larvatus: (rock)
As of today, citizens of California no longer need any more of an excuse to be licensed to carry a gun than to be licensed to drive a car.

Plaintiffs in Richards v. Prieto had argued that Yolo County’s Sheriff’s policy, in light of the California regulatory regime as a whole, abridges the Second Amendment right to bear arms because its definition of “good cause” prevents a responsible, law-abiding citizen from carrying a handgun in public for the lawful purpose of self-defense. Yolo County’s policy provided that “self protection and protection of family (without credible threats of violence)” are “invalid reasons” for requesting a concealed handgun carry permit. The district court concluded that Yolo County’s policy did not infringe Richards’ Second Amendment rights and denied Richard’s motion for summary judgment while granting the MSJ of Sheriff Ed Prieto. Today, Justice Diarmid O'Scannlain reversed and remanded this ruling on behalf of the United States Court of Appeals for the Ninth Circuit.

Thus the court granted the plaintiffs’s demands:
  1. Declaratory relief that the “good moral character” and “good cause” provisions of California Penal Code § 12050 are unconstitutional either on their face and/or as applied to bar applicants who are otherwise legally qualified to possess firearms and who assert self-defense as their “good cause” for seeking a handgun carry permit; and
  2. An order permanently enjoining Defendants, their officers, agents, servants, employees, and all persons in active concert or anticipation with them who receive actual notice of the injunction, from enforcing the “good moral character” and “good cause” requirements of California Penal Code § 12050 against handgun carry permit applicants who seek the permit for self-defense and are otherwise qualified to obtain a handgun carry permit under that section.
It’s all over for hoplophobes, but for the shouting.
larvatus: (rock)
And indeed, the United States will stand with the international community in affirming that there will be costs for any military intervention in Ukraine.
Barack Hussein Obama, 28 February 2014
On the same date, June 23, 1915, he wrote to his life-long friend Owen Wister:
    “Your friend, the English pacifist, turned up. He seems an amiable, fuzzy-brained creature; but I could not resist telling him that I thought that in the first place Englishmen were better at home doing their duty just at present, and in the next place, as regards both Englishmen and Americans, that the prime duty now was not to talk about dim and rosy Utopias but, as regards both of them, to make up their minds to prepare against disaster and, as regards our nation, to quit making promises which we do not keep. Taft, second only to Wilson and Bryan, is the most distinguished exponent of what is worst in our political character at the present day as regards international affairs; and a universal peace league meeting which has him as its most prominent leader, is found on the whole to do mischief and not good.
    “I was immensely pleased and amused with your last Atlantic article (‘Quack Novels and Democracy’) and I think it will do good. I wish you had included Wilson when you spoke of Bryan, and Pulitzer when you spoke of Hearst. Pulitzer and his successors have been on the whole an even greater detriment than Hearst, and Wilson is considerably more dangerous to the American people than Bryan. I was very glad to see you treat Thomas Jefferson as you did. Wilson is in his class. Bryan is not attractive to the average college bred man; but The Evening Post, Springfield Republican, and Atlantic Monthly creatures, who claim to represent all that is highest and most cultivated and to give the tone to the best college thought, are all ultra-supporters of Wilson, are all much damaged by him, and join with him to inculcate flabbiness of moral fiber among the very men, and especially the young men, who should stand for what is best in American life. Therefore to the men who read your writings Wilson is more dangerous than Bryan. Nothing is more sickening than the continual praise of Wilson’s English, of Wilson’s style. He is a true logothete, a real sophist; and he firmly believes, and has had no inconsiderable effect in making our people believe, that elocution is an admirable substitute for and improvement on action. I feel particularly bitter toward him at the moment because when Bryan left I supposed that meant that Wilson really had decided to be a man and I prepared myself to stand wholeheartedly by him. But in reality the point at issue between them was merely as to the proper point of dilution of tepid milk and water.”
—Joseph Bucklin Bishop, Theodore Roosevelt and His Time: Shown in His Own Letters, Charles Scribner’s Sons, 1920, pp. 385-386



The President’s first note to Berlin about the sinking of the Lusitania, the “strict accountability” note, was followed by a second in a tone so different that it drew from Elihu Root the memorable observation:
    “You shouldn’t shake your fist at a man and then shake your finger at him.
    Taft had humorously described Bryan’s statesmanship as: “Chautauquan diplomacy.
    Roosevelt had described the President’s foreign attitude as: “Waging peace.
Owen Wister, Theodore Roosevelt: The Story of a Friendship, 1880-1919, Macmillan, 1930, p. 344
larvatus: (rock)
Writing for The London Review of Books, David Bromwich summarizes the state of our union:
Since the prosecutions of whistleblowers, the abusive treatment of [Bradley] Manning and the drone assassinations of American citizens have been justified by the president and his advisers, a dissident in the US may now think of his country the way the dissidents in East Germany under the Stasi thought of theirs. ‘The gloves are off.’ Nor should we doubt that a kindred fear is known even to the persons who control the apparatus.
I offer the following thoughts in the nature of commentary.

Shortly after 9/11 Dick Cheney proclaimed that it will be necessary for us to be a nation of men, and not laws. Shortly after Edward Snowden disclosed the scope and extent of NSA surveillance, giving the lie to its sworn denial by the parties responsible for its execution, Barack Obama sought to reassure us that he wasn’t Dick Cheney. That is right, in so far as the limited surveillance of foreign communications advocated and implemented by Cheney, has been extended to all Americans under the Obama administration.

In the wake of Snowden’s disclosures, Obama has sought to reassert “the system of checks and balances” around NSA surveillance and to “set up and structure a national conversation” on cyber surveillance and civil rights. Ironically, up to now, the system of checks and balances has been stymied, as the Supreme Court shut down the last attempt to adjudicate the legality of NSA surveillance for want of standing. In other words, it found the plaintiffs unable to prove their injury by snooping so secret that it couldn’t be publicly acknowledged. Snowden has single-handedly removed this obstacle to judicial scrutiny. He cannot be faulted for the crimes he committed in doing so, just as he cannot be faulted for taking our manly overlords at their lawless word. In a system whose executive branch has arrogated the unalterable authority to execute its citizens without a trial, whose courts have renounced their power to deny any warrant or check any prosecution in the matters of national interest, an individual willing and able to expose the abuses of power under the color of authority, has every right to place himself above the law, even as the state loses its authority over a challenger to its corruption. That’s what it means to live in a nation of men, and not laws.

