Thursday, May 29, 2014

Armed To the Terror of the People: Where Do We Draw Lines?

How does he eat?
In my previous blog on gun control, I laid out why 'sensible gun control' won't happen, and made clear why there is currently no common ground even between reasonable gun control advocates and reasonable gun-rights supporters. Turn-about is fair play: in this blog, I talk about the traditional limits of open carry and get into some of the nuts and bolts of the controversy between concealed-carry and open-carry which controversy also hurts any chances of reasonable agreement on the Right To Keep and Bear Arms. The reader may quickly realize that I am writing this in the context of the present actions by a Texas Open-Carry advocacy group in carrying rifles into restaurants. The demonstrators' behavior  resulted in some of these restaurants changing their policy against open-carry and has created a bit of a backlash even from gun-rights supporters.

In Which We Explore Common Law Offenses Against the Peace

Before anyone 'jumps the gun' I am not opposed to open-carry, against open-carry in restaurants (with permission of the owner), or against open-carry advocacy in general, but there are recognized (within a good bit of room for interpretation) traditional limits to open-carry and I am going to probe at where those limits may be. By 'traditional limits' I mean that stated in the Statute of Northampton of 1328 (2 Edw. 3, c. 3 (1328)) which expounds a common law crime going back to antiquity:
Item, it is enacted, that no man great nor small, of what condition soever he be, except the king's servants in his presence, and his ministers in executing of the king's precepts, or of their office, and such as be in their company assisting them, and also [upon a cry made for arms to keep the peace, and the same in such places where such acts happen,] be so hardy to come before the King's justices, or other of the King's ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King's pleasure. And that the King's justices in their presence, sheriffs, and other ministers in their bailiwicks, lords of franchises, and their bailiffs in the same, and mayors and bailiffs of cities and boroughs, within the same cities and boroughs, and borough-holders, constables, and wardens of the peace within their wards, shall have power to execute this act. And that the justices assigned, at their coming down into the country, shall have power to enquire how such officers and lords have exercised their offices in this case, and to punish them whom they find that have not done that which pertained to their office.
Or, as later expounded by the Elizabethan lawyer, Lambarde:
Yet may an affray be without worde or blow given as if a man shall sh[o]w himself furnished with armour or weapon, which is not usually worne and borne, it will strike a feare to others that be not armed as he is: and therefore both the Statute of Northampton . . . made against the wearing of Armour and weapon and the Writte thereupon grounded, doe speake of it, by the words, effrey del pays, an, in terrorem populi.
Obviously we do not have a king in today's United States, our king's officers do not enjoy the exclusive authority they did in 1328, and even under English common law, the Statute of Northampton was interpreted by the courts so as to blunt it's edge, but this historical statute supported a common premise which is still upheld today: armed gangs roaming the countryside terrorizing people are bad. The words "in affray of peace" and the Latin "in terrorem populi" (to the fear of the people) is still referred to in modern law. Less obvious, perhaps, is the connection to Missouri's RsMO 570.030.2(1) providing a blanket exemption to Chapter 570's weapons offenses to:
"...any person summoned by such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer..."
which is, incidentally, one of the legal underpinnings for armed law enforcement auxiliaries (local 'select militia' or volunteer constabularies) in Missouri. There is no problem with people arraying themselves for battle when battle is actually afoot or when the 'hue and cry' goes up of a crime actually being committed, but there is a point where armed groups legitimately cause fear and are a detriment to public order.

In most jurisdictions, armed to the fear of the people is a common law or statutory offense. In North Carolina, for instance, the common-law crime contains the following elements (Note to the 7th Edition of "North Carolina Crimes"):
A person guilty of this offense
(1)  arms himself or herself with an unusual and dangerous weapon
(2)  for the purpose of terrifying others and
(3)  goes about on public highways
(4)  in a manner to cause terror to the people.

Is Carrying a Firearm Itself an Affray of Peace?

