It seems fatigue has set in with the protests in Ferguson, Missouri, following the fatal shooting of Michael Brown by Officer Darren Wilson. I’ve been following the protests and the police response every night on Twitter since the shooting, and it’s been riveting. I keep telling myself to ignore it for a while, and for most of the last two weeks, I keep getting drawn in anyway.

There seemed to be a sort of hardening effect going on among the protesters. I first really noticed it the second night after the highway patrol took over from St. Louis County. Everything was relatively peaceful for a while, but then it started to rain, which I think chased off many of the ordinary residents of Ferguson, leaving behind a crowd with a larger-than-normal fraction of drunks, criminals, and agitators. Without the moderating influence of normal people, the looters went a little wild, which prompted the Governor to declare a state of emergency. Captain Johnson of the highway patrol had said that police wouldn’t use tear gas on peaceful protesters, but police ended up gassing the crowd anyway, which they claimed was necessary because of people with guns and Molotov cocktails. That drove off even more people.

Meanwhile, experienced protesters from all over the country had started to travel to Ferguson, and I started to notice more signs of preparedness among the crowds — eye protection, ear plugs, stashes of supplies, legal aid phone numbers written on their arms — and I began anticipate that things would get more confrontational, but also that the message of the protesters would get derailed as the outsiders brought their own agendas to the scene. I’m pretty sure I saw some protest signs about Gaza and bankers.

Instead, it all just kind of fell apart, starting on Tuesday. I’m not sure why. Maybe it was a change in police tactics. When police saw someone throwing dangerous objects or brandishing a weapon, instead of gassing the crowd, they would just swarm in, grab the people causing trouble, and quickly retreat. They’ve also stopped trying to enforce a curfew or hold a an arbitrary line on the streets. They had figured out a way to go back to the basic police mission of protecting the mass of the citizens from the relatively small number of miscreants. The more peaceful protesters had always been angry at the troublemakers, so I think this relieved the tension a bit.

Maybe it was the media circus. By some estimates, Tuesday night’s crowd held more members of the media than Ferguson residents. It was getting a bit silly. On the other hand, perhaps Ferguson residents finally felt their concerns were being heard by someone.

Or maybe the protests just ran down as part of their natural course. People worked through their anger and returned back to their normal lives.

Now I guess the question is what happens next? Will Michael Brown’s death be brushed under the rug once people stop looking? Or has all this attention created enough pressure on the local and state government to ensure that a thorough investigation takes place and justice is served? Or will police and prosecutors railroad Darren Wilson in order to gain political approval? And what will happen to the really awful police and government of Ferguson? Will Antonio French succeed in his voter drive to run them out? Or will whatever kept them in power ’til now keep working?

And what about the larger issues? Following along through the internet, it certainly felt like something of national importance was happening in Ferguson. But that might just be an illusion; I was intensely interested, so I noticed how much everyone else was interested. Still, it brought attention back to the issue of policing in minority communities, and it attracted a lot of scrutiny to Ferguson and the St. Louis County area in particular. It also attracted some much-needed attention to the issue of police militarization.

Maybe this has all been a step down the road toward some change. I have my doubts, but I certainly hope so.

“The Constitution is not a suicide pact.”

The first time I heard that phrase, I thought it was a pretty good line, and I agreed with it. In a sense, I still do. That’s because the first time I heard it I interpreted it backwards from how most people do when they invoke it. I never knew why the other interpretation was the one that caught on.

I stumbled on the answer the other day when Scott Greenfield quoted from Justice Robert Jackson’s 1949 dissent from Terminiello v. Chicago, in which the Court overturned a conviction for an apparently somewhat hateful speech that violated Chicago’s breach of peace ordinance because it stirred up anger between those who heard it and those who were protesting it. Two other Justices wrote dissents (i.e. supported the conviction) on somewhat technical grounds, but Jackson argued that the Court should have upheld the conviction because it was critical to preserving the public order:

…underneath a little issue of Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society’s need for public order.

He then goes on to describe the public response to the speech and quote from it extensively. Honestly, I skimmed over the speech (apparently something about commie Jews), but it sounds like Terminiello was something of a fascist. The protesters outside the auditorium supposedly were communists, which created the potential for some rioting. All of which apparently gave Justice Jackson visions of World War II breaking out all over again, right there on the shores of Lake Michigan:

This was not an isolated, spontaneous and unintended collision of political, racial or ideological adversaries. It was a local manifestation of a world-wide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe.

Jackson’s dissent goes on and on — including quoted material, it runs to almost 8000 words — ending with this:

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Greenfield explains what that has come to mean:

That the Constitution is not a suicide pact flows from this, and at any given moment in history, the outcome of a decision may seem to be compelled by “a little practical wisdom,” meaning that we first must protect ourselves from who or what seems most threatening.

To me, Justice Jackson’s position is somewhat daft. What’s the point of preparing a written Bill of Rights and having it ratified by the States if you allow the courts to ignore it whenever obeying seems like hard work?