Eighteen years ago, Claire Wolfe observed: “America is at that awkward stage when it’s too late to work within the system, but too early to shoot the bastards.” I am grateful to Snowden for increasing our odds of fixing the system from within, before our bastards are fit to get shot.
larvatus: (rock)

Finley Peter Dunne (1867-1936) as Mr Dooley
Vanity Fair, 27 July 1905
“Was ye iver in th’ pa-apers?” asked Mr. Dooley.

“Wanst,” said Mr. Hennessy. “But it wasn’t me. It was another Hinnissy. Was you?”

“Manny times,” said Mr. Dooley. “Whin I was prom’nent socyally, ye cud hardly pick up a pa-aper without seein’ me name in it an’ th’ amount iv th’ fine. Ye must lade a very simple life. Th’ newspaper is watchin’ most iv us fr’m th’ cradle to th’ grave, an’ befure an’ afther. Whin I was a la-ad thrippin’ continted over th’ bogs iv Roscommon, ne’er an iditor knew iv me existence, nor I iv his. Whin annything was wrote about a man ‘twas put this way: ‘We undhershtand on good authority that M—l—chi H—-y, Esquire, is on thrile before Judge G——n on an accusation iv l—c—ny. But we don’t think it’s true.’ Nowadays th’ larceny is discovered be a newspa-aper. Th’ lead pipe is dug up in ye’er back yard be a rayporther who knew it was there because he helped ye bury it. A man knocks at ye’er dure arly wan mornin’ an’ ye answer in ye’er nighty. ‘In th’ name iv th’ law, I arrist ye,’ says th’ man seizin’ ye be th’ throat. ‘Who ar-re ye?’ ye cry. ‘I’m a rayporther f’r th’ Daily Slooth,’ says he. ‘Phottygrafter, do ye’er jooty!’ Ye’re hauled off in th’ circylation wagon to th’ newspaper office, where a con-fission is ready f’r ye to sign; ye’re thried be a jury iv th’ staff, sintinced be th’ iditor-in-chief an’ at tin o’clock Friday th’ fatal thrap is sprung be th’ fatal thrapper iv th’ fam’ly journal.

“Th’ newspaper does ivrything f’r us. It runs th’ polis foorce an’ th’ banks, commands th’ milishy, conthrols th’ ligislachure, baptizes th’ young, marries th’ foolish, comforts th’ afflicted, afflicts th’ comfortable, buries th’ dead an’ roasts thim aftherward. They ain’t annything it don’t turn its hand to fr’m explaining th’ docthrine iv thransubstantiation to composin’ saleratus biskit. Ye can get anny kind iv information ye want to in ye’er fav’rite newspaper about ye’ersilf or annywan else. What th’ Czar whispered to th’ Imp’ror Willum whin they were alone, how to make a silk hat out iv a wire matthress, how to settle th’ coal sthrike, who to marry, how to get on with ye’er wife whin ye’re married, what to feed th’ babies, what doctor to call whin ye’ve fed thim as directed,—all iv that ye’ll find in th’ pa-apers.

“They used to say a man’s life was a closed book. So it is but it’s an open newspaper. Th’ eye iv th’ press is on ye befure ye begin to take notice. Th’ iditor obsarves th’ stork hoverin’ over th’ roof iv 2978½ B Ar-rchey Road an’ th’ article he writes about it has a wink in it. ‘Son an’ heir arrives f’r th’ Hon’rable Malachi Hinnissy,’ says th’ pa-aper befure ye’ve finished th’ dhrink with th’ doctor. An’ afther that th’ histhry iv th’ offspring’s life is found in th’ press:

“‘It is undhershtud that there is much excitement in th’ Hinnissy fam’ly over namin’ th’ lates’ sign. Misther Hinnissy wishes it called Pathrick McGlue afther an uncle iv his, an’ Mrs. Hinnissy is in favor iv namin’ it Alfonsonita afther a Pullman car she seen wan day. Th’ Avenin Fluff offers a prize iv thirty dollars f’r th’ bes’ name f’r this projeny. Maiden ladies will limit their letters to three hundherd wurruds.’

“‘Above is a snap shot iv young Alfonsonita McGlue Hinnissy, taken on his sicond birthday with his nurse, Miss Angybel Blim, th’ well-known specyal nurse iv th’ Avenin’ Fluff. At th’ time th’ phottygraft was taken, th’ infant was about to bite Miss Blim which accounts f’r th’ agynized exprission on that gifted writer’s face. Th’ Avenin Fluff offers a prize iv four dollars to th’ best answer to th’ question: “What does th’ baby think iv Miss Blim?”‘

“‘Young Alf Hinnissy was siven years ol’ yisterdah. A rayporther iv th’ Fluff sought him out an’ indeavored to intherview him on th’ Nicaragooan Canal, th’ Roomanyan Jews, th’ tahriff an’ th’ thrusts. Th’ comin’ statesman rayfused to be dhrawn on these questions, his answer bein’ a ready, “Go chase ye’ersilf, ye big stiff!” Afther a daylightful convarsation th’ rayporther left, bein’ followed to th’ gate be his janial young host who hit him smartly in th’ back with a brick. He is a chip iv th’ ol’ block.’

“‘Groton, Conn., April 8. Ye’er rayporther was privileged to see th’ oldest son iv th’ Hon’rable Malachi Hinnissy started at this siminary f’r th’ idjacation iv young Englishmen bor-rn in America. Th’ heir iv th’ Hinnissys was enthered at th’ exclusive school thirty years befure he was bor-rn. Owin’ to th’ uncertainty iv his ancesthors he was also enthered at Vassar. Th’ young fellow took a lively intherest in th’ school. Th’ above phottygraft riprisints him mathriculatin’. Th’ figures at th’ foot ar-re Misther an’ Mrs. Hinnissy. Those at th’ head ar-re Profissor Peabody Plantagenet, prisident iv th’ instichoochion an’ Officer Michael H. Rafferty. Young Hinnissy will remain here till he has a good cukkin’ idjacation.’

