Tagged: Second Amendment
Law 40 Wawkeism
Sep 2023-Mar 2024
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Wawkeism
“China Blasts German Foreign Minister Over ‘Dictator Xi’ Jibe” (Hindustan Times, Sep 2023)
Why are woke politicians such bellicose hawks? I am coining the word wawk for them. But no matter how wawk is a hen, it can only peck small chicken.
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Taliban’s Heinous Surveillance Cams
“Taliban Plan Mass Surveillance Network in Afghanistan Using U.S. “Security Map,” China’s Huawei” (Crux, Sep 2023)
Cameras are law enforcement tools. Taliban, like other governments, will enforce legislation with the help of cameras. When human rights organizations express concerns about a mere tool with which laws will be enforced but these organizations in fact consider that the laws themselves do not abide by human rights and are the problem, it is idle talk as far as their speech focuses on a universal tool rather than specific and allegedly problematic laws. These organizations show themselves as mere anti-Taliban pecking hens. Tomorrow, if they can find nothing else, they will express concern that the Taliban have a police force. When you express concern that the government of a country uses the same police measures as other countries, you are pecking like a hen.
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The right to advocate and incite unlawful conduct
“Influencer ‘Meatball’ appears to be arrested while livestreaming looting rampage in Philadelphia” (New York Post, Sep 2023)
Streaming is not looting. The influencer has First Amendment rights. The First Amendment allows advocacy of unlawful conduct and the influencer’s arrest was unjustified.
She has a First Amendment right to incite riot or looting or any other unlawful act one can think of, provided it is not inciting (1) an imminent act (2) likely to occur: Brandenburg v. Ohio. As she was livestreaming on her blog, she was not even addressing the crowds around her, which is the only way in which her speech could have resulted in imminent unlawful action likely to occur. There is no incitement relationship between the looting and her gloating over it.
But even if she had livestreamed herself addressing the looters, “Well done, guys!,” this is not incitement either because congratulations cannot be incitement, as the former follow the act while the latter precedes it. Furthermore, even if she had said “Well done! There is another store next door,” the looting started before her speech, and if this speech (“go to another store after this one”) could be incitement in this context, then congratulations would be incitement as well, as a warmup, but congratulations cannot be incitement by definition. As one has a right to advocate wrongful conduct, one obviously has a right to cheer over wrongful conduct, even if this could be said to warm up wrongdoers.
To be sure, congratulations may also occur during, rather than after, the act, but during the act is still not before the act, and one needs precedence to talk about incitement. If there were incitement in the present case, it would be incitement to keep looting and not to start looting, but if it could be said that such a thing exists as incitement to continue doing something that people had already started doing, then there is obviously no possibility that cheering could be protected by the First Amendment as it is in a free country where advocacy of unlawful acts is protected.
Even if addressing looters in one store with such words as “Loot the next store too” has some formal characteristics of incitement, it is not incitement, here, because for speech to be incitement it must incite, again, an imminent act likely to occur, and if the imminent act was likely to occur already before the speech, the speech is not inciting, it is only cheering, rejoicing, reveling, gloating… Looting has material interests attached to it, people loot for goods and merchandises; this motive is self-sufficient without the need to add cheering as a likely cause of continuation. As an individual caught in the middle of a rampage, and liking it, some of the influencer’s words had a few characteristics of incitement but her speech lacked other characteristics and they are all needed together to characterize unlawful speech.
The arrest follows a typical pattern of police frustration, where, most of the wrongdoers escaping arrest, police turn against a person for her speech. This is not acceptable under a Constitution with First Amendment. Besides, the arrest psychologically relies on an outdated notion that people on the street have a legally enforceable duty to make citizen’s arrests (called hue and cry): when, in the past, such a duty existed, a person running with the crowd after, say, a thief on the street while cheering for the theft at the same time was obviously unlikely.
To sum up, “keep going,” in whatever form, is not incitement. The looters were not triggered by the person’s speech. Gloating over wrongful acts is protected speech, as a form of advocacy.
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While Western governments and media were stressing that some Russians tried to emigrate to escape the draft, and this was described as a blow to the Russian regime, they asked European populations to welcome and accommodate millions of Ukrainian refugees who were fleeing not only the war zone in their country but also their country itself. In other words, while these governments and media asked European people to fund the Ukrainian army, they also asked them to welcome Ukrainian men escaping military service for the country we were supposed to root for. Ukrainian refugees had a duty to take refuge in their own country in order to enlist in the Ukrainian army; their coming to Europe has been opportunistic, to the best of a rational agent’s understanding.
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On the “hypocrisy of the international community” regarding the treatment of civil casualties in Ukraine and Palestine. The parallel between Ukraine and Palestine would be more adequate if Western nations held Ukraine accountable for Russian civilians’ deaths, which they are not doing, whether it be because there are no Russian civilian casualties (but there are: see below) or for the same reason they keep largely silent on Palestinian casualties, namely because they support Ukraine’s goals as they support Israel’s ones. They only see civilian casualties when the “bad guys” are responsible.
