Another Post I Wish I’d Written

I was thinking about taking to fisk President Obama’s call for “common sense” gun control legislation that I heard part of on the radio driving to work this morning because parts of it… just didn’t sit right with me. But Ken White beat me to it.

About the only thing I see missing from Ken’s analysis is that the President has an institutional role to play, a role that involves emphasizing the effective functioning of the government and thus invoking both public safety and democracy, regardless of policy preference or partisanship. So yeah, that’s going to necessarily mean that any President is going to make appeals to those things.

Go read the post. This is what lawyers blogging is all about.

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142 thoughts on “Another Post I Wish I’d Written

  1. Referring to rights is pretty much akin to secular religion among US pols.

    I’d actually be interested in a discussion of the actual measures he is doing. I’ve heard the completely predictable “he’s ending liberty” from the Paul Ryan crowd but is he going beyond the accepted powers of a prez. I only briefly glanced at the measures but they sounded like nothing that cosmic; either to accomplish much nor harm peoples rights or get in the way of owning guns.

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  2. Oh yeah, a question. I like Ken White, very thoughtful and all. But he states this
    “Here the President is invoking the Second Amendment equivalent of Trope Five, saying that Second Amendment rights must be balanced with other rights. If he said that about the First Amendment, I’d say he’s flat wrong. ”

    Isnt’ he wrong here. Of course the first amendment is balanced against other things. Most obviously you can’t make true threats and get away with it because its the 1st or state secrets. Maybe its the wording or overly simplfied, but i do believe KW knows you can’t make true threats. Or is that somehow not allowing TT’s isn’t considered a 1st issue?

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    • I commented a lot on the piece over at Popehat, but one of the points Mr White attempts (and IMO fails) to make is that the Constitution only recognizes negative rights, and argues that being protected from criminal violence isn’t a negative right.

      I don’t think much of the post, which falls well short of his usual high standard IMO.

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      • being protected from criminal violence isn’t a negative right.

        There is more to it than that.
        Like the First Amendment doesn’t protect private speech, because the regulation of private speech is outside the purview of government, so too are the acts of private actors.
        However, protection from state violence and criminality is definitely a right, as is also the right to be free from a state-created danger.

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        • No, but consider, say, the jihadist lunatics who kill people for drawing cartoons (which are free speech). I’d say such lunatics are, in fact, violating people’s rights to free speech[1], and that the state should treat such lunatics as a threat to free speech, even if the lunatics, being private actors, aren’t and can’t violate the First Amendment. I don’t think this perspective actually commits someone to a government of any particular “size”; the so-called “Night Watchman” state favored by many libertarians does very little, but it provides protection against criminal violence.

          The Bill of Rights are a starting point for liberty, not an ending point. The rest of the Constitution is a tool for going beyond that. I think they’re a good starting point, because the aim to keep that tool from being turned against its proper purpose, and they focus on the ways that’s most likely to happen.

          [1] I think this view is especially compelling if you have a philosophy were natural rights exist independently of the state and the Constitution just recognizes them, which is commonplace.

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          • “I’d say such lunatics are, in fact, violating people’s rights to free speech[1], and that the state should treat such lunatics as a threat to free speech, even if the lunatics, being private actors, aren’t and can’t violate the First Amendment.”

            This statement (and accompanying footnote) do a good job of identifying the distinction between free speech and the 1st Amendment.

            I can hold my hand over my 2-year-olds mouth. I’d be violating his right to free speech. I would not be violating the 1st Amendment because the 1st Amendment does not pertain to me. It is a limit on government. But non-government actors can violate speech rights (though there is lots of room for discussion about what actually constitutes a violation and what is more an imposed consequence).

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            • said:

              But non-government actors can violate speech rights (though there is lots of room for discussion about what actually constitutes a violation and what is more an imposed consequence).

              For me, I think that as long as people are merely exercising their own rights (to freedom of expression, association, property, et c.) that no one’s speech rights are being violated. It only becomes an issue when they step outside those bounds, and the government can (and should) address those cases when possible.

              That obviously means enforcing the law when people commit crimes to silence speech they don’t like, but it also includes (say) anti-SLAPP laws, which make it harder to use the resources and power of the state to chill speech by defending against spurious defamation suits (even though the First Amendment allows for defamation suits).

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          • the lunatics, being private actors, aren’t and can’t violate the First Amendment.

            That is problematic in the sense of available remedy.
            No injury, no accrual of cause — no standing in a court of law.
            Equitable relief in the form of a declaratory judgment or an injunction might be available, but there are significant hurdles to establish certain elements; e.g., I believe some effect on future speech would be necessary to show, rather than simply an aggression based entirely on past speech.
            As “courts adjudicate the rights of parties,” the rights of a state would have to be invoked to gain access to criminal courts.

            It is fairly rare that any violation would rise to the level of constitutional proportions.

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            • H., is your objection that an individual can’t sue to compel the government to prosecute someone for a crime[1] or for failing to protect them from a crime?

              Because my general belief is that judiciary is only one branch of three, and all of them are (or at least should be) focused on protecting our rights, first and foremost. It’s just that they function in different ways, and one can petition and influence them in different ways. The resposibilities of the legislative and executive branches for protecting our rights are much less formal, and are “enforced”, as it were, through political processes.

              The argument I’m making is much more philosophical than legal, which is (I believe) appropriate for political debates about what the scope of our rights are, and how they should be protected.

              [1] Is this actually true? I was under the impression that in extraordinary circumstances it could happen….

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              • an individual can’t sue to compel the government to prosecute someone for a crime or for failing to protect them from a crime

                The first is true. Prosecutorial discretion is pretty much absolute.
                The second is a bit more complicated. There are certain instances where a colorable claim would lie; e.g., disparate treatment, or a state-created danger. Outside of those two examples, I just don’t see it.

                judiciary is only one branch of three

                True, but prosecutors actually operate under the authority of the executive. That is the power which grants them authority to make plea deals. It can also revoke common law immunities, but that is fairly rare.

                The argument I’m making is much more philosophical than legal

                Ok, very simple then:
                Either: 1) Our laws are inadequate to protect the rights of the people, and new legislation must be enacted; or 2) Our courts are inadequate to adjudicate our laws.