What Jackson proposes is like calling your homeowner’s insurance company while staring at the smoking ruins of your house only to have the claims agent respond, “The whole thing burned down? Oh wow…  No, buying you a whole new house would be way too expensive… I’m sure you understand that we didn’t anticipate anything that bad happening to your house when we sold you the policy…”

Just as we only need homeowner’s insurance when something really bad happens to our home, we only need our legal rights when the government thinks we’re doing something bad. There’s no point to a Bill of Rights that only protects us when the government doesn’t mind what we’re doing. We don’t need protection when no one’s out to get us. We need protection when the powers-that-be think we’re the enemy.

But people with views like Jackson (or Posner) argue that those are the very times when the Courts should be less rigid about protecting people’s rights. They speak of times of “unprecedented perils” and “existential threats” to our country. (The sources of the threats change over time — communist spies, civil rights agitators, militias, drug dealers, Satanists, human traffickers, terrorists — but the solution is always drearily authoritarian.) To ignore the danger because we are too worried about phantoms of lost liberty would be tantamount to suicide, and our commitment to Constitutional rights is not so great as to require we follow it to our deaths. The Constitution is not a suicide pact.

When I first head that phrase, however, I understood it to mean something different: The Constitution is not a suicide pact because respecting individual civil liberties is not a suicidal act. How many countries have died because they allowed their citizens to have too much due process? How many nations have fallen because they allowed their citizens to speak up too much?

Granted, there are governments that arguably fell because of a failure to crack down hard enough on their people. Off the top of my head, there’s tsarist Russia, communist Czechoslovakia, apartheid South Africa, and the Arab Spring nations — Tunisia, Egypt, Libya, and Yemen. Corrupt authoritarian regimes, every one. In some cases, the new governments that arose afterwards weren’t any better, but the destruction of the old governments was no great loss.

And of course there’s colonial America, creators of that Constitution we were just talking about. The new United States had just fought a war for independence against one of the most powerful enemies we’ve ever faced (only the nuclear-armed Soviet Union would be proportionately more powerful), and it was in the aftermath of that war that the Bill of Rights was created, setting forth our rights in some rather absolutist language. Clearly the authors did not think due process and freedom of speech were a recipe for national destruction.

Not only is respecting individual civil liberties not a suicidal act, it’s arguably a source of considerable strength. A tradition of freedom makes a nation difficult to conquer, the economic benefits of free markets make strong defense affordable, and the practice of open debate makes a nation flexible to advantageous changes of policy.

I suppose folks like Jackson are right in a sense: We still do have to find a balance between liberty and order. But I would argue that we did find that balance, and we wrote it down in the Constitution. It’s not a suicide pact, but it is a pact: If some people think it’s time to change that pact, let them make their argument for changing it and follow the process for amending it. Otherwise, keep the order you think is so important by following the rules.

Chris Hallquist intrigued me with a recent post about the number of crazy people who think an armed revolution will be needed in the US in the next few years. I’ll ignore the horrible infographic he used at the start of the post for now since I’m currently more interested in his attitude toward such an armed rebellion against the government.

Chris suggests that these people (supposedly 29 percent of Americans) would be too busy getting ready to avoid or run from such a rebellion if they really believed it was coming soon. And I see his point. There are, after all, currently more than a million refugees fleeing Syria’s rebellion.

I’m certainly not in that 29 percent who thinks we will need (or be in) an armed rebellion any time soon (or, indeed, in my lifetime), but I would be one who would take up arms if needed rather than try to hide from the rebellion. Maybe that’s just my age talking. Rebellions tend to involve the young and the old. Those in the middle often have too much to lose.

Hmm, I guess that makes me quite selfish. I’d be pushing the rebellion along, dragging the young with me, who don’t realize the value of their own lives, while putting everyone else who doesn’t want to be involved in mortal danger. All for my high-minded ideals.

And if we win, the surviving young would build statues to assholes like me.

Yeah, that sounds nice. Just be sure to get my beard right.

Seriously, though, that’s my point. I’ve always supported the Second Amendment on the principle that, someday, citizens may need it to defend themselves from the government. I don’t own a gun, nor do I want to own a gun. In case you didn’t know, those things are dangerous!

Still, if the situation arose where I thought we needed to rebel against our government, that danger is a useful trait.

Yet in every rebellion I’ve ever studied, the vast majority of the population just wants to get away, or simply survive. It’s a small minority of the people actually fighting on either side of such a conflict. Most are just like Chris Hallquist, simply looking for a way to lay low until the conflict blows over one way or another.

Studying the American Revolution has made me realize how few people carried the population along towards war and how they used questionable morality and ethics to do so. Nelson Mandela, on the other hand, turned away from violent rebellion and successfully overthrew a well established and armed government using peaceful methods.

Is defending the Second Amendment just the selfish act of a minority of old assholes like me with grand notions of a just armed rebellion? Have I now lost so much of my libertarian ideals that I can’t even muster the strength to defend the Second Amendment anymore?

Come on. The readers on this site should be able to reason some sense back into me. Give it a shot. Or maybe I just need to dig out some of the Heinlein books I read too often as a kid. I just have to avoid picking up that copy of Forever War from the same box.

It’s been a rough week for liberty.

To begin with, we had two terrorist style attacks, the moderately successful Boston Marathon bombing, and the failed ricin poisoning. I doubt either attack was because “they hate our freedom” (few attacks are) but the attacks themselves are attacks on our freedom. As is often the case, just as the human body’s immune system sometimes overreacts to a contagion and does more damage than the disease, the overreaction of the government to terrorism often does a great deal of harm.