“‘Exthry Red Speshul Midnight Edition. Mumps! Mumps! Mumps! Th’ heir iv th’ Hinnissy’s sthricken with th’ turr’ble scoorge. Panic on th’ stock exchange. Bereaved father starts f’r th’ plague spot to see his afflicted son. Phottygrafts iv Young Hinnissy at wan, two, three, eight an’ tin. Phottygrafts iv th’ house where his father was born, his mother, his aunt, his uncle, Profissor Plantagenet, Groton School, th’ gov’nor iv Connecticut, Chansy Depoo, statue iv Liberty, Thomas Jefferson, Niagara Falls be moonlight. Diagram iv jaw an’ head showin’ th’ prob’ble coorse iv the Mumpococeus. Intherviews with J. Pierpont Morgan, Terry McGovern, Mary MeLain, Jawn Mitchell, Lyman J. Gage, th’ Prince iv Wales, Sinitor Bivridge, th’ Earl iv Roslyn, an’ Chief Divry on Mumps. We offer a prize iv thirty million dollars in advertisin’ space f’r a cure f’r th’ mumps that will save th’ nation’s pride. Later, it’s croup.’

“An’ so it goes. We march through life an’ behind us marches th’ phottygrafter an’ th’ rayporther. There are no such things as private citizens. No matther how private a man may be, no matther how secretly he steals, some day his pitcher will be in th’ pa-aper along with Mark Hanna, Stamboul 2:01½, Fitzsimmons’ fightin’ face, an’ Douglas, Douglas, Tin dollar shoe. He can’t get away fr’m it. An’ I’ll say this f’r him, he don’t want to. He wants to see what bad th’ neighbors are doin’ an’ he wants thim to see what good he’s doin’. He gets fifty per cint iv his wish; niver more. A man keeps his front window shade up so th’ pa-apers can come along an’ make a pitcher iv him settin’ in his iligant furnished parlor readin’ th’ life iv Dwight L. Moody to his fam’ly. An’ th’ lad with th’ phottygraft happens along at th’ moment whin he is batin’ his wife. If we wasn’t so anxious to see our names among those prisint at th’ ball, we wudden’t get into th’ pa-apers so often as among those that ought to be prisint in th’ dock. A man takes his phottygraft to th’ iditor an’ says he: ‘Me attintion has been called to th’ fact that ye’d like to print this mug iv a prom’nent philanthropist;’ an’ th’ iditor don’t use it till he’s robbed a bank. Ivrybody is inthrested in what ivrybody else is doin’ that’s wrong. That’s what makes th’ newspapers. An’ as this is a dimmycratic counthry where ivrybody was bor-rn akel to ivrybody else, aven if they soon outgrow it, an’ where wan man’s as good as another an’ as bad, all iv us has a good chanst to have his name get in at laste wanst a year.

“Some goes in at Mrs. Rasther’s dinner an’ some as victims iv a throlley car, but ivrybody lands at last. They’ll get ye afther awhile, Hinnissy. They’ll print ye’er pitcher. But on’y wanst. A newspaper is to intertain, not to teach a moral lesson.”

“D’ye think people likes th’ newspapers iv th’ prisint time?” asked Mr. Hennessy.

“D’ye think they’re printed f’r fun?” said Mr. Dooley.

larvatus: (rock)
What are the five biggest lies?
    “The check is in the mail.”
    “I won’t come in your mouth.”
    “Some of my best friends are Jewish.”
    “Black is beautiful.”
    “I’m from your government, and I’m here to help you.”
— Blanche Knott (Ashton Applewhite), Truly Tasteless Jokes, 1983, p. 104



“I am obliged to confess I should sooner live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.”
— William F. Buckley Jr., Yale alumnus, Rumbles Left and Right: A Book about Troublesome People and Ideas, 1963, p. 134
larvatus: (rock)
Charles Simic asseverates, without adducing a shred of evidence or articulating a scintilla of argument, that the chief mission of NRA and other gun lobbies is “to drum up business for the 1,200 gun makers in this country”. Let’s see how his claim holds up.

In 2012, according to an analysis by business research firm Hoovers, the gun and ammunition industry in the U.S. generated an estimated $6 billion in revenue. In comparison, Exxon Mobil alone generated $482 billion, with WalMart coming in at $469 billion. Outside of the oil and gas and retail industries, we find Apple at $156 billion, closely followed by General Motors, General Electric, and Berkshire Hathaway at $150, $147, and $144 billion. In the general scheme of things, the aggregate revenue of the U.S. gun industry would place it around relative pipsqueaks on the order of Hershey and Kodak.

If the strength of the gun lobby is owed to the industrial base of its suppliers, why don’t we hear about the politics of chocolate bars or film stock unfairly dominating American lunch counters and movie theaters? Could it be that NRA, in deriving nearly half of its revenues from individual membership dues, functions as a legitimate conduit of public interest, no less so than the Supreme Court of the United States, in affirming the individual right to keep and bear small arms that are commonly used for self-defense and appropriate for service in the militia, including Simic’s bugaboos, “not only hunting rifles but also military-style murder weapons and even hollow-point rounds that are banned in warfare”? Is it possible that Simic bemoans this publicly disclosed and thoroughly litigated state of affairs for want of journalistic integrity that begins with accounting for the financial data and studying the legal rulings of our court of last resort?

As witness Dan Baum interpreting the politics of guns in terms of “the power of the individual in relation to the collective, and the extent to which each of us needs to live by the permission of the rest”, an American liberal need not be a nanny statist. Likewise Seventh Circuit Judge Richard A. Posner, self-identified as a “pragmatic classical liberal”, who invalidated under the Second Amendment an Illinois law, the last in the land to forbid most people, though not politicians, from carrying a loaded gun in public. Simic’s demagogical legerdemain is far more plausibly attributable to intellectual dishonesty than political convictions.

Crossposted to [info]larvatus and [info]guns.
larvatus: (rock)
“No law-abiding citizen in the United States of America has any fear that their constitutional rights will be infringed in any way,” Vice President Joe Biden said on Thursday, 21 February 2013. “None. Zero.”

