Category Archive 'The Law'
04 Dec 2015

Gun Control Laws and the San Bernardino Massacre

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FarookGuns
Syed Farook and Tashfeen Malik’s weapons

Media reports about the guns were misleading as ever, describing them as “legally purchased” typically as part of a ideologically-loaded effort to demonstrate the lack of Gun Control regulations which might have kept such weapons out of the hands of mass killers like Farook & frau.

But MRC TV’s Dan Joseph yesterday noted that, in fact, those two AR rifles were almost certainly not legally acquired.

San Bernardino, Calif., officials have confirmed that the two rifles used by gunman Syed Rizwan Farook in Wednesday’s massacre were purchased not by Farook himself, but rather by a friend. This means that at some point the rifles were either sold, stolen or given to Farook by his friend, sometime within the last three or four years.

According to California’s firearms laws, it is “illegal for any person who is not a California licensed firearms dealer (private party) to sell or transfer a firearm to another non-licensed person (private party).” The prohibition on transfers – except those between family members- that do not involve a licensed gun deal Went into effect on January 1, 2011.

This means that unless, Farook’s friend was an authorized weapons dealer in the state of California or the transfer occurred in another state, then the rifles were acquired illegally.

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Today, Jacob Sullum, at Reason, confirms that either a straw purchase or an illegal transfer must have occurred.

Federal officials say Syed Rizwan Farook, one of the massacre’s perpetrators, bought the two 9mm pistols used in the attack, a Springfield and a Llama, from gun shops in San Diego and Corona. That means he passed background checks, which indicates he did not have a disqualifying criminal or psychiatric record. An acquaintance of Farook’s bought the two AR-15-style rifles used in the attack, a DPMS A-15 and a Smith & Wesson M&P15, also at gun shops in San Diego and Corona.

Sullum goes on to note the ineffectiveness of legislation targeted at “bad” military-style weapons in preventing human ingenuity from developing work-arounds which render the regulations meaningless.

The DPMS A-15 and Smith & Wesson M&P15 both come in “California legal” versions, which means they have “bullet buttons” that require the insertion of a loose round (or some other tool) to detach the magazine. With that feature, the magazine is not considered “detachable,” which is part of the state’s “assault weapon” definition.

Gun controllers tend to view bullet buttons as a sneaky end run around California’s “assault weapon” ban. Huffington Post reporter Daniel Marans calls the bullet-button option a “technical loophole.” Josh Sugarmann, executive director of the Violence Policy Center (VPC), complains that gun manufacturers are “cynically exploiting an inadvertent limitation” of the law. But bullet buttons are explicitly allowed by California Department of Justice regulations, which say “‘detachable magazine’ means any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required.” The DOJ adds that “a bullet or ammunition cartridge is considered a tool.”

Since rifles with bullet buttons do not have what California considers detachable magazines, they can include military-style features that would otherwise be forbidden, such as folding stocks, pistol grips, or flash suppressors. “Assault weapon” is an arbitrary, legally defined category, so the fact that California does not consider these rifles to be “assault weapons” means they aren’t “assault weapons.” It makes no sense to complain that California’s “assault weapon” ban misses some “assault weapons,” which are whatever legislators say they are. Nor does it make sense to complain about design changes, such as bullet buttons, aimed at complying with the law. Gun manufacturers that produce “California legal” guns are doing precisely what the state has told them to do.

But, wait, more than human ingenuity and work-arounds using technical loopholes occurred here. According to The Wall Street Journal, the ATF discovered that two highly-illegal modifications of those rifles were made.

The rifles used in the San Bernardino mass shooting were illegal under California law because they were modified and violated the state’s ban on assault weapons, the Bureau of Alcohol, Tobacco, Firearms and Explosives determined on Thursday. …

The two semiautomatic rifles were versions of the popular AR-15 model, according to San Bernardino officials. One was made by DPMS Inc., and the other by Smith & Wesson.

While they were originally sold legally, with magazine locking devices commonly known as bullet buttons, the rifles were subsequently altered in different ways to make them more powerful, according to Meredith Davis, a special agent with the ATF.

