Wednesday, January 15, 2020

Some Quick Thoughts on the Extreme Risk Firearm Protection Bill Currently Filed for the 2020 Legislative Session

 I will undoubtedly edit this but wanted to get something out there.

Two identical Extreme Risk Protection Order (ERPO, or "red flag") bills have been prefiled for the legislature and are on the Governor's "to do" list for the thirty day session. On the house side, HB 7 has been filed by Rep. Daymon Ely. On the Senate side, Sen. Joseph Cervantes and Mr. Ely have filed SB 5. These are both online and can be examined. As an aside, Rep. Patricia Caballero has filed HB 85 to ban "firearm converters" but that bill is so bizzarely written that I hope it simply dies.

The bigger issue is the ERPO bill, which as I said, has been on the Governor's to do list and is being pushed heavily by the gun control fraternity. I won't bore you with a rewrite here so go read the bill. What I will do is point out what I consider the most problematic aspects of it to a gun owner.

First and foremost is due process. These bills use a lower standard of evidence to issue an order, the so called "preponderance of evidence" standard or fifty percent plus a smidgen typical of civil lawsuits. This is in contrast to "beyond a reasonable doubt" used in criminal adjudication.The good news is that this year's bill has a provision that the person seeking the order has to fill out an affidavit under oath, which means that if they mislead the court, they are subject to penalties such as being charged with perjury.

The bad news for gun owners would be that these cases are often ex parte (only one party need appear) and in any case, the person seeking the order, once it is issued, puts the gun owner into a position of being guilty until proved innocent.The initial orders are good for about fifteen days and you get your day in court. If you convince the court the request is not supported by sufficient evidence, you get your guns back. If not, say goodbye to them for a year.

But what about that day in court? In spite of the fact that your 2nd Amendment (and as enumerated in Art. II, Sec 6 of the state constitution) right to bear arms is on the table, as are your 4th and 5th Amendment rights to be secure from unlawful searches and seizures and loss of property without due process, you are at risk if you cannot afford counsel. The bill, while saying you have a right to counsel (well, duh...) does not provide you with one if you cannot afford one. So an indigent person or one of somewhat limited means will likely be showing up in court not only unfamiliar with the whole judicial process (as would be the case for most of us), but unable to afford competent legal advice. That is the most shocking problem in this bill from my perspective. It needs to be amended. As I said to Rep. Ely on the phone, I think this is a prime consideration for a lawsuit against the bill on due process grounds.

Finally, some of the wording in the bill is vague and could be a legal trap. Section C on pg. 13 of the present bill lists reasons one can be served with an ERPO. These include 'unlawful, reckless, or negligent use, display, storage, possession, or brandishing of a firearm". While brandishing is a fairly well established legal concept, I am not familiar with any NM law that defines some of these other terms. What is unlawful, reckless or negligent storage? If it is in the eye of the beholder, this is vague and can be twisted and turned to the use of a party unfamiliar with firearms.

Likewise, "misuse of controlled substances or alcohol". Are these well defined legal concepts or another opportunity for a gotcha? Finally, "the recent acquisition of a firearm". Really? Presumably one would have to have a context other than "gee, I like that winchester".

I would encourage all gun owners to contact the bill sponsors as well as their own representatives and bring up these points. I'm not opposed to an ERPO bill as a concept because as someone who has a subscription to multiple newspapers, I read of cases where these bills are good tools if used as a precision tool rather than as Maslow's Hammer. I do think these have to be narrowly drawn and preserve due process.

Its tough to strike a proper balance with these if one is thinking of real world situations. But find that balance we must.

Note as of 1-15-2020 10 a.m. I have repeatedly asked the New Mexico ACLU for an analysis of this bill. so far, crickets.

Friday, August 16, 2019

Guns and Bombs Will Keep Us Free?

The big picture isn't about assault rifles. Its about assaults on decency.