“I would never inculcate a base and envious suspicion of any man, especially of those who have rendered signal services to their country. But there is a degree of watchfulness over all men possessed of power or influence, upon which the liberties of mankind much depend. It is necessary to guard against the infirmities of the best as well as the wickedness of the worst of men. Such is the weakness of human nature, that tyranny has perhaps oftener sprung from that than any other source. It is this that unravels the mystery of millions being enslaved by the few.”
—Samuel Adams, Letter to Elbridge Gerry, 23 April 1784
“For it is a truth which the experience of all ages has attested, that the people are commonly most in danger, when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.”
—Alexander Hamilton, The Federalist No. 25, 21 December 1787
“In every government on earth is some trace of human weakness, some germ of corruption and degeneracy, which cunning will discover, and wickedness insensibly open, cultivate, and improve. Every government degenerates when trusted to the rulers of the people alone. The people themselves therefore are its only safe depositories. And to render even them safe their minds must be improved to a certain degree. This indeed is not all that is necessary, though it be essentially necessary. An amendment of our constitution must here come in aid of the public education. The influence over government must be shared among all the people. If every individual which composes their mass participates of the ultimate authority, the government will be safe; because the corrupting the whole mass will exceed any private resources of wealth: and public ones cannot be provided but by levies on the people. In this case every man would have to pay his own price. The government of Great-Britain has been corrupted, because but one man in ten has a right to vote for members of parliament. The sellers of the government therefore get nine-tenths of their price clear. It has been thought that corruption is restrained by confining the right of suffrage to a few of the wealthier of the people: but it would be more effectually restrained by an extension of that right to such numbers as would bid defiance to the means of corruption.”
—Thomas Jefferson, Notes on the State of Virginia, 1781-1785
larvatus: (rock)
I deny any predictability in politics, but there are many hurdles on the way to enacting any new Federal gun control laws:
  1. Economics: we have enough guns to arm each American citizen, resident alien, and illegal immigrant. Confiscation without compensation is politically impossible, whereas confiscation with compensation would be economically ruinous. Besides, the state of global economy leaves little room for compounding the Congressional constipation that hold captive any possible means of its resuscitation, by yet another polemical bottleneck.
  2. History: though I am far from the absurdity of their right wing anarchism, I admire the panache with which the Tea Party has commandeered the House of Representatives in the wake of the enactment of Obamacare. Moreover, our elected officials are by law old enough to remember the Republican Revolution ushered in by the 1994 AWB, and preponderantly most mindful of remaining in office. Any other motives they might have would be trumped by concerns for reëlection.
  3. Law: the SCOTUS rulings of the last four years imply that keeping and bearing effective small arms in common use is Constitutionally protected, and their regulation cannot be upheld but by passing at least the intermediate scrutiny test, through showing that it furthers an important government interest in a way that is substantially related to that interest. Black rifles and handguns, the most likely targets of gun banners, are especially unlikely to pass this test in virtue of their utility and ubiquity. (Ironically, the former ascended to their status of the most popular long guns in the U.S. as a result of the 1994 AWB.) Update: Moreover, Justice Roberts’ reading of the Commerce Clause in National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012), appears to leave as little room for the Congress to debar Americans from owning certain goods, as it does for it to require their purchase of broccoli.
  4. Stupidity: no idea is so sensible that our political debate cannot dumb it down fatally, and will not do so inevitably. Ideas most likely to elicit a consensus, such as criminal liability for unsafe storage of firearms, can and will be reduced to prospective measures repugnant to most gun owners, even as they remain inadequate to most nanny staters.
That said, the Gun Ban Games will be loads of fun to live through.
larvatus: (rock)
Of course the Connecticut shooting spree is a uniquely tragic event, and it is vital that we never lose sight of the human tragedy involved. However, we must also consider if this is not also a lesson to us all; a lesson that my political views are correct. Although what is done can never be undone, the fact remains that if the world were organised according to my political views, this tragedy would never have happened.

Many people will use this terrible tragedy as an excuse to put through a political agenda other than my own. This tawdry abuse of human suffering for political gain sickens me to the core of my being. Those people who have different political views from me ought to be ashamed of themselves for thinking of cheap partisan point-scoring at a time like this. In any case, what this tragedy really shows us is that, so far from putting into practice political views other than my own, it is precisely my political agenda which ought to be advanced.

Not only are my political views vindicated by this terrible tragedy, but also the status of my profession. Furthermore, it is only in the context of a national and international tragedy like this that we are reminded of the very special status of my hobby, and its particular claim to legislative protection. My religious and spiritual views also have much to teach us about the appropriate reaction to these truly terrible events.

Countries which I like seem to never suffer such tragedies, while countries which, for one reason or another, I dislike, suffer them all the time. The one common factor which seems to explain this has to do with my political views, and it suggests that my political views should be implemented as a matter of urgency, even though they are, as a matter of fact, not implemented in the countries which I like.

Of course the Sandy Hook massacre is a uniquely tragic event, and it is vital that we never lose sight of the human tragedy involved. But we must also not lose sight of the fact that I am right on every significant moral and political issue, and everybody ought to agree with me. Please, I ask you as fellow human beings, vote for the political party which I support, and ask your legislators to support policies endorsed by me, as a matter of urgency.

