Thursday, April 26, 2018

Sorry, Dems and Pundits, but Hillary was only a small part of my decision in 2016

I am looking at the Guardian and seeing headlines such as:

Hopes of mild climate change dashed by new research 

Bad news for climate contrarians – 'the best data we have' just got hotter 

'We're doomed': Mayer Hillman on the climate reality no one else will dare mention

Despite headlines like these, this topic was pretty much absent from the Presidential debates. Hillary Clinton put up a statement about this issue on her website, but that was negated by this exchange between her and a Greenpeace volunteer:
Quite frankly, the only candidate who was addressing the issues that concerned me (the environment, election reform, etc) was Jill Stein.

Hillary seemed to be running on the fact that she was a woman and wasn't Donald Trump. Let's toss in that the primary election and selection of the Democratic candidate has been shown to be a farce.

The US political system is broken, but it won't get fixed by supporting the two party system. Also, it won't get fixed as long as people are in denial (RUSSSIANS!). Two of the worst presidents have gained office through the electoral college. Do we need to end up with a real idiot as president for people to see change is necessary?

Wednesday, April 25, 2018

Windrush is not the same as the "dreamers"

First off, the "dreamers" are unlawfully present. They are fully aware that they are not legal immigrants.

Secondly, DACA stands for Deferred Action for Childhood Arrivals (and DAPA is Deferred Action for Parents of Americans and Lawful Permanent Residents) aren't really amnesties. Neither do they change the status from being unlawfully present to lawfully present.  They merely "defer" any deportation.

DACA and DAPA recipients are still unlawfully present and would need to leave the country for the required period of deportation to even consider getting legal residency.

On the other hand, Windrush refers to people who were citizens of colonies or commonwealth countries. The picture of the British Empire Passports gives you a clue to the problem.  These people were under the impression that they were British Citizens, which they were up until 1971.

Wouldn't you think you were British if your passport said "British Passport"? Or said you were a "British Subject"?

First part of the changes were some of the places Windrush immigrants came from gained independence.  The Second part was The The Immigration Act 1971, which ironically was also partly passed to legally clarify the rights of Commonwealth citizens within the United Kingdom in preparation for future membership of the European Communities which the UK became a member state on 1 January 1973 which gave new automatic rights to EC member state citizens.

So, it's amusing this is coming in tandem with Brexit which is now removing the right of residency for EU member state citizens.  Anyway...

A closer analogy for people in the US would be an overzealous ICE (Immigration and Customs Enforcement) going after people who were from Puerto Rico, Guam, Northern Mariana Islands, and US Virgin Islands since those are territories, not states. The Philippines, Micronesia, the Marshall Islands and Palau are former territories which gained independence from the US. People from American Samoa can visit the US without a visa, but they need to go through the naturalisation process to become citizens.

Tuesday, April 24, 2018

Windrush vs. the "Dreamers".

OK, we are told about a group of people who came to a country for a better life, but are having problems with their immigration status.

Who do you feel sorry for: the people who didn't do it legally?


The people who were legal immigrants, who were actually invited to build a war torn nation, yet now find the legality of their immigration status in question?

Personally, I go with the second group, which is a discussion of the Windrush Generation. Given the Windrush crowd is pretty much black and from the Caribbean (although I do know of people from the Subcontinent who were invited under similar circumstances). Windrush refers to:
Those arriving in the UK between 1948 and 1971 from Caribbean countries have been labelled the Windrush generation.
This is a reference to the ship MV Empire Windrush, which arrived at Tilbury Docks, Essex, on 22 June 1948, bringing workers from Jamaica, Trinidad and Tobago and other islands, as a response to post-war labour shortages in the UK.
The ship carried 492 passengers - many of them children.
Since they were Commonwealth Citizens, they had a right of residency in the UK. The Windrush generation were legal, even if they were the subjects of racism. That is a big difference from the DAPA/DACA crowd who arrived illegally and have been looking over their shoulder from the start.
Get the picture?

