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So, the Great Orange Shitstain just issued a decree saying California can no longer set its emissions standards under a long-standing exemption to the Clean Air Act. Here’s the problem with that: his decree both violates the legislative intent of the Act (which was to grant California the power to set standards more stringent than Federal standards, since California’s emissions standards predate the Federal standards) and violates the processes decreed by the Act.

Look: You can’t just issue a decree and repeal an exemption like that. There has to be notices. Hearings. Environmental studies showing that it will not harm the environment, and economic studies showing that it will not harm the economy, all of which can take years. *Plus*, there is no provision in the Clean Air Act for *canceling* a waiver. You can decide not to renew the waiver, but California’s waiver doesn’t expire until 2025, long after Mango Mussolini is hopefully out of office. Canceling the waiver would clearly harm the environment and be against the legislative intent of the Act. Yet the Orange Racist Russian Stooge thinks he can bypass all that by just issuing a Presidential decree like some tinpot dicator of a third world country?

Dude must think he’s Vladimir Putin. Instead of Putin’s puppet.

We’ll see whether El Presidente Naranjo gets away with it. Hopefully, the answer is “no”. We’ll see, I guess.

— Badtux the Snarky Penguin

Pray Gamble & Explode (PG&E) needs to be forced into Chapter 13 dissolution and its assets sold off to companies that are actually competent. Continuing to make rate-payers bail out this incompetent and *dangerous* company is irresponsible malpractice on the part of our state government. PG&E’s rates are double or even *triple* what rates are in most areas of the country and are the #1 reason why I don’t have an electric car — buying gasoline for a hybrid car is far cheaper than paying the disastrous rates that PG&E has extorted from the rate-payers of this state. And for those of you saying “but it’s because California is so rugged!”, average electrical rates in Nevada are *HALF* those of PG&E — even though Nevada is even more sparsely populated and rugged than most of California.

This company is incompetent, dangerous, incapable of providing electrical service for rates competitive with other electric companies, keeps blowing up or burning up parts of the state due to their incompetence, and should just die, die, die, die, die, die, die, die, DIE.

— Badtux the Irate Overcharged Penguin

Summary — A security guard, Seth Eklund, employed by Paragon Security under contract to the Federal Protective Service as a Federal Security Officer (who is still a civilian security guard, not a credentialed law officer) is sitting at a checkpoint inside an Ohio state office building where the IRS rents offices on the second floor. A Sheriff’s deputy on his lunch break shows up, wanting to see someone who sent a letter to him. The security guard says “you can’t come in here while armed” and the deputy says “what? I’m a law officer in uniform!” and the security guard says “you’re not coming in with that weapon.” Then the deputy says fine, okay, do you have a gun locker where I can safely store the weapon. The security guard says no, you need to store it in your car. The officer says he can’t do that, that violates departmental policies, can you store the weapon in a locked desk drawer? The security officer then starts getting angry and irate and screams at the officer “you need to leave!” and the officer is like, “whoa, what?” and the security guard pulls his gun on the deputy and screams “you’re under arrest!” while someone in the office behind him dials 911. The deputy then turns around, later saying “I felt he was about to shoot me, if he’s going to shoot me I want it to be in my back so it’s clear I’m not being a threat to him” and starts ambling off towards the elevator saying “okay, I’m leaving.” The security guard then runs towards the elevator and sticks his foot in it and prevents the deputy from leaving, screaming “it’s too late to leave!”

Cue *more* Sheriff’s deputies (responsible for security in the building) arriving in response to the 911 call. And shenanigans ensue as the deputies try to figure out what the literal fuck is going on, given that it’s a state office building and they thought they had authority over the entire building. They’re informed no, the IRS section of the building is a federal installation and the Federal Protective Service has authority there, not the Sheriff’s Department. They appear to accept that, then the question of, uhm, why was your guy pointing a gun at one of our guys? comes up. Past a certain point the security guard realizes, “oh shit, I didn’t have legal authority to point a gun at anybody”. You can see the panic start in his eyes as he starts panicing and whines that he needs to get back to his guard post and the deputies say “uh-uhn, we’re investigating a possible crime here, you’re not free to go.”

Whoa.

