Author: Mike

I am a patent attorney in Lexington, Kentucky. My law firm web site is http://www.coblenzlaw.com. I ran for State Representative in 2010 and lost in the primary. Many of these posts are based on writing that I did for that election. Rather than delete it all, I decided to dump it onto the internet.

A Thousand Laws

A Thousand Laws

It is a standard talking point of supporters of gun rights when they oppose new gun laws: there are already thousands of gun laws on the books. Why not enforce those? NRA Executive Vice President, and chief spokesman, Wayne LaPierre said “we need to enforce the thousands of gun laws that are currently on the books” in his testimony before the Senate Judiciary Committee on January 30, 2013.

The implication of this statement is that all of the gun laws on the books deal with public safety. But is this really true? Not really. Let me give you an example. Kentucky, like most states, has a variety of hunting seasons. For example there is a short “muzzleloader” deer season, in which hunters using old-fashioned muzzle loading weapons are allowed to hunt. There is a law that governs this season, so this is a gun law. But is it a gun law that implicates public safety? And does the possible non-enforcement of this law harm the general public, or just deer hunters (and of course deer). There is also a season for modern weapons, and according to Kentucky law this cannot be a weapon that fires more than one round per pull of the trigger. (301 KAR 2:172. Subsections (10) & (11). )

Kentucky Revised Statute Chapter 150 deals with the management of fish and wildlife in Kentucky, and this chapter contains numerous statutes that deal with weapons and firearms. There is a provision that allows conservation officers to carry weapons, there is a provision that prevents the discharge of a weapon across a public roadway, and by a person under the influence of alcohol. Clearly some of these provisions deal with public safety issues, but others deal more specifically with hunting management issues.  

Clearly there are many gun laws that do deal directly with public safety, such as gun free zone laws, and criminal penalty enhancement laws that increase the criminal penalty for the use of a weapon during the commission of a crime. But just as clearly there are many “gun laws” that have no direct bearing on public safety.

The next time an opponent of gun laws says that there are already thousands of gun laws that are not enforced I would challenge them to provide a comprehensive list of those laws, explain which ones have a direct bearing on public safety and which don’t, and quantify when and how they are enforced or not enforced. Until they do, these statements are little more than hot air.

Barr versus the Deficit

Representative Andy Barr wrote an editorial in Monday’s Herald Leader explaining his decision to vote against disaster relief aid for the victims of Hurricane Sandy. Rep. Barr said that his highest priority was “addressing our national debt crisis and getting our financial house in order, so we can get our economy back on track and Americans back to work.”

Herald Leader Link

I have a couple of comments regarding that statement. First, if the deficit is the single highest priority, than it must be reduced by any means, including across the board cuts, and revenue (read tax) increases. Rep. Barr has not yet had the opportunity to vote on tax increases, but I suspect that he, like most conservatives, will vote against them, claiming that they will hurt the economy. That’s fine, but that means that not raising taxes is a higher priority than deficit reduction. I also suspect that Rep. Barr will oppose any cuts to the military, and will, like most conservatives, claim that cutting the military would harm national defense. Again that is fine, but it means that national defense is a higher priority than deficit reduction.

My second comment concerns the implication that the deficit is somehow the cause of the nation’s economic woes. There is no doubt that large deficits can draw money into the government that would otherwise go to other areas of the economy. But the recent increase in the deficit is as much, or more, a product of the economic slowdown as the cause. As the economy slowed, due initially to the collapse of the housing market, tax revenues decreased, which meant that the deficit increased. The deficit ballooned because the economy slowed and shrank. Reducing the deficit is certainly important, but because it did not cause the economic slow-down, its reduction won’t impact the economic problems that did cause the economic slowdown.

My final comment involves specific government spending cuts. Andy Barr ran for Congress in 2010 and 2102. During both races he talked a lot about cutting government spending, but it was always in the abstract. He never really addressed specific cuts. He never said he wanted to cut this program or end that program. It was always very vague. Now that he is in Congress he has the opportunity, if not the obligation, to specifically describe those programs he wants to trim or eliminate. I look forward to that.

