Jury finds you can cross corners in Carbon County.

Elk Mountain as viewed from Shirley Basin.

Big news on the public access to lands front:

Jury finds four corner-crossing hunters not guilty of trespass

Now, what this isn't.

It isn't a court declaration that's binding precedent on the whole state.  It's one jury, in a circuit court case. That's it.

It does mean that these four guys are not going to be convicted.

And beyond that, it shows that juries, quite frankly, are unlikely to convict anyone for corner crossing.  Not only in Carbon County, but anywhere in the state.

And it doesn't end the issue, actually.  A civil suit remains, and it's far more likely to have a bigger impact, as it will likely be the one that ultimately goes to the Supreme Court and the Wyoming Supreme Court will then determine the issue.

It does send a signal, however, both to courts (of course) but to the legislature on how average Wyomingites view these issues, and that likely is summed up by a comment made in court by the defendants' lawyer:

He believed the whole mountain was his and that no one but [he] was allowed to be there … like a king.”

DEFENSE ATTORNEY RYAN SEMERAD ON RANCH OWNER FRED ESHELMAN

Eschelman is an entrepreneur who is noted for his charitable donations. . . and his donations to right wing politicians as well.  He's apparently humble and generous. Not so generous, however, that the South Carolinian saw fit to just turn a blind eye to this matter or to generally allowing some of the less well funded access to public land, not his land, on his Wyoming ranch.

The original encounter, moreover, was caught on audio and video, with Eschelman's employee stating to law enforcement;“Do they realize how much money my boss has? …and property?”

And indeed, his having a Wyoming ranch brings to mind Thomas Wolfe's comment on that in his book A Man In Full.

On the topic of decisions, this also points out the dangers of pursuing something best left untouched, something that was pointed out a couple of years ago in the Wyoming ve. Herrera case.  Sometimes, there are issues that you'd rather leave undecided.

Indeed here, the County Attorney, an elected official, made the decision to prosecute, no doubt based on prior interpretations of the law, which would have favored the same.  But in doing so, she's accidentally taken the side of a wealthy out of stater against the interest of common Wyomingites.  This probably never crossed her mind, but it likely has crossed the mind of a lot of locals by this point, and the effective statements of the defense now doubt have taken root.  Eschelman, in the words of the defense, is a would be king and oppressor.  I've now seen public comments that the County Attorney prosecuted as she was influenced by his wealth.  That's extremely unlikely, she was probably influenced by the law, and may very well not be in the class to whom this issue is dear to the heart, but she's no doubt aware that it is to many now.  How this also plays out is yet to be seen.

And indeed, this takes us back to the topic of allmannsretten, which we've addressed elsewhere.

As noted, this story is still playing out.  It'll be very interesting to see where it goes ultimately.

Courthouses of the West: 2021 Reflections. The Legal Edition

Courthouses of the West: 2021 Reflections. The Legal Edition: 

2021 Reflections. The Legal Edition

This blog has been so slow that a person would be justified in believing its a dead blog.

It isn't, it has COVID 19.

Allow me to explain 

It was already the case that 2019 was an odd year, legal wife, for the journalist here.  The reason for that was that my schedule was such that I did very little traveling.  The last new courthouse (keeping in mind that I don't take photos of courthouses I've already taken, was in Fallon County, Montana.

Fallon County Courthouse, Baker Montana

There's no way on Earth when I took those that I anticipated there wouldn't be any new courthouses appearing later that year.  

And yet there were not.

2020 would have been different, but in late 2019 the news that a new disease was loose in Asia hit.  By January, there were pretty clear signs that something was frightening about it.

January is, of course, Tet, or similar holidays in Asia.  I.e, the Lunar New Year.  It's a big deal and in spite of the imposition of Communism on Asian societies, they still celebrate it.  The Lunar New Year caused Asians to travel all over their own countries and all over the globe.  Easter and Christmas do the same in the West.  The combined impacts of all those holidays sent people moving all over, and the disease was soon global.  Living through it at the time, it seemed to hit Italy first, but who really knows.  

Anyhow, by March things were shutting down.  Trials I had scheduled that summer were cancelled. Courts shuttered their doors.

And Zoom came in.

Now, in January 2022 we're looking at the rapid spread of the Omicron variant of COVID 19.  It's going to close some things somewhere.  It's inevitable.

And even if it's milder, it's effectively the last blow in how the litigators do business.  Things are never going back to the way they were before.

In 2021, I did four trials.  Two of them had some kind of mask mandate in place.  Every courthouse is different.  Depositions have largely gone over to Zoom, and they don't ever appear likely to go back to being live and in person.  Lots of hearing are now by Microsoft Teams.

Ironically, even though I spent a week in a really beautiful courthouse in another state, I'd note, I failed to take a single photograph of it. 

An evolution towards electronic appearances in things was occurring before COVID 19, but the pandemic pushed things over the edge and fully into the electronic world.  I really don't like it, and I don't like what it will likely mean for the law either.  I'm lucky to have principally practiced before it occurred.

2020 and 2021 saw the best and the worst of lawyers in spades, which is something we should note before moving on.  For the worst, lawyers working for the Trump Administration or affiliated with it were full participants in a plot to illegally retain power for the ex President.  It's shameful.  

For the best, most lawyers didn't participate in that or approve of it. The Court system itself really rose to the occasion and kept the coup from working.  Lawyers in at least one state wrote a letter to their Senator, also a lawyer, flatly demanding that the Senator retract the Senator's position in regard to the coup, which the Senator did not do.  It was a brave thing for them to do.

One thing that Trump accomplished that was a real accomplishment (and frankly its Mitch McConnell's accomplishment) was to bring in a set of Supreme Court Justices who actually apply the law as written.

Much of our current problems with huge political polarization stem in fact from the capture of the highest courts by the political left in the mid 20th Century.  The courts of that period were perfectly comfortable with creating new rights out of thin air and foisting them on the public, when the public wouldn't have supported them democratically. That partially lead to a right wing belief that the left was anti-democratic and involved in what some regarded as a slow moving left wing coup.  When one camp drops a belief in democracy, the other will follow sooner or later.

We've finally gotten past the US. Supreme Court acting like a super legislature of Platonic Elders.  It was long overdue.  That's gong to be painful for a few years, but perhaps it helps us get back to where we always should have been.  Big social issues ought to be decided in legislatures, not in courts.

Let's  take a look at the upcoming year and therefore put out a few, a very few, resolutions for the field of law.  Most of these we have little hope of being carried out, which doesn't mean that we shouldn't state them anyway.

1.  End the UBE

The UBE has proven to be a failure.  It's mostly aided the exportation of legal jobs from states with smaller economies and communities to neighboring ones with larger economies and communities, something now aided by electronic practice.  It's made the standard of practice more uniform, by making it more uniformly bad.

The UBE ought to go, or a local state bar reinstated where it exists. For that matter, its time for residency requirements to come back on.

2.  Quite with the bad legal reporting

If you listen to the news, any news, you'll get the impression that the justices of the United States Supreme Court act like a session of World Wide Wrestling every time they meet. That's far from true.

