Wednesday, December 31, 2003

This thread over at led me to this story. It's about a family that goes by the surname of Pilgrim.

In summation they moved to Alaska for religious & ideological reasons. They simply wanted to live a very simple life away from the influence of modern society. They Found some land in McCarthy, Alaska & thought they'd found their promised land.

Enter the Federal Government.

The land they purchased is about 14 miles inside a National Park. The National Park Service is harassing them because they attempted to use a bulldozer to maintain the road that leads from their property to the outside world.

The Pilgrim family is trying to go through the proper legal channels. But as it stands now, the only access to their property is by snowmobile, horse & airplane. That's 14 miles by snowmobile, horse or airplane.

Sure, riding snowmobiles & horses is fun. But try it for 14 miles hauling supplies with ya. & planes can get expensive, not to mention a bit risky. One plane has crashed already trying to get supplies to the Pilgrim family.

."A key point of argument was the law that the Pilgrims have learned to pray about: RS 2477, an 1866 mining statute getting new attention as a way for states to claim historic rights of way across federal land.
'It took me so long to memorize those numbers, two four seven seven,' Papa Pilgrim said. The next moment he was describing his case with all the savvy of a veteran land-rights lobbyist.
'I have a whole map of all the 2477s in Alaska,' he said. 'We're simply using what's been here 100 years. This road is a perfect example of a 2477 right of way."

Now the state government of Alaska is generally supportive of having road access into & across federal land. But they aren't doing much on behalf of the Pilgrim family because they feel the use of a bulldozer will generate negative PR & thus the Pilgrims aren't the State's ideal test case

"The Murkowski administration is eager to press its RS 2477 claims with a friendly Bush administration. Unfortunately for the Pilgrims, the state would prefer to establish precedents without generating headlines about bulldozers in national parks.
'I am going to be the last one to argue they shouldn't have the right to go back and forth to their land,' said Murkowski aide Jack Phelps. 'But it's not a good test case for RS 2477, and that's why we've been fairly low key."

But what really should get your attention is the way the NPS has handled things. According to the Pilgrims they were merely maintaining a road that had been in existence for about 100 years. The Park Service claims that their bulldozer wandered off the road in a few places, & that part of their cabin & about an acre of oats was located on National Park land instead of their property. So we have a few things that the Pilgrims may have been in error on. & one would think it would be easily corrected.

Remember though, the NPS is a federal agency & they have a reputation to live up to.

"The Pilgrims might even have gotten a permit to run a bulldozer seasonally up the old road, since any lesser vehicle couldn't make the dozen or more crossings of the boulder-strewn stream, said Sharp, the chief ranger."

Seems here the Park Service is admitting that a bulldozer was a necessity, doesn't it? But like a lot of other necessities they must be government approved.

"Finally this summer, with the Pilgrims still insisting they had needed no permits, the Park Service got tough. Park officials said their patient, nice-guy approach seemed to be encouraging the Pilgrims to break other park regulations."

Well, first of all when the hell did requiring a permit for a necessary activity constitute being nice? Especially when there's a dispute about the legality of requiring said permit?

"Surveyors flown in by the park in June found that two-thirds of the family's cabin was over the five-acre parcel's line -- the kitchen's cookstove was in the national park. The family had also cleared an acre or so of alder to plant oats in what proved to be the park.
The Pilgrims blame Wigger, saying he assured them the buildings were on private property. Wigger says they never asked. He says the lines were always vague, based on long-lost corners, and the house was built on I-beam skids so it could be moved."

Again, this seems like something that could be chalked up to a misunderstanding of the property lines on the Pilgrim family's part. Move the cabin & oat field & the problem would be solved right?

"Ironies multiplied. The federal survey's lines, cut with chain saws, left a highly visible rectangle in the woods of the national park. And with Wigger's bulldozer padlocked, the family had no way to skid their building onto their property."

Well I guess padlocking the bulldozer would make moving the cabin a bit trickier now wouldn't it?

