Ian Argent – Page 6 – Shall Not Be Questioned

This is well past the last straw for me

It’s been a while since I’ve considered Governor Christie as a potential for my vote in either the primaries or the general election next year, but this would have pushed me off the fence if I was still on it. Vaccine choice is where he decides that the government doesn’t know best?

If you don’t want to vaccinate your kids, that’s fine, but then you can keep them out of contact with other people’s kids; who might not have a choice. As an image macro I saw going around the book of Face the other day put it, “I can’t bring peanuts into school, but you can bring measles?”

A different kind of wearable

Inspired by (Disney’s) security theater, Leatherman will be bringing a “wearable multitool” out this year. I feel for the guy who designed this; one of the minor annoyances of being a low-level road warrior (3-5 flights a year) is not being able to bring my own Skeletool with me. I’ve seriously considered buying a pack of the cheap $2/unit in bulk at the local home despot to be able to drop one in my checked luggage and not care too much if it doesn’t make it past baggage handling. This won’t fix that annoyance completely, since it won’t have a blade, but the “cutting hook” would deal with most of what I actually use a blade for (opening packages without having to use my teeth). And, of course, the most important tool, the bottle opener.

OTOH, the fine folks at TSA will probably make something up on the spot to “ban” this…

Teach your children well

From the Washington Post (of all places), comes this piece on the normalization of the surveillance state via a childrens’ book.

(My wife and I are both in agreement on this;Â we won’t have the little informer in our house).

Incidentally, I find it interesting that you apparently have to break an ingrained more against “tattling” or “telling.” There is something very low-level in our makeup (either social, culturalm or genetic) that works against providing negative information to an authority (be it parental or outside the family unit).

Try, try, again

So, we have had two cases recently of police officers who committed homicide in the line of duty and were later not indicted by grand jury. And we have heard a clamor that they should have been tried anyway, that the grand jury process in both cases was unusually deferential to the officers (in contrast to the process in which a regular citizen’s actions are judged by a grand jury), and that “it should be settled in court!”

My question for those people clamoring for a trial is: What makes you think the result will be any different, save that a vaster amount of money will be spent? Â Regardless of the unusual deference given to the officers in the grand jury process in these cases, an actual trial in front of an actual jury will give them even more deference. It only takes a majority of a grand jury to indict, but it takes a unanimous petit jury to convict. And the usual financial and temporal difficulties experienced by Â defendants not employed as police officers will not apply – their defenses will be paid for not out of their own pocket, but by the same taxpayer who is paying to prosecute them. The prosecutor will be the same one who presented the case in front of the grand jury and supposedly softballed it.

In short, what do they expect from a trial that they didn’t get from the grand jury at a much lower expense and effort?

(The cynic in me says “another 6 months of media frenzy.”)

‘He et what was set before him’

The title is basically my all-time favorite Heinlein line. It was chosen to describe a secondary character, in explicit contrast to ‘He played the hands he was dealt.’ (Because the character in question would absolutely stack the deck and commit other shenanigans along those lines). It’s a useful thing to remember the difference between the two statements when it comes to politics. There’s plenty of ways in politics to “stack the deck,” but in the end, you have to eat what is set before you.

Thus the money paragraph of Megan McArdle’s post on the President’s no-good, very-bad, horribly-wrong speech about immigration

At this very moment, someone is preparing to explain to me that most of these things areÂ only true because the left-wing MSM is so darn unfair to the Republican side. Assume, arguendo, that you are right. Now let me ask you a question: So what?

If the left-wing MSM is indeed biased against you, then yourÂ strategy needs to take that into account. Do you have a plan for compelling the left-wing MSM to treat you fairly? If not, then you should not settle upon a course of action that would work, if only this fact were not true. You don’t launch your cavalry regiment against a Panzer battalion on the grounds that you could beat the Germans if only they didn’t have all those darned tanks.

This applies to more than the immigration/impeachment debate kicked off yesterday. It’s all of politics,Â including firearms politics. The MSM is against us. The judiciary is no better than neutral, and more usually hostile. Those are facts on the ground, that have to be dealt with. We do not live in a perfect world, we live in one where the very notion of armed self-defense by the public is disdained by the policy makers, and the average voter doesn’t care because it makes no difference to them. That’s what has been set before us. We can season the dish, but we are going to eat that food, because that’s all there is.

Elections and Consequences

With so many of the administrationâ€™s policies facing legal challenges, the increased likelihood that those cases could end up before more ideologically sympathetic judges is a reassuring development to the White House. Nowhere has this dynamic been more evident than at the District of Columbia court, which is considered the second most important appeals court in the nation, after the Supreme Court.

