Identity crisis in America: Is the government overstepping its boundaries?

by State Senator Mike Folmer (PA-48)

Every federal and state-elected official took an oath to uphold the U.S. and Pennsylvania constitutions. It is imperative those in public office start taking these oaths seriously, be­cause each day that goes by, more and more of our rights and freedoms are being lost, and government's appetite for collecting personal and private data continues to grow.

I believe the most egregious example of government overreaching into personal lives is the federal Real ID Act. Designed to protect Americans in post-9/11 society, Real ID would create a national identification card. Proponents of the act believe Americans should be stripped of essential liberties for the greater safety of the country.

The federal government says this plan will protect Americans from terror­ists. I disagree. I believe it is a clear violation of the 10th Amendment of the U.S. Constitution, redefining privacy as we know it, and creating a mountain of new bureaucracy and increasing fees and taxes—all without making us any safer.

That is why I have reintroduced legislation (Senate Bill 621) that would exempt Pennsylvania from compliance with this unfunded feder­al mandate. Eleven states, including South Carolina, New Hampshire, Maine, Montana and Virginia, have already enacted similar statutes.

If Pennsylvania were to comply with REAL ID, in January 2010, driver's licenses would become a standardized national identification card with a machine-readable zone containing valuable personal information. PennDOT would then be required to link into a massive na­tional database, opening the door to the possibility of major security breaches.

In addition, transportation departments would retain digital scans of identification documents, including birth certificates and Social Security cards, for at least 10 years or seven years for a paper copy.

I understand the threat Pennsylvanians face on our own soil, but under REAL ID, that vulnerability is magnified times 50 and leaves us all exposed.

REAL ID also threatens privacy rights by empowering the Department of Homeland Security to collect biometric data, including fingerprints and eye scans, as well as placing Radio Frequency Identification chips in every American's driver's license. A proposal by State Senator Shirley Kitchen, (D-Philadelphia), Senate Bill 623, would prohibit government bodies from capturing or releasing biometric data without an individual's approval or knowledge and prevent a slippery slope toward rights being stripped away.

Other requirements of REAL ID that take law-abiding citizens down a dangerous path are: what confidential data can be collected from driver's licenses; where and how long it can be stored; and who is authorized to obtain, share, trade or sell that information.

With one swipe of a license, an establishment can collect your personal data and use it for marketing purposes. State Senator John Wozniak's, (D-Clearfield), proposed legislation (Senate Bill 622) would restrict information that can be made available from driver's licenses for marketing or other purposes beyond law enforcement.

If we don't exempt ourselves from REAL ID by the end of 2009, we are in real danger. This act is a major violation of Americans' right to privacy and another example of the federal government overstepping its boundaries with the states -- all with an anticipated unfunded federal mandate cost of $11 billion to already financially strapped states.

The assault on our right to privacy must end. Together, this package of bills can slow the increased flow of data in our daily lives.

US Supreme Court Restricts Police Searches of Cars

US Supreme Court lays down rule forbidding warrantless car searches except in cases of officer safety or evidence protection

Arizona v. Grant Upheld, 4th Amendment Rights Restored

In a decision which seems to have gone largely unnoticed by the major news media, the US Supreme Court on Tuesday narrowed the permissible scope of warrantless automobile searches.

The high court’s 5-4 decision upheld a 2007 Arizona Supreme Court ruling which cited the 1969 California v. Chimel US Supreme Court case concluding that police must obtain a warrant before searching a car in the absence of any threat to officer safety or ability of the suspect to destroy evidence.

The Arizona ruling went counter to a nationwide trend diminishing constitutional protections against unwarranted searches.

Justice John Paul Stevens wrote for the majority, citing former Justice Sandra Day O'Connor:

"Lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel."

Since a 1981 decision, New York v. Belton, effectively threw the fourth amendment out the window—at least where traffic stops are concerned—police have been able to use “officer safety” or “protection of evidence” as an excuse to search a vehicle even though the vehicle is unoccupied and there is, therefore, absolutely no threat to the officer or evidence.

The new ruling does not completely overturn New York v. Belton but narrows its implications, preventing police from using unrelated minor offenses to justify drug searches without probable cause: Car searches without probable cause are valid only "if it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle" or if the suspect might be able to access the car for weapons.

The case at hand spent nearly a decade bouncing through the Arizona courts, beginning 25 August 1999 when two Tucson police officers received a "tip" that drug activity took place at a certain location. Police went to said location and questioned Rodney Gant who happened to open the door. After leaving, the officers looked up Gant's record and found an outstanding arrest warrant for driving under a suspended license. Big-time criminal, he.

The officers waited for Gant to return to the house, arresting him after he parked his car safely in the driveway. Gant was placed in the back of a squad car within minutes and without incident. Police then proceeded to search Gant's car where they found a small plastic bag containing cocaine.

A majority lead by Justice Stevens found the search of Gant's car unconstitutional.

"The state seriously undervalues the privacy interests at stake. Although we have recognized that a motorist's privacy interest in his vehicle is less substantial than in his home, the former interest is nevertheless important and deserving of constitutional protection. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person's private effects."

The high court did leave police with a broad prospect for conducting warrantless searches but closed the door to searches based solely on traffic violations.

"Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle," Stevens wrote. "In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence."

Less than a day after the decision was released, the Michigan State Police issued guidance to officers on how to bypass the supreme court's new limitations:

"While this ruling will impact how searches of vehicles incident to arrest are conducted, officers may still conduct a full search of a person incident to a lawful arrest… In addition, officers may search vehicles using other exceptions to the warrant requirement.” (e.g. probable cause, inventory, tricking a motorist into giving consent).