The vast majority of U.S. Supreme Court decisions are heavily one-sided.  I.e., 9 to 0, or 8 to 1 decisions are much more common than 5 to 4.  In the last session, for example, Justice Sotomayor issues and opinion in a criminal case that accused the lower court of ignoring the plain language of a statute. She was writing for the majority.

You never hear stuff like that.

That's mostly because in an average year there's maybe one or two. . . or no, cases that are actually interesting from the Press's prospective.  And those are the ones that tend to be lopsided.  It gives a skewed prospective on the court.

3.  Age matters

I've been saying this for a while, but its disconcerting that the Federal bench has no mandatory retirement age.  

I'm not saying that any Federal judge I've ever encountered seemed impaired. Far from it. But courts belong to the people, and the median age for the people is a lot lower than the upper reaches of the Federal bench. That matters.  

For that matter, I think the state mandatory retirement age for judges ought to be depressed.  It's 70 now, and there was a move in the legislature a few years ago to raise, or remove, it.  I think it ought to be lowered to 65.  Frankly, I'd prefer it being lowered to 60. Again, not because I have a problem with a current judge, but people are younger than that, as a rule.

And at some point this is going to catch up with us.  

This applies, I think, to lawyers as well.  Age takes its toll. Age also narrows us, and we tend to end up our occupations.  Both are bad potentialities.

4.  Wider net

Recently one of the Bar Commissioners noted that a state Supreme Court justice had expressed concern over a lack of applicants for judicial positions.  I'm frankly not surprised that there has been.

Part of this may reflect a disturbing trend in general.  In what most of us thought was the late stage of COVID (it might not have been, as we now know) the press started reporting on the Great Resignation.  Now some are doubting that this is occurring, but at least in the legal field it seems that the Great Hesitation is operating.  I'll post about that in general in one of our companion blogs, but anyone in the legal field anywhere knows that younger lawyers are seemingly just not entering practice right now  I don't know what they're going, frankly  Some that are, are job hopping rapidly.  One judicial law clerk I became somewhat familiar with in another state was on her fourth job as a clerk, and second clerkship, and had only been working for less than two years.

Anyhow, one thing that seems to have gone on for the last few state administrations here is selecting judicial applicants based on certain criteria that were set out, publically or silently, which is fine and makes sense as, after all, it's a political appointment.  That was a change from some prior administrations, however, which took a broader view.  Anyhow, after this being the case for a long time, I think certain private practitioner categories have simply quit applying as it was obvious that they weren't going to be admitted.  

A wider net needs to be cast.

On that, one thing the judicial nomination committee used to be able to do, although I don't know if it still can, was to submit names of its own choosing.  At least one judge in the southeaster part of the state became the judge that way.  He was completely surprised by his own nomination and struggled with it at first as it meant a big reduction in income.  He accepted the position as he felt it was his duty.  If the committee can't do that, it ought to have that power restored and actually use it.

Stench. A short trip through the Roe v. Wade controversy as a matter of stare decisis.

 As we all know, Justice Sotomayor claimed she detected the "stench" of politics in oral arguments in Dobbs v. Jackson Women’s Health Organization the other day.  

Something does in fact stink, and powerfully so, but what's really going on here.  Let's look at the claims, and the reality.

• The Supreme Court is going to overturn Roe and wipe out a "constitutional right".

No, it isn't.

It may overturn Roe, but everyone pretty much agrees that the court just made it up back in 1973.  More specifically, the Supreme Court itself, in Roe, acknowledged that the Constitution never mentions a "right to privacy", which is what it based its decision on.  It went on to find that even though a right to privacy was never mentioned, other cases had implied one existed, but it went on itself to find that the right wasn't absolute.

The court then went on to actually discuss when life begins, noting that there were different positions on that. The court actually criticized Texas for adopting one theory, and then went on to basically adopt one itself.   The decision was, right from the onset, internally inconsistent and bound to fail sooner or later.

Anyhow, if the Court fully overrules Roe, it doesn't mean that it wipes out any Constitutional right.  Rather, it returns to a position of neutrality on this topic.  

That would, seemingly, perhaps, maybe, wipe out a made up "right of privacy".  Or not.  It might just state that the Court doesn't know when life begins and therefore has no opinion on how to balance a right to life vs. a right to privacy.

• Overruling Roe makes abortion illegal.

It does no such thing.

Rather, it means the people, through their legislatures, can decide the legality of it.

• But that tramples on the rights of women.

Not, it merely means, once again, that this returns to the voters.

Women outnumber men in the American population and vote at a slightly higher rate.

Seemingly missed in all of this is that when you see people arguing to outlaw abortion, there tends to be more women than men in the crowd.  If this is a "woman's issue", lots of women seem to want to outlaw abortion.

This is a persistent failure of logic in the discussion of this topic by the press. The press discusses state legislation as if the 19th Amendment doesn't apply, and only men are going to have a say.  There may be more male legislators in the US than female, but the era in which men control politics is dead and gone.

Every four years the big parties wring their hands in angst about how "suburban women" are going to vote, because they vote, and their votes alone can swing an election.  This is true in this case too. States that are posed to outlaw abortion aren't doing it because Joe Six Pack is going to get up from his easy chair and stop watching the Packers to go vote on this issue.  Women have been and are paying just as much attention.

• So what's this really all about?

That's simple.

The left wing in American politics, or the "progressives" if you prefer, are anti-democratic.  The extreme right wing is becoming anti-democratic too, but hat doesn't impact this issue.

Progressives prefer rule by let wing elites who decide what people should and shouldn't believe on social issues. They know that average people tend to be fairly conservative by default, as that's basically the human norm.  So, to remake a society along "progressive" lines, by which is meant a genderless, childless, cultureless society, you have to force people into it, as they won't go there themselves.  Left to their own, they'll have a messy culture that includes lots of nasty social norms like male/female marriage, families of varying sizes, and cultures that have distinct beliefs.  

You just can't have that sort of thing.

Isn't that a bit harsh?

Well, yes, but it boils down to that.  As there are more women than men, and women vote at a higher rate than men, if this was really about legislatures unfairly depriving women of access to abortions, it would be rather simply solved at the ballot box.

• What about stare decisis?

Stare decisis is the doctrine that we close the door on certain things, right wrong or indifferent, once they are decided.

This is the one argument that the pro Roe forces have, as it's been in existence for fifty years now.  But it's been opposed and argued to be wrong the entire time, certainly showing that it isn't a "matter decided" in the mind of the public.

And that argues against accepting it as "super stare decisis", so to speak.  If the Court gets something really wrong, and it has in the past, that's not really an argument for keeping it forever.

• So what stinks, then?

Well, Roe v. Wade itself, really.

But not just that, an entire body of cases that were just made up, and they include some within the past decade, aren't respected as they're made up.  That's what stinks.

When justices cease being judges, but Platonic counsel of super wise men, they flunk their jobs and keep problems around forever.

The argument to preserve Roe v. Wade inspite of its ineptitude.

The United States Supreme Court held oral arguments on an abortion case on December 1, with the discussion focused on Roe v. Wade.  

