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Monday, November 7, 2011

Mens Rea and Other Bygone Concepts

At my gun class on Saturday, I was relating a story from my youth.  We were talking about California gun laws, and how they've been decimated by the state and local legislatures.

I was discussing how in the mid-1960's I remember going to this huge field in Concord, CA - later to be the site for Sun Valley Mall - with my grandfather.  He'd bring one of his dogs to run around and chase rabbits.  He always brought a little .22 rifle, and would take a shot or two at them if they were within range.

No big deal.

Fast forward:  I then told my students about a guy in Fairfield, CA - right around the corner from where I teach my classes - who got pulled over for having a shotgun in a rack in the back window of his truck.  He was arrested for some insane law - something to the effect of Inciting Panic.  Seriously.

Unloaded shotgun, in full compliance with California law, and he gets arrested because some pissant soiled himself.

You get arrested even when you follow the law.
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There is a concept in American law called, Mens Rea - it's Latin for "guilty mind".  In short, it means you have to have criminal intent to be found guilty of a crime.

For instance, if you're driving down the road, someone runs in front of your car and you kill them, you're not guilty of murder.  You had no intention of killing them - a tragic set of circumstances came together and someone died.

Mens rea has a counterpart. Ignorantia juris non excusat. Ignorance of the law is no excuse.  The idea here is if the state held someone to account for breaking a law, all the person would have to say is, "Wow, I didn't know that law existed," and they'd get off with no punishment.

I think most people have historically been pretty OK with these two apparently competing legal precepts.  Through a number of ways, we are taught what is right and what is wrong.  As a kid, you're taught not to kill, not to beat someone up unless you're defending yourself ("You throw the first punch, and I'll throw the last"), not to steal or destroy the property of others.

As you grow older, you learn the concepts of sexual propriety and limits, you take lessons to learn how to drive and the accompanying laws.  By the time you're a legal adult, you're pretty well aware of the legal limits generally agreed upon by society.

The problem, now, is reasonableness.  The phrase, "Zero Tolerance" has crept into our lexicon.  It is rapidly upsetting the balance between mens rea and ignorantia juris non excusat.  We are replacing the context of an event with a rule book.

Many of our laws have mandatory minimum sentences. Break a rule, go to jail, buh bye.

As if that weren't enough, the proliferation of laws makes it virtually impossible to know what's legal and what's going to land you in prison.

From the Heritage Foundation -
  • Explosion of Federal Criminal Law: The number of criminal offenses in the U.S. Code increased from 3,000 in the early 1980s to 4,000 by 2000 to over 4,450 by 2008 [The Constitution lists 3 federal crimes for individuals:  treason, piracy and counterfeiting -.ed].
  • Criminalization by Bureaucrat: Scores of federal departments and agencies have created so many criminal offenses that the Congressional Research Service itself admitted that it was unable to even count all of the offenses. The service’s best estimate? “Tens of thousands.” In short, Congress’s own experts do not have a clear understanding of the size and scope of federal criminalization.
In a Nanny state like California, hundreds of new laws are passed each and every year.  It is not unlikely that an individual could be aware of every law - it is impossible.
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One of my favorite, go-to quotes -
"Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with."

--Ayn Rand, Atlas Shrugged
[Isn't it amazing how spot-on Rand, Orwell and Huxley were in their writings?]

Accept The Challenge


We have the Patriot Act which allows the government to treat all citizens as though they are terrorists.  You are presumed guilty until proven innocent.

Same goes for DUI checkpoints.  Find yourself on the wrong road at the wrong time, and you'll be thrown in jail if you don't submit to an unconstitutional search.

Privacy laws - between you and the government - are virtually non-existent.  If you want privacy in your personal matters, you are assumed to be a criminal, because only criminals would want to hide something from Nanny.

We have RICO laws - originally designed to apprehend organized crime syndicates - applied to common citizens.... along with their convenient asset forfeiture laws.

We have insane "preservation" laws that charge fathers and sons with felonies [link] for looking for arrowheads.  Not taking any, just looking for them.  If they had been found guilty of the felonies (they pleaded down to "just" a misdemeanor), they would have lost a number of rights, including voting and firearms possession.  Mens rea is specifically excluded from the law - no criminal intent needed.

Gun laws?  ADA laws?  Food laws?  Don't even get me started.  We've all seen the videos of the "brave and heroic" USDA cops storming the businesses of raw milk purveyors.  We've read the stories of cities prohibiting personal gardens and chickens.

So, what to do?  You break the law.

You keep your head down - stay off the ridgeline - and you take your chances.  What else can you do?  It is impossible to know all of the laws.  If you want any semblance of freedom, you live by your own code of ethics and morality.

