COMMERCE IN ARMS

(The following was published by the Richmond Times-Dispatch December 27, 2014:)

Regarding Barton Hinkle's December 21 column about Governor McAuliffe's alleged "misinformation" about gun owners' rights, I would like to offer these observations.

I am not necessarily in favor of all of Governor McAuliffe's proposals, but most do not violate constitutional rights.  As a gun owner, I am a firm supporter of the 2d Amendment's recognition of an unqualified personal "right ... to "keep and bear Arms."  However, Hinkle's embrace of the National Rifle Association's warped expansion of gun "rights" is plainly wrong.  Hinkle enumerates proposals by Governor McAuliffe that, with one exception, deal ONLY with gun commerce and concealed-weapons permits.  The 2d Amendment does, indeed, protect one's right to "keep and bear Arms" already owned, but it does not protect any right to buy or sell arms nor to carry them concealed.  Concealed-carry is a conditional privilege that is controlled via government permits.  There is no "right" to concealed-carry stated in the 2d Amendment.  One may only "bear" arms, presumably openly.  

As far as I know, there is no intrastate commercial activity that is not subject to control by state governments.  Congress clearly has the power to "regulate [interstate] Commerce" in the Constitution, with no exception for arms.  Commerce has been a particular justification for governmental regulation down through the ages.  It is ludicrous to suggest that governments in the US may regulate most any aspect of commerce OTHER THAN in arms.

The one exception cited by Hinkle has to do with banning arms possession by those under protective orders.  That makes very good sense, I think, but I question the constitutionality of such a general ban.  I would agree that such a ban could be imposed by a court as a condition of release on bond or following a conviction for any violent crime, but that would be a case-by-case (literally) judicial application, not a blanket ban.

Governments are obliged to adopt and enforce their laws pursuant to the right of "equal protection" under the 14th Amendment, but other than that, they are free to regulate by law commerce and concealed-carry any way desired.  The 2d Amendment is silent as to commercial transactions.  The NRA has done a terrible disservice, threatening the rights of us gun owners, by willfully confusing the matter.

HIGH NOON?

Well, it looks like about 6-½ years after his first inauguration, Obama has finally found some testicles!  He's not ready to star in "High Noon" or anything like that, yet, but the move to put Cuban relations on a more sensible plane is laudatory.

Enough of the Cold War already!  Castro is a half-dead geezer, and his brother Raul is not far behind.  "Things" are going to be different in Cuba soon enough!  I would also argue that Castro would have been gone long ago had we not made him the "villain" and thereby ensured his adoration in Cuba despite all his absurd policies!  The idiotic US embargo of that country has been our national shame until the CIA torture stuff.  It is interesting to note that the CIA has been at the bottom (cesspool) of both policies.  Yet those twits could not protect us from "9/11" nor even from the Boston bombing!  What a worthless organization!

The move to liberate those "undocumented aliens" who were brought to the US as children (so-called "DREAMers") is another smart move.  What kind of idiot wants to deport those folks?  They are as "American" as I am, and most are paying taxes and doing well!  Wednesday, the US Supreme Court refused to review a Court of Appeals decision that blocked the attempt by Jan Brewer, the governor of Arizona, to deny those poor folks drivers licenses to ensure that they would have no way at all to commute to jobs and be productive citizens.  Those halfwits in Arizona government are a good example of just how stupid STATE governments can get, for those who think "states' rights" is a good idea!

Obama cannot lift the anti-Cuba embargo on his own.  He will need to persuade Congress to approve that, and I doubt that is in the cards.  The question is begged: why was Obama so aimless and tentative when he had a functional majority of Dems in the Congress his first 2 years?  Basically, Obama should go down in history as one of the most INEFFECTUAL presidents we've ever had because he squandered the opportunity (mostly with that pig of a law called "Obamacare") to arguably get progressive measures adopted by the Congress.  The Dems who lost control of the House in 2010 have no glory to share, either, although the House healthcare bill was a pretty good bill, and Nancy Pelosi deserves the credit.  It later got trashed in the Senate once Harry Reid put his filthy paws all over it.  The feckless Obama was almost totally AWOL during the House proceedings and basically did not get involved until the matter went to the Senate, where he and Harry Reid connived to turn the measure into an insurance-company relief act by preemptively gutting the House-passed "public option" without any debate whatsoever!  "Obamacare" is Obama's sole legacy of any significance.  Pathetic.

I have been complaining about Obama's tentativeness and lack of courage.  These recent moves are really the first I have ever seen to the contrary.  I fear it may be too little/too late, and if a Republican is elected in 2016, even "Obamacare" may get totally repealed.  I don't think there is any secret that most Republicans want NO publicly-funded healthcare at all.  I think most citizens do (not necessarily "Obamacare"), but they have mostly ignored those electoral risks.  It seems that Republicans would rather be surrounded by a bunch of untreated sick people and poor people who clog emergency rooms and wind up forcing paying patients' bills higher that get paid by insurance companies that raise premiums to pay for the care of those poor people ANYWAY!  DUH!  "Democracy" is not going to win the IQ contest for sure!

