, we have so many acts defined as felonies that we have a sub-classification scheme with 5 levels of felonies.

While the subject of incarceration vs restitution (with regard to crimes not committed against the persons of others) is not the focus of this post, one can see that the statement “Well, he’s a/she’s a felon.” does not  have the same meaning today that it did a generation or more ago. Well, it does and it doesn’t. While the list of felonies has been greatly expanded, the long-term ramifications of being classified as a felon (of whatever level) remain. In a number of states, felons lose their ability to vote permanently–in others they only lose that right while incarcerated or on parole or probation. Based on federal laws passed with reference to guns, convicted felons may not possess or carry such devices.

The right to defend one’s person from the violent ministrations of another comes before–that is, exists at a lower strata of the foundation–than does the right to vote. While the right to vote is a derived right, the right to self-defense is considered by many to be a natural right–woven into the very fabric of our existence. How/why does this pertain to the classification of more activities as felonies? Well, when one considers that the list of felonies is quite long as it is, and that the repercussions of being convicted for a felony are serious and life-changing, one should be very careful before classifying additional behaviors as felonies. It sounds trite, but a punishment should fit the crime.

Now, there is more than one way to make injuries against animals into felonies. We’ve looked primarily at the re-classification of behavior piecemeal. However, there is also the question of reclassifying not the behavior but the object of the behavior. There is a movement afoot, if one must brush broadly, to legally define animals, or at least certain types of animals, as persons. The arguments against this are many, but I’ll let the following suffice for the moment:

Whether humans are “special” — sometimes referred to as human exceptionalism or uniqueness — is a controversial and central question in bioethics, and how we answer it will have a major impact on what we view as ethical or unethical with regard to our treatment of humans and of animals.

Currently, we use the word “person” as a synonym for human and to indicate, communicate and implement the concept that humans are different from other animals and “special.” It can no longer fulfill that function if it does not refer exclusively to humans. In other words, if animals become persons, human persons become animals. The line between humans and other animals is blurred and the idea that humans are “special” and deserve “special respect” is eliminated.

Humans are special. We can argue about why that is (I’m of the belief that we are special because God imbued us with that which was not given to animals) but, as the author of the above piece notes, it is a commonly held understanding. If we humans were to reclassify certain animals as persons, then the number of felonies would be greatly expanded if we assume that the animals become persons (and not that human persons become animals, as noted above).

Should we abuse animals? No. Will reasonable humans disagree over what constitutes punishable abuse? Yes. Ought communities to agree on what abuses of animals require punishment? Certainly.

Forty-six states currently consider animal abuse (cruelty) to be felony offenses. South Dakota is not one of them. There are other means of addressing animal cruelties than including them in the already too-broad (in my opinion) list of felonies.