ricketyclick

Houston Defense Attorney Mark Bennett posts two great articles on real-world law: one aimed at his clients, and one aimed at prosecutors.

For the defendant:

…If, based on something you heard at a seminar put on by Winston Shrout or his ilk you create a fictitious commercial instrument and deposit it in a bank, you’re likely to wind up getting arrested by real (not straw) agents with real badges, hauled before a real court with real power to send you to real prison (maybe you can share a cell with Roger Elvick, the white supremacist who dreamt up all of this Redemption nonsense) where real guards can kill the real you if you try to escape.

And for the prosecution:

The government doesn’t get to decide whether the witness has a good faith reason to refuse to talk; if it did, there’d be no point in having a Fifth Amendment right against self-incrimination.

But aside from that, there is no such test, in the real world (which is where I practice) for taking the Fifth. As I have said here before, this is the way it works:

• Witness is sworn in.
• Witness is asked a question.
• Witness refuses to answer on grounds that the answer might tend to incriminate him.
• Witness is asked another question.
• Witness again refuses to answer.
• Prosecutor gets tired of this game.

At this point, the prosecutor appearing before the grand jury is not allowed to strap the witness down and waterboard him until he answers the question. He has two options. First, he can let it go and let the witness go on about his business.

Second, he can go to a judge and ask the judge to order the witness to answer the questions. If the judge orders the witness to answer the questions, the witness has to either answer or be held in contempt.

But guess what: the judge’s order for the witness to answer the questions is a grant of use immunity.

Grand Juries are at once extremely powerful, and are, for the most part, wholly owned and operated by the Prosecution. (It was not always thus; GJ’s used to be fairly independent, and my understanding is that they still can, if they wish, start and pursue their own investigations, or refuse to pursue an investigation requested by the prosecution.)

The check to this is for witnesses (suspects) to understand their rights and Grand Jury procedure. Mr. Bennett has done all of us a great service.

Oh, man, please don’t tell me I’m gonna have to start watching Boston Legal:

Crap. I’m gonna hafta start watching BL.

I asked ya not to tell me that.

Crap.
[Via Curmudgeonly and Skeptical.]

Ken Lammers:

I don’t like the result, but really can’t argue with the reasoning.

Well, OK, but so what? Why does that get QotD status? Doesn’t sound all that earth-shaking, it’s not particularly witty, comes off pretty flat, in fact.

That is his response to Jaynes v. Commonwealth (No. 062388) [scroll down], a case challenging what the Virginia State Supreme Court says was an overbroad anti-spam statute. Presumably, Lammers doesn’t like it because now spammers are free to spam, and with that, I agree.

He gets QotD, however, because of the broader principles involved. Here’s the decision summary:

Held:

(1) Jurisdiction is valid because all of AOL’s servers are in Virginia and this is common knowledge.

(2) The Virginia Supreme Court quotes the Commonwealth’s own stipulations during a prior argument before the federal supreme court and finds that Virginia cannot limit access to constitutional protections to fewer people than the federal government allows.

(3) While trespass may be a valid theory in a civil suit, it does not apply in a case involving the government because governments must answer to the 1st Amendment.

(4) The mere fact that someone sends an anonymous email cannot be illegal because anonymous political speech is protected political discourse. Unlike other States, Virginia has not limited this statute to commercial speech. Therefore, the statute is not sufficiently narrowly drawn.

(5) While mere overbreadth is not enough, this statute is substantially overbroad. It “would prohibit all bulk e-mail containing anonymous political, religious, or other expressive speech. For just being published today example, were the Federalist Papers via e-mail, that transmission by Publius would violate the statute.”

(6) The Supreme Court refuses the Commonwealth’s invitation to narrow the application of the statute so that it only applies if the internet service provider objects or the emails contain criminal activity, defamation, or obscenity. Rewriting a statute is the province of the General Assembly and mere construction of this statute cannot reach as far as the Commonwealth urges.

Reversed.

[My bold.]

Lammers calls the decision a “tour de force”, saying it’s “28 pages and not an inch of fluff.”

The crux of the whole thing is point (6): “Rewriting a statute is the province of the General Assembly and mere construction of this statute cannot reach as far as the Commonwealth urges.”

See how that works? As much as I hate spam, as much as I want to see spammers staked out on fireant mounds with their eyelids snipped off and their bellies slit open, the VA Lege screwed up by writing an unconstitutionally broad law — and it is not the job of the Court to fix that, even though the Lege invited the Court to do so.

That’s how it’s done, folks. That’s how separation of powers works. That’s how the Rule of Law works. You don’t tolerate tyranny even if, in the short run, it achieves a goal you want. The Virginia Supreme Court understands that (at least in this case) and Lammers understands that — his quote is the essence of Point (6).