You can work to get politicians in place that think as you do, but for the big picture, it's a lost cause.  Stop waiting around, twiddling your thumbs waiting for sanity to return.  Live your life as you see fit.  Assume punitive actions by the state, so keep your forfeit-able assets widely disbursed.

At some time in the future, I think people will turn on our keepers.  I don't think it will be in my (expected) lifetime.  Too many sheeple who have forgotten (or have never known) what it was like to not have the government pre-approve your every move.

I hope I'm wrong.  I hope I get to see it.  And to participate.

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Copyright 2011 Bison Risk Management Associates. All rights reserved. Please note that in addition to owning Bison Risk Management, Chief Instructor is also a partner in a precious metals business. You are encouraged to repost this information so long as it is credited to Bison Risk Management Associates. www.BisonRMA.com

18 comments:

Anonymous said...

Some good points and some apples and oranges. That famous case of the police enforcing the law against selling raw milk is a good example. Do we want our food supply to be safe? Is the FDA authorized to inspect food and food suppliers to make sure the food is safe? If the scientists have determined that raw milk has the potential to poison and kill should it be ignored? The law is simple; you cannot introduce raw milk into the public food supply, period. Those "poor raw milk purveyors" KNEW this and were actively challenging the police and the FDA. This wasn't a case of them stumbling into a stupid law it was them refusing to obey the law, not once, not twice but numerous times. I don't want my kid poisoned by somneone elses raw milk fettish. If you want to drink raw milk then by all means do it but don't sell it or give it to others.

Chief Instructor said...

Anon, I want to propose a RADICAL idea to you. It's a tough concept for you statists to wrap your brains around, but give it a try: Don't buy raw milk.

I know, I know, you've become such the (ironically) milk-fed veal calf - you only do what you're told 'cause Nanny Knows Best - but try it some time. Perhaps more importantly, don't allow your prejudice to impact my life by reducing my choices.

If I want to drink raw milk, how does that impact your life? It doesn't.

If your argument is about safety, how can we possibly allow people to drive a car all by themselves? 40,000 people are slaughtered every year in car acidents. Does your socialist utoppia have no heart?

And more to the point of the post, show me the article or amendment to the Constitution granting the federal government the authority to tell me what I can put in my body.

[crickets chirping...]

Anonymous said...

I agree with so many of your posts, I finally had to stop to say "thank you". While you are "on the ridgeline" with your blog, there are many that agree. You just don't always hear from us as we are keeping our heads down...

Thanks!

Shy Wolf said...

ROFLMBO @ Anony 6.27 comment "...that (if) scientists have determined raw milk has the potential to poison and kill..."
Mayhap he should stop breathing as well, since scientists have confirmed that air "contains carcinogens known (to the state of California) to cause cancer and other respiratory problems." And we all know that cancer and carcinogens kill us. (As an aside: how many times has the FDA been shown to be wrong?)
Seriously- that kind of stupid dumb think is what's got us into a lot of this mess, yet there are those who blindly follow the piper over the brink. How can people be so damned gullible?
Like a friend of mine who wouldn't buy a certain house because the attic was insulated with some material that causes cancer- IF the material is stirred and a sufficient amount is inhaled. (A 'sufficient amount' would be enough to choke a brontosaurus, but that's beside the point.)
And I really think in his blind adherence to stupidity and ignorance, Anon6.27 has totally missed the point that, 'if it bothers you, don't do it, but don't stop those who want to.'
But to get to the real point of this comment: at my advanced years, I don't see much opportunity of being around to do myshare of damage to those political sheites, either. But damn! I sure do want to be.
Shy III

Anonymous said...

You don't get it. If raw milk is sold into the food chain it finds it's way into other products and people buy those products without any indication that they contain raw milk. So you can't sell toadstools and raw milk into the food chain. You can drink all the raw milk you likebut you cannot sell it.

Dave, RN said...

Anon, read "The Untold Story of Milk". I was raised on raw milk in the 60's, delivered to our door, in California no less! And we could buy it at our local store call "Green Acres" along with gas and what not. As an adult I got smart about my food after doing a lot of research and started, among things, drinking raw unpasturized goat and cow milk. Been doing it for years now. I find it funny that anystore bought milk we have will go bad after a week, but the raw goat milk is sweet smelling and tastey even after 2 weeks. Not only that, you can leave iton th counter overnight (or longer) and it's still good. Try that with store bought milk.
Educate yourself, Then comment intellegently.

Anonymous said...

If you are unaware that raw milk and products made with raw milk make people sick and kill people every year. It happens mostly in third world countries where they don't have laws to control cleanliness and because it is in third world countries you are unaware of it. educate yourself, them comment intelligently.