When the NRA wanted to be “Reasonable”

Apparently, in 1999, after the Columbine school shooting, the NRA supported universal back-ground checks for all gun purchases. They said it was a reasonable position.They actually bought an ad in USA Today, which said:  “We believe it’s reasonable to provide for instant background checks at gun shows, just like gun stores and pawn shops.”

Here’s the link to a Salon.com article, which contains a number of links to background articles. The NRA once supported background checks. 

Debate? Really?

The newspaper this morning had a headline that said “Gun Debate Continues.”

Really, I thought, debate? Does anyone really think we have an actual debate in this country over anything? It’s really more of a mutual shouting match.  In fact it’s more of mutual and uncoordinated shrieking.

Proponents of stricter gun laws trot out some kids, or former Congresswoman Gabrielle Giffords, to raise the emotional component, and the opponents scream about confiscation of guns and revisiting 1776 to stoke fear. Where is the debate in that?

For the most part I have heard very little hard data, or thoughtful historical analysis. It is all emotion, all the time. And it is not a debate by a long shot.   

A Proposal For Term Limits

[Note: This was published in the Lexington Herald-Leader on January 26, 2013]

When he was running for Congress, Representative Andy Barr supported a Constitutional Amendment limits the number of terms for Senators and Congressmen. He endorsed limiting members of both houses to a total of twelve years of service: two terms for Senators and six for Representatives. Proponents of term limits say that far too many politicians become entrenched in Washington and more concerned about re-election and post service opportunities than about their constituents. Supporters also say that the current system is effectively undemocratic and note that in 2012, despite the widespread hostility toward Congress, 97% of the incumbents that ran for re-election won.

There’s a great deal of truth to these concerns, but there are also problems with term limits. Political influence comes with seniority, and this power can benefit the politician’s home state. Many small states exert outsized influence through a long serving elected official. Kentucky certainly benefits by having Mitch McConnell, the current minority leader, as our senior Senator.
This is not the only benefit of long service. With seniority comes knowledge, experience, and expertise. New congressmen lack knowledge not only of congressional procedures, but also the substance of government policy. Few are elected to Congress with expertise in the arcana of foreign policy or the defense budget, the details of agricultural subsidies or the complexity of Medicare. Because of this inexperience, new Congressmen must rely on the expertise of others. Their staff can help in matters of procedure, and there some policy experts on committee staff, but in many cases it is unelected government bureaucrats who provide advice. Specialists within the Department of Agriculture, for example, provide assistance on agricultural policy. In many other situations, however, it’s lobbyists who teach Representatives about the lobbyist’s industry and the laws that govern them.

Term limits will limit a politician’s expertise, and they will be forced to rely on unelected experts for policy advice. This, I would argue, is precisely the opposite of what the supporters of term limits want, which is to shift political power from Washington back to the citizens.
Is there a way to get the benefits without the drawbacks? I think there is, and use history as a guide.

Under the Articles of Confederation—which governed the nation after independence and before the Constitution was adopted—delegates to the Congress of the Confederation were limited to serve for three out of any six years. There was no limit on the total number of years a delegate could serve. This ensured that a delegate would spend half of his time in his home state, and wouldn’t lose touch with the concerns of home, and wouldn’t become beholden to the national government. This was also a proposed amendment in the First Congress, which was debated but rejected.

I think this is the kernel of a good idea. I think there should be no limit on the total terms a Senator or Congressman could serve, but there should be a limit on consecutive terms. My proposed amendment would say: “While there is no limit on the total number of terms served, a member of the House of Representatives is limited to five consecutive terms, and a member of the Senate is limited to two consecutive terms.”

This means that a Senator could serve for twelve years and a Representative for ten years, but could not then run for re-election. They could, if desired, run again after sitting out for a term.