A copy of the Supreme Court's decision is available as a PDF file: 07-542 Arizona v. Gant (4/21/2009)

Was Binghamton Massacre Aided By Current Gun Laws?

At a 3 April news conference, New York Governor David Paterson said that 12 or 13 people had been killed, after a gunman opened fire in a civic center where immigrants were taking a citizenship exam.

The shooter has been identified as 41-year-old Jiverly Wong or Voong of nearby Johnson City, NY—recently laid off from his job at Shop-Vac. Wearing a bulletproof vest, Voong barricaded the rear door of the building with his car, entered through the front door and began shooting.

With no way out of the building—no way to escape the sudden, savage horror taking place—over 40 people sought whatever hasty refuge they could find—however inadequate. Dozens of defenseless men and women huddled shaking, terrified, behind machinery, under desks, in dark closets: They listened to the deafening gunshots and to the blood-curdling screams of the wounded and of the dying and of those doomed souls with no escape and awaited their turns to die—like menial prisoners in a Nazi death camp.

Reports indicate that—of the over 50 people in the building—Wong was the ONLY one in the building with a firearm!

Trapped with an enraged madman, not one of the innocent people in the civic center had the capability of self-defense. The police arrived only after all the murders had been committed—as, indeed, is almost always the case.

Only the criminal had weapons: The law-abiding citizens were completely unarmed—made defenseless—as a direct result of the vile, outrageous, unconstitutional and sinister laws passed by the lunatic fringe in the United States government and championed by the lunatic fringe in Hollywood and the media.

Had just ONE of those citizens been carrying a firearm, the death toll would likely have been considerably less. Had many of them been armed, that would have been a certainty—one, well-placed head-shot would have ended the massacre.

The following are the partial results of a comprehensive study released in 1999; the full report with footnotes and references may be viewed here. I submit that, likely, nothing has changed proportionally since this report was released. Please note that emphasis is mine:

Guns save more lives than they take; prevent more injuries than they inflict

• Law-abiding citizens use guns to defend themselves against criminals as many as 2.5 million times every year—or about 6,850 times a day. This means that each year, firearms are used more than 60 times more often to protect the lives of honest citizens than to take lives. Of the 2.5 million self-defense cases, as many as 200,000 are by women defending themselves against sexual abuse.
• Citizens shoot and kill at least twice as many criminals as police do every year (1,527 to 606). And readers of Newsweek learned in 1993 that "only 2 percent of civilian shootings involved an innocent person mistakenly identified as a criminal. The "error rate" for the police, however, was 11 percent, more than five times as high."
• Of the 2.5 million times citizens use their guns to defend themselves every year, the overwhelming majority merely brandish their gun or fire a warning shot to scare off their attackers. Less than 8% of the time, a citizen will kill or wound his or her attacker.
• Handguns are the weapon of choice for self-defense. Citizens use handguns to protect themselves over 1.9 million times a year. Many of these self-defense handguns could be labeled as "Saturday Night Specials."

Concealed carry laws help reduce crime

• One-half million self-defense uses: Every year, as many as one-half million citizens defend themselves with a firearm away from home.
• Florida: In the ten years following the passage of Florida's concealed carry law in 1987, there were 478,248 people who received permits to carry firearms. FBI reports show that the homicide rate in Florida, which in 1987 was much higher than the national average, fell 39% during that 10-year period. The Florida rate is now far below the national average.
• Do firearms carry laws result in chaos? No. Consider the case of Florida. A citizen in the Sunshine State is almost twice as likely to be attacked by an alligator than to be assaulted by a concealed carry holder. During the first ten years that the Florida law was in effect, alligator attacks outpaced the number of crimes committed by carry holders by a 146 to 88 margin.
• Nationwide: A comprehensive national study determined in 1996 that violent crime fell after states made it legal to carry concealed firearms. The results of the study showed:
• States which passed concealed carry laws reduced their murder rate by 8.5%, rapes by 5%, aggravated assaults by 7% and robbery by 3%; and
• If those states not having concealed carry laws had adopted such laws in 1992, then approximately 1,570 murders, 4,177 rapes, 60,000 aggravated assaults and over 11,000 robberies would have been avoided yearly.
• Concealed Carry v. Waiting Period Laws: In 1976, both Georgia and Wisconsin tried two different approaches to fighting crime. Georgia enacted legislation making it easier for citizens to carry guns for self-defense, while Wisconsin passed a law requiring a 48 hour waiting period before the purchase of a handgun. What resulted during the ensuing years? Georgia's law served as a deterrent to criminals and helped drop its homicide rate by 21 percent. Wisconsin's murder rate, however, rose 33 percent during the same period.

Criminals avoid armed citizens

• Kennesaw, GA: In 1982, this suburb of Atlanta passed a law requiring heads of households to keep at least one firearm in the house. The residential burglary rate subsequently dropped 89% in Kennesaw, compared to the modest 10.4% drop in Georgia as a whole.
• Ten years later (1991), the residential burglary rate in Kennesaw was still 72% lower than it had been in 1981, before the law was passed.
• Nationwide: Statistical comparisons with other countries show that burglars in the United States are far less apt to enter an occupied home than their foreign counterparts who live in countries where fewer civilians own firearms. Consider the following rates showing how often a homeowner is present when a burglar strikes:
• Homeowner occupancy rate in the gun control countries of Great Britain, Canada and Netherlands: 45% (average of the three countries); and,
• Homeowner occupancy rate in the United States: 12.7%.