The Smith & Wesson rifle was changed in an attempt to enable it fire in fully automatic mode, while the DPMS weapon was modified to use a large-capacity magazine, she said.

Modifying the DPMS A-15’s to accept larger capacity magazines would be a felony in California. On the other hand, converting Smith & Wesson M&P15 to full-auto capability did not only violate California gun laws, it was also a serious federal crime, violating the National Firearms Act of 1934, the Gun Control Act of 1968 (which would make the couple, as felons, persons prohibited from owning full-auto weapons), and the Firearm Owners Protection Act of 1986 (banning civilian ownership of new machine guns).

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The notion that more Gun Control laws would prevent such shootings was satirized yesterday on Facebook with this image:

NeedMoreLaws

09 Oct 2015

Obey the Constitution and State Law, Not Five Judges

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Photoshopped version of: Vasili Pukiriev, Неравный брак [The Unfitting Marriage], 1862

Breitbart:

More than sixty prominent legal scholars are out with a statement saying the Supreme Court’s Obergefell decision “cannot be taken to have settled the law of the land.” Therefore the scholars are calling upon federal and state office holders, along with regular citizens, to act as if the decision is invalid.

The scholars write that the bare-majority decision on gay marriage lacks “anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution.” The ruling “must be judged anti-constitutional and illegitimate,” they say.

Signers of what some will consider a controversial proposition include Professor Robert George of Princeton University, who said, “We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is. We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.”

Specifically, the signers are telling office-holders to, “refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case, recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions.”

The letter urges government officials to, “pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons, and to open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evident in Obergefell.”

They remind office-holders that they pledge to uphold the Constitution of the United States, “not the will of five members of the Supreme Court.”

They cite Presidents Madison and Lincoln as justification for their position. President Lincoln acted as if the Dred Scott decision — that neither slaves nor free blacks could be considered American citizens and that the federal government had not right to regulate slavery in the federal territories — was illegitimate and he refused to recognize that it effected anyone in the country except the immediate plaintiffs.

The letter was signed by scholars from a wide range of academic institutions including Kansas State, Boston College Law School, Boston University, Michigan State University, Texas Tech, University of Oxford, Villanova, Vanderbilt, Amherst, Notre Dame, Catholic University of America and many others.

30 Sep 2015

Sophistry as the New Constitutionalism

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Bruce P. Frohnen, at the University Bookman, points out how the recent SCOTUS Obergefel decision typifies the operation of modern American government outside the realm of law.

Can’t get the votes you need? Simply change the rules of the Senate. Lack sufficient support to ratify a treaty? Re-define it as an Executive Agreement. Can’t get Gay Marriage through the legislatures? Interpret some new “rights” out of the Constitution.

Limited government with defined powers is magically transformed into totally unlimited government, free to do anything the community of fashion strongly desires to do.

What made Justice Kennedy´s decision in Obergefell so damaging was not its seemingly endless, vapid paeans to individual autonomy and other pseudo-intellectual claptrap. The inferior quality of Kennedy´s musings is beside the point. The problem is that his musings have no basis in our Constitution or in the moral and intellectual traditions that shaped it and our culture. Kennedy´s legal reasoning, such as it is, flagrantly violates the rule of law in order to impose the “correct” policy on the nation.

The judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.

I am hardly the first to point out that Obergefell substitutes the will of judges for the rule of law. It demands of the people that they forego their obligation to follow and uphold the law of the land and instead bow to the will of the rulers. Such commands are inimical to any semblance of ordered liberty. Unfortunately, these commands, issuing ever-more frequently from the courts and the administrative state, have become deeply embedded in our legal culture and have rendered our legal nomenklatura immune to arguments rooted in reason and to principles of fair play and civil discourse. At the same time, the judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.

Read the whole thing.

04 Sep 2015

Constitutional Jurisprudence in 2015

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ConstitutionTorn

Christopher Taylor identifies the point we’ve reached in America’s relationship to its Constitution.

And so we reach the point at which I’ve given up the idea of ever getting back to the constitution today. In fact, I’ve come to the realization that there’s no point in appealing to the document as any kind of governing and restraining document because the government and people have simply abandoned it except as a fetish.

