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Comment: Re:Fundamental rights belong to everyone (Score 1) 23

by evought (#48011865) Attached to: Not a Racist Country? Really?

The amazing and quite special part - for me- is that ordinary Americans continue to agree to be bound by this document.

Amen to that. The 'living' part of it to me is that we can and should always reach to the highest narrative in choosing the way forward. By that I mean that the Declaration of Independence uplifted equality under the law while practicalities of the time precluded eliminating slavery. So we follow the stated goal and eliminate the racism (or sexism) in those early documents and mostly consign travesties like Dredd Scott, Plessy, Koramatsu etc. to the dustbin of history.

But I also hold to George Washington's statement that we are bound to what the Constitution says until we agree to change it, not because it is magic but simply because unless we do want to try our hand at revolution, it is what we have. Over time, tools such as the 14th gave us new directions and we have developed law for things which just did not exist at the time.

The Second says what it says. If we decide that it does not, we need to change it, but we should have a darn good reason for doing so. At the same time, the Fourth says what it says: "secure" in our papers and possessions, which means until we decide otherwise, the NSA and all its variously lettered friends, myself in my official capacity, etc., are still bound by that. I do believe in my oath, but then I would feel bound to it even if I had not been required to make it, so perhaps it was never what mattered. "Swear no oath at all, but let your yeas be yeas and your nays be nays."

Now I will retire to my back porch where I will practice my chromatic harmonica until it's time to walk the dog.

Take care of yourself.

Comment: Re:Fundamental rights belong to everyone (Score 1) 23

by evought (#48010727) Attached to: Not a Racist Country? Really?

Just to be clear in case this gets heated, I see this as an interesting debate, and nothing I say is intended to offend. I follow your posts because you are generally insightful and interesting even when I disagree. So few people are :-)

The difference is that the 4th was not put in place entirely to protect slaveowners, but the 2nd was. ... It's false "whether or not it existed"? If the motive existed, then how could it be false?

Primarily because of your insistence on the world "entirely". All it takes is one instance of a single countervailing motive to disprove, whereas you would need to disprove every single alleged instance of any other motive. I am not disputing that slave-owners existed, that they were political, or that they tried to protect their perceived interests--- nor that racism exists today. That much is self-evident from any appraisal of history. I strongly debate your idea that this was the primary or sole influence and your insistence on ignoring the pre-existence of the right in jurisprudence or the radical changes in the views towards slavery as an institution post-ratification and, specifically, post-Eli Whitney and the sweeping economic changes brought by the cotton gin. It would be your burden to disprove all of that, even stipulating evidence that ulterior motives were present and that the ratification debates are quite important to the question. It is that specific burden which I have yet to see any of the RTKBA-slave-patrols proponents attempt to tackle.

Another slice of it is this: you have a home owner who is surprised by an armed intruder in the middle of the night in their bedroom hallway. The homeowner kills the intruder. Would it be valid to claim that the killing was motivated solely by anger? Even given evidence that the homeowner was angry at the intrusion? Who would not be at some level, even if fear was foremost? Other motives are clearly also present and, absent evidence that their actions were unreasonable on their face, those factors are probably of greater legal relevance. It would be the burden of the State in that case to prove that nothing else substantially motivated the homeowner besides anger or personal gain or whatever (that no reasonable person would have been in fear for their life, as in the OK Pharmacy Shooting where a white business owner was convicted of Murder I for shooting ("executing" is probably not too strong a word) a black teen assailant in a Castle-Doctrine state). Do you assume that someone who rescues a victim from drowning was entirely motivated by the desire to be a hero and that no charitable motive exists or does that contention require great proof?

In the same way, I see no reason to suppose that enshrining a pre-existing right already in the British BOR, in the common law the Colonists inherited, in literature that the founders commonly referred to, and already recognized at other levels in these United States, is unreasonable on its face, therefore it is simply unnecessary to presume that ulterior motives had any dominating effect. Burden of proof would therefore be on the accuser that the purpose of the 2nd was to protect slave-owners, particularly, e.g. Pennsylvania slave-owners who would hardly have been a strong political faction. I see no reason to even assume that that slave patrols were Mason's sole motivation given evidence that he possessed other motivations. The admitted vileness of other motives really doesn't factor in: it's interesting for academic debate, but it doesn't really matter to any substantive policy question unless you are arguing that the RTKBA should be interpreted in a racist manner as only applying to whites.

