Feb 23

Great Moments In Appellate Dissents

Courts and the Law Alex Kozinski, Fourth Amendment to the United States Constitution, great moments in appellate dissents, United States Court of Appeals for the Ninth Circuit Comments Off

Background: Under Maryland v. Buie, 494 U.S. 325 (1990), police who arrest a suspect in the suspect’s home are entitled to, even though they do not have a valid search warrant, conduct a protective sweep of the adjoining areas of the home, where an accomplice could potentially be lying in wait, for the purposes of officer safety.  Any evidence that they discover in the course of such a sweep can be seized under the ”plain view“ doctrine (i.e., police can seize items that they immediately recognize as evidence or contraband in an area where they’re lawfully present, even though that area is otherwise protected by the Fourth Amendment and police would normally require a warrant to search it). 

In United States v. Lemus, 582 F.3d 958 (9th Cir 2009), a panel of the U.S. Ninth Circuit Court of Appeals, relying on Buie, upheld a warrantless search of a suspect’s home although the suspect was arrested in the doorway of his residence with the police never having entered the premises prior to the search.  A judge of the court sua sponte called for rehearing of the case en banc, but rehearing en banc was denied.

Read as Judge Alex Kozinski, dissenting from denial of rehearing en banc, absolutely (and righteously) flenses the court.

Feb 23

Gun Control As Projection Bias

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Wikipedia describes projection bias, or psychological projection, as “the unconscious act of denial of a person’s own attributes, thoughts, and emotions, which are then ascribed to the outside world, such as to the weather, the government, a tool, or to other people. Thus, it involves imagining or projecting that others have those feelings.”

I’m put in mind of this by two things: a letter to the San Jose Mercury News addressing the recent Open Carry brouhaha in the Bay Area, and a Brian Doherty article at Reason which contains some choice quotes from a Brady Campaign lawyer.

Let’s take the letter, first, from one Laura Knapp of San Carlos:

Eric Kistler (Letters, Feb. 16) believes that Caroline Rackowski’s concern about meeting gun-toting patrons at Starbucks is illogical and shows her ignorance regarding firearms. I’m afraid I must side with Rackowski and inform Kistler that most of us will have the same reaction. What would be illogical is to assume that when you see a gun in a public place that it is unloaded and poses no threat from a so-called “law-abiding citizen.” It is Kistler who is ignorant about firearms if he believes that people will not call the police on him every time he walks near their children in a public place with a gun in plain view, because that’s the way law-abiding citizens deal with potential threats to their safety. Peet’s, anyone?

Consider this in light of the frequent allegations from gun controllers that gun owners live in unreasoning fear of crime and thus fixate unhealthily on firearms: here’s Ms. Knapp, who evidently regards an ordinary citizen, minding his own business as he peaceably goes about his day, as a threat against her or her children merely because he has a gun — unloaded, no less! — on his hip.  Her neighbor, who Ms. Knapp likely won’t give a second thought to as he climbs into his car, becomes a menace sufficient to warrant calling the police because of the mere presence of an inanimate chunk of polymer and steel.

And we’re the frightened ones?  We’re the ones who fetishize guns?

Now, the Doherty article points to a Washington Post profile of Tom Palmer, one of the original plaintiffs in the Heller case, and who is now suing the District of Columbia to vindicate his right to carry firearms in public.  Enter the Brady Campaign’s lawyer:

Jonathan E. Lowy, a lawyer with the Brady Center to Prevent Gun Violence, says he thinks the case, pending in U.S. District Court, is open and shut.

“To force the general public to be exposed to the risk of loaded guns when they are out with their family in public areas is outrageous and has absolutely nothing to do with the right to defend the home,” he says.