Together, they share Quote of the Day.

RFID (Radio Frequency ID) tags are little paper stickers with circuitry hidden inside that can broadcast identification data when probed with the appropriate radio signal. They’re cheap- close-to-free, yet each one has a unique number, and that number is large enough that essentially every thing in the universe can have its own tag. They’re extremely useful for things like warehouse inventory, where radio transponders can continuously query the entire contents, and track the location of each and every pallet, carton, and box on the shelves.

I have one on the windshield of my car; it automatically debits my account when I go through local tollbooths. Passports have them.

Credit card companies are starting to put them into what they call “contactless cards”. The day is coming when you walk into the grocery story, stuff things into a bag or into your pockets, and walk away without going through checkout.

There are even implantable versions that can be placed under the skin. Currently, these are used for pet identification, but there’s no reason why they can’t be used on humans.

Problem: it turns out that it’s fairly easy to spoof existing RFID systems, including those being used for critical applications such as passports and, well, credit cards.

The brilliant Discovery Channel science education show Mythbusters was planning to do an episode on testing ways to spoof RFID cards. They’ve done this before with things like radar detectors and alcohol breath testers.

However, The Powers That Be turned out to be a bit touchier about RFID:

Link.

Adam Savage, one of the show’s co-hosts, explains what happened when they tried to contact Texas Instruments, a major manufacturer of RFID tags and readers, while doing research for the show:

Texas Instruments comes on along with chief legal counsel for American Express, Visa, Discover, and everybody else… They were way, way outgunned and they absolutely made it really clear to Discovery that they were not going to air this episode talking about how hackable this stuff was, and Discovery backed way down being a large corporation that depends upon the revenue of the advertisers. Now it’s on Discovery’s radar and they won’t let us go near it.

If the system is that weak, I don’t want it anywhere my bank account, my security, my health care, or my anonymity. RFID is scary enough on it’s own, but this response shows that those pushing RFID know that it is bogus, and want to keep that quiet, rather than fixing the problems before chipping the whole world.

Let’s be clear: the plan is to make RFID mandatory, in driver’s licences and other forms of official ID. “Show us your papers” becomes obsolete if you can’t hide your papers, if they’re actually planted under your skin, and it gets worse if somebody can claim to be you by showing your “papers” in places  you’ve never been.

Very, very scary.

Via Slashdot.

From Consumerist, how to get everything about a credit card, while it’s in someone’s pocket, using a reader bought for $8 over eBay. This requires basically patting the victim’s wallet with the reader — but this is essentially electronic pickpocketing, and it’s not hard to extend the range of the reader.

The RFID Buzz blog goes into my daily feed so I can keep up.

Over at the Bitch Girls:

A hunter who was checking into a Denver hotel yesterday before his trip to Africa was arrested for “unlawfully” carrying a gun - in rifle cases safely.  Unfortunately, Democrats are staying in the hotel.  So the cops hauled him off and only released him after he posted $10,000.

He is being investigated to see if his rifles have dangerous features - like a scope.

I started to respond in comments there, but it grew, so I’m making a full post of it here.

There was that big Mike Vanderboegh brouhaha a couple of weeks ago, about how citizens standing their ground for their right to keep and bear made us all look like crazed loons. (The big thread was over at Snowflakes in Hell, but that site’s down at the moment. I’ll put the link in when I can confirm it.)

This proves Vanderboegh was bang on: Those who want to take our rights away from us already think we’re dangerous lunatics.

Is it time to march on statehouses, courthouses, and Congress? Time to man the barricades? Time to openly revolt?

No, of course not quite yet.

It is, however, time for individuals to simply stand for themselves and say “No”. to make “cold dead hands” more than a slogan.

Now, I pray I will not be faced with this choice any time soon, but I pray that if I am, I will be able to take one or two jackboots with me.

I probably won’t, of course, because I doubt I’ll be given the opportunity to so much as flick off the safety. And if I am, I seriously doubt I’ll be able to bring myself to actually shoot another human being, as much as my freedom might depend on it.

That’s one of the problems here: on the battle field, a new recruit can depend on the veterans to fight for a volley or two while he gets his wits and his courage together, and overcomes his natural reluctance to kill. In a hotel lobby surrounded by non-combatants, with your guns all in cases, or during what seems to be a routine traffic stop, or in your bedroom at three a.m., you simply do not have the luxury of even a second’s hesitation, or the example of more experienced soldiers around you. And you know, absolutely, that you will die in the encounter, that you will never have the chance to argue in defense of your actions.

That’s hard, and when that starts happening, it’s going to be up to us to pile on in defense of our fallen comrades, and not spurn their corpses because they failed to follow the enemy’s rules of engagement to the letter.