Itâ€™s not just SCOTUS, heâ€™s been able to rejigger the entire system.

The World Is Not As It Should Be

Iâ€™ve followed Megan McArdle since her days as a self-publishing penurious blogger through her gigs at the Atlantic, the Daily Beast, and now Bloomberg News. I donâ€™t always agree with her, but sheâ€™s a thoughtful writer. And her comments are refreshingly multi-partisan (to the point of ideologues from all points of the political compass calling her a hack for their enemies.)

One article that recently caught my eye started from a discussion of the recent revelations that, yes, Virginia, some people will hack other peopleâ€™s cloud storage accounts and distribute them far and wide. She then segues into why we canâ€™t social engineer away crime:

[Y] ou cannot possibly subscribe to the idea that only social sanctions, well-designed law-enforcement penalties and a more equitable welfare policy stand between us and a nearly-crime-free utopia.

The point is that crime still happens even when everyone agrees that it is wrong, and crime still goes unpunished even when we would very much like to punish it. Thatâ€™s because many people are … well, something thatâ€™s not printable on a family blog. Letâ€™s just say that a troublesome minority of people will ignore basic decency and morality and do terrible, wrong things to get what they want.

The conclusion of the piece is one that I think readers here will agree with. â€œIt is not â€œvictim blamingâ€ to urge their targets to protect themselves from that threat.â€ All together, a nice justification of the right to self defense.

The Best Kind of Correct

Ce n’est pas un fusil

It is what you get when you have to rules-lawyer around a 80-year old law intended to prevent ownership of anything that wasnâ€™t a hunting or fowling piece by the poor, then clumsily edited by politicians to exempt handguns when it turned out that an effectively-complete ban on anything that was smaller than a breadbox was politically untenable.

Now, Linoge notes that there are two pieces of arcane interpretation of unclear law that make this a pistol instead of Any Other Weapon or a Short-Barreled Rifle; and that the BATFE could change their minds at any time. I have to wonder, though, if the BATFE is wary of doing so given that the arcanities of the GCA that separate those three categories are actually quite hard to explain to the layman judge; and that they might have some difficulty keeping a prosecution based on where the lines were drawn in their own admin proceedings these daysâ€¦

Historically, the BATFE has preferred to rule by interpretation rather than regulation, probably because thereâ€™s less oversight on that process. But it has bitten them in the nethers a few times, and with the decade-long trend of various pro-firearms-rights organizations willing to actually make federal cases out of infringements, I have to wonder if the BATFE permanent leadership is a little leery of what might happen in a real court instead of their administrative proceedings.

As a side note, I want one; but may not have one as long as I live in NJ. As a pistol, itâ€™s way over the line of being an â€œassault firearmâ€ (A semi-automatic pistol with a detachable magazine that has a magazine outside the handgrip, barrel shroud, weight of 50 oz or more, AND is probably a semi-automatic version of a fully-automatic firearm, well more than the 2 strikes permitted). Which reminds me, does anyone know why the federal ban and its imitators has that odd weight restriction?

Self Defense in NJ

New Jersey publishes the jury instructions online in PDF and DOC format (link is to a PDF table of contents). I once sat as a juror in an aggravated assault and unlawful use of a weapon case (a stabbing in a public place) where the defendants claimed self-defense. At this point, the details are unimportant, except that in the course of the trial I received an education in the standards by which actions in self-defense are to be judged in courtrooms in NJ. This, of course, is of utmost importance to know for anyone who owns a firearm and keeps it in functional condition, even more so if you plan on carrying a firearm in public (not an option in NJ for the regular person, of course.) It is, however, a good idea for anyone to be aware of, both for their own personal legal safety and also to be a well-informed person. Well-informed or not, I am not a lawyer, please consult one before believing anything or everything you read on the internet about the law.

One thing about jury instructions that I believe to be superior to reading caselaw and statute law and attempting to interpret, is that they are written to explain the law as-applied for the benefit of the layman, rather than a lawyer, judge, or legislator. Technical terms are explained in laymanâ€™s term, and while can lead to leaky abstractions, itâ€™s good for an overview.

The section Iâ€™m going to be looking at in this post is found in Chapter 3 â€œGeneral Principles of Justificationâ€ â€“ specifically

JUSTIFICATION – SELF DEFENSE In Self Protection (PDF)

JUSTIFICATION – USE OF FORCE IN PROTECTION OF OTHERS (PDF)

JUSTIFICATION – SELF DEFENSE USE OF FORCE IN DEFENSE OF PERSONAL PROPERTY (PDF)

JUSTIFICATION – USE OF FORCE UPON AN INTRUDER (PDF)

The middleÂ two Iâ€™ll just touch on briefly, as they are rather wordy explanations of some pretty simple concepts.