Recent supreme court decisions have simply negated the constitution entirely, building on decades of ignoring and twisting the document, inventing things not in it until its simply trash. And all of this happened because of well-meaning tiny little steps, any one of which the founding fathers would have been enraged at, but we sigh and shrug at today.

There is no rational basis for thinking that any government will reverse this. It simply is without precedent in human nature and history for a politician to voluntarily surrender their own power or a government to weaken its self. There is only one direction, one trend: toward tyranny.

The founders knew this. They did their best to lock in our freedom and protect this inevitable tendency of the state. It was so well done that the nation lasted more than a century with great, widespread liberties. That era is over, and only one future lies before us, barring some act of God.

The only question is what lies beyond that point, and how we get through it.

04 Jul 2015

John Roberts & Obamacare

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22 Jun 2015

Tweet of the Day

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Hat tip to Walter Olson.

23 Apr 2015

It Is Happening Here

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Kevin Williamson notes how, from Texas to Wisconsin to the US Senate, democrats today are proving eager to manipulate the law to target political opponents.

Texas, as I argued in the March 23 edition of National Review, has a corruption problem—from its police to its universities. One of Texas’s acute corruption problems is the fact that the Travis County district attorney’s office, which prosecutes corruption cases, is absurdly, comically corrupt—by which I do not mean the “Hey can you get my dopey kid into UT law?” level of corruption that is commonplace in Texas, but Boss Hogg levels of corruption. You wouldn’t know it from the typically witless and servile reporting of the Austin American-Statesman, but the drunk-driving conviction of Travis County district attorney Rosemary Lehmberg is the least of that office’s problems—much more significant is the fact that is she recorded on camera threatening legal retaliation against the police who booked her. She is as explicit as can be about this: “You’re going to be in jail,” she said.

The same prosecutor is trying to put former governor Rick Perry in jail for having vetoed funding for her office. Why did he veto the funding? Because the corruption prosecutor is grossly corrupt and a convicted criminal to boot. She went to jail, for pity’s sake.

The Texas state house understandably has passed a bill that will curtail the Travis County district attorney’s special role in prosecuting ethics and corruption cases against elected and appointed officials. Instead, those cases will be investigated by the Texas Rangers. (Old punishment: jail. New punishment: Ranger roundhouse kick! Okay, not really, but that would be kind of awesome.) Naturally, Texas Democrats have sought to block that reform. And a handful of Republicans have, to their discredit, joined them, which is inexplicable.

Why do Democrats want to keep things in Austin? Because Democrats control Travis County, which is home to the state capitol and the University of Texas, and Democrats generally dominate jurisdictions where there are lots of government employees. (Shocking, right? It’s almost as if people do not cease to be self-interested profit-seekers when they go into government.) And they have long enjoyed using Travis County prosecutors as political weapons: Lehmberg’s office under Ronnie Earle was responsible for the risible and corrupt prosecution of Tom DeLay, which ultimately was laughed out of court, but not before ruining his political career and upending his life—which, of course, was the point. The issue is not successful prosecution; it’s successful persecution. If you want to really appreciate what Democrats with guns and badges at their disposal will do in furthering their political interests, you will not find a more terrifying story than David French’s recent account of the Gestapo tactics used by Democratic prosecutors in Wisconsin against Scott Walker and conservative activists. It is nearly impossible to believe that this sort of thing is going on in the United States of America in 2015, but it is. We aren’t talking about petty politics here—we’re talking about using battering rams to knock down people’s doors and sticking guns in their faces because they supported a ballot initiative displeasing to Democratic authorities.

Harry Reid—and every Democrat in the Senate—voted to repeal the First Amendment to render the Supreme Court powerless to protect Americans from this sort of abuse. Robert F. Kennedy Jr. wants to put Americans in prison for disagreeing with him about global warming—and many so-called progressives agree with him. Under the Obama administration, we have seen a weaponized IRS targeting conservative groups for persecution and a weaponized FBI leaning on conservative activists, followed up by a weaponized ATF.

And Democrats, individually and collectively, have supported and enabled every one of these gross abuses of power.

