Thursday, June 18, 2015

Flawed Firearms Research is Agenda-Driven




Response to NCVP  research on gun violence- John Sterling
Conclusion:  Poor “analysis” of facts establish clear policy agenda.
POLICY POSITION of National Center for Violence Policy
Their report is available at https://www.vpc.org/studies/justifiable15.pdf
(My responses in Parenthesis)
Fact: The VPC asserts that “When analyzing the most reliable data available, what is most striking is that in a nation of more than 300 million guns (Their source estimates 310 million), how rarely firearms are used in self-defense.”
(In 2012, 8,342 criminal gun homicides were recorded by the FBI.  8,342 divided by 310 million = 0.0000269097.  What “strikes” me is that this is a number so low as to be statistically irrelevant).

The NCVP researchers ask this: “While it is clear that guns are rarely used to justifiably kill criminals, an obvious question remains: How often are guns used in self-defense whether or not a criminal is killed”
“…for the five-year period 2007 through 2011, the NCVS (National Crime Victimization Survey, conducted by the Bureau of Justice Statistics) estimates that there were 29,618,300 victims of attempted or completed violent crime. During this same five-year period, only 235,700 of the self-protective behaviors involved a firearm.
(29,618 divided by 235,700 = 7.957% over five years. Eight % is approximately 103,000 people who DID NOT become victims during the reporting period because of having a firearm available. Apparently this 8% of intended victims of violence do not matter to the Violence Policy Center. Instead they are agitated over the claim by pro-gun advocates that the number is higher.)

In “… the five-year period 2007 through 2011, the NCVS estimates that there were 84,495,500 victims of attempted or completed property crime.
During this same five-year period, only 103,000 of the self-protective behaviors involved a firearm. Of this number, it is not known what type of firearm was used, whether it was fired or not, or whether the use of a gun would even be a legal response to the property crime. And as before, the number may also include off-duty law enforcement officers. In comparison, data from the Department of Justice shows that an average of 232,400 guns were stolen each year from U.S. households from 2005 to 2010.
(84.5 million property crimes were either attempted or completed in this five year period – an average of 169,000/year.  Note that this “analysis” contains a fair bit of speculation on the part of the NCVP. They do not know how many crimes were “completed” so they cannot know how many “attempted” crimes were thwarted by armed property owners. Since property crimes can happen inside of, or outside of, the home, the legality of using deadly force or the threat of deadly force is unknown. Therefore this piece of information is useless to any “analysis”.)
(It is completely valid to be concerned with 232,400 guns being stolen each year [0.00075% of all estimated firearms], but that is different problem, requiring a different solution. Furthermore, there does not appear any research was done as to how many of those 232,400 guns are subsequently used in violent crimes, which WOULD be an important piece of information, particularly for an organization whose interest is in violence prevention. )

CONCLUSION of the NCVP:  “The reality of self-defense gun use bears no resemblance to the exaggerated claims of the gun lobby and gun industry.”   (OK. And this important, why?)    Further, “…in 35.5 percent of the justifiable homicides that occurred in 2012 the persons shot were known to the shooter.”   (Not sure why this is relevant to the discussion. A threat is a threat regardless of whether the victim knows the perpetrator, or in what context.)
  The devastation guns inflict on our nation each and every year is clear: more than 33,000 dead, more than 81,000 wounded, and an untold number of lives traumatized…”  (It is interesting to me that these figures are NOT footnoted.  There is no citation provided to check these numbers.  But assuming they are accurate, they do not constitute evidence to prove their assertion.    They are just “out there” and the reader is left to form his/her own conclusions. Logically, the number of all people killed by firearms in the United Stated per year would be people who were (1) unarmed victims of crime, (1) armed perpetrators of crime, or (3) suicides.  Intuitively, the vast majority of those killed by firearms are people who were using firearms illegally. (i.e. criminals killing other criminals as in gangland shootings, shootouts with police, etc.. Hardly useful information if the purpose to hinder lawful gun ownership. Further, the VPC clearly is more compassionate towards criminals than towards the citizens who use firearms to protect themselves.)
“When analyzing the most reliable data available, what is most striking is that in a nation of more than 300 million guns, how rarely firearms are used in self-defense.” (Besides being irrelevant if offered in support of gun control, this fact, actually tends to support the conclusion that private ownership of firearms is more safe than a whole range of other lawful, but more deadly, liberties. It is possible-even logical- to conclude therefore that if MORE people had firearms in their possession at the time of the attempted crime, more lives would be saved and crime would be REDUCED!  Instead, this organization is focused on the claims that MORE incidents of crime were prevented by firearms than may actually be the case. Again, I’m not quite sure why THAT is their focus when their organizations stated purpose is the prevention of unnecessary violence and death.
For example, in 2012, the same year from which NCVP draws their statistics, there were 254 million automobiles registered in the U.S. In that same year there were 33,561  automobile fatalities.  I’ll not even discuss the “…untold number of lives traumatized…” by being injured in an auto accident, nor shall I speculate on the numbers of unregistered cars on the road which may, or may not, have been involved in accidents.   Statistically speaking, the number of fatalities compared to the number of vehicles registered is about 0.00013213 %, or roughly TEN TIMES the numbers of fatalities compared to guns and gun-related violence in the U.S.. Further, there are apparently no statistics available for how many automobiles were used for self-defense so there is no way to compare the number of lives saved to the number of lives lost for that particular “dangerous” activity. Since that number is likely very low, the “self-defense value” of a firearm exceeds that of the much more dangerous automobile a hundred-fold or more.)

