So when is "legislating from the bench" valid, and when not?

I would argue that two conditions must be met. First, it can and should only be done by the Supreme Court. To bestow that power on lower courts invites, if not anarchy, then disrespect for law by the citizenry. Second, any decision that violates stare decisis must be done in order to broaden individual rights and freedoms - the "privileges and immunities" of citizens - that have been improperly restricted by decades of grain-upon-grain infringement.

Someone has to have the power to say "That's a heap," and knock it down.

Kevin Baker
March 6, 2007
Dred Scott and Legislating from the Bench
[This is a difficult question and I am very pleased with the answer Kevin came up with. If you read the entire post you get a better statement of the problem and why this solution is correct. Government power tends to grow and "legislating from the bench" should only be done to reduce that power.--Joe]

Very, very impressive.

Far, far more bravery than I could muster. I would love to fly and probably would try parachuting. This is a couple orders of magnitude beyond that.

Please don't tell my daughter Kim about it. I'd worry too much.

[Thanks to Lyle for the link.]

Sorry-- almost 600 words here, but I think you'll like it.

My wife recently told me she might run for mayor of our small town.

Not being one to miss out on a good argument, I started strafing her with questions until I decided to try one I've been saving for a while:

==========================
Is there anything, anything at all, in human life or endeavor that you consider to be absolutely none of government's business whatsoever?
==========================

She had to pause and think for a bit, because (and this is the point) few people ever consider the question.  She disappointed me slightly by blurting out what I would have predicted (I bet 90% of you have already come up with the same answer): "Sex."  Then she caught herself, "Uh, between consenting adults, uh, of consenting age, uh, twenty-one."

Age of consent, 21?  That was a real surprise to me, coming from her.  No matter.  I then asked her, "You don’t favor government funding for AIDS research"?

"Uh..."

“Should government be given any role in STD statistics gathering, prevention, cures, or any such related matters?"

"Uh..."

Clearly, most people, when backed into a corner thus, will eventually admit that they do indeed believe government has some business in our sex lives, and that's even before you get to the product of sex-- children, and with that-- raising children, child custody, child support, compulsory education, sex education and family law.  (When our first baby was born, we were visited by a government case worker who interviewed us and inspected our house, clipboard in hand, to make sure we were fit to keep and raise our own child)

Again I asked: "Is there anything at all that should be entirely beyond the jurisdiction of government?"

"Yes-- private matters.  Some things are private"

"Such as..?  We go to our neighbor down the street and buy a dozen eggs each week (they keep a few chickens).  Is that a private matter?"

"Yes"

"I agree, but that $52 has to be declared to the IRS.  Now let’s say word gets around and eventually everyone in our town goes to that neighbor and buys a dozen eggs each week.  That's around 500 dozen eggs per week, or $26,000 per year in gross revenue.  Is that government's business?"

"Yes, we have to collect taxes...but we could barter for the eggs.  We can do yard work for the neighbor in return for the eggs.” (this is one of the infinite variations of; ‘other people should be taxed, sure, but we can find a way to sneak around it for ourselves without getting caught.’  This particular, instant knee-jerk reaction tells us a lot about politics all by itself).

“Sorry.  That’s a taxable transaction according to the IRS, and if barter were to be made officially non taxable, you’d see a major shift in the economy as people found ways to barter and avoid taxation.  Would you support that?”

“No.  We have to collect taxes.”

On it went.  The bottom line is; my wife's initial reaction was that, certainly, there are many things that are properly none of government's business.  However, she would eventually say that each aspect of our lives, once I questioned her further, is actually government’s business in some way.

I ask you to consider the question, in this age wherein we have fallen to discussing (seriously, even) a ban on light bulbs, in this the Land of the Free and the Home of the Brave:  Can you name anything at all within the realm of human activity that in your opinion should be absolutely none of any government’s business whatsoever?

Hope you get a good laugh out of this. According to the felons at PNNL/Battelle the picture below constitutes "adult content". In the big picture of things this might not even be brought up later on. It's just a minor example of the egregious nature of the pretexts they used to justify firing me.

This picture was taken by my daughter Xenia at a public fair in Moscow, Idaho on April 30, 2005. I had viewed her Live Journal post believing PNNL's "reasonable use" policy for company computers would include such material. The image was cached by the web browser and their scan of the hard disk revealed it. I wouldn't have guessed that it would run afoul of their "adult content" policy or imagine someone would have the gall to use such a picture as a pretext to fire me. Perhaps my daughter's friend should have been wearing a burqa.

Update: Perhaps that picture is more "interesting" than I thought. PNNL investigators viewed that picture on Xenia's Live Journal five times. "PUCK" viewed it four times and "WD31448" (Una Carriera) viewed it once as well:

• 2005-05-09 15:54:38 (PUCK)
• 2005-05-17 17:25:32 (PUCK)
• 2005-05-17 17:36:36 (WD31448)
• 2005-05-19 23:18:20 (PUCK)
• 2005-05-23 17:20:52 (PUCK)

Very, very interesting...