Perhaps the most interesting comment came from my least favorite Justice, Justice Sotomayor, who made the comment, in the form of a question

Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?

In fairness to the Justice, the full quote is:

Now the sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices,” she says, adding that the same was true about a separate Mississippi law, passed earlier this year and not before the high court, that would ban abortion after six weeks of pregnancy.  Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?

Stench, however, is the right word.

And that stench was created by the whopper that the court deposited in 1973 when it flopped down a real stinker of an inept decision in the form of Roe v. Wade.  She even got the source of the fifty-year-old stinker right, sort of.  Roe v. Wade was an extrajudicial act, so it was basically a political act.  Removing the stench and getting it out into the pet walking receptical would require overruling Roe.

To read Roe is a shock. Very few people do, of course, and by this point very few people are really interested in doing it. But the decision is shockingly thin on any kind of reasoning. It makes very little legal sense and next to no scientific sense.

Indeed, it was later learned that the part which is most often noted, the fetal viability portion of the case, was "dicta", i.e., the author really didn't even regard it as important, which shows how badly drafted the entire thing was.

From here, it's easiest to link in some of the quotes and commentary found at one of the Blawgs that's linked in below.

Roberts asks Stewart how fetal viability was addressed in Roe, noting that Justice Harry Blackmun, the author of that decision, revealed with the release of his personal papers that the viability line was “dicta.”

Roberts calls the papers, released five years after Blackmun’s 1999 death, “an unfortunate source.” Later in the argument, Roberts says the release of the Blackmun files “is a good reason not to have papers out that early.” So I think we will be waiting for the Roberts papers for a good long time.

So, in essence, Justice Blackman admitted that the entire trimester viability thing was just dicta, science has since shown it to be lacking any scientific viability, and frankly the entire Constitutionally protected right to privacy it found in the "penumbra" is just made up.

This is frankly widely known by anyone whose read the opinion and is pretty much the view in the law.  Nobody really takes the text of Roe seriously.  The question is whether the Supreme Court has the right to create new rights that don't exist, or whether it's restricted to the Constitution.

Liberals who are arguing for Roe don't argue that its text makes sense. Rather, their real argument is that if the Supreme Court should strike it down, then the people, through their state legislatures, will restrict or outlaw abortion.  I.e, democracy on the issue will break out, and liberals don't really trust voters.  

Opponents of Roe argue that it's an immoral decision as it licenses killing based on nothing more than the calendar.  Some abortion proponents are getting frank about admitting that's in fact the case.  They don't tend to argue what liberals fear, however, which is let the people decide the issue.

But I'll state it.

You can't intellectually get to argue that the people should decide some big issues but not others on the basis that nine people in Washington D. C. have an opinion about it.  Like in other areas, you are either for democracy, or you aren't.

Monday November 14, 1921. Monuments, prisoners and wrestlers.

The cornerstone was placed at the Washington Memorial Hall.

Mrs. Harry Rogers Mallory performed the official honors.

There was wrestling news in Wyoming.

Today In Wyoming's History: November 14, 1921

1921  World Champion wrestler Jack Taylor of Wyoming lost the title in Boise to a Russian wrestler.  Attribution:  Wyoming State Historical Society.

Taylor was actually a Canadian, but he was living in Wyoming at the time.  He had just been defeated noted wrestler Jack Pasek at the Iris in Casper on October 31 in a three-hour match, so he was on a losing streak.

Taylor had originally hailed from Ontario and would return to Canada in later years, retiring to Edmonton, a city which is interestingly frequently compared to Casper, although for reasons that are unclear to me.

The President was visited by World War One veterans who wanted him to release prisoners who had opposed the war.

The news photos vs. a print from a negative at the LoC gives an interesting example of photo cropping.

Skippy and Nena ponder guns.

FN M1900, an early John Browning design.

Let me first note, I really like NPR in general, and the NPR Politics podcast in particular.  I'm a regular listener.  I don't buy the "liberal bias" line about NPR at all, and generally find that it has good, straight forward, reporting.

I haven't been too thrilled by the addition of Nena Totenberg, however.

Seventy-seven year old Totenberg has a reputation for Supreme Court reporting going way back.  And while I complain about the top of everything being vested in the Boomers, I will note that Totenberg is a real exception in that most of the hosts of Politics are Millenials, which is very refreshing.  I have no one specific thing, other than I just feel that Totenberg is an example of an antiquated view on the Court somehow.  A little snarky, sort of inside baseball, kind of approach to somebody who maybe has been around the Court a little too long.

Maybe.

Anyhow, there's a case in front of the United States Supreme Court regarding whether the 2nd Amendment provision regarding the right to "keep and bear" arms means you can carry them concealed or not.  This is the episode:

The Docket: Do You Have The Right To Carry A Gun Outside Of Your Home?

In addition to Totenberg NPR invited Joseph Blocher to speak.

And this, dear reader, gives us a prime example of everything wrong about press Supreme Court coverage.

I've already listed my somewhat vague complaints about Totenberg, which are admittedly perhaps completely unfair.

Blocher is a law professor, and as such, however, his opinion here is, well, much like a law professor's.

Being a law professor is often an exercise in evading the practice of law  Far too often law professors walked through the doors of a law firm, and then fifteen minutes later went crying out the front door after finding out that it involved hard, hard, nasty brutish, work.  

So they entered a law school where they don't have to deal with the reality of law as it really is, in the nasty real world, where real people are.

Which often makes their views on big topics in the law 1) irrelevant; 2) worthless, or 3) dangerous.

This time it was pretty questionable.

Now, Blocher, in looking him up, and about whom I know nothing at all personally, worked on the Heller case, as a practicing lawyer, which is why he is probably a professor in the Duke Center for Firearms Law.  Heller was the big case that found that the 2nd Amendment was incorporated into the full Bill of Rights and that it conveyed an individual right.

Having a Center for Firearms Law means, however, that you have a center for things most students don't deal with in their real law practices. Right there, that's worthy of a complaint from a practicing lawyer.  A Center For Small Claims Court Law would be much more useful. A Center For Firearms Law sounds too much like a Center For The Way Law Professors Feel The World Should Be.

M'eh.

Anyhow, Blocher is a top dog there.

Now again, I know nothing about him.  Just looking him up, it looks like he's built a nice career with this being a partial niche in it.  He graduated from law school in 2006.  That's long enough ago to have entered picked up the ability to really practice as a real lawyer, which takes about a decade after graduation for some field, and less time for others.  I.e., to be able to practice on your own.

He then clerked for a year.

Mm. . . . . 

Clerking had a somewhat prestigious reputation when I graduated from law school, and it still does, but it's evolved over time. Clerks used to serve one hitch for one judge and then be booted out into the cold real world a year later.

And that's what his first clerkship did.

First?

Yes, first.

We're starting to see the phenomenon of multiple clerkships now This is pretty much a new thing.  Also a new thing, FWIW, is permanent clerkship.  I.e., clerks who make that a career, which Blocher has not done, I'd note.

Blocher then went to work for almost a year. . . yes, almost a year, for a law firm, where he helped brief Heller. And then he went back into a second clerkship.  Then, after a year of doing that, he became a law professor at Duke.