"For two weeks in late August, park biologists and other specialists were helicoptered daily to the Pilgrims' site and followed the old road to assess bulldozer damage and build a civil case against the family, noting particularly where the bulldozer might have strayed off the historic right of way. Armed rangers in bulletproof vests stood nearby to keep the Pilgrim children from meddling with investigators. Both sides wielded video cameras as well. Park officials said that without guards, investigators could never discuss the case in the field because the Pilgrims were always in their midst taking pictures and notes."

Let me repeat part of that last paragraph in case y'all missed it:

"Armed rangers in bulletproof vests stood nearby to keep the Pilgrim children from meddling with investigators. Both sides wielded video cameras as well. Park officials said that without guards, investigators could never discuss the case in the field because the Pilgrims were always in their midst taking pictures and notes."

Armed park rangers to keep the children from taking pictures & notes????

"We've kind of had it. We're not going to back up and go away," Sharp said. "I represent the people of the United States, and I'm going to do my job."

If he represents the people of the United States then I'll gladly renounce my citizenship. He represents the government of the United States, which, sadly to say, is very far removed from the people. Authorizing armed agents to keep children or adults from taking pictures or notes of said agents activities is not something to be proud of. Unless you were in the Hitler Youth program.

"Joseph, 26, was cited for trespassing and vandalism, accused of breaking into the park's mine shaft after rangers chained it shut. He was written up by a ranger who staked out the mine shaft entry from a nearby ridge with binoculars. Joshua, 24, and his mother, Country Rose, were cited for leading a commercial horse trip in the park without a permit or insurance after an undercover agent contracted for a ride. Park officials say the family was warned they needed permits to work in the park, just like other McCarthy businesses."

breaking into a mine shaft on park property may be something legitimate, if the family's claims that it is a historic access point is discredited. But the latter instance sounds more like entrapment to me. Being paid to guide someone through the park on a horse doesn't exactly strike me as something the government should regulate in the first place, but aside from my free market ideas, we're dealing with a relatively poor family & I'd argue that any offer of cash for what they'd feel is a reasonable & lawful activity is not as much an indictment of the Pilgrim family's guilt as it is of the NPS's desire to discredit the family in any way possible.

BTW, if you recall the NPS is a federal agency. Care to guess how much of your tax dollars have gone to their efforts to build a case against the Pligrim family?

"Critics are calling the park's response absurd. They estimate the cost of the investigation, including helicopters and staff time, at $200,000 to $500,000. The park superintendent, Candelaria, acknowledged the cost was in that range."

$200,000 because a family used a bulldozer to maintain a road, an acre of oats was planted in the wrong place & their cabin strayed a few yards off the property line??? Wonder what they charge to prevent a rape?

"The dispute reached the public eye in early summer, with Internet alarms sent out by Kenyon and others over a park plan to dispatch a special team of armed rangers with the surveyors. The park and its critics accused each other publicly of encouraging a "Ruby Ridge" type armed showdown, with children in the line of fire.
The Park Service quickly backed down and sent in the survey team without guards, according to a June 4 park memo, to reduce risk of a confrontation 'being deliberately constructed to serve the narrow interests of some of the citizens of McCarthy and the Hale family."

So they feel that if they sent armed guards to escort a survey team on another persons property, that could be used to serve "narrow interests" of said property owners & residents of the town? I suppose "narrow interests" means anything that the government doesn't approve of or can't get away with?

Concerning the support the Pilgrim family has received:

"They're allies of convenience,' said Sharp, the park ranger. 'I think we have people in this community who hate authority and the government. (The Pilgrims) are the poor pioneers just trying to live in the old-fashioned way. There are people who think you can drive the federal government out of here if you do this just the right way."

He wonders why people hate authority & government? He orders armed escorts for his armed Rangers, entraps the family, fines the family, & prevents them using equipment he states is necessary to travel the road to their property but yet he admits that the Pilgrims are basically good people? Are we to assume that this is the way good people must be dealt with?

"I felt like I was back in the 1800s scouting through hostile Indian territory,' Sharp said."

Ah, we see where his creed for dealing with non-government employed peoples comes from.
He made that statement after explaining that he felt the Pilgrim family members were tracking him & fellow agents. He also seemed a little surprised when he recounted how the Pilgrim family's eldest sons told him to stay off their property.