I think the 2014 election was more a repudiation of the tentativeness and timidity of Obama and the Democrats rather than an affirmation of Republican policies.  But the results do not lie.  Regardless of what motivated the absurdly low 40% of voters who showed up in Va. this year, or what motivated the 60% that sat on their worthless asses on Election Day and did not vote, the Republicans are in charge in Congress, and Obama will be lucky to get his paycheck from here on!

GEEZER BOOMERS

(The following was sent as a letter to the Editor of the Richmond (Va.) Times Dispatch on December 6, 2014.)

Your editorial of December 5 purports to credit such things as "public-service messages" and "school ... strategies" for the reduction in juvenile violent crime.  I suppose those laudable things have had some positive influence, as you generally acknowledge.

However, the "tough-love" crowd routinely takes the credit for the unmistakeable overall drop in violent crime, as do the MADD mothers taking credit for the unmistakeable drop in alcohol-related accidents.  The latter are even talking about pushing the "BAC" (Blood Alcohol Content) drunk-driving "trigger" down to 0.05% BAC since the 0.08% "trigger" seems to have worked so well.  It was at 0.10% BAC some years ago until Bill Clinton and Congress coerced all states to embrace the 0.08% BAC DUI standard in the 1990's or lose federal highway funds.

Your editorial also points out that adult violent crime, though down, is now higher than juvenile violent crime.  That should be no surprise, if the "experts" would acknowledge the "elephant in the room."

The "elephant" is the aging of us Baby Boomers.  How is it that the single largest demographic variable in history (the coming of age and then the aging of us Boomers) is repeatedly ignored when considering these disparate events?  Not only with regard to crime and drunk driving, but also the current economic "malaise" that resists the idiot "supply-side" remedy of lower income taxes for the "job creators."  Fundamentally, we Boomers have gotten too old to party, too old to rumble, and too old to be in the marketplace buying up stuff left and right, spending money like drunk sailors and never saving a penny!

We Boomers were the greatest single "demand" influence the world marketplace has ever seen, and there is no succeeding generation able to equal our sheer numbers.  Consequently, we are all suffering a crisis in economic "demand," not "supply."  The real "job creators" (retailers and other small businesses) have fewer paying customers so must hire fewer employees.  (Retail sales for "Black Friday" were down nationwide over 11% last week.)

Distracted cops easily targeting "social drinkers" coming out of bars, festivals and athletic events are racking up the conviction numbers but are still missing most of the admittedly fewer "killer drunks" still on the road with BAC levels routinely exceeding 0.13%, relatively unchanged since the 0.10% standard.  (I have the Virginia DMV's own numbers to prove this statement.)  "Social drinkers" are probably "impaired" at 0.08%, but they are not very "dangerous."  Nevertheless, the MADD mothers and law enforcement pat themselves on the back for "doing something."  We Boomers are just too old to be out on the roads driving drunk like we used to, so of course accidents are down overall!

If the personal savings rate jumps up soon, you can "thank" us paranoid "geezer" Boomers for hoarding our dollars instead of spending them!

DIGITAL DELIGHTS

(Posted 12/5/14 on "The Daily Beast" as a comment to news that the reliably liberal New Republic magazine will be taken over and given a rigorous digital exam!)

Notwithstanding the "Wrong-Wing" glee that the New Republic is being arguably gutted by its new digitally-savvy owner, while mourners express horrified comparisons to the bloody "Red Wedding" in the HBO series, Game of Thrones, the political viewpoint of TNR is irrelevant.  We can't all subsist on a diet composed exclusively of the drivel published by Rupert Murdoch.  But what IS relevant is the fact that a lot of print magazines are dying or going digital.  This turn of events is as reminiscent of the current plot line on "The Newsroom" as it is the "Red Wedding," wherein a digital dynamo wants to take over the network and convert it to "infotainment."

Let's face it: "analog" news and opinion just don't cut it in the digital age, where industry moguls are mostly MBA bean-counter types, obsessed primarily with the financial bottom line.  It has brutally happened in American industry, too, where the bean-counters now get to dictate the design of domestic automobiles, for example, based not upon their performance and engineering but whether or not they will turn a profit.  (That is why I now drive Toyotas.  Even though many are now made in the US, the design process and managerial philosophy are still not dominated by "bean-think.")  In the digital world in which we now exist, the customer/reader/viewer/driver is not to be served but is to be exploited as a profit center, to be coerced into serving the interests of the businesses instead of the businesses serving them.

PLUS, we aging, mostly analog Baby Boomers are not the driving consuming force in the marketplace anymore.  We are now mostly paranoid geezers waiting to die.  We have been replaced by much more tech-savvy youngsters who seemingly prefer digital access, even as they are being manipulated and exploited by the bean-counters.

Oblah-di, oblah-dah.