This would break the incumbent lock on re-election, which would increase democracy, but wouldn’t deny the people of a state the seniority or expertise of an elected official. Under this system, when a politician’s consecutive terms were up, he or she might chose to run for another office. A congressman might run for a state legislative office, or a judicial post; a senator might return home and run for governor. This would keep qualified and experienced people in government. States would benefit from the national experience of returning politicians, and the national government would benefit by having politicians intimately familiar with state concerns.

This proposal, I believe, would achieve the goals sought by the supporters of term limits, but without the unintended consequences feared by opponents.

The Hobgoblin of a Little Mind

“A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” Ralph Waldo Emerson, from the essay Self Reliance

Senator Rand Paul took boyish delight in pestering Senator John Kerry at his confirmation hearings for Secretary of State over the fact that as a candidate Barack Obama had said “the president doesn’t have the power under the Constitution to unilaterally authorize a military attack.” But as president he did something much different in his support for NATO action in Libya in support of anti-Gadhafi rebels.

He sounded giddy when he asked: “I’d like to know if you agree with me and candidate Barack Obama, or if you agree with President Barack Obama who took us to war in Libya without Congressional authority unilaterally?”

See, he had caught Obama being inconsistent, which apparently, to Senator Paul, proves something deep and disquieting about Obama.

But what does inconsistency prove?

Have great statesmen ever been inconsistent?

Well, here are a couple of examples of inconsistency from the founding period.

Alexander Hamilton left the Constitutional Convention in disgust on June 30, 1787, saying that the document they were creating would ruin the nation. He returned in early September, and signed the final document, though he noted his disapproval of some measure. He then went on to be the coordinator and chief author of the Federalist Papers, which were fundamentally important in the ratification of the Constitution. What a flip-flopper.

James Madison, during the debate in the First Congress over the bill to charter the first Bank of the United States, said that the Constitution should be interpreted according to the understanding of men who wrote it. During other debates he said that the meaning of the Constitution was the meaning as understood by the men who ratified it in the states, and not by the Framers. During the debate over the second Bank of the United States Madison said that the meaning of the Constitution was determined by actual use and public acceptance. Finally, after he had retired from public life, he was asked about Constitutional interpretation and said that the understanding of the actual framers was unknowable and irrelevant. That dude was all over the place.

Thomas Jefferson ran for President in 1800 against President John Adams. Jefferson noted that many of Adam’s actions exceeded the scope of Presidential powers, and he said that the powers granted by the Constitution should be strictly construed. Then, in 1803, when France was having a fire sale on foreign territory to fund their European wars, Jefferson bought the Louisiana Territories, despite admitting both at the time and later, that this clearly exceeded his powers as president and violated express provisions of the Constitution. What a hypocrite.

So, what does this say about Hamilton, Madison and Jefferson?

And what does it say about Senator Paul?

Senator Paul, I Beg to Differ

In his questioning of Secretary of State Hillary Clinton regarding the attack in the U.S. Consulate in Benghazi, Libya, Senator Rand Paul said: “had I been President at the time and I found that you did not read the cables from Benghazi, you did not read the cables from Ambassador Stevens [regarding security concerns] I would have relieved you of your duties.” I doubt it.

Rand Paul is a political zealot. Rand Paul is committed, above all, to his political ideas. He is not merely an obstreperous jerk (as some liberals unfairly claim), but is committed to his ideals because he honest believes that they are right. He believes that his views of politics and economics are correct, and if followed will cure many of the nation’s ills. His zealotry is pure, so I cannot fault him for it. I do not think, and would never claim, that he is self-serving or power-hungry. I do not believe that he is in any way. But he is absolutely, positively, completely convinced that his philosophical, economic and political beliefs are correct. And he is burning with passion to impose those views, and the policies that emanate therefrom, onto his nation. And he does this because he honestly believes that those policies will solve many of the nation’s problems. This, then, is a deeply committed partisan ideologue, which in common parlance is known as a zealot.

