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Clayton Cramer's BLOG |
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Clayton's commentary on news and events of the day. Broadly speaking, I'm a conservative with libertarian sympathies (getting more conservative as my children get older).
 Never forget! I ran for Idaho state senate in 2008--didn't win I've written a number of history books, as well as scholarly and popular articles, (see my web page).
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Friday, April 08, 2005
Going To Tucson This Weekend Dave Hardy is doing a documentary about the Second Amendment, and wanted me to come down and be a talking head in it the Bellesiles scandal, so I'll be back Sunday afternoon, and it will be very quiet while I am gone. Labels: gun rights Ways To Give Yourself a Poor Reputation For Customer Service Having the police arrest a customer who tries to pay you in cash: PUT YOURSELF in Mike Bolesta's place. On the morning of Feb. 20, he buys a new radio-CD player for his 17-year-old son Christopher's car. He pays the $114 installation charge with 57 crisp new $2 bills, which, when last observed, were still considered legitimate currency in the United States proper. The $2 bills are Bolesta's idea of payment, and his little comic protest, too.Groan. I know that $2 bills aren't very common, but who is going to pass counterfeit bills in such an ostentatious way? It Sounds Like The Start of a Bad 1960s Sci-Fi Movie Crack in the World (1965), as I recall. It was truly awful, even by the standards of the time, so this news story caught my attention: Scientists said this week they had drilled into the lower section of Earth's crust for the first time and were poised to break through to the mantle in coming years.I do hope the environmentalists don't hear about this. Since most of them seem to have a Crack in the World level of science training, I expect them to get in a rather serious tizzy in no time at all. Thursday, April 07, 2005
Russian Roulette Disturbing but unsurprising article: RALEIGH, N.C. -- A new study suggests 50 percent of sexually active young people will contract a sexually transmitted disease by the time they're 25.Look, I know that I sound like your parents when I say this, but there are some absolutely appalling STDs out there--and women have a lot more to lose on this. Some HPV strains cause cervical cancer. If you are lucky, your doctor will catch it because of a routine Pap smear, and you may not need a hysterectomy. If you are less lucky, you will get a major surgery out of it, along with closing the prospect of having children (and yes, there are a shocking number of women in their early 20s for whom trendy promiscuity in their early teens has led to this result). If you are really unlucky, you will die of cervical cancer--4600 cervical cancer deaths in the U.S. in 2000. Even the non-lethal STDs, like herpes, will be long-term health problems. The more sexual partners you have--and the more sexual partners your partners have--the more risk you are you taking. Think about this very carefully, and ask yourself if the risk you are taking is worth the hazard that you are presenting to yourself and future sexual partners. Condoms are, at best, an improvement on a risky situation. Even assuming that condoms work reliably as claimed (and California now requires condom boxes to warn that they may not work against HPV), condoms are not a perfect solution. Condoms break. Condoms do not adequately cover all infected areas. As I have pointed out in the past, the spread of STDs is exponential based on the number of sexual partners. In a given population with one infected person, doubling the rate of change of sexual partners increases the number of infected persons by eight. Half the number of different sexual partners you have in a year, and you reduce your risk of getting an STD by seven-eighths. Quarter the number of sexual partners and you reduce your risk by fifteen-sixteenths. A surprisingly small amount of self-control produces enormous benefits. I should mention that among the factors that seem to be contributing to high risk of cervical cancer are: Early age at first sexual intercourse.Unfortunately, a lot of liberals and libertarians think that discouraging minors from being sexually promiscuous is some sort of conspiracy to make junior high less fun. Look at the risk factors, and ask yourself if it is responsible to tell junior high age kids that being sexual active is just fine. Good News: I Have An Agent! A literary agent who specializes in history has taken on my book Armed America, and believes that there is a chance of getting one of the trade publishers interested. The Bellesiles Scandal Professor Lindgren reports on new evidence of the lengths to which the academic community was prepared to go to cover up the Bellesiles scandal: As I told the group, Ana Marie Cox (Wonkette) was the reporter assigned by the Chronicle of Higher Education to do an in-depth story on Bellesiles in late August/early September 2001. In 2001, the Chronicle was vigorously defending Bellesiles and was willing to print as fact ridiculous stories that he told them. Much later a Chronicle reporter privately apologized to me, and said that they were taken in and had gotten the story all wrong.This doesn't surprise me. UPDATE: Professor Volokh reports that the Chronicle of Higher Education has put all their coverage (including published letters) about the Arming America affair here, so that readers can judge for themselves how fair they were. Wednesday, April 06, 2005