Along with the current discussion about gun control, assault rifle bans, and domestic terrorism, Uncle Sam is working on reinvigorating the nuclear weapons program in New Mexico and South Carolina. Given that a few of us in Northern New Mexico are affiliated with certain large Federal installations involved with making things that can create very large holes in the ground, I see a lot of chatter about both topics. This leaves me uneasy.

Guns and bombs are necessary evils albeit fascinating creations when not employed for their intended purpose. That's why people enjoy shooting sports, especially with military design rifles, for example, as described here and here. But lethal weapons are solutions of last resort to real problems. Whether someone is kicking down your door or your frontier at o-dark thirty, you need a way to defend yourself. The problem is, when things get to the point of a shooting war, whether in the kitchen or the Ardennes, the less destructive solutions have failed or have been ignored. Cleaning up the blood and lost treasure gets more complicated as weapons become more advanced. During the American Revolution, a few thousand soldiers faced each other and opened fire when they could see the whites of each others eyes. The American Civil War, which bled America white, was the harbinger of WW I with trench warfare and the introduction of modern weapons. Nowadays, advanced heavy weapons and highly lethal infantry weapons (not to mention, nukes) can blow somewhat larger holes in the other side's strategic interests. High capacity semiauto weapons can drench the neighborhood with a rainsquall of full metal jacket (or jacketed hollow point, I suppose). Or as Bruce Cockburn once sang, "who put that bullet hole in Peggy's kitchen wall?". Nowadays, it would be more than one hole. I think Bruce thought up that song when people generally shot at each other with revolvers.

Things won't get better if we concentrate on more guns and bombs as solutions. There are more of us in the U.S. (and of course on the planet) and here at home, resources are becoming more unequal, leading to rising stress. Our civilization's reliance on dinosaur juice, methane, and coal to power our cars, homes, and other stuff is on track to double atmospheric CO2 concentrations over Holocene levels by mid-century. This will, by most reputable accounts, lead to global energy retention via the Tyndall effect resulting in heating on the order of 1.5-4 degrees C and the associated climate adjustments that likely are associated with warming (sea level rise, changes in regional precipitation, changes in average temperatures, more extreme weather due to changes in the jet streams, etc). As an aside, note the uncertainties here. We can predict the big picture, but not the details, hence the constant bickering.

If you think forced migration due to climate and political problems is bad now, I suggest a friendly trip in the time machine to see what things will look like in a few decades. For those who are skeptical of forward climate models, we have plenty of historical geochemical records suggesting significant change is likely in the century to come. Even on the regional scale, we see the results on societies of past climate change in the abandoned settlements of the American Southwest and Greenland. I wrote something for the Albuquerque Journal about that here. Far fewer humans lived back then, so there were places to resettle. Where do people resettle in a few years, as their wells run dry and crops wither, now that we live in a No Vacancy world?

Our ability since the Industrial Revolution to change atmospheric chemistry and thus the atmosphere’s ability to retain the sun’s heat, in a nutshell, is why humans can profoundly – at least with respect to our own existence – impact climate.

My guess is we will probably deal with climate change using guns and bombs, since that seems to be the historical tradition. Yes, I am increasingly pessimistic. With the world order drifting towards authoritarianism, nationalism, xenophobia, and ethnic/racial extremism and increasingly, with people showing up unannounced at each other's national doorsteps, I think the stresses will overcome reason. Plus, its been 74 years since we had a world war. Few living today remember what a world war looks like and frankly, I worry that today's leaders can only see war as an abstraction. Reagan and Gorbachev knew WW II. Putin and Trump do not. My parent's generation, now pretty much gone, saw it in its smoke, blood, and destruction filled reality.