Note the limitation in State vs. Robert S. Huntley that "a man may carry a gun for any lawful purpose of business or amusement, but he cannot go about with that or any other dangerous weapon, to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people," (25 N.C. (3 Ired.) 418, 40 Am. Dec. 416 (1843)). The offense is not the mere carrying of arms but doing so in alarming fashion for the purpose of terrifying others. This limitation against the Going Armed To the Terror of the People (GATTOP) offense is typical and also goes back to British common law as noted in William Hawkins' "Treatise of the Pleas of the Crown", 8th Edition, Vol. I, 1824, London, pp 489 (first published in 1716):
That no wearing of arms is within the meaning of the statute unless it be accompanied by such circumstances as are apt to terrify the people; from whence it seems clearly to follow, that persons of quality are of no danger of offending against this statute by wearing common weapons, or of having their usual number of attendants with them for ornament or defense, in such places, and upon such occasions in which it is the common fashion to make use of them, without causing the least suspicion of an intention to commit any act of violence or disturbance of the peace. And from the same ground it follows, that a person armed with privy coats of mail, to the intent to defend themselves against their adversaries, are not within the meaning of this statute because they do nothing in terrorem populi.
The Hawkins quote, commenting on Rex v. Knight (1686) highlights the common debate about whether GATTOP must include unusual weapons or merely unusual circumstances. For example, one might argue that a double-barrel shotgun is an extremely common weapon but it is not common to carry one to a play and may be apt to terrify. Huntly rejected the argument that the commonality of shotguns was itself a defense but still held that merely carrying was not offensive. Rex v. Gardner (1739) also held that for farmers, firearms were as much a necessity as cabbage-nets for defending stock or eliminating vermin and not offensive, despite statutes (hunting laws, for instance), directly prohibiting commoners from having firearms.

Part of the matter is the tie to intent. As above, an intent to defend oneself and not to terrify is a distinguishing factor, but also an astonishingly subjective one, particularly in a culture deeply divided over the role of firearms. What is apt to terrify an average resident of New York City versus of rural Missouri are very different and so therefore is what the mythical 'reasonable person' would expect to terrify another. For that matter, GATTOP offenses were misused during the Jim Crow era to discriminate against armed Negroes: while a Klansman may be terrified by a black person with a gun, it hardly constitutes a crime to so terrify. A Klansman with a gun may be a legitimate source of terror, but this is tied to the likely intent to intimidate or commit mayhem rather than the firearm itself. Finally note that Hawkins defends the wearing of arms for ornamentation, not merely defense.

In Missouri (where I live), "to the terror of the people" was previously in the statutory definition of a riot but was removed, leaving it necessary to actually commit or intend to commit unlawful acts. Specifically excluded are training for hunting, self-defense, or civil defense for legitimate law enforcement-related activities (including organized militia). Compare the wording of modern RsMO 574 (and 574.050.1 in particular) versus historical Chapter 47 (quoted in "A treatise on the law of evidence, Volume 3", by Simon Greenleaf, 1899, pp 213).

[EMV 2019-08-9: RsMO 574.115, effective 1 Jan 2017, defines the crime of "Making a terrorist threat, 1st degree" which now covers some of the same ground and was the basis for charging an individual with a rifle who caused a panic at a Springfield, MO Walmart earlier today. This law would seem to raise exactly the same issues (pro and con) discussed here. (Thank you, Cory Mignard.)]

[EMV 2019-08-10: The DA actually chose to charge the individual at Walmart under RsMO 574.120, "Making a terrorist threat, 2nd degree" which only requires proving reckless, not criminal intent.]

It is probably worth highlighting the 'persons of quality' distinction in Hawkins which is (or should be) of no relevance today. We no more have gentry and grants of arms today than we do kings, but we do unfortunately still have a prejudice against poor people with firearms while we rarely respond to the rich or public figures with armed retainers in tow. For that matter, as some have rightly pointed out, this "Moms Demand Action For Gun Sense In America" often travels with armed security as well, so both sides in the present debate are on equal footing as regards the use and presence of firearms. The question comes down to one of intent and degree, which are not always easy to determine.