MY conclusion:  The NCVP seems unjustifiably antagonistic towards the private ownership of firearms and the use thereof to protect lives and property, and the overall reduction of crime. Their research is incomplete, and their analysis is flawed.   It seems clear that they are agenda-driven rather than research driven. Methinks they should change their name to one that more accurately expresses their agenda.
John Sterling, MA, JD
Copyright 2015

Monday, June 8, 2015

The Balance between Liberty and Order



I awakened from the dream, knowing it was just a dream but feeling the intensity of the emotion that it produced in me. I was a policeman again, in a small office, in a small town with a couple of other officers when three people came in. They were strangers in town and as it turns out, they were activist/actors, on a mission to challenge law enforcement and to prove that police were enemies of freedom.  They had a story and each actor played their roles well.   I don’t remember what the pitch was, but in my dream, I recognized the play early in the performance and I, and the other officers, were on guard.  Other law enforcement professionals recognize the phenomenon; your mind is suddenly on alert from some subtle cue, and suddenly “things just don’t seem right”.  It’s hard to explain to the inexperienced, but it is a kind of intuition that operates deep in the subconscious. For the police, your life depends on this intuition.

The story told by the visitors was intended to cause the police to overreact and their plan was each of the “players” would be then be “mistreated” in some way that would engender sympathy and support for their “cause”. With a clarity not often present in dreams, I saw that each of these (two men and a woman) had a different view of just exactly where the line is drawn between civil order and individual freedom, but they all agreed that the status quo was too “extreme” in favor of social order and, in their view, too “hostile” to individual liberty. 

The details of the “play” are a bit fuzzy now, and probably unimportant anyway, but as I lay in the pre-dawn darkness, I was keenly aware that this dream reflected a deep truth that reflects a present reality in our culture.  There are people who understand and adapt to the notion that some individual freedom is voluntarily placed in subordination to maintain civil order based upon shared values. There are people who believe that the system favors order at the expense of liberty (in varying degrees). Then, there are those on the other hand who believe that excessive focus on liberty has threatened, and is destroying order (also, in varying degrees). The “activists” occupy the fringes at both ends of the spectrum. The three activists in my dream all felt that social order was oppressive and that the freedoms of the individual were insufficiently appreciated. I remember knowing in my dream that these actors did not all agree as to what a “perfect” society would look like but that their “mission” in life was to promote their view that police were the visible manifestation of all that was wrong with our government and our system of laws.

The dream played out with all three being arrested (which they intended) but in a different manner, and for different reasons than they had planned. The other officers and myself conducted ourselves in a manner that was completely unexpected by our “visitors” (as would happen when prior intel would permit the officers to inject an element not foreseen by the antagonists). Following some “dream-world drama”, and one of them nearly being killed in a “resist arrest” move, all three were “unarrested” after being “schooled” on philosophy and law. Some of my former students will nod knowingly, because they apprehend that this is “how I roll”. Even in my dreams (some might argue ONLY in my dreams) I am still “the professor”.

