Why use my dog's name for a blog?

It started out as a joke when Harriet Miers was proposed to be a supreme court justice, someone said my dog had been to court more than she had.  The really sad statement about that was the Laci probably had been to court more than Harriet Miers!

Likewise, many law school professors have never been admitted to a bar (any bar) let alone have actually practised law.

Other nations provide for some sort of apprenticeship before letting people loose to practise law, but the US legal educational system choose to shift the training of lawyers to law schools. Where did the actual training to become a lawyer take place: in the field or at school?  Ultimately, the attitude was that any actual legal education would take place when someone studied for the bar exam in the US.  Some law schools try to teach law, but they are not considered the "top" Schools.

Whatever the case, the US legal system sees poor legal reasoning on an epidemic scale.  It is worse in the judiciary, but that is due to the political process.

And ignorance.

Insurrection Theory

Time to repost something of Laci's from back in September of 2009.

It addresses recent comments by both Crunchy and Civillian76, that show a lack of depth in our national history that are the legitimate context in which to appreciate and understand the 2nd Amendment.

So while this will appear as posted by me (DG), the credit /attribution belongs to Laci.

Cross posted from Laci the Dog's blog, with permission (in case one of our former Anonymi wishes to complain about plagiarism or otherwise act like a scurvy troll):

Insurrection theory of the Second Amendment…

Yes, it is specifically mentioned that the militia’s purpose is to suppress insurrections, not foment them in Article 1, Section 8, Clause 15:
“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”
Not to mention that congress has the power “to provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
It is congress’s power to arm the Milita that the Second Amendment addresses (look up the entire text of Patrick Henry’s “Let every man be armed” speech, not the clip the “gun rights” crowd use). Also, check out this quote from Patirck Henry about Article I, Section 8, Clause 16: he wasn’t talking about self-defence, let alone insurrection!
I would also add in Article III, Section iii:
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
To prove that the insurrection theory of the Second Amendment is sheer rubbish.
The problem with the Second Amendment “gun right” theory is that it divorces the Second Amendment from the Constitution, the inconvenient text of the Amendment relating to the militia, and reality.
The Consitution must be read as a whole, not pick and choose.

Laci adds:

From Story’s Commentaries regarding Article III, Section iii of Constitution:

§ 1292. The propriety of investing the national government with authority to punish the crime of treason against the United States could never become a question with any persons, who deemed the national government worthy of creation, or preservation. If the power had not been expressly granted, it must have been implied, unless all the powers of the national government might be put at defiance, and prostrated with impunity. Two motives, probably, concurred in introducing it, as an express power. One was, not to leave it open to implication, whether it was to be exclusively punishable with death according to the known rule of the common law, and with the barbarous accompaniments pointed out by it; but to confide the punishment to the discretion of congress. The other was, to impose some limitation upon the nature and extent of the punishment, so that it should not work corruption of blood or forfeiture beyond the life of the offender.

Another point, Dennis v. United States, 341 U.S. 494 (1951) puts paid to the insurrectionist theory:

The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence. The question with which we are concerned here is not whether Congress has such power, but whether the means which it has employed conflict with the First and Fifth Amendments to the Constitution.

Quite frankly, there is a vast body of law that says waging war or advocating insurrection is not a constitutionally protected act.  Asserting that it is in anyway sanctioned demonstrates a serious ignorance of the Constitution and Constitutional history.
***************

Amen Laci - no cafeteria or a la carte constitutionalism!  Here here!  That the Constitution is intended to encourage or allow private gun ownership to oppose some variant of a Hitler is nonsense.  While Thomas Jefferson was off having fun in France, writing back his little snarky comment about blood watering the tree of liberty, it is not fairly and factually represented that the overwhelming response to that line applauding the occasional revolution / insurrection was emphatically negative from the other Founding Fathers. 

Those at home who had to cope with the threat of insurrection potentially undoing everything they had worked so hard to accomplish roundly condemned that bit of bullshit kibbitzing from someone sitting on his silk pantalooned arse from the relative safety and luxury of France.

More to the point is that the right wing nuts quote only that small part of what Jefferson wrote, leaving out all of the more important ideas which preceded that small part.  Let me make a minor contribution to Laci's post by providing it here --- since you can bet the gunloons lack the intellectual honesty to present the rest.