KILLER COPS

December 4, 2014:

Once again, another unarmed black person has been killed by an armed white police officer.  Just as the mess in Ferguson, Missouri is being sorted out, there is yet another stupid killing by a cop on Staten Island, New York.  There was a cellphone video made of that latter incident by a bystander, and it CLEARLY shows the deceased in a compliant posture prior to being grabbed around the neck from behind by a police officer.  The officer put the decedent into a legally prohibited chokehold, yet he managed to gasp that he could not breathe.  Nevertheless, the officer, assisted by several other officers, continued to apply pressure to the deceased's neck, after he fell to the sidewalk, until he died.  As far as I am concerned, what I saw with my own eyes on TV last night was murder, but the Staten Island grand jury incomprehensibly refused to indict the officer.

The decedent on Staten Island was very obese, and it could be that the oxygen deprivation put such a strain on his heart that it went into arrest.  Most such chokeholds will cut off the blood supply to the brain and cause the recipient to pass out and go limp, which SHOULD serve as a signal for the officer to stop applying pressure.  I know this because I was trained to apply the chokehold during my lifeguard training years ago.  Regardless of what happened to the decedent physiologically, in my opinion he was murdered by the unwarranted and continued application of unnecessary deadly force.  I believe that the cop had reason to know that the force being applied COULD result in death.  I am of the opinion that he continued to unnecessarily apply the deadly chokehold with the apparent intent to maliciously kill the decedent.

A lot of additional information has come out about the events in Ferguson, Missouri.  The deceased may well have been a thug, but that is not why he was killed.  There has been no allegation that Officer Wilson knew anything about the decedent's criminal past at the time of death.  The decedent was repeatedly shot and killed after he ran away from, then turned toward the cop that shot him.  He refused to obey orders.  According to Lawrence O'Donnell on MSNBC's "Last Word", when the grand jury was empaneled in Ferguson, the assistant prosecutor introduced instructions to the jury that were a completely wrong statement of the applicable law prohibiting the use of deadly force to stop a fleeing suspect.  She supplied the grand jury with a corrective statement of the applicable law on the last day of its meeting, but she reportedly failed to call their attention to her earlier error and to the change presented.  The grand jury was reportedly confused by the conflicting instructions.

Another occurrence in Ferguson that bothered me is one very similar to one I experienced as a criminal defense attorney years ago, when I sought to have my client testify in front of a grand jury that subsequently indicted him for theft.  He might have explained to them that the issue was not theft but a case of civil dispute over who owned the subject piano!  My client was so accused by a vindictive woman who had rented him a guesthouse on her farm in Orange County.  She alleged that my client had given the piano to her, but when she evicted him, he took what he thought was his piano.  My client was prohibited from testifying in front of the grand jury that was considering his indictment because of the prosecutor's concern, validated by the presiding judge, that it would induce the grand jury to "try" the actual case instead of limiting its consideration to whether or not the prosecutor had enough evidence ("probable cause") to go forward with trial.

In Ferguson, the prosecutor (who refused to recuse himself and his office on motion) allowed Officer Wilson to testify in front of the grand jury as to what happened.  This basically invited the grand jury to "try" the whole case as a petit jury would, so there was no indictment in the Ferguson case, and the riots there followed.  I have not heard whether or not the officer in the Staten Island case was also allowed to testify before the grand jury there, but it is an important principle.  It makes me suspect that the "fix" was in in Ferguson, that the prosecutors there made every effort to ensure that Officer Wilson would NOT be indicted.

Most white people with whom I have spoken are outraged about the riots in Ferguson, Missouri.  They are incredulous that the imaginary monolithic "black community" did not restrain the looters and burners from their misbehavior.  Larry Wilmore, the "Senior Black Correspondent" on Comedy Channel's "The Daily Show with Jon Stewart" suggested last night that the "black community" no more restrained the Ferguson rioters than the "white community" restrained the white cops who killed unarmed black suspects.  We may be our "brother's keeper," but none of us is our brother's "guarantor."  It is beyond absurd and blatantly racist to suggest that law-abiding blacks had ANY responsibility whatsoever to risk their lives to rein in the looters in Ferguson.

Cops are out there to enforce the law, INCLUDING the Constitution, as they are all sworn to do.  They are obliged to observe AND DEFEND the rights and interests of suspects as much as victims, whether they agree with that or not.  Cops have the authority to use deadly force to defend themselves or others from IMMEDIATE danger, but they are not executioners, and they are not allowed to shoot down nor choke compliant suspects.  The US Supreme Court said so years ago.  If anyone is to be punished, it is up to the courts, not the cops.

Most cops are honorable, decent, professionally behaved people.  I have known many cops; I consider them my friends, and some of them have been my legal clients in past years.  Their jobs are often dangerous.  They keep order which benefits all of us.  But every honest cop is unfairly tainted by the few rogue cops, the few bad cops, yet they are afraid to speak out because they will be punished for doing so.  Unlike the "black community," police commanders have it within their power to unequivocally and unambiguously fix these problems.  Elected officials have it in their power to raise the necessary revenues (taxes) to hire good cops.  That ANYONE does not attend to these duties is abominable.  The burden of going forward is on the police and the politicians, not some imaginary "black community."

I am very angry about these summary executions of suspects by cops.  That is totally unacceptable to me.  It should not be tolerated by anyone who considers him/herself a law-abiding person.  That same "law" does not allow summary executions by cops.