In my dream, as in real life, the failed “plan” of the activists, and the subsequent manner of arrest, and the fact that one of them was almost killed in the process, had unintended consequences.  The experience resulted in one of the actors having a complete change of heart and mind, the second one being seriously intellectually challenged as to his underlying philosophy, and the third one only hardening his heart and steeling his resolve to destroy the system;  One “win” for the good guys, one “loss”, and one “maybe”.

As I lay there deciding whether to get up or try to squeeze in another  hour of sleep, another recent memory came to mind that seemed to illustrate and underscore the philosophical content of the dream, and convince me to get up and write these thoughts down on paper. A couple of days earlier, I was on Watts Bar Lake in my 28’ sailboat with my good friend, a retired NYPD officer.  Eddie was at the helm as we motored back to the marina (the wind was calm so there was no sailing back) and I was viewing the distant shoreline through powerful binoculars. If I rested my elbows on the cabin roof, the vibration of the engine and movement of the boat on the water distorted my distant vision. Trying to eliminate all movement of my body by resting solidly on the boat only transmitted the minor (but distinct) movements to the binoculars, and as a consequence, the image of the far shore was too blurry to be useful.  But… if I stood steady on the deck, and let my brain allow my body to compensate for the movement of the boat, and absorb the vibration of the engine, then I was able to view distant objects with clarity. My body became the “buffer” between the dynamics of the boat moving through the water, and the static shoreline.

I think that the balance of order and liberty is like that. The “boat” is the firm foundation of the law, rooted in history, tradition, philosophy, and morality, and validated by the commitment of “we the people” to that morality and our traditions.  But history shows that even in the best of times, there are minor imperfections, and “vibrations” that are systemic. That is the “lake” that is life. It is dynamic, fluid, and powerful.  We try to navigate through the waters of life towards some distant objective that we know is there but that we cannot clearly see because of the instability of our situation.  We need a system to provide some steady, predictable, mechanism to get us over, across, and through, the waters but unless we are all “on board” we will not reach the destination. As individuals, we must remain flexible, and “give” a little to the demands of the water, and the realities of the boat, to get the clearest vision possible for the future safety and security for all.  The solution for clearer vision, and a safer journey is NOT to get out of (or to destroy) the boat!

In my dream, those three visitors saw “the boat” (the system of laws and government) as the natural enemy of individual liberty. The police were the visible representation of all that was wrong, and “oppressive” about the system. The visitors wanted to destroy the system in order to arrive at the same far distant shore as everybody else, but without the confining structure and limitations that the system inevitably requires. In the words of president Dwight D. Eisenhower, "A people that values its privileges above its principles soon loses both." Fundamental principles of liberty are balanced by fundamental principles of duty.  The system that was created and which we have struggled to maintain, is a balance between the maximum amount of individual liberty that can be achieved at the same time as the maximum amount of tolerance that must be extended to the “vibrations” of our civic duties and responsibilities. In the words of esteemed commentator and author Dr. Thomas Sowell, “"Tolerating imperfections is the price of freedom."

The media in the last few months has carried a number of stories of conflict between members of the public and the police, with whom some citizens feel a strong sense of anger and fear. The police likewise feel a sense of anger and fear at those citizens because we are caught in a classic “values conflict”.  The media capitalizes on the fear and anger by refusing (in many cases) to be “fair and balanced” in their presentation of the news. The result has been several police officers, and several citizens killed. In at least one recent case, it seems clear that there was an example of misuse of police authority and a blatant abuse of power.   In other cases, careful review has shown that the citizens acted in frenzied fury and out of (calculated?) misrepresentation of the facts. The issue for everyone is whether, or to the extent, that the machinery of government (the system) has pushed so hard for social order that it has lost all tolerance for the individual rights of the community. The “balance” between social order and individual freedom has been seriously compromised in some communities. The great danger is that such a condition, if handled poorly, will escalate to a national problem.  Every time the issue is approached from passion rather than reason, the players resemble those in my dream: someone with a personal “axe to grind” whose notions of individual liberty trump the necessity of lawful order. I fear that without wise leadership, and a deeper understanding of, and appreciation for, the dynamic tension between order and liberty, we will lose both. The “activists” need to acquiesce to the ruling of the majority as to our national (historic) values and the limitations of our tolerance of disorder.
-JAS- 2015

Monday, April 6, 2015

Gay hatred and Indiana's Religious Freedom Restoration law.