In summation, what it seems like is the NPS does have a few legitimate issues about the Pilgrim family's activities. However the NPS has a love of authority that is blinding it to the degree of seriousness to take the Pilgrim's actions as well as the appropriate responses.

They're acting like masters, not stewards.

Sadly that's all to common with government agencies - & agents.

Here's a page that has updates on the Pilgrim family's plight.

Monday, December 29, 2003

From this thread over at The High Road I found a link to a survey about gun control that's being conducted by a gentleman from Yale.

From the opening page of the survey:

"Thank you for taking part in this exploratory study on society and current issues! This survey is being used to develop a larger national survey, and it is important that you answer each question carefully. The questions vary widely, and there are now "right" or "wrong" answers. We want your opinion or best guess." (emphasis added)

Of course there's a Right & Wrong answer to these kinds of surveys. Odds are I flunked it. I'd be ashamed of myself if I didn't. :D

If you opt to take the survey, page 3 is where the gun questions crop up. Some of the wording leaves a lot to be desired, such as "As long as criminals, the mentally insane & those that are a danger to themselves are prohibited, would you support a law that allows private citizens to carry a firearm?" (Going from memory - the wording may not be exact, but it's close). Now a lot of people wouldn't want serial killers to own weapons, but criminals could mean jaywalkers as well as murderers. This is a flaw I've found on damn near every survey, so I'm not going to hold ambiguity of questions against them.

But if you have time take the survey. If nothing else it's always interesting to cause a person to alter their research to support their conclusions (assuming rather prejudicially that Yale means the surveyor is pro-gun control), but it might lead someone to discover that not all people are terrified of firearms & better yet it might help this fellow convince his colleagues that firearms aren't as generally feared & despised as they believe.

I'll try to post more on this when/if the results come out.
Glenn Reynolds opines in this post that the "assault weapons" ban will sunset.

I wish he were correct, but it still remains up in the air.

I refer you to this post for some background on the political theories concerning the ban, look at this post for some information on the 100 co-sponsors for the McCarthy-Conyers bill to make permanent & strengthen the "assault weapons" ban, & look at this post for how the Senate & House break down in terms of supporting or opposing gun control bills.

Bottom line is that there are enough votes in the Senate & probably enough votes in the House to pass any version of an extension of the "assault weapons" ban. Veto-proof isn't a concern as Bush promised to sign it into law & Bush always keeps his promises no matter how much it infringes on our Rights (In all fairness I'd have to go back before Roosevelt - not the good Roosevelt; FDR - to find a president who would stand up for the Constitution despite political pressure).

So what it comes down to is whether or not any of the bills that would make permanent & strengthen the "assault weapons" ban will come to a vote. If it does I'm pretty sure it'd pass.

But most people assume it won't come to a vote. This is mainly because of House Majority Leader Tom Delay (R-Texas) said it wouldn't come up for a vote. This was said in May.

But House Speaker Dennis Hastert )R-Illinois) said a few days later that he hadn't yet decided whether the House would vote on renewing the ban. "'I need to have some discussions with the president and (Republican) leadership before I make that decision" were his words.

So we're by no means out of the woods yet. If Hastert brings any one of the "assault weapons" ban bills to the floor, it's likely to pass. The Senate's a done deal. & Bush will betray us yet again. The courts? Heh. SCOTUS has been ducking direct second amendment questions for almost 54 years. I doubt they'd grow some spine if someone challenged the "assault weapons" ban again.

I wish I could share Prof. Reynolds' optimism, but I fear I know too much about what's going on.

Here's the section of my archives that deal with proposed bans. Most of the stuff from halfway down to the end of that section deals with the "assault weapons" ban & proposals to renew it. It's not going to be an uplifting read, but if you would know all the details (at least all that I could find) feel free to browse. Of course if you see any flaws with my reasoning or know something to be different than I stated it, please drop me a line. I want to be wrong about this.

Sunday, December 28, 2003

In this thread over at The High Road, a rather interesting discussion was getting started. Specifically around page 4 it was becoming more interesting to me, but alas, it deviated too much from the original topic & was locked.