Okay, let’s deconstruct this.

Legally speaking, the area where this confrontation takes place is a gray area. The deputy never entered the area behind the security checkpoint with his firearm, and was not demonstrating criminal intent when stopped. He *may* have been guilty of violating 18 USC 930 section A, possession of a firearm in a Federal facility without criminal intent… which is a misdemeanor. He *may* have been guilty of remaining after being told to leave, which is… misdemeanor trespassing under both Ohio law and Federal law.

So, does a Federal Security Officer have the power to detain or arrest someone for misdemeanors committed in his presence? Oops, NOPE! 40 U.S. Code § 1315 gives private security contractors employed by the government ONLY the power to:

… make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony;

A misdemeanor, or even two of them… are not felonies. All that a Federal Security Officer as defined by 40 USC 1315 can do when he observes a misdemeanor is… call law enforcement to handle the situation.

OOPS!

Okay, now let’s look at the act of pulling a gun upon a person. This security guard is a private citizen, i.e., a civilian. 40 USC 1315 does not explicitly grant a right for security guards to point a gun at someone, however it would be likely covered by agency regulations that allow use of a firearm only to protect the life or safety of the FSO or others. No other use is authorized by agency regulations. A civilian pointing a gun at someone on Federal property in situations other than self defense would be simple assault. It would also be covered under Ohio law, Ohio law is similar to the law in most other states — civilians can only point a gun at a person if they feel that they are in danger of death or severe bodily harm, i.e., self defense. Otherwise it is aggravated menacing, which is roughly equivalent to the Federal simple assault crime.

Okay, so oops! Now, let’s see what happened:

What happened to the Sheriff’s deputy:

NADA. Federal prosecutors and law enforcement looked at the hazy status of where this encounter took place, and decided that pursuing misdemeanor charges against the deputy was not a wise use of their time. There have been no charges filed against the deputy.

Meanwhile, what happened to Paul Blart, Rent-a-Cop:

  1. Security agency policies and procedures only allow pulling gun out of holster in self defense. Strike 1 — Paul Blart, Rent-a-Cop is fired.
  2. Paul Blart, Rent-a-Cop, is charged with two misdemeanor counts of aggravated menacing under Ohio law, one for each time he pulled his pistol out of his holster and pointed it at the deputy. Because he was not a Federal employee, he has no sovereign immunity. Oops! Strike 2.
  3. Paul Blart, Rent-a-Cop, is sued (along with his employer) for civil rights violations, causing emotional distress, failure to properly train the security guard, etc. Again, because he was not a Federal employee, he has no sovereign immunity. Strike 3, UR OUT!

Luckily Paul Blart, Rent-a-Cop, undoubtedly lives in his mother’s basemment (he has that look about him) so he has a place to live. That’s all he has. He’s not ever going to be employed in security again, that’s for sure.

Some takeaways from all of this.

  • Private security guards are private citizens. They are not police officers. In most states they have the same power of citizens arrest as any other private citizen, i.e., they can only arrest someone for a felony occuring in their presence, or as part of enforcing “merchant’s privilege” (detaining someone for investigation of suspected shoplifting). That’s all they can do. The only thing special in most states’ laws about private security guards is the part allowing them to be armed while on duty if they are properly licensed as an armed security officer.
  • Federal law similarly classifies private security guards under contract to the Federal government as private citizens, and similarly only grants them the right to arrest someone for a felony occuring in their prescence.
  • For any non-felony crime observed by a private security guard, all they can do in most states (or in Federal installations) is call 911 just like any other private citizen.
  • Attempting to detain someone for a misdemeanor (other than the special case of “merchant’s privilege”) is not allowed by the laws of most states or by Federal law, or for that matter by the policies of most security agencies even in states like California where a “citizen’s arrest” for misdemeanors is allowed by law. All that private security guards can do in that case is call 911 just like any other private citizen.
  • If you are an armed security guard, your gun is removed from your holster only if your life (or the life of someone else) is in danger. Otherwise it stays there. You don’t brandish it, you don’t wave it around, you don’t point it at anybody, it stays in your fucking holster. If someone is too big and strong for you to safely detain, or is armed and you feel you cannot safely detain him without using your firearm, don’t. Call the police. Call for backup. Call for Mommy, even. But you pull that gun out of its holster to try to detain someone, you are fired, at the very least — there isn’t a private security company in the nation that allows that, and very few state laws allow it either (and Federal law and regulations don’t allow it either, except in certain very specific cases like, e.g., defending nuclear weapons against theft).
  • Remember that it’s just a job. Putting your life on the line isn’t part of the job. That’s why the police exist. If you feel it’s too dangerous to intervene in a situation, don’t. Call the police. If you feel it’s safe to inform the person that you’re calling the police, inform him. If he decides to leave, let him leave. It’s literally not your job to endanger your life in order to detain someone, you’re a private citizen, you’re not a cop. If someone’s life is in danger, of course use whatever force is necessary to save that person’s life, but that’s because you’re not a sociopath, not because you’re a security guard. Hopefully you’d do the same off the clock too, right?
  • And unfortunately, too many legends in their own mind think a gun is some sort of magic talisman to be waved around like a magic wand and having an armed security officer license makes you special. No. Keep the goddamn thing in the holster and behave like a reasonable adult. You’re not Dirty Harry, even Dirty Harry wasn’t Dirty Harry, it was a fucking movie already, okay? Sheesh.