Wikipedia defines Bigotry as: Bigotry is a state of mind where a person obstinately, irrationally, unfairly or intolerantly dislikes other people, ideas, etc.[1][2] Some examples include personal beliefs, race, religion, national origin, gender, disability, sexual orientation, socioeconomic status, or other group characteristics.
The Urban dictionary defines a Bigot as: a prejudiced person who is intolerant of any opinions differing from their own.
Wikipedia defines reason as: the capacity for consciously making sense of things, applying logic, establishing and verifying facts, and changing or justifying practices, institutions, and beliefs based on new or existing information. Reason or "reasoning" is associated with thinking, cognition, and intellect. Reason, like habit or intuition, is one of the ways by which thinking comes from one idea to a related idea.
Bias occurs when a person defines an argument in terms that marginalize an argument in opposition, and ignores, or minimizes evidence contrary to the position they advance. Bias is often difficult to acknowledge in one’s own argument, and especially when that one is passionate about (believes very strongly in) that position. (See: cognitive dissonance)
Today, many American's who favor gay rights and gay marriage, are mis-characterizing Indiana's new law, either out of ignorance, or their own personal bias against religion. Hatred of religion is every bit as much bigotry as the hatred that those same people accuse others of having against homosexuals.   

APPLIED TO CURRENT EVENTS
The Indiana legislature recently passed a Religious Freedom Restoration Act (2015) which affirms that religious beliefs are protected by both State and Federal law, and that a governmental entity may not substantially burden a person's exercise of religion, or violate a person’s religious convictions, unless in furtherance of a compelling governmental interest; and then, only by the least restrictive means.  This language, both in the letter and spirit of the constitution is consistent with 250 years of American jurisprudence.   The law does not create a new right, nor re-define or expand an existing right. It does not create a "right" to discriminate" based upon religious beliefs but rather provides clarification and acknowledgement that religion continues to enjoy a protected status that government is obligated to respect.

The full text of Indiana's "religious freedom" law may be viewed here:   http://www.indystar.com/story/news/politics/2015/03/27/text-indianas-religious-freedom-law/70539772/
The relevant portions (what is creating all the stir) are these:
Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.
Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.
THE CHARGE(S) By the LEFT  (The cause of the hysteria)
(1)   the law could lead to discrimination against gays and lesbians.
(2)   Indiana’s law, and all similar legislation is motivated by hatred of gays and/or gay lifestyle.
(3)   Gay rights have been established by the Supreme Court, which trumps any state law on the subject.

DEFENSE
There is nothing in the language of this law that creates a right to deny services to anyone.
The law protects the specific, historic, unambiguous Constitutional right for Americans to exercise their religion and act on their conscience.
For an assertion of "right" to be enforceable by government, it must first have been created by a legitimate process (i.e. legislative). Rights cannot (legitimately) be created by the Supreme (or any other) court. (See Justice Scalia’s Dissent in Windsor [2013]).
There IS NO specific, historic, unambiguous Constitutional “right” for same-sex unions, whether called “marriage” of something else.   Such an assertion of “right is based upon “wishful thinking” by a very small minority of U.S. citizens who find support for their position through the judicial branch, rather than by the legislative process and the support of the majority.
The issue is NOT about “hating” gays.  It is about people being able to choose which of two competing values systems or moral sets to live by. People do this all the time without “hate” being an issue.  One group accepts only the traditional definition of “marriage” as between a man and a woman, and chooses to embrace traditional marriage as an institution worthy of social acceptance. This group believes that traditional marriage is more likely to produce a stable society (and therefore worthy of government sanction) than a homosexual union. This position has been the official government position since the founding of this country, and was even specifically articulated through legitimate legislative process as the law of the land by the Defense of Marriage Act in 1996.
The other group declares that homosexual couples have a “right” to a civil union and to call it a “marriage” just the same as couples united in a heterosexual marriage. This position was affirmed by the Supreme Court in United States v. Windsor, a five/four split, in 2013, when part of the DOMA was overturned on the basis that it violated the right to liberty and to equal protection for gay couples.
In a recent blog from NPR, the author noted:
“This court ruling, of course, delights the proponents of gay marriage.  The ruling means that more than 100,000 gay and lesbian couples who are legally married will be able to take advantage of tax breaks, pension rights and other benefits that are available to other married couples. (SOURCE: http://articles.latimes.com/2013/jun/26/news/la-pn-doma-supreme-court-ruling-20130626 )  The decision leaves in place another provision in the law that says no state is required to recognize gay marriages performed in any other state. That provision was not under challenge.
Speaking to the recent Indiana law, Josh Blackman, a constitutional law professor at South Texas College, notes in National Review that while some read the federal provision as pertaining only to government, it has actually split federal courts. "Private parties," he points out, "had brought suits against corporations."
For example: "[T]he D.C. Circuit held that the Catholic University of America could raise RFRA as a defense against a sex-discrimination claim brought by a nun and the Equal Employment Opportunity Commission alike."
That said, the Indiana law explicitly wipes away any ambiguity. ( SOURCE: http://www.npr.org/blogs/itsallpolitics/2015/04/01/395613897/sorting-fact-from-fiction-from-politics-on-the-indiana-law  )

