Publicola

Apparently it's not unanimous that the treatment of David Codrea for his letter was wrong.

We have Bob who relayed this in the comments box:

"well DUH..you send a letter to an official threatening to show up at their door with a loaded rifle and (oh my) they arent going to investigate? The letter had merit in its content however until it reached that point."

Eugene Volokh takes a similar view:

"I generally have a hard time getting particularly outraged about stories like this...

The police might strongly suspect that the letter is rhetorical, but it's hard to tell that for sure. And if it isn't rhetorical -- if the writer does want to show up with those guns -- and the writer also wants to do something with those guns when he shows up, then we could have a bad scene.

If you were a responsible, freedom-loving police officer, would you just say 'Nah, sounds like nothing to me'? Or might you think it's worth some more investigation? The letter-writer writes, as a follow-up, 'I do find it bizarre that civil authority is so fearful of an armed citizenry that if they feel there is any chance of it happening, their response is to send armed men.' Why is it so bizarre? Armed citizens have at times done quite a bit of damage, including to a past Mayor of San Francisco. That's not reason to disarm them or throw them in jail for writing letters -- but it is reason to look closely at people who say they want to carry an arsenal to city hall.

But freedom of speech can't mean freedom from even disquieting investigations based on your speech. You can't be convicted for that letter; you can't be fined for it; but the police are entitled to talk to you to see whether you seem like an upstanding citizen (which by all accounts the author is) or someone who seems like a John Hinckley, and who therefore bears closer watching. Extremist groups are entitled to express their views; but I certainly hope that the police are investigating them more closely to see whether there might be extremist action, and not just extremist speech, in the offing. Likewise even for perfectly reasonable people who make statements that are also of the sort sometimes made by unreasonable people. It's part of the police department's job to investigate a bit more closely to see whether the speaker seems reasonable or unreasonable."

I would be remiss in not pointing out that Prof. Volokh does say this kind of thing could be troubling (if for instance Mr. Codrea received any sort of punishment) it's just that he feels the level of intrusion &/or the chilling effect in this instance is more or less outweighed by the need to protect the public safety.

& over at SayUncle there's been a similar disagreement about the appropriateness of the response:

"I like it. However, I do feel compelled to point out that it would awfully difficult for somebody to kill me with their homosexuality, so it's not exactly a valid comparison..." - Tom aka Tqirsch

"That guy made the classic apples & oranges mistake, so no wonder someone cried foul fruit.
(heh)." - Peggy from A Movable Beast

Tom/Tqirsch then adds this:

"Let me clarify. My comment was not based on the legality of the actions described. My comment, rather, concerned the justifications for banning those activities. Constitutionality and current law aside, it's very difficult to argue that homosexuality poses anywhere near the sort of public safety risk that guns potentially could. And whether or not they do a good job of it, protecting public safety is a valid function of government. That, to me, is where the comparison falls flat."

So let's start with a review of the relevant paragraphs from the letter that started all of this.

"You have shown progressive thinking and tolerance for that which the majority condemns. So I was thinking of coming up to San Francisco and exercising my right to keep and bear arms, maybe showing up at City Hall with a state-banned AR-15 and a couple 30-round magazines, and also carrying several pistols concealed without a permit.
Yes, I know, it will be a violation of California laws, but you've shown that you're willing to disregard those when it serves your goals. And because I am a peaceable citizen, I should easily meet Judge Warren's criterion that no immediate damage would be done by allowing this.
So what do you think, if I visit your city and proudly display my lifestyle choices, can I count on your support? As a private citizen, don't I have as much right to disregard laws I find reprehensible as you public officials? Isn't that what equality is supposed to be all about, where no class of citizen enjoys privileges and immunities not extended to all?
How about it? You wouldn't have me arrested, would you?
Please let me know if I have your support."

Now to Bob's concerns -

"well DUH..you send a letter to an official threatening to show up at their door with a loaded rifle and (oh my) they arent going to investigate? The letter had merit in its content however until it reached that point."