In this case, the overreaction was triggered after one of the bombing suspects was killed in a shootout, but the other was on the run, a state of affairs which prompted the easily alarmed Boston Police to shut down the whole city while they tried to catch him. I don’t know what law gives them the right to order citizens off the streets of the whole city — perhaps they used an absurdly broad interpretation of their power to order people away from danger at the scene of a hostage taking or bank robbery — but I’ m guessing they seriously exceeded their constitutional powers.

It’s also kind of stupid to detain millions of people in their homes for no good reason. These people faced real costs, not just in wages losses but also in time, convenience, and freedom, all to avoid a risk that was actually very small. Police should have warned them, and then let them make their own choices.

Then there’s the fact that police allowed Dunkin’ Donuts to stay open so police officers could get food while on duty. As Clark at Popehat brilliantly points out this demonstrates that the Boston Police Department is run by insincere hypocrites:

The government and police were willing to shut down parts of the economy like the universities, software, biotech, and manufacturing…but when asked to do an actual risk to reward calculation where a small part of the costs landed on their own shoulders, they had no problem weighing one versus the other and then telling the donut servers “yeah, come to work – no one’s going to get shot.”

Like minor bureaucratic authoritarians everywhere, they completely dismiss the concerns of anyone who isn’t them.

And then there’s Senator Lindsey Graham, who released an asinine statement from himself and Senator John McCain:

It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city. The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorist trying to injure, maim, and kill innocent Americans.

Actually, Senator, they didn’t just try to injure, maim, and kill innocent American. They succeeded. But go on, I’m sure you’re making a point…

Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks.

What a tool. The suspect wasn’t part of some foreign invasion force. He’s a criminal who killed some people. We put criminals in jail all the time. There’s no need for this Jack-Bauer-national-security bullshit.

We will stand behind the Administration if they decide to hold this suspect as an enemy combatant.

I won’t.

(On the other hand, the whole issue of him being questioned without Miranda warnings is something of a distraction for reasons explained here.)

Meanwhile, as everyone was watching other news, the House passed CISPA.

For the second year in a row,  the House voted to approve CISPA, a bill that would allow companies to bypass all existing privacy law to spy on communications and pass sensitive user data to the government.

“This bill undermines the privacy of millions of Internet users,” said Rainey Reitman, EFF Activism Director.  “Hundreds of thousands of Internet users opposed this bill, joining the White House and Internet security experts in voicing concerns about the civil liberties ramifications of CISPA.  We’re committed to taking this fight to the Senate and fighting to ensure no law which would be so detrimental to online privacy is passed on our watch.”

Finally, I’ll leave you with a few depressing comments from Rick Horowitz.

In response to my noting that the Florida Supreme Court has approved the state’s policy of convicting people of possessing drugs without proving they did so knowingly (a problem not unique to Florida), someone named Paul Murray comments,

Surely all that’s needed is to get a pickpocket to plant some grass clippings on these judges.

Yeah, I’m convinced that one of the reasons judges keep issuing rulings like this (and that lawmakers keep passing laws like this) is that they never get caught up in the justice system themselves. Sure, they offer all kinds of legal arguments, but they also talk a lot about the need for “balance.” Maybe if they got rousted by the cops a little more often, their sense of balance would give more weight to freedom.

Which reminded me of an idea I had earlier.

I’ve always been wary of Godwin’s Law — the internet maxim which says that if you are in an argument and you compare someone or something to Hitler or the Nazis, you automatically lose the argument. (Actually, Mike Godwin’s original comment was more nuanced than Godwin’s Law has become today. Wikipedia has a nice summary.)

Granted, there’s way too much of that going around. Not everyone we dislike is a Nazi, and no matter what a lot of silly protesters said, George W. Bush didn’t turn into Hitler and Barack Obama won’t either. We invoke Godwin’s Law as a reminder that such comparisons are often ridiculous, and also as a reminder that an analogy can become a replacement for careful thought.

On the other hand, Godwin’s Law can also become a replacement for careful thought, if we allow it to shutdown the debate.

Part of the reason we have Godwin’s Law is also part of the problem with it: When we think about Hitler and the Nazis, we naturally think of their greatest crimes, and compared to the Holocaust, all our current problems seem small, which is why a comparison is so often foolish. Nothing happening in the United States today comes close the ultimate horrors of Nazi Germany.

However, it’s important to remember that Adolf Hitler didn’t murder 12 million people on his first day, and those ultimate horrors were preceded by many lesser horrors. Hitler was active in German politics for over a decade before becoming Chancellor, and it would be another nine years before the Wannsee conference and the Final Solution. So while it’s correct to say that nobody in America today is as bad as Hitler, it’s also correct to point out that for the first fifty years of his life, neither was Hitler.

Yet it’s not as if Hitler was a nice guy for most of his time in office. It’s not as if Germany was a great place for Jews (or Gypsies or homosexuals or any of the other victims) right up until the moment the death camps began operating. There were clues to what was coming, and those clues are worth thinking about today. It’s not enough to remember history; we also have to recognize the evils of history when we see them again, if we don’t want to be doomed to repeat them.