The bottom line is if we continue to fixate on using Maslow's Handgun to stave off change rather than hunkering down to fix what is broken, we will kick the underlying problems down the road until a crisis overcomes us and we solve the problems with...guns and bombs. Its the way Homo sapiens has always done it before. Why change now? Because the guns and bombs are too lethal to use? That's the underlying idea behind deterrence, but it assumes rational actors acting in their best interest. Hmmm. Does anyone see a potential problem with that assumption? Orwell did:

The passage in the Declaration of Independence that starts, “We hold these truths to be self-evident,” with its references to equality, liberty, and happiness, is literally impossible to translate into Newspeak. “The nearest one could come to doing so,” Orwell wrote, “would be to swallow the whole passage up in the single word crimethink.”

As Kurt Vonnegut, who himself rode out the WW II Dresden firebombing, ironically enough in a slaughterhouse, would say, "So it goes". Unless we choose otherwise.

Friday, April 19, 2019

Adam Winkler's Lecture on the History of Gun Laws and the Impact of the Heller Decision

As Arte Johnson would say, "veerry interesting". That is, if you follow this stuff.

Monday, April 15, 2019

In the War of Words Between New Mexico's 2A Sanctuary Counties and the Attorney-General, No One Wins

As sent to the Albuquerque Journal.

Laws work best when we believe in their fairness. It is advisable to build consensus when crafting legislation. In the case of New Mexico's new universal background check (UBC) law, the opposite of consensus building occurred.  In an act that has been repeated elsewhere in the U.S., urban and rural constituencies have rejected each other's thinking with polarizing results.

This latest round of discord has been covered in the media, to wit, the Governor’s and Attorney General's admonishment to Second Amendment Sanctuary Counties to enforce the law. But I doubt more political posturing will bring people together. What, may I ask, could have? Here are several suggestions our legislators ignored.

Not all guns or gun transactions represent a credible threat. A recent Bureau of Justice Statistics report shows most guns recovered from criminals are handguns.  But the new law treats the exchange of a 22 rimfire rifle between concealed carry permit holders with the same gravity as selling a concealable Glock pistol to a perfect stranger in Albuquerque's "War Zone". What legislators could have done was exempt concealed carry holders or more broadly, created Firearms Owners ID Cards to simplify background checks for both arms and ammunition.

Its not clear that we even know how prohibited persons in New Mexico get their guns. National and state studies give us hints. In that same BJS report, and similar studies carried out by Prof. Phillip Cook and colleagues in Illinois, we see that the lion's share of criminals obtain their guns from a combination of acquaintances, the underground market, or less likely, theft. The BJS report breaks it down into about a quarter from family or friends and almost half from the underground criminal market. Less than 1% get them from "gun shows" and a few from dealers.  The new law would work on that part of the market where law abiding citizens are exchanging guns only if we obtain buy in from the gun owning public. Instead, our legislative gun control advocates treated gun owners with disdain.

The bill was oversold.  Gun deaths often rise and fall independently of gun laws, most dramatically shown with century-long data in New York City, or when comparing recent trends in gun violence in New York City and Chicago, where enforcement and social networking differences far more than laws contribute to different trends in violence rates. Gun violence student Dr. Michael Weisser says that in Colorado, gun homicides rose after its 2013 UBC law went into effect. Judicial and sociological issues strongly influence violence rates. A little more honesty on the effects of this bill could have led to an informed discussion and perhaps a more comprehensive, science-based solution.

Finally, one would hope your legislators care about your opinion. In 2017, I worked closely with my representative, Stephanie Garcia-Richards, trying to craft a background check bill with gun owner buy-in. I offered to do the same with my Santa Fe representatives this time and was met with studied silence or for the most part, cursory replies. I heard from a leader of the NM Shooting Sports Assn. that other gun owners met studied silence. Its not hard to figure out why. Although the NRA is the left's boogeyman, Everytown for Gun Safety lavished almost $400,000 in campaign cash on our Legislature, dwarfing the NRA’s efforts, to ensure their voice drowned out everyone else's.