                I say both are true.

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    • I think his thoughts on “balancing” are well expressed in trope 5:

      “Balancing,” when used as a colloquial description of how courts decide whether speech is protected, is almost always wrong. American courts don’t weigh the value of speech against the harm it does. When speech falls into an established exception to the First Amendment, as discussed above, no balancing is necessary; it can be restricted. When it doesn’t, balancing of its “value” against other interests is almost always prohibited.

      So since true threats fall into an established exception, there is no need to demonstrate that a particular threat has negative consequences; on the other hand, for speech outside of defined exceptions, a demonstration of harm to some other interest cannot be the basis for restriction.

      This is a pretty aggressively legalistic view, IMO, which leaves the reasoning behind both the right and the exceptions out of the picture; in the bigger picture, I think many exceptions, including true threats, can easily be framed in terms of balancing.

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      • The analogy here is clear enough to me.

        When a court “balances” the right to keep and bear arms, it will do so by holding that a law punishing someone doing something that someone does involving a weapon is simply not within the scope of that right at all.

        The analysis supporting that holding will be based in part upon a historical assessment of what the right to keep and bear arms was. (Some schools of jurisprudence suggest that the analysis stops at this point.) The Heller case contains an impressive historical survey of what it meant for a person to have a firearm in the late eighteenth century. Just as we can do research to determine that the right to free speech never included the right to defame someone, so too can we do research and find out whether or not the right to keep and bear arms never included the right to have private artillery. (Maybe it did, maybe it didn’t, I don’t know.)

        It will be based in part upon an identification of the governmental interest at play in the law used to support the punishment of the act involving a firearm, and an analysis of whether the government was sufficiently respectful of the basic right to keep and bear arms in the drafting and enforcement of that law. The Heller case involved a flat ban on handgun possession, which went too far even in the pursuit of the supposedly compelling interest of preventing handguns from being used to kill people. So by analogy, the government may restrict certain kinds of speech in certain circumstances — for instance, the disclosure of state secrets to the media can be punished because this significantly implicates national security.

        And it will be based in part upon distinguishing between a reasonable regulation of the weapons, and an effective prohibition on them. In the realm of free speech, there can be time, place, and manner restrictions — the right to free speech does not always include the right to turn the volume up to eleven. So too does the right to keep and bear arms not necessarily exclude a requirement that the weapon be registered as belonging to a particular person and requiring that the weapon be stored and used in a safe manner.

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    • Sure, you can’t make true threats, but A) the “true threats” exception to the First Amendment is based on the concept of imminent harm, much the same way that brandishing a firearm is a criminal act even in open-carry states, and B) it’s not like the prosecutor just has to say “true threat” and the judge replies “okay then, guilty as charged”.

      If you want to say “oh, well true threats are an exception to the absolutely-protected right of speech”, that’s correct, but it’s not as much of an exception as you think; it’s more illuminating in how limited and contentious an exception it is.

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        • You’ve got a pretty long row to hoe if you want to go from true threats to “it’s OK to ban guns”.

          One might suggest–as I did–that existing proscriptions against brandishing firearms, which even the hardest of hardcore gun-rights activists are OK with, cover the same ground.

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        • Saying something has limits is a different thing than saying that those limits are derived by way of balancing. When people say that speech rights are balanced it implies that courts are weighing harms and conceding to limits once the scale tips at some specific point.

          I take White’s point to be that is not how contemporary First Amedment jurisprudence works. Rather, exceptions to the First Amendment are categorical differences and not differences of degree.

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    • Most obviously you can’t make true threats and get away with it because its the 1st or state secrets. Maybe its the wording or overly simplfied, but i do believe KW knows you can’t make true threats. Or is that somehow not allowing TT’s isn’t considered a 1st issue?

      There’s actually a few places we restrict the first when it comes into conflict with other rights.

      We don’t allow political signage and promotion within X yards of voting booths, because someone’s right to cast a vote in peace is stronger than someone else’s right to political speech. (And political speech is the most protected form of speech there is.)

      We don’t allow people to lie in court, despite lying being protected by the 1st amendment. Someone’s right to a fair trial is stronger than the 1st amendment.

      Those are just two I can think of offhand.

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  3. This is a nice distillation of something I’m seeing more and more: the rise of GR absolutism. And that makes perfect sense from an ideological pov: either rights are absolute or they’re not. Anyone who says “I believe in right X, but …” clearly indicates they don’t know what a right is.

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    • Really? He ended with this:

      How broad is the individual right recognized by the Second Amendment? I don’t know. I don’t pretend to be a Second Amendment scholar, and we’re starting nearly from scratch with the analysis. I suspect that the courts will find that the Second Amendment doesn’t let you do whatever you want in connection with weapons, that it allows some forms of regulation of their ownership and use, and that both gun control advocates and Second Amendment advocates won’t like the result.

      Which says to me, the right is not absolute, but we don’t know right now what will pass muster & what won’t. Which is pretty clearly NOT a GR absolutist position.

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      • Oscar,

        It’s a bare fact that the SC hasn’t ruled on the scope of the 2nd amendment. But I see this type of reasoning all the time, frequently right here on this site, ie., an argument by cases against any type of rhetoric, proposal, goal, purpose, etc. ostensibly invoked to justify either restrictions or a change in culture regarding guns and gun violence. The burden imposed by such reasoning is to defeat an otherwise absolutist right to bear arms.

        Which is fine. I’m just seeing it more and more frequently, and in more pronounced forms. (Constitutional carry and so on.)

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      • Oscar, I’d also add that this comment from KW to pillsy

        How do you determine what rights your right to life gives you, with respect to what the government is obligated to do to me?

        is at least consistent with what I’m getting at up there. (The context is pillsy offering a distinction between positive and negative rights as they apply to the right to bear arms – which is a very perceptive and nuanced view of things. And nice comment over there . You’re the type of thoughtful commenter I strive to be (usually after the fact, but still…).

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        • I don’t like the term “positive rights”, it gets people messed up.

          Rights (negative rights) are the things you are allowed to do that the government can not interfere with except in very specific, limited cases.

          Duties (positive rights) are the things the government is obligated to do on your behalf.

