CalExit Will Never Happen

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After the election of Donald Trump, many people got irrational, particularly Governor Jerry Brown, and the people of California (who ironically opened an embassy in Moscow in protest). Since then, many people, both in California and across the country, have pushed for the Golden State’s secession. Last Tuesday, California’s Attorney General decided to humor the #CalExit organizers.

Last Tuesday, California Attorney General  Xavier Becerra apparently finished his scotch, said “what the hell,” and gave his stamp of approval for a group of people to begin gathering the more than 585,000 signatures needed to allow a ballot initiative that would allow a ballot initiative calling for secession to be put on the 2018 ballot. If the ballot measure were to somehow pass, a commission would form to explore how the state could secede from the United States, unfortunately, this will never happen. calexit dos.jpg

Secession isn’t a new idea, outside the Civil War, the idea pops up every couple of years, normally in Texas, and at that time realists endlessly mock these attempts, and for good reason, the fact remains that there is no way to secede from the Union written in the Constitution.  Article IV Section 3 of the Constitution deals with how to admit a new state into the country, but the reverse is never discussed, and has been dismissed outright by plenty of respectable legal scholars.

In 2006, former Supreme Court Justice Antonin Scalia was asked by screenwriter Dan Turkewitz if a group of people suing the government for the right to secede would be a good plot point. Scalia responded saying that state’s do not have the right to secede. In his letter back to Turkewitz, Scalia said that such an issue would never even reach the Supreme Court:

“To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. … Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.”

Scalia.jpgWhat Justice Scalia pointed out in that first line is something most people don’t realize.  In the eyes of the United States government, there no such thing as the “Confederate States of America.” The southern states, in their mind, were just occupied by hostile citizens. This line of thinking was pointed out in the 1869 Supreme Court case Texas v. White.  This case argued that Texas’s Confederate state legislature had illegally sold bonds that were owned by Texas, and issued by the United States government as part of the compromise of 1850. While ruling on this case, the justices wrote;

“The Constitution, in all its provisions… looks to an indestructible Union composed of indestructible States.”

So while Jefferson Davis and his friends may have seen themselves as an independent country, the United States hadn’t given them the go-ahead to secede, so they had no sovereignty. The Civil War was a war for independence, much like the American Revolution was a war for independence. We had to defeat the British before getting the go-ahead to secede; if we had lost, we’d have socialized medicine and a government that doesn’t respect individual rights, and do we really want that?

While it amuses us to think that a state that disagrees with our own core ideologies could soon be gone, it is unlikely to happen. So unfortunately it looks as though referring to San Francisco as a “foreign country” will remain hyperbole.

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Oregon Wants To Take Your Guns

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“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” – 2nd Amendment to the Constitution

A recently passed Oregon Bill would allow a police officer, or a family member to seek a court order that would require subjects to turn over their guns, for up to a year, if the petitioners and the court think they could be a harm to themselves or others.  Apparently they don’t understand the term “shall not be infringed.”

According to the bill, the legislation, which now sits on Governor Kate Brown’s desk, the bill; 

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Oregon Governor Kate Brown

“Creates process for obtaining extreme risk protection order prohibiting person from possessing deadly weapon when court finds that person presents risk in near future, including imminent risk, of suicide or causing injury to another person. Establishes procedures for law enforcement officer or family or household member of person to apply for order. Establishes procedures for respondent to request hearing, and for continuance of order after hearing or if hearing is not requested. Establishes procedures for termination and renewal of order”

So how does the state decide who is deserving of an “extreme risk protection order?” Glad you asked!

“(6)(a) The court shall issue an extreme risk protection order if the court finds by clear and convincing evidence, based on the petition and supporting documentation and after considering a statement by the respondent, if provided, that the respondent presents a risk in the near future, including an imminent risk, of suicide or of causing physical injury to another person. “

The bill is being propped up by gun control advocates like former Congresswoman Gabrielle Giffords, as a way to prevent the mentally ill from causing harm to themselves or others. The hilariously ironic thing about that line of thinking is that mental illness is perhaps the one thing courts are not allowed to consider when issuing this “protection” order.