So he practiced law from September 2007 until June 2008.

This demonstrates everything wrong with law schools.  Less than a year of actual practice?  Nobody should be teaching law to people who will practice it who hasn't been in the trenches.  A law professor teaching law to students who will be lawyers with less than a year of practice is like giving the position of Chairman of the Joint Chiefs of Staff to a guy whose strategic experience is limited to paying Stratego.

So, again, me'h.

Now, some would immediately note, and some lawyers at that, that to teach a position in a law school surely shouldn't have to mean that you've been a practicing lawyer.  The professors in the physics department didn't built atomic bombs, probably, before going to work there.  And that's quite right.

But law isn't like those sorts of disciplines.  Professing disciplines, of the traditional type, save for the clergy really require you to be out in the muck before you really have an appreciation of what's going on. Those teaching medicine should have seen patients, for example.  

And the law belongs to the people.  It's easy enough to imagine that you know all about a legal topic, but you don't know anything about it until you've actually practiced law.  A think like an individual right to carry a firearm may seem like something you can grasp through statistics and study, but until you are dealing with somebody whose ex spouse is threatening to beat them to death. . . well you don't.

Well, NPR, with Nena and Skippy, went on to try to consider the history of concealed carry and the law.

Totenberg did a good job, in spite of my criticism of her, in giving the history of the recent change in the approach of the states.  Need to carry did use to be a requirement in most states in recent years, but has really changed.  So that was correct. Where the show dropped ball, however, was here:

TOTENBERG: You know, if you really want an example of how much has changed in the law, I remember Chief Justice Burger in the 1980s, at some point in the 1980s - and he was a conservative Nixon appointee to the court - saying that the idea that you had an individual right to carry a gun was really just silly. He dismissed it. He had an interview with Parade magazine, and he simply dismissed it out of hand. And that was the absolutely accepted, in the legal profession, idea at the time. That has - we have seen not a sea change; we've seen a typhoon - you know, just obliterate that idea now. And oddly, it comes at a time when we have increased mass shootings and more dangerous weapons. So it is, you know - it's sort of - if this weren't radio, I would be gesturing that - my two hands banging up against each other.
RASCOE: It's counterintuitive.
TOTENBERG: It's very counterintuitive.

Okay, first of all, it is simply not the case that the legal profession universally thought there was no individual right to carry a firearm.  In fact, it was hotly debated as there wasn't a case that had clearly decided it.  But the one case that did exist, from the 1930s, strongly suggested such a right was in fact there.  That results oriented opinion went as far as it could in restricting the one thing before it, a sawed off shotgun in the hands of a felon, but even in that, it suggested the right was there.

Now, at this point, Skippy leaped in to correct Nena, right?

No.

Let me also note that none of the "conservative" judges of the Burger era were all that conservative.  Following the Second World War the Court became the domain of the left, and conservative judges of that time simply weren't all that conservative.  It was simply a liberal court era.  The first real conservative anyone nominated was Bork, who failed to gain a seat after the Senate, with Joe Biden playing a prominent role in it, skewered him for being conservative. That act held back an evolving conservative evolution on the Court which had, in part, been inspired by an activist Court simply making things up.

This doesn't mean Burger was a flaming liberal, either. That's not true at all.  Rather, he was conservative in context.  As Totenberg notes, he was a Nixon appointee, and Nixon was a conservative in context.  Nixon wasn't Reagan, in other words.

But there were lawyers around, even as far back as that, and further, who felt there was an individual right to keep and bear arms.  And there were those outside of the legal field who certainly did as well.  It was 1993, for example, when Jeffrey R. Snyder penned A Nation of Cowards, a blistering critique of the gun control culture, which ran in the journal National Affairs.

Which gets us to two things.

The Constitution enumerates certain rights, certain rights can justifiably be implied from it that aren't enumerates, and reasonable restraints on the rights that are present or implied can be imposed.  But in the long era following the Second World War and up until the last decade, some still were.  

That's a subversion of democracy at worst and leads to contempt of the law at best.  Under Chief Justice Roberts that trend has been retreating, and it may now have actually ended.

Does that mean you have a right to carry a firearm outside of your home without government permission?  Certainly  Does that mean that you have a right to carry it concealed?  That's much less clear.  Can some restraint be imposed? Again, certainly.  Can they effectively be so strict as to keep you from carrying anywhere except the game fields and the range?  No. Can the government insert itself into knowing what you are doing?  Again, probably.

Should NPR get a new Court reporter?  I wish they would.

Should Professor Blocher be tossed out on his butt and made to practice real law for a decade?  Undoubtedly, and for his own good.

Should Duke do away with the Center for Firearms Law and create a Center For Small Claims Court Practice?  It should.

Related Threads:

Perceptions on being armed, and the use of force.

Packing Heat

Regional Comparisons and Terror in Boston

Friday, September 30, 1921. Moving the founding documents.

Moving the US Constitution.

On this day in 1921 the Constitution and Declaration of Independence were moved from where they were residing to their present locations.

 

Herbert Putnam and Guilliard Hunt, with Declaration of Independence, 9/30/21

Also on this day:

Brattleboro VT High School Radio Club, 1UT, 1921

A Note On Compulsion.

There seems to be a widespread belief in the United States that the government has never compelled people to do stuff that they'd rather not do, and that this is deeply ingrained in American history.

This is quite contrary to the truth.

The first muster of Colonial militia.  You were in it because you were a male sixteen years of age or older.  No conscientious objection.  No moral exceptions.  No exceptions at all.  If you were a man, you showed up.  Professionalism, in the depiction, probably exaggerated.  Cat. .  probably not.

Now, this obviously comes about due to the recent actions by the Biden Administration to compel wider vaccinations.  What you believe on the justice of that is up to you, and I'm not commenting on it. That's up to you.

Rather, I'm commenting on the myth, and it's a real fable, that the government, or more properly governments, cannot compel you to do something of this type, and never has before. That's wholly incorrect.

Indeed, even in the category of vaccinations and quarantines, the nation has a long history of government compulsion. At one point during the Revolutionary War George Washington issued an order compelling his soldiers to receive dangerous live small pox vaccinations.

Compelled them, that is.

And that vaccination method actually was dangerous. Some people contracted small pox from it and died.  He reasoned the danger to the health of the army outweighed the danger to anyone individual, and the soldiers were vaccinated.

And since that time there's been over two hundred years of the government compelling members of the military into various health regimes.  I myself have been vaccinated by the U.S. government twice for small pox and once for yellow fever, even they didn't ask my opinion on it at all.

Okay, you are likely saying, that's the military, and the military is subject to a separate provison of the constitution, but. . .

Well, all sorts of government bodies have compelled vaccinations of children for decades. Parents protested, but the vaccinations occurred anyhow.  This is why diphtheria, for example, doesn't really exist anymore.

And the government has compelled quarantine orders as well, up to and including simply imprisoning some infectious people for the balance of their lives.  Mary Mallon, aka "Typhoid Mary" provides one such example. She was employed as a cook until determined to be highly infections and then put in a sanitarium for the rest of her life.