As Kevin Carson says in his own denounciation of Godwin’s Law:

Godwin’s Law, by treating Nazi Germany as some sort of unique, metaphysical evil in human history, essentially nullifies its practical lessons for people in other times and places. Although Nazi precedents are now used as symbols of ultimate evil — just look at Darth Vader — they didn’t seem anywhere so dramatic to the German people at the time they were happening.

Nazi repression came about incrementally, in the background, as people lived their ordinary daily lives. Each new upward ratcheting of the security state was justified as something not all that novel or unprecedented, just a common sense measure undertaken from practical concerns for “security.”

After all, the bulk of Hitler’s emergency powers were granted by the Reichstag after a terrorist attack (blamed at the time on communists), a fire which destroyed the seat of Germany’s parliament. Any parallels to 9/11 and USA PATRIOT are, of course, purely accidental. Each new security clampdown, after an initial flurry of discussion, was quickly accepted as normal because it didn’t affect the daily lives of most ordinary people. And of course, those ordinary people had nothing to fear, because they’d done nothing wrong!

The Nazis weren’t the last totalitarian bastards the world will ever see, and when the next Adolf Hitler begins his rise to power, it will be a lot harder to stop him if we’re not allowed to point out that he’s acting just like the last Adolf Hitler.

Jennifer Abel gives an example of how this works:

I’ve been banging the anti-TSA pro-civil liberties drum on this blog since 2006, the same year I started it. And America’s gotten worse, incrementally, as people lead their ordinary lives. It led directly to the passage and acceptance of the NDAA, with its unconstitutional insistence that the government can arrest any citizen at any time with no evidence, no trial, no legal rights at all, provided the government first says “Trust me, he’s totally a terrorist.” It’s led to what Carson calls a “de facto internal passport” required for travel within the borders of our own country. And when those who support these laws watch documentaries on the rise of the Third Reich, they shake their heads in patriotic superiority and swear “It can’t happen here.”

But of course it could happen here. America is still basically a free country, but there’s no natural law that says it has to stay that way. There are certainly things going on in this country that look a lot like the early days of the Nazi rise to power. The TSA’s metastasis into a system of internal checkpoints (the hallmark of totalitarians everywhere) is one good example. Another example, is the War on Drugs, which strikes me as a slow-motion Kristallnacht, with drug users and the inner-city poor in place of the Jews. 

I can’t point to any major American politician and say he’s the next Hitler, but I can think of a at least one minor figure who certainly fits the uniform: Maricopa County Sheriff Joe Arpaio. He fought the DEA’s war on drugs for 25 years, he brags about the cruelty of his prisons (in which inmates regularly die), he uses the investigative powers of his office to intimidate people who criticize him — including journalists and other members the justice system — and he has even tried to imprison judges who ruled against him or his officers. And to top it off, much of his political power comes from exploiting racial and ethnic hatred against illegal immigrants.

So in the spirit of civil disobedience against Godwin’s Law, I’ll say it out loud: Sheriff Joe Arpaio is like Hitler. Not like the Hitler who killed millions in the death camps, of course, but like Hitler from twenty years before, filled with hate and lusting for power. But not as successful. And unlike the real Hitler, we don’t need a time machine to stop him. We can do it by voting him out of office.

That said, identifying “the next Hitler” isn’t really the important point. Hitler wasn’t evil because he was Hitler. Hitler was evil because he did evil things. Similarly, our goal need not be to stop the next Hitler. Our goal should be to recognize when people in our government are doing evil things, and spread the word so they can be stopped. If that means saying that they’re behaving like Nazis, so be it.

the Berlin wall fell:

At the end of a plodding news conference, Politburo spokesman Guenter Schabowski offhandedly said East Germany was lifting restrictions on travel across its border with West Germany.

Pressed on when the regulation would take effect, he looked down at his notes and stammered: “As far as I know, this enters into force … this is immediately, without delay.”

Schabowski has said he didn’t know that the change wasn’t supposed to be announced until the following morning.

East Berliners streamed toward border crossings. Facing huge crowds and lacking instructions from above, border guards opened the gates — and the wall was on its way into history.

I guess they saw that the fall of the wall was inevitable, so everybody just decided to roll with it.

When it comes to judicial oversight of law enforcement intrusion into our privacy, I’m pretty suspicious of claims of exigent circumstances.

For example, I don’t believe the claim that terrorism investigators need to conduct warrantless surveillance because there’s not enough time to get a warrant. Some places have judges stationed at sobriety checkpoints to speed the warrant process. Surely the feds can be as resourceful in terrorism investigations.

So, when I started to read Ken Lammers’s explanation of the Carroll Doctrine, explaining why cops need a warrant to search vehicles but not homes, I approached it with suspicion. The basic rule Ken quotes is this:

“it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which a warrant must be sought.”

Ken anticipates my first reaction:

I can already hear the howls of protest. “In the modern world we have radios and cell phones. Carroll is outdated law!” Well, maybe so in your locality, but let’s consider those of us in far Southwest Virginia. My county borders Kentucky. There are mountains everywhere, cell towers are extremely spotty, and there are plenty of places back in the way back, with three or four mountains between the deputy and civilization, where anything short of satellite communication just ain’t going to work.