A carefully written background check bill that hits the target of our violence problems while obtaining maximum buy-in from New Mexico's gun owning public would be a great idea and could only help, but not help as much as crafting comprehensive violence reduction solutions (including some gun control laws) with broad based buy-in. What the bill's supporters did instead was broaden the abyss between gun rights and gun control. The present political standoff was predictable and perhaps preventable.

Wednesday, March 6, 2019

Ash Wednesday


Because I do not hope to turn again
Because I do not hope
Because I do not hope to turn

Desiring this man's gift and that man's scope
I no longer strive to strive towards such things
(Why should the aged eagle stretch its wings?)
Why should I mourn
The vanished power of the usual reign?

Because I do not hope to know again
The infirm glory of the positive hour
Because I do not think
Because I know I shall not know
The one veritable transitory power

Because I cannot drink
There, where trees flower, and springs flow, for there is nothing again

Because I know that time is always time
And place is always and only place
And what is actual is actual only for one time
And only for one place

I rejoice that things are as they are and
I renounce the blessed face
And renounce the voice
Because I cannot hope to turn again
Consequently I rejoice, having to construct something
Upon which to rejoice

And pray to God to have mercy upon us
And pray that I may forget
These matters that with myself I too much discuss
Too much explain

Because I do not hope to turn again
Let these words answer
For what is done, not to be done again

May the judgement not be too heavy upon us

Because these wings are no longer wings to fly
But merely vans to beat the air

The air which is now thoroughly small and dry
Smaller and dryer than the will

Teach us to care and not to care
Teach us to sit still

Pray for us sinners now and at the hour of our death
Pray for us now and at the hour of our death.


Lady, three white leopards sat under a juniper-tree
In the cool of the day, having fed to satiety
On my legs my heart my liver and that which had been contained
In the hollow round of my skull.
And God said
Shall these bones live? shall these
Bones live?
And that which had been contained
In the bones (which were already dry) said chirping:
Because of the goodness of this Lady
And because of her loveliness
, and because
She honours the Virgin in meditation,

We shine with brightness. And I who am here dissembled
Proffer my deeds to oblivion, and my love
To the posterity of the desert and the fruit of the gourd.

It is this which recovers
My guts the strings of my eyes and the indigestible portions
Which the leopards reject.
The Lady is withdrawn
In a white gown, to contemplation, in a white gown.
Let the whiteness of bones atone to forgetfulness.

There is no life in them. As I am forgotten
And would be forgotten, so I would forget
Thus devoted, concentrated in purpose
. And God said
Prophesy to the wind, to the wind only for only
The wind will listen.
And the bones sang chirping
With the burden of the grasshopper, saying

Lady of silences
Calm and distressed
Torn and most whole
Rose of memory
Rose of forgetfulness
Exhausted and life-giving
Worried reposeful

The single Rose
Is now the Garden
Where all loves end
Terminate torment
Of love unsatisfied
The greater torment
Of love satisfied
End of the endless
Journey to no end
Conclusion of all that
Is inconclusible
Speech without word and
Word of no speech
Grace to the Mother
For the Garden
Where all love ends.

Under a juniper-tree the bones sang, scattered and shining
We are glad to be scattered, we did little good to each other,
Under a tree in the cool of the day
, with the blessing of sand,
Forgetting themselves and each other, united
In the quiet of the desert.
This is the land which ye
Shall divide by lot
. And neither division nor unity
Matters. This is the land. We have our inheritance.


At the first turning of the second stair
I turned and saw below
The same shape twisted on the banister

Under the vapour in the fetid air
Struggling with the devil of the stairs who wears
The deceitful face of hope and of despair.

At the second turning of the second stair
I left them twisting, turning below;
There were no more faces and the stair was dark,
Damp, jagged, like an old man's mouth drivelling, beyond repair,
Or the toothed gullet of an aged shark.