Did You Read The Stephen King Short Story, "Trucks"? Where the trucks come to life, and attempt to enslave mankind? They are powerful--but they don't have hands, so they can't refuel themselves--they can only threaten us humans to do their bidding. It was rather like that this evening as I was waiting in the Shopko parking lot to pick up my son after work. We are having a warm and powerful evening wind--those of you from Southern California was call it a Santa Ana--and shopping carts were seemingly possessed. The wind would get them moving just enough for dips and slopes to get them moving at considerable velocities. Sometimes the combination of wind and slope produced interesting vector arithmetic operations, as the wind pushed NNW and the slope directed the cart NE, with a net result close to N. Eventually, one of the possessed shopping carts decided that it wanted to ding someone's empty car, so I jumped out of the Corvette and brought the little troublemaker under control. Pirates: They Aren't Just History My Civilian Gun Self-Defense Blog is limited to the United States, which is a shame, with incidents like this. Thanks to Vandal With a Handle for the link. War Is An Ugly Business There are things uglier, of course, as John Stuart Mill observed: War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself.Still, it is hard not to be moved to sorrow by news stories like this, which Reuters unaccountably puts in the "odd" category, but unfortunately, are not odd at all: SEELOW HEIGHTS, Germany (Reuters) - The remains of thousands of Soviet and German soldiers killed in a climactic World War II battle outside Berlin are still being unearthed and identified 60 years after the fighting ended.A friend grew up in Texas. One of her acquaintances had a fiancee who had gone off to fight in World War II. He was a pilot, and went missing in action over the Pacific. Years passed, and she had made the decision to marry. He was obviously dead, and not coming back. A week before the wedding, she had a dream in which he was on a deserted island, calling her name. She ended up in a mental hospital--and stayed there. Uncertainty is a terrible thing. Privacy Advocates Run Amok Google has acquired Keyhole, and the result is that along with traditional maps, you can also get satellite pictures as well: The satellite maps could unnerve some people, even as the technology impresses others. That's because the Keyhole technology is designed to provide close-up perspective of specific addresses.More importantly, the satellite photos and maps aren't all that accurate. I entered my home address into http://maps.google.com/, and I can safely say that a precision guided weapon relying upon these maps or pictures would only rattle my windows. I suppose that there are people whose security might be damaged by these photographs--you know, people with estates large enough that these pictures provide enough detail to show where the guard houses, minefields, machine gun nests, etc. are located. But why should we arrange the world for the benefit of limousine liberals? Oh yeah, this is a link to my new parcel of land. New Product Announcement At least, I am starting to advertise the new product on astromart.com. For those of you who aren't amateur astronomers, let me explain what a "toe saver" is. Most equatorial telescope mounts (which allow you to track astronomical objects as they slowly move across the night sky) are a style known as a "German Equatorial Mount." These have two axes: one points at the celestial pole, and is known as the polar axis. To track objects across the sky, the mount rotates on the polar axis at one revolution per day. (Is it running? Or not? Be patient, and you will eventually see it move.) The other axis is at a right angle, and is known as the declination axis. (Here's an example, in case my text isn't painting you a picture.) At one end of the declination axis is the telescope; at the other end is a counterweight. The counterweight needs to be adjustable as to location on the axis, so they are usually held in place by set screw or thumbscrew. What happens if, as the shaft cools, the screw releases? The counterweight slides down the shaft, and perhaps lands on your toe. Hence "toe saver." But the real damage isn't to your toe. It is that now your telescope has nothing to counterbalance it. Like a runaway locomotive, or a government with only one branch of