Ken then gives an extended example:

Consider a case wherein the local sheriff’s department has all sorts of knowledge of John Jones trading oxycodone, methadone, suboxone and lortabs back and forth across the Kentucky-Virginia border in his SUV. Jones crosses the border at random times and places. At 3 a.m., Deputy Smith is out in the way-back returning from a call from a house just on the other side of a national park. He sees Jones driving an SUV down a road which comes directly through the park from Kentucky (with no civilization anywhere near either side of the border). Pulling over the vehicle, the deputy sees nothing in plain sight and Jones is savvy enough that he’s never going to agree to a consent search. There’s no cell service anywhere near and the mountain next to the road isn’t letting any radio waves get through.

Wow, Ken’s good. That hypothetical has it all.

Still, let me try to poke a few holes in it:

(1) Ken seems to be arguing that Jones’s Fourth Amendment protections are void due to the technical shortcomings of the Sheriff’s Department. In other words, it’s cheaper this way. That’s not exactly a compelling argument for stepping on someone’s rights.

(2) I was in the Kentucky hills near Ken’s location just last week, and I got 3G or at least Edge cellular service almost everywhere. That doesn’t make Ken wrong, but I’m wondering how often this really happens.

(3) More to the point, as Ken says later:

In the modern era, the use of Carroll assumes that smugglers are smart enough to try to ply their trade in areas where it will be difficult for LEO’s to easily get search warrants.

I’m deep in my ignorance of the law here, but it seems to me that the exception should only apply when it actually is difficult to get a warrant, not just because it might possibly be difficult in general. It’s possible that what I just said is actually what Ken meant, and I just didn’t get it.

(4) Ken sums up the hypothetical deputy’s choices this way:

If the deputy releases Jones, so he can go get a warrant, Jones will be back across the border in 5 minutes. If the deputy secures Jones in the back of his car while he drives 10 miles down the road where he can get radio contact he has extended a seizure of a person without an arrest. The least constitutionally intrusive practical act is a search of the vehicle on the scene.

This argument has a lot of merit, but let’s be straightforward about one thing: The least constitutionally intrusive act is to let Jones go. Yes, it means the “bad guy” will get away. But if our rights only apply when they don’t interfere with the activities of government agents, they’re not really rights at all.

In some ways, this reminds me of the argument that police have to do dynamic entries into people’s houses during drug raids because otherwise the occupants can destroy the evidence. The invention of flush toilets has created a conflict between our rights and the war on drugs, and lot of law enforcement folks think the solution is to give up on our rights.

(5) In an addendum, Ken adds this:

the federal supreme court has entirely excised any exigent circumstances requirement so that all an officer needs to do the search is mobility of the car and probable cause that contraband is in it

In other words, Deputy Smith could stop Jones’s SUV right in front of the county courthouse at 3 in the afternoon on a work day, and he could still search it without a warrant because the car is mobile. This sounds like a bad case of remembering the rubric while forgetting the rationale.

So on July 4, 1776, the United States of America declared itself independent from the Kingdom of Great Britain. And then it was July 5, and there was work to be done. Britain was a superpower, but through war and diplomacy our small nation wrested sovereignty from the king’s hands, and on September 3, 1783, the king’s representatives acknowledged it in the Treaty of Paris. Communication being what it was in those days, the copies of the treaty weren’t ratified and copies given to all parties until May of next year.

Our hard-won independence was itself only a means to an end, however. Our true goal was freedom, for which independence was necessary—and had to be defended—but not sufficient. Foreign despots were not the only threat to our freedom. As our country grew large and strong, our independence was assured by our own military power, but we began to have more to fear from within.

Abraham Lincoln was by no means a libertarian, but the start of his address to the Young Men’s Lyceum speaks well to this point. (I’ve added paragraph breaks for readability, and, like most speeches with ornate language, it’s easier to get the meaning if you read it out loud.)

We find ourselves in the peaceful possession, of the fairest portion of the earth, as regards extent of territory, fertility of soil, and salubrity of climate. We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us. We, when mounting the stage of existence, found ourselves the legal inheritors of these fundamental blessings.

We toiled not in the acquirement or establishment of them–they are a legacy bequeathed us, by a once hardy, brave, and patriotic, but now lamented and departed race of ancestors. Their’s was the task (and nobly they performed it) to possess themselves, and through themselves, us, of this goodly land; and to uprear upon its hills and its valleys, a political edifice of liberty and equal rights; ’tis ours only, to transmit these, the former, unprofaned by the foot of an invader; the latter, undecayed by the lapse of time and untorn by usurpation, to the latest generation that fate shall permit the world to know. This task of gratitude to our fathers, justice to ourselves, duty to posterity, and love for our species in general, all imperatively require us faithfully to perform.

How then shall we perform it?–At what point shall we expect the approach of danger? By what means shall we fortify against it?– Shall we expect some transatlantic military giant, to step the Ocean, and crush us at a blow?

Never!–All the armies of Europe, Asia and Africa combined, with all the treasure of the earth (our own excepted) in their military chest; with a Buonaparte for a commander, could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.

At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.