Ironically, GATTOP is an offense which lends itself to misuse in order to intimidate and terrify people who carry arms, one of the issues open-carry advocates raise and with some truth. Through intent or ignorance, police in some jurisdictions routinely misuse GATTOP or close variants to arrest or merely detain and intimidate citizens lawfully carrying and who are otherwise guilty of no offensive conduct. This fact does not mean, however, that the offense itself does not exist or that there is not a reasonable line somewhere which possessors of firearms sometimes cross.

Which Brings Us Back To Current Events

So, given that history, what of a group of open-carry advocates carrying semi-automatic rifles into a restaurant as part of a protest? What of the specific issue that they did so to a meeting of this "Mom's Demand Action" group? What is their precise intent? Is their conduct an offense in the legal sense? [I am not referring to the open-carry group by name because the Texas Open Carry group disavowed their conduct, so they are a subset, not representative of a larger organization.]

First, let us dispose of the private property issue and the rights of the restaurant owners. When the open-carry group first entered the restaurants, the owners had not prohibited them and the restaurant policies either allowed or were explicitly silent on the issue. The law universally supports the right of an owner or their representative to 'trespass out' patrons causing a disturbance. The law almost universally supports the right of the restaurant or other business to forbid firearms in the first place. Nevada law makes 'no carry' policies of no legal effect, though the owner can still trespass out individuals, and some states, notably Missouri, forbid business owners from banning lawful firearms from vehicles parked on the premises. For the most part, I morally support the business owner's right to post a carry policy, regardless of local law, even when I disagree with the policy: my option is to take my business elsewhere, which I often do.

So, that part of the issue is or should be a non-issue. My question is whether the conduct generally constitutes a public offense and is (or should be) generally unlawful in public. I am also going to dispose of the issue of whether what the open-carry group did is of generally poor taste: I believe that it is, at least in the specific fashion displayed, but people do have a right to act in poor taste, sometimes suffering social consequences (being banned from a restaurant in this case). I disagree with their conduct, but that is a different question from whether it was legally or morally wrong. I am unable to find a clear statement of Texas case law on GATTOP as I did for North Carolina (where I once lived and researched previously), but I am really much more interested in the general question than the minutia of local interpretation at the moment. [Update 20161215: Texas Penal Code 42.01 defines the offense of Disorderly Conduct. Among the offenses, "A person commits an offense if he intentionally or knowingly: ..." (8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;" ]

Do you take gold?
If we consider the demonstrators' lawful business to be eating in a restaurant, where they simply happen to be carrying rifles, then it is hard to justify a GATTOP accusation. Even if this seems far-fetched to some, consider the fact that my wife and I met on a field of battle with a medieval reenactment group and we often would go with a group to a restaurant after an event or need to purchase items during an event with some number of us still armed and armored. The looks someone gets when checking out at Wal-Mart dressed as a 10th century viking with a bottle of Gatorade and a roll of duct-tape are priceless, but hardly rise to the level of riotous acts. As officers in our Sheriff's Auxiliary, we also end up at restaurants as a group when going off duty after a deployment or exercise, with the lot of us open-carrying (likely to be in uniform but if not on active-duty, not under the protection of RsMO 570.030). So, unusual business, perhaps, but not riotously so in and of itself. To some extent, being in public in either of these cases is advertising for our activities, but not a primary purpose, and advertising is not an intent to incite terror, pretty much by definition.

But it seems to be hard to claim that this specific group 'just happened' to organize an event specifically to display firearms at the restaurant for the purpose of protest and, from their behavior toward the gun-control-advocates, that part of their intent was not directly intimidation. Even viewed very permissively and from the point-of-view of a strong RTKBA-supporter, it would be very difficult to defend the conduct. At the very least, it would seem imminently reasonable for authorities to question the behavior, perhaps detain and charge, letting a jury sort it out. Certainly the behavior is an entirely different league from the odd individual with a handgun in an open-carry holster being harassed by law enforcement in Wal-Mart (national corporate policy allows open-carry where otherwise legal) or a street corner in locations where open-carry is protected by law[I discuss the issue of open carry and race elsewhere, in a guest blog].