Rapes averted when women carry or use firearms for protection

• Orlando, FL: In 1966-67, the media highly publicized a safety course which taught Orlando women how to use guns. The result: Orlando's rape rate dropped 88% in 1967, whereas the rape rate remained constant in the rest of Florida and the nation.
• Nationwide: In 1979, the Carter Justice Department found that of more than 32,000 attempted rapes, 32% were actually committed. But when a woman was armed with a gun or knife, only 3% of the attempted rapes were actually successful.

Justice Department study:

• 3/5 of felons polled agreed that "a criminal is not going to mess around with a victim he knows is armed with a gun."
• 74% of felons polled agreed that "one reason burglars avoid houses when people are at home is that they fear being shot during the crime."
• 57% of felons polled agreed that "criminals are more worried about meeting an armed victim than they are about running into the police."

Police cannot protect—and are not required to protect—every individual

• The courts have consistently ruled that the police do not have an obligation to protect individuals, only the public in general. For example, in Warren v. D.C. the court stated "courts have without exception concluded that when a municipality or other governmental entity undertakes to furnish police services, it assumes a duty only to the public at large and not to individual members of the community."
• Former Florida Attorney General Jim Smith told Florida legislators that police responded to only about 200,000 of 700,000 calls for help to Dade County authorities. Smith was asked why so many citizens in Dade County were buying guns and he said, "They damn well better, they've got to protect themselves."
• The Department of Justice found that in 1989, there were 168,881 crimes of violence which were not responded to by police within 1 hour.
• Currently, there are about 150,000 police officers on duty at any one time to protect a population of more than 250 million Americans—or almost 1,700 citizens per officer.

Poor track record

• Washington, D.C. has, perhaps, the most restrictive gun control laws in the country, and yet it has one of the highest murder rates in the nation.
• Objection: Critics claim criminals merely get their guns in Virginia where the laws are more relaxed. This, they argue, is why the D.C. gun ban is not working.
• Answer: Perhaps criminals do get their guns in Virginia, but this overlooks one point: If the availability of guns in Virginia is the root of D.C.'s problems, why does Virginia not have the same murder and crime rate as the District? Virginia is awash in guns and yet the murder rate is much, much lower. This holds true even for Virginia's urban areas. The murder rates are:

City 1997 Murder rate Washington, DC 56.9 per 100,000 Arlington, VA 1.6 per 100,000 (Arlington is just across the river from D.C.) Total VA metro area rate: 7.9 per 100,000

• Guns are not the problem: On the contrary, lax criminal penalties and laws that disarm the law-abiding are responsible for giving criminals a safer working environment.

Criminologists turning from anti-gun position

• Dr. Gary Kleck: A criminologist at Florida State University, Kleck began his research as a firm believer in gun control. But in a speech delivered to the National Research Council, he said while he was once "a believer in the 'anti-gun' thesis," he has now moved "beyond even the skeptic position." Dr. Kleck now says the evidence "indicates that general gun availability does not measurably increase rates of homicide, suicide, robbery, assault, rape, or burglary in the US."
• James Wright: Formerly a gun control advocate, Wright received a grant from President Carter's Justice Department to study the effectiveness of gun control laws. To his surprise, he found that waiting periods, background checks, and all other gun control laws were not effective in reducing violent crime.
• Wright says at one time, "It seemed evident to me, we needed to mount a campaign to resolve the crisis of handgun proliferation." But he says, "I am now of the opinion that a compelling case for 'stricter gun control' cannot be made."
• Every scholar who has "switched" has moved away from the anti-gun position. Dave Kopel, an expert in constitutional issues and firearms research, categorically states that, "Every scholar who has 'switched' has 'switched' to the side that is skeptical of controls. Indeed, most of the prominent academic voices who are gun control skeptics—including law professor Sanford Levinson and criminologists Gary Kleck and James Wright—are people who, when they began studying guns, were supporters of the gun control agenda."
• Kopel continues: "I do not know of a single scholar who has published a pro-control article who started out as a skeptic of gun control. This suggests how heavily the weight of the evidence is distributed, once people begin studying the evidence."

Waiting periods threaten the safety of people in imminent danger

• Bonnie Elmasri: She inquired about getting a gun to protect herself from a husband who had repeatedly threatened to kill her. She was told there was a 48 hour waiting period to buy a handgun. But unfortunately, Bonnie was never able to pick up a gun. She and her two sons were killed the next day by an abusive husband of whom the police were well aware.
• Marine Cpl. Rayna Ross: She bought a gun (in a non-waiting period state) and used it to kill an attacker in self-defense two days later. Had a 5-day waiting period been in effect, Ms. Ross would have been defenseless against the man who was stalking her.
• Los Angeles riots: USA Today reported that many of the people rushing to gun stores during the 1992 riots were "lifelong gun-control advocates, running to buy an item they thought they'd never need." Ironically, they were outraged to discover they had to wait 15 days to buy a gun for self-defense.

Background checks do not disarm the violent criminal population

• A Justice Department survey of felons showed that 93% of handgun predators had obtained their most recent guns "off-the-record."
• Press reports show that the few criminals who get their guns from retail outlets—most do not—can easily get fake IDs or use surrogate buyers, known as "straw purchasers," to buy their guns.