At the first turning of the third stair
Was a slotted window bellied like the figs's fruit
And beyond the hawthorn blossom and a pasture scene

The broadbacked figure drest in blue and green
Enchanted the maytime with an antique flute
Blown hair is sweet, brown hair over the mouth blown,
Lilac and brown hair;

Distraction, music of the flute, stops and steps of the mind over the third stair,
Fading, fading; strength beyond hope and despair
Climbing the third stair.

Lord, I am not worthy
Lord, I am not worthy
but speak the word only.


Who walked between the violet and the violet
Who walked between
The various ranks of varied green

Going in white and blue, in Mary's colour,
Talking of trivial things
In ignorance and in knowledge of eternal dolour
Who moved among the others as they walked,
Who then made strong the fountains and made fresh the springs

Made cool the dry rock and made firm the sand

In blue of larkspur, blue of Mary's colour,
Sovegna vos

Here are the years that walk between, bearing
Away the fiddles and the flutes, restoring
One who moves in the time between sleep and waking, wearing

White light folded, sheathing about her, folded.

The new years walk, restoring
Through a bright cloud of tears, the years, restoring
With a new verse the ancient rhyme
. Redeem
The time.
The unread vision in the higher dream
While jewelled unicorns draw by the gilded hearse.

The silent sister veiled in white and blue
Between the yews, behind the garden god,
Whose flute is breathless
, bent her head and signed but spoke no word

But the fountain sprang up and the bird sang down

Redeem the time, redeem the dream
The token of the word unheard, unspoken

Till the wind shake a thousand whispers from the yew

And after this our exile


If the lost word is lost, if the spent word is spent
If the unheard, unspoken
Word is unspoken, unheard;
Still is the unspoken word, the Word unheard,
The Word without a word, the Word within
The world and for the world;

And the light shone in darkness and
Against the Word the unstilled world still whirled
About the centre of the silent Word.

O my people, what have I done unto thee.

Where shall the word be found, where will the word
Resound? Not here, there is not enough silence
Not on the sea or on the islands, not
On the mainland, in the desert or the rain land,
For those who walk in darkness
Both in the day time and in the night time
The right time and the right place are not here
No place of grace for those who avoid the face
No time to rejoice for those who walk among noise and deny the voice

Will the veiled sister pray for
Those who walk in darkness, who chose thee and oppose thee,
Those who are torn on the horn between season and season, time and time, between
Hour and hour, word and word, power and power, those who wait
In darkness? Will the veiled sister pray
For children at the gate
Who will not go away and cannot pray:
Pray for those who chose and oppose

O my people, what have I done unto thee.

Will the veiled sister between the slender
Yew trees pray for those who offend her
And are terrified and cannot surrender
And affirm before the world and deny between the rocks
In the last desert before the last blue rocks
The desert in the garden the garden in the desert

Of drouth, spitting from the mouth the withered apple-seed.

O my people.


Although I do not hope to turn again
Although I do not hope
Although I do not hope to turn

Wavering between the profit and the loss
In this brief transit where the dreams cross
The dreamcrossed twilight between birth and dying
(Bless me father) though I do not wish to wish these things

From the wide window towards the granite shore
The white sails still fly seaward, seaward flying
Unbroken wings

And the lost heart stiffens and rejoices
In the lost lilac and the lost sea voices
And the weak spirit quickens to rebel
For the bent golden-rod and the lost sea smell
Quickens to recover
The cry of quail and the whirling plover

And the blind eye creates
The empty forms between the ivory gates

And smell renews the salt savour of the sandy earth

This is the time of tension between dying and birth
The place of solitude where three dreams cross
Between blue rocks
But when the voices shaken from the yew-tree drift away
Let the other yew be shaken and reply.

Blessed sister, holy mother, spirit of the fountain, spirit of the garden,
Suffer us not to mock ourselves with falsehood
Teach us to care and not to care
Teach us to sit still
Even among these rocks,
Our peace in His will

And even among these rocks
Sister, mother
And spirit of the river, spirit of the sea,

Suffer me not to be separated

And let my cry come unto Thee.