The response of the business owners also supports this conclusion. The chains in question have scrupulously avoided the debate over firearms over the years. Firearm owners will avoid businesses which are not firearm-friendly and word gets around quickly, concealed-carry patrons often taking their business elsewhere when open-carry patrons are offended (concealed carriers are often standing there, unmarked, while open-carriers are being harassed). This creates a strong incentive for the businesses to take no position and to allow conduct permissible in their jurisdictions. The owners of the various chains involved have made direct statements that the only reason they have considered policy changes is because the incidents have left them with no choice, turning their establishments into circuses and political battlegrounds incompatible with their basic function to serve customers. Videos of some of the incidents show no screaming children, no patrons running in fear, and no one cowering under the tables, so it may be argued that 'terror' is too strong a term for the result, but again, it is difficult to argue that intimidation did not occur and was not intended by the demonstrations.

The unfortunate result of the changes in policy is that these businesses will lose customers. Whatever the reason for the change, when I see a "No Carry" sign, I will go somewhere else. But the businesses are in a position where that will happen either way and it is clearly the result of the demonstrator's conduct and that is a problem. The conduct is also to the detriment of RTKBA advocates across the board as it allows gun-control advocates to label every gun-owner as obnoxious, armed--- dangerous--- loonies.

Broader Policy Questions--- National Irrationality Muddies Waters

Once you get away from the conduct in these incidents, however, and start to approach questions about general policy, the mud very quickly rises. One of the reasons for this is that open-carry demonstrators do have a valid point hiding in the murk: public policy and public advocacy vis a vis open and concealed carry often makes no sense at all. Many jurisdictions (e.g. Florida, California, Illinois, New York) place limits on open-carry on the theory that open-carry indicates a purpose to intimidate and engage in unlawful behavior. Other jurisdictions place limits on concealed-carry on the theory that it indicates criminal behavior and an intent to ambush unsuspecting citizens. Often enough, these are the same jurisdictions. Gun-control advocacy groups (e.g. Bloomberg's various fronts) often try to argue simultaneously that they are not against lawful carry, that open-carry is bad and should be unlawful, and that concealed-carry is bad and should be unlawful. Then they argue that handguns are criminally dangerous and should be outlawed but open-carry of long-arms is directly equated with terrorism. This conundrum lead to Heller, McDonald, and the 9th Circuit's Peruta decision: yes, firearms may be regulated to an extent, but you cannot leave the average citizen with no reasonable path to comply with the law and still exercise their rights.

Missouri's Constitution at least makes the limits clear (Article I, Section 23):
That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.[EMV 2014-11-5: SJR 36, adopted on 5 August 2014, amended this section.]
If you want to carry without a license, it has to be visible, but the state has the authority to enact licensing for concealed-carry. Fine. Nevertheless, municipalities still try to outlaw open-carry in a Constitutional-mess-waiting-to-happen.

Many gun owners with concealed-carry permits first hit the open-carry contradiction when traveling to a state where their CCW is not honored. I go into this issue in some detail in a 3-part Open Carry Travelogue from our trip to Nevada to speak at an emergency-manager's conference. It is simply not rational to have a law requiring someone to have a firearm clearly visible and then treat complying with the law as an affront to the peace. The vagaries of open-carry law and the inconsistency of enforcement causes many open-carriers to adopt very visible holsters or otherwise hang a flashing neon sign off of the fact that they are carrying as this is the only conduct which the courts consistently interpret as "not concealed". By doing so, however, they immediately attract unwelcome attention by both anti-gun citizens and law enforcement.

As long as this conundrum remains, open-carry advocates will work to continue to carve out a more-defined space for them to comply with the law and to convince businesses to accept their conduct. The need for that advocacy directly leads to the extremes of the movement doing ill-considered things and also develops a fair portion of the anger directed at the Bloomberg fronts working to circumscribe the practice still further. This does not make the conduct of the Texas protesters acceptable, but it does explain a bit better why it occurs. The extremes of the open-carry advocacy carrying guns in a way calculated to intimidate is wrong and a problem, but no more a problem than the jurisdictions where police with guns overstep the law to carry out their own advocacy: St. Louis, Missouri or Marshfield, Missouri cops harassing open-carry citizens, for instance, or Illinois, New York, New Jersey cops flagrantly violating federal Peaceable Journey protections allowing transport of a properly-secured firearm from point A to point B where it is legal in both places.