government, but much more quickly, it lurches out of control, perhaps smashing itself against the mount. Your toe will heal; the telescope will not. Anyway, "toe saver" screws have become common on serious (and even pretty unserious) German equatorial mounts in the last few years. If you have to disassemble your mount with any frequency, such as when moving it, you need to unscrew the toe saver to remove the counterweight, and reinstall it when you are done. This is a mildly annoying task, since it can take 10-20 seconds to do, and it is very easy to lose the toe saver in the dark, especially because you are almost certainly going to drop it in grass. What I am now selling is a quick release toe saver. It takes the place of the existing toe saver for Losmandy mounts, but uses a quick release pin that comes out in less than a second. The pin also has a lanyard loop on it, so that you can tie it to the mount, and be sure that it won't get lost. Now, if only the marketplace decides to reward my brillance with some orders.... UPDATE: Well, three hours elapsed, and I have enough orders that I have to order up more parts tomorrow. (Okay, I didn't build a huge inventory.) Labels: telescopes Amusing Stuff at James Lileks's Web Site If you have read his books Interior Desecrations or his Gallery of Regrettable Food, and enjoyed them, you will probably enjoy his witty comments about the money of other countries, and bizarre engravings from stock certificates that he calls the Bureau of Corporate Allegory. Here's a sample of the stuff under stock certificates.
Tuesday, April 05, 2005
The Frustrations of Manufacturing I have been having a heck of a time getting some of the parts manufactured that I need for ScopeRoller. None of them are particularly complex parts--there's just a shortage of machinists in the U.S. interesting making these relatively simple parts, and even if I spent the money for a lathe, I'm not sure that I would do a terribly good job. (Buying a lathe doesn't make you a machinist anymore than buying a piano makes you a pianist.) I have three new products at this point, waiting for parts to be delivered. One set for a new product is on its way, and should arrive Wednesday or Thursday; another set, to resolve the fit problems with the ScopeRoller 11, should be hear by Monday. It just takes bloody forever for materials to reach machinists, and then for the machined parts to reach me. Product Reviews I've written reviews at astromart.com of the Russell Optics 85mm Super-Plossl eyepiece, and a comparison of the CI-700 and G-11 tripods. Labels: telescopes WalMart, The Coming War With China, & Currency Manipulation I am not particularly tolerant of protectionism, but China's manipulation of exchange rates is playing a major part in creating very serious problems. Yes, I know that much of the anti-WalMart fever is labor union efforts to beat up on one of the big union busters, but part of why WalMart is so big is that it is largely Red China's salesclerk. China's fixed exchange rate--when most other nations having floating exchange rates--is part of the problem. I am pleased to see that along with the usual protectionist nonsense, there is also the China Currency Coalition: The China Currency Coalition is an alliance of industry, agriculture, and worker organizations whose mission is to support U.S. manufacturing by seeking an end to Chinese currency manipulation."The problems that Chinese currency manipulation are creating are a lot more serious than WalMart's destruction of small the medium businesses. That's unfortunate, but perhaps inevitable. It is a lot more serious than the part that this plays in creating severe trade deficit problems for the United States (and a lot of other countries). The big problem is that this peculiar exchange rate situation is sucking enormous resources into a country that stands a good chance of going to war with us over Taiwan one of these days, either by accident, or because Taiwan becomes a political football over which a future Chinese government can't afford to lose face. I wish that it was possible to get the Democrats or Republicans to take this seriously, but the Democratic Party (at least the Clinton/Gore branch) was pretty well acquired in the 1996 election, and the Republican Party is a bit too concerned about keeping the large American firms that are doing business with China happy. In the long run, I don't worry about the Islamofascists. We will beat them, because fundamentally, they can't build anything, and they can't acquire enough money to matter. I do worry about the conflict that is coming with China. No Duty To Retreat: Florida The Florida legislature has passed a bill, and Governor Bush says that he will sign it, that removes the duty to retreat: It essentially extends a right Floridians already have in their home or car, saying that there's no need to retreat before fighting back. Generally people attacked in their homes don't have to back off. If they're attacked in the street, though, they're