And going back to the military, it's well established that the government can compel you to serve in the military even if it means you'll get killed.  Contrary to what people probably believe, the United States government has been much more muscular about that than other English-speaking countries.  The Australians and Canadians, for example, didn't conscript during World War One at all.  They both did during World War Two, but it was only at the very end of the war, when manpower needs exceeded those willing to volunteer for overseas service, that such soldiers were made to serve overseas.  The US, in contrast, conscripted right from the onset of World War One, something the British didn't even do at the onset of their involvement, and we conscripted prior to our entry in World War Two.

Registering for the draft, 1917.

Indeed, up until after the Civil War, every American male served, by compulsion, in their local state militia no matter what.  You had no choice.  You were in it. And if that meant they mobilized you to go fight the British, or the Mexicans, other Americans, or Indians, your opinion on it wasn't asked.

The government can, beyond that, compel you to provide other services.  Conscripting people right off the highway to fight forest fires, for example, is something that's within living memory of Americans today.  I personally know one person who was compelled to do just that.

Drilling rig crew in 1941, before OSHA required them to wear hardhats, steel toed boots, and fire resistant clothing.

And, right now, the government compels all sorts of people to wear hard hats, fire resistant clothing, and the like.  It compels children to receive some sort of education, no matter what their parents might think about it.  It compels everyone to pay for all sorts of things, from school lunch programs to nuclear arms, no matter what they think about that.

So why is this belief so common?

I don't really know, but part of it is that we don't know our own history.  Even regular histories often claim that the Civil War conscription act was the nation's first, totally ignoring that there was universal male compulsion to serve in the militia at the time, which is a type of conscription.

And part of it simply is that the current population is young enough to have forgotten all the various compulsory acts noted above.

When I was first a student in school, for example, we were vaccinated at school.  This was the late 60 and early 70s.  Since then this has just been rolled into regular health care provided by family doctors, so hardly anyone under their late 50s remembers a time when you were lined up and given shots at school, or a sugar cube with the polio vaccine. And it wasn't once either, it was more than once.

And you have to be my age as well to recall when people still really remembered the "draft" as a real thing.  I can recall the draft being eliminated in the early 70s, and Jimmy Carter restoring draft registration in the mid 70s.  People actually worried about being drafted, even though the Selective Service Act wasn't actually operating in that fashion.  It was a real thing.  Perhaps it was a real thing because so many of us had fathers, uncles or even older brothers who had been drafted.  An uncle, for example, "volunteered for the draft" in the late 1950s, serving in the Army just before I was born.  My father volunteered for the USAF in the early 50s, but he was subject to recall until the early 1970s when I recall his being released from the Individual Ready Reserve, something he'd been kept in for nearly 20 years.  When I served in the Guard, we were frequently told about how this worked in regard to our "obligor" period of six years, which every American male had, and also told that irrespective of our Guard service fulfilling our obligor duties, we were still subject to recall as veterans.

Indeed, the government doesn't really make us do much, directly, in terms of service anymore.  And that has a real impact on things.  Since the conservative Reagan administration of the late 70s and early 80s, there's been a really strong and growing societal belief in indivdiual liberty being predominant over collective needs.  We'll note the 60s below, but if we look at it over the long haul, collective security predmonated in the 10s, waned as a societal goal in the 20s, and then roared back from 1929 through the early 1960s.  This was all in response ot external threats, but it's very clear that Americans in most of the early 20th Century were pretty willing to have a strong government role in lots of things up to and including telling people what to do in order to meet a collective goal.  Starting in 1976 this really started to retreat and has been in retreat every since.  The current view of indivdiual liberty is much stronger than it was prior to that time.

What the government none the less still does does do is to make us serve in all  sorts of additional camouflaged ways, through taxes and regulations. 

The Great Depression had the impact of making the generations that lived through them really comfortable with both.  Tax rates were high all the way into the 1980s, and it wasn't until then that people really groused about it.  The regulatory state came in during the 1930s and has never gone away, but again it really wasn't until the 1980s that people complained about it.  By and large, Americans were really comfortable with big government and its role all the way up until the mid 1970s.  Something happened then.

What that something is, isn't clear, but the disastrous Vietnam War may have been part of it, combined with a  Baby Boomer generation that at first rebelled against the government telling it to do anything.  Indeed, the same basic impulse that lead the counterculture to assert that nobody could tell them what to do as it was contrary to "Freedom", as an extreme left wing ideology, isn't really very far from the same impulse on the far right.  They're basically the same concept.  If the government and the culture can't, for example, tell you not to smoke dope or drop LSD, well it can't tell you not to get vaccinated.  Kris Kristofferson was completely wrong when he wrote "freedom's just another word for nothing else to lose", but those lyrics as a counterculture anthem sung by Janis Joplin probably ring truer for the right, than the left, today.

As part of that, this is also the era in which Roe v. Wade became the Supreme Court imposed law of the land.  Roe represented an evolution of legal thinking, albeit a poorly drafted and intellectually muddy one, but one that held that a person had a certain sovereignty over their own body that couldn't be violated by the government.  This was really a wholly new, post World War Two concept, as prior to that the law really didn't have the view that being "secure in your person" extended to a sort of radical sovereignty over your own body.  Indeed, much of the law that existed prior to Roe in this regard still exists, which makes the reasoning of Roe all the weaker.

It can't be denied, however, that Roe opened up the floodgates to all sorts of "my body, my choice" type of arguments.  Prior to the mid 20th Century the law regulated all sorts of individual conduct in this area.  Cohabitation was generally illegal, if not widely enforced, there were considerably more restrictions on marrige than there are now, and we're not referencing the shocking racial ones of the time.  Many acts in thsi area, i.e., sexual acts, that are unaddressed by the law now, where then.  All of this was regarded as a perfectly valid topic for the law.  Radical sovereignty over ones own person is actually, therefore, a very new concept in American law and American's concepts of the law.

All of this creates an interesting situation in which it may simply be the case that American society reacted to decades of strong government influence at the same time that the Supreme Court started to have a liberal sense of libertarianism.  The law of unintended consequences is always at work, so the combination of the two brought about a rigth wing libertarianism that relied in part o a left wing judicial libertaranism, the latter of which never sought to to inspire the political former.

And, of course, the strong identification of the "individual" has always been there in American culture, even if it's very much a myth in a lot of ways.  Daniel Boone, braving the frontier, all by his lonesome, remains very much part of us, even if he didn't brave the frontier by his lonesome.

Now, again, I'm not telling people what to think in regard to vaccines here.  I'm not even telling people that they should submit to them or not.  Rather, what I'm trying to do, and likely failing at, is placing the argument in context.

It just isn't the case that it's an American thing to be free of the government telling you exactly what it demands of you in an emergency, at least it hasn't been for much of our history.  The government has been doing that since the time the Congress was the Continental Congress.  So that part of the debate shouldn't be in the debate at all, or if it is, what it should be the case is that it should be recognized as part of the societal revolution that came about in the 1960s and 1970s..  And if it is discussed in an historical context or a libertarian context, it should be remembered that such debates have wider impacts.  