So what is the solution? Compliance with the law should never be a complicated affair. The problem is not that we do not have enough gun-laws but that the ones we have are often senseless. Senseless laws do not encourage respect for the law in gun owners, the law-abiding are punished, and the real criminals can exploit technicalities. In the US where the RTKBA is an enumerated right not just in the US as a whole but in most state constitutions, we need to come to some general consensus on what the rules are and make them clear. National concealed-carry reciprocity would solve some of the issue by removing the need for concealed-carriers to resort to open-carry on travel. We recognize drivers' licenses across state lines in accordance with Article IV protections, why not carry permits? Better consistency in recognizing minor state officials and emergency responders from other states who may carry on travel would also help. But the best solution is to resolve our national schizophrenia over the concealed/open divide. Doing that would deflate the entire issue. More than that, clear law would make it easier to decide what behavior actually crosses the line and deal with it in a rational and just manner.

Wednesday, May 21, 2014

Why 'Sensible' Gun Control Will Not Happen

Common Ground?

It is a commonly repeated meme that 'most gun owners' support 'sensible gun control', usually interpreted as including such things as universal background checks. While this statement is probably true on its face for some definition of 'sensible', it ends up being irrelevant. Practically, politically, nothing resembling 'sensible' gun policy is or will be possible any time soon. This post discusses some of the reasons why that is the case in the context of recent events in Missouri and why even 'reasonable' gun owners and 'reasonable' gun-control advocates currently have no common ground. If we understand that problem, it may be possible to change it, but it won't be easy.

First off, I am a conservative gun owner, I work with law enforcement (in my capacity as the Commander of the Lawrence County Sheriff's Auxiliary, a unit of armed, non-peace officer volunteers in Southwest Missouri), and my experience with issues like school shootings is rather direct and personal. At least in the abstract, I am for 'reasonable' gun control as some people define it. I believe quite strongly both that

  1. the Right To Keep and Bear Arms (RTKBA) is an individual capital-R Right as well as a communal Duty and
  2. society has a responsibility to keep arms out of the hands of prohibited persons (violent felons, the adjudicated insane, those under certain temporary orders)
On the surface, this would seem to create some--- perhaps narrow--- common ground with moderate gun-control advocates. I have even discussed at times what some potential proposals might look like with folks of that persuasion, but the unfortunate fact is that they simply will not happen, not now, not soon, and will never happen without significant sociopolitical changes. The specter of governmental misuse of 'reasonable' gun control is not a theoretical slippery slope problem but an inevitable and currently insoluble issue borne out by direct, practical experience. Enough politically active gun owners are aware of this issue to render even apparently 'reasonable' policies stillborn.

Background Checks versus Registration

The issue can be demonstrated by examining another very common argument advanced by gun-control advocates, at least some of whom I believe are honest and well meaning:
Proposals for universal background checks are designed to make it impossible to create a registry and therefore there is no possibility of governmental misuse of the check system.
Specifically, this statement is applied to attempts to close the "gun-show loophole" and apply some kind of instant checks to all private firearm transactions. I am not even going to approach the discussion here of the "gun-show loophole" or the various fallacies involved. I am going to stipulate that some portion of firearm transactions happen outside of FFLs, are not subject to background checks, and that society might benefit from preventing some portion of those firearms from going to prohibited persons. I am going to charitably assume, for the sake of argument, that the main proponents of such a system have honest motives and that there is some technical implementation possible which would not drastically inconvenience common, completely private transfers of firearms including auctions, swap meets, in-family transfers, gifts, and trades between neighbors.