Nota Bene. 1) Since the beginning of the war, there have been Ukrainian attacks on Russian territory. 2) There is a significant Russian minority in Ukraine. If you refuse to call them ethnic Russians, you will count them as Ukrainian casualties rather than Ukraine’s victims; how convenient.
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Aerial invasion and mass bombardments have become the number one modus operandi of technological war, and this type of warfare is highly indiscriminate and lethal to civilians and civilian infrastructures, especially when faced with guerrilla warfare. This, among other things, is the reason why Western nations are reluctant (to say the least) to condemn the bombardments on Gaza, because they know they would do the same, namely indiscriminate mass bombardments, in the same situation, regardless of international law. The existence of Palestinian enclaves (the relics of Palestinian territories) surrounded by Israeli territories allows this to happen, and the so-called “human shields” in these enclaves are all the present and living Palestinian Arabs.
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“[British] Police ‘treading a very fine line’ | Pro-Palestine protesters provided with leaflets on antisemitism” (GBNews, Nov 2023)
These leaflets are police provocation. Police target law-abiding citizens, namely pro-Palestine demonstrators, telling them through leaflets: “We are confident that you may be criminals.” Of course, this serves to dissuade people from joining the movement, as individuals who decide to join know they would be under police surveillance as suspected criminals. These leaflets are blatant discrimination.
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“Algerian footballer Youcef Atal convicted by French court over Gaza post” (Islam Channel, Jan 2024)
The fact it took less than three months for a French court to pronounce a condemnation (for a post dated Oct 12) is unusually swift for a so-called speech crime. So much so that a political spin may be suspected in the procedure, in relation with the current atrocities taking place in Palestine. Besides, if Youcef Atal has no criminal record, his sentence is unusually harsh, even taking into account the suspended part of prison time. (He probably doesn’t have a record; I only say “if” to avoid making believe I know his file personally.) The sentence is unusually harsh and the trial unusually swift, which hints at political pressure to speed it up and at a political sentence. This was a political trial, not a fair trial.
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Of Salutes and Flags
“Hundreds Perform Nazi Salute in Italy. (…) Banning the Nazi salute opens the Pandora’s box.” (FirstPost, Jan 2024)
The Pandora’s box has been open for decades in France and I confirm politics is a joke here.
Contrary to wearing uniforms and displaying paraphernalia, the salute per se is not an offense in the French books (as such it is forbidden in stadiums only) but the courts condemn it nevertheless as incitement to racial hatred. Thus, where the law actually forbids, say, the display of Nazi flags, the guilty may have to pay a 1,500€ fine, but where the law says nothing but courts nevertheless filled in the gap, then one may incur one year in prison and a 45,000€ fine. The legislator said nothing on the salute but the salute is punished as racial hatred, whose penalties are substantially heavier than for Nazi uniforms and objects that are statutorily punished by a much smaller fine, even though the obvious display of objects, if the salute is racial hatred, is racial hatred by the same token. So much so for consistency.
Finally, neither the law nor the courts limit the scope of the law to the Nazi and Italian Fascist parties; their phrasing targets organizations condemned by the Nuremberg and other trials in 1945 and other organizations condemned for crimes against humanity. Which means displaying the Israeli flag should be punished by French courts when the International Court of Justice (ICJ) rules that Israel has committed or is committing a genocide.
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Defamation and the Fair Trial Principle
(For those reading French, see Droit 39 “Diffamation et Droits de la défence.”)
a) Speech during a trial
b) Speech after a trial
a) In Trump’s defamation case, what has been condemned is basically Trump’s defense in his sexual offence trial. When you defend yourself in a trial, what in other circumstances might be called defamation is protected speech, because otherwise no one could defend themselves in a trial and no one could have a fair trial. Trump’s defense was protected from defamation suits in the context of his trial. The federal prosecutor talks about Trump’s tweets, interviews, after this or that audience, at this or that time, but she fails to tell us how the points she stresses are outside the protection that Trump’s speech, like any other accused person’s speech, was afforded for his defense. Think about it, now when one is brought to court and wants to dismiss their accuser’s allegations, that is, when one defends themselves, if they lose the trial, they will also lose a defamation trial because they dare defend themselves?
In this particular trial, protected speech was not limited to the precinct of the court, because both parties were public figures and the trial was in the mass media as much as in the court. Therefore, it is obvious that Trump had a right to express himself on the trial in the media, that is, he had a right to carry elements of his defense to the public via the media, which were dealing with the trial. Consequently, his speech was protected as defense speech in a trial, and at the very least, if it could not be protected because in some similar cases this had been previously ruled out, Trump may have been in good faith about his rights, about the extremely important rights of speech protection in a fair trial. This condemnation conveys the suggestion that the court treats protection of speech quite lightly, even to the point of ignoring it. What citizens will remember of this trial is that by defending oneself in a trial one may incur another trial for defamation.