I’m guessing that Lincoln was exaggerating our military might when he said this in 1838, but that’s pretty much the state of things now. There are nations that can launch large numbers of nuclear weapons in ballistic missiles—truly a way to “step the Ocean, and crush us at a blow”—but they would not survive such a war either. The United States, at least on this continent, is invulnerable to invasion. If the whole world came at us at once, we could sink their fleets, sweep their aircraft from the sky, and then kill them by the billions where they live. We face no external threats to our national freedom.

I think a failure to understand this is why so many people have argued that we need to sacrifice our freedoms to protect ourselves from Islamist threats. They failed to realize that although many jihadis want to destroy the United States, not even all of them together could do actually do so. The attacks on 9/11 were a trick, a stunt, a sucker-punch to bloody our nose. However, to paraphrase Leonard Pitts, while they can make us bleed, they can’t make us fall. Only we can do that.

Lincoln then went on to stress the importance of maintaining our political institutions and the rule of law, especially when the alternative was mob violence. (He was responding to a recent series of lynchings.)

Then he discusses another threat:

It is to deny, what the history of the world tells us is true, to suppose that men of ambition and talents will not continue to spring up amongst us. And, when they do, they will as naturally seek the gratification of their ruling passion, as others have so done before them. The question then, is, can that gratification be found in supporting and maintaining an edifice that has been erected by others?

Most certainly it cannot. Many great and good men sufficiently qualified for any task they should undertake, may ever be found, whose ambition would inspire to nothing beyond a seat in Congress, a gubernatorial or a presidential chair; but such belong not to the family of the lion, or the tribe of the eagle.

What! think you these places would satisfy an Alexander, a Caesar, or a Napoleon?

Never! Towering genius distains a beaten path. It seeks regions hitherto unexplored.–It sees no distinction in adding story to story, upon the monuments of fame, erected to the memory of others. It denies that it is glory enough to serve under any chief. It scorns to tread in the footsteps of any predecessor, however illustrious. It thirsts and burns for distinction; and, if possible, it will have it, whether at the expense of emancipating slaves, or enslaving freemen.

Is it unreasonable then to expect, that some man possessed of the loftiest genius, coupled with ambition sufficient to push it to its utmost stretch, will at some time, spring up among us? And when such a one does, it will require the people to be united with each other, attached to the government and laws, and generally intelligent, to successfully frustrate his designs.

Distinction will be his paramount object, and although he would as willingly, perhaps more so, acquire it by doing good as harm; yet, that opportunity being past, and nothing left to be done in the way of building up, he would set boldly to the task of pulling down.

If the first part of Lincoln’s speech reminded me of what I feared from Bush and the Republicans, this part of the speech addresses what I fear from Obama and the Democrats with all their talk of change.

I think Lincoln erred in assuming this threat could only arise from “an Alexander, a Caesar, or a Napoleon.” The modern push for needless and destructive change seems to come from every president, every congressman, and every governor, legislator, mayor, or town councilman. With our recent economic difficulties—the worst in many decades but not too bad by global standards—many politicians have been claiming that our entire way of life has failed and must be torn down and rebuilt according to their plan.

Independence day was an important start to our freedom, but the next 85,101 days were important too. As are all the days ahead.

Jamie Spencer has a question about the size of government:

But the big “L” libertarians often use a certain phrase that I just don’t understand. For example, my friend and Dallas criminal defense lawyer Robert Guest uses it in a post about tea parties:

As a libertarian I’m for anything that reduces the size and scope of government.

You’re for anything that reduces the size and scope of government? How about…

  • Closing down all the public schools?
  • Doing away with the fire stations?
  • Reneging on our promises and cutting off Medicare for the elderly?
  • Shutting down all the prisons (not just the 50% filled with drug war victims)?

… anything that reduces government? Isn’t that going too far?

Literally speaking, of course it’s going too far, which is why most of us small-government folks don’t mean it literally.

As is often the case these days, my own answer to this kind of question is based in economics. The free market can solve many problems, but sometimes it fails, and that’s where government can and should step in.

Many common market failures involve externalities, where either the social cost or the social benefit of some activity affects people other than the person who controls the activity. This screws up the incentives, which leads to inefficient results.

Consider, for example, what happens when you throw a piece of litter from your car. The benefit to you is that your car is cleaner now, without having to wait until you stop someplace that has garbage cans. The cost is that the road you drive on is slightly less attractive. Multiply that slight unnattractiveness by the thousands of people who will pass the place you littered, and the resulting aggregate cost is probably much higher than the benefit of your cleaner car.

However, you don’t pay the aggregate cost. You just pay the cost to you. Chances are, having one less piece of litter in your car is better for you than having one less piece of litter on the highway. So the selfishly rational act is to throw your trash out the window. In fact, that’s the selfishly rational thing for everyone to do. The result is that we all end up driving clean cars down filthy roads littered with debris.

Remember, however, that we said the cost of dirty roads is greater than the benefit of not having to wait until we stop to clean out our cars. So we would all be better off if people didn’t throw litter out the window. Personally, we have an incentive to throw trash out the window, but collectively, we’re better off not doing it. Our incentives are not aligned with our interests.

This is where government can help, by outlawing littering. Essentially, the fine for littering raises the personal cost of littering and re-aligns our incentives with our interests.