The orginal question was about answering or not answering an LEO's questions at a traffic stop. It morphed however into a discussion of what constitutes legitimate law enforcement (i.e. how can a cop vioate your Rights by merely enforcing the law) & what defines one as "pro-gun".

First let's look at the "pro-gun" definition.

A law enforcement officer made the claim that he was " pro-gun as anybody..." while going on to say that there needs to be some gun laws to keep the wrong people from having weapons & cops should not be blamed for enforcing those laws. He seemed a little miffed when i pointed out that he was not in fact pro gun, but simple not as hard core anti as others are.

But here's what I think is a workable definition of "pro-gun": Being oppossed to any prior restraint based gun control laws.

Simple, eh?

Of course that's not very popular as it would exclude those who think that we should enfocre the laws we have. In other words those who think the NFA of 34 &/or any firearm law since then would not fall under my definition of pro-gun. That's simply because they in fact support gun control. So it ticks people off who are not members of the VPC that they wouldn't be considered "pro-gun".

Folks there are varying degress of damn near everything, but generally being "pro" or "anti" means you're either in favor of something or against it. These are two extreme points with most people who label themselves one or the other falling in between. & labels do tend to take on their own meanings over time, especially to those on one side of the issue or the other, but for my purposes & from my perspective I see it as a person either being for gun control or against it, with those who support even minimal gun control as being less than "pro-gun".

& I'm sure there are die hard firearms prohibitionists who see anything less than a desire to confiscate all civilian owned arms as being "pro-gun". But I think that wanting most guns left alone while some are confiscated helps the anti's more than those who want most guns confiscated but some left alone helps us.

That's not to say they're necessarily bad people, or they're our enemies; just they lack either an understanding of the subject or that they are not absolutely on my side all of the time. Sure, they'd help out if an effort was needed to stop a bill that would ban all firearms, but maybe not one that let anyone carry concealed sans permit, or one that made short barreled shotguns legal w/o the extensive paperwork we know have.

Here's an old joke that perhaps illustrates my point:

A man walks up to a woman in a bar. he asks her if she'd sleep with him for $1,000,000. She says yep she would. He then asks if she'd sleep with him for $5. She looks offended & replies, "What kind of girl do you think I am?!?!?". He answers. "Ma'am, we've already established that; now we're bartering".

Similarly those who support prior restraint based gun control laws are offended if you dispute their assertions of being pro-gun. The fact is if you support a little gun control, then what you are is already established. What you're contending is the degree to whcih you are anti-gun. More or less you're attempting to use a relative standard to include yourself in an absolute definition.

But if you do support some gun control laws - fine. I'll argue with you all day long about the effectiveness of said laws, & they're Constitutionality & the degrees to which they violate our Rights. I won't spit on you or otherwise degrade you even if I do disparage your decision. But don't try to tell me you're pro-gun while wanting to infringe upon my Right to Arms.

So what is a good word or phrase to describe those who are not "pro-gun" by my definition but not "anti-gun" by the gun prohibitionists definition?

& I'll try to address the other topics covered in the aforelinked High Road thread at some point soon, as they tie in well with the post I've been thinking about for weeks concerning revolution.

Continue the discussion with Spoons concerning the reversal of the 9th Circuit's decision on waiting times for forced entry when serving a warrant by SCOTUS:

"Your response basically makes three arguments, as I see it. Two of them, I submit, were not relevant in this case. First of all, you object that the warrant in this case was based on an anonymous tip. To my understanding, this was not an issue in this case, and the Defendant was not arguing that the warrant was not supported by probable cause. Correct me if I'm mistaken on that. In any event, obtaining a warrant is not quite as simple as you suppose. When police go before a judge, they have explain in detail, under oath, the nature the facts which they claim give them probable cause. This is what the Fourth Amendment expressly requires. In most cases, an anonymous tip, without more, will not be sufficient to get a warrant. If, on the other hand, the police get information from an informant who has proven reliable in the past, or who is in a position to have specialized knowledge, this will be more persuasive to a judge, and may lead to the issuance of a warrant. In any event, this is the same sort of evidence that has always supported warrants -- going back as long as we've had a Fourth Amendment.