Does the 4th also protect tax evaders, pirates, and smugglers (who were definitely a strong constituency at the time)? Does it also protect insurgents? Might people support limits on law enforcement because they intend harm? Sure. But why do you impute that this was a primary purpose of the 2nd but not of the 4th? How about the prohibition on cruel and unusual punishment which arguably only protects criminals?

Are you saying for over 200 years people didn't understand the Bill of Rights until Edwin Meese explained it to us?

The Peruta court found no problem whatsoever picking out a consistent history of pro-personal-defense case law and debate throughout US history. It is also the case that there have been counter-movements throughout our history, especially in urban vs. rural culture. In the same way, the RTKBA is recognized in English case law going back to (at least) the late 1300s. That does not mean that various British regimes did not attempt to restrict it nor that popular views did not ebb and flow over that time. British case law further connected the right to Dane Law precedent ("restore our traditional rights") and frequently quoted Aristotle and Cicero in that context (e.g. the origins of Castle Doctrine which are still cited today). It was also determined in that case law that it made no never-mind the fact common arms had progressed from daggers to bows to crossbows to handgonnes over that span of time, that the right still applied.

In the US, the Supreme Court consistently neglected to hear any substantive case on the issue for over a century, thus leading to a gradually widening split in the state interpretations of the 2nd. But why e.g., did Missouri, in its pre-and-post-Civil War Constitution, very specifically protect the RTKBA and renew that protection in the 20th century if the popular view did not exist? How do you explain New Hampshire or Nevada or Arizona or the fact that the common law Armed To the Fear of the People (GATOP) offense has been consistently restricted in case law and statute from the 1800s to the present? Again, claiming that the popular or legal view did not exist assumes a high burden of proof that my position simply does not require. If I can produce even a single counter-example, your case fails.

If you took the position merely that the founders were human and had a mix of motives, some of them not very charitable, as you did state at one point, I have no reason to dispute that, nor in fact did the founders themselves. I believe the founders accomplished significant things, but I am in no way pre-disposed to founder worship. They did many things wrong along the way, just as we have in our turn. I think it is also clear that their "innovation" was primarily lower-case "c" conservative, that they looked back to tradition and precedent while at the same time trying to account for inherent limitations of humanity and make traditional structures work better. The whole debate about lower-case "r" republicanism is laced with that philosophy and so, really, was the debate about the role of arms and militia/military structures. A feeling of "legitimacy" (real or imagined) to their structures was clearly important to them and therefore they went to (what they viewed as) traditional forms as their first preference. The British BOR and existing common law was one of those traditional forms (viewed through the lens of their day and the self-selected nature of the Colonial populace).

And yes, I do like Maier (and not particularly Levin), as she shows less tidy facets of the debate seldom seen. As I have limited shelf space and unlimited hard-drive space, I would prefer to see the underlying texts scanned, searchable, and added to Gutenberg as so much else now has, but authors like her are a start. It is also useful to note, however, that most people of the time did not have fingertip access to their period documents either, but rather formed their opinions from what they had readily available. That is one reason I put almost as much stock in Cicero, Aristotle, Blackstone, Locke, the Federalist/Anti-Federalist papers that we have evidence people read and quoted as in the debates themselves which few people were present for. I would also potentially ascribe waxing and waning of the debate in our culture to the temporary disappearance of those texts from popular access. Who the hell read Blackstone or Paine in the 1970's?

Comment: Re:False (Score 1) 23

by evought (#48006797) Attached to: Not a Racist Country? Really?

the cotton gin made it obsolete.

Seriously? The cotton gin is what brought a dying institution back to life. Eli Whitney changed the entire economic landscape with his invention by suddenly multiplying the money southern landholders could make with slaves. This resulted in quite a bit more money pouring into southern slavery from northern banks and dramatically increased the sale and investment value of slave children. I doubt any of that was Whitney's intention, but it was the result.

The irony of the whole thing is that Whitney also ignited the northern abolitionist movement. The cotton gin made possible vastly increased production in northern textile mills which then needed more labor and hired women. The women read and organized for abolition within and around their labor. They also struck for better and fairer wages for woman labor, but never apparently, gave thought to using that leverage to better the lot of the slaves producing the cotton used in their looms. Could they have insisted on fair wages for colored labor? For money to go to purchasing their freedom? For "fair trade" cotton? Sure, but their striking in fact increased the economics in favor of southern slavery.