That is, if it really is against something, either Natural Law or Constitutional Law, to tell you to get a vaccination, to what else does that apply and are we comfortable with that?  What else can the government not really tell you to do, and how much of what it is telling you to do now, can it really not?  Is this really a call for the application of traditional American concepts of liberty, or is it an advancement of libertarianism?  And do we want that.

Or should we be debating something else, or framing this debate differently.

Anyway its looked at, we may be seeing one of the great societal shifts in views at work.  After the Civil War the United States Supreme Court massively expanded the ability of the government to act in every aspect of American life, but then, following the end of Reconstruction, it went in the other direcdtion and restricted it.  It remained restrictive in its views until the Great Depression, when it went roaring in the other direction.  In the 1950s through the 1980s the Court became very liberal and acted to forciably expand what it argued were rights, and while sections of the public very much reacted to it, by and large that was accepted.  It nonetheless helped spawn the Tea Party movement and right wing populism and libertarianism which has been very much in the news recently.

But disasters tend to operate towards central governmental power.  There was early resistance to the expansioin of government power in the 1930s but by the 1940s that resistance had more or less evaporated.  The heat of the Great Depression and then World War Two caused that.  There was very little concern abotu the large role of the government in the 1950s and 1960s even as resistance to the Vietnam War occured in that latter decade.  The real reaction to long government expansion, as already noted, only came in the late 1970s and 1980s.

What about now?  The legislature is about to convene in a special session and lots of state attorney generals will be suing over the Biden orders.  Many individuals feel that the orders violate individual liberty, with many having concepts, as noted above, that really only date back a few decades.  At the same time, in some regions of the country, support for government action on all sorts of things is stronger than it has been at any point since the 1930s.

As we write this, the state legislature is getting ready to go into a special session.  A result of that special session will be to reinforce the widespread view that the Biden Administration is acting unconstitutionally.  History's example here, however, suggests caution.

The convening of legislatures following the 1860s election which sought to exercise state sovereignty over Federalism in reaction to Lincoln's eletion and the coming restrictions on the expansion of slavery brought about instead the Civil War and its immediate end.  I don't mean to suggest that vaccine requirements and slavery are in any way similiar, but the example of a state attempt to restrict Federal authority resulting in violence first and a massive expansion of government authority tells us something.

The same example could be given by way of the 1950s and 60s efforts to oppose Federal civil rights expansion, which resulted in a reaction in Southern states that was far from successful.

Opposition to Franklin Roosevelt's New Deal not only didn't succeed, but was effectively crushed with even the Supreme Court coming around to his views, providing another example.

Somebody should put a "Proceed With Caution" sign up in Cheyenne.   And a review of American history would be a good idea prior to October.

Misconstruing the arguments: Was Monday At The Bar. Misconstruing the law

On September 6, we posted this item noting how the arguments about the new Texas law on abortion are misconstruing what really happened in regard to that aw.:

Lex Anteinternet: Monday At The Bar. Misconstruing the law: If you listened to the weekend news shows you are now fully up to speed on all the left of center angst, or feigned angst, over the new anti...

But almost as misconstrued are the "progressive" arguments that are inserted as "policy" arguments, if they can be called that. The degree to which these fit a certain pattern, is not only notable, but frankly shocking.

Regarding the argument over abortion, it all boils down to two basic arguments, of which there are subsets.  Basically, you either 1) feel that people shouldn't kill other people; or 2) you feel that killing people for convenience is okay.

Now, that sounds extreme, and we will get into that,  but this is somewhat simplistic.  We'd note that most people who don't believe people should kill other people do hold there are exceptions, such as in self-defense, or the extension of self-defense when it's done in the course and scope of a public officer's duties (military and police).  And we'd also note that almost nobody actually states that they're for killing people based on convenience, and probably a lot of pro choice people have never really stopped to think about the nature of their argument in this regard.

But beyond that, that's pretty much it.  And that takes us, although it's out of order, to the first principal of this. There aren't really any exceptions.  

We'll get to that in a minute. But first, the big question.

Is a fetus a human being?

Is a fetus a human being?

Maybe in 1973 when Roe v. Wade was simply made up by the Supreme Court, this could be fairly debated.  It seems to be the case that the mushy Roe opinion basically determined that for the first "trimester" a fetus wasn't a human being because. . .well, it depended on its mother.

That was always a way stupid way of looking at things and not supported by facts or science. A baby depends on some maternal support at least for a few years after it's born, for one thing.  And viability isn't a good argument for preservation of life.  There are thousands of impaired human beings who aren't "viable" in the full sense.  If Roe made sense when in 1973, Hitler's campaign to murder the impaired in Germany made just as much sense.

What the court was trying to do, if you want to give it perhaps considerably more credit than it deserves, was to create some sort of strange argument that prior to that time the forming human wasn't quite human, and not endowed with humanness.  

People made that argument for a long time, but hardly anyone does now  Science has come to far, and we know that a fetus is a human from the instant of conception.  We can't escape that, and nobody tries to.

So what we're really arguing about is killing for convenience.  When can we kill people because we find them inconvenient?

Most people, we'll note, will not openly resort to that argument as it sounds too brutal, because in fact it is.  Indeed, many of the same people who are "pro-choice" are very much against killing people, and indeed sometimes anything, under any other situation.  They've separated the reality of human life in this are from their argument of convenience.  And that's been made easy by fifty years of mushy thinking on the topic, inspired in no small part by the mushy thinking of the Roe era, and the court decision itself.

But mushy thinking rarely leads to a correct decision.  Honest thinking on the topic, particularly one that involves life and death, is mandated by the argument itself.

You can't really hold to exceptions if you believe killing people is wrong, and you really can't limit it that much if you are okay with killing for convenience.

The anti-abortion must be "never" in answer to that question.  The pro-choice person's argument ought to be "lots of times", although they'll rarely make that argument.

Again, this is out of order, but let's make it plain.  If you believe killing people is wrong, not only is abortion wrong, but the death penalty is wrong.  That's just the way it is.

The exceptions most would hold to would be in self-defense of yourself, and in self-defense of the public, such as in the role of policing or legitimate war.  But those exceptions, we'd note, are really limited.  Indeed, a person sincere in this view really can't take the position that every time there's a war soldiers may kill in it.  Only in a just war, which are limited in number.

You really have to take the view that killing for convenience is okay if you are for abortion.

On the flip side, all arguments about abortion made by its proponents tend to desperately camouflage the real issue, as the real answer is extremely disturbing if you are okay with abortion.

As a fetus is a human being and abortion kills it, if you are for abortion, you are taking the position that killing people is okay for convenience.  The only question is where does the convenience stop.

Pretty clearly, that line is difficult to draw and is by social construct only.  Euthanasia is a close second to abortion and some abortion proponents are okay with it.  The death penalty ought to be okay with anyone who is for abortion, as convicted prisoners are inconvenient.  Indeed, the old common law application of it, which was for any felony, would make a lot of sense in this context.

So do such things as nuclear war or even genocide, really.  

Now, hardly any "pro-choice" person is going to argue that, as they haven't thought it out in this fashion. But that's where it really leads.