Even given those assumptions, there is a substantial logical inconsistency in the idea of universal checks without universal registration. We'll deal with that problem and then move on to the real show-stopper. The reason that instant background checks work with FFLs is simple: in order to be an FFL, you have to register with the federal government. Given that FFLs are registered and required to keep substantial paperwork on their transactions, it is possible for the federal government, via the BATFE, to audit an FFL to ensure compliance with background checks. Off-book sales, especially when matched to financial data from other sources (e.g. tax returns, manufacturer records), trigger scrutiny, potential forfeit of license, and possibly prosecution.

So how does that work with a private transaction? Under a universal check policy, if a firearm transfers from private person A to private person B to private person C, how do you verify that a check occurred at each stage? You can't. Since none of those people are required to keep paperwork or records for audit purposes and because the check system is not supposed to create a de facto registry or transaction history, there is in fact no way to figure out after-the-fact when checks should have occurred or even which checks did or did not occur. This is, in fact, the exact conclusion that the Justice Department came to:
The nine-page document says the success of universal background checks would depend in part on “requiring gun registration,” and says gun buybacks would not be effective “unless massive and coupled with a ban.”

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This problem could be partially ameliorated by constructing an auditable transaction history from each check made. If there are records of an FFL sale to person A and a private transfer check to person B and a firearm is found in the hands of person C (and not reported stolen), then it can be deduced that a required check was skipped between person B and person C. An auditable transaction history is for all intents and purposes a registry, at least of firearms transferred after the universal checks are put in place.

A transaction history still would not solve the problem of an unreported middle-man (a background check occurs on transfer to person C but not from person A to B), and it would do nothing about existing arms in private hands prior to the start of universal checks. Someone found with a weapon and no history of transfers can simply claim that they possessed the weapon before the start of checks. The only possible solution to the latter problem would be a complete registration of who owns each firearm at the start of the system so that you can actually determine whether and when a private transfer has occurred. Any firearm found without a current and correct registration would then indicate a violation either way: failure to record a transfer or failure to register in the first place.

Low-Hanging Fruit Technically Reachable

Let's say for the moment that this issue was surmountable: either you accept that gaping holes will exist in the checks and use it only to catch low-hanging fruit where a violation is obvious or you accept a pragmatic limitation of enforcing checks only for firearms with recorded FFL transfers after the effective date of the universal check system. You could also get quite a bit closer to the goal with a cleverly designed permit-to-purchase system whereby a potential buyer carries a card documenting a relatively recent background check. The seller would only, in theory, have to be able to verify that the card is valid and that it is not in a list of revoked permits (to catch people prohibited after their most recent check, such as someone subject to a protective order or who has been involuntarily committed). Such a system would limit the exposure of private data to only the administrators of the system and to buyers/sellers who share a transaction.

In theory, a permit-to-purchase system could allow conscientious sellers to avoid unknowingly selling a firearm to a prohibited person. People can effectively do this today in Missouri by asking someone for a valid concealed-carry permit, but they would have to restrict the pool of potential buyers to only CCW holders. If the buyer-seller were then required to retain some documentation of the transaction, such as an invoice or bill-of-sale, then law enforcement could reconstruct the transaction history for a particular firearm by walking through the chain of transactions one at a time, but would not be able to mount practical fishing expeditions. Black market transactions would still occur, but some sales which pretty much everyone would agree to be unlawful might be stopped and that is, in fact, a goal that I--- radical gun rights supporter that I am--- can agree with in the abstract.

So, let's say that you could solve the practical problems, that you could craft a bill with sufficient safeguards and with some sharp teeth to discourage government from misusing the data. Let's further assume that you could shepherd that bill all the way through the political process without it being substituted in committee or rewritten in reconciliation, crippled by malicious or plain stupid amendments, or subverted to other purposes. I don't actually believe even this much is possible, but let us assume for the moment that it is.

It still won't work.