The whole politics around slavery at the time was simply messed up. Many factions bear the blame for it, and many people opposing it actually made problems worse. After the Civil War, many northerners fell far short of seeking equality for freedmen (many, such as Chamberlain, hero of Little Round Top, actively campaigned against colored folks in office), and the North soon got tired of Reconstruction. And yet, many whites did give their lives directly or indirectly for emancipation. Neither the moral nor the economic issues were clear-cut.

Comment: Re:Fundamental rights belong to everyone (Score 1) 23

by evought (#48006647) Attached to: Not a Racist Country? Really?

You owe it to yourself to actually examine the historical record, especially those ratification debates.

I have Pauline Maier's "Ratification" on the shelf not two feet from me, along with all of the other Constitutional and legal references I reach for frequently.

Was George Mason...?

Was Mason not pro-RTKBA during the Revolution and establishing/arming the Committees of Safety? Did he not use close to the same wording then? Did not he and other prominent founders not refer to their "Constitutional Rights" under the British BOR before either the US Constitution or the 2nd Amendment? Was Mason a slaveholder? Absolutely. Was that wrong and did it inform his point of view? Absolutely. But again, even if you assume that this represents even Mason's whole and entire point of view how do you explain Virginia's cession of territory and insistence that it be non-slave in perpetuity? How do you explain PA's support for firm RTKBA wording? How do you explain Federalist #46 which clearly presents an alternative motive for the RTKBA? How do you explain the debates during the ratification of the 14th? How did slave-holders suddenly invent a right solely to protect slavery which the Colonists already believed they had as former British subjects and which they specifically fought the British to protect? Why were Colonists upset about the British seizures of private arms in Boston (which we have British ledgers documenting) if Mason much later invented the RTKBA for slave patrols? If the founders were--- as a whole--- blase about slavery, why did they move to outlaw it in one state after another between ratification and the Mexican War?

The Second does not invent a popular right to keep and bear arms. The term itself is a legal term of art going back centuries before 1789. So how do you explain this racist conspiracy to invent something which was merely affirmed in our law in the first place and which quite arguably existed in our common law regardless? Which most state Constitutions separately, including those where slavery was outlawed prior to the Civil War, protect? Did Mason conspire to invent Blackstone's "Commentaries" or Knight v. Gardner? Or the letter from the Crown in response to Colonial complaints affirming that the RTKBA of the British BOR applied in the Colonies?

Your ascribation of a dark motive to the whole proceeding--- whether or not it may have existed or been a factor--- is simply false. I concede your "proof" but it does not prove your contention.

But let us say for the sake of argument that your contention is provable. What then? Is the 4th Amendment similarly racist because black men get frisked more often? Should we therefore do away with it, or should we simply uphold and defend its universal applicability? So, even if you are right, your implication is still wrong.

Comment: Re:Fundamental rights belong to everyone (Score 1) 23

by evought (#48004769) Attached to: Not a Racist Country? Really?

You can dance around it all you want. You cannot erase our history.

No, but apparently you can make it up. I have heard the "2nd Amendment for slaveholders" many times and found not a shred of proof. It's proponents completely miss the fact that the clause in the NW Territory agreement outlawing slavery in the allocated territory was insisted on by *Virginia*, which also ceded the largest chunk of territory. The founders as a group vocally decried slavery and took quite a number of actions to curtail it. In fact, many people at the time believed it to be a regrettable institution and considered its demise inevitable. It was not until closer to the Mexican War period (specifically, after the industrial changes wrought by the cotton gin) that the "slavery as a duty" meme and the real split between North and South developed, *after* the ratification of the Constitution and the BOR. How, precisely, would you explain the insistence of *northern* states who had either outlawed or would shortly outlaw slavery for strong RTKBA language both in the BOR and in their own Constitutions? Was Pennsylvania concerned solely about slave rebellions? For that matter, why would George Mason have used nearly identical language to the Second in Revolutionary War-era correspondence? Was Mason primarily worried about slave rebellions while opposing the British?

As related in my blog post, many members of the civil rights movement appreciated and used the 2nd Amendment. There are also period documents discussing the importance of the 2nd to protecting freedmen during the ratification of the 14th and these have been referenced in USSC and US District Court cases.

You are also cherry-picking modern data. It is not true that all whites who open carry are not harassed/shot (I know a white man near here who was shot in the last year under very suspicious circumstances and has irreparable brain damage), nor that all blacks who open carry are. I have occasionally been stopped, questioned, or followed by police/security over open carry, even though white, and even though I work with law enforcement. In some areas, *everyone* who open carries is harassed (or worse), despite the law. As acknowledged, there are problems both with the law and with open carry demonstrators, but you take it much too far and your version of history simply does not match the facts.