The false flag arguments

• "The 13 year old victim of rape or incest"

What you tend to hear about instead is the "13-year-old victim of rape or incest".  

That's because it's a horrific moral situation which presents a moral response.  Ironically, that appeal to emotion is made by the pro killing folks, who otherwise seem pretty immune to emotion in this area.  That suggest this argument is a false flag.

It's interesting strikes back to the "old law", which sanctioned death as a penalty for a lot of crimes, although it skews it a bit, and it also hearkens back to our distant ancestry as an argument.  Therefore, in making this appeal, an appeal to some really ancient, pre-Christian, principals are urged, showing how deeply ingrained they are.

Part of that appeal is the old law sanction of death to the transgressor, although the mark is missed in this case and hits the fetus.  Rape was punishable by death at common law, and going back even further, it was certainly punishable by death in primitive societies.  Rape and incest are crimes that authorities will still allow for a lethal act of retribution in some circumstances even now.  Indeed, while its certainly not a current example, one of my high school colleagues killed her father after years of enduring rape and the authorities made no effort to prosecute her whatsoever.

The second part of that is a darker part of our past, which is both the historical motivator to rape and the ancient reaction to it.  It gets into people's instinct for self-preservation as well as our loyalty to our family and tribe.

Rape is a horrible crime, maybe the worst of crimes, but its also something that was historically common when one tribe raided another. Indeed, it still is.  It's been a major feature of modern warfare in northern Africa in recent years.  Bizarrely, it's a genetic way for the victor to not only claim his spoils, but spread his DNA as the conqueror.  Inside the tribe, however, such things are a horror.  Simply killing the offspring of such unions was not uncommon, as well known.

About 5% of rapes, as defined in our society, result in pregnancies.  But those tend to be concentrated in interfamily and known perpetrator situations.  I don't know the reason for that, but it probably is due to the frequency of the assaults.  I.e, most human sexual acts don't result in pregnancy and therefore most rapes wouldn't .   A normal young couple that is simply having sex has a 1 in 20 chance of getting pregnant.  I.e., a couple acting with complete disregard to the results has a 5% chance of getting pregnant from one act.  Therefore, the percentage in rapes is just about the same.  Added into that, couples seeking to get pregnant will get the advice to have sex frequently, which is also why of course victims of incest and rape from close contacts is more likely to result in pregnancy than other rapes.

A grim topic to be sure.

As part of that grim topic, a normal person doesn't even want to think about this, for obvious reasons, and therefore the resort to the ancient law is easy to make.  It's just programmed into our DNA.

The thing is, of course, is that it also runs counter to our Christian morality, and even though thousands of people who aren't Christians, and even many who are, will bristle at the thought, Western society is basically Christian.  Indeed, wherever Western societies have been, and had a major influence, large elements of Christian thought have come into those societies.

And even in pre-Christian societies the leeway on killing the offspring of such horrors was limited.  Rome gives us the bizarre example of the "rape of the Sabine women" which is one such example, albeit a very strange one.  But others would suggest that it's probably the case that every living human being today has at least one or more ancestor who came into existence this way, which means that we all have ancestors who perpetrated the horrible act. That doesn't excuse it in any fashion, it's just the truth.  Indeed, one of my close friends is aware that his grandmother or great-grandmother, I've forgotten which, had her first child, his ancestor, as a product of such an act when she was employed as a domestic servant.  She had the baby, and a male friend of her married her prior to the baby being born, raising the child as his own.

Not good argument can be made for compelling a woman who becomes pregnant in this fashion to raise the child. That would be absurd. But in the calculations of life and death, its' hard to make out a rational argument that those who innocently come into being in this horrible fashion should be killed.  It's too close to the old old law that held that the infants themselves could be slaughtered, or even the women for having "dishonored" the tribe.  Wants death starts being meted out, it's hard to draw that line where you stop it, as in the end, you are back to the fact that there's really not much of a license for people to kill other people.

• No man should be able to tell a woman what to do

A common feminist argument is "it's my body" and "no man should tell a woman what to do with a woman's body".

The problem with that is that the entire topic comes about due to two bodies producing a third.

Yes, one of those bodies is the nine-month host for the third, but it still doesn't change the fact that an argument about "my body" shows a profound level of individualistic thought.  I.e., it takes the position that "you can't tell me what to do with my body, even if doing that kills somebody else".

This is actually the only area where this argument is actually widely made. There are others, but where they arise, it's a minority view for sure.  We do tell people what they can do with their bodies in numerous other areas, including health and safety.  No welder could go to the rig site and refuse to wear FRs for example, as it's only his body at risk.

This gets back to the sense of community, which may be why this might be a uniquely American argument.  Americans have a strong sense of individualism, even to the point that it's grossly exaggerated in American culture. There really aren't very many "lone wolves" who achieve something, but we like to think there are.

There are no women whatsoever who become pregnant on their own, of course, and that's in part why this argument makes no sense.  It almost assumes that pregnancy comes about due to autogeneration.

Of course, we've gotten used to the post contraceptive concept that a man's responsibility is over once he gets up from the bed and puts his clothes on, but that's a deeply barbaric view of the world.  Indeed, the acceptance of that view, which has come on since the early 1960s, is very strongly akin to the ancient view of rape in a way which gives rise to the primitive argument about killing the offspring.  It's not identical, but its not too far away.

And that's why the occasional effort of men to claim they have a right to voice what happens to their own offspring gets shouted down. But they do.

Now, it's true that the woman will carry that offspring for nine months, and if the mother chooses to keep her child, she'll bear far more of the burden of raising the child to adulthood, at least in the early years, than the father. But what this really cries out for is restoring male responsibility.  Traditionally men carried far more of the financial obligation, with men not infrequently working themselves to death in the process.  In stable couples, men still tend to bear far more of the financial burden.  Allowing men to have escaped this was a terrible societal mistake, and what this argument really argues for is a restoration of more of the old set of responsibilities.

Frankly, to add to it, this argument leads to a real "cop out" opportunity for men, and they frequently take it.

• If pro lifers really cared, then they'd support . . . 

You hear this one all the time, but it's blatantly false.

The argument tends to be that if pro lifers really cared about the mothers, then they'd support all sorts of social programs that are dear to the left.

The problems, they actually tend to.

If you know anyone in this camp who is really active, they tend to actually pretty liberal on social programs. They're for assisting unwed mothers in any way they can, and often support organizations that do so. They tend to be for "socialized" medicine, as it helps the poor and those in this situation. They tend to oppose the death penalty.

Indeed, some of these folks would nearly be regarded as flower children in any other discussion.  The entire argument is just baloney.

The reason I think it tends to get made is that politicians who are pro-life often are on the political right, indeed nearly always so, and they don't appear to be the most sympathetic people in the world  That can be deceptive too, however, if you know anything about them personally.  Lindsey Graham, for example, isn't somebody I generally am a fan of, but his record in supporting his sister when she was young is a model of Christian charity.  One former South Carolinian who was commonly sited as a right wing figure had adopted children that crossed racial lines.  Amy Coney Barrett, who was blasted for being a conservative Catholic when she was nominated for the Supreme Court, also has an adoptive family.