“The court may not include in the findings any mental health diagnosis or any connection between the risk presented by the respondent and mental illness”

While petitioner’s must prove that the person in question is at “extreme risk.” The bill defines this as anyone who has a history of threatening violence, either against themselves or others. But a previous violent misdemeanor would also make someone eligible, so would a previous DUI.

The subject of one of these petitions has no right to contest the order before it is issued, although they can appeal it afterwards. Once a petition is issued, the subject would have 24 hours to surrender all their weapons, if they were to refuse to surrender their weapons, they could find themselves in jail for up to a year, a $6,250 fine, or both.

The bill wasn’t passed in good faith, according to Reason.  Upon the bill passing through the Senate;

“SB 719 was sent not to the House Judiciary Committee—which usually handles criminal legislation, but is chaired by pro–Second Amendment Democrat Jeff Barker—but rather to the House Rules Committee. That committee’s chair decided to forgo a public hearing on the bill, and instead passed it out of committee the day before July 4, when half the Republicans committee members had already gone home.”

Ignoring the fact that this bill blatantly violates the second amendment, this legislation won’t accomplish anything, and can actually hurt those whom the bill is aiming to protect.

A suicidal person doesn’t need to use a gun to kill themselves, so it’s hard to see how it would protect someone from self-harm.  While the bill could put victims of domestic violence at risk.

One of the criteria of petitioners includes not only law enforcement, but family members, and anyone you live with.  Let’s say that a woman is in an abusive relationship and one day during the abuse she threatens to kill herself. The abusive partner could then turn to the court system and have them take away the weapon that could save the victim’s life.

Oregonians rights could also be trampled by judges with an agenda like Kenneth Walker , who has publicly stated that he wishes he could “dump all guns in the ocean.”

 

Hopefully Oregon’s senate will attempt to tear this bill up sooner, rather than later.

It Costs Money To Infringe on Your Rights

 

June is a great month for many reasons, least of which is because it marks the time of year when the Supreme Court issues decisions on the cases they heard earlier in the year. While cases like Murr v. Wisconsin and Gill v. Whitford made waves this past month, headlines like  the disappointing Philando Castile verdict, and the “Back the Blue Act” have the chance to further enhance police power. The expansion of the “police state” is nothing new, and reminds me of an interesting Supreme Court case from last June; Utah v. Strieff.

In that case, Utah detective Douglas Fackrell suspected that a Salt Lake City residence may be selling drugs, so he decided to monitor the property. One day, Fackrell saw Edward Strieff leaving the residence. Seeing the opportunity he had been waiting for, Fackrell stopped Strieff for questioning.  During that questioning, Fackrell discovered that there was an arrest warrant out for Strieff, so he searched him without obtaining a warrant. Upon that search, they found some meth, and arrested him.

Lower courts found that even though the initial questioning was illegal, the evidence discovered during the stop still could be used at trial because it was proof of a crime, the Utah Supreme Court disagreed. The Utah Supreme Court ruled that the evidence found during the stop needed to be suppressed in court since the search of Edward Strieff violated the fourth amendment, therefore any evidence found during the stop should be ruled inadmissible.

The case made its way to the United States Supreme Court, where the justices had to decide if evidence obtained during an illegal search is enough to arrest someone on an outstanding arrest warrant. In a 5-3 decision, SCOTUS sided with law enforcement. In his 5-3 majority opinion, Justice Clarence Thomas stated that evidence obtained during the violation of your fourth amendment rights should not be excluded if the “costs of its conclusion outweigh the benefits.” 

Essentially, what this means is when a valid warrant is discovered after an unconstitutional stop, the connection between the unconstitutional conduct and the discovery of evidence incident to a lawful arrest based on the warrant is sufficient. The ruling essentially nullifies the fourth amendment.

Justices Sonia Sotomayor and Elena Kagan both wrote dissenting opinions, with Ruth Bader Ginsburg joining in for parts of both. In Sotomayor’s dissent, she recognizes just how much power law enforcement wields in this country;

“Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more”

It’s incredibly easy to get pulled over for speeding, only to have an ambitious law enforcement official “discover” some minor issue that would result in an arrest.  While most law enforcement officials are good men and women, the general public needs to be able to hold the small minority accountable for their actions. With the Strieff ruling, Sotomayor points out, the Supreme Court has given law enforcement a great deal of power;

“This Court has allowed an officer to stop you for whatever reason he wants — so long as he can point to a pretextual justification after the fact.”