Comment: Fundamental rights belong to everyone (Score 1) 23

by evought (#47990663) Attached to: Not a Racist Country? Really?

Open Carry laws are clearly meant just for white people. Laws that only apply to one race are the definition of racist.

Fundamental rights belong to everyone by definition. Clearly there are problems, but we don't simply achieve rights and then get to rest on our laurels. Rights need to be vigorously maintained. That's a lot harder to do if we get suckered into an us vs. them mentality.

Not all whites freak out when blacks open carry, either, and sometimes the divisive rhetoric simply does not pan out. Many gun owners do strongly believe in the universality of rights, and that's good.

Comment: Fixed deadlines (Score 1) 494

by evought (#45519739) Attached to: Healthcare.gov and the Gulf Between Planning and Reality

However the problem was there was a Legal Act of Congress saying this is when the website will need to be up and running.

Sure, but there was no law against delivering incremental features early in order to gain experience and have a fallback in case of partial failure. As the article points out, they had (and are having) an incremental roll-out anyway, it's just a lousy incremental roll-out.

Comment: Less risk and more profit from the micro-producers (Score 1) 5

by evought (#43650413) Attached to: Energy Industry Under Attack from Green Terrorists

What happens if a whole bunch of customers start generating their own power and using the grid merely as backup?

EDF published figures years ago that the risk/reward for utilities building new plants to meet demand is not good. If micro-installation alternative energy takes off, then the grid will still be needed for backup power, for new construction, and a lot of other things; it may be less fragile and its profit margins may end up actually being higher with fewer risky capital-intensive investments. So, no, I don't think that is a legitimate worry.

The other side of the coin is that the utilities can hedge that risk by diversifying into sale/installation of push-button PV/micro-wind systems and make money either way.

My uncle recently put in a grid-tie PV system in a rural area. Post-Sandy the grid went down. His utility contract had required him to put in a battery-less system that sent everything to the grid and bought power back (the PV power, being subsidized, went for a slightly higher rate, so it made a small profit besides the excess power). So, now he is sitting there with enough PV to supply his house and no power. He probably could have violated his contract and bridged the circuits, but... it convinced him that the small profit from the grid tie was simply not worth the contract hassle. Easier to put in batteries and cancel his account. Not going grid-tie also means you can get away with a lot less expense in inverters (most utility contracts need 2-phase true-sine to sell to them; you can often get away with single phase and only one true-sine circuit if you aren't tying to the grid). The Xantrex Trace whole-house inverter we are using costs a third of what the local utility would have required and even after adding the true-sine circuit for sensitive electronics, we still save enough that the small profit from grid-tie is just not that exciting.

Comment: Re:Government Operated Plants (Score 1) 259

by evought (#37943136) Attached to: Blow-By-Blow Account of the Fukushima Accident

Typical misconception. Chernobyl was the result of rogue operations. There were many government mandates broken leading to the accident.

In addition to the AC's response, "government mandates" were "broken" because they were mutually contradictory and the Soviets had engendered a system where, because failure was not tolerated and everything was centrally planned, lying was the only way to survive. Because Company A was mandated to complete and ship 10 widgets in a month (whether or not this was physically possible), they had to file paperwork that they were completed on time and shipped to Company B. Company B could not necessarily challenge this--- even though they received only six--- because someday they would need Company A to lie for them. This kind of problem was endemic throughout Soviet Block countries; a unit which had 100 tanks might only have 40 functioning, having to cannibalize one to keep another running. The system collapsed under its own weight.

The thing is, the culture of lies is no different than what naturally develops inside any large bureaucracy, government or private. Bureaucracy is pretty much defined by a system of mutually contradictory rules which must be navigated through exchange of favors (that is, "lies"). There is therefore a point where a level of regulation is helpful in any endeavor, and a point where any gain is rapidly overtaken by the fact that the central planners operate in an absolute fantasy world defined by the lies being told to sustain its daily function. I have seen this in the operation of the Soviet system, in our own military planning, elsewhere in our government, and in big businesses ruled by compliance with ISO-9000, TAFIM, SEI-CMM and other standards. Achieving balance is key, and it is almost never accomplished by simply handing something to the government to control.