Although, there is some debate about their legality, but they were colonial citizens. This is a summary of the problem:
The Home Office did not keep a record of those granted leave to remain or issue any paperwork confirming it - meaning it is difficult for Windrush arrivals to prove they are in the UK legally.
And in 2010, landing cards belonging to Windrush migrants were destroyed by the Home Office.
Because they came from British colonies that had not achieved independence, they believed they were British citizens.
Add into this mess the fact that many Windrush migrants who have had their legal status called into question have been in the UK for decades, often paying taxes and making pension contributions. Windrush migrants must prove they have been in the UK continually since 1 January 1973, when they were granted the right to stay in the country permanently. Anyone who has left the country for more than two years loses their right to remain. The Home Office did not keep records of the people to whom it granted indefinite leave to remain in the 1970s. Some stayed but did not apply for British citizenship meaning there is no official record of their legal status. People must apply for an official stamp known as No Time Limit (NTL), at a cost of £229 to have this official recognition for their right of abode in the UK.

I see a few differences here between people who are called "Dreamers" and the Windrush crowd. First off, Windrush had a legal status and were invited to live in the UK. Second off, the Windrush crowd was living as legal citizens. Thirdly, their situation is primarily one of bureaucratic malfeasance, which isn't just attributable to the Tories since it was a Labour government that destroyed the landing cards.

That is quite a difference between the "dreamers" whose entry was not legal and their status is that of being unlawfully present in the US. The dreamers have had the threat of deportation hanging over their head from the start based upon their being unlawfully present. There are legal remedies for the "dreamers", but they entail leaving the United States and going to the back of the line.

Tough shit, they should have paid an immigration lawyer less than they paid their coyote to get them into the US. Toss in we are talking human trafficking if there were indeed coyotes involved.

Bottom line, I am not a fan of amnesties. People can work to make the laws more favourable toward immigration if they have an issue with unlawfully present people getting proper immigration status. On the other hand, I have much more sympathies for people like the Windrush Generation, or the people whose residency will be put in the air by Brexit than I do with people who try to skirt immigration law sas the "dreamers" have done.

Don't do the crime if you can't do the time.

See also:

Wednesday, April 18, 2018

Why DC v Heller (and McDonald v Chicago) is wrong

OK, I would shut up about this if my only complaint was related to the ability to regulate firearms. I have pointed out that these decisions do not act as a block to regulating firearms. In fact, they are highly regulation friendly. That is something I have talked about ad nauseum in the past.

Since that has been previously addressed, I will deal with the actual reasons these decisions were bad law.

First, they are historically inaccurate. I am not really going to cover this here since that would be a whole post in and of itself. The bottom line of that one is that the Amendment relates to the distrust for a standing army and bloated military establishment.  More than enough evidence for that in Anglo-American political history which is something that would have shown up if Scalia and Alito had bothered to have done their research.

Second, it removes the Second Amendment from the Constitutional Context and makes it a non-sequitur.  Not enough attention is paid to the preamble of the US Constitution here. That is important since it gives a hint what the intent of the founders happened to be when they drafted the Constitution.

The founders make it clear that the Constitution is supposed to address matters of the common defence. No where in the constitution is the concept of self-defence or personal defence addressed. It is a well known legal principle that if a text is silent on something one cannot infer that it is addressed by the law.

Furthermore, Article I, Section 8, Clause 16 gives Congress, and Congress alone, the power to:
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
It was the power to arm the militia that concerned the founders given the distrust of standing armies. Again, there is Constitutional history here in that the Federal Government had a professional army, while the states had their militias.  It was a fear that the militias would be frustrated by Congress not funding them.

Instead, the militias died from lack of interest. But I've covered that elsewhere as well.

Since the Second Amendment relates to Federal power under Article I, Section 8, Clause 16, it cannot apply to the States. That makes the McDonald decision a legal absurdity.

Third, The Heller decision acted as if it was a case of first impression, which it was not. That means the Heller and McDonald decisions were a violation of stare decisis.

While, Marbury v Madison did not relate to the Second Amendment, it did address Constitutional language and said that no clause in the Constitution was without meaning.  Of course, given Marbury's significance, perhaps we can ignore these examples of poor judicial decisions (Heller and McDonald).

Which gets to the two 19th Century Second Amendment decisions: US v. Cruikshank, 92 U.S. 542 (1876) and Presser v. Illinois, 116 U.S. 252 (1886).

Cruikshank is short, but not really helpful because of that:
The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.
It shows that the 19th Century lawyers were more aware of the relationship of the Second Amendment to Article I, Section 8, Clause 16. Which takes us to Presser. That is a decision I've mentioned before. It is one which is probably the best for deciphering US v. Miller, 307 U.S. 174 (1939). Presser addresses he "unorganised militia" argument, and it made clear that the Second Amendment related to only the organised militias, which is now the National Guard (see Perpich v. DOD, 496 U.S. 334 [1990]).