Missouri CCW Debacle

Missouri has a shall-issue concealed carry permit (CCW) system. Until recently, possession of a CCW permit was indicated by an endorsement on the drivers' license administered through the state Department of Revenue (DOR). In 2013, the DOR was caught requiring documents for CCW application and renewal that it had no authority to require, and was found to be scanning and storing those documents contrary to state law. Because people were concerned that the scanned data would make permit-holders vulnerable to wholesale identity-theft (the reason state law forbade the DOR from requiring, scanning, or storing certain documents in the first place), various investigations were begun into the policy changes. Along the way it was discovered that permit-holder data had already been disclosed in ways which clearly violated the law. Roughly 163,000 CCW holders had their data distributed on multiple occasions.

It should be noted that this entire issue developed in the context of the newspaper in Connecticut which had published concealed-carry permit holders personal information on a website. When Missourians were concerned about events in Connecticut, they were solidly reassured that such an incident would be impossible in Missouri, because the law contained safeguards to protect the confidentiality of permit-holders' data. I, myself, made that assurance publicly at several points based on my understanding of the law's clear wording which made violation a criminal offense.

After the governor's office first denied that the incident had occurred at all, to be contradicted by someone in the state Highway Patrol who had been involved in the disclosure, and them denied the significance of the incident, there were eventually two resignations, one on the Highway Patrol and one in the Department of Revenue. No disciplinary proceedings were initiated. No criminal prosecutions occurred. No publicly announced or documented criminal investigation happened at all. In fact, the DOR continued its unlawful actions after these disclosures came to light and after the governor ordered them to stop until the state legislature completely removed the system from their authority. A new system is being implemented and is now mostly functional with the county sheriffs printing and issuing CCWs. As the county sheriff's are already responsible for performing the background checks and application processing, the new system results in no additional exposure of private data. Information on the exact status of the CCW data disclosed and the scans of identity documents which were sent willy-nilly to a Georgia contractor is still rather murky.

The difficulty involved in getting the Governor's Office to take any action and the fact that a memo came to light whereby Janet Reno thanked the Governor for his help in implementing aspects of Real ID in Missouri (which aspects were specifically forbidden under Missouri Law) lead to state representative Rick Brattin introducing HR 923 in the 2014 state regular legislative session to impeach Governor Nixon (this was one of three impeachment resolutions introduced this session on three separate issues, one of which, Mike Moon's HR 476, I consider to represent an even more serious issue, that of not calling elections for unrepresented districts in the state, effectively barring 278,000 Missourians from representation during the session).

In my persona as Commander of the Sheriff's Auxiliary I presented testimony on behalf of the Sheriff's Office in the Committee Hearing for this resolution. At first, the legislature simply tried to bury it, but political pressure and public outcry forced the Speaker to refer it to the House Judiciary Committee (normally such measures would be handled by the General Laws Committee which was more favorable to the resolutions)... who again tried to bury it. Finally, pressure forced them to schedule a hearing, which was rescheduled twice. On the day it was supposed to be held, I traveled 3 hours, arriving the night before and footing a hotel bill (remember, we're volunteers) for a 1 hour hearing which started 37 minutes late and therefore did not get through the reading of the second resolution, let alone testimony. The hearing was then continued to the following week. Witnesses, including myself, had to travel again but the Committee did finally work its way through the resolutions and solicit testimony. No one spoke against any of the three resolutions. Some seven written testimonies were submitted against the resolutions as compared to approx. 270 in favor (Ron Calzone probably has better numbers, don't quote me on that).

The Committee, its hand now forced, had to consider the resolutions. A whip count (a request to determine how a measure would fare if it were called to a vote) indicated that the majority of the members were in favor of forwarding some or all of the impeachment resolutions to the full House. If passed by the House, the trial would then, under the Constitution, proceed under "seven eminent jurists" appointed by the Senate (Article VII, Section 2).

And When the Dust Has Settled...

So, the Committee members wake up one morning and read an interview where Stanley Cox, the Chairmen of the House Judicial Committee, says that the Committee as a whole determined that the accusations represented Unconstitutional behavior by the Governor, but did not rise to the level of impeachment and that no vote was necessary on the resolutions. Not only had the committee members not been notified of their own decision, nor had the sponsors of the resolutions (as is customary in committee proceedings). In the end, what with one thing and another, the Committee Chairman spun down the clock on the legislative session to the point where even if the resolutions could be forced to the floor, there was no longer any opportunity to act on them (the Missouri legislature is Constitutionally restricted to only part of the year--- a very good thing in most instances). Many people dragged their heels to delay the resolutions, but effectively a single legislator, Stanley Cox, pulled the trigger and kept every other legislator from voting on them.