The lawyer’s rebuttal to Mr. Lowry is that what he says is factually correct but entirely irrelevant.  Carrying a loaded weapon around in public does, indeed, have nothing to do with the “right to defend the home.”  But the Second Amendment, according to Heller, does not protect a “right to defend the home”.  Rather, it protects an individual right to keep and bear arms, which the District’s categorical ban on firearms ownership infringed upon at least with respect to a handgun kept in the home for personal defense.  The Heller holding didn’t go further than that because the litigants didn’t challenge the entirety of D.C.’s regulatory regime, just the portion that prohibited them from owning guns in their homes.

Also, bear in mind that Washington, D.C. has, arguably, more armed law enforcement officers per capita than any other municipality in the nation.  Between the Secret Service, the Capitol Police, the DCPD, the FBI, the ATF, the Bureau of Diplomatic Security, and the dozens of other alphabet-soup bureaucracies with armed federal agents operating in the District, the general public is constantly exposed to the “risk” of loaded guns when they’re out with their families in public areas.

Something more than mere hypocrisy is behind this.  Talk to just about any gun control ideologue for any length of time, and you’ll meet someone who believes that he, personally, is not morally or emotionally equipped to comport himself appropriately while armed.  “I would not trust myself with a gun in a pressure situation,” you will almost invariably hear him say.  And because every gun control ideologue is also the most rational, sensible, and well-adjusted person he knows, he has convinced himself that everyone else in the world is also a morally and emotionally retarded jackass with poor impulse control, who thus cannot be trusted with a gun.

However, his experience with armed law enforcement officers has been that they’re not morally and emotionally retarded jackasses with poor impulse control, and that they can be trusted with guns.  In order to square this circle, he’s forced to conclude that there’s some secret component of law enforcement training that mystically alters mere mortals so as to cure them of their jackassery and convert them into righteous and responsible professionals, if not saints.

Which, as commenter Seerak quite accurately points out, is an expression of the wider premise implicit in the arguments of all regulationists and interventionists: that the same human beings who are too stupid to take care of themselves and live a virtuous life suddenly become paragons of rectitude and rationality when endowed with government power.

Feb 17

Quote of the Day II

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“First, the view that the government should censor the speech of people who do business in the form of corporations is rooted in the idea that free speech is an instrumental good that serves ‘democracy.’ That is the Progressivist interpretation that sees ‘democracy’ as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote ‘democracy.’ This is the opposite of the view of the Constitution’s authors: they believed that the fundamental constitutional value was liberty, and that democracy existed only to serve liberty. That’s why the first sentence of the Constitution declares that liberty is a ‘Blessing,’ and why the Constitution goes on to impose serious limits on democracy. In their view, speech is protected because individuals have the right to express themselves–not because speech has a relationship to democracy. Obviously they understood that free expression was good for democratic decision-making, but their primary concern was protecting the rights of individuals, not with preserving some vague conception of ‘democratic society.’”

Feb 17

Quote of the Day

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“The central contradiction in modern liberal politics is that Otto von Bismarck’s entitlement state for cradle to grave financial security is no longer affordable. The model has reached the limit of its ability to tax private income and still allow enough economic growth to finance its transfer payments.”

Feb 4

Healthcare and Political Philosophy

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I’m into it with my beloved cousin, again.  He writes, in relevant part:

we are not talking property or labor here Brett….what we are talking about is simple LIFE, LIBERTY and the pursuit of HAPPINESS. This is the right of every person walking the earth and is God Given. Problem is for the LIFE part you need Healthcare. Every other industrial nation in the world gets this except us.

I reply:

We *are* talking about property and labor, though, Josh. Your “right to life” means that government can’t arbitrarily take your life, i.e., murder you. It doesn’t mean that government is obligated to provide you with all the necessities of life, like food and clothing and shelter and, yes, healthcare. Those things are, as important as they are to human existence, commodities. They don’t grow on trees. Someone, for example, invests capital into becoming a doctor and setting up a medical practice. There is no political magic wand you can wave that gets around that reality. So when you say healthcare is a “human right” what you are really saying is that somebody else should be forced to provide you with healthcare — either the doctor himself, or taxpayers.