Miller is problematic in that its style runs counter to how most people read judicial decisions. Its holding was most likely this paragraph:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.[1]
However it is unclear without the words "we hold" that this would be the holding, but it would logically be the holding. Secondly, the decision goes through the reasoning it came to this conclusion. The Miller decision then goes on to discuss Congress power to arm the militia. it then states that:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.[2]
That sentence directly contradicts the Heller and McDonald cases. That is because it makes clear that both clauses are necessary for interpretation of the Amendment. Even more importantly, it makes it clear that the Amendment only applies to the organised (active) militia.

Finally, since these decision would amend the constitution by neglecting an important part the text and change the meaning of the amendment. That would make the decisions ultra vires, or outside the power of the court. Unfortunately, the US Constitution does not provide for a cure for one of the branches acting outside their powers or failing to act.

So, that leaves us with bad law on the books. Fortunately, one doesn't have a problem with regulating firearms. In fact, I would suggest ignoring the two risible decisions and going toward strict regulation of firearms. After all, the two unconstitutional decisions only apply to a ban on handguns in the home.  That means firearms regulation is wide open otherwise. And both Heller and McDonald made it clear that regulations were acceptable.

Which is why there hasn't been too much complaint about these decisions from the "anti-gunners".

[1] Aymette said: " To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive."

[2] See Justice William O. Douglas’s dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972). Douglas was a member of the US Supreme Court when Miller was decided and glosses that case in the dissent.

See also:

Saturday, April 14, 2018

Handguns v. Assault Rifles

This is a biggie if we are going to propose arming teachers with handguns to combat mass shooters: especially if the teacher has a handgun and the shooter has a rifle.

Let's get some bullshit out of the conversation here since the term assault rifle was a creation of the gun manufacturers. There's more than enough documentation for this with things like this copy of Guns & Ammo. Toss in that the StG-44 is the accepted grandadddy of these guns. StG-44 means Sturmgewehr 44, or Assault Rifle 44.

But, I don't need to go too far to see the pro-gun side shoot themselves in the foot, literally, in this argument. Since they will try to show these weapons are "hunting" rifles, or "modern sporting weapons". Take this comment from Gun Control Myth: The AR-15 is Not Actually a Hunting Rifle:

The AR-15 platform is known for its accuracy, especially over longer distances. For some types of hunting, this characteristic is particularly useful for successful hunts. Each bullet type has varying effective ranges. The .223 is effective from 400-600 meters. An AR-15 chambered in .308 has an effective range to about 800 meters; .338 Lapua's effective range is about 1500 meters; and .50 BMG has the range of about one mile..
While the author is trying to show the round is effective at long ranges, making it a good gun for hunting. He is actually shooting down the argument for arming teachers. Now, this is where gun crazies get a little outrageous and try and argue that a bullet can kill at a range up to two miles.

But effective range to me means can you accurately hit a target, which takes the range way down. This comment from a gun forum is pretty typical for what effective range is like:
Fifty yards sounds about right. Unless they have good training, most people can't shoot a 4" barrel accurately enough to target a dump truck beyond about 50 yards.
Yards and metres are about 3 inches in similarity, with metres being about 39 inches. Giving the 50 yard accuracy as being the max for a handgun, that would mean the person armed with the assault rifle would have the advantage by more than 350 metres.

Let's toss in the training needed so that people don't get killed in the cross-fire: especially if the teacher is firing off wildly inaccurate rounds while the shooter is laying down effective fire at a high rate of accuracy.

Again, this is another issue where accurate information would be needed, but the information is solidly "anti-gun" from what little is out there. The fact that the Columbine Shooters were engaged by a Jefferson County Sheriff's deputy seems to be lost in the debate.  Toss in the times that armed people, whether civilian or professional, failed to stop, let alone ameliorate the situation is next to non-existent.

it's pretty easy to see the fallacy of someone armed with a handgun stopping someone with a rifle by just looking at the difference in effective range between those two weapons. The problem is that this argument is being pushed by people who should know better, but think "anti-gunners" don't know anything about firearms.

Some of us know quite a bit about guns, which is why we believe they should be regulated.

Anyway, this is the final argument to the people who want to call these things "hunting rifles" or "modern sporting rifles":
"Nothing like a good clean kill."