          So a person does not have a “right to life”, as such*. What a person does not have is a ‘right to take a life’ (a right to kill other humans). What there is, is a duty on the government to exercise it’s powers to discourage/prevent the taking of human life by others. It does this by creating laws against killing, and then prosecuting those who violate those laws.

          Rights are rather fixed, duties are exceptionally malleable, except as they conflict with rights, then we have to have discussions & debates & judicial reviews, etc. to see if we can find a way to reconcile the desired duties with the right in question.

          *From a property rights perspective, everyone has a right to own property. Government has a duty to discourage the taking of property. Your life is your property, ergo…

          This is pretty raw, I’ve had a long day and just put this together as such. Feel free to demolish it.

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      • Which says to me, the right is not absolute, but we don’t know right now what will pass muster & what won’t.

        What does the Heller opinion say?

        Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons…

        I may be proven wrong at some point, but I think Heller’s scope was pretty limited, and it strains my imagination to come up with a plausible argument to strike down something like a ban on high capacity magazines on constitutional grounds. I read the decision around the time it was handed down and I didn’t recall there being much in the majority opinion that could be used to strike down a broad range of regulations, but I’d need to read it again to confirm it.

        Unfortunately, the decisions in Heller and McDonald’s have given the GR crowd legal ammunition, no pun intended, to push their arguments further. Meh. It happens.

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        • Kinda my point.

          I’m sure a magazine limitation is perfectly legal (last two World Wars were fought with magazines under 10 rounds). I’m less confident it’ll do a damn bit of good, given this.

          (Note: magazines are one of the parts of a firearm that are the least stressed, so while a plastic magazine won’t last as long as a metal one, if I want to commit mass murder, it’ll last long enough.)

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    • I’m seeing more and more: the rise of GR absolutism…

      I’m seeing that as well, and what bothers me about most is the invocation of an insurrectionist view of the 2A – that the 2nd Amendment enshrines a constitutional right to bear arms as a check against a tyrannical federal government.

      I guess people forget that it was anticipated that the states themselves were best suited to check federal tyranny, especially when said tyranny attempted to intrude on the sovereignty of the states themselves. This is far different than y’all qaeda yahoos claiming tyranny and taking up arms against the government.

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      • “I guess people forget that it was anticipated that the states themselves were best suited to check federal tyranny”

        And I believe that we settled that question rather thoroughly in the 1860s.

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        • The questions that were settled were related to sovereignty and secession.

          To be fair, the Civil War was not the kind of situation that the founding generation feared. They feared what they had recently experienced: a distant central government with a standing army imposing its will on people that believed in a right to self-rule. Madison described such a scenario in Federalist 46 and argued that the combined efforts of the states were more than enough to repel whatever standing army the federal government would muster.

          I’ll clarify my point: the only entities that had the right to check federal tyranny were the states, as in the people acting in a collective capacity as a political unit since they and not individuals were parties to the original compact. Individuals that feel that the government is tyrannical and wishes to take up arms against would not only be defying the federal government but also their respective state governments as well unless the states are acting in the same fashion.

          I know it’s a crude explanation, but I think it gets us there.

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    • This is a nice distillation of something I’m seeing more and more: the rise of GR absolutism.

      Where are you seeing this? I just put the terms “gun right absolute” into the Google machine and all that turned up were hits of people arguing against an absolute conception of gun rights and in favor or controls. I added “NRA” to the search and found some third-hand account of NRA President Wayne LaPierre referring to the 2nd Amendment as absolute and even there, it is not clear that he is using the term in quite the same way as those criticizing the position are using the term.

      I have not come across many gun owners who believe that the 2nd Amendment grants an absolute, unencumbered right to own and bear any type of weapon in any type of manner with few-to-no restrictions. The nature of the distribution curve means that there always going to be tails, but I don’t see anything to suggest that the distribution curve of people’s opinions on gun control is anything but normal.

      What I do see perhaps is the beginning of a shift towards a bi-modal curve as some folks start to gravitate more towards the idea of severely restricting private gun ownership and others become increasingly resistant to any new restrictions for fear that is the first step towards prohibition.

      I actually wonder if there aren’t more people who would support completely abolishing private gun ownership than would support completely abolishing all forms of gun control.

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      • IANAL, but I was a legislative staffer, so as always, “first we go look at the statutes.” 49 U.S. Code § 44901 (a):

        The Under Secretary of Transportation for Security shall provide for the screening of all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation. In the case of flights and flight segments originating in the United States, the screening shall take place before boarding and shall be carried out by a Federal Government employee (as defined in section 2105 of title 5, United States Code), except as otherwise provided in section 44919 or 44920 and except for identifying passengers and baggage for screening under the CAPPS and known shipper programs and conducting positive bag-match programs.

        I read that as “Short answer — no.” With a tiny set of exceptions, the US Dept. of Transportation appears to be required to screen passengers and luggage boarding commercial flights in the US. Nothing about airports getting a choice. Nothing about the carriers getting a choice.

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  4. It is remarkable how rights definitely exist, and always in exactly the fashion that aligns most favorably with an author’s preferred political outcomes. It’s just the damnedest thing.

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    • Did someone actually say that? And I don’t mean this to be a quip. Rather, is there some part of what Popehat wrote that either belies his political opinion on gun control or tries to rig the discussion to favor his preferred outcome?

      I read him somewhat regularly and I couldn’t even tell you his views on gun control.

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      • I don’t think I’m up for arguing about rights again. I lost any faith in their existence after spending a week with aggressively libertarian libertarians who kept insisting that rights were real and aligned perfectly with their own political desires for the world. I found that disconcerting at best and came to think that this is all an elaborate game.

        I recognize in advance that there exists a long history of people insisting that rights exist. Many of those same people have extremely troubled behavioral histories when it comes to the things that they allegedly believe in (see: Thomas Jefferson and slaves, for example).

        However, this conversation always ends in the same place – with people screaming at me that I’m a fascist. So rather than going down that road for the umpteenth time, I’ll say simply that we disagree, that I regret ever having commented here in the first place, and we can ideally let this drop until we can find time to fight angrily about something else.

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    • The colloquial understanding of rights tends to be that way, that when something is termed a “right” it takes on magical powers.
      So a liberal might decide that “we have a moral duty to provide health care” is too squishy soft, so it becomes easier to argue that it a right.