I fail to see where he said the rifle would be loaded. He mentioned magazines but never said whether or not they'd be holding ammo. & keep in mind the rifle (if you really want to call an AR-15 a rifle - shudder), the magazines, & the manner of carry he described for the pistols are all illegal under California law (to the best of my knowledge at least). However there is no additional penalty for the rifle (shudder) or pistols or magazines being loaded or unloaded (again according to my admittedly limited knowledge of California firearms law). So the illegal acts could have been performed without any ammunition at all (unless for good measure you wanted to bring some ammo that Cali has banned for some hoplophobic reason or another, in which case they could be in your pocket or in the firearm & the point would be made)

Now I bring this up because he also mentions that he's "...a peaceable citizen..." & therefore "...should easily meet Judge Warren's criterion that no immediate damage would be done by allowing this."

Given the general nature of the paragraphs in question where he is asking for an answer (although I'm sure expecting none) & the information I pointed out above, it's perfectly reasonable to conclude that A; he wasn't actually planning on doing those things B; He was seeking advice on the nature of the reception he'd receive if he were serious & C; he had no harmful intent.

That does qualify as "...threatening to show up at their door with a loaded rifle..."

Prof. Volokh thinks that under the circumstances this was a reasonable action: investigating someone who made remarks that could be the indication of a threat to public safety.

However what Prof. Volokh views as a potential threat is simply no more than a person threatening to exercise their Right to Arms. Now I don't doubt that many people in a city would feel a bit uneasy about seeing someone with an AR-15 on their shoulder walking down the main street (I would too: imagine taking an AR-15 to town carrying it like it was a real rifle & you were proud of it - shudder). But then again many people might feel uneasy if they saw two men kissing on the main street in town, or a person passing out religious &/or political literature. All have the potential to create harm: the guy with the AR-15 might attempt to shoot someone, the men kissing could be exchanging mononucleouses, & the people passing out literature could start a riot by the material contained therein. But potential is not something we should view as grounds to condemn, or even intrusively investigate people for.

For example, if Kim du Toit was investigated everytime he mentioned that he'd like to kick Sen. Schumer in the genitals, do you really think they're be anything left in the SS Secret Service budget for anything else?

& take me for instance. If Prof. Volokh is comfortable with calling an AR-15 & "several" handguns an arsenal then I suppose my modest collection would be akin to an armory. & I guarantee that my potential for causing damage is much greater than anyone whom merely has an AR-15 & a few pistols. Yet I have no harmful intent & the actuality of it is that I am as dangerous to the public at large as someone with no weapons, no arms, no legs & is unable to communicate.

Now I don't think it unreasonable for cops to look into something. & if they'd have simply ran a google search, found out that Mr. Codrea was a big name in the pro-2nd amendment community & possibly even looked up his criminal records to see if he had done anything rash in the past then I don't think the level of attention would have been inappropriate - well if you get over the fact that all Mr. Codrea talked about doing is illegal because of laws that are violative of his Rights & conflict with the U.S. Constitution (& I'd be more than happy to discuss at great length the flaws of the incorporation theory). But keep in mind to me & quite a few others that Mr. codrea's actions would have been no more shocking than a person going hunting in a National Forest, or a person saying he/she might attend a particular church this Sunday. So even the unintrusive investigation would be questionable if you accept the fact that the laws in California regarding firearms are quite unconstitutional & violative of the people's Rights.

However let me point out again that Mr. Codrea did mention that he was a peaceable person & that in his view his actions, were he to undertake them, would meet a judge's standard for not creating any immediate danger. So the phone call asking potentially incriminating questions (such as whether or not he has a firearm verbotten under California law) & sending two armed agents to his residence was completely unwarranted (bad puns are always intended).

& keep in mind that the police department in question had told KABA.com that this was an ongoing investigation. That would seem to indicate that this may not be over for Mr. Codrea.

So while not equal to the crushing of dissent in the old Soviet Union (or present day Boulder, Co.) I think it should trouble us all that a man is being investigated because of his letter objecting to the disregard of some laws because the official in question views them as unconstitutional yet upholding other laws which are blatantly unconstitutional.