02 Apr 2015

Magna Carta

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22 Jul 2014

Halbig v. Burwell Will Free More Than 57 Million Americans From The ACA’s Individual & Employer Mandates

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Michael F. Cannon, writing in Forbes before today’s DC Circuit opinion, describes the significance of the court’s decision striking down Obamacare subsidies on federal exchanges.

Halbig is one of four lawsuits challenging the legality of the health-insurance subsidies the IRS is dispensing in the 36 states that did not establish a health-insurance Exchange under the Patient Protection and Affordable Care Act, or “ObamaCare,” and thus have Exchanges established by the federal government. Though the PPACA repeatedly states those subsidies are available only “through an Exchange established by the State,” and there are indications IRS officials knew they did not have the authority to issue subsidies through federal Exchanges, the IRS is dispensing billions of dollars of taxpayer subsidies through federal Exchanges anyway. The Halbig plaintiffs are employers and individuals from six federal-Exchange states who are being injured by the IRS’s actions because those illegal subsidies trigger taxes against them under the PPACA’s employer and individual mandates. The plaintiffs want relief from those illegal taxes, and the only way to get it is to ask federal courts to put a stop to the illegal subsidies. Recent media coverage of Halbig, driven by one-sided blog posts from the consultant group Avalere Health and the left-leaning Urban Institute and Robert Wood Johnson Foundation, has misrepresented the impact of a potential ruling for the plaintiffs by ignoring three crucial facts: (1) a victory for the Halbig plaintiffs would increase no one’s premiums, (2) if federal-Exchange enrollees lose subsidies, it is because those subsidies are, and always were, illegal, and (3) the winners under such a ruling would outnumber the losers by more than ten to one.

Avalere Health’s Elizabeth Carpenter blogs, “nearly 5 million Americans would receive an average premium increase of 76 percent if the courts ultimately rule that consumers in the federal exchange cannot receive premium subsidies.” In another brief post, Linda Blumberg, John Holahan, and Matthew Buettgens of the Urban Institute estimate “7.3 million people, or about 62 percent of the 11.8 million people expected to enroll in federally facilitated marketplaces by 2016, could lose out on $36.1 billion in subsidies.” These brief analyses are either misleading or outright false, because they fail to note three crucial facts.

First, a victory for the Halbig plaintiffs would not increase anyone’s premiums. What it would do is prevent the IRS from shifting the burden of those premiums from enrollees to taxpayers. Premiums for federal-Exchange enrollees would not rise, but those enrollees would face the full cost of their “ObamaCare” plans.

Critics will respond that, as dozens of economists who filed an amicus brief on behalf of the government have predicted, a Halbig ruling would also cause the full premium to rise by unleashing adverse selection. This claim is based on a fundamental misunderstanding of Halbig and the PPACA. If a lack of subsidies in federal Exchanges leads to adverse selection, Halbig is not the cause. The cause is Congress tying those subsidies to state-established Exchanges, and 36 states refusing to cooperate. Halbig will not and cannot cause adverse selection. It merely asks the courts to apply the law as Congress enacted it.

Second, Avalere Health, the Urban Institute, and media outlets that have repeated their estimates typically neglect to mention that a victory for the plaintiffs would mean the second-highest court in the land ruled the Obama administration had no authority to issue those subsidies or impose the resulting taxes in the first place – that those taxes and subsidies are, and always were, illegal. Regardless of one’s position on the PPACA, we should all be able to agree that the president should not be allowed to tax and spend without congressional authorization. That’s what’s at stake in Halbig. It is why the Halbig cases are far more important than “ObamaCare.”

The termination of those subsidies and the taxes they trigger takes on an entirely different flavor when we introduce that small detail. …

[Which] doesn’t change the fact that 5 million people have been deeply wronged, it does clarify who wronged them: not the Halbig plaintiffs or a few judges, but a president who induced 5 million low- and middle-income Americans to enroll in overly expensive health plans with the promise of subsidies he had no authority to offer, and that could vanish with single court ruling.