It would be a fitting memorial.

larvatus: (rock)
Majority on divided three-judge Seventh Circuit panel invalidated under the Second Amendment an Illinois law forbidding most people from carrying a loaded gun in public, concluding its opinion:
We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.
Circuit Judge Richard A. Posner wrote the majority opinion, in which Circuit Judge Joel M. Flaum joined. Circuit Judge Ann Claire Williams issued a dissenting opinion.
larvatus: (Default)

Satwant Singh Kaleka died as a Sikh, protecting his gurdwara with his kirpan.
I support the Right to keep and bear arms to give men of his caliber a better fighting chance.


larvatus: (Default)
As is well known, Holmes’s theory of liability rested on two interlocking principles. First, the primary purpose of the law is to ‘induce external conformity to rule’, [The Common Law, (M. DeW. Howe edn., 1963), p. 42.] and second, personal moral blameworthiness is not generally an ingredient of liability. [Ibid., pp. 42-3.] I turn first to consider how Holmes applied these central principles to the case of contract. Naturally enough we find many of the same themes as in his theories of liability in the criminal law and in tort. There is, for a start, Holmes’s hostility to the role of morals, expressed in extraordinarily vehement language in ‘The Path of the Law’. [Holmes complained that his own way of looking at the law of contracts ‘stinks to the nostrils of those who think it advantageous to get as much ethics into the law as they can.’ 10 Harv. L. Rev. 457, at p. 462 (1897).] Morality helps put the cart before the horse and makes people think that it is morally wrong to break a contract, and that there is a duty to perform a contract. Not so, says Holmes. The duty to perform a contract is imaginary, and the right to the other party’s performance is even more imaginary. A contracting party has a choice—to perform or to pay damages for not performing. To enter into a contract is not to assume any duty to perform, and is thus analogous to committing a tort. Holmes thus presents his marvellous apothegm: committing a contract is more or less the same thing as committing a tort, except that in the former case liability is conditional on non-performance. [See Pollock-Holmes Letters (ed. M. DeW. Howe, 1941, published in America under the title, Holmes-Pollock Letters), vol. i, at p. 177, vol. ii, at pp. 199-200, 233.] A contract is, in effect, a way of allocating a risk, the risk of non-performance or non-occurrence of an event. [The Common Law, pp. 324-6.] This, in Holmes’s words, frees the subject from the ‘superfluous theory that contract is a qualified subjection of one will to another, a kind of limited slavery’. [Ibid., p. 235.] Many of us today would share Holmes’s satisfaction at the dissolution of that quasi-metaphysical nonsense in his cynical acid. Holmes’s theory of the nature of contractual liability also leads to the conclusion that damages should be limited to those that can reasonably be regarded as part of the risks assumed by the defendant. So punitive damages can be ruled out, the contract-breaker’s motives become immaterial, and perhaps, more generally, damages should be kept on the low side. 
    Lastly, Holmes’s thoughts on contract focus on the external standards of liability and the unimportance of actual internal intention. Mistake, fraud, and the like affect the validity of contract not by reason of a deficiency in the will of the contracting parties, or a failure of assent, but for other, more external reasons. [Ibid., pp. 245-6, 253.] Such external reasons might include the fact that ‘there is no second party, or the two parties say different things, or essential terms seemingly consistent are really inconsistent as used’. [Ibid., p. 246.] Holmes even made the remarkable assertion that the ‘true ground’ of decision in the famous case of Raffles v. Wichelhaus, [(1864) 2 H. and C. 906.] involving the steamship Peerless, was ‘not that each party meant a different thing . . . but that each said a different thing’. [The Common Law, p. 242.] As Grant Gilmore said, this was, ‘even for Holmes an extraordinary tour de force’. [The Death of Contract (1974), p. 41.]
    —P.S. Atiyah, Essays on Contract, Oxford University Press, 1986, pp. 57-58
larvatus: (MZ)
Dear Bay Area law enforcement personnel,

Over the following year, I shall reside and appear in your jurisdictions, exercising my fundamental rights under the First and Second Amendments to the Constitution of the United States in the course of ongoing peaceful public protests, as documented at http://www.subrah.com/ and http://larvatus.livejournal.com/tag/webex. The attached images and the article "Man with semi-automatic weapon protests on Sand Hill", published in a local newspaper, should give you an adequate idea concerning the parameters of my performances.


I conduct my protests in response to independently witnessed and officially documented death threats made against me and my family in order to deter us from pursuing claims recorded in a lawsuit subsequently filed in California Superior Court, County of Santa Clara as case No. 1-02-CV-809286, Zeleny v. Zhu and WebEx, in the names and on the behalves of Min Zhu and WebEx Communications, Inc. The evidence of these threats and their gravity sufficed for Judge Jacob Adajian of Los Angeles Superior Court to acquit me on 11 April 2003 of weapons carry charges on the grounds of necessity, in a bench trial of case No. 2CR11665. In accounting for his acquittal, he ruled:

He wouldn't get a gun permit. He wouldn't get a gun permit. We just don't issue those in L.A. unless you're a movie star or somebody who shouldn't have one. But they manage to get one. Attorney's [sic.] should have one. I couldn't get one when I was an attorney. I know when I became a judge, a responsible person, I was able to get one. Not as an attorney. I think he had a good-faith belief in the threat. He did go to the police. He did do the right thing.

Ten months after this decision, my father Isaak Zelyony, plaintiff in a related lawsuit No. 1-02-CV-810705, styled Zelyony v. Zhu, suffered fatal injuries in an apartment fire that appeared to start at two locations at once. A thorough investigation of causes and origins of this fire, which a retired Los Angeles Fire Department captain undertook on my behalf, failed to rule out the likelihood of foul play. My father was important to me. I am seeking amends for unlawful threats of violence that were followed by his violent death under suspicious circumstances. As of this writing, I have a pending lawsuit in federal court against callers who warned me that my father's death was not an accident and promised to arrange for me to rejoin him. I am protesting the ongoing institutional and individual support of a violent sexual deviant, who represents a grave personal threat to me and my family.