Defending oneself in a trial, if it is libel, is protected libel. Trump lost a libel case after he was sued for commenting his own trial on the internet and in interviews. His comments were merely to tell what his defense is in the case, namely that his accuser is a liar. These people mean he was the only person on earth compelled to keep silent about his own trial? There can be no fair trial at all if your defense is liable to be treated as libel because a judicial trial is basically, for starters and some dubious characters here involved, reciprocal aspersions.
b) Besides, you can’t defame someone whose reputation is not at risk. Since the court said a party to a trial did not lie, this party is reputed to not be a liar, and when the accused keeps calling her a liar this cannot taint her reputation. The whole libel suit is flawed on principle. An American citizen has the right to keep claiming he is innocent (and his accuser is a liar) after he was found guilty by a court of law. You can’t sue for libel a man who claims his innocence. He claims his innocence but the accuser has been vindicated by the court, the court’s judgment therefore precludes that the person the court found guilty, when he keeps claiming his innocence, commits libel, because there can be no damage to the vindicated accuser’s reputation in such a claim.
Conclusion
When I say “I am innocent,” I am saying (unless I believe my accuser is making a mistake, a precision I would then be well-advised to articulate) that my accuser is lying. Someone wanted to object to me that, had Trump said he is innocent, he would not be sued for libel (quote: “He’s not being sued for claiming he’s innocent”), but, as this person claims, as Trump said his accuser is a liar he is being sued. I call everyone’s attention to the fact that had Trump said he is innocent, these very words (“I am innocent”) would accuse his accuser of lying, which my detractor says is deservedly sued for libel. His viewpoint is therefore inconsistent and unfamiliar with libel law.
Annex
“The Adult Survivors Act (ASA) is New York State legislation enacted in May 2022 which amends state law to allow alleged victims of sexual offenses for which the statute of limitations has lapsed to file civil suits for a one-year period, from November 24, 2022, to November 24, 2023.” (Wikipedia)
There are statutes of limitations for a reason, the bill is tailor-made and unconstitutional. The laws of the state have statutes of limitations but the lawmaker of the day, although acknowledging the relevance and goodness of said statutes, suddenly finds it expedient to cancel them for a short, limited period. Expediency considerations do not belong to the legislative power, lawmakers must make good laws and repeal bad laws. If statutes of limitations are good, they must leave them alone, if they are bad, they must repeal them. This temporary cancellation of statutes was an unconstitutional infringement on the judicial power, to which the laws of the state say that statutes of limitations are good legislation they must abide by. This legislative self-contradiction is constitutional insanity, that is, unconstitutional remissness.
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Corporate Speech and the First Amendment
There is no such thing as corporate speech, as speech is protected as a political right, that is, speech protection is the result of a connection to the electoral process and ballot. The right to vote is the condition for protected speech. The Supreme Court of the United States must reverse Citizens United v. Federal Election Commission and allow the legislator to regulate and limit so-called corporate speech.
Commercial speech is not fully protected (in contrast to hate speech for instance). The U.S. constitution does not want advertising to flood the “marketplace of ideas,” so the notion that websites have a constitutionally protected freedom to censor content for the sake of advertisers is fanciful. The lawyer we heard in Moody v. Netchoice talks of “users and advertisers,” but he really thinks “advertisers” only because advertisers are the platforms’ source of income, not users. Besides, users and advertisers shouldn’t be thrown in the same bag as far as the First Amendment is concerned, because commercial speech is protected from state regulation only partially, while the user is an agent on the marketplace of ideas and has the right to vote, that is, the right to determine the states and nation’s policies.
When you’re watching a political debate to make a choice on who you’re going to vote for, you’re in a speech environment. When the broadcast is cut for commercials, you’re leaving this environment. Next thing you know, they’ll tell you a football game is “speech.” The Founding Fathers did not fight tyranny for this.
Furthermore, private censorship by platforms is infliction of emotional distress, a tort. When a platform user makes a speech that the U.S. constitution protects and he is censored by the platform because of his speech, the platform is a platform for speech but acts as a private club, or a church, or a private property. However, the platform attracts users to expose them to commercial speech, advertisers being their source of income. The platform has a minimal duty to the user in the circumstance, which is that, as long as they abide by the law, users must be free on the platform. Anything else is ruthless exploitation by platforms exposing gagged masses to advertising and mind manipulation.
Thus, the reasoning is along two lines. 1) Private censorship by platforms might be liable to tort actions. 1a) It could be for invasive moderation, invasion of others’ rights. It would be absurd to claim a platform owner can shield a manic staff who harasses targeted users, like an ex-girlfriend, through flagging their posts manically. Not admitting that a platform can be sued for moderation is like saying they can staff their moderation offices with maniacs and that would be just as good. Absurd. 1b) Then, a notice on posts could well be libel, depending on the notice, but even a removal could have the same effect on one’s reputation. Even though platforms cannot be liable for users’ content (Section 230), they are liable for moderation. Moderation is speech and not all speech is protected; moderation can be unprotected speech where libel laws obtain. Section 230(2) provides “Good Samaritan protection” for bona fide moderation, it isn’t a blanket protection.
2) A law curbing platforms’ speech regardless of the First Amendment could pass the strict scrutiny test because of the so-called preferred position doctrine that applies in case of conflicts of rights. As currently the First Amendment cannot ensure for free, voting citizens the free flow of information and ideas against encroachments by platforms, a statute is needed. That statute will be upheld against the private companies’ claim that it violates their, the companies’ First Amendment right. Indeed, corporate speech has not as strong a status as citizens’ speech, all this ultimately deriving from the common law, where property is not a source of absolute discretionary power. Corporate speech is twofold: commercial and political. Admitting that corporations’ political speech is equally protected under current precedents (since Citizens United), that’s not the case of their commercial speech. This enables one to say that, according to the existing positive legislation, corporations have fewer First Amendment rights than individuals.