supposed to do what they can to avoid escalating the situation, and can only use deadly force after they've tried to retreat.While it bothers me to think that there are people who might use this as an excuse to kill an attacker when there might be a way to defuse the situation, it bothers me more that the existing law essentially put a thug and his victim on an equal footing. Let me emphasize: if someone starts harassing you, physically attacking you short of serious injury, threatening you, calling you names, or otherwise being a pest, you are just about always better off leaving the area. Even if you are completely justified in drawing a weapon and using it, you are going to spend a lot of time talking to police, lawyers, dealing with a civil suit by your attacker or next of kin. It is going to be expensive. It is just plain good sense to avoid all of this if there is any way that you can. But it is also a good thing for the society if thugs realize that the law is biased in favor of the non-aggressive--and aggressive sorts are not on an equal footing with decent people. Oh yes, the opponents of the proposed change had this to say: Opponents say it will make Florida like the "Wild, Wild West." The bill would take effect Oct. 1.Odd. They said the same thing in 1987, when Florida passed another law that took effect on October 1 of that year. They were wrong. Non-discretionary concealed carry turned out to do nothing of the sort. Patriot Act Renewal The Bush Administration is asking for the temporary provisions of the Patriot Act to be made permanent. I agree with FBI Director Mueller's remarks in part: Mueller said sections of the law that allow intelligence and law enforcement agencies to share information are especially important.While I wouldn't argue against renewing these provisions for another five year term--they seem pretty reasonable, considering the risks we are confronting right now--I rather like the idea that Congress will have to actively debate the merits of these provisions periodically. It can't hurt any, and time spent on renewing such laws is time that they can't spend doing something else dangerous. This MSNBC article is certainly better than many that I have seen in actually telling us what some of these provisions are--and aren't: Among the controversial provisions is a section permitting secret warrants for “books, records, papers, documents and other items” from businesses, hospitals and other organizations.The "sneak and peek" search warrants have been a big source of upset by the ACLU, and this is an area where I have no sympathy for their position: The Justice Department said federal prosecutors have asked for 155 such warrants since 2001.If "sneak and peek" warrants are such a bad idea for terrorists, what makes them acceptable for organized crime and drug cases? And what, exactly, is the objection to "sneak and peek" in any case? The Fourth Amendment says: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.These warrants still require a judge's approval; they still require "probable cause, supported by Oath or affirmation" a detailed description of where is to be searched, and for what. You can't even claim that "sneak and peak" intimidates anyone, because you aren't supposed to even know about these searches until later. If there is a problem with a warrant, its stealthiness isn't the problem. One part of Mueller's request that leaves me uncomfortable because I don't know what he is talking about is expanded "administrative subpoena powers": He also asked Congress to expand the FBI’s administrative subpoena powers, which allow the bureau to obtain records without approval or a judge or grand jury.What are these "administrative subpoena powers" and why don't they require a judge's approval? James Lileks, As Usual, Funny & Thought-Provoking Ann Coulter is often quite funny, sometimes very thought-provoking, but not often enough do the two events happen in the same column. Unfortunately, what makes her columns funny is that she is a little too willing to engage in what I consider insufficiently fair and balanced examination of why liberals believe the things that they do. James Lileks, on the other hand, very often manages to combine them well. His discussion of a recent grim documentary about drug abuse points out that it doesn't exactly break any new ground in what we learn: Crack, when smoked, is loud; it sounds like someone sucking a bushel of burning leaves through a colander.Lileks does point out that the libertarian panacea of legalization, while it might solve some problems, isn't going to fix others: In any case, you wouldn’t know that the drugs are illegal; everyone can find them if they want them. The only barrier is money, and since they’re drug addicts they cannot hold a job. Hence the thefts and scams and pathetic assignations in filthy apartments. This wouldn’t change under legalization, unless we hand out vouchers for crack.And this is one of my biggest concerns about widespread