Third, these reports and the ensuing media coverage uniformly neglect to mention that a victory for the Halbig plaintiffs would free not only those plaintiffs but tens of millions of Americans from the PPACA’s individual and employer mandates. Indeed, Halbig would free from potential illegal taxation more than ten times as many people as lose an illegal subsidy.

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And Jonathan H. Adler just reported the ruling striking down those subsidies in the Washington Post.

This morning the U.S. Court of Appeals for the D.C. Circuit released its much awaited opinion in Halbig v. Burwell. In a 2-1 opinion, the Court held that the Internal Revenue Service regulation authorizing tax credits in federal exchanges was invalid. Judge Griffith, writing for the court, concluded, “the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges ‘established by the State.” In other words, the court reaffirmed the principle that the law is what Congress enacts — the text of the statute itself — and not the unexpressed intentions or hopes of legislators or a bill’s proponents.

15 Apr 2014

Rancher Bundy’s Standoff With the Feds

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John Hinderaker took the time (which most commentators have not) to look deeper into the equities of the recent confrontation between Nevada rancher Cliven Bundy and the Federal Bureau of Land Management.

First, it must be admitted that legally, Bundy doesn’t have a leg to stand on. The Bureau of Land Management has been charging him grazing fees since the early 1990s, which he has refused to pay. Further, BLM has issued orders limiting the area on which Bundy’s cows can graze and the number that can graze, and Bundy has ignored those directives. As a result, BLM has sued Bundy twice in federal court, and won both cases. In the second, more recent action, Bundy’s defense is that the federal government doesn’t own the land in question and therefore has no authority to regulate grazing. That simply isn’t right; the land, like most of Nevada, is federally owned. [86% — JDZ] Bundy is representing himself, of necessity: no lawyer could make that argument.

That being the case, why does Bundy deserve our sympathy? To begin with, his family has been ranching on the acres at issue since the late 19th century. They and other settlers were induced to come to Nevada in part by the federal government’s promise that they would be able to graze their cattle on adjacent government-owned land. For many years they did so, with no limitations or fees. The Bundy family was ranching in southern Nevada long before the BLM came into existence.

Over the last two or three decades, the Bureau has squeezed the ranchers in southern Nevada by limiting the acres on which their cattle can graze, reducing the number of cattle that can be on federal land, and charging grazing fees for the ever-diminishing privilege. The effect of these restrictions has been to drive the ranchers out of business. Formerly, there were dozens of ranches in the area where Bundy operates. Now, his ranch is the only one. When Bundy refused to pay grazing fees beginning in around 1993, he said something to the effect of, they are supposed to be charging me a fee for managing the land and all they are doing is trying to manage me out of business. Why should I pay them for that?

Read the whole thing.

A lot of commentators on the Right discovered that Mr. Bundy lost in federal court and was clearly defying the law, but those editorialists failed to notice that, in a manner not unprecedented in the history of the American West, in Mr. Bundy’s case, the law is in the hands of special interests and is being used to take away what other people own.

Nevada became a state in 1864. Why exactly is it, that 150 years later, the United States government is still sitting on 86% of all the land in Nevada? Why wasn’t the grazing land used by Mr. Bundy been sold to the Bundy family generations ago?

If the Bundy confrontation proves anything, it demonstrates just how past time it is for most federal lands to be privatized.

17 Nov 2013

Obamacare Insurance Policies Cancellation Fix: Not Easy to Understand For Ordinary Mortals

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Law Professor Jonathan H. Adler, who posts at Volokh, is just not as intelligent as Barack Obama. Consequently, he cannot understand how the president simply waving his hand at a press conference, and announcing that he does not intend to enforce his own federal law can practically serve as a solution which will preserve insurance policies cancelled as a result of the Obamacare law. You have to be as intelligent as Barack Obama to understand the operation of the dialectic in the interaction between these things.

Yesterday, the President announced a purported fix to the problem that, under the PPACA [aka Obamacare], insurance companies are not allowed to renew policies that fail to comply with PPACA requirements, even if consumers like their existing plans. …

According to the President’s announcement, insurance companies will be allowed to renew policies that were in force as of October 1, 2013 for one additional year, even if they fail to meet relevant PPACA requirements. What is the legal basis for this change? The Administration has not cited any. … According to various press reports, the Administration argues it may do this as a matter of enforcement discretion (much as it did with immigration). In other words, the Administration is not changing the law. It’s just announcing it will not enforce federal law (while simultaneously threatening to veto legislation that would authorize the step the President has decided to take).