In this case, Calanchini threatened NO ONE. He just wanted a room, a shower, a meal and a bed. His greatest crime was that he didn’t care enough about politics to know that a Big Important For His Own Damn Good Democratic Convention was in town, or that the particular hotel he choose had been taken over by by people who hate him and think he’s the crazy one.

I mean, Christ, he had GUNS! Plural, guns! Including handguns! Of course he’s dangerous bad crazy! Think of all the children he could have killed! Or Democrats, same thing!

===

This stands as a warning to all the Fudds and Zumbos out there. Just because you’re a hunter, doesn’t mean you can afford to think you’re above the fray. The grabbers absolutely want your guns too, and you with them. To them, you are as crazy and as dangerous as we are.

===

Meanwhile, Muslim terrorists, real crazies who, so far beyond standing their ground and fighting back, deliberately kill innocents, are deferred and kowtowed to at every opportunity.

===

Uncle points out, “This isn’t going to help Democrats appeal to the gun owner demographic.”

No, but then, they never really wanted to. This simply confirms which demographic they are appealing to.

I have been accused of being a conservative, mostly on the grounds that I believe that the Second Amendment means what it says, and that the Founders knew what they were doing when they wrote it and ratified it.

I deny the charge.

I enter into evidence the deposition of F.A. Hayek, who witnessed the rise of socialism and its demon twin Communism over the middle of the twentieth century in Europe:

I use throughout the term “liberal” in the original, nineteenth-century sense in which it is still current in Britain. In current American usage it often means very nearly the opposite of this. It has been part of the camouflage of leftish movements in this country, helped by the muddleheadedness of many who really believe in liberty, that “liberal” has come to mean the advocacy of almost every kind of government control.
…
A conservative movement, by its very nature, is bound to be a defender of established privilege and to lean on the power of government for the protection of privilege. The essence of the liberal position, however, is the denial of all privilege, if privilege is understood in its proper and original meaning of the state granting and protecting rights to some which are not available on equal terms to others.

– Hayek, F.A., The Road to Serfdom, “Forward to the 1956 American Paperback Edition”
Reprinted in Bartley (ed.), The Collected Works of F.A. Hayek, Volume 2, University of Chicago Press, 2007, p. 46.

Moreover:

Conservatism proper is a legitimate, probably necessary, and certainly widespread attitude of opposition to drastic change. It has, since the French Revolution, for a century and a half played an important role in European politics. Until the rise of socialism its opposite was liberalism. There is nothing corresponding to this conflict in the history of the United States, because what in Europe was called “liberalism” was here the common tradition on which the American polity had been built: thus the defender of the American tradition was a liberal in the European sense.
…
Let me now state what seems to me the decisive objection to any conservatism which deserves to be called such. It is that by its very nature it cannot offer an alternative to the direction in which we are moving. It may succeed by its resistance to current tendencies in slowing down undesirable developments, but, since it does not indicate another direction, it cannot prevent their continuance. It has, for this reason, invariably been the fate of conservatism to be dragged along a path not of its own choosing.

– Hayek, F.A., The Constitution of Liberty, “Why I am Not a Conservative”, University of Chicago Press, 1960
[Emphasis mine.]

I very seriously object to being called a “conservative”, especially on account of holding a position which is all about “empowering individuals”, including individuals who belong to groups that have traditionally been oppressed by conservatives, such as blacks, women, the disabled, and gays.

I object to being called a “libertarian” on the grounds that I like having a strong central government; I simply want it to exercise its enumerated powers, and no more; and I want it to rigorously respect at least my enumerated rights.

I acknowledge that I am not current on libertarian thinking, so I may be wrong here. Nevertheless:

I kind of regard strict libertarians the way I do the Amish: they are hothouse flowers that flourish only because the rest of us provide an environment where they can do so. I strongly suspect that if everyone lived as they do, we would in general have a far lower standard of living (lower with the Amish than with libertarians, though.)

Still, while I’m not tempted to be Amish, I do admire the stance that honest libertarians take. I believe that being a libertarian requires an exceptionally high degree of self-discipline, and this is why I think libertarianism would fail: most people are simply not capable of it; I’m pretty sure I’m not.

[Braces self for comment flood by enraged libertarians. But what leaves me weak with terror is the prospect of drive-by shunnings from the Amish.]

Once again, I find I cannot resist linking to Eric S. Raymond’s essay, “Ethics From the Barrel of a Gun“. To the degree that I’m libertarian, I caught it from Raymond. The lessons he teaches here are:

• it all comes down to you. No one’s finger is on the trigger but your own.
• Never count on being able to undo your choices. If you shoot someone through the heart, dead is dead.
• The universe doesn’t care about motives. If your gun has an accidental discharge while pointed an unsafe direction, the bullet will kill just as dead as if you had been aiming the shot.
• Right choices are possible, and the ordinary judgment of ordinary (wo)men is sufficient to make them. We can, truly, embrace our power and our responsibility to make life-or-death decisions, rather than fearing both.