      But of course rights are just things we place a very high importance on and give special protection to. And they only exist because we all agree that they do, and their boundaries are immensely malleable.

      I’m not fond of the whole “positive/ negative rights stuff either. Negative rights can only exist if a bunch of other people activeky fulfill a duty to pay taxes for enforcement.

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      • The colloquial understanding of rights tends to be that way, that when something is termed a “right” it takes on magical powers… But of course rights are just things we place a very high importance on and give special protection to.

        You keep saying this and, so, I will keep pointing out that you are wrong. This may be your understanding of rights, but, to paraphrase the bard, there are more things in this heaven and earth than your refusal to recognize hundreds of years of accumulated thought in the areas of governance, philosophy, theology, etc. The idea of rights is not just some collection of goods that we, in this limited place and time, decided it was nice to have. Rights are a pretty robust historical concept that are quite firmly rooted in the recognition of individual human beings as fully-formed moral agents who exist for their own purposes and not solely as objects to be manipulated by some collective will.

        Negative rights can only exist if a bunch of other people activeky fulfill a duty to pay taxes for enforcement.

        Again, not true. Your right to expression is not incumbent on the state’s ability to protect that right. The state recognizes rights. The state can take action to protect rights. The state, however, does not grant rights. Your right to expression is simply the consequence of you being a sentient being with a brain capable of reasonable and logical thought and the physical capabilities to express those thoughts. When Jefferson wrote that rights are inalienable, he may have been a hypocrite, but he wasn’t being aspirational.

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        • Rights are a pretty robust historical concept that are quite firmly rooted in the recognition of individual human beings as fully-formed moral agents who exist for their own purposes and not solely as objects to be manipulated by some collective will.

          Amen.

          No, seriously, amen. That is the essence of the world’s great religious teachings, and I support it fully.
          I just don’t pretend its anything other than a article of faith.

          I guess I make an issue of this because not viewing rights as constructed ideas allows them to take on like I said, magical powers, where it is taboo to question their existence or even boundaries, as Sam alluded to.

          What rights are, to whom they apply, what their boundaries are, how they interact with other rights, what duties we have to enforce and protect them- these are all just decisions we get to make by some process we agree to. There isn’t a cosmic tablet giving us guidance. The robust history is just that, a history of how these ideas came into being and were constructed over time.

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          • Chip I could be wrong here, but what you quoted there fits pretty well with the sovereignty of the individual basis.

            Then what you lead into is formations of ‘process’ that sounds collective based.

            Man that looks like apples and oranges.

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            • The individual and the collective are not exclusive concepts.
              Most of the faith traditions secure the individual within a framework of group identity. Individual rights exist in service to the betterment of the group.

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              • Only an individual can determine whether that individual believes x. Everything outside that context is a fatal error begging sub-faction.

                ‘individual human beings as fully-formed moral agents’
                does the heavy lifting

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              • Individual rights exist in service to the betterment of the group.

                I’m not so sure that is entirely correct.

                “The safety of the people is the supreme law,” but “the safety of the people cannot be judged but by the safety of every individual.”

                Facts illustrate principles, and not vice versa.

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          • I have to agree with Chip here somewhat. Rights aren’t a feature of natural law, like Gravity or Inertia. They are, rather, those concepts which have been identified (through extensive political & philosophical discussion) as things that are “Very Important” and thus should be rather difficult to modify. Not impossible, just very, very difficult, so as to resist the passions of the moment.

            Last I checked, there is no clause in the Constitution that prevents a future amendment from being approved of that significantly alters some portion of the Bill of Rights, ergo, Rights are not fixed. They are merely the stone that supports the clay.

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            • “Rights” are only alignments of individual moral agents.
              “Religions” are only alignments of individual moral agents.

              So let me ask this, if 11 people have moral agent alignments around policy X, should that policy be forced on moral agent 12 who doesn’t align with it?

              How does that work with consent of the governed. Is it really we the people, or just this faction of people?

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              • should that policy be forced on moral agent 12

                That’s pretty much the problem all philosophies try to address- how do we deal with multiple viewpoints, especially when a singular course of action is needed?

                No one has ever discovered a bright shining line that perfectly cleaves Legitimate Coercion of dissenters from Illegitimate. We recognize extremes, but the gray areas are always murky.

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              • The principle you’re invoking is that every individual governed by a policy must consent to it for it to be justified. Which is a practical impossibility. So no policy, in practice, would ever be justified.

                Given that you (apparently) think some gummental policies are justified (ie., those protecting property and rights and so on) why is the above not a reductio on the premise?

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                • Is government justifiable?

                  Who’s moral agent defines it? If your going to say we the people, you better damn well count every one of them in.

                  That leads to a very specific place. A place where one has to recognize the moral agent of every individual. Maybe it defines where the supreme power resides, and not the wills of faction.

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                  • Who’s moral agent defines it? If your going to say we the people, you better damn well count every one of them in.

                    Yes, that’s what you’ve been saying. What I’m saying is that accepting that principle entails, in practice, that no governance of any kind is (practically) possible. Like, no nightwatchman’s state, no courts, no rights.

                    I thought you were a rights guy, Joe. If a right means anything at all, it entails a legitimate claim against others where “legitimate” means more than the expression of a sentiment or the exercise of power, yeah?

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        • You keep saying this and, so, I will keep pointing out that you are wrong. This may be your understanding of rights, but, to paraphrase the bard, there are more things in this heaven and earth than your refusal to recognize hundreds of years of accumulated thought in the areas of governance, philosophy, theology, etc.

          I’m having trouble seeing where actually disagrees with .

          Right are things that we have invented.

          So is language and morality and, basically, everything. The daily life of a human is like 80% invented human stuff. (The rest is mostly physics and biological processes.)

          Sometimes specific things under these concepts are old, sometimes they are very new.

          Sometime people invent new things on purpose and try to get others to agree, like a new word.

          At other times, people will take an existing thing that we’ve always done that way, like slavery, and say ‘That’s stupid’, and try to get others to agree.

          Rights are…exactly like those other things. Invented things. This is only a point of argument if you think invented things aren’t *important*.