& it does beg the question, "What action would have been taken if Mr. Codrea had refused to talk with the cops?" (as is prudent for anyone to do - that ol' 5th Amendment was in there for a reason ya know). Would they have simply left him alone, or would they have thought his words constituted probable cause or suspicion sufficient for an arrest? & don't tell me you don't know of any judges in Cali who wouldn't have signed an arrest warrant because someone spoke of carrying prohibited firearms contrary to state law. The BATF has a whole string of "conspiracy" convictions based on much less than that in much more firearm tolerant states & I have no doubt that the mention of "firearm" by any other than the police is close to an arrestable offense in the minds of some judges out there.

Now for Tom/Tqirsch:

"I like it. However, I do feel compelled to point out that it would awfully difficult for somebody to kill me with their homosexuality, so it's not exactly a valid comparison..." - Tom aka Tqirsch

"Let me clarify. My comment was not based on the legality of the actions described. My comment, rather, concerned the justifications for banning those activities. Constitutionality and current law aside, it's very difficult to argue that homosexuality poses anywhere near the sort of public safety risk that guns potentially could. And whether or not they do a good job of it, protecting public safety is a valid function of government. That, to me, is where the comparison falls flat."

It is entirely possible to kill someone else with their homosexuality. It's possible to kill someone else with their heterosexuality as well. It's not unreasonable to admit the possibility of spreading a fatal disease through a sexual act. Now it's not all that likely, but it is very well possible.

& let me point you to this admittedly dated study that blames Aids for more deaths in 1994 than homicides.

Now keep in mind that I am not saying that we should regulate homosexuals or others who may potential carry fatal communicable diseases. I'm simply pointing out that the comparison between gun owners & homosexuals is valid because only the potential for harm exists, not necessarily the actuality.

& while protecting public safety is a legitimate endeavor of government, doing so at the expense of the public's freedom is certainly not within that realm. Restraining actions that cause direct & immediate harm would be acceptable, but limiting behavior because of only the potential (& a slim potential at that) is not. If we accepted Tom/Tqirsch's reasoning then it would be viewed as a legitimate action of government to make men & women wear chastity belts because men have the potential to become rapists & women the potential to become prostitutes.

One last thing about the justification for both laws in question (outlawing homosexual marriage & carrying firearms) - it's possible that two people being married may have saved one or the other (or possibly both) of their lives. However the estimates of defensive firearms use in this country range from 80,000 on the low end to 2,000,000 on the high end. Considering there are only about 28,000 firearms related deaths per year, of which about 16,000 are suicides, under 1,000 are accidental shootings & the rest are intentional (with no valid break down of justifiable v. unjustifiable shootings known to me at this time) I'd say the justification for prohibiting arms is very weak.


& now for Peggy -

"That guy made the classic apples & oranges mistake, so no wonder someone cried foul fruit.
(heh)." - Peggy from A Movable Beast

Hmm, let's see... one person is defying state law because he feels that said law conflicts with a constitutionally protected Right. The other person ask if it'd be okay to violate a state law because such law conflicts with a constitutionally protected Right. Both actions if allowed have the potential to create harm but do not actually cause any harm in & of themselves (marriage leads to emotional & financial problems on occasion, & firearms could be used to shoot innocent people). The only difference I see (in theory at least) is that one is implied to be a constitutional Right & the other is specifically enumerated as a constitutionally protected Right.
You could get into the obvious differences - one is between two adults & the state while the other is just between an adult & his/her conscience; one is being done by an elected official & the other is merely asking that official if he'd be supportive if a citizen done the thing in question.

But in theory they're the same: an act of civil disobedience that hopefully will either assert what is considered to be a Right by the inaction of the government or by action of the government (through the courts). They vary in details but not in principle.


Well I think that's everyone for now. If anyone else wishes to argue that Mr. Codrea should have been investigated, or that his point was not the same in principle as the one being made by SF Mayor Newsom feel free to leave a comment.