The envisioned statute can specify the kind of companies concerned, same as there exist statutes regarding “common carriers.” Some time ago, Justice Clarence Thomas floated the idea that internet platforms are common carriers. If this is what they are, the platforms will realize that a statute can impose duties on companies, on private property. Malls are a good example in the discussion. See Logan Valley Plaza (1968): “Logan dealt with the right to use private property as equivalent of public space”; “A business in a privately owned shopping center cannot prevent labor picketing in its surroundings.”
– Wouldn’t narrowing the scope of 230 potentially incentivize U.S. companies to register abroad? Of course internet companies have to comply with each country’s local laws and ICCPR but that concerns, to my knowledge, widely what should and must be censored – not what cannot be censored, as long as the terms are enforced without prejudice. (G. Muller)
These American companies operate in foreign countries where they are under obligation to censor content (see for instance the European DSA–Digital Services Act). Why would they register abroad if tomorrow these companies come under an obligation not to censor content in the U.S.? Registering abroad, they would face the same compulsions as if registering in the U.S., namely: to censor abroad, not to censor in the U.S.
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Firepower and the Second Amendment
Whether a legislator wants to ban machine guns or bump stocks (see Garland v. Cargill about the constitutionality of a Trump-era ban on bump stocks, currently examined by the U.S. Supreme Court), this is a vicious wish because enactment is unconstitutional. The Second Amendment means that the state cannot tamper with the gun function of guns. If you can ban bump stocks, nothing can stop you from banning anything except toy guns shooting soft rubber bullets while claiming the U.S. constitution has a Second Amendment. “Militias” that are “necessary to the security of a free State” need more than toy guns, they need the deadliest weapons on the market.
A militia being necessary to the security of a free State, it needs the deadliest weapons. We all know you don’t need a machine gun to go hunting, but this amendment wasn’t written for hunting. It was written for the security of a free State. We also know that whether a “well regulated militia” is something of the irretrievable past or not, it is not what the Court is asked to consider, because this is only the premise of the amendment, and it is the amendment’s prescription that is the standing and binding rule, namely that the state don’t infringe on the people’s right to bear arms for the security of a free State.
In other words, whether well regulated militias have been existing or not these last decades, it still obtains that the people’s right to bear arms is necessary for the security of a free State according to the constitution. You can’t deny it without hollowing out the amendment. The constitution is not concerned about what rifle or what firepower a hunter needs to shoot a deer, so that lawmakers could put a limit on the firepower legally available to citizens. The firepower constitutionally available to U.S. citizens is the firepower necessary to the security and existence of a free State, that is to say, the deadliest weapons available. All restrictions on this account are unconstitutional.
The Second Amendment forbids the state to consider that its standing army has made “well regulated militias” unnecessary to the security of a free State. But the right to bear arms is a people’s individual right, not a militia’s collective right. The authors of the amendment made this obvious and they made it so lest, through devious statutes, militias became annexes to the standing army and/or the states’ administrations (which is actually the case with the existing militia statutes and militias). The people’s right to bear arms entails the unrestricted freedom to achieve maximum firepower, because the security of a free State entails the ongoing validity of the constitution itself, that is, there can be no higher duty for a U.S. citizen than the security of a free State, and therefore, as this highest duty requires arms, lawmakers cannot impose limits on the firepower available to citizens.
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Removing Names from the Ballot
Trump has not been convicted for insurrection. Statutorily removing his name from the ballot for insurrection (January 6 events) amounted, therefore, to removing his name because “somebody” is saying Trump is an insurrectionist. This “somebody” could be my grandma or your grandpa or the current President of the United States, it doesn’t matter, this somebody is nobody. Coloradan authorities lacked a legal basis for their action. The only possible legal basis would have to be an actual conviction for insurrection, and not only an indictment because from indictment to conviction the indictee is presumed innocent (Coffin v. U.S., 1895). You cannot remove a person from the ballot for sedition when this person is presumed innocent of sedition. That the Colorado supreme court thought otherwise is baffling. Coloradan authorities misused their authority.
“Colorado should be able to bar oath-breaking insurrections from our ballot,” a Coloradan official declared after Trump v. Anderson. Well, you can do that, Colorado state, only you don’t have the power to say who is an insurrectionist and who is not, it has to be a court of law, with an actual conviction, which is the small detail missing in your operation. You are a government, not a court, and although you would like to convict Trump for insurrection, you don’t have this power and you removed from the ballot a person as innocent of insurrection as your own officials until proven guilty by a court. Colorado state intended to gather in its hands the powers both of an executive and the judiciary, and these people don’t even seem to realize how spiteful this is to fundamental principles.