I've been seeing some Google ads for political candidates here on my blog. In my opinion some or all of those candidates are unfit to be elected dog catcher let alone a significant political office. I think I can turn off certain ads if I wanted to but I figure the people visiting my blog are smart enough to not vote for these scumbags. And any clicks on the ads end up in the transfer of money from the candidate to me which I consider a good thing.

When the Brady Campaign was advertising on my blog I got something like just under $10.00 from them. Brady bought me lunch. Cool.

You should never sell out your principles for less money than you would require to live out the rest of your life in comfort.

Ry Jones
March 26, 2007
[Regarding the possible terms of a settlement, should one be offered, by PNNL/Battelle.--Joe]

On Friday I was hot on the chase. Over the weekend Xenia's sharp eyes picked up something odd looking in the bushes I had overlooked even though I had looked in the same area several times. Last night Ry pointed out an opportunity was not being fully exploited. I was up until after 3:00 AM as I caught up with and latched onto the haunches of my prey. I went to sleep easily for the first time in days. I woke up at 7:30 this morning again excited and with the taste of blood in my mouth. After another hour of working my fangs into my prey I can hear and feel the bones cracking.

This animal is going down. I can't imagine it going any other way.

I'm looking forward to the feeding.

If you were fired for the stated reasons, I wouldn't be pissed that they made a low-quality argument. It just gets you closer to a settlement.

Ry Jones
March 25, 2007
[Good point. It's a good thing when they did something really stupid and documented it. After all, they probably were just doing their job as best they could with the resources they had available.--Joe]

So, here’s a message for the Big Dems back in the Beltway. Do lunch with Representative McCarthy and suggest she pull her bill before any more political blood is shed and it defeats enough dems to lose Congress back to the GOP and keeps you out of the White House. And when you do squash H.R. 1022, make sure everybody knows you did it.

Bill Schneider
March 22, 2007
Guns, Sex, Lies, and Democrats
[H.R. 1022 is the latest version of the "assault weapon" ban floating around congress.--Joe]

Ry talks about The Thrill of the Chase. How true. I woke up at 7:00 this morning raring to go again. I reviewed a bunch more material and fired off two more long emails to my lawyer and still made it to work on time.

I ended stay up with my new Christmas "toy" and just now sent off a full Office Word sized page of stuff to my lawyer. Maybe I can sleep now knowing that I just gave PNNL/Battelle some more heartburn.

Where the Clearwater River wanders through the hillsides, you'll find Joe Huffman planting his father's fields with a thousand pounds of explosives.

Kim Griffis
KING 5 Evening Magazine (complete with video)
[What timing! I made room for 12 more teams last night then tonight they showed the video again. I then got a phone call and four emails. It was originally made at Boomershoot 2005. They keep replaying it and have a different voice over than the original. I pretty sure Kim Griffis wrote the original script and I know she narrated it. Now they have someone else narrating with at least one very minor tweak to the script.--Joe]

I'm sure my memory has faded of some of the Christmas's of 40+ years ago to the point that I can't really compare them on an equal basis with this Christmas. That aside today was a really, really happy day. I could barely sleep last night then after making arrangement in the morning to meet my lawyer this afternoon I had difficultly paying attention in during parts of meetings that didn't affect me.

When I arrived at the lawyer's office I asked if he had looked at any of the stuff from the felons at PNNL/Battelle yet and he said, "No, I figured I'd let you open the box. This is probably just like Christmas for you." He was so right. The package didn't have any pretty paper on it but that didn't matter. I opened it up and did a high level scan of the material. They sent stuff I was certain they would have destroyed and then didn't send stuff that I thought they would give up easily.

We then got down into the details of some of the stuff and we laughed and rolled our eyes. I dug around looking for things and then would laugh and laugh when I found it or find they are trying to avoid sending it. I had so much fun with it. So much like a bunch of new toys to play with on Christmas Day.

They admit to monitoring my blog and web sites until at least mid May of 2006--I was fired in June of 2005. You would think they would have had real work to do. But that's your tax dollars at work there. There weren't any terrorists to catch those months I guess.

Finally my lawyer said that I need to take my toys away and play with them on my own for a few days. He told me how it needs to be organized and what we need to do next.

I left his office, dropped most of it off at Kinkos to be copied so we have the original and a "working copy". I then went back to my room and started going through the CD's and DVD's. More laughter and I had to share. I saw a friend on-line and started chatting with him about it. We finally agreed to meet for dinner and just as I was about to leave Kinkos called back and said my copy job was done. All 1,101 pages of it. Wonderful! We changed our dinner location to be across the street from Kinkos and I picked up my "working copy" to take to dinner with me.