legalization of marijuana. Perhaps it is just a coincidence, but I am always impressed how many people I have known over the years who have allowed marijuana to become the central focus of their lives. It is bad enough that alcohol has similar effects; adding one more drug to the stew seems likely to aggravate what is already a serious problem with alcohol. Lileks, I see, shares my view of Michael Savage, radio talk show host. While discussing how thoughtful and responsible conservative radio talk show hosts have been about the Terri Schiavo matter, Lileks contrasts that behavior with Michael Savage: I hear Michael Savage is encouraging something different, but I would rather listen to someone play a large flatulent bullfrog like a bagpipe than listen to him rant on the matter. More On The Minuteman Project Drudge Report has linked to a couple of news stories. This AP story says that the Minutemen are accidentally tripping Border Patrol sensors, making the job of the Border Patrol more difficult: Over the past few days, they have set off sensors, forcing agents to respond to false alarms, said Supervisory Border Patrol Agent Jose Maheda.This other news story, from the Los Angeles Times (well-known right wingers, of course) tells a more complete version of the story, and suggests that they are accomplishing their mission at two different levels, getting publicity for their concerns, and demonstrating that it is possible to reduce illegal immigration: The founder of the Minuteman Project, designed to put volunteers on the southeastern Arizona border to deter illegal immigrants, had attracted more than 200 journalists from around the world.Yup. There's no question that putting a block in one place will tend to move the illegal immigrants to either other locations, or other dates. But putting enough people along the entire border would substantially reduce the total number entering the U.S. There are clear advantages to doing this. It would make it more difficult for terrorists to enter the U.S. secretly. Not impossible, of course, but putting any significant obstacle is better than the current situation--no obstacle at all. It would reduce the number of illegal immigrants who get abandoned by a smuggler to die of thirst or hunger. The poorest Americans would not be competing for jobs with illegal immigrants. If the Democratic Party actually cared about poor people, they would be jumping on this bandwagon. If you want to improve the conditions of minimum wage workers, one way of doing it is to reduce this influx of laborers with limited English, and limited job skills. Closing the pressure release valve for Mexico (and a few other countries) would force the largely corrupt Mexican political establishment to confront the severe structural economic problems that send so many of their workers north. I'm going to be in Tucson this weekend for filming part of a documentary. Perhaps, if I have time, I'll try and drop in on the situation to see how it looks. UPDATE: Nice article in the Arizona Republic: Say what you want about the Minuteman movement. The Gomery Commission In case you haven't been following it (or worse, you are in Canada, and aren't allowed to follow it), Captain's Quarters has been blogging about the news story that Canadian news media are prohibited from covering in detail: evidence of massive corruption in the use of public funds to fund the Liberal Party. Now, I guess that I shouldn't be surprised by any of this. There's a great saying by Thomas Sowell, "When legislatures control buying and selling, the first thing to be bought and sold will be legislators." Canada, with a greater involvement of the government in the economy than the U.S., unsurprisingly has even more of a problem with corrupt deals involving the government, political parties, and private firms. What makes this all so interesting is that in the British tradition, the government has prohibited any media coverage of the testimony before the Gomery Commission about this corruption. Now, the ostensible reason is to make sure that those who are going to court will get a fair trial. I must confess that when I look at the media circus around the Scott Peterson trial, around the O.J. Simpson trial, around the Kobe Bryant trial, I am sympathetic to this argument. In this case, it doesn't take much of a cynical view of matters to wonder if the publication ban might have a bit to do with avoiding embarrassment to the Liberal Party--a bunch that, if they were competent fascists, would be quite worrisome. UDPATE: And here's some more stuff, suggesting that there may be organized crime involvement with the Liberal Party as well. Well, that explains the enthusiasm for gun control. UPDATE 2: I'm told that the quote about the buying and selling of legislators may be much older than Thomas Sowell. I do not find that surprising; the problem of the corruption of humans by power goes back a long ways. Hired Guns Again I've blogged in the past about how the Joyce Foundation had done