Detractors of SCOTUS’s Trump v. Anderson (2024) are now considering a federal bill, which is the obvious option given the angle in the court’s decision. In my humble opinion, however, this was not so much a state versus union issue as an executive power versus judicial power, a checks and balances issue. To remove an “insurrectionist” from the ballot is not allowed to a government absent a judicial sentence about said person. As a commentator already put it, the bill smelled a lot like a bill of attainder, and by floating the idea this commentator made it clear that in his opinion the issue was not whether states (as opposed to the federal state) could take such a step but whether the authorities of a state and/or federal authorities could pass a bill targeting people who have not been convicted by a court and at most are indicted and still presumed innocent. And the answer to the latter question is an obvious no.
If the ballot removal act is a bill, it is a bill of attainder, forbidden by the attainder clause of the U.S. constitution. If it is an executive act, it lacks legal ground, which could only be an actual conviction for insurrection or a bill. An executive act depriving a citizen of his rights (the right to participate in an election) without legal ground is misuse of power. It seems these people have been taking the partisan Jan 6 house committee for some kind of court of law because they’re always talking of insurrection as if guilt has been proven by a court. However, a claim of insurrection is at this stage a mere fancy and cannot serve as legal ground, the Jan 6 committee notwithstanding.
The issue is people’s right to be candidates for elections when there is no charge of insurrection against them and all other conditions are met for their being candidates (age, nationality, and so on). This right is constitutionally protected. Neither a state nor a federal act can deprive an American citizen of this right on a mere fancy of insurrection. And for a claim of insurrection to serve as legal ground, guilt must be proven by a court of law, by a final conviction in a court. Indictment is to no avail in this regard because indictment is an executive act, and a legal ground could only be a judicial act by an independent court after a fair trial.
What, then, would such a federal statute aiming at removing Trump from the ballot be? Absent a conviction by a court of law, it would be a bill of attainder, forbidden by the attainder clause of the constitution. The bill would be both a judicial, individual judgment (“Trump is an insurrectionist”) and a legislative act (“Therefore he must be booted from the ballot”). Bills of attainder are unconstitutional because of the fundamental principle of separation of powers. To rule that “Trump shall be booted from the ballot” you need a prior judicial, individual judgment stating that “Trump is an insurrectionist.” This judgment is missing. To remove Trump from the ballot, a law could be passed without being attainder if it were so worded: “Any person indicted (not convicted yet) for insurrectionary acts shall not be accepted as candidate.” However, how could this be congruent with the presumption of innocence? The government could indict any person and these people would be deprived of their right to be candidates for elections without judgments by independent courts. That would be unconstitutional too, a misuse of power.
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Porn being legal in the U.S., a platform needs to moderate its content to bar porn. No one can object to such moderation, but then, using the argument, the platforms become willing witch hunters for the administration. The solution is to make porn illegal. Filmed pornography being based on meretricious contracts, its very making is illegal to begin with (see Law 22 “Pacta turpia cannot be speech”).
Platforms need to moderate content because porn is legal in the U.S., with the valid argument: “We need to moderate content because we’ve got to bar porn from flooding our platforms since it is not police job but ours.” Therefore, ban porn again. Porn is no more speech than a football game (and much more damaging). Stop the nonsense, the only reason they – mafia lawyers – say porn is speech is because in the U.S. speech is protected. How can filmed pornography be legal in states where prostitution is illegal (all states except Nevada), when the making of filmed pornography requires the same meretricious contracts as prostitution? Filmed pornography is filmed prostitution, and if there is such a thing as crime prevention the making of filmed pornography should be prevented in said states. You’ve got to be consistent.
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Some ethical remarks on police interrogation techniques
1) The right for a police officer to be deceptive during an interrogation
Ask yourself why it is not okay for a juvenile service officer to be deceptive, but it is for a police officer (these are interrogation regulations in the states, where the presence of a juvenile service officer is mandatory when juveniles are interrogated by police). There can be no good reason, for in the former case a moral commandment prevails while in the latter expediency does, but if it is a question where a moral commandment applies, expediency is not a legitimate concern. Criminals use deception to conceal their crimes. As the outcome of Alyssa Bustamante’s trial shows, the police officer’s occasional deception during the interrogation was not even decisive, since the whole interview was dismissed as evidence and yet Bustamante was convicted.
2) Sitting close to the suspect
In normal social interactions, especially in the U.S., one would not sit so close to a stranger as the detective to the suspect here (no need to specify the case) without an intention to intimidate or even assault the stranger. Why should a detective be allowed to intimidate a suspect? Truth requires dialectical skills and the state should not tolerate other, bullying, humiliating techniques. According to proxemics, imposing a spatial distance shorter than the socially accepted distance between two interacting strangers is indeed a form of humiliation and degradation.
3) Telling the suspect to look at you in the eyes
Telling someone to look at you in the eyes, as the detective does with the suspect (no need to specify), is outrageous in normal social interactions. It is a request that, between strangers, could easily start a so-called “trivial altercation” resulting in homicide (such trivial altercations between strangers are a cause of 37% of all homicides). In other words, for a detective to talk like this is a misuse of power.