As law enforcement officers, you are well placed to assess my situation. For starters, you might consult the 1988 sealed police report of childhood sexual abuse made by Min Zhu's then 14 year-old daughter Erin. On numerous occasions Erin recounted Min's prior use of the terms that failed to dissuade me from pursuing my claim against him and his company, to persuade her to yield to his sexual advances. Her subsequent complaints of her molestation by Min Zhu can be found on newsgroup alt.sexual.abuse.recovery via Google Groups search for the terms "Erin Zhu sexual abuse". Additionally, they can be found along with her draft complaint against Min Zhu for childhood sexual abuse, her email correspondence with Blixa Bargeld to that effect, and various declarations by third parties attesting to the same facts, as matters of public record in Santa Clara Superior Court case 1-02-CV-809286, Zeleny v. Zhu & WebEx. Erin Zhu has authenticated the accounts of her rape by her father that she had authored and relayed or publicized, in sworn depositions in that case. Moreover, in a sworn deposition taken by John Walton on 3 November 2003, in Zelyony v. Zhu, Santa Clara Superior Court Case Number CV-810705, she confirmed under oath having settled her childhood sexual abuse claim against her father Min Zhu for $300,000, paying her lawyer David Affeld a contingency fee of 2.5%. She admitted having participated in the preparation of the draft complaint, which included a graphic description of her rape by Min Zhu. She acknowledged that after she settled her claim against them, her parents made her the beneficiary of a trust; and although she denied linking it to the settlement, she later settled a claim by her lawyer, who sued her for a contingency fee portion of the trust. While denying on that occasion that her childhood sexual abuse by her father involved "penetration", Erin Zhu confirmed under oath having told her lawyer when they prepared the draft complaint that it did involve penetration, and never having told him otherwise; and she further confirmed under oath that this sexual abuse occurred between 1 and 20 times. I urge you to consult the relevant parts of the transcript of Erin Zhu's referenced deposition, as entered in evidence and permanently consigned to the public record in NEA v. Zeleny, San Mateo Superior Court Case No. CIV499465, in the context of California Penal Code Section 263 providing: "The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime."


My revelations of these facts failed to diminish the support of Min Zhu by the Menlo Park venture capital firm New Enterprise Associates (NEA). By NEA's accounts, its business relationship with Min Zhu began in 1999 when it invested in the company that he founded, WebEx Communications, Inc. According to SEC filings, NEA's General Partner Scott Sandell was on the Board of Directors of WebEx until February 2002. In his sworn declaration Sandell testified that "Min Zhu was a consultant at NEA, with the title Venture Partner, from March 17 2004 through March 2008." NEA has acknowledged that in 2004 I emailed them about Erin Zhu's claims concerning her childhood sexual abuse by her father Min Zhu. In my communications I pointed out that Erin verified under oath having made these claims between 1991 and 2001 in conversation with her friends, associates, and employees; in public Usenet postings and letters to her husband Blixa Bargeld; and in statements to her lawyer David Affeld in connection with the claim for childhood sexual abuse that he presented to her parents and settled on her behalf. My notices went unanswered and had no effect on NEA's support of Min Zhu and his position at WebEx. Meanwhile, WebEx's CEO Subrah Iyar attempted to cover up Min Zhu's rape of his daughter. In the course of defending against my lawsuit under his leadership, WebEx filed sworn corporate declarations claiming that there was "absolutely no truth" to the allegations that Min had raped his daughter seven years prior to its founding, while allowing him to use its corporate assets as hush money to buy her silence about his crimes, and employ its corporate counsel in defending against my claims made against him as an individual, independently of his connection with WebEx. Min Zhu resigned from WebEx and fled the United States to China only after I exposed him as a child rapist at the WebEx User Conference in San Francisco, on 2 May 2005. Yet in September of the same year, NEA funded Min Zhu's next venture in China, in full knowledge of the foregoing events. Witness this pointed observation published by China Venture News on 23 September 2005: "What's missing in the Private Equity Online article or any NEA release is any mention of the previous controversy surrounding NEA's venture partner, Min Zhu, who joined NEA in 2004, after his forced resignation as WebEx President and Director." Another side of Min Zhu's character is captured in the 2007 report of a joint investigation of WebEx by FBI and NSA, which found it illicitly transferring the records of its customers' confidential communications to China. To connect the dots, NEA's knowing sponsorship of a duplicitous child rapist has been an open secret in the venture capital community for over seven years. This is especially noteworthy in an industry, whose foundations can be shaken by a female partner's displeasure at receiving a copy of Leonard Cohen's The Book of Longing from her male colleague.

According to Min Zhu, as of 2008, NEA continued to invest money in his company Cybernaut. I have no reason to doubt that their business relationship has continued to this day. By all accounts, Min Zhu has established himself as an excellent profit earner, inspiring investments from numerous profit-seeking institutions and individuals undeterred by scruples about his character. In bringing to light its defects, I look forward to finding out, how far the turpitude of Silicon Valley capital is matched by its shamelessness.

Please be assured that I am sensitive to your concerns for public safety. Accordingly, in the course of my Constitutionally protected activities, I pledge to abstain from any unlawful actions, including, without limitation, the following:

  • loading any firearms in the absence of a reasonable fear for life or limb;
  • deploying or firing any deadly weapons or firearms in the absence of a clear and present danger to life or limb;
  • making any threats of unlawful violence, including, but not limited to, drawing or exhibiting any deadly weapons or firearms in the presence of another person, in a rude, angry, or threatening manner;
  • stalking, accosting, or harassing any individual, including, but not limited to, making harassing telephone calls to any individual or institution, or sending harassing correspondence to any individual or institution by any means;
  • making any statement or engaging in a course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose; and
  • capturing visual images or audio recordings of any individual who has a reasonable expectation of privacy, or otherwise attempting to frustrate such an expectation.
I am pleased to point out that my prior events in San Diego, Milpitas, Menlo Park, and Santa Clara were unmarked by any disturbances. I hope that the same will be the case on this occasion of scaling up my activities within the bounds of legitimacy sanctioned by the authorities of the United States Court of Appeals for the Ninth Circuit and the United States Supreme Court. Owing to substantial gains in my quest for legitimate remedies, my protests shall include topical artistic performances by bagpipers, clowns, rappers, and a brass band. I shall employ portable generators, high-intensity floodlights, and night vision devices to discover the identities and whereabouts of other friends and supporters of Min Zhu. It is my position that the mounting of these performances and the use of these instruments are protected under the First Amendment, and therefore are not subject to local permit requirements. However, as an accommodation provided in the spirit of courtesy, I shall consider reasonable requests for placing time, place, and manner constraints on my performances on a case-by-case basis. Lastly, I continue to claim the right protected by the First Amendment, to hold press conferences at the sites of my protests and to film all passerby there being questioned as to their opinion of their subject matter. I hope to forestall dangerous misunderstandings and futile litigation bound to be costly and disappointing to your taxpayers by giving you this advance notice of my plan.