something quite astonishing--turned the Chicago-Kent Law Review into an infomercial. They paid honoraria to a number of academics to write articles in support of restrictive gun control for a "special edition" of this academic journal, refused to consider papers from an alternative point of view, and then paid to have copies of their infomercial distributed. David Hardy is reporting that they have done it again, with Fordham University Law Review: Just saw a note that the Fordham Univ. Law Review is coming out with a symposium issue on the Second Amendment -- strangely, without a single recognizable pro-individual rights author (and almost without recognizable authors at all).Now, it doesn't particularly surprise me, or even bother me, that partisan organizations are funding political advocacy actions. It is a little strange for authors of scholarly journal articles to get paid to write those articles. I can't claim to be bothered by it--indeed, I would love for this to become more common! What does bother me is when a scholarly journal abandons all pretense of objectivity, and becomes effectively an advertisement for one point of view, excluding all others. This is bad scholarship. A more pragmatic objection that I have is that gun control advocates have enormous money available to them (since they represent the multimillionaire class), while there is precious little money available to support the gun rights side of the debate. Yes, I am able to get travel expenses paid by NRA for some of my research trips, but I will certainly never be able to do my research full-time--while groups like the Joyce Foundation spend hundreds of thousands of dollars a year making sure that people who support their position get to spend full-time at it. It is a shame that there seem to be no rich conservatives. There must be some, somewhere. I know lots of multimillionaires, and overwhelmingly, they are to the left of John Kerry. UPDATE: Saul Cornell claims that Hardy is being sloppy about the facts on this. Hmmm. Considering the role that the Joyce Foundation has played in paying for one-sided scholarship in the past, I can see why Hardy is inclined to be skeptical of their sudden interest in the pursuit of truth. Labels: gun rights My embarrassing Third Cousin Jane I have this third cousin who sometimes does embarrassing things in public (with antiaircraft guns, for example). (No, I have never met her, but I did see her creepy husband at one point when we were on opposite sides of political struggles in Santa Monica, many years ago.) It appears that she has gone over the top with her recent memoir, describing a former husband's inability to perform sexually, another former husband's need for frequent visits to the bathroom, and far, far more detail about her sexuality than most of us ever need to know. Those who saw this relative of mine in a film she made at the time will be astonished by this--or wonder if those French film directors put all their sexual energy into their films, leaving nothing for their wives: 2. Great expectations: "[Vadim] took me back to my hotel room and we began to make out passionately on the couch, but when we finally made it to the bed he was no longer aroused...The situation went on for three weeks..." Yet Another Reason For The Left To Hate Microsoft! I saw this item excerpted from a Wall Street Journal article mentioned by Professor Volokh: At the Pentagon, Mr. Durante says that software cost savings are paying for the switch to thin clients. In part, that's because users now need only two licenses for Microsoft Office—one for their thin client and another for their Internet PC—instead of separate licenses for a host of PCs.I think this is a bit of an overstatement; it does say something about the increasing importance of technology to our military, however. Monday, April 04, 2005
Some People Are Just Unreasonable I mean, if someone who had stabbed you before confronted you in your doorway, what would you do? ALBANY, N.Y. The state's highest court has ruled against a New York City man claiming self-defense when he killed another man during a confrontation in a doorway.Aiken is obviously some sort of paranoid. Someone stabs you once, and you start to make all sorts of bizarre assumptions. The controlling principle should be that you shouldn't have to be in fear in your own home, even if you don't have the door closed, locked, and barred: Aiken argued that New York law says a person doesn't have to retreat from a threat if he's in his own home.Of course, reading the decision often gives a bit more detail than the news account of it. But in this case, it makes the New York State Court of Appeals (the state supreme court, according to New York's not quite unique usage of the term) look like fools, and the "victim," Mr. Badgett, sounds like he got what he deserved: Defendant and the victim were next-door neighbors in the same apartment building in the Bronx for nearly 40 years, virtually their entire lives. Their families were