Indeed, the counter might be to ask to what degree do "pro-choice" people really directly support the situation of women in this situation.  In their minds, they no doubt do, but in reality, their help often seems to be limited to the suggestion to kill.

• Keep your Rosaries off my Ovaries

Finally, there's the common suggestion that this is a Catholic issue only and that Catholics should but out.  Expanded out, there's the suggestion that maybe this is a Christian issue only, and Christians should but out.

The argument that people shouldn't bring their religions views to an argument is a false one to start with.  On the contrary, people who are sincere believers in any religion really have an obligation to be informed by their faiths and act accordingly.

Having said that, while those who are informed by their faiths in this area and act accordingly should be admired, rather than condemned, it isn't the case that all that many citations to religion are actually made in the public argument.  Those positions may have informed many of the opponents and brought them to the debate, but they don't tend to cite them in the public debate.  And, moreover, some notable opponents of abortion have had low, weak, or no connection with religion and have come about to their position by other means.

The counter to the phrase, moreover, would argue for a complete abandonment of any moral standard.  It's the ultimate cry for convenience.  It really means "let's keep a moral compass out of this".  The problem is, when you do that, the killing really starts.

Wednesday, June 30, 1971. Dropping the voting age to 18, Soviet Space Disaster, the Pentagon Papers.

On this day in 1971 Congress ratified the 26th Amendment to the United States Constitution which dropped the voting age from 21 to 18.

Marine Corps position in Vietnam, 1967.

The Vietnam War, and the increasing involvement of young Americans in protesting it, really caused the change to come about.  18 was the conscription age, which thereby made men that age liable for combat, and there was a widespread feeling that you couldn't really justly ask people to potentially go to their deaths for a country and not let the same people vote in its elections.  That logic was pretty solid really, even though as a practical historical fact very few 18 year olds served in Vietnam.  That point, while correct, is really irrelevant, however. The larger point, that you could require people to divert from their plans and force them to serve in the military, but they couldn't vote, didn't make a lot of sense and Congress recognized that fact.

Indeed, the voting age was really a carryover from a much older era in which the drafters of the Constitution paternalistically felt that a lot of people couldn't vote as they didn't have the mental maturity before a certain age or,  in other instances, because of their gender. Women couldn't vote, originally, at any age.  And the feeling in Colonial times that only propertied men could vote was widespread.

Indeed, in English speaking countries the concept that a person became an adult at age 18 was not the norm and is somewhat of an American oddity.  Ultimately it came to be the widespread view, but that was in no small part due to World War One. The English, for example, originally viewed 21 years of age as the service age, although it accepted the oddity of allowing parents to enlist their children, without the children agreeing to it, down to about age 13, if I recall correctly. Be that as it may, younger enlistees were not supposed to serve outside of Great Britain, although it occasionally occurred. The Great War changed all that.

The United States really started off with this view, which reflected, to some degree, its origin as an agrarian nation.  Contrary to widespread believe, youthful marriage was not an American norm and early in the country's history a man of 18 or 19 was most probably working on his parent's farm, or perhaps apprenticed to a nearby tradesman.  He wasn't out on his own, normally, and he wasn't in the Army, which was so small as to be nearly nonexistent, as we covered here the other day.   That started to increasingly change with industrialization and when the formal public school system became universal by the 20th Century the distinct concept of a person graduating from high school and into the adult world arrived.

By and large, however, people usually didn't.  Most 18 year olds who graduated, which was a minority of men well into the 20th Century, still went into nearby work and they weren't setting up their own households. The real separation of generations, as noted, began with World War One. Following that, the Roaring Twenties briefly started what the 1960s would more fully develop, which was the concept of leaving home to go to university.  The Depression put an end to the Jazz Age abruptly, but World War Two massively introduced the idea that at age 18, you were an adult.  It not only did that, it massively separated teenagers from their homes and, if they weren't in the service, many were in university on their way to the service.  The war also boosted youthful marriage, briefly, as people rushed into adulthood not knowing how long the war would last.

Coming out of the Second World War the trend continued with the GI Bill and the concept of "graduating from high school and going to college" really set in.  My own father was the first in his family to do that (my mother's parents, in contrast, were both university graduates from the 1910s, something extraordinarily unusual at the time).  He was somewhat compelled to do so, however, by family pressure and circumstances.  My grandfather had died and with him my father's probable future employment.  My father's Irish American mother, to whom he was close, had already seen him enter "junior college" and when my grandfather died she wouldn't allow my father to retain a job he'd taken with the Post Office and required him to move on, on the basis that "he was too intelligent" to work the job that he'd been comfortable with.  He was a genius, so perhaps her view had merit.  We'll deal with that another day.

My father, like many men of his generation, went right from university, where he'd obtained a DDS degree, into the service, in his case the Air Force.  After his Air Force service, however, he came back home and was living at home when he met and married my mother. That retained pattern of life remained common as well.

But by the 1960s things were really changing.  And Congress followed the change.  On this day in 1971, the voting age became 18 years of age.  Only nine Congressman and two Senators voted against it.

I recall this actually occurring. In 1971 I was a grade school student and it was the talk of the school.  The fact that all of us very young people thought it was a great idea, and that even then we associated it with the Vietnam War, shows to what extent that must have been the view of our parents.

It should be noted that right about this time, although I don't recall exactly when, the Wyoming state legislature dropped the drinking age to 19 years of age. The rationale was exactly the same.  Wyoming had only one military base, but the thought was that you really couldn't ask people to go off and fight in Vietnam and tell them they were too  young to have a beer.  It frankly makes some sense.  The neighboring state of South Dakota dropped it to 18.  I don't know why Wyoming didn't go that low, but the thought of having people in high school young enough to drink probably had something to do with it.  As it was, the drop in the age came to mean that there was almost no drinking age as a practical matter.

Of course, over time, things change in various and interesting ways.  The Federal Government came about and ultimately punished states that had dropped their drinking ages with the threat of withholding highway funds, so they all boosted them back up to 21.  Wyoming did so only very reluctantly and nearly didn't.  In the end, however, it came around.  Conscription came to an end with the end of the Vietnam War, although men and women can still enlist at age 18.  On base, those in the service could drink at the 1-2-3 clubs by my recollection, irrespective of age and state law, although only 3.2 beer.  I don't know if that's still true or not.

The big change, however, is that the older pattern of living, with adult children living at home, has returned in a major way as the post World War Two economy finally ground to a halt in the last quarter of the 20th Century.  A matter of constant speculation by the press as a "new" development, it's nothing of the kind, but rather a return to prior days.

On the same day, the crew of the Soviets Soyuz 11 spacecraft were all killed in reentry, a horrible tragedy that I can can also recall being talked about at the time.  Interestingly, while we feared the Soviets, the heartache over the disaster was so palatable that I can still feel it, in thinking of it.  May God rest the souls of the Cosmonauts who perished so tragically on that day.

Also on this day, the United States Supreme Court found the New York Times publishing of the "Pentagon Papers" to be constitutionally protected by rejecting a Federal government effort at imposing an injunction on it as an unconstitutional instance of illegal prior restraint.