Does this make the renewal of non-compliant policies legal? No. The legal requirement remains on the books so the relevant health insurance plans remain illegal under federal law. The President’s decision does not change relevant state laws either. So insurers will still need to obtain approval from state insurance commissioners. This typically requires submitting rates and plan specifications for approval. This can take some time, and is disruptive because most insurance companies have already set their offerings for the next year. It’s no wonder that some insurance commissioners have already indicated they have no plans to approve non-compliant plans.

Yet even if state commissioners approve the plans, they will still be illegal under federal law. … Given this fact, why would any insurance company agree to renew such a plan? It’s nice that regulators may forbear enforcing the relevant regulatory requirements, but this is not the only source of potential legal jeopardy. So, for instance, what happens when there’s a legal dispute under one of these policies? Say, for instance, an insurance company denies payment for something that is not covered under the policy but that would have been covered under the PPACA and the insured sues? Would an insurance company really want to have to defend this decision in court? After all, this would place the insurance company in the position of seeking judicial enforcement of an illegal insurance policy. If there’s an answer to this, I haven’t seen it . … It’s almost as if the Administration has not thought this through.

16 Nov 2013

” I Have Seen the Future, and It Is Idiocy”

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Theodore Dalrymple reflects, in Taki’s magazine, on the modern state’s law enforcement priorities and their deeper meaning.

A couple of American filmmakers came to Paris to interview me—it always surprises me that anybody would take so much trouble to interview anybody, let alone me—and decided that the little park opposite my flat, with a pretty little bandstand, would be a good place to do so. They set up the camera, but a few seconds later, before they could ask me a single question, a municipal policeman arrived. They were not allowed to film here without a permit from the mairie of the arrondissement, he said. I explained that these were Americans, come all the way from Texas expressly to interview me. He, a very pleasant and polite man of African origin, phoned his chief to see whether an exception could be made. As I suspected, it could not.

I told the film crew that we should make no fuss; the man was only doing his job, silly as that job might be. As it happens there were several drunks in another part of the park making aggressive-sounding noises and breaking bottles, but them he did not approach, perhaps wisely, as they were several and he was only one. He thought he would have more luck with someone wearing a tweed jacket and corduroy trousers as I was. We found a café willing to accommodate us.

The contrast between the authorities’ alacrity on one hand in preventing innocent filming for a matter of a few minutes (the policeman said authorization was necessary because it might cause a disturbance, and, being kind, I refrained from laughing), and on the other their slow response to a nasty incident that might have ended in murder, was emblematic of the modern state’s capacity to get everything exactly the wrong way around, to ascribe importance to trivia and to ignore the important. There are, of course, many more employment opportunities in trivia, since there is much more that is trivial in the world than is important.

France is not unique in this respect, or even the worst example I know. In London I once parked outside a hotel where I proposed to stay. Parking was forbidden outside, but I stopped only to take my baggage inside. I received a parking ticket within sixty seconds, a miracle of efficiency (I genuinely admired it in a way), though it was perfectly obvious from my car’s open doors that I did not propose to stay long and was only taking my luggage into the hotel. But on another occasion when my wife telephoned the police to inform them that youths were committing arson in our front garden before her very eyes, they had no time to attend to it. A more senior officer, however, did find the time a quarter of an hour later to complain to my wife that she had wasted police time by complaining in the first place.

It often seems, then, as if modern state authorities live in a looking-glass world: What normal people regard as important is for them of no importance, while what they regard as of supreme importance normal people regard as of no importance. For them the respectable are suspect and the suspect respectable. A tweed jacket is a sign of menace, while a broken bottle is a sign of harmless intent.

One must not exaggerate the degree to which official idiocy impinges on our lives. The exaggeration of misery is one of the royal roads to political disaster. Still, I have seen the future, and it is idiocy.

Read the whole thing.

Hat tip to Bird Dog.

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