close until 1994 or 1995, when a dispute -- with ultimately tragic consequences -- arose over cable and telephone wiring. The victim and his family believed that defendant was siphoning off their services, even after the service providers found that the suspicion was without basis. In 1997, following a heated verbal exchange, the victim stabbed defendant in the back, hospitalizing him for two days.Okay, this wasn't a simple one-time dispute--and two days in the hospital suggests that it wasn't something done with a butter knife. Although the families remained next-door neighbors, separated only by a common wall, from 1997 to 1999 the victim repeatedly threatened to shoot, stab or otherwise injure defendant. He made these threats to defendant's face, to his father and to neighbors -- at one point even brandishing a boxcutter.So the "victim" didn't learn from his mistake--and Aiken sounds like he had good reason to be scared out of his wits--especially in a city where, remember, it is quite difficult to legally obtain a handgun for self-defense, and even a long gun is strongly discouraged by a somewhat complex licensing procedure. Now, Aiken isn't completely blameless; he started an argument through the wall between their apartments, including using a pipe to make a dent in the wall. Still, the rest of the actions make me inclined to think that the "victim" in this case was Aiken more than Badgett. Badgett called the police (good), went to open the front door of the building for them, but the rest of his actions suggest a stupid and out of control guy: Still holding the metal pipe he had earlier used to hit the wall, the victim then engaged in an angry argument with defendant, who remained in his doorway.... According to defendant's trial testimony, he continued standing in the doorway, never going into the hall, when the victim reached into his pocket, came up to defendant's face "nose to nose," and said "he was going to kill" him. Believing he was about to be stabbed again, defendant struck the victim on his head with the metal pipe, killing him.The judge refused to allow Aiken to argue that because he was in his home, he was entitled to use deadly force in self-defense. The underlying justification by the judge, the appellate court, and the high court continues to use laim, advanced in Richard Maxwell Brown's No Duty To Retreat: Violence and Values in American History and Society that there was historically a duty to retreat rather than use deadly force. I won't claim to have exhaustively studied this question, but I know that there is at least some serious argument about whether Brown's claim is correct or not, and I must confess that my study of the struggles over concealed weapon regulation and the uses of deadly force in Colonial and Early Republic America lead to me think that Brown has overstated such a duty to retreat. One component of the development of concealed weapon laws in the antebellum period was that people engaged in disputes often killed the other party based on the sometimes justified belief that the other party was about to draw a knife or a gun, and it was difficult for a jury or judge to dismiss this fear out of hand. I can't recall ever reading a decision or a debate that suggested that there was a duty to retreat under such circumstances, which is rather surprising, if this was actually a well recognized legal obligation. The decision acknowledges that the right to use deadly force in self-defense was recognized by statute, well before the American Revolution: When deadly force was reasonably used in self-defense it only excused -- but did not justify -- the homicide (see Wharton, Homicide § 3, at 211 [1855]). The difference was more than theoretical, as the excused killer was subject to property forfeiture and, at times, even a penal sentence (see Dressler, Understanding Criminal Law, [3d ed], § 17.01, p 205). However, with the enactment of 24 Henry VIII, ch 5 (1532), the justification defense was enlarged to include deadly force reasonably used in self-defense. This broader reading of the justified use of deadly force was further refined by cases involving attacks in the dwelling of the defender. Such a defender -- even if the original aggressor -- did not have a duty to retreat when inside the home, or "castell" (Lambard, Eirenarcha, or Offices of the Justice of the Peace, 250 [1599]).This is the same assertion made by Joyce Malcolm in her recent book, Gun Control: The English Experience. Yet, the decision then goes on to claim that outside one's home, there is a duty to retreat, and fails to explain when and how this duty to retreat ended up back in English law, after the 1532 statute: The home exception to the duty to retreat reflects two interrelated concepts -- defense of one's home, and defense of one's person and family. "The house has a peculiar immunity in that it is sacred for the protection of a person's family," and "[m]andating a duty to retreat for defense of dwelling claims will force people to