Raymond continues:

To believe one is incompetent to bear arms is, therefore, to live in corroding and almost always needless fear of the self — in fact, to affirm oneself a moral coward. A state further from “the dignity of a free man” would be rather hard to imagine. It is as a way of exorcising this demon, of reclaiming for ourselves the dignity and courage and ethical self-confidence of free (wo)men that the bearing of personal arms, is, ultimately, most important.
…
We can, truly, embrace our power and our responsibility to make life-or-death decisions, rather than fearing both. We can accept our ultimate responsibility for our own actions. We can know (not just intellectually, but in the sinew of experience) that we are fit to choose.

And not only can we — we must. The Founding Fathers of the United States understood why. If we fail this test, we fail not only in private virtue but consequently in our capacity to make public choices. Rudderless, lacking an earned and grounded faith in ourselves, we can only drift — increasingly helpless to summon even the will to resist predators and tyrants (let alone the capability to do so).

[I have slightly reorganized Raymond's paragraphs  for my purposes. Read the whole thing; this should be a standard text in Citizenship Class, perhaps as a prerequisite for Militia Training.]

This, in my comment here in response to .45Superman’s article detailing the first few pebbles in the post-Heller avalanche:

I’m struck, near paralyzed, by the thought that a one vote switch would have resulted in just as much activism — in the other direction.

All these politicians now fighting increasingly shrill and desperate rearguard actions would this minute be triumphantly proposing licensing and registration laws preparatory to a ban.

That was a very narrow miss, indeed.

I’m looking for the exact quote, but apparently Rush Limbaugh said something to the effect that the Supremes came within a single vote of amending the Second Amendment out of the Constitution.

I am not remotely the only one making this point, but I want the quotes where I can find them:

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added

– The Founders, Preamble to the Bill of Rights

The majority would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.

– Ass Justice Stevens, dissent from Heller.
[Yes, I know there's supposed to be a period in there somewhere indicating the abbreviation for the word "associate". Fuck Stevens right in his period with a red hot wood rasp. -- djm]

Or, as Anarchangel put it, somewhat more genteelly:

YES, that is EXACTLY what the framers did; that is in fact the entire purpose of the second amendment, and the bill of rights as a whole; and anyone who in any way does not understand that has no business being a citizen of this country, never mind being a supreme court justice.

Stevens is either a liar, a fool, or disingenuously dissembling to make a fundamental right into nothing more than a hindrance to government… which is by far the worst interpretation of his actions, and unfortunately I think the correct one. It makes him both craven, and a clear enemy of the core principles of liberty and limited government.

… but 30% of the population agrees with him.

… and that frightens me.

Uh huh.

Damn, my chin is going to itch for a month from this shave….

The decision is narrow, the majority is as narrow as it can be, but fundamentally:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

It’s been a long, cold, lonely winter, but here comes the sun.

Thus begins the reversal of the long slow slide into abject sheepdom that started with the 1934 Gun Control Act.

Many, many more cases to come over the next several years. D.C. will play silly buggers over things like licensing.

However, the pendulum begins its long, slow swing back. The trend is clear. As Americans once again begin to openly exercise their right to keep and bear, future decisions will be broader and easier, and the resistance will weaken.

The next decision, I think, will be broader and the majority not so narrow.

Damn.

The Supreme Court today voided the Washington D.C. laws banning functional firearms, including handguns, in the homes of D.C. citizens.

D.C. can impose licensing requirements, but ordered a license granted to Dick Heller.

Scalia reportedly tears the dissenters, and therefore D.C., new assholes.

Fireworks all over the pro-freedom blogosphere.

Links later, but…

Woo Hoo!

Here’s what I’d like to see, in it’s entirety, coming down from the Supreme Beings in a bit more than six hours:

“The right of the people,” you idiots, “to keep and bear arms” that actually work “shall not” even “be infringed”.

Now, if you’ll excuse us, we’re off to the range.

I’ll be happy, though, if they just uphold the Circuit Court’s decision to void the D.C. gun control laws in question, on the grounds that they are so egregiously infringing that they cannont survive any level of scrutiny.

However, if they hold that the government can take personal property in civil forfeiture or eminent domain,  give illegal combatants killing American soldiers on foreign soil full habeus privileges, and declare that even the most brutal of child rapers do not deserve the death penalty, but that ciitizens in our nation’s capitol cannot be trusted with the means to defend themselves, then they will utterly abdicate their legitimacy.

We’ll see in a few hours.