You need to understand the fallacy in thinking that because you did something for years and no harm came to you that is not proof it is a safe thing to do.

As for the state of California claiming half of everything on earth causes cancer you have to understand that is politics and pseudo-science and the FDA had no part in that.

To anyone who thinks that somehow raw milk is "better" then pasteurized you need to educate yourself on what pasteurization is. It is illogical and opens you up to criticism to claim that raw milk doesn't go bad and pasteurized milk does. It makes you look clueless.

Chief Instructor said...

Anon:

You don't get it.

I get it perfectly. The federal government has absolutely no authority to control milk or any other product, unless it is imported into our country, crosses state lines or has to do with commerce with Indian Tribes (Art. 1 Sec. 8). That's it. Nothing more. No matter how badly you want it to be so.

Your state, on the other hand can do as it wishes, as it is not specifically prohibited from doing so (10th amendment).

So, you seem to be saying you'd rather be safe than free. The state must necessarily take some of your freedom (of choice, in this case) in exchange for making sure the scourge of raw milk is kept from your doorstep. Freedom has risks.

Welcome to the Slippery Slope - no pot (cigs are ok, though), no raw milk, some fats OK, some not OK. If you're this ethnicity, you get these benefit, if you're not - just pay up.

You presume the judgement of the state is superior to that of the individual. I wholly reject that premise.

Enjoy your milk.

Anonymous said...

I agree that the federal government has overstepped the constitution. I agree that most of the things the feds do are constitutional reserved for the states and the citizens. But how in the world would you think we need to start by ending the FDA??? How about we end welfare and the $1.2 trillion we spend on that a year. How about we eliminate the dept of Ed. The dept of energy, HHS, Fema, homeland security and most of the rest of the federal government. I agree! Lets do it, but to start with the FDA????? It may well save a million lives a year why start there?

As for the subject at hand you need to understand the technicality of what you are argueing; that is the feds cannot constitutionally tell us what we can drink, smoke, eat, screw, love, hate. BUT, it can tell us what we can sell. If, as you believe, the constitution even prohibits that then the only answer is test it by bringing it to the Supreme court. I would bet dollars to doughnuts that the nine Supremes will agree that the federal government can control the sale of drugs, products, food, etc.

Adam said...

The Federal Government cannot actually regulate commerce that does not cross state lines. Even though they do, they are in violation of the Constitution.

Any commerce that crosses state lines now becomes a federal matter. I do not think that because something "may" cross state lines as one person carries it does not make it commerce engaged in interstate transfers. Interstate commerce is supposed to be that a company in state a sells it in state b. Not that a company in state a sells it in state a and a person carries it into state b.

I agree that if you don't want raw milk, don't buy it. If you want to buy pastuerized (sp) milk, then buy that. The government has completely overstepped it's bounds on this and many other things.

Chief Instructor said...

Anon, you're hopeless. Keep making the excuses. Keep looking the other way and making excuses. Enjoy your FDA-approved Coolaid.

Here are some of your heroes - state version - in action. Damn, I feel safer now...

http://www.shtfplan.com/headline-news/outrage-government-forces-private-citizens-to-pour-bleach-on-home-grown-organic-food-video_11102011

Anonymous said...

I invite you to go to any packing plant for fresh vegetables and you will see they are by law required to put all the food through a bath containing bleach. It would be smart to know the laws and regulations before entering into a commercail business. Now that they know this maybe they won't get themselves in trouble next time.

Suburban Survivalist said...

Finally read this post a couple days ago. I should not have followed the WSJ link. Been mad ever since.

The slope is so slippery, I see little hope of us making it back up.

I may take some money out of my retirement account and finally get some gold to go with the silver I got a few years ago.

Chief Instructor said...

First, Anon 11:09 (ridgeline comment) - thank you for the kind words. We each gotta do what we can, BUT the end game must be that we survive.

Suburban, wasn't that arrowhead thing absolutely insane? Intent? Irrelevant.

PMs? Yep, I'm in "hoard mode" right now!

Chief Instructor said...

Anon 8:44, good boy. Roll over. Atta boy! Here's a treat!

What part of, "private function" were you unclear about?

suek said...

Here's another link to stir your blood:

http://www.usnews.com/news/blogs/washington-whispers/2011/11/16/obama-pushing-shooters-off-public-lands

Chief Instructor said...

Sue, Ironically (or not), right next to the article about trying to reduce shooting on public lands, was a video of the guy who took a couple shots at the White House.

Anonymous said...

It was not a "private function". Maybe you were not invited but it was food service; a restaurant. They are required to maintain minimum standards. You cannot serve food to the public and ignore the regulations.