leave their homes by the back door while their family members are exposed to danger and their houses are burgled" (State v Carothers, 594 NW2d 897, 900-901 [1999] [Minn] [internal quotations and citations ommitted]). Yet somewhat at odds with this privileged status accorded the home is the state's general interest in protecting life. "The duty to retreat reflects the idea that a killing is justified only as a last resort, an act impermissible as long as other reasonable avenues remain open" (People v Jones, 3 NY3d 491, 494 [2004]). Indeed, requiring a defender to retreat before using deadly force may in fact be "the more civilized view" (LaFave, Substantive Criminal Law § 10.4 [e], at 155 [2d Ed]). Inevitably, then, a balance must be struck between protecting life by requiring retreat and protecting the sanctity of the home by not requiring retreat.Whether one regards the duty to retreat is "the more civilized view" or not seems rather arguable. If someone who engages in a felonious attack need not fear the possibility of injury or death, it emboldens the criminal. While government may indeed have a "general interest in protecting life" (as long as it isn't two days shy of birth, or in a persistent vegetative state), it also has an interest in protecting the right of law-abiding people to not cower in fear. Aiken wasn't completely law-abiding in this case, but neither was he screaming threats of violence, nor did he have a history of felonious assault--unlike Badgett. The decision goes on to explain that New York State imposed a duty to retreat outside one's home in 1965, overturning a 1940 decision that held that a defendant faced with felonious attack on a public street was justified "in standing his ground and, if necessary, destroying the person making the felonious attack."I happen to think that this statutory duty to retreat, even when under felonious attack, is absolutely crazy, but that's the law. The real dispute in this case is whether a man standing in his doorway is within his home or not. The New York high court has decided that standing in your doorway isn't the same as being in your home. Here, defendant was in an area that functioned as a portal between an interior world and a public one. It was the region where a stranger, seeking access to the interior, could ask for entry. The actual physical space of the doorway straddled both the private apartment and the public hall. A nonresident could stand there and knock, ring a bell or turn the door's handle. The resident had exclusive control and possession only over that part of the apartment, the private property, from which nonresidents could ordinarily be excluded.If this seems reasonable to you, consider the case of an open window. You walk by that open window. A criminal reaches in, and stabs you. I'm sure that the court would claim that once the criminal had crossed the boundary of the window frame, that he was violating the boundary of home--but an open window suffers from much the same problem as a doorway: a space that is not necessarily closed to the outside, as evidenced by the fact that the criminal is able to reach in without forcing entry. Indeed, the Penal Law and its common law history reflect the concept behind the castle doctrine that inside one's home a person is in a unique haven from the outside world. While a person is not bound to abandon one's home, requiring a person standing in the doorway to step inside the apartment to avoid a violent encounter is not the equivalent of mandating retreat from one's home. Here, defendant need only have closed the door, or pulled up the drawbridge, to be secure in his castle.Easy to say from the bench. If you are standing in the doorway, waiting for the police, and someone with a history of felonious attack approaches threatening your life, you must make a split second decision about whether to back up, and hope that you can get the door closed and locked in time, or to defend yourself, before the attacker gets inside your home. I've had to shut a door in a hurry before to deal with an attacker, and it isn't as easy to do as writing "closed the door, or pulled up the drawbridge." Sunday, April 03, 2005
Controlling Our Borders I've mentioned before that I believe that the President should use his authority to call up the unorganized militia to deal with the serious security threat along our borders. A mixture of bad politics (what will the Democrats say?) and rewarding corporate interests (what if we have to pay better than minimum wage because we don't have a supply of cheap labor?) means that the President isn't taking my advice. Fortunately, we don't have to wait for the President; the unorganized militia is already doing the job: PHOENIX (AP) - Volunteers for an effort to patrol the Mexican border reported their first sighting of suspected illegal immigrants, resulting in 18 arrests, authorities said Sunday.If I lived a bit closer to the border--or if I wasn't working--I would be there with them on this project. |