          The idea of rights is not just some collection of goods that we, in this limited place and time, decided it was nice to have. Rights are a pretty robust historical concept that are quite firmly rooted in the recognition of individual human beings as fully-formed moral agents who exist for their own purposes and not solely as objects to be manipulated by some collective will.

          And this is…a bit ahistoric. The practice of rights *has been*, for most of the existence of human rights, just some collection of stuff that the majority decided it was nice for *them* (and no one else) to have, so they used a philosophical concept to demand that for just them.

          [Human] right are, yes, a historic *concept*. They are an idea that has existed for about 300 years. But I take issue with the term ‘robust’ because we did not bother to *try* that idea until very recently.

          Sure, we write fancy documents about them, claiming we love them, but we denied supposedly fundamental rights to people until *fifty years ago*. And those people still seem to keep ending up dead in the street at the hands of the government. And let’s not forget the, uh, torture we did less than a decade ago.

          And just the systematic rot of all sorts of rights. For example, the right to a fair trial basically doesn’t exist at this point, with outcomes that are very very clearly based on how much someone can spend on them.

          For something to be robust, it has to work. For it to work, someone *actually has to put it in practice*.

          We…haven’t bothered to do that.

          Your right to expression is simply the consequence of you being a sentient being with a brain capable of reasonable and logical thought and the physical capabilities to express those thoughts.

          That’s not what rights are. That’s called an ‘ability’. It is something that is possible.

          If that was what rights were, it would render a lot of rights nonexistence. How do you have a right to a trial of your peers under this logic? Or the right to a say in your governance? What are those things a consequence of?

          Likewise, a person is also a ‘sentient being with a brain capable of reasonable and logical thought and the physical capabilities to murder people who get in their way’. But there’s no right to murder. People have the *ability* to murder, but not the right.

          And, just as importantly, the right to freedom of speech is not just the ability to speak. It includes *not being punished* by the government for what you said.

          If that right was just ‘the ability to speak’, the government could still arrest people who said the wrong thing. ‘Hey, you had the right to physically say those things, and you did. Now you’re under arrest for doing that.’

          In fact, I’m having troubling seeing how the government *could* infringe that right…physically gag people? Cut out their tongues? Kill them?

          I don’t understand why you think this is what the right of expression is. The right to expression has a philosophical foundation *in* the fact that you are ‘a sentient being with a brain capable of reasonable and logical thought and the physical capabilities to express those thoughts’, but that is not what the right to expression *is*.

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    • Well, of course.

      As you know, , and others will be familiar with, I have a rather different concept of what a “right” is than what is discussed in comments responding to your own supra. Very briefly, I see rights as the defined limits on the appropriate and legitimate exercise of governmental power.

      This, of course, means that rights are not absolute, not immutable, and not always defined with sharp clear lines. And it also means that the cases that test the boundaries of where the government’s power to act ends and an individual’s autonomy begins will be marginal, ones where there is disagreement, ones that happen at places where cultural understandings of what is appropriate and acceptable are at that moment shifting.

      Calling a police officer a “damned racketeer” was once so culturally offensive that seven Justices of the Supreme Court barely gave any thought to the idea that it was outside the scope of First Amendment protection. That was in the twentieth century. We find the statement today so mild a criticism as to be quaint and the extension of free speech protection to it to be a matter of trivial mental challenge — indeed, even translating into a more modern sort of insult, like “racist,” is still so obviously protected as to be worth little inquiry.

      That’s because the culture changed. Along with it, our understanding of what the government may acceptably punish and what an individual is free to do, also changed.

      Unfortunately, this also means that when we don’t have a wide consensus on whether “X” is culturally acceptable, some people will see something undesirable about “X” and seek to regulate and punish it, and others will say “X” is a matter of individual autonomy and thus a part of an individual “right.” And then we have cultural, political, and legal disputes about “X.”

      ‘Twas ever thus, if it’s any consolation.

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      • Very briefly, I see rights as the defined limits on the appropriate and legitimate exercise of governmental power.

        From a legal perspective, this makes sense. From a philosophical perspective, however, rights have to be about more than what the government ought or ought not do for the simple reason that you cannot get to the point of having a meaningful conversation about what the government ought to do until you have said something about the relationship between the individual and government. And to say something about the proper relationship between the individual and the government, you need to be able to say something about what each individual is due. This is why Rousseau starts The Social Contract by noting that “man is born free and everywhere he is in chains.”

        Rights don’t spring from the ephemera of whatever political arrangement happens to be in place at the time. Rights spring from innate human properties and capacities.

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      • Recall that the Congress passed a second sedition act in 1918 that provided: “It forbade the use of “disloyal, profane, scurrilous, or abusive language” about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt. Those convicted under the act generally received sentences of imprisonment for five to 20 years.” that is not really covered in school so restricting free speech occured a bit less than 100 years ago during a major panic in the US. If the law had been effect in the 1960s we would have had to build a lot of new prisons.

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  5. Isn’t the point of Trope Three just Trope Two?

    That’s not reason not to have special hatred for the particular words of Trope Three given its provenance, but since White basically concedes the substance of Trope Two (saying that X is true but doesn’t provide a full answer to policy/legal/constitutional questions is a very m ild critique, since no individual point made within any argument hardly ever does that), doesn’t that render his objection to Trope Two basically a gripe about the history of a phrase. It’s fair to say that it says that, “While (constitutional) rights aren’t absolute, that quote is not a valid entrant into the discussion about the ways that they are rightly defined,” but we’re still left with him having conceded Trope Two.

    Anyway, I’ve always thought that the “That one case said it’s constitutional to restrict falsely shouting ‘fire’ in a crowded theatre,” right or wrong, contemptible or reasonable, aways wasn’t making any point other than “rights aren’t absolute.”

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  6. Ken White writes:

    The TSA offers security theater, not security.

    Now, can anyone tell us why the Paris terrorists couldn’t get into the soccer stadium to kill hundreds or thousands of people (if not more), first via explosives and then via the resulting stampede? Anyone? Bueller?

    Its because there were metal detectors at its entrance. You know, “security theater”.

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      • He may have meant the “porno scanners”.