My protests will take place, without limitation, at the public grounds adjacent to the following institutions and residences:

  1. New Enterprise Associates (NEA), 2855 Sand Hill Road, Menlo Park, CA 94025;
  2. Cisco/WebEx, 3979 Freedom Circle, Santa Clara, CA 95054;
  3. Silk Road Software & Services, Inc. (SRS2), One Market Street, San Francisco, CA 94105;
  4. Subrah and Rupar Iyar, 15292 Kennedy Rd, Unit A, Los Gatos, CA 95032
  5. Scott Sandell, 120 Deer Meadow Ln, Portola Valley, CA 94028;
  6. Forest Baskett, 24 Alexander Ave, Sausalito, CA 94965;
  7. Robert J. Garland, 636 Melville Ave, Palo Alto, CA 94301;
  8. C. Richard Kramlich, 3699 Washington St, San Francisco, CA 94118;
  9. Jake R. Nunn, 2120 Ashton Ave, Menlo Park, CA 94025;
  10. Arno Allan Penzias, 19 Calle Del Mar, Stinson Beach, CA 94970;
  11. Brooke A. Seawell, 1155 Trinity Dr, Menlo Park, CA 94025;
  12. Peter Sonsini, 350 Olive St, Menlo Park, CA 94025; and
  13. Sigrid Van Bladel, 1338 Masonic Ave, San Francisco, CA 94117.
This list will be extended and updated in future online postings and email communications. My protests will continue until I receive full satisfaction for Min Zhu's offenses against me and my family. All concerned parties may address their communications to my lawyers Michael D. Pinnisi <mpinnisi@pinnisianderson.com>, Pinnisi & Anderson, 410 East Upland Road, Ithaca, NY 14850, phone: (607) 257-8000, and David W. Affeld <dwa@agzlaw.com>, Affeld Grivakes Zucker LLP, 12400 Wilshire Boulevard, Suite 1180, Los Angeles CA 90025, phone: (310) 979-8700, fax: (310) 979-8701. I may be reached at the number listed below.

--

Michael@massmeans.com ---- http://larvatus.livejournal.com/ ---- http://www.subrah.com
Zeleny@post.harvard.edu | 7576 Willow Glen Rd, Los Angeles, CA 90046 | 323.363.1860
Wronged by the high and mighty? Cut them down to size with legally safe and ethically sound degradation of unworthy moguls and scrofulous celebrities.

larvatus: (Default)


Local firemen came by to get my story.



I like Menlo Park police and fire brigade.

larvatus: (Default)

Thorstein Veblen Farmstead: National Historic Landmark
16538 Goodhue Avenue, Nerstrand, Minnesota

In the last analysis the nation remains a predatory organism, in practical effect an association of persons moved by a community interest in getting something for nothing by force and fraud. There is, doubtless, also much else of a more genial nature to be said for the nation as an institutional factor in recent times. The voluminous literature of patriotic encomium and apology has already said all that is needed on that head. But the irreducible core of national life, what remains when the non-essentials are deducted, still is of this nature; it continues to be self-determination in war and politics. Such is the institutional pedigree of the nation. It is a residual derivative of the predatory dynastic State, and as such it still continues to be, in the last resort, an establishment for the mobilization of force and fraud against the outside, and for a penalised subservience of its underlying population at home.
    In recent times, owing to the latterday state of the industrial arts, this national pursuit of warlike and political ends has come to be a fairly single-minded chase after unearned income to be procured by intimidation and intrigue. It has been called Imperialism; it might also, in a colloquial phrasing, be called national graft. By and large, it takes the two typical forms of graft: official salaries (The White Man’s Burden), as in the British crown colonies and the American dependencies; and of special concessions and advantageous bargains in the way of trade, credits and investments, as, eg, the British interests in Africa and Mesopotamia or the American transactions in Nicaragua and Haiti. The official salaries which are levied by this means on the underlying population in foreign parts inure directly to the nation’s kept classes, in their role of official personnel, being in the nature of perquisites of gentility and of political suction. The special benefits in the way of profitable trade and investment under national tutelage in foreign parts inure to those special Interests which are in close touch with the nation’s official personnel and do business in foreign parts with their advice and consent.
    All the while, of course, all this trading on the national integrity is carried on as inconspicuously as may be, quite legally and morally under democratic forms, by night and cloud, and is covered over with such decently voluble prevarication as the case may require, prevarication of a decently statesmanlike sort; such a volume and texture of prevarication as may serve to keep the national left hand from knowing what the right hand is doing, the left hand in these premises being the community at large, as contrasted with the Interests and the official personnel. In all such work of administrative prevarication and democratic camouflage the statesmen are greatly helped out by the newspapers and the approved agencies that gather and purvey such news as is fit to print for the purpose in hand. The pulpit, too, has its expedient uses as a publicity agency in furtherance of this gainful pursuit of national enterprise in foreign parts.
    However, the present argument is not concerned with the main facts and material outcome of this imperial statecraft considered as a “gainful pursuit,” but only with the ulterior and residual consequences of the traffic in the way of a heightened sense of national integrity and a closer coalescence of this national integrity with the gainful pursuits of all these dominant business Interests that engage the sympathies of the official personnel. By this means the national integrity becomes ever more closely identified, in the popular apprehension, with the security and continued enlargement of the capitalised overhead charges of those concerns which do business in foreign parts; whereby the principles of business and absentee ownership come in for an added sanction; so that the official personnel which has these matters in charge is enabled to give a more undivided attention and a more headlong support to any manoeuvres of strategic sabotage on industrial production which the exigencies of gainful business may dictate, whether at home or abroad.
    Statecraft as a gainful pursuit has always been a furtive enterprise. And in due proportion as the nation’s statecraft is increasingly devoted to the gainful pursuit of international intrigue it will necessarily take on a more furtive character, and will conduct a larger proportion of its ordinary work by night and cloud. Which leads to a substitution of coercion in the place of consultation in the dealings of the official personnel with their underlying population, whether in domestic or foreign policy; and such coercion is increasingly accepted in a complaisant, if not a grateful, spirit by the underlying population, on a growing conviction that the national integrity is best provided for by night and cloud. So therefore it also follows that any overt expression of doubt as to the national expediency of any obscure transaction or line of transactions entered into by the official personnel in the course of this clandestine traffic in gainful politics, whether at home or abroad, will presumptively be seditious; and unseasonable inquiry into the furtive movements of the official personnel is by way of becoming an actionable offense; since it is to be presumed that, for the good of the nation, no one outside of the official personnel and the business Interests in collusion can bear any intelligent part in the management of these delicate negotiations, and any premature intimation of what is going on is likely to be “information which may be useful to the enemy.” Any pronounced degree of skepticism touching the expediency of any of the accomplished facts of political intrigue or administrative control is due to be penalised as obnoxious to the common good. In the upshot of it all, the paramount rights, powers, aims, and immunities of ownership, or at least those of absentee ownership, come in for a closer identification with the foundations of the national establishment and are hedged about with a double conviction of well-doing.
    In that strategy of businesslike curtailment of output, debilitation of industry, and capitalisation of overhead charges, which is entailed by the established system of ownership and bargaining, the constituted authorities in all the democratic nations may, therefore, be counted on to lend their unwavering support to all manoeuvres of business-as-usual, and to disallow any transgression of or departure from business principles. Nor should there seem any probability that the effectual run of popular sentiment touching these matters will undergo any appreciable change in the calculable future. The drift of workday discipline, as well as of deliberate instruction, sets in the conservative direction. For the immediate future the prospect appears to offer a fuller confirmation in the faith that business principles answer all things. The outlook should accordingly be that the businesslike control of the industrial system in detail should presently reach, if it has not already reached, and should speedily pass beyond that critical point of chronic derangement in the aggregate beyond which a continued pursuit of the same strategy on the same businesslike principles will result in a progressively widening margin of deficiency in the aggregate material output and a progressive shrinkage of the available means of life.
— Thorstein Veblen, Absentee Ownership and Business Enterprise in Recent Times: the Case of America,
New York, N.Y.: B.W. Huebsch, 1923, pp. 442-445
larvatus: (Default)
The German optimist believes that God created the actual world as the best of all possible worlds. The German pessimist is certain that the actual world is the best of all possible worlds.