First, letâ€™s look at the general case, Self Defense in Self Protection, excerpted below

The statute reads:
“The use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”

In other words, self defense is the right of a person to defend against any unlawful force. Self defense is also the right of a person to defend against seriously threatened unlawful force that is actually pending or reasonably anticipated. When a person is in imminent danger of bodily harm, the person has the right to use force or even deadly force when that force is necessary to prevent the use against him/her of unlawful force. The force used by the defendant must not be significantly greater than and must be proportionate to the unlawful force threatened or used against the defendant.

The use of deadly force may be justified only to defend against force or the threat of force of nearly equal severity and is not justifiable unless the defendant reasonably believes that such force is necessary to protect himself/herself against death or serious bodily harm. Deadly force is defined as force that the defendant uses with the purpose of causing or which he/she knows to create a substantial risk of causing death or serious bodily harm. By serious bodily harm we mean an injury that creates a substantial risk of death or which causes serious permanent disfigurement or which causes a protracted loss or impairment of the function of any bodily member or organ.
For example, if one were to purposely fire a firearm in the direction of another person, that would be an example of deadly force. A mere threat with a firearm, however, intended only to make the victim of the threat believe that the defendant will use the firearm if necessary is not an example of deadly force.

A reasonable belief is one which would be held by a person of ordinary prudence and intelligence situated as this defendant was.

Even if you find that the use of deadly force was reasonable, there are limitations on the use of deadly force. If you find that the defendant, with the purpose of causing death or serious bodily harm to another person, provoked or incited the use of force against himself/herself in the same encounter, then the defense is not available to him/her.

If you find that the defendant knew that he/she could avoid the necessity of using deadly force by retreating, provided that the defendant knew he/she could do so with complete safety, then the defense is not available to him/her

So we have a proportionality requirement in NJ â€“ you canâ€™t use deadly force except in reasonable belief that such force is necessary and (for lack of a better word) proper. My problem with this is that the average person does not really believe that an unarmed attack may â€œcreate a substantial risk of causing death or serious bodily harm.â€ See, e.g, the Zimmerman â€œtrial-by-pressâ€ or pretty much any self-defense incident where the attacker was unarmed. I donâ€™t see this changing any time soon, either.

The really scary thing, from the point of view of use of deadly force in self-defense is the second highlighted passage. This one requires that the defender be a mind-reader, and be able to distinguish in the heat of the moment whether someone who offers a threat of violence is sincere about it or not, or is merely trying to scare the defender. I about fell out of the jury box when I heard that part of the instruction; as the judge made it clear that a mere threat was not sufficient. I am given to understand this is outside the mainstream of US law on self-defense, but Iâ€™ve not made any more than a cursory study of non-NJ law. ~~So, in NJ it would appear you have to let them shoot/stab/swing first if you wish to use deadly force in self-defense (in public, anyway, see below).~~ UPDATE: Mike, below, points out that the sentence actually refers to the defendant, meaning that the jury instructions say that you threaten to shoot someone as part of your self-defense, that is not considered use of deadly force. Since you can use force to defend yourself against the threat of force, it would appear that in the face of a threat of deadly force you may actually respond with use of deadly force. In theory, anyway.

Finally, there is a duty to retreat (with the apparently usual â€œin complete safetyâ€ caveat) prior to the use of deadly force (but not, apparently, prior to the use of force).

In all cases,

The State has the burden to prove to you beyond a reasonable doubt that the defense of self defense is untrue.

Which is something, I guess.

Use for force in protection of others is basically the same as using force in defense of yourself:

… the use of force upon or toward that person of another is justifiable to protect a third person when:
(1) The actor would be justified … in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect and
(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
(3) The actor reasonably believes that his intervention is necessary for the protection of such other person.

Interestingly enough, the defendantâ€™s knowledge of the situation, not the actual facts of the situation, apply

In applying this test [of reasonable belief] you are instructed to disregard any finding that the person in whose behalf (defendant) intervened was in fact the aggressor or that no defensive measures on his/her behalf were actually necessary, but you may consider everything defendant knew when he/she acted, including these same factors if you find that he/she knew them.

The rest of the instruction basically summarizes the duties and rights incumbent on the use of force on oneâ€™s own behalf, and would appear to be intended for use with the appropriate jury instruction for those cases.

Use of force in defense of personal property â€“ you basically canâ€™t use deadly force at all, and use of non-deadly force is limited in several ways. Since this is a firearms rights blog, and since actual use of a firearm is deadly force (and brandishing one without intent is unwise), Iâ€™ll give it a pass.