...such  a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions,
it is lethargy, the forerunner of death to the public liberty. ...
And what country can preserve its liberties, if its rulers are not
warned from time to time, that this people preserve the spirit of
resistance? Let them take arms. The remedy is to set them right as
to the facts, pardon and pacify them.

Sadly, Thomas Jefferson did not reckon on the future existence of such gross disinformation and misinformation entities as Fox Not-news Propaganda where people would actually become LESS well informed after viewing or listening than those who used no news source at all.  Or the factually inaccurate and intellectually dishonest crap that the other right wing media sources spew - Rush Limbaugh comes to mind as just one example of many.  Nor do I believe that men like Jefferson anticipated the successful misinformation and evil pandering of right wing hate and fear mongers like Bryan Fischer and his ilk.  And last but by no means least we have the utter garbage that is so often promoted by the right wing blogosphere.

Jefferson believed that a little insurrection would simply prompt those governing, the RULERS, to  update and correct the information and do a little - dare I use the word - re-educating of those insurrectionist to the proper facts (ie what the right rejects - factual objective reality).  Jefferson under-estimated ignorance and the power of the Amygdala, probably because so few people comparatively had the right to vote in the U.S. under the original Constitution.  People had to be educated males who owned property - in other words had a certain level of knowledge and affluence.  We no longer believe it is acceptable to shoot a few of them and then try to persuade the rest with facts, and then pardon them.  Rather we take the side of the overwhelming majority of the Founding Fathers who made insurrection and rebellion ILLEGAL, as the only crime specifically mentioned in the Constitution.

Now we let the ignorant malcontents vote - and comment on blogs. 

At least some of us DO try to inform the restless uneducated would-be insurrectionist with guns of the facts.  But insurrection still is a crime, still contrary to the Constitution, and the notion that most of those who think they can tell when the government is no longer acting under the authority of the Constitution is wrong - dead wrong, thoroughly wrong, and of course, blatantly stupid as well as misinformed.

I look forward to Laci posting something about those who 'read a book......ONCE."

My answer for LegalEagle

Since you are too lazy to look up and read this:
mikeb302000.blogspot.com/search/label/Second Amendment HIstory

Where I am sure he will find the answers to pretty much all his questions.

I asked him if Justice Douglas, who was on the Court at the Time of Miller also misunderstood Miller when he said in ADAMS v. WILLIAMS, 407 U.S. 143 (1972)?

The leading case is United States v. Miller, 307 U.S. 174 , upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id., at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

"The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be [407 U.S. 143, 151] secured through the Militia - civilians primarily, soldiers on occasion." Id., at 178-179.

Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment.

I believe that Douglas gives the same opinion as I do.

In his response that Justice Douglas was wrong, LeaglEagle makes the mistake of pointing out that the Miller decision incorporated by reference, the decision of
Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840). Aymette makes the following point.

To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

I think that quote from Aymette puts paid to any attempt to try to say that Miller related to private uses of firearms.

As for the topic of Desuetude and the Second Amendment, Justice Story points out in his commentaries (Commentaries on the Constitution 3:§ 1890) that:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

The Second Amendment is related to the Duty of the Citizen to participate in the institution of the Militia, not anythiing to do with private arms as the refgerence in Aymette found Miller points out and makes clear. I think that Story's comment also makes it clear that the right is related to militia duty as well.

Yet it is beyond LegalEagle to read footnotes, or to read as it would seem. I have more than amply given my reasons following the civic right interpretation, not his theory based upon half-truths and fake history.

In Walz v. Tax Commission of the City of New York, 397 U.S. 664, 678 (1970) addresses the First Amendment--hardly what one would call a little used aspect of the Constitution, The United States Supreme Court asserted in it that: "It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it."

"It must be a very strong case," says Chief Justice Tilghman, "to justify the court in deciding, that an act standing on the statute book, unrepealed, is obsolete and invalid. I will not say that such case may not exist -- where there has been a non-user for a great number of years; where, from a change of times and manners, an ancient sleeping statute would do great mischief, if suddenly brought into action; where a long, practice inconsistent with it has prevailed, and, specially, where from other and latter statutes it might be inferred that in the apprehension of the legislature, the old one was not in force." 13 Serg. & Rawle, 452; Rutherf. Inst. B. 2, c. 6, s. 19; Merl. Repert. mot Desuetude.