Prior restraints on rights are unconstitutional

1. Second Amendment protects an individual right

Report by the US Senate Subcommittee on the Constitution (1982):

• "The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."
• Supreme Court admits "the people" in the Second Amendment are the same "people" as in the rest of the Bill of Rights—In US. v. Verdugo-Urquidez the Court stated that "'the people" seems to have been a term of art employed in select parts of the Constitution… [and] it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."

2. Courts agree that rights should be free from prior restraints

• Near v. Minnesota: In this case, the Supreme Court stated that government officials should punish the abuse of a right and not place prior restraints on the exercise of the right.
• What about yelling "Fire" in a crowded theater?: The courts have stated that one cannot use his "freedom of speech" to yell "Fire" in a crowded theater. And yet, no one argues that officials should gag everyone who goes into the theater, thus placing a prior restraint on movie-goers. The proper response is to punish the person who does yell "Fire." Likewise, citizens should not be "gagged" before exercising their Second Amendment rights, rather they should be punished if they abuse that right.

The Brady registration law is NOT working

General Accounting Office Study:

• The Brady Law has failed to result in the incarceration of dangerous criminals. After the first year and a half, there were only seven successful prosecutions for making false statements on Brady handgun purchase forms—and only three of them were actually incarcerated. With only three criminals sent to jail, one can hardly argue that the law is working to keep violent criminals from getting handguns on the street.
• The Brady Law has ERRONEOUSLY denied firearms to thousands of applicants. Over fifty percent of denials under the Brady Law are for administrative snafus, traffic violations, or reasons other than felony convictions.
• Gun control advocates admit the Brady Law is not a panacea. According to a January, 1996 report by the General Accounting Office, "Proponents [of gun control] acknowledge that criminal records checks alone will not prevent felons from obtaining firearms."
• Criminals can easily evade the background checks by using straw purchasers: "Opponents of gun control note that criminals can easily circumvent the law by purchasing handguns on the secondary market or by having friends or spouses without a criminal record make the purchases from dealers."

Licensing or registration can lead to confiscation of firearms

• Step One: Registration. In the mid-1960's officials in New York City began registering long guns [rifles and shotguns]. They promised they would never use such lists to take away firearms from honest citizens. But in 1991, the city banned (and soon began confiscating) many of those very guns.
• Step Two: Confiscation. In 1992, a New York City paper reported that, "Police raided the home of a Staten Island man who refused to comply with the city's tough ban on assault weapons, and seized an arsenal of firearms… Spot checks are planned [for other homes]."
• Registration and Confiscation in California: The Golden State passed a ban on certain semi-automatic firearms in 1989. Banned guns could be legally possessed if they were registered prior to the ban. In the Spring of 1995, one man who wished to move to California asked the Attorney General whether his SKS Sporter rifle would be legal in the state. The citizen was assured the rifle was legal, and based on that information, he subsequently moved into the state. But in 1998, California officials reversed course and confiscated the firearm.
• Foreign Countries: Gun registration has led to confiscation in several countries, including Greece, Ireland, Jamaica and Bermuda. And in an exhaustive study on this subject, Jews for the Preservation of Firearms Ownership has researched and translated several gun control laws from foreign countries. Their publication, Lethal Laws: "Gun Control" is the Key to Genocide documents how gun control (and confiscation) has preceded the slaughter and genocide of millions of people in Turkey, the Soviet Union, Germany, China, Cambodia and others.

People in imminent danger can die waiting for a firearms license

• In 1983, Igor Hutorsky was murdered by two burglars who broke into his Brooklyn furniture store. The tragedy is that some time before the murder, his business partner had applied for permission to keep a handgun at the store. Even four months after the murder, the former partner had still not heard from the police about the status of his gun permit.

The power to license a right is the power to destroy a right

• Arbitrary Delays: While New Jersey law requires applications to be responded to within thirty days, delays of ninety days are routine; sometimes, applications are delayed for several years for no readily apparent reason.
• Arbitrary Denials: Officials in New York City routinely deny gun permits for ordinary citizens and store owners because—as the courts have ruled—they have no greater need for protection than anyone else in the city. In fact, the authorities have even refused to issue permits when the courts have ordered them to do so.
• Arbitrary Fee Increases: In 1994, the Clinton administration pushed for a license fee increase of almost 1,000 percent on gun dealers. According to US News & World Report, the administration was seeking the license fee increase "in hopes of driving many of America's 258,000 licensed gun dealers out of business."

Officials cannot license or register a constitutional right

• The Supreme Court held in Lamont v. Postmaster General (1965) that the First Amendment prevents the government from registering purchasers of magazines and newspapers—even if such material is "communist political propaganda."

Definition of real "assault weapons"

• According to one of the preeminent experts in the field of firearms, Dr. Edward Ezell, a key characteristic of a true assault weapon is that it must have the capability of "full automatic fire." Similarly, the US Defense Department defines real assault weapons as "selective-fire weapons"—meaning that these guns can fire both automatically or semi-automatically.
• Anti-gun loonies in recent years have managed to define "assault weapons" as semi-automatic firearms which only externally resemble a military firearm. Dr. Edward Ezell notes that true assault weapons "were designed to produce roughly aimed bursts of full automatic fire"—something which a semi-automatic firearm does not do.

Semi-automatic "assault rifles" are no different than many hunting rifles

• Officer William McGrath: "These [semi-automatic assault rifles] are little different than the semi-automatic hunting rifles that have been on the market since before World War II. The main difference between an assault rifle and a semi-automatic hunting rifle is that the assault rifle looks more 'military.'"
• "The term 'assault' rifle is really a misnomer as a true assault rifle is a selective fire weapon capable of switching from fully automatic to semi automatic and back with the flip of a lever."
• "The charge that the assault rifle holds more rounds than a 'legitimate' hunting rifle shows either a lack of knowledge or a deliberate twisting of the facts, as 10, 20 and 30 round magazines for 'legitimate' hunting rifles have been on the market for decades without the world coming to an end."