Use of force on an intruder is an exception to the general rule requiring retreat, and there is no direct mention of proportionality; though the instructions do not specifically disclaim proportionality. However the conditions under which a defendant is justified in using force include refusal of an intruder to disarm, surrender, or withdraw.

Under certain conditions, the law allows a person to use force upon another, and the use of such force does not constitute a criminal offense. The law exonerates a defendant who uses force (or deadly force) upon or toward an intruder who is unlawfully in a dwelling when the defendant reasonably believes that the force is immediately necessary for the purpose of protecting himself/herself or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion.

For the force used by the defendant against another to be justified, the following two conditions must exist:
1. The other person (victim) was an intruder who was unlawfully in a dwelling.Â An intruder is one who is unlawfully in the dwelling–that is, he/she was not licensed or privileged to be in the dwelling. The term “dwelling” means any building or structure, though movable or temporary, or a portion thereof, which is used as a person’s home or place of lodging. (A dwelling includes a “porch or other similar appurtenance.”)
2. The defendant reasonably believed that force (deadly force) was immediately necessary for the purpose of protecting himself/herself or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion.
A reasonable belief exists when a defendant, to protect himself/herself or a third person, was in his/her own dwelling at the time of the offense or was privileged to be thereon, and the encounter between the defendant and intruder was sudden and unexpected, compelling the defendant to act instantly, and the defendant reasonably believed that the intruder would inflict personal injury upon the defendant or others in the dwelling, or the defendant demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.

If the defendant did employ protective force, he/she has the right to estimate the necessity of using force without retreating, surrendering position, withdrawing or doing any other act which he/she has no legal duty to do or abstaining from any lawful action.

Now, absence of evidence is not necessarily absence of evidence, but the two highlighted sections suggest that the normal rules of proportionality of force are suspended. This is definitely someplace Iâ€™d like actual legal advice on, though; but Iâ€™m not going to pay Mr. Nappenâ€™s consulting rate to get an answer to, or buy his out-of-print book at over $100 to answer, at least not today. This eventuality was brushed over by the judge in the case I sat on the jury on (he did mention it, though, despite there being no chance of the defendants using this defense), possibly out of a sense of completeness.

Anyway, the state of jury instructions covering the use of force in NJ suggest that itâ€™s not really a good idea if you have any alternatives, but it is an alternative in extremis.

Engagement

I am (perhaps unsurprisingly) a constant customer of Baen Books, both in the era of its founding by Jim Baen and now under the able leadership of Toni Weisskopf. They print books that entertain me, though the Baen logo is neither a necessary nor a sufficient guarantee that I will be entertained. In the past year or so, a cultural conflict in the Science Fiction domain has brewed up, another theater in the overall culture war. Diatribes have been written, ably and poorly, by all combatants as well as their allied hosts. Toni has this particular one, and Sarah Hoyt has reprinted it someplace I can easily link to. Itâ€™s long, and a lot of it is domain-specific, but the conclusion has relevance to the RKBA culture war. Emphasis is mine

But are the popular awards worth fighting for? Iâ€™m not sure our side has ever really tried, though there are indications that previous attempts to rally readers of non-in-group books were thwarted in ways that were against the rules of the game. And yet, to quote Heinlein, â€œCertainly the game is rigged. Donâ€™t let that stop you. If you donâ€™t bet, you canâ€™t win.â€

I think the problem is that folks just really feel they have no possible conversation with the other side any more, that the battle for this part of the culture isnâ€™t worth fighting. And I think again SF is mirroring the greater American culture. Our country is different because it, like science fiction fandom, was built around an ideaâ€”not geographic or linguistic accident, but an ideaâ€”we hold these truths to be self evident. And it is becoming more and more obvious that the two sides of American culture no longer share a frame of reference, no points of contact, no agreement on the meaning of the core ideas.

And yet, I canâ€™t help but think that at some point, you have to fight or you will have lost the war. The fight itself is worth it, if only because honorable competition and conflict leads to creativity, without which we, science fiction, as a unique phenomenon, die.

This is why I blog, I engage in arguments and debates (and a little bit of trolling as well) in comment sections and on Facebook (and on Twitter back when I still had the energy). You have to fight or you will have lost the war. Despite the famous line, they can take our freedoms. But we have to remember what the actual objective is. The objective is not to crush your enemies, see them driven before you, or hear the lamentations of their supporters. That might be a side effect, but the objective is to regain our freedoms and build the institutions that will support and protect them in the coming generations. And to do that we have to convince the undecided. To do that, we have to engage, have discussions with outsiders where it can be seen. And, of course, we have to both be and appear to be correct and reasonable.