That seems to back up my point about Desuetude--one cannot amend the Constitution by Judicial fiat--there is a Constitutional process for amendment, which Heller violated.

I am going to add a couple of quotes from cases which LegalEagle probably hasn't read since they, back up my assertions (APU):

The National Guard is the modern Militia reserved to the States by Art. I, § 8, cl. 15, 16, of the Constitution.

Maryland v. United States - 381 U.S. 41 (1965)

The District Court rejected the Governor's challenge, holding that the federal Guard was created pursuant to Congress' Article I, § 8, power to raise and support armies; that the fact that Guard units also have an identity as part of the state militia does not limit Congress' plenary authority to train the units as it sees fit when the Guard is called to active federal service; and that, accordingly, the Constitution neither required the gubernatorial veto nor prohibited its withdrawal. The Court of Appeals affirmed.

Perpich v. Department of Defense, 496 U.S. 334 (1990).

The Second Amendment relates to the Body created under Article I, Section 8, clause 16.

What are the powers granted to Congress under this clause--LegalEagle?

I think that you are only proving that you have no idea of what you are talking about, LegalEagle.

And LegalEagle repeating lies will not make them true, nor will they persuade me of anything other than you have no idea of what you are talking about.

LegaleEagle, you are intellectually dishonest if not just a plain fool.  You are an ideeologue, not a lawyer.

Additionally, LegalEagle, I won't do your thinking for you, but it is quite obvious that you do prefer to let others do your thinking for you.

I think for myself and fashion my own opinions based upon my own experience--not because someone tells me it is so.

WHY It Is That Some of Us Are More Distrustful of Other's Decision Making and Thought Processes in a Crisis

One of the topics of off-blog conversations with Laci that I enjoy has been about cognition and heuristics, the actual process of thinking, evaluating, decision making. The recent post from Laci, on the Higgs Bosun particle, addressed that higher level of analyzing thinking, as our understanding of thought processes themselves relate to not only academic fields but our everyday thought processes.

That probing of thought processes applies to trusting or distrusting decisions that end lives or cause injury, or even simply addresses one person or group of persons causing fear in others.

An example here would be where we are told that if we don't agree with the current laws that we feel inadequately regulate gun possession and especially gun carry, that we are simply failing to trust the inherent goodness of our fellow man that someone else chooses to hypothesize.  Speaking here for myself, I don't wish to trust a glittering generality like that,when clearly all of us are a mixture of good and evil as human beings.  It is not a matter of trusting human goodness, but trusting other variables in gun use.  Put in an oversimplification, I don't wish to be AS trusting as to which variable, good or evil, might apply to any situation where deadly force is involved.  I also don't wish to trust the wide range of variables in thought processes, good and bad, that I have observed over the years, particularly in crisis judgment situations, and in risk assessment.

For purposes of this post, to establish a common foundation for any discussion and comment, and because they do a great job of introductory level material, I'm going to quote the opening paragraphs from Wikipedia on cognition, and on heuristics, before going further.

Cognition

In science, cognition refers to mental processes. These processes include attention, remembering, producing and understanding language, solving problems, and making decisions. Cognition is studied in various disciplines such as psychology, philosophy, linguistics, and computer science. Usage of the term varies in different disciplines; for example in psychology and cognitive science, it usually refers to an information processing view of an individual's psychological functions. It is also used in a branch of social psychology called social cognition to explain attitudes, attribution and groups dynamics.
The term cognition (Latin: cognoscere, "to know", "to conceptualize" or "to recognize") refers to a faculty for the processing of information, applying knowledge, and changing preferences. Cognition, or cognitive processes, can be natural or artificial, conscious or unconscious. These processes are analyzed from different perspectives within different contexts, notably in the fields of linguistics, anesthesia, neurology and psychiatry, psychology, philosophy, anthropology, systemics, computer science and creed. Within psychology or philosophy, the concept of cognition is closely related to abstract concepts such as mind, intelligence, cognition is used to refer to the mental functions, mental processes (thoughts) and states of intelligent entities (humans, human organizations, highly autonomous machines and artificial intelligences).