My friend laughed at me as my hands couldn't seem to make up their mind over which to pick up; the new toys or the menu. He said in a whiny little boy voice, "But I don't want to eat breakfast, I want to open presents."

I barely ate as I dug through the pages and showed my friend page after page that kept us laughing; "They think this is important?" Finally when my bladder and his butt could no longer take sitting there we left and now I'm back at my room. I should be going to sleep but my new toys are calling my name...

I found this very interesting. I don't have time to get into it much for reasons that will be made apparent in my next post. But here are some appetizers:

For starters, the Common Law had long – as Dr. Cavala properly noted –limitations on who can possess what type of weapons and where. The best analysis of this issue is set forth in Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 224, 241-51 (1983).

...

The same can be said of machineguns – although they are not considered protected as being allowed in private hands for the same reason that WMD’s are not: the Common Law limited certain very lethal weapons to being in the exclusive hands of the state to avoid the defacto creation of private armies. The NRA in fact provided an expert witness on the matter at hand.

...

Where the opinion will require continuing judicial supervision – in fact the appointment of a special master on remand is on the process of registering handguns in the District. That is the real issue and one that has received scant attention. The Silberman opinion did not wipe out registration – in fact it ordered it. That raises the issue of who can acquire and register handguns in accordance with the Court opinion.

...

The District of Columbia for Gun Control Act purposes is considered a state (18 USC 921(a)(2)). That means that the federal rules regulating transactions between residents of different states apply. That means as to handguns that DC residents cannot outside the district, acquire handguns and bring them back into the district. Also, non DC residents cannot transfer guns to DC residents unless the transaction is brokered through a federal firearms licensee (FFL) who is licensed by BATF to operate within DC. I am told that there are no DC licensed gun shops as such. That being the case, persons who possess handguns in the District who could take advantage of the opinion is quite limited if not non existent – as noted below. It is important to note that Silberman’s ruling did not wipe out the registration provisions – in fact that was the relief requested. Rather, it wiped out the bar to registering (and thus legally having) guns. There will not be a rush to buy guns because there are no legal outlets – as of today – in the District.

Xenia decided to participate in a Live Journal "A day in my life". She chose last Saturday when we went to Portland. The results are here.

It was while we were there that I discovered one of our identical quadruplets is gone. We are down to just three now:

Since they kind of keep to themselves and are generally doing their own thing I hadn't noticed until the Xenia that was with us posted the picture and I asked, "Where's the other one?!!!!" Xenia immediately, and without any guilt whatsoever said, "We killed her." Then she gave me "the look" which in this context meant, "So what do you think you are going to do about it?" She was right of course. As far as proof we can only prove the one. And which one is missing? And how do you know she is missing?

[heavy sigh]

Our little murderess also posted a bunch of picture of Voodoo donuts and other highlights of her spring break trip here.

A man of true science uses but a few hard words... whereas the smatterer in science... thinks that by mouthing hard words he understands hard things.

Herman Melville
[A similar thing occurs with people that know virtually nothing about guns. They talk of "assault weapons", "high capacity clips", and other nonsense things. Then these bigots claim they should be allowed to regulate such things that they don't even know the vocabulary for.--Joe]

I have rearranged some of the .50 caliber shooters and have created 15 new .30 cal (or smaller caliber if you want) positions at the west end of the .50 caliber ghetto. From these positions you will be able to shoot at some of the 380 yard targets as well as all of the 575 and beyond targets.

If you want one of the positions send me an email with your phone number, your name, and the names of up to two other people. These additional people must be designated as either spotters (no charge) or shooters.  I will respond within a day or two with your shooting position number (8A->11C are currently available) and how to pay for the position.

These are available on a first come first serve basis.

If you have any questions don’t hesitate to give me a call or send an email.

Voice: 208-301-4254
Email: joeh@boomershoot.org

Today I received an email from my lawyer in the PNNL/Battelle case:

A big box just arrived for you here.   When do you want to come and open it?

I've been trying to get this material for 21 months now. Soon, very soon...

It makes little difference how a bigot thinks, when it is plain that they are bigots.  Bigots must only be defeated.  Understanding what makes them tick is of purely academic interest.

Lyle Keeney
March 20, 2007
[I was initially going to disagree with a portion of this. I was thinking that knowing "what makes them tick" could be useful in defeating them. But then I realized that would only be useful in trying to get them to stop being a bigot. Defeating them is something different. Defeat involves making them social and political outcasts. This doesn't involve converting them to a more open mindset. Until they want to be converted there is no point in trying to convert them. They will be a lot more motivated to change their ways when they realize society at large thinks of them as some sort of lower life form on the level of pond scum which is what we must work for to defeat these anti-gun bigots.--Joe]