Between two strangers, the reaction of a normally constituted man to an injunction to “look at me in the eyes when I’m talking to you” is some kind of “f*** you.” As this is not an option for a suspect interrogated by a police officer, the suspect is degraded. To be sure, between strangers, there is no such thing as asking their ID to someone and other such things either; however, police are entitled by law to make such requests, whereas to our knowledge there is no legal ground formally allowing a detective to carry out an interrogation by asking the suspect to look at him in the eyes. An interrogation can be carried out without the suspect being forced to look at people in the eyes if it is not his habit.
Law 19: There are no manufacturers of corpora delicti
EN-FR
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The Female Party
“Nearly two-thirds of all Democrats are women; here we see the much-discussed gender gap as less than half of the Republicans are female.” (Maisel, American Political Parties and Elections, 2016)
From same source: “In a Gallup poll conducted in June 2015, 31 percent [of Americans] identified themselves as Democrats, 25 percent as Republicans, and 41 percent as independents.”
Assuming the ratios for party membership stand also for people who “identify as” (as a matter of fact I see no reason, no explanatory factor why both ratios should be significantly different), we’ve got the highest proportion of males among “independents.” Independent, therefore, sounds a lot like males who cannot identify with party politics.
According to my calculations, the figures are (source says, in the first quote above, “nearly two third,” and “less than half” [meaning “not significantly less,” I believe, otherwise the source is saying nothing of quantitative value], so these figures are approximations [also because 31+25+41 doesn’t add up to 100 percent]):
20.6 percent of the American population are female Dem;
12.5 female Rep;
13.6 female independents;
10.3 male Dem;
12.5 male Rep;
27.3 male independents.
By order of magnitude: male independent (27.3) > female Dem (20.6) > female independent (13.6) > male & female Rep (12.5 twice) > male Dem (10.3).
There are twice as many Democratic women as Democratic men in the USA. There is an equal number of Republican men and women. And there are twice as many independent men as independent women. These imbalances, except in the case of the Republican party, are in dire need of an explanation. (The “gender gap” explains nothing, especially considering the absence of imbalance in one category.)
You can check my calculations are right in this quick way: 20.6=2(10.3) “there are twice as many Democratic women as Democratic men,” which is the same as “(Nearly) two-thirds of all Democrats are women,” since if you take 9, two thirds of 9 is 6, one third is 3, and 6=2(3).
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There are no manufacturers of corpora delicti
Abstract: The claim that gun manufacturers are treated differently than other manufacturers is unsubstantiated, in contract, consumer protection, and tort law. Arguments for gun control often overlook a general principle of law that may be encapsulated in the words “There are no manufacturers of corpora delicti.”
i
“New York Will Allow People to Sue Gun Manufacturers for Violence.” Cuomo was elected at the wrong election, in fact he wanted to be a judge. Now he is governor and he thinks he can tell courts what their decisions should be?
There already were trials against arms manufacturers, notably after Sandy Hook. But also there is the federal Protection of Lawful Commerce in Arms Act. Adoption of the act was obviously intended as a shield against the bad faith of Second Amendment opponents who want to hold arms manufacturers liable not for failing to deliver as stipulated but on the contrary for complying with business regulations and contract stipulations.
Example: “The Protection of Lawful Commerce in Arms Act shields the gun industry from nearly all civil liability for the dangers their products pose. With nearly every American industry and product, civil liability can be used as an important check on irresponsible manufacturers and sellers—but not the gun industry.” (Giffords Law Center: To prevent gun violence)
A gun manufacturer is liable if he sells a defective, hazardous gun, like any other manufacturer. What the opponents want is to make the manufacturers liable for weapons that function as stipulated in contracts and according to reasonable safety expectations, and under the rule of law there can be no such liability in this world.
Opponents talk of “dangerous products” as if the aim of a weapon were not, precisely, to be dangerous (in order to deter aggression and crime). The dangerous products of contract law are products which use is beneficial besides their dangerousness, so the category cannot as such apply to guns, which benefice lies in their very dangerousness, their purposeful dangerousness. Dangerous guns as to contract law are defective guns which use presents a danger to the user mainly; there is no liability regarding the gun’s normal danger to other people (to whom the gun is dangerous on purpose, in case they need to be deterred).
The trials that courts have examined and will continue to examine no matter what governor Cuomo says about it are cases of normal liability. But opponents want to create a new judicial category that cannot exist.
ii
A gun is a deterrent and as such it is dangerous. It is dangerous as such.
You need explosives to drill tunnels. Explosives are “dangerous products” as to tort law because you need them to drill tunnels and at the same time their use is dangerous. Therefore liability might be involved when the danger turns out to cause injury. That is to say, when you use explosives, normally you don’t cause injury, you only open a tunnel.
On the other hand, when you use a gun, basically you harm or kill someone and–mind you–that’s the expected outcome of the lawful use of the gun (self-defense). Generally speaking you don’t need to use the guns you own because owning them is a sufficient deterrent most of the times.
Everyone (except a few “law centers”) thus sees that guns are not the usual dangerous products of tort law, as the danger guns pose is the very aim of their lawful ownership and use.