And like most zealots his loyalty is to his beliefs, and as a result, his personal loyalties are to those who share his beliefs. This is because the only way to achieve the desired political goals is with staunch and unwavering political allies.

And so, if Paul was president (a future scenario that is extremely unlikely) and he had a Secretary of State who was a political ally, and that Secretary of State did something objectionable (like ignore security warnings), I doubt seriously that imaginary future president Paul would relieve that person of his duties. I believe that imaginary future president Paul would fervently defend his friend and ally against scurrilous accusations.

I think that we have some recent history that supports this contention. Did President Bush relieve his national security adviser (Condoleezza Rice) when she ignored national security advisories in the summer of 2001 that said that Osama bin Laden was planning attacks in the United States? No. Did President Bush relieve his Secretary of Defense when it proved that he had completely failed to plan for the post invasion occupation of Iraq? No again.

In both cases political loyalty and ideological compatibility trumped competence. I have little doubt that the same policy will hold true in the imaginary future presidency of Rand Paul.

The New World Economy

The world economy is in the midst of dramatic changes, driven largely by technology. Automation is replacing industrial workers, and now computer technology is starting to replace many office workers.

This will have a dramatic impact on the world and the American economy, and on the lives and opportunities of many Americans.

Politicians argue about debt limits and tax rates, but those will only have a small impact on the economy. The real impact is technology.

The Associate Press is running a series of articles on the impact of technology on the world’s economy. A link can be found here: Recession, Tech Kill Middle-Class Jobs.

The link is to a Windstream news feed and I can’t guarantee its usefulness.

Here are three key quotes that neatly sum up the report:

  • For more than three decades, technology has reduced the number of jobs in manufacturing. Robots and other machines controlled by computer programs work faster and make fewer mistakes than humans. Now, that same efficiency is being unleashed in the service economy, which employs more than two-thirds of the workforce in developed countries. Technology is eliminating jobs in office buildings, retail establishments and other businesses consumers deal with every day.
  •  Thanks to technology, companies in the Standard & Poor’s 500 stock index reported one-third more profit the past year than they earned the year before the Great Recession. They’ve also expanded their businesses, but total employment, at 21.1 million, has declined by a half-million.
  • Technology is replacing workers in developed countries regardless of their politics, policies and laws. Union rules and labor laws may slow the dismissal of employees, but no country is attempting to prohibit organizations from using technology that allows them to operate more efficiently — and with fewer employees.

Notes on the Gun Control Debate

Listening to the debate over gun rights and proposals to regulate guns, I’ve noticed three fairly glaring errors of logic in the arguments of the opponents of gun control.

1.    The Second Amendment is Inviolable.

Proponents of gun rights suggest that the right to bear arms under the Second Amendment is absolute and cannot be limited. But every constitutional right is subject to some manner of reasonable restriction. Probably the closest example is the First Amendment right to freedom of speech.

The Constitution says “Congress shall make no law … abridging the freedom of speech, or of the press.”

Despite this blanket and absolute ban (“make no law”) there are numerous restrictions of the ability to say, write, or publish things. There are laws against obscenity; there are laws against defamation (slander and libel); there are copyright laws that limit one person’s ability to use or incorporate another person’s words or expression; there are a wide variety of time, place and manner restrictions (can’t amplify sound after a certain time, must obtain parade and rally permits, etc. etc.); and there are restrictions on words as action (“fighting words”, yelling “fire” in a crowded theater, claiming “free speech” as a defense against charges of conspiracy.)

The courts have long recognized that there must be reasonable restrictions on every right. In fact the Fourth Amendment right against unreasonable search and seizure is now a Swiss cheese of restrictions around a few holes of rights. And the Supreme Court, in Heller (District of Columbia v. Heller, 554 U.S. 570 (2008), the case that said that the Second Amendment conferred an individual right to bear arms) said that there can be reasonable restrictions on gun rights.