So-called assault weapons have never been the "weapon of choice" for criminals

(All of the following figures pre-date the "assault weapons" ban passed by Congress in 1994)

• Police View: Over 100,000 police officers delivered a message to Congress in 1990 stating that only 2% to 3% of crimes are committed using a so-called "assault weapon."
• New Jersey: The New York Times reported that, "Although New Jersey's pioneering ban on military-style assault rifles was sold to the state as a crime-fighting measure, its impact on violence in the state… has been negligible, both sides agree." Moreover, New Jersey police statistics show that only .026 of 1 percent of all crimes involve "assault rifles."
• Nationwide: The Bureau of Justice Statistics reported in 1993 that violent criminals only carry or use a "military-type gun" in about 1 percent of the crimes nationwide.
• Knives more deadly: According to the FBI, people have a much greater chance of being killed by a knife or a blunt object than by any kind of rifle, including an "assault rifle." In Chicago, the chance is 67 times greater. That is, a person is 67 times more likely to be stabbed or beaten to death in Chicago than to be murdered by an "assault rifle." [Let’s ban cutlery!]
• Cops' own guns more deadly: So-called assault weapons are not menacing police officers nationwide. The FBI reports show that before the 1994 ban on semi-automatic "assault weapons," no more than three officers were killed in any one year by such guns. In Contrast, police officers were more than three times as likely to be killed by their own guns than by "assault weapons."
• It would seem one can't have it both ways. If Congress wants to ban weapons that are dangerous to police, then it should begin by pushing for a ban on police officers' own weapons, since these guns kill far more often than "assault weapons." The same is true with knives and blunt objects. These instruments kill policemen more often than semi-automatic "assault weapons."
• Sarah Brady's own figures show that so-called assault weapons are not the criminal's "weapon of choice." A study published by Handgun Control, Inc. in November of 1995 shows that the overwhelming majority of guns used to murder police officers are not "assault weapons." The irony is that HCI uses a very inflated definition [a lie] of "assault weapon" and still can not demonstrate that they are used in over 50% of the crimes.
• Does tracing of crime guns show that "assault weapons" are the weapons of choice for criminals? No. Gun control advocates will often make the claim that so-called assault weapons are frequently used in crime. To justify this claim, such advocates will cite as "evidence" the fact that law-enforcement run a high percentage of traces on these types of firearms. But this is a classic example of circular reasoning: law enforcement arbitrarily run a high percentage of trace requests on "assault weapons," and then this figure is used to justify the "fact" that these guns are frequently used in crime. Consider the following:
• Tracing requests are not representative of all guns used in crime. The Congressional Research Service states that, "Firearms selected for tracing do not constitute a random sample and cannot be considered representative of the larger universe of all firearms used by criminals." Moreover, BATF agents themselves have stated that, "ATF does not always know if a firearm being traced has been used in a crime."
• Tracing requests are not random samples. CRS notes that "ATF tracing data could be potentially biased because of screening conducted by local ATF agents prior to the submission of the tracing from." This means that police could, if they wanted, only trace so-called assault weapons. Would this mean that they are the only guns used in crime? No, it would just mean that law enforcement have a particular interest in tracing "assault weapons" over other guns.
• Tracing in L.A: That tracing is an unreliable measure of a gun's use in crime is clear. For example, in 1989 in Los Angeles, "assault rifles" represented approximately only 3% of guns seized, but 19% of gun traces.

Semi-automatic "assault weapons" are excellent for self-defense

Police Capt. Massad Ayoob:

• "The likelihood of multiple opponents who move fast, often wear body armor, know how to take cover, and tend to ingest chemicals that make them resistant to pain and shock, are all good reasons for carrying guns that throw a whole lot more bullets than six-shooters do."
• "All four of these factors make it likely that more of the Good Guys' bullets will be expended before the Bad Guys are neutralized. All of these factors, therefore, militate for a higher capacity handgun in the hands of the lawful defenders."

1. Drugs and alcohol can make criminals resistant to pain

• Arkansas: A drunk opened fire on an officer, who responded by firing 29 shots—15 of them striking the criminal. It was only the last—the 15th—bullet which finally killed the drunk and effectively stopped him from shooting.
• Illinois: Police shot a drug-induced criminal 33 times before the junkie finally dropped and was unable to shoot any longer.

2. Hi-capacity semi-autos can help decent people to defend themselves

• Los Angeles riots: Many of the guns targeted by so-called assault weapons bans are the very guns with which the Korean merchants used to defend themselves during the 1992 Los Angeles riots. Those firearms proved to be extremely useful to the Koreans. Their stores were left standing while other stores around them were burned to the ground.
• The Korean merchants would probably agree with Capt. Massad Ayoob. When one is facing mob violence and the police are nowhere to be found, one needs a gun that shoots more than just six bullets. A ban on large capacity semi-automatic firearms will only harm one's ability to defend himself and his family.