For his trouble, incidentally, Representative Moon (my local district) has a suddenly appearing and well-financed primary challenger who happens to be married to a recent appointee of the Governor. All of this happened in a Republican-dominated legislature under a Democratic Governor and a Republican committee head. It isn't partisan politics, just run-of-the-mill corruption. Stanley Cox is term-limited, so his House seat cannot be threatened (his upcoming judicial election, on the other hand...).

'Safeguards' Really Aren't Unless Someone Is Willing To Enforce Them

The upshot of all this is an example of exactly the kind of chicanery that gun rights advocates fear in 'reasonable' legislation. Until very recently, I would have said that the Missouri CCW process represented exactly such reasonable regulation and that it incorporated sufficient safeguards. I like shall-issue CCWs; I like making sure that people licensed to carry have at least a minimum of exposure to self-defense law and that they don't screw up enough on the range to be kicked off (the only way anyone fails the range practical). Now I know for a direct and experiential fact that any such safeguards are irrelevant because they will never be acted on. If there is sufficiently blatant abuse, the regulation might be changed after-the-fact, but the violators will not be punished and those hurt will not be made whole.

Why would I expect that any attempt at universal registration... I mean background checks... would fare any differently? What safeguards would prevent data from being amassed beyond the mandate of the regulation, from that data being willfully misused, or from having that data simply inadequately protected? Should I expect the courts to leap to my defense? The Governor? The Legislature?

Target's 2013 exposure of 110 million customers' data did not happen because the thieves hacked Target's network directly, but because the attackers found a weak point in one of Target's contractors who probably should not have been given access to the main network in the first place ("A 'Kill Chain' Analysis of the 2013 Target Data Breach", Committee on Commerce, Science, and Transportation, 26 March 2014). Missouri passed a law to prevent the kind of data centralization and contractor access required under Real ID to prevent precisely this kind of occurrence with CCW/Driver's License data. There were legal safeguards in place. The safeguards were violated, no one was punished, and, in fact, we don't actually know that the practice has been stopped outside of the CCW process which was taken completely from DOR authority.

And So We End Up With Nothing

Color me unimpressed with "reasonable" regulation.

Until and unless the sociopolitical environment changes so that legislation 'with teeth' actually draws blood, I will not support firearm transaction check or permit-to-purchase proposals even if, on the surface, they appear reasonable and rational: I'm simply not that stupid. If advocates of 'reasonable' regulation had made even the slightest public effort to pin the ears back of the people responsible for the 2013 scandal, my attitude might be different. If media had not simply decried the sponsors of the impeachment resolutions as making a 'political stunt', my attitude might be different. I might be on the side of 'common sense' proposals. That opportunity has not only been lost, but I now side with the people working to roll back some of the "common sense" restrictions we already have.

[None of the preceding represents the official opinion of... well anything. Blame me. Or Canada. Or whatever.]

Tuesday, May 20, 2014

First Salient and Introduction

I end up writing a lot of things in a lot of places wearing a lot of hats. This blog is a chance to gather some of them up and connect them together, but more importantly, it is officially unofficial: I am not writing as a head of this or representative of that or member of some other thing. Often, these will be posts which cut across boundaries, don't belong in other boxes, and aren't on anyone's 'side'. Sometimes they will poke at people's conception of boundaries themselves, but most of the time I will just be using them to explore topics with a little more freedom than other venues afford.

The word radish comes from the same root as 'radical' meaning 'root'. A radical is someone who draws attention to the root of a problem. At root, I am a radical and proud of it. Like the radish I tend to be spicy and am best taken with a little salt.

If you haven't figured it out from the title and logo, I also tend to pun early and often. If you simply cannot deal with puns: run screaming while you still can.