2.    The Slippery Slope.

Yes, the proponents of gun rights say, there can be “reasonable restrictions,” but the reality is that if we start with “reasonable” restrictions we will never stop, and eventually—and inevitably—we will have the confiscation of all guns. This is the slippery slope argument. But how valid is it.

Again we can use the First Amendment as an example of the fallacy of this argument. Over the course of two hundred years of American history, there have been many different restrictions on the right of free speech, but there has never been a serious attempt to abolish it completely.

Within a few years of the adoption of the Bill of Rights, the Federalists under President John Adams pushed the Sedition Act through Congress. The Sedition Act made it a crime to criticize the President or the government. (It was passed against the back-drop of the French Revolution and legitimate concerns that French agent-provocateurs might foment instability in America, and was paired with the Alien Act, but most contemporaries thought foreign dangers were widely overblown.) The Sedition Act clearly violates the First Amendment, and Adams’ political opponents (Thomas Jefferson and James Madison, and the Democratic-Republican Party) howled in outrage. Under this law, newspapers were shut down, and editors were prosecuted and imprisoned. Even many Federalists were shocked by this blatant power grab, and it contributed to the election of Thomas Jefferson in 1800, and the demise of the Federalist Party.

Throughout our history, particularly during periods of concern over foreign turmoil, the government has cracked down on speech in a manner clearly in violation of the First Amendment. There have been a number of variations of sedition laws, restrictions on certain forms of speech, and loyalty oaths that clearly punish people for opinions that should be protected under the First Amendment. Despite this, there has never been a serious attempt to allow government censorship. There has always been an ebb and flow, and now we have one of the freest and open societies in the world.

In other words, despite the fact that those wanting to restrict certain speech have succeeded, we have never started down the slippery slope to total government censorship. And despite previous restrictions we now have an extremely open version of free speech. Did you know that nude dancing and pornographic depictions of people engaging in sexual activity is protected as free speech?

If anything, despite the attempts by some to restrict free speech, we have not gone down the slippery slope, we have actually gone the other way. So why would the slippery slope work differently for the Second Amendment than it has for the First?

3.    The “Real Motive” is the total elimination of the private ownership of guns.

OK, gun right supporters say, perhaps it hasn’t happened with the First Amendment. But, some argue, the reality is that those who are now pushing for what they call “reasonable” restrictions, really want a total ban on private gun ownership.

This is an argument I’ve always enjoyed. I find it fascinating that some people think that they can read other people’s minds, see into their heart, and deduce their motives. Some people believe that despite what other people say, they know what they really mean.

There are any number of problems with this argument.

The first, and most obvious, is that it is silly. Really, conservatives? You really believe you can read minds? You really believe that you know what is in other people’s heart and soul?

A second problem is that it implies bad faith. It implies that those who say they want “reasonable” restrictions are liars, and are willing to engage in deception to get their way. Once you accuse your opponent of being deceitful, you poison the well, which makes it difficult to have an honest debate on any issue. And accusing your opponent of bad faith leaves you open to challenges of bad faith, which leads to a downward spiral. Sound familiar?

A third problem is that it imposes the views of a radical minority on the majority. There are certainly some people who support a total ban on all private ownership of guns, but it’s a tiny minority. Conservatives howl when liberals imply that every member of the Tea Party is a racist simply because a few kooks carry racist posters at a rally. The crazies, they say, don’t represent the majority. The same holds true for liberal groups and ideas.

A fourth problem is that it is, more often than not, wrong. We can look at the ebb and flow of the restrictions on the First Amendment to see that. Even those who restricted some forms of speech never attempted to eliminate all forms of speech.

We have also had, throughout our history, different levels of gun control, and there has never been a serious attempt at a total ban. During the 1920’s and the rise of the American Gangster, Congress passed a number of gun restrictions (with the support and endorsement of the NRA, it should be noted). And did they keep going? Nope. During the 1960’s Congress again enacted gun control legislation, in part to limit the ability of black nationalists to carry weapons (and again with NRA support). Were more restrictive gun control measures in the pipeline? Nope.