Since opponents to the right to bear arms wanted to remain blind to such crystal-clear distinctions, the legislator felt compelled to pass the Protection of Lawful Commerce in Arms Act, in order to prevent complacent courts to call guns “dangerous” and hold manufacturers liable as if we were dealing with explosives needed to open tunnels, which would be a devious way to suppress the Second Amendment, emptying it out, without due constitutional amendment process.
iii
Just let me know if you have ever heard of a manufacturer held liable for damages caused by the unlawful use of his products. This is what opponents to the right to bear arms want for gun manufacturers.
They say: ‘’When products cause damages, manufacturers are liable. Guns kill people, so gun manufacturers must be held liable.’’ This is nonsense. It is when their products are used in a lawful expected way and yet causing damage, due to a defect, that manufacturers may be held liable. If on the other hand someone kills another one with say a screwdriver, the manufacturer cannot be held liable for the loss of one’s life.
With guns the lawful and the unlawful uses both have the same outcome: injury or death of people (leaving aside such uses as hunting and shooting sports). When people kill others with guns unlawfully, the manufacturer is not liable. And when someone kills another lawfully, in self-defense, then his gun worked as expected. There can be no trial unless someone needed to fire a gun and it did not work as expected.
iv
“I’ve heard of pharmaceutical companies being prosecuted for not making it hard enough to open their packages to keep the content from candy-seeking children.“
The suits my interlocutor talks about are normal liability cases, what one may expect, not necessarily what one may reasonably expect, it depends on the claims, but what one may expect within the boundaries of the rule of law. What the opponents to the right to bear arms are up to is quite different, it isn’t possible to give them reason without violating the consistency of legal principles.
Manufacturers, like the pharmaceutical companies in the example, are expected to deliver reasonably safe products–gun manufacturers too and guns have safety locks.
In the same way that you cannot sue (win a suit against) a pharmaceutical company when someone uses their medicines to deliberately poison another person to death, you cannot sue gun manufacturers for the unlawful shooting of innocent people. There’s no exception to the principle that I know or can think of.
A product turned tool of crime, a part of corpus delicti, shifts to quite another sphere. There is no “manufacturer” of that “new” object. There are no manufacturers of corpora delicti because crime is in criminal intention (mens rea) and there is nothing a manufacturer could do to prevent people from having criminal intentions. A manufacturer can improve the technicalities of his products as well as consumer information about the products’ potential hazards so that their use is as safe as possible, but his action cannot reach further than his products, that is, he has no control over people’s lives. (The impact of marketing and advertising is an entirely different issue and here we do not examine the prospects of suing manufacturers for their advertisements, only the prospects of suing them for “violence” as in the New York statute.)
Reminder: “The five elements of a crime. (1) Actus reus–The guilty act (2) Mens rea–The guilty mind (3) Concurrence–The coexistence of (i) an act in violation of the law and (ii) a culpable mental state (4) Causation–The concurrence of mind and act must produce (5) Harm.”
That leaves open tort litigation against gun manufacturers if the shooter is declared insane and criminally irresponsible. Perhaps, because then the shooting is not a crime. But then again, a manufacturer has no influence over people’s state of mind; here insanity cannot be distinguished from criminal intent. What could be argued is that gun manufacturers have an influence over the whole nation’s state of mind, making it violent, but this kind of reasoning cannot be used in judicial proceedings, which bear on individual cases, and may be food for the legislator’s thought qua legislator subject to the Constitution. (If such reasoning could be used in a court of law, that would excuse all violent criminals.)
v
One cannot sue (win a suit against) manufacturers for tort damages when a crime is committed with one of their products. This is what opponents to the right to bear arms push for. They push for their reform not by saying they want all manufacturers to be suable for damages when crimes are committed with their products but by saying they want the general law of torts applied to gun manufacturers as it is to any other manufacturer, but the truth is that gun manufacturers are already within the general law and if we were to give reason to the opponents to the right to bear arms we would make gun manufacturers liable in situations where the other manufacturers are not.
As to someone’s claim that “you can sue anyone for tort damages,” the opponents themselves are not so sure, as shown in the recent news “New York Will Allow People to Sue Gun Manufacturers for Violence.” A bill–or whatever state or local act–is needed in their eyes.
Another bill is the federal Protection of Lawful Commerce in Arms Act (2005) “that protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products.” There was no need of such a bill because the described protection is a necessary consequence of foundational notions of law, is a general unwritten principle which we encapsulate in the words “There are no manufacturers of corpora delicti.”
As gun manufacturers cannot be held responsible in situations where other manufacturers are not without violating the general principle that there are no manufacturers of corpora delicti, no legislative body or court is granted the constitutional power to make such a move. If guns are to be treated in the overriding fashion that opponents want, it has to be through constitutional amendment, probably not only by removal of the Second Amendment but also by allowing expressly tort suits against manufacturers for the unlawful use of their products, or by forbidding individuals to carry guns.
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Ladies and gentlemen, the sartorially correct Bishop of Stockholm. Complete with cassock, mitre and crosier.
“Eva Brunne is the first openly lesbian bishop of a mainstream church in the world and the first bishop of the Church of Sweden to be in a registered same-sex partnership.” (Wikipedia) (2009-2019)
ii
Archbishop Antje Jackelén, primate of the Church of Sweden. “The first female archbishop,” since 2014 strongly dedicated to apparel tradition.
