Ashcroft Targets U.S. Cybercrime

[Petro]

At 7:20 AM -0500 7/26/01, measl at mfn.org wrote:
>On Thu, 26 Jul 2001, Petro wrote:
>
>> 
>> >a great majority of an LEO's "education" time is spent instructing them on
>> >how to determine [decide] what is and is not constitutionally protected
>> >{speech, action}.  If they did not use this "ability", they would have to
>> >arrest *everyone*, and let the courts sort out the mess.
>> 
>> 	KNo, they would have to arrest everyone they witnessed (or
>knew) committed an act that violated the law. 
>
>You are confusing "civilians" and LEOs.  Only civilians are held to the
>personal knowledge standard.  Leos are held to profoundly lower probablity
>models.

	In order to arrest someone they have to have some sort of evidence that not only was a crime committed, but that the person they arrested has some reasonable probability of actually having committed that crime. 
	
	Maybe "know" is a little strong, "suspect" is probably a better way of putting it. 

>> 	Other than said 4th amendment issues, street cops *rarely* get
>> involved in constitutional issues.
>
>If you honestly believe this, then someone needs to beat the shit out of
>you with a clueclub.  By definition, LEOs are [daily] involved in all
>issues, from 1-ad to no-ad...

	Nonsense. In a LARGE percentage of the stuff a police officer deals with, there are no constitutional issues (other than the 4th). Robbery, murder, drunk driving, and the vast majority of traffic violations there aren't many constitutional issues involved in the laws the enforce, there may be some issues in *how* they enforce them (4th, 5th, and 6th) but little on what they enforce. 

	Rarely will you find a street cop, on his on initiative, making arrests in questionable areas (1st and 2nd). 

>> >And if you are at all familiar with the history of 2A case law, you
>> >will understand why the SCOTUS has been so meticulous in avoiding a
>> >ruling.  Of course, our friends [hrmmm... Never thought I'd say THAT] in
>> >Texas may well put an end to the charade soon.
>> 
>> 	Still waiting to hear about the Emerson case (and the 5th is in
>> New Orleans IIRC).

	Interesting "rumor" on this front. Don Kates spoke to a group of us on Thursday. He wrote an amicus brief for the Emerson case, and I asked him what if he'd heard anything about what was going on. According to him, rumor has it that one of the judges in that case is writing a long (150 pages was mentioned) decision. 

>> >> 	Well, no. See, the same constitution also grants Congress the 
>> >> power to regulate interstate trade, so as long as they don't "infringe"
>> >> on the right, they have a wide latitude to set standards etc. Or do they?
>> >> What are the limits of that particular clause? 
>> >
>> >Virtually the entire 2A ablating federal infrastructure is based on a
>> >truly scary "finding" that *any* firearm is the product of Intertate
>> >Commerce, regardless if it has been out of the state in which it was
>> 
>> 	Well, no. Only about 1/2 of the ablating. The other half is
>> Congresses power to tax. (At the federal level a good number of
>> firearms cases are on charges of failing to file and or pay the class
>> 2 or 3 weapons tax stamp).
>
>Please document this assertion.  1/2 is just plain *wrong*.  The tax
>issues are restrictive, but not ablating, i.e., if you can afford the tax,
>then, *in theory*, you have no problem.   I am talking about totally [2A]
>destructive laws, such as felons losing their RIGHT to ownership of
>firearms, civilians losing their RIGHT to own "assault
>weapons" (interesting note: it is still legal to collect missiles, but not
>certain types of rifles - the idiocy continues).

	Here's how it works (and there is a case going on right now about this). The government says "you have to have a tax stamp to own <x>". Then doesn't provide you any mechanism to actually *get* that stamp. 

	A portion (and I don't have the percentages, this comes from discussions with a local attorney active in Firearms Rights) of the firearms cases prosecuted at the federal level are prosecuted as tax violations. It is (allegedly) done this way to avoid second amendment issues. Since the Government has the constitutional power to tax, there is no problem. 