        But regardless, Ken’s overall comments are “security theatre” are correct. If you want to kill a lot of people at the airport, you go to the security line and blow up your bomb. No need to get through security when everyone’s nicely queued up in front of it. In addition, it’s been shown repeatedly that the scanners and the x ray machines miss all kinds of stuff: guns, ammo, etc. even when the TSA is advised that there will be “tests” by the GAO.

        Meanwhile, dudes walk onto active runways and the security of the baggage handlers and terminal employees is lax. Theatre? That’s an accurate name for it.

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        • We arrest on some sort of federal charges all the idiot sportsmen who get lost and wander onto airport land. (They really should know better, this comes up nearly every year…)

          If you are an attention whore, you simply go to general aviation and get into a plane. No security screening whatsoever. Then crash plane into something big enough to get attention.

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            • That depends on where you live: In Ok City it sells very well with safe rooms. Also recently the Weather channel has advised wearing any kind of helmet you may have during a Tornado Warning. Yes tornado security does not sell well on the coasts but in Ok at least it does.

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    • Mike,
      When you ain’t inspecting what’s in the cargo hold, it’s all security theater.
      When you have people deliberately wearing garottes to board planes(and not getting stopped), it’s all security theater.
      When you ain’t doing a dogdamn thing about General Aviation, it’s all security theater. Buildings have been wrecked because of people that haven’t even been through security — because they crashed their fucking plane into the fucking building.

      Security theater is when the holes are so big you could walk a dogdamn elephant through them, not because we really can stop some amount of idiots.

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  7. Why on earth do you wish you’d written an essay that consisted of little more than building and knocking down strawmen?

    The whole negative vs positive rights thing made me wonder if White opposed DUI legislation. I mean, you’re restricting the rights of others to drink and move freely for no reason except the *potential* risk to the lives of others and since in his view it’s not the govt’s job to protect the lives of citizens from the dangerous or irresponsible actions of others…

    Also the focus is solely on gun rights. However, the 2A says ‘arms’ which is not limited to guns. So, would Mr. White argue that the govt may not arrest people for building bombs or even try to prevent them from doing so? How about grenades? Chemical or biological weapons?

    Really the only valid point I saw, and that only mentioned in passing, was how to deal with using mental health history wrt background checks.

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        • I heard that argument first from some wonks at Lautenberg’s D.C. office, and it took me awhile to wrap my head around it. When I did, it finally made sense. Intoxication is properly an aggravating factor in sentencing.

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          • I just wanna thrown down as being in this camp as well. It’s always been my view that insofar as drunk driving is a Bad Thing, it’s because a person’s motor skills are sufficiently impaired as to constitute a risk to public safety. So on that score, if a cop has probable cause … oops! …. I mean reasonable suspicion to pull a driver over for a suspected DUI, the roadside ought to suffice to determine whether impairment actually exists. That is, the law ought to be constructed around the functional aspects of driving a vehicle rather than a driver’s blood alcohol reading from a breathalyzer.

            One way to achieve this is to make the roadside mandatory with a breathalyzer only required after failing it, something that can be captured by cop video.

            (A guy I know was recently pulled over coming home from dinner with his wife, and was asked whether he wanted a roadside or breathalyzer. He chose the roadside – which he passed. The cop then asked him to breathalyze, which he refused on two grounds: that initially he was proposed with an either/or, and that since he still probably had booze in his mouth (the stop was two blocks from the bar) the test would give a false reading. He got locked up, license revoked, thousands in fines and etc, because in Nebraska refusing a breathalyzer constitutes guilt, a state of affairs the cop failed to inform him of. He had two Budweisers with dinner. Aaaand the roadside test is on cop video. He’s contesting the whole thing.)

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            • because in Nebraska refusing a breathalyzer constitutes guilt, a state of affairs the cop failed to inform him of.

              This, incidentally, should not be allowed.

              If refusing a breathalyzer means guilt, the cops should be required to say ‘Take this test, or we are arresting you’.

              The police should not be allowed to present something as an option and fail to inform people that one of those options will result in their arrest.

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              • Yeah, it seems like one of those ugly cases to me, where the letter of the law conflicts with how the cop conveyed that info. Or even if that matters. (We’ll see.) But from what I understand the incident was recorded on the dash cam, so there’s at least some evidence to base the various claims on.

                As it is, he’s a contractor who lives in a tiny town, works in the field, and has clients in a couple-few counties. So it’s been a real PITA for him to even get to work, to make money, to pay the fines, that are being contested, by an attorney, who needs to get paid….

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              • Actually in many states it is your drivers license that can be suspended if you refuse the test because a drivers license is not a right but a privilege.
                It has been that way in most states for at least 50 years.

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      • It’s a valid criticism. The DUI standard creates an incentive for police to enforce the standard over enforcing good driving, so instead of police putting resources on the roads looking for and stopping distracted and reckless drivers, they take the easy path, setup roadblocks & checkpoints, & inconvenience numerous unimpaired drivers, just to catch a small handful of potentially impaired drivers.

        And I say this as a person whose whole family was almost wiped out by a drunk driver.

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        • I’ve never actually seen a DUI checkpoint in operation. I know they happen. I got called to jury duty for a guy who got caught at one. I think DUI checkpoints are unconstitutional but I still can’t bring myself to calling for a legalization of DUI because I think it will just lead to more accidents and deaths.

          The big problem is a lack of public transport in most parts of the U.S. but if a person lives in an area with halfway decent public transportation, I am not sympathetic to people who get roaring drunk and drive to bars.

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            • It should be on the low side to strongly incent people from not drinking or only minimally when they will be driving. .08 is not an insignificant amount of BAC. Some people will be complelty snockered at that while others are safer. However the key problem is that some of those people who might be okay at the level are likely not consistently fine for their entire drive. They are okay when really really focusing at the checkpoint or when people are watching like when a cop is behind them. So they might drive okay for a little bit but their danger level is higher.

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              • Your right but public transportation, taxi services, and walkability are really crappy in most parts of the United States. From what I can tell, having a designated driver has went out of fashion. Drunk driving is dangerous but there needs to be some bend towards the reality that many Americans are going to do it at one point out of necessity if anything else. I once dated a woman who told me stories about teaching her sister how to drives while intoxicated. This shocked me as a New Yorker because it isn’t really a need in the city.