“By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time”

“It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

Sotomayor makes an incredibly valid point, it has become increasingly clear that the “Prison Industrial Complex,” has gained enough power that even though crime has dropped 40% in the last 20 years there are currently over 2.5 million people in jail.  

The prison population isn’t just exorbitant, it is incredibly expensive.  At a cost of $30,619.85 per federal inmate, per year, it seems a bit irresponsible to lock up nearly 188,000 people, of which nearly 95,000 are serving time for ridiculous drug offenses.

The cost per inmate is much higher in major cities. In New York City, for example, it costs $167,731 to incarcerate one person for a year. With 8.5 million people in NYC, that means each resident of NYC is spending $242.46 a year to lock up residents, and that number is based off of population alone. If you only count taxpayers, that cost per person would be much higher. And while $243/year seems like a small price to pay to lock up rapists and murderers, is that money really worth locking up an 18 year old with an ounce of pot?

Even if you don’t necessarily care about  other people, you have to realize that if you’re paying $243 a year to lock someone, what other government programs are recklessly spending money? Maybe you’re spending $20 a year to ensure that kids have the necessary permits to cut their neighbors grass, or $80 a year subsidizing research for a corporation owned by billionaires.  At some point in time society needs to realize that the government bleeds taxpayer dollars.

When you combine the overwhelming power of law enforcement, with a large amount of bureaucracy and a crackdown on victim-less crimes, criminal justice reform is necessary to not only wrestle back control of our civil liberties, but to  help save our economy as well.

You Can Say Whatever The Hell You Want, SCOTUS Rules

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The first amendment states;

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Seems pretty straightforward to me. Which is why I find it baffling that there is a major free-speech case coming up every couple of years.  One of this years cases, Matal v. Tam centered around Asian-American rock band, “The Slants,” being denied a trademark by the US Patent Office in 2011.  This week the Supreme Court upheld an Appellate Court’s decision 8-0, that rules on the side of “The Slants.”free speech cartoon.png

 

The Case

At issue is the 2011 decision by the United States Patent Office to deny the band the right to trademark their name.  The Patent Office claimed that the band’s name, “The Slants,” was offensive, and therefore wasn’t allowed under what is called the “Disparagement Clause.”

The  “Lanham Act” of 1946 is the federal statute that governs trademarks in the United States. As part of that act, the “Disparagement Clause” allows the Patent and Trademark Office to cancel trademarks that;

“ disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”

Among the arguments made by the government as a way of defending their case, they stated that; trademarks are government speech, not private speech, trademarks are a form of government subsidy, and that the constitutionality of the disparagement clause

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Apparently “The Slants,” an all Asian rock band, may offend Asians

should be tested under a new “government-program” doctrine.

Despite the government’s argument that the name “The Slants” was offensive, the all Asian band disagrees. They chose the name as a way to challenge established stereotypes. Simon Tam told Reason back in April;

“When I found out what the government was doing and how they were doing it, how they were using it to suppress speech and how they were trying to take rights away from my own community, I decided that was not right. So all of a sudden it became about principle. When I believe they are violating the values of our country and violating my own values, I decided that had to be stopped, no matter the cost.”

The Outcome

The government got bitch slapped by the first amendment.  

Although there were three separate opinions, they all agreed that the government has no right to outlaw offensive speech. Writing for the court, Justice Samuel Alito wrote

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His “victory” smile

“It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Alito continued on to criticize the government’s argument;

“The Government has an interest in preventing speech expressing ideas that offend.” ..”that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'”

The court continued to re-iterate the point, stating;

“If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents.”

What Does This Mean?

It means the “Disparagement Clause” of the Lanham Act has been declared unconstitutional.  Matal v. Tam  reaffirms the right to offend other people. It states that just because you do not like what is being said, does not mean it is illegal. The court hammered in the point that disparaging trademarks could not be prohibited under such broad terms;

A simple answer to this argument is that the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.

The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution.

A real world example would be the NFL’s Washington Redskins, who in 2014 had their trademark cancelled under the “Disparagement Clause.”  It now seems likely that the redskinsRedskins will be able to retain their trademark.  

Hopefully, one of these days, people will actually read the first amendment and stop bringing forward such idiotic cases.