Heuristic

Heuristic ( /hjʉˈrɪstɨk/; or heuristics; Greek: "Εὑρίσκω", "find" or "discover") refers to experience-based techniques for problem solving, learning, and discovery. ... In more precise terms, heuristics are strategies using readily accessible, though loosely applicable, information to control problem solving in human beings and machines.^[1]

The area of heuristic thinking that I find most applies to the differences in side-choosing over gun issues is cognitive biases.  Going, again, to Wikipedia, for a common basis for this discussion to go forward:

A cognitive bias is a pattern of poor judgment, often triggered by a particular situation. Identifying "poor judgment," or more precisely, a "deviation in judgment," requires a standard for comparison, i.e. "good judgment". In scientific investigations of cognitive bias, the source of "good judgment" is that of people outside the situation hypothesized to cause the poor judgment, or, if possible, a set of independently verifiable facts. The existence of most of the particular cognitive biases listed below has been verified empirically in psychology experiments.
Cognitive biases, like many behaviors, are influenced by evolution and natural selection pressure. Some are presumably adaptive and beneficial, for example, because they lead to more effective actions in given contexts or enable faster decisions, when faster decisions are of greater value for reproductive success and survival. Others presumably result from a lack of appropriate mental mechanisms, i.e. a general fault in human brain structure, or from the misapplication of a mechanism that is adaptive (beneficial) under different circumstances.
Cognitive bias is a general term that is used to describe many distortions in the human mind that are difficult to eliminate and that lead to perceptual distortion, inaccurate judgment, or illogical interpretation.^[1]

The cognitive biases that most intrigue me as applying to the differences we see here include those categorized as biases in probability and belief such as:

Anchoring effect – the tendency to rely too heavily, or "anchor," on a past reference or on one trait or piece of information when making decisions (also called "insufficient adjustment"). 
Attentional bias – the tendency to neglect relevant data when making judgments of a correlation or association. 
Availability heuristic – estimating what is more likely by what is more available in memory, which is biased toward vivid, unusual, or emotionally charged examples. 
Availability cascade – a self-reinforcing process in which a collective belief gains more and more plausibility through its increasing repetition in public discourse (or "repeat something long enough and it will become true").

Laci recently forwarded to me a radio interview with Daniel Kahneman talking about his book Thinking Fast and Slow.  Unfortunately, blogspot makes it difficult to include or embed that BBC segment here.  Alternatively, I did find this particular review of the book by a colleague of Kahneman to be insightful, and include very small excerpts from that larger review here.

Review of Thinking, Fast and Slow by Daniel Kahneman

By Max H. Bazerman

Do cognitive biases show up in people other than college sophomores? Do people make decision mistakes outside the lab, when real incentives are on the line? Are smart people immune from bias? Are these biases really mistakes? Does experience eliminate biases?
As a card-carrying member of the biases-and-heuristics crowd of the behavioral decision research field, these are the questions I have continually been asked over the years, despite my belief that they were answered conclusively long ago. In accepting an invitation to review Thinking, Fast and Slow (TFS) by Daniel (Danny) Kahneman, I anticipated getting a comprehensive and clear response to these decades-old questions.

and

The field of behavioral decision research has proven to be remarkably robust, demonstrating effects that have had profound influences on economics, finance, marketing, medicine, law, and negotiation, among other applied fields. Behavioral decision research has diffused to other academic areas faster than any topic in the history of psychology. And Danny has been recognized with the Nobel Prize in Economics, among many other well-deserved awards. But for the past 35 years, one ongoing criticism of the behavioral decision research field, particularly the work focusing on heuristics and biases, is that it doesn’t offer enough detail about the psychological mechanisms underlying the fascinating effects it documents. This tension about the nature of the field, and about the nature of evidence needed for journal publication, may be partially responsible for behavioral decision research developing more in professional schools than in psychology departments in recent years. (Of course, there are other explanations as well.) ....      Answering the many questions about psychological mechanisms underlying behavioral decision research is at the core of TFS,...

In that context, I saw a great deal of myself at the same age in the following video,although without glasses:


One of the qualities, besides an interest in how we think, how we make decisions, that I share with Laci is a lifetime of risk taking behavior.   That has made both of us very thoughtful and analytical about our own abilities and processes of risk assessment and response, and it makes us similarly critical of the thought processes of others, much of which is sadly superficial.