The Second Amendment protects an individual's right to own military rifles and handguns

Report by the US. Senate Subcommittee on the Constitution (1982):

• "In the Militia Act of 1792, the second Congress defined 'militia of the United States' to include almost every free adult male in the United States. These persons were obligated by law to possess a [military-style] firearm and a minimum supply of ammunition and military equipment… There can be little doubt from this that when the Congress and the people spoke of the/a 'militia,' they had reference to the traditional concept of the entire populace capable of bearing arms, and not to any formal group such as what is today called the National Guard."
• The Supreme Court: In US. v. Miller, the Court stated that, "The Militia comprised all males physically capable of acting in concert for the common defense… [and that] when called for service, these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

There is more—so much more: Download the PDF and read it. Google the appropriate keywords and phrases and you will find literally mountains of data showing that gun laws are the cause of the problem, not the cure.

The bottom line here is:

The police cannot protect you. It is your duty to you and your family to protect them and yourself.

Join and support the NRA.

Vote the anti-gun, anti-self-defense lunatic fringe out of office and keep them out.

Buy a high-capacity handgun and learn how and when to use it.

And if you have to use it, use it fast—without hesitation—and keep shooting the bastard until he stops wiggling.

It’s literally his funeral or yours: Which family do you want gathered around the casket?

No more Binghamtons, no more Virginia Techs.

Draconian Internet Copyright Law Dead, Or Is It?

New Zealand Parliament relents after public outrage

Section 92A scrapped, to be re-written

New Zealand Commerce Minister Simon Power announced today that Section 92A of New Zealand's copyright law will not come into force on 27 March as previously planned.

As outlined in my 16 February 2009 article, Guilt On Accusation - Draconian Internet Copyright Law To Be Enacted, under this ill-conceived law, internet users’ accounts would have been terminated as a result of unproven accusations of piracy. Section 92A stated that if a copyright owner thinks an internet user guilty of repeatedly breaching copyright, the user’s ISP would have been forced the terminate the user's internet connections and websites.

In protest of this law and under encouragement from the Creative Freedom Coalition, thousands of New Zealanders blacked out their websites, Myspace pages, Facebook photos, and Twitter accounts.

In my 13 March follow-up to that article, Draconian New Zealand Copyright Law Foundering?, I noted that New Zealand's Telecommunications Carriers’ Forum (TCF) spent weeks trying to draft a Code of Practice dealing with the implementation of Section 92A, but TCF member TelstraClear stated they would veto that code.

New Zealand Prime Minister John Key said Monday:

"We have now asked the minister of commerce to start work on a replacement section [for 92A]... There is a need for legislation in this area. Some progress was made between copyright holders and the ISPs but not enough to agree a code of conduct... In our view there are a number of issues that made it difficult to complete that code of conduct without fixing the fundamental flaws in section 92a."

The bottom-line in all this: Which is ultimately most important? Ensuring above all else that an extra 30-cents go into the pocket of a—likely wealthy—copyright holder, or protecting the rights of all citizens to due process of law in the face of unproven accusations? Seems like a no-brainer to me.

Does the New Zealand Parliament—or the government of any nation—first and foremost represent and protect its citizens? Or does it despotically chuck the peoples' rights out the window in order to placate grumbling, paranoid, billion-dollar corporations whose sole reason for existence is to make money? Should the rights of such corporations be protected? Certainly! But NEVER at the expense of the basic civil rights of the people which a government is required to protect!

Such corporations are acting purely in self-interest: By pressuring politicians to enact this and similar draconian laws, they have shown that they have absolutely no interest in the rights of others. These corporations and their representatives, the RIAA, RIANZ and others, are NOT police forces, they don’t know how to be police forces, they cannot be trusted to behave responsibly as police forces, and they must not be given—by any nation—the power to act as police forces. If they have evidence of theft of their products, such evidence should be turned over to appropriate authorities for a proper and lawful investigation—as any other private entity is required to.

Lets hope—indeed, all New Zealanders should expect and require—that in re-drafting this despicable law, New Zealand's Parliament—civil servants, NOT civil masters—will, this time, do their damn jobs: Protecting and ensuring the rights of the people of New Zealand, rather than abrogating those rights—and Parliament's mandate—by giving entertainment guilds, for pity's sake, independent powers of judge and jury over all internet users in New Zealand.

What on Earth were they thinking?

New Zealanders should contact their MPs through instructions and links on this page and let the rascals know you expect them to ensure civil rights and due process of law.

Draconian New Zealand Copyright Law Foundering?

Major player TelstraClear withdraws its cooperation

Update! See follow-up article: Draconian Internet Copyright Law Dead, Or Is It? March 23, 2009

On 16 February 2009, I wrote about the New Zealand Copyright Act (Section 92A) in Guilt On Accusation - Draconian Internet Copyright Law To Be Enacted. This law would allow American and New Zealand film and music industries to pressure Internet Service Providers (ISPs) to terminate any individual or business users solely on their say so.

On 23 February, the New Zealand government suspended Section 92A which had been scheduled to become active on 28 February. For months, the ruthless law has been under fire from many quarters—not the least of which are some of the ISPs themselves.

Members of the Telecommunications Carriers’ Forum (TCF) a New Zealand organization which develops standards and codes of practice for the New Zealand telecommunications industry, have spent many weeks trying to draft a Code of Practice dealing with the implementation of Section 92A: That Code of Practice needs a unanimous vote to pass TCF's board.

Now TCF member and New Zealand Internet Service Provider giant TelstraClear have stated they will veto the code, saying:

"TelstraClear considers that there is a fundamental problem with the TCF being a party to any code of this nature, which is that the code would be based on flawed legislation… In TetstraClear’s view, any industry code would simply be an attempt to tidy up poorly drafted legislation. TelstraClear does not consider this to be the responsibility of the TCF. Indeed the best outcome would be if s92A was repealed. Failing that, it should be amended to address the above concerns."