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Taney
They blame Chief Justice Taney (Scott v. Sandford, 1857) for “seeing slavery in the Constitution” but if slavery was not in the Constitution, why did slaveowners and the Southern States ratify it? You had to convince them that slavery was in the Constitution to obtain their ratification, and if you turned out to be convincing then it probably is because it is true that slavery was in the Constitution, even if you did not believe it yourself and thought you were lying to slaveowners.
I disagree with late (conservative failed nominee to the Supreme Court) Robert Bork: A constitutional amendment was indeed necessary to end slavery in the United States, and Taney was a correct interpret of the Constitution.
Picture: Taney statue removed from Maryland state house (Aug 2017).
(For a discussion of Bork’s views, see Law 8.)
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Charged For
(Name a Crime, not a Freedom)
Former highschool student charged for putting Hitler quote in yearbook. (New York Post, July 13, 2021)
New York Post‘s headline is sheer disinformation, of which their own article gives ample evidence. The kid is charged for “computer crimes for accessing a database used by students to alter two classmates’ entries.”
The so-called “Hitler quote” are the words “It is a quite special secret pleasure how the people around us fail to realize what is really happening to them,” which the kid “incorrectly attributed” to George Floyd. To detect that these were actually Hitler’s words requires a level of specialization far beyond the average, and if, to boot, as the paper seems to say, the kid did not know they were Hitler’s words (obviously, if the kid “incorrectly” attributed the words to George Floyd, it means he did not change the author’s name on purpose, knowingly), you may not talk of a Hitler quote at all.
The second quote is thus described by NYP: “Tryon, 18, also reportedly inserted a quote in a second student’s yearbook entry referencing drugs and Boston bomber Dzhokhar Tsarnaev, who was convicted in the April 2013 attack that killed three people and wounded more than 260 others.” There’s not a jot of information in this, it could mean anything, the quote could either be apology of terrorism, or indictment of terrorism, or something entirely different for all we know. Obviously, NYP doesn’t care what the content of this quote is, they had their headline with the “Hitler quote” and that was good enough for these muckrakers.
But, again, the case is not at all about a Hitler quote. The headline should not read “charged for putting Hitler quote in yearbook” because under the rule of law people are charged for crimes and a Hitler quote, even in a yearbook, is not a crime.
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Libel Law and the Political Cartel 2
Trust in US mainstream media hits rock bottom. (Reclaim the Net)
This is why Justices Thomas and Gorsuch’s view that New York Times Co. v. Sullivan should be reversed must not be heeded to. Libel law must remain favorable to the messenger when the message deals with public officials and public figures. Smear campaigns by disreputable media do little harm. On the other hand, giving public officials (read, mainly, politicians) a convenient weapon in libel law woud Canadize U.S.A. (see Law 18: Libel Law and Political Cartel). I go as far as saying that current U.S. libel law is what has made U.S. mainstream media fall into general disrepute, as the media felt unbound and that has been their fall because they lack integrity.
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Taxes and Irresponsible Police
‘’Defund the police’’ is the logical sequel to Town of Castle Rock v. Gonzales (SCOTUS 2005). No one needs (as no one should rely on) irresponsible police. To pay taxes for this is madness plain and simple.
‘’Castle Rock v. Gonzales, 545 U.S. 748 (2005), is a United States Supreme Court case in which the Court ruled, 7–2, that a town and its police department could not be sued under 42 U.S.C. § 1983 for failing to enforce a restraining order, which had led to the murder of a woman’s three children by her estranged husband.’’ (Wikipedia)
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FR
« On n’est pas en Turquie »
Rappelez-vous. Macron réfute toute dérive autoritaire : « On n’est pas en Turquie. » (Huffington Post, 4/12/20)
Or quel pays figure avec la Turquie parmi les États « sous surveillance » (under watch) en matière de censure internet ? La France, seul État occidental dans cette catégorie avec l’Australie (et la Norvège mais seulement pour les métadonnées transnationales : « only the metadata on traffic that crosses Norwegian borders »). (Wikipédia : Internet Censorship)
A noter que parmi les « ennemis d’internet », donc la catégorie encore en-dessous dans cette classification de Reporters sans frontières, à côté des dictatures auxquelles on s’attend (Chine…), on trouve les États-Unis et le Royaume-Uni. Depuis Trump, les États-Unis ne cherchent même pas à garantir un principe de « neutralité du Net », donc rien d’étonnant puisque les acteurs privés font alors ce qu’ils veulent.
En résumé, 4 États occidentaux censurent internet : États-Unis (libre censure privée), Royaume-Uni, Australie et France. Parmi ces quatre, seul un, la France, est membre de l’Union européenne (UE).
Si la Turquie n’a pas le droit d’entrer dans l’UE, je ne vois pas ce que la France y fait.
ii
On n’est pas en Turquie, on est en Franquie.
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Des mots inacceptables
Rappelez-vous. Macron : « On ne peut pas parler de violences policières dans un Etat de droit. » (« Ne parlez pas de “répression” ou de “violences policières”, ces mots sont inacceptables dans un Etat de droit. »)
Non, c’est en dictature qu’on ne peut pas parler de violences policières.