Yes I am saying that my country absolutely is obligated to do that! Bret, we already do and in a much much much more expensive way! We pay when they go to the ER and can’t pay for it. We pay for that with our taxes and our premiums. So why not offer them preventative care at a lower cost and take care of our citizens? The Constitution also does not state that corporate interests have the right to make life or death decisions regarding citizens of the United States. People who constantly try to throw the Constitution into the argument regarding modern complex issues either have no better ideas or no real argument for their cause. I still have not heard one person explain why it is BAD for government to help a sick citizen but OKAY for a corporation to refuse to cover them and allow them to die.

Let’s unpack that, a little at a time.

“Yes I am saying that my country absolutely is obligated to do that!”  But that’s the thing, Josh — it’s not “your country” that’s going to foot the bill.  Sure, the check might be drawn on the U.S. treasury, but the actual greenbacks come from other people.  So, again: you are saying that someone else, some other person, should be forced to provide you with healthcare.  That’s quite a controversial proposition given the American ethos of self-reliance and self-sufficiency.

“Bret, we already do and in a much much much more expensive way! We pay when they go to the ER and can’t pay for it. We pay for that with our taxes and our premiums.”  Nobody’s defending the U.S. healthcare system as a model of efficiency, but it’s only true that “we all already pay” because emergency rooms are required by law to treat anybody who walks in the door (nobody is compelled to pay higher insurance premiums resulting from indigent care, since nobody — at least for now — is compelled to buy medical insurance).  So repeal the law; using emergency rooms as primary care facilities for the indigent is an exercise in forcing a square peg into a round hole anyway.

“So why not offer them preventative care at a lower cost and take care of our citizens?”  Preventative care doesn’t save money.  Making preventative care available to everybody as part of a healthcare reform bill will actually raise costs, not lower them.

“The Constitution also does not state that corporate interests have the right to make life or death decisions regarding citizens of the United States.”  Quite so.  This is because the Constitution is a charter for a national government and not some loopy anti-corporate manifesto.  The Constitution is concerned with what government may and may not do, not with what citizens and corporations (who are really just associations of citizens) may and may not do.  A medical insurance company’s right to pay or not pay a claim derives from a voluntary contract between it and the policyholder.

“People who constantly try to throw the Constitution into the argument regarding modern complex issues either have no better ideas or no real argument for their cause.”  Er.  You were the one who brought it up, my friend.

“I still have not heard one person explain why it is BAD for government to help a sick citizen but OKAY for a corporation to refuse to cover them and allow them to die.”  Let me take a stab at it, then.

1. It’s not inherently bad for government to help a sick citizen.  It only becomes bad when government does so by infringing on the personal or economic freedoms of other citizens, as by saddling them with mandates and taxes.  A point I’ve made over and over again here is that socializing (in the spreading-it-around sense) injustice is not the same as redressing it.  Some injustices, like chronic illnesses, simply cannot be redressed.  Life sometimes simply drops a crap sandwich on your plate.  Forcing the rest of us to take a bite doesn’t change the taste.
2. It’s okay for a medical insurance company to refuse to cover a citizen because medical insurance companies aren’t charities.  The owners of a medical insurance company have made a capital investment in the company; the company’s board and managers, in turn, have a legal obligation to conduct the business in a way that maximizes the value of that investment.  Given the nature of insurance (any insurance, not just medical insurance), it’s frequently the case that refusing to cover a high-risk consumer is a more financially prudent course. 

I hope that helps.

Feb 1

Visualizing A Spending Freeze

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The Political Math guy is back, this time with a visualization of President Obama’s proposed spending freeze:

Again, I’m not opposed to the freeze.  But it should be understood as a baby-step concession to fiscal reality by an administration that has long been living in la-la land, rather than as a serious attempt to wrestle with the country’s budgetary trajectory.