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                • Drunk driving is dangerous but there needs to be some bend towards the reality that many Americans are going to do it at one point out of necessity if anything else.

                  Completely disagree. That behavior kills people, and should be (if anything) punished more heavily to the extent that you’re correct compliance depends upon the fashions of any given moment.

                  Of course, the Final Solution is self-driving cars, but we aren’t there yet.

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              • I’m not analogizing between DUI and stop and frisk.

                I’m analogizing between DUI checkpoints and stop and frisk.

                We all know that a drunk driver is dangerous and ought to be arrested, Greg. No one disagrees with that.

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                • I dont’ think its a great analogy but it could be solid depending on where the checkpoints were placed. The only CP’s i’ve ever seen here in Anch were on a couple of the larger main cross town arteries and not in minority pop areas. I’ve seen a CP in vegas, again on a main artery and in a ritzy area. DUI CP’s are more focused on a specifc behavior then Black Man Walking. I’d love to see stats on how many people are arrested for DUI at stops and where they are placed. I do think they serve a deterrent function since people know that easy routes are not safe to drive when drunk.

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                    • Well more police are warranted in high crime areas. DUI checkpoints have a more objective criteria for arrest and can be focused on specific times where there is higher danger. S and F is to broad and has the intent of casting a super wide net with to much police discretion. I see CP’s as being different enough due to their focus and more specific focus.

                      It isn’t’ a terrible analogy to compare DUI CP’s and S and F. But i don’t’ think its all that good either.

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              • The risk is from reckless driving, drinking is merely the proximate cause of the reckless driving.

                This is not to say that drinking and driving should be A-OK, only that focusing primarily on the BAC standard creates troubling enforcement incentives.

                Still, give it a few more years and it’ll largely be a moot point.

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                  • Obviously true.

                    They way we deal with DUI today obviously has some measure of effectiveness. I’m just not convinced it isn’t also creating a cost. Perhaps a better option would have been to treat simply blowing a BAC above X to be a misdemeanor (and an impounded car if no one is fit to drive), if the cops pull you over for reckless driving and you blow a BAC, it’s much more serious, and if you wreck or injure someone, then the hammer truly drops.

                    Or perhaps gradations of the BAC scale (0.08 < BAC < 0.1 is a misdemeanor; 0.1 to 0.12 is a serious misdemeanor, above 0.12 is very bad, etc.).

                    Curious, anyone got stats on DUI numbers? Are the trending up or down?

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                    • We’ve gone from about 1.5 deaths per 100 million passenger miles to 1.1 deaths per 100 million passenger miles, but the fraction of motor vehicle deaths involving drunk[1] drivers in that time has been about 20% each year, which suggests to me that those safety gains are probably due to other factors than reductions in drunk driving (like safer cars). However, between 1980 and 2000, there was a huge drop, since about 35% of fatal crashes invoved drunk drivers. Some of that is attributable to stricter laws and better DUI enforcement, and some is attributable to demographic shifts[2].

                      There’s been a huge reduction in the number of motor vehicle deaths over the course of the past generation, and fewer drunk drivers are a big part of why. It’s one of the great unsung public health successes.

                      There’s a long report on this at http://www-nrd.nhtsa.dot.gov/Pubs/810942.pdf and http://nhtsa.gov has a ton of interesting information about the general topic of traffic deaths.

                      [1] Well, BAC > 0.08.

                      [2] Basically, a smaller fraction of drivers are young men, who drive drunk at a disproportionately high rate.

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                      • I wonder how much of that 1980 to 2000 drop is a generation of kids growing up with mandatory car seats and parents that made them use seat belts/shoulder straps. My kids were born in 1983 and 1986, and I know that by the time they got drivers licenses, putting on their seat belt was a reflex.

                        Add air bags, and by 2000 people walked away from what were fatal accidents in 1980.

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                  • Anyway, I wasn’t trying to launch a debate about DUI, I was merely responding to Saul’s dismissal of the criticism as some kind of kooky libertarian position.

                    Questioning law enforcement priorities & incentives should not be dismissed out of hand.

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                    • The people who are saying “let’s make driving drunk legal, and you only get in trouble if you get into an accident” are incredibly far outside the mainstream — and often refuse to even entertain the possible problems legalizing it would open up.

                      It’s not that they’re questioning the validity of laws or the application or such or specifics.

                      It’s because they’re acting like kooks that they often get treated as such. Including standard kook behavior like “Totally refusing to accept recent history, well founded statistics, or basic math and often resorting to conspiracy theories”. Question DUI laws all you want! Amend them if you can get the votes. But darkly warning me that the statistics on drunk driving are “made up” as part of a government power grab, or that drunk driving is totally as safe as sober driving? Yeah, kook.

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                      • Who said anything about the stats on drunk driving being made up? The article Saul linked to didn’t, nor did the Balko article linked in there. Also, neither article made the claim that driving drunk is just as safe as driving sober, only that the BAC is not a bright line indicator of impairment (which is a completely separate issue with regard to it’s utility as an enforcement standard).

                        So neither article said anything kooky, or tried to make a claim regarding the wisdom of drinking & driving, only that the standard creates questionable enforcement incentives.

                        But apparently you are still spoiling for a fight. Sorry, not interested.

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                        • Who said anything about the stats on drunk driving being made up?

                          I was referring to the “make drunk driving legal” kooks I had personally encountered. Personal experience has me lean towards “kook” simply out of familiarity. It’s the same way that, if evolution comes up, I can pretty much guess ever word that’s about to come out of the guy who just said “What about how it violates thermodynamics”. Sad, sad, familiarity.

                          Also, neither article made the claim that driving drunk is just as safe as driving sober, only that the BAC is not a bright line indicator of impairment

                          Nope, it’s a bright line of blood alcohol content. Trying to judge impairment is entirely subjective and prone to massive abuse. Best to use BAC, until someone can come up with some objective, field deploy-able, easily tested by defense after the fact, method that tests for impairment.

                          “Impairment” is a bad idea for other reasons — like the simple affects alcohol has on the human brain. One of the first things to go, as you drink, is your ability to judge how impaired you are. Trying to tie drunk driving to something like ‘impairment’ is basically begging people to drive drunk (because they won’t feel impaired) and for cops to apply it subjectively.