What if the 99% Carried Weapons, Like the Tea Partiers?

Laci is off doing last minute holiday things with family, and starting celebrations for the holidays.  But he suggested this post to share with MikeB readers. He's been great about posting for me when I wasn't able to be on line much, so this is my chance to return the favor.

From the Political Newsletter Counter Punch:

December 21, 2011

They Don't Shoot Rightwingers, Do They?

What If Occupiers Armed Themselves?

by BRIAN J. FOLEY

You’ve probably noticed that our government and corporate-owned media treat the Occupy Movement differently from the Tea Party.
Think back to how some Tea Partiers brought guns to their protests, where some protesters even suggested killing President Obama.  They weren’t pepper-sprayed.  They weren’t bashed in the head, and they weren’t even told to take their guns home.
I’m glad police didn’t stomp on the Tea Party. Even ill-informed, inane, racist protests should be permitted. The problem is that the First Amendment prohibits the government from choosing which protests it allows. Unfortunately, the government doesn’t seem to understand that.
Why such different treatment? Some people say it’s because the Tea Party didn’t camp out. But does camping and building a library (which, in a move reminiscent of the National Socialists in 1930′s Germany, the NYPD destroyed) and chanting and sitting-in merit more government attention than armed people threatening violence against the President?
An even more disturbing difference is that the Department of Homeland Security — which is supposed to use its broad powers to protect us from terrorism – may have helped coordinate a national crackdown on the Occupiers’ nonviolent protest. The Occupiers pitch tents, not grenades. They hang expressive signs on buildings – they don’t pilot airliners into them. The Occupy movement shouldn’t even appear on the DHS radar screen.
The mainstream media are similarly “fair and balanced.” The Occupy Movement is widely criticized (as if according to talking points) as lacking a “clear message.” There was no real criticism, however, of the Tea Party’s cacophony of self-contradictory idiocy. Obama is a fascist and a socialist! This Big Business-friendly President is “a Communist”!  Well, where’s my share of the bailout, comrade?
Mainstream media wondered when the movement will be “over” and suggested it would end when temperatures drop.  The Tea Party, which had no encampments, no library, and just a few short protests, was never seen as having an end; it’s been elevated to the status of a political party.
Remember how, after Obama was elected in late 2008, right wingers, believing Obama opposed gun rights, stocked up on guns and ammunition, as if arming themselves for revolution, or a race war? It was reported as just another interesting story. What would happen if Occupiers armed themselves?
The media would report it as foreboding a revolution. Pundits would muse that “we have too many gun rights.” There would be calls for a screening process for dealers. Gun dealers would discriminate.  The Occupy Movement would be designated a terror group – as it just was in London.
Or (perhaps more likely) gun rights would go untouched — the government probably would just shoot Occupiers, as Ann Coulter has suggested.
Recall last January, when Jared Loughner shot Congresswoman Gabrielle Giffords (D-AZ) and killed several others, including a federal judge.  The government and mainstream media seemed to dismiss the idea that Sarah Palin’s targeting Giffords on a map of Congressional districts – with a gunsight — could have motivated Loughner.  The media made it seem as if it were impossible to determine whether Loughner was politically left or right.
But what would happen if someone shot a Republican?  Politicians and pundits would assert that the shooter, even if he’d never actually rallied or camped with the Occupy Movement, was “influenced” by its “dangerous rhetoric,” no matter how vague.  The Occupy Movement would be declared a terrorist group.
The Giffords shooting isn’t the only violence by right-wingers. Death threats were made, and bricks were thrown through the windows of, several Congressional supporters of Obamacare — little media or government attention was paid.  But imagine if Republicans received death threats?
A lesson to be drawn from all this is that, unequivocally, we have a right wing government that’s supported by right wing media. (Can we finally declare dead the myth of the liberal media?)  If you’re right wing, you can protest all you like, in any way you like – apparently, the only way for you to get arrested is if you actually gun down a Member of Congress.
But if you oppose the right wing government, even nonviolently, well, you’re dangerous.
BRIAN J. FOLEY is a law professor, comedian, and author of A New Financial You in 28 Days! A 37-Day Plan (Gegensatz Press 2011).

That's Laci the Dog

The complete story.