Your second argument is that the Feds don't have the power to make drug posession illegal. That's a more interesting argument, theoretically, but it was NOT an argument at issue in this case. This was a case about execution of search warrants. If you object to all drug prosecutions generally, that's fine. However, given the fact that the Supreme Court is not going to agree with you on that structural question (which the defendant didn't raise and which COULD NOT therefore be addressed by the Court), I think we still want to address the general warrants question honestly, and to create a rule that can apply in all sorts of cases.

So that brings me to the third issue; namely, the length of the wait. You propose:

'Now there are situations where cops busting into someone's house would be acceptable, but they'd be limited to demonstrating a serious & imminent danger to someone's life & limb if they didn't do it. Certain hostage/kidnapping scenarios come to mind, but little else.'

'What I would prefer is that except in those situations where life & limb are threatened by not acting, that cops simply not enter a person’s home without permission irregardless of any warrant. They shouldn't have merely increased their wait time; they should have simply not entered the home until permission was obtained.'

That's a completely unworkable rule. More importantly, it's never been the law in this country. It's not what the Fourth Amendment says, nor what the framers intended. We rightly pillory liberals for making up new rights in the Constitution -- we shouldn't get into the business ourselves. The rule you suggest would cripple legitimate law enforcement. Not only drug crimes, but many other crimes that you don't have a problem with, would become difficult or impossible to prosecute, as long as the criminal worked out of the home. Simply keep the shades drawn, and destroy all the evidence when the cops come around and announce themselves (as the Court has said they must do). Better yet, if you're out of the house and learn that police have been by, simply don't go home. Hit the road, and the cops will never be able to get in.

I find it odd, too, that you object to the police entering your home -- with a warrant -- when the suspect is not home. What about when the suspect IS at home, but refuses to open the door? Is that entry okay? If so, why?

You also misunderstand the Castle Doctrine. That doctrine never had anything to do with a homeowner's right to disobey a lawful warrant. Indeed, a warrant from the King would always permit the King's men to enter anywhere in the realm (for the past 500 years or more!).

In short, my objection to your proposed rule are twofold. One, the rule you propose is utterly unworkable, and would devestate law enforcement -- even with respect to crimes that you don't disagree with. Second, and more importantly, the rule you propose is rooted nowhere in the Constitution (or even in Common Law)."

To address the first point made by Spoons, anonimous tips are a lousy basis for a warrant. Even disregarding that it allows for a flagrant abuse (i.e. making up the informant to secure a warrant or paying an informant to "inform" to base the warrant on) it offers nothing more than heresay as a basis for deprivation of a Right. In a court of law assuming Spoons & myself had equal standing (i.e. clean records, "respectable" backgrounds, etc...) he could testify that I had proscribed drugs or guns & it shoudl have no bearing, as it would be his word against mine with no proof to back it up. It may sway a jury but objectively it should have no bearing on any matters. Further I suspect that most anonymous tipsters are of less than upstanding background themselves. Hence their credibility is somewhat suspect which further discredits them in a peron's word against another person's word context. & I would remind Spoons that our favorite gun control org, the BATF, uses "informants frequently. Typically they threaten to bust a gun owner for something & offer him the chance to rat out someone else in exchange for leniency or immunity.

But here's another thing that must be considered: revenge on the part of the tipster as a motive. Say Spoons & I are at a bar & both trying to attract the same girl. For some reason she prefers me over him (i.e. she's had a drink or twelve on an empty stomach) & Spoons gets ticked off. So he calls the local PD & gives an anonymous tip that I have a machine gun & am selling coke. Now suppose the local cops have read my blog & are less then happy with my rants about the inappropriate actions that they took in a matter. They take this anonymous tip to the judge & get a warrant based on it & the judge's deference to them. So the cops come a knocking & we have at minimum a real tense situation. All because of a desire for revenge. Yes, it's a straw man but one that is probably more accurate than any of us would like to believe.

So despite anonymous tipsters being an old & accepted method of basing warrants I contend that it's flawed in many respects & shoudl be discontinued.