InternetNZ, the group which oversees the Internet in New Zealand—including the management of the .nz domain name system—says implementation of Section 92A will be impossible without TelstraClear's participation:

...TelstraClear’s decision not to support the Telecommunications Carriers’ Forum Copyright Code of Practice means the Government should promptly repeal Section 92A of the Copyright Act.

“Executive Director Keith Davidson notes that the TelstraClear decision means the TCF cannot now implement the Code.”It is clear that the agreement that the Government sought will not now be reached between ISPs and rightsholders. To attempt to bring 92A into force now would invite disaster,” Davidson says.

“The problems with the Code have come to a head because the Government made the future of Section 92A dependent on agreement between a limited group of rights holders and a small number of ISPs.

“What about everyone else who is affected? Section 92A applies to any business that provides Internet services to its staff or hosts a website, and can be triggered by any rights holder or claimed rightsholder with a genuine complaint or a malicious axe to grind,” says Davidson.

The University of Auckland has expressed its concerns:

"The main problem is in Section 92A of the Copyright Act which we believe should be removed from the Act or, if it is to remain in some form, then substantially redrafted with input from stakeholders as would have happened during a select committee process."

"The activities of a university also make use of third party copyright materials. These activities could be seriously affected by copyright notices from rights owners demanding the termination of the accounts of a staff member or a student who has legitimately downloaded material under the fair dealing and education provisions of the Act or under the many licences [sic] the University holds to copy and use third party copyright materials. Universities largely have processes and penalties in place to deal with any copyright infringement by staff and students, but these may or may not incorporate the termination provisions. The requirement to terminate accounts or comply with a Code which cuts across those policies threatens institutional autonomy. A university may face unreasonable compliance costs and procedures if it adopts the Draft Code."

Judge David Harvey, former Chair of the New Zealand Copyright Tribunal and author of Internet.law.nz - Selected Issues
has this to say:

"[Section 92A] is poorly drafted and makes a number of unsupported assumptions, but in essence it suggests that an Internet service provider must develop a policy to cancel an existing contract as a result of copyright infringement.

"The reality of the matter is that the cancellation or termination of the contract arises at the behest, not of the Internet service provider, but of copyright owners. Without significant justification in normal circumstances this could amount to an interference with economic relations and raises significant issues about the sanctity of contract... section 92A is unnecessary and gives rise to a situation where a person may be deprived of rights under a contract without proper legal process."

Google voiced its objections in a 6 March 2009 document to TCF:

“Google has a number of concerns around the new section 92A and the impact the section 92A obligation is likely to have on the balance of interests served by copyright law:

"Section 92A undermines the incredible social and economic benefits of the open and universally accessible Internet, by providing for a remedy of account termination or disconnection that is disproportionate to the harm of copyright infringement online.

"Section 92A puts users’ procedural and fundamental rights at risk, by threatening to terminate users’ Internet access based on mere allegations and reverse the burden of proof onto a user to establish there was no infringement. In Google’s experience, there are serious issues regarding the improper use and inaccuracy of copyright notices by rights holders.

"Section 92A could impose significant burdens on ISPs, as it threatens to require enforcement of policies based simply on rights holders’ allegations of infringement."

There are those who maintain that the withdrawal of TelstraClear sounds the death knell for Section 92a, but the New Zealand parliament is still debating courses of action.

The bottom line in all this is that no one—anywhere—should be deprived of their civil rights, of due course of law, particularly when the accuser is a private party with an agenda but no clear evidence of an internet user’s wrongdoing.

The battle for New Zealanders’ civil rights continues.

Quacks Want Patients To Sign Gag order

Doctors and their arrogance! They make you sit in the waiting room half-an-hour past your appointment time, treat your complaints with condescension, charge you $200 dollars to tell you you have the flu and there’s nothing they can do for you, then rush you out of the office before you can ask about that throbbing pain in your duodenum.

Now, they want to deprive you of your First Amendment Rights!

Unnerved by internet websites that rate physicians, some doctors are forcing patients to sign waivers preventing patients from criticizing them. If a patient refuses to sign the agreement the doctor could turn the patient away.

Sites such as RateMDs and Angie’s List feature physician reviews and ratings based on patient feedback.

John Swapceinski, co-founder of RateMDs.com, said that in recent months, six doctors have asked him to remove negative online comments based on patients' signed waivers. He has refused. Kudos to Mr. Swapceinski!

"They're basically forcing the patients to choose between health care and their First Amendment rights, and I really find that repulsive," Swapceinski said.

He said he's planning to post a "Wall of Shame" listing names of doctors who use patient waivers.

RateMds’ postings are anonymous, and the site's operators say they do not know their users' identities. The operators also won't remove negative comments.

Medical Justice, is a physicians’ service based in Greensboro, N.C. For a fee, it provides doctors with a standardized waiver agreement. Patients who sign agree not to post online comments about the doctor, "his expertise and/or treatment." Doctors who sign up for Medical Justice’s service are notified when a negative rating appears on a website, and, if the author's name is known, physicians can use the signed waivers to get the sites to remove offending opinion.

Jeffrey Segal, of Medical Justice, said the waivers are aimed more at giving doctors ammunition against websites than against patients. Still, the company's suggested wording warns that breaching the agreement could result in legal action against patients.

Dr. Josef Mengele He didn’t want his patients talking either

Attorney Jim Speta, a Northwestern University Internet law specialist, questioned whether such lawsuits would have much success.