Similar logic applies to other activities such as crime and air pollution, and government can increase the personal costs of these activities to bring them in line with the average social costs.

The opposite situation is also a problem. Suppose you and nine of your neighbors are worried about crime, so you consider hiring a night watchman to patrol the neighborhood. Let’s say a watchman would be worth $6000 per year for each of you, so that the combined value of the watchman is $60,000. If the guard service only charges $45,000 a year, you’ll each pay $4500 per year for a service that’s worth $6000, a net surplus of $1500 each, and a total surplus to the neighborhood of $15,000.

The catch is that you don’t have to pay. If your nine neighbors each kick in $5000, that will cover the cost of the guard, and they will still receive $6000 in protection, so it’s still a good deal for them. But it’s probably an even better deal for you: The guard they hire will scare theives out of the neighborhood, which will protect you too, even though you aren’t paying for it. You might not get as much protection—maybe only $3000—but since you pay nothing, it’s all surplus, and a $3000 surplus is better than the $1500 surplus you’d get if you paid.

Disaster strikes, again, when more neighbors begin to think this way. If everyone tries to seize the advantages of not paying, there won’t be enough money to hire the guard, and without the guard, the entire $15,000 surplus will vanish.

This is, again, where government can step in, by forcing everyone to pay the cost of the guard: This is also known as using taxes to pay for a police force.

There are lots of other examples of this effect, the most prominent of which is national security—it’s hard to protect just the people willing to pay when the enemy troops arive at our shores, so it makes sense to tax everyone to protect everyone.

Flu shots are another example of this effect. If you’re innoculated against the current strains of influenza, that protects you and everyone who would have caught it from you. If you’re young and healthy, the full cost of the vaccine might be more than you’re willing to pay yourself—you’ll get over a little flu. But more vulnerable people who could catch it from you might benefit a lot if you get vaccinated, and the combined benefit might be more than the cost of the shot. You don’t get everyone’s benefits, however, just your own, so you might not want to buy the vaccine, even though the social benefits would be worth it. Government can change your incentives by subsidizing the vaccine to make it worth your while.

There are other cases like this—although not as many as some would have you believe—but this is the general idea. Government should be large enough to improve the general welfare when the people can’t do it themselves through the free market. But no larger.

Hi there. My name’s Joel, and I’ll be your occasional Second Amendment issues blogger here. This particular essay is posted both at True North and at Windypundit, the latter of which is set up to handle comments.

Why a Minnesota radical moderate is posting a blog entry about conservatives and liberals on a Chicago area blog is one of those little mysteries of life, kinda like why flammable and inflammable mean the same thing.

But I digress.

I’m always a bit cautious about mentioning who has taken their carry class with me.  It’s not a legal thing — actual permit data is protected by the Data Practices Act, and isn’t for public consumption, anymore than your 1040 is, but that’s a different matter — but more of a propriety thing:  getting a carry permit is a personal decision, and whether or not that’s to be kept private is, well, not my call*.

I did a private class, not too long ago, for, well, somebody who has a: some statewide prominence in Minnesota, and b: a stalker.  He or she asked me not to mention his or her name publicly, so that made it easy.  (I think it was probably the right call in that case, but, heck, I’m utterly sure that it’s not my call, so . . . )

So I’ve been thinking a bit about how to discuss this last weekend’s class.  Which was, well, a blast. 

A bunch of the MOB folks asked if I was willing to put on a private class for them a while back, and we made it happen this last weekend, and it was even more fun than usual, for a lot of reasons. 

Over at Eckernet, Kevin, who sat in on the class — and helped out; it was great to have him around — had some comments on it.  Other than the nice things he said about me — like I’m going to disagree? — I think he had a good spin on one part of the class, but I was thinking about another matter.

Normally, when I do a carry class, I go to some trouble to try to keep my own politics out of it, most of the time.  Seems only fair; after all, people aren’t signing up to spend a day being lectured to me on who they should vote for or what political positions to take. And, besides, politically speaking, I’m a radical moderate; nobody agrees with me.  

There’s a couple things I feel very strongly about where I take off those restraints, though; I’m strongly of the opinion that the Second Amendment to the US Constitution recognizes a fundamental human right — self-defense — and that all rights come with responsibilities.

But this time, I took all of the self-restraints off.  It wasn’t just that, by and large, I find myself agreeing with conservatives — and, like most of the MOB crowd, these folks are definitely conservatives — on many matters, but more it’s that, by and large, conservatives tend to be more tolerant of differing opinions than liberals are.  (Yes, there are intolerant conservatives and tolerant liberals — and I know some of both — but I’m talking about definite trends.) 

And there have been some definite political implications around the gun stuff, of late.  Like, say, this award that I’m not entirely sure Obama is thrilled with having received.

All of which, by kind of a long road, leads me to a point I do keep making:  self-defense — and that includes carry permits — aren’t a conservative issue, or a liberal issue, but a human rights issue. 

That doesn’t mean that this stuff doesn’t have political implications; it does. If you can persuade your liberal (and moderate) as well as your conservative friends to consider getting a carry permit and carrying a handgun as part of their personal safety strategy, you won’t might be doing something with political implications.