SCALIA’S DISSENT IN WINDSOR (2013)

Writing for the dissent in United States v. Windsor, Justice Scalia wrote: “This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former.”
Scalia Continues:
The Court is eager—hungry —to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?
The answer lies at the heart of the jurisdictional portion of today’s opinion, where a single sentence lays bare the majority’s vision of our role. The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff ”) would “become only secondary to the President’s.” Ante, at 12. But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.”
 That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

So there you have it.   Another example of the overreach of a non-elected judiciary, by the narrowest of margins, acting again as the captains of societal evolution, rather the much narrow role of judges, to which they swore their oath. (Read the entire case, and especially Justice Scalia’s well-reasoned dissent, at https://www.law.cornell.edu/supremecourt/text/12-307 )

Scalia’s dissent goes on to say:
“The “judicial Power” is not, as the majority believes, the power “‘to say what the law is, giving the Supreme Court the “primary role in determining the constitutionality of laws.” The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons.
In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, free standing role at all.   Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress. Lujan v. Defenders of Wildlife , 504 U. S. 555, 560 (1992).
We have never before agreed to speak—to “say what the law is”—where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer.
The majority brandishes the famous sentence from Marbury v. Madison , 1 Cranch 137, 177 (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Ante , at 12 (internal quotation marks omitted). But that sentence neither says nor implies that it is always the province and duty of the Court to say what the law is—much less that its responsibility in that regard is a “primary” one. The very next sentence of Chief Justice Marshall’s opinion makes the crucial qualification that today’s majority ignores: “
Those who apply the rule to particular cases , must of necessity expound and interpret that rule.” 1 Cranch, at 177 (emphasis added). Only when a “particular case” is before us—that is, a controversy that it is our business to resolve under Article III—do we have the province and duty to pronounce the law.”
Some courts have agreed with Scalia that the Windsor decision lacked clarity and proceeded to interpret it with little reference to federalism, just as Scalia had predicted.[109] When ruling Oklahoma's ban on same-sex marriage unconstitutional on January 14, 2014, in Bishop v. Oklahoma, U.S. District Judge Terence C. Kern described the decision as the culmination of a process: "There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one". (Wikipedia)

SUMMARY
Gay rights activists are joined by those who feel that true love should be given the same respect between any two people, or for that matter, any two living creatures, or for that matter, any living person and some inanimate object (robot, sex toy, I-phone, or???)  When we make national policy decisions on the basis of our deep feelings, we end up with bad laws (i.e. prohibition).  When we create “rights” requiring all other persons to “honor” or “respect” ALL unions based upon “love” then no other rights can ever be asserted (apparently) if they conflict with the absolute right to “love” whomever or whatever) we want. This is a sure recipe for disaster, for few things life are as certain as the uncertainty of emotions.  Policy should always be rooted in reason, and reason always requires a process.  Passion should never form the basis for policy, for while passion may follow reason, the reverse is not true: reason will not follow passion.   
Once we eliminate the traditional definition of marriage and we degrade the traditional concept of marriage to be whatever is the object of our affection, then the historical, traditional basis of social order is threatened.  Whether anyone thinks that is a good idea or not, any such shift must follow established legislative processes and must require majority public support. Members of the judiciary are NOT elected representatives of “we the people” and their authority is limited to the cases that are before them. Emotion is NOT the proper basis for a policy shift.  Government-created rights are the result of deliberate legislative actions, and all such laws may be ONLY passed in accordance with constitutional provisions.
John A. Sterling, MA, JD
Copyright 2015