Now, that being said, it may be that in certain endeavors, balance is impossible to achieve from where we now stand: deep-water oil extraction and nuclear power perhaps among them. It may not be possible for these industries to be regulated to the point where they do not pose a danger of regional or global disaster. Where this is the case, we need to make a decision as a society as to whether to allow them and take substantial risk or disallow them and suffer the consequences of stifled innovation (or perhaps limiting development to small-scale, isolated experiments which it may be possible to regulate adequately and the potential consequences of which are greatly reduced). But thinking that we just need to tweak the rules a bit or change the letterhead of the organization controlling them is foolish. Government will simply contract the work back out the the same private companies which are screwing things up now and probably with even more cost to taxpayers.

Comment: Re:You mean like 700Mhz? (Score 4, Interesting) 147

by evought (#37393820) Attached to: Jobs Bill Funds Safety Network With Spectrum Sale

Public safety is a transparent excuse.

True. The muti-state "public safety network" here is 6m; Storm-chasers and fire watch is 2m. That's what ARES is for. It's simple, reliable technology and there are good volunteers to run it. Our local Sheriff recently remarked that the feds are trying to shove narrow band digital radios down the counties' throats. The proffered radios are expensive, overwhelmingly benefit one corp, and perform poorly in this terrain (the digital radios tend to be all or nothing; in much of rural MO, you can get a poor but comprehensible analog signal further, at least with current equipment). Switching will either hurt strained county budgets or the strained federal deficit (if subsidized) and will mean other services don't happen.

Comment: Wood as green (Score 1) 694

by evought (#37287616) Attached to: Solar Company Folds After $0.5B In Subsidies

The whole population can't scrap the entire housing infrastructure and rebuild their entire lives out of totally new-design housing. Tighter insulation means less air circulation. That means an unhealthy habitat.

It means tighter control over the airflow of that habitat. There is nothing preventing someone from opening a window selectively. That's most of how we cool during the summer: close the house up during the day to keep it from heating up and open it up at night to cool it down. Wallah! Airflow and energy savings.

You're burning wood and calling it a green energy source? Really????

Yup. You know it even looks green? (While on the tree anyway.) We get wood from our own wood lot which replenishes itself every year pulling the CO2 we emit right back out of the air. We burn dead-fall and cullings from managing the wood lot. Our stove is most efficient with small bits of wood, so we burn mostly sticks and twigs. Given that, we very seldom have to use the chainsaw and expend fossil fuel. We have probably between 1/3 and 1/2 of our season's wood put up right now and have not used the chainsaw once. The only time we even fired it up this year is when we went to help with Joplin's disaster relief.

You know what would happen if we did not burn it? It would sit on the ground and rot or build up until there was a wildfire and the same gases would get released anyway. We use the heat of the wood stove to cook in the cold months and reuse the ash first to leech for potash for soap making (and leavening) and then as soil amendment in the garden. We're in the middle of building a wood-fired mass oven in the backyard to do a lot of baking efficiently, with renewable energy, and outside the house in the warm months so the heat does not contribute to cooling costs. So, yes, wood is a "a green energy source". Perhaps not for everyone or the way everyone does it, but it just goes to show that people have options for doing things effectively if they don't get caught up in irrational dogma about what's "green" or "not green". Green energy is in the process and the life-cycle, not the choice of technology.

Comment: Re:Stop (Score 2) 694

by evought (#37282590) Attached to: Solar Company Folds After $0.5B In Subsidies

A typical home uses about 30 KWH/Day.

That is the first problem. Ours is 2-3 kwh for the whole farm. The folks down the road from us whom we are helping set up an alternative energy system is about 9 for the whole (larger) farm. You did a sensible thing and moved into a better insulated home to reduce your needs rather than trying to replace your needs with PV. Most people are not sensible. Reducing first opens up a lot of options to provide that power with a much more modest system, in our case, an 850 watt wind turbine and a few hundred watts in panels (and some wood and some passive techs by time we are done, propane for a last-ditch backup for some systems) at an overall favorable cost per watt and a bit more reliability than our grid out here. We have a ways to go before our system is finished, but the wiring sucked in this place and would have had to go anyway.

Of course, there is also the problem that most people are stuck on the idea that solar==PV. Our whole business is effectively solar since we grow plants which sheep go around and eat. Wind is solar energy but is, for well-sited small installations, considerably cheaper. Passive solar is low-tech, cheap, and effective. Wood is carbon-neutral solar power, and cheaper than PV (if you have it readily available and do it right). There are a lot of options for being a better care-taker of the land than running your big entertainment system off of an acre of solar panels.

The first time, it's a KLUDGE! The second, a trick. Later, it's a well-established technique! -- Mike Broido, Intermetrics

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