The Russian pessimist believes that the world is so bad that it couldn’t get any worse. The Russian optimist is certain that everything can — and will — get worse.

The American optimist invests in the world-wide march of democracy. The American pessimist arms against democracy poised to trample his inalienable rights. They are both right.
larvatus: (Default)
“The Constitution as interpreted by the Court these past decades allows the federal government to put your taxes up and use the proceeds to send you a weekly box of broccoli.” This putatively commonsensical observation by Clive Crook is meant to support a transparent non sequitur: “If Washington instructed you to choose your own basket of fruit and vegetables or else pay a penalty, that would be a smaller infringement of your freedom than the Constitution already allows.” The logically warranted conclusion from the premiss at hand is that if a federal government’s individual mandate instructed me to choose my own basket of fruit and vegetables or else pay a penalty, that would be a smaller infringement of my freedom than recent Constitutional interpretation has tended to allow. The Constitution is an enduring factual body of principle that underlies the vagaries and wambles of its judicial interpretation. Let the trends change as long as the fundamental facts endure.

Yes, Mr Crook, our Constitution is a quasi-religious document, whose constancy is an inviolable national myth. But the constancy of our Constitution is also thoroughly attested, in extent and limitation, by its amendments. When changing it falls to the Court and is done by stealth, it becomes and remains liable to equally stealthy judicial reversals. That is what the Roberts Supreme Court seems to be poised to inflict upon Obamacare. Back in the realm of horticulture, American farmers have long received lavish subsidies from the government, enabling them to grow lots of things I don’t want to eat. So I am always already being forced to “buy” broccoli via the power of taxation. Likewise, the federal government could — and bloody well should — use its power of taxation to pay for government-administered universal health insurance. What it cannot and shouldn’t do is create a boondoggle for its favorite industries by compelling its citizens to transact with private vendors, be it for health insurance or fresh vegetables.

Your fellow countryman John Lanchester patiently explains this for you in the latest issue of the London Review of Books:
If there were ever going to be a serious and sustained theoretical challenge to the hegemony of capitalism inside economics — a serious and sustained challenge subsequent to the one provided by what used to be called ‘actually existing socialisms’ — you’d have thought one would have come along since the near terminal meltdown of the global economic system in 2008. But all we’ve seen are suggestions for ameliorative tweaking of the existing system to make it a little less risky. We have at the moment this monstrous hybrid, state capitalism — a term which used to be a favourite of the Socialist Workers Party in describing the Soviet Union, and which only a few weeks ago was on the cover of the Economist to describe the current economic condition of most of the world. This is a parody of economic order, in which the general public bears all the risks and the financial sector takes all the rewards — an extraordinarily pure form of what used to be called ‘socialism for the rich’. But ‘socialism for the rich’ was supposed to be a joke. The truth is that it is now genuinely the way the global economy is working.
Obamacare is socialism for insurance companies. If and when our society agrees that health care is a public good, let us socialize its administration. Empowering our government to bring the health insurance industry 32 million new customers is crony capitalism at its sleaziest. And it stinks.
larvatus: (Default)
First they came for Gilbert Gottfried
And I did not speak out
Because I was not a shrill comedian
Then they came for Catullus
And I did not speak out
Because I was not a Latin poet
Then they came for me
And there was no one left
To speak out for me

larvatus: (Default)
Человек стремится всю жизнь не быть посредственностью (חוצפה, если не ὕβρις), или хотя бы не осознавать себя оною (tragische Konflikt, не ἁμαρτία, а ἀμαθία). Кончает посредственным скандалистом—не в силу лени, и не за неимением таланта, а из-за провинциальной ограниченности.

В Париже или Берлине пожалуй вышел бы Доминик Стросс-Кан или Даниэль Кон-Бендит; в Лос Ангелесе или Нью Йорке—Майкл Милкен или Эл Франкен. В Питере знаменательно произошёл Виктор Леонидович Топоров.

March 2014

S M T W T F S
       1
23 4 5 6 78
9 1011 12 13 14 15
16 171819202122
23242526272829
3031     

Syndicate

RSS Atom

Most Popular Tags

Style Credit

Expand Cut Tags

No cut tags
Page generated Jul. 24th, 2017 10:33 am
Powered by Dreamwidth Studios