Monday, March 4, 2019

Second Amendment Sanctuaries?

Second Amendment sanctuaries have been compared to immigration law sanctuaries, but these are not really comparible except for their political overtones. These movements reflect cultural reactions and searingly different political points of view to law and a resulting reluctance to enforce laws with which constituencies disagree. From there, the two "sanctuary movements" diverge on legal grounds.

A sheriff, like any law enforcement officer, has a certain amount of latitude in how to enforce law but the bottom line is, constitutionally justified law must be enforced. None of the bills being pushed by the legislature have been found unconstitutional in any judicial venue. Badly written, maybe. Constitutionally defective, not.

There is latitude in how law is enforced. One of my buddies from college days, Officer Fred Woodard of the Rochester Police Dept., set up his radar trap for 12 mph over the limit. He enforced the speed laws, but gave people a lot of latitude. As "Woody", a WW II veteran of the 101st Airborne Div who fought at Bastogne told me, "If I get 'em for 12 over, they don't have an excuse". I watched Woody write 'em up for more than 12 over. Likewise, sheriffs can decide how to enforce the law and how tightly to read it.

If a judge hands a sheriff a domestic violence restraining order that requires someone turn in the arsenal and if that order is not served, there may be severe consequences. If a family is lined up and shot by a disgruntled family member, the sheriff has some serious answers to give and he and his constituents might be facing massive fines, not to mention the sheriff facing legal sanction on his own. If on the other hand, two law abiding ranchers exchange a squirrel gun on the sly, it might be overlooked.

Finally, as a constitutional issue, 2A sanctuaries cannot be compared to states or counties declaring sanctuary status from Federal immigration law. There is US Supreme Court precedent in the form of Printz vs. United States that affirms local and state law enforcement cannot be coerced into, or required to expend resources, enforcing Federal law. Look it up. There is no analogous ruling I know of saying sheriffs can ignore state law. So these are apples v oranges comparisons on constitutional law, but good comparisons on resentful politics.

No one likes to have law rammed down their throat and in this legislative session, the contrast in urban vs rural cultures and politics could not be more polarized. A lot of good could have been done, but we seem to have missed the point in the effort to win and beat the other guy.

Friday, February 8, 2019

Mending Wall

Robert Frost, "Mending Wall"

Something there is that doesn't love a wall,
That sends the frozen-ground-swell under it,
And spills the upper boulders in the sun;
And makes gaps even two can pass abreast.
The work of hunters is another thing:
I have come after them and made repair
Where they have left not one stone on a stone,
But they would have the rabbit out of hiding,
To please the yelping dogs. The gaps I mean,
No one has seen them made or heard them made,
But at spring mending-time we find them there.
I let my neighbour know beyond the hill;
And on a day we meet to walk the line
And set the wall between us once again.
We keep the wall between us as we go.
To each the boulders that have fallen to each.
And some are loaves and some so nearly balls
We have to use a spell to make them balance:
"Stay where you are until our backs are turned!"
We wear our fingers rough with handling them.
Oh, just another kind of out-door game,
One on a side. It comes to little more:
There where it is we do not need the wall:
He is all pine and I am apple orchard.
My apple trees will never get across
And eat the cones under his pines, I tell him.
He only says, "Good fences make good neighbours."
Spring is the mischief in me, and I wonder
If I could put a notion in his head:
"Why do they make good neighbours? Isn't it
Where there are cows? But here there are no cows.
Before I built a wall I'd ask to know
What I was walling in or walling out,
And to whom I was like to give offence.
Something there is that doesn't love a wall,
That wants it down." I could say "Elves" to him,
But it's not elves exactly, and I'd rather
He said it for himself. I see him there
Bringing a stone grasped firmly by the top
In each hand, like an old-stone savage armed.
He moves in darkness as it seems to me,
Not of woods only and the shade of trees.
He will not go behind his father's saying,
And he likes having thought of it so well
He says again, "Good fences make good neighbours."