As to the argument that the Feds lack authority to make drugs illegal, we probably both have heard more sides of this issue than we can remember. But to sum it up, I see nothing in the constitution that allows the Feds to make any drugs illegal. States may be a bit different, but the Feds simply lack the authority.

Now as to the irrelevance of thse two points, I disagree. A court should look at all aspects of the case, not just those whicht he lawyers bring up. If a person is fighting a conviction for carying a concealed weapon & his attorney is basing his defense on some regulatory provision that allows such in one's car, that should not disuade the judge or jury from examining the question of whether or not the state has authority to prohibit or regulate the carrying of weapons at all. In fact courts should first look at a law & decide whether or not it is indeed constitutional before even considering other matters. So as you might imagine I am no fan of the presumption of constitutionality doctrine that has misled the courts for the last several decades.

The courts simply should have looked at these issues regardless of counsel bringing them up or not.

Now as to the third point Spoons addressed concerning my proposal, I do not see it as unworkable or as crippling law enforcement. What I see it as doing is perhaps inconveninecing law enforcement, but to the benefit of law enforcement & the people.

Under my program cops would still be able to break down doors & dress up in their space ninja outfits, but only when doing so would attempt to save life. This business about busting down someone's door for suspicion of possessing an illegal substance or object would be eliminated. I do not see it as hampering legitimate law enforcement efforts. If you accept gun control & drug prohibition as acceptable then officers could still enforce those laws. They just would not be able to bust into someone's home to do it, unless said person was taking potshots at passers-by out of his window, or he was holding someone against their will.

Now I will grant you this: my idea would devestate law enforcement as we know it; it would strip away a lot of power from the government to enforce its laws. But it would do so to the benefit, not the detriment of the people. In short it would only be damaging to the system as it is now, not the system as it should be.

As to it creating new law &/or Rights, I don't see it as that. I see it as merely enforcing the Rights of the people as they should be enforced. Quite simple the idea of Federal government agents, or local agents acting on behalf of the Feds to enforce Federal law, was not seen as something essential to daily operations of the federal government. In short those accussed of counterfeiting & other legitimate federal crimes were to be the only ones subject to Federal search warrants. & I doubt it was seen as something that would or should happen with any frequency. Moreover I doubt that a statement from someone whose intentions may be suspect would have been viewed as a legitimate exception to the Fourth amendment when it was penned. Keep in mind that in 1791, the Feds were suppossed to have limited powers & a limited number of agents in its employ. States had a little more discretion but still there weren't even any organized police forces - at least not as we know them today.

I really do believe that any signer of the respective constitutions - State or Federal - would have serious issues with the way the courts have interpreted the Fourth amendment as it pertains to the granting of warrants & forced entry into a person's home just as much as they'd not be happy with the courts treatment of the Right to Arms provisions.

& if Spoons is saying that the Castle Doctrine was irrelevant if the King signed a piece of paper saying it was, then I think that would do more to support my point rather than refute it.

The idea that a person's home is off limits to the government embodies the Castle Doctrine. But saying that a King could merely sign a piece of paper & the sanctity of the home would be forfeit is to essentially make the Castle Doctrine useless. Now I know that this was the case in England - the King most certainly could make exceptions at whim to the Castle Doctrine, but this does not justify its continuance today in the form of court issued search warrants.

The Fourth amendment sought to address this by the use of certain words, such as unreasonable & probable cause.

Here's the Fourth amendment in it's entirety:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Now as to the first part, essentially what Spoons & I are arguing is what constitutes unreasonable. I feel that busting in someone's door for a non-life threteaning reason is unreasonable. Spoons does not view it in this light.

As for the probable cause, again we disagree. I do not feel the word of one other person constitutes probable cause. Spoons sees it as an acceptable way to enforce laws that he fears would be unenforcable otherwise.

Further I believe that courts have used too little discretion in the issuance of warrants, especially the no-knock variety, while Spoons feels that adequate procedural safeguards are in place.

These three things in esence sum up the disagreement that Spoons & I have. If time permits I'll attempt to expand further on these (but as y'all may have noticed, time hasn't permitted much blogging as of late).

But in the meantime check out the comments in this post as there's some decent discussion of this issue going on.