Right now, we’ve got just over 60,000 Minnesotans with carry permits.  While the heavy lifting in getting the law passed that made that possible was done almost entirely by conservative Republicans, it would not passed without votes from a (small, granted) number of liberal DFLers. 

And it’s not just conservatives who have gotten carry permits, either.  My admittedly liberal, tree-hugging wife was the first woman in line in Hennepin County to apply for her carry permit back in 2003, just to pick one example.

So, here’s the pitch:  if you’re a conservative, try to get your liberal friends — and I don’t know a conservative who doesn’t have liberal friends — to get their permits.  Sure, I’d love to have them in one of my classes, but that’s not the point — there’s more than a hundred certified organizations, and hundreds upon hundreds of instructors, all across Minnesota, who can put them through a class.

How many people with carry permits do you know who would be real eager to vote for a politician who wants to take their rights away?

Yeah.  I didn’t think so, either.

Yup.  From one perspective, a right-wing gun nut can be just a liberal who got a carry permit, just like a conservative is a liberal who got mugged, and a Sixth Amendment radical is just a conservative who got thumped by a cop.

But I digress.


* Except, of course, for me.  Then again, ever since I testified in front of the MN House and Senate Committees, some years ago, on the necessity of reforming our (now-formerly) antiquated, bureaucrats-know-best carry laws, I’ve been more than a little out of the gun closet.

I just caught a video of a crazy Fox News guy ranting about the government. The sad thing is that he’s Judge Andrew Napolitano, and we need more crazy judges like him. He was speaking at a Reason conference and his speech is a good review of the decline and fall of the Fourth Amendment. It’s worth listening to as a lesson in how our rights are being chipped away.

I had some technical difficulties, and I’m way behind in blogging this, but a few days ago Gideon addressed that most tiresome of responses to a refusal to aquiesce to law enforcement intrusion: “Why? I’ve got nothing to hide.”

I see similar arguments from those not of the criminal defense bent in regards to some basic Constiutional protections: “Well, if I’ve done nothing wrong, then why should it matter that the police didn’t have a warrant.” It underlines the notion that the Fourth Amendment is a “technicality”.

There are several answers to that, depending on the context. If it’s an actual confrontation with law enforcement, I think my best response would be to politely reiterate that I’m asserting my rights. One of the defining attributes of a right is that you don’t have to justify it to anyone.

Gideon is talking about handling that assertion in the context of an argument, and he goes with a standard response:

Just because I have nothing to hide, doesn’t mean I want everyone to know everything about me.

Arguably, Gideon is really saying that he does have something to hide, but that his reasons for hiding it are not sinister. He just doesn’t want to lose anything to the privacy thieves.

I like to draw this out a little more clearly with an example, so for this post only, if you leave a comment in which you assert that people who have nothing to hide shouldn’t fear a small loss of privacy, please include the following items in your comment:

  • Your full name.
  • Your email address.
  • Your data of birth.
  • Your home address.
  • The name of your employer.
  • Your home, work, and mobile phone numbers.
  • The full names and birthdates of your spouse and all of your children.

Also, email me a headshot of you and each member of your family taken within the last three years and a scanned image of your most recent bank statement.

I think I first got the idea to respond that way from an article by the great Mike Royko, and it was originally a sort of conversational gambit: “That’s in interesting point about having nothing to hide. What did you say your names was? How do you spell that? Do you have a middle name? Where do you live? Elgin? Really? What street? What’s your address there? You won’t tell me? Why? Have you got something to hide?”

The third response to “I’ve got nothing to hide” is Oh yes you do. You are probably not as innocent as you think you are. Our criminal laws are a tangled web of byzantine rules that can land you in jail. Granted, in many cases you won’t actually serve time, but you will still get arrested and suffer through all the related ugliness.

If you’ve been pulled over and the cop wants to poke around in your car, are you sure you don’t have anything that could get you in trouble? Drugs? Booze? How about a BB gun? In some states, a BB gun in the trunk will get you arrested. How about a can of spray paint? It’s illegal if you’re under 18 in a lot of cities with graffiti problems.

(I’ve never heard any stories, but I’ve got to wonder how many people are arrested for possession of illegal martial arts weapons they didn’t know they had. The definitions are maddeningly vague. For example, we’ve all seen enough martial arts movies to recognize Nunchucks, but in St. Louis the law defines as “two or more rigid parts connected in such a manner as to allow them to swing freely.” How about a Yawara or Tonfa, which are sticks with knobs, or a Kuboton, which is just a short stick? You sure you don’t have something like that in your car?)

My newest response comes courtesy Scott Greenfield, who points out that once you give permission for a search, you effectively lose all control of the scope of the search. Even worse, there’s this recent Eighth Circuit decision:

In United States v. Santana-Aguirre, No. 07-3706 (8th Cir. August 12, 2008) (opinion), a 2-1 panel held that when you consent to a search, you also consent to the destruction of your property.

If you give the cop permission to look in the trunk of your car, you could end up with him and three other cops tearing your car apart for 45 minutes. It’s unlikely, but it’s reason enough to refuse a search.

That’s four reasons to refuse even though you “have nothing to hide”:

  1. Because you can.
  2. To protect your privacy.
  3. You don’t know what can get you in trouble.
  4. The search itself is bad enough.

Pick the one you like best.