"Courts might say the balance of power between doctors and patients is very uneven" and that patients should be able to give feedback on their doctors' performance, Speta said.

Angie Hicks, founder of Angie's List, said her company surveyed more than 1,000 of its consumer members last month, and most said they had never been presented with a waiver; only 3% said they would sign one.

About 6,000 doctors reviewed on the Angie's List site also were asked to comment. Only 74 responded, and about a fifth of them said they would consider using them.

Angie's List's operators do know the identities of users and warn them when they register that the site will share names with doctors if asked.

Lenore Janecek, who formed a Chicago-based patient-advocacy group after being wrongly diagnosed with cancer, said she opposes the waivers.

"Everyone has the right to speak up," she said.

While she's never posted comments about her doctors, she said the sites are one of the few resources patients have to evaluate physicians.

Guilt On Accusation - Draconian Internet Copyright Law To Be Enacted

The New Zealand Parliament Wins Our 'Useless Git of the Week' Award

Three Strikes and You Are Terminated

Will It Happen In The US?

Update! See follow-up articles:
Draconian New Zealand Copyright Law Foundering? March 13, 2009
Draconian Internet Copyright Law Dead, Or Is It? March 23, 2009

A new draconian law in New Zealand allows the American and New Zealand film and music industries to pressure Internet Service Providers (ISPs) to terminate any individual or business users solely on their say so. If an ISP resists, they may be sued for not complying with the new law--as has happened in Australia.

Under a new provision in the New Zealand Copyright Act (Section 92A), which comes into force on 28 February, internet users’ accounts can be terminated as a result of unproven accusations of piracy. Section 92A states that if a copyright owner thinks that an internet user is guilty of repeatedly breaching copyright, then the user’s ISP will be forced the terminate their internet connections and websites.

In an internet version of the Salem Witch Hunts, the concept of “innocent until proven guilty” will be thrown out the window. Termination of Internet access will occur without any evidence, without a fair trial, without any right of appeal, and with no punishment for anyone making erroneous or malicious accusations of copyright infringement.

A "copyright holder" can get you kicked off an ISP without having to provide any evidence of an actual infringement. Having to [provide evidence] is apparently "impractical" and "ridiculous" in the words of RIANZ [Recording Industry Association of New Zealand] chief executive Campbell Smith. What happens when the "you" above is a public library, or a school? Or if the "copyright holder" makes a mistake or a malicious accusation?

--ComputerWorld Magazine (New Zealand)

Making mistakes can be an easy thing to do. 25% of computers are infected with viruses that download and distribute material without the owners knowledge, interaction or consent. What happens to computer users whose wireless internet connection is compromised? What if that user is a school or hospital?

Already, New Zealand Internet Service Provider giant TelstraClear's head of corporate services, Matthew Bolland, has stated that from 1 November 2008, TelstraClear is taking down websites upon a single accusation of copyright breach. "We don't check or verify," Bolland said "We take it down." ISPs like TelstraClear do not and cannot identify copyright infringement which is why this law forces them to take such actions.

Too bad if the IP has been spoofed, or the accusation is unfounded or even malicious--there is no right for contesting the claim. Too bad too, if the IP is being used by a school, library, university, hospital, business or even a government office!

Justin Graham of the New Zealand law firm Chapman Tripp confirms that the act fails to differentiate between individual accounts (home users) and internet accounts with multiple users such as businesses.

Rick Shera, a partner in law firm Lowndes Jordan, says ISPs have to decide whether material infringes copyright after receiving a complaint. If ISPs choose to leave the material up they have no protection from liability for secondary copyright infringement. The risk of not removing material is, therefore, greater than the risk of taking that material down, Shera says.

Effectively, a single person's bad behavior can bring down an institution, all because certain elements of the recording, videogame and movie industries can't solve their own piracy problems.

"Businesses support the need to protect intellectual property, and we are sympathetic to the significant problems the music, movie and gaming industries face. However, balance is the key. Protecting one person's interests at the expense of others is completely inappropriate," Telecommunications Carriers Forum chief executive Ralph Chivers said.

More sadly, it's symptomatic of a technologically uneducated group of political decision makers being taken for a ride by lobbyists putting their interests ahead of the nation.

--National Business Review (New Zealand)

"What it does is it forces internet service providers to cut off the internet of anyone who's accused of infringing copyright, not found guilty, just accused," said Bronwyn Holloway-Smith of New Zealand’s Creative Freedom Coalition.

Until August, Elliott Smith had over 100 videos on YouTube. Then, he made the mistake of uploading Olympics footage without permission and within 12 hours his account was suddenly deleted.

"I emailed YouTube and they didn't get back to me. So I ended up just setting up a new account. It's probably easier than going back but I didn't have any of my old videos or anything saved to my hard drive so it's a bit of a hassle," said Smith.

The new law forces New Zealand ISPs into the untenable position of being the police, judge, jury and executioners for the entertainment industry. “Three-strike” laws--as proposals to force ISPs to terminate internet users merely accused of illegally downloading copyright material have been called--are being pushed globally by “Big Content” representatives of the entertainment industries. Australia and France recently caved-in and agreed to enact such laws, though the Parliaments of the European Union and the UK have rejected them.

In protest, the Creative Freedom Coalition and others have organized an “internet blackout” February 16-23, during which they encourage internet users to: “Join thousands of New Zealanders already against this law by blacking out your Facebook photo, your websites, your Myspace pages, your Twitter account, in protest against this unjust new law that may come into effect on February 28.”

How long before it happens where you live?