                          Bad idea all around.

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                • Bright lines are pretty necessary for DUI’s, and certainly preferable to subjective “he seemed impaired” judgement calls.

                  For one, there’s a huge bias in favor of police testimony and any subjectivity opens the door for the biased application we’ve seen in other areas of the law .

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                  • It’s like aristocracy, which is the best of all political systems as long as the monarch is capable, fair, reasonable and even-handed and never has a bad day or has orders misinterpreted (or, worse, “misinterpreted”).

                    I don’t like the idea that a bright line for DUI is necessary in the world we actually inhabit, but it’s the least-worst way to address the problem that I’ve seen mentioned.

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        • over enforcing good driving

          Being overly-attentive to traffic regulations is actually one of the characteristics that police are taught (by federal agents) to look for in identifying drug couriers.

          But then, so is de-boarding a flight near the first, de-boarding a flight near the last, and de-boarding a flight near the middle of the passengers.
          Drug couriers, all of them.

          I can only think that coming up with these profiles must be an easy job.

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    • Because I don’t think Ken punched down strawmen. I think he drilled down to premises and exposed them as incorrect.

      And he distinguished between doing that and opposing the policies proposed.

      And he did it efficiently and persuasively.

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  8. I’m not a popehat fanboy but I am also not a libertarian. I am sort of deeply cynical or questioning about the White’s theory that American politicians, leaders, educators, whatever don’t know how to teach or talk about rights.

    1. One it strikes me as being very wishful thinking. Years ago, on another Internet forum, there was a conservative member who said he wished that everyone needed to take Macro and microeconomics before they were allowed to graduate high school or college. There was a hidden implication though. I think he was really saying “If everyone took macro and microeconomics, no one would be anti-Capitalist or support welfare state measures and they would all love Hayek.” I sort of see the same thing in White’s view. He seems to think that a good education system about rights will turn everyone into civil libertarians (or really just libertarians with anarcho-capitalist bents) who will not have any critiques of any section of the Bill of Rights. I just don’t see that as true and it is probably contrary to human nature.

    2. As I mentioned before, debates about the 2nd Amendment are also debates about culture. Debates about culture in the United States always come with an undercurrent or overcurrent of who is and who is not a real American. It is perfectly possible to make a concession that the 2nd Amendment allows citizens to own firearms but also think that it does not allow concealed carry or open carry in public (in my mind). The culture of Portland, Oregon is different the culture of rural America and the culture of Portland, Oregon does not consider concealed or open carry a good thing. Yet we saw here that GRAs are not willing to confront their own sides dopier members (what called the Tactical Derp crowd) and say that liberals just needed to get educated about guns. Again this is about total defeat of the opposition instead of trying to find a point. This sort of goes to point #1 as well.

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    • There was a hidden implication though. I think he was really saying “If everyone took macro and microeconomics, no one would be anti-Capitalist or support welfare state measures and they would all love Hayek.”

      If the implication was hidden, how did you find it?

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    • “[White] seems to think that a good education system about rights will turn everyone into civil libertarians…”

      I think he’d be happy to see actual arguments, rather than copy-and-paste philosophy based on half-assed reasoning.

      If anything, he probably favors gun control. If you’ve read his post about People Being Jerks On The Internet he certainly seems receptive to the idea that people can’t be trusted to exercise rights responsibly. And, if you read the OP’s linked post, he doesn’t actually present an opinion about gun control–just about President Obama’s reasoning and its errors.

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  9. I think I understand the purpose of fisking, but if I was having a discussion with someone and said “well, part of the reason I know about this is because I taught it in college” and the person immediately cut in with – “whoa, whoa, whoa dude, appeal to authority!”; I would conclude that they were kind of an asshole.

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    • If that were the totality of White’s argument , then you might have a point. It’s not, though. And he explicitly says as much.

      His point is that many law professors have a tendency to answer questions about the law from the perspective of how they think that the law ought to be interpreted as opposed to how courts have actually interpreted it. He could be wrong, of course, but his point is a little more than the simple apple to authority fallacy.

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      • Except Obama never appeals to his authority as a constitutional scholar; he never says “I studied this so you should all trust me”; he essentially says “people say I haven’t thought about this but I thought about it a lot”. Which may seem unnecessary, but when there are still many people who find the TOTUS/teleprompter jokes hilarious, the president needs to remind them that he thinks about stuff before he announces it.

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        • You are right in that what Obama said is far from the most egregious example of White’s Trope Eight. And if that were White’s whole argument, it wouldn’t be much of a post.

          That said, Obama is still invoking his time as a law professor to preemptively rebut claims that his actions might be in contravention of current Second Amendment jurisprudence. That’s great from a rhetorical standpoint, but not so great if you are trying to have a substantive legal and policy discussion.

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      • many law professors have a tendency to answer questions about the law from the perspective of how they think that the law ought to be interpreted as opposed to how courts have actually interpreted it

        I honestly haven’t seen that at all, not even close.

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        • Since I wrote that comment, I’ve thought of one, and it disturbs me with ever-greater disturbance the more I think about it; not only because she is such an unabashed Lefty fruitcake (I’m sorta used to that by now . . . ), but because the “facts” that she builds her assertions on are factually inaccurate and/or are not representative.

          I suppose this is rare, but it is really horrible when it happens.

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  10. Dude, I owe you an apology. This has not been an ideal week (kid isn’t sleeping through the night, which means I’m not sleeping through the night; I’m seriously trying to get my release pushed out the door at work while fending off people trying to get me to add “just one more feature!”, etc.). I’m running out of mental clock cycles and that doesn’t lend itself to productive discussions on web forums.

    Anyway, mea culpa, I should not have let things get heated.

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    • hey no problem. I know how you feel.

      Honestly, I’m quite guilty of hanging around here more of late (and getting into arguments) as a distraction from the real stuff I’ve been dealing with. (Death in the family, illness in the family — not the one that died, major surgery on the wife…seriously, 2015 just sucked all around and December was the capper.).

      So if I’ve been more of a jerk — to anyone, really — sorry. I realize I normally come off as combative, opinionated, and eager to argue, but I have no doubt it’s been worse lately.

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