	It may not be 1/2 of all cases, but it's 1/2 of all justifications, and a signigificant number of cases. 

>
>
> > > > > >> 	Further
>more, what is *constitutionally* an infringement? > >
>> >Als at the risk of going Choation, what part of "Shall not be
>> >infringed" don't you understand?
>> 
>> 	I understand "shall not", it's the "infringed" I'm asking about. 
>> 
>> 	Is it *really* an infringement on your rights to require
>> firearms manufacturers to meet reasonable standards of functioning?
>
>Yes.  Period.

	Now who's being Choatian? 

>
>> 	Whether the free market can provide this or not is orthagonal to
>> the question.
>
>No it is not: it is directly on point.  There is NO constituional basis
>for the government to be able to regulate firearms.  Period.  Whether for
>"good", "bad", or indifferent.  There is a very clear constitutional
>mandate that any and all firearms be available to "the people" -
>period.  Any infringement, even if it is "for my own good" is
>unconstituional on it's face.

	Nonsense. 

	The second prevents *infringement* of the right to keep and bear arms. It doesn't prevent *regulation*. It doesn't prohibit the setting of standards, or any one of a number of piddly little regulations. 

	There is no mandate that any and all firearms be available. The second amendment was intended to insure that the citizens had the tools at their disposal to defend themselves and their land/town/city/state, and to provide a (somewhat final) check against a tyrannical government forming. 

	It is not necessarily "any and all" firearms, just firearms that would be useful for those things (which amounts effectively to almost all firearms). It would probably not be unconstitutional for the Federal Government to insist that all arms produced or imported meet reliability standards so that anything you buy *can* be used such. 

	Look at voting--it is perfectly legal and constitutional in most places to force someone to register before voting. To provide "is a real person" type ID.

>
> > > > >> Let's get even finer. > >> 
>> >> 	Do you *really* want your local beat cop to be making decisions 
>> >> on what does and doesn't fall into "protected speech" (or even whether 
>> >> there is a distinction there to be made?) 
>> >See above: it is by definition unavoidable.
>> 
>> 	There are a lot of things that in a society are unavoidable. The
>> question is whether those things should be encouraged or discouraged.
>> 
>> 	My contention is that encouraging a LEO to decide for himself
>> whether a law is constitutional or not is both wrong, and counter
>> productive.
>
>Again, returning to the oath of office taken by LEOs: their FIRST
>responsibility is to defend the CONSTITUTION.  Not to follow orders.  You
>want mindless droids enforcing laws, you get the kind of defacto police
>state we are living in now.  You *should* be looking for THINKING *humans*
>to be filling this position.

	Oh, I do want thinking humans in most positions. 

	Given a choice, I'd rather have thinking people in the Legislature, where they laws they write protect our rights. Right? (sorry).

	I also want police who are going to provide--as much as possible--for uniform enforcement of the laws. 

	There are times and places where an officer has to worry about whether his actions are going to violate someones rights--usually 4th and 5th (search and seizure, as well as self-incrimination) but it is my contention that this is only in *how* the laws are enforced, not *which* laws. 



>> >> It's happened in Chicago, and worse (see below). 
>> >> 
>> >> 	There are at least 3 states a law can be in vis-a-vis 
>> >> constitutionality: 
>> >> 	
>> >> 	(1) Adjudged unconstitutional.
>> >> 	(2) Adjudged constitutional.
>> >> 	(3) Not adjudged relative to it's constitutionality. 
>> >
>> >Irrelevent.  We are not discussing abstract legal theory, we are
>> >discussing factual implementation.
>> 
>> 	Factual implementation, outside of dot-coms, should descend from
>> theory.
>
>This is a nice academic pretence, but you are now dealing with The Real
>World (tm).  Things like the abstract "Reasonable Man" and "Common Good",
>and the thousands of other interjections you could assert here, simply do
>not apply.  Save this shit for Philosophy Club.

	I never claimed that what I am arguing *is* real world, only that it *should* be.