Paul Blart, Mall Cop, would still be employed if he had remembered all of that — and we would be spared the hilarious entertainment value of a bunch of blockhead Sheriffs’ deputies standing around scratching their heads wondering WTF just happened here, ROFL.

– Badtux the Law Penguin

Since 1916, “the militia”, as referenced by the Constitution in Article 1 Clauses 15 and 16 of the Constitution, has been defined as “every military-age male in the country” due to the National Defense Act of 1916. But: How did that happen, and why?

First of all, let’s discard the notion that this had anything to do with the Founding Fathers. It didn’t. George Washington had a dim opinion of militia. They had been virtually useless during the American Revolution, his well-trained and equipped Continental Army had done pretty much all of the fighting that had bled the British treasury dry, all the militia managed to do most of the time was get in the way of the regular soldiers because they ran the first time someone fired a shot at them, and rarely would march more than fifty miles from their home to meet the British. A militia that’s unwilling to concentrate together in order to inflict pain upon the enemy is a militia that’s useless, and that’s what George Washington’s opinion of the militia was — that they were useless.

The anti-Federalists, however, were intent upon making sure that the new nation wouldn’t have a big military capable of imposing military rule upon the nation, so Washington’s friend Alexander Hamilton proposed a professionalization of the militia in Federalist #29, and made sure that the militia clauses to implement that were in the new Constitution. Hamilton most specifically said that the militia was not the entire mass of men, but, rather, was a well trained and equipped subset of the manpower of a state, because untrained militia were rabble and useless, while it’d cost too much to train every man in a state. Hamilton’s proposal to the anti-Federalists was, okay, you don’t want a big U.S. Army, so we’ll have a small U.S. Army that’s just a core of a military, and then the state militias will be the main military of the United States. If the central government tried to impose tyranny the state militias could stop it, and if one state’s militia tried to impose tyranny within that one state, the militias of the surrounding states would be strong enough to invade and put down the tyranny.

It was a neat system, if it had worked. In the event, the central government never provided the funding and weapons to bring the state militias up to professional standards, and this proved to be disastrous during the War of 1812, when militias led by the professional core of the U.S. Army performed so poorly that for a while it seemed that the British were going to be able to re-conquer the United States altogether. Andrew Jackson’s victory at New Orleans was pretty much the only U.S. victory against a British field army during the war. British attempts to raid Baltimore and New York were repulsed but Washington D.C. was burned. Meanwhile, multiple attempts to invade Canada by the poorly organized U.S. military forces failed disastrously. If the British hadn’t been stretched by the costs of defeating Napoleon, things could have gotten dire — the army that defeated Napoleon was, in the final days of the war, mustering in Canada to do an invasion of the United States.

After the War of 1812, the notion of “the militia” as an alternative to a strong professional military was forever discredited. The Mexican-American War in 1848 was largely fought by the U.S. Army, or, rather, its core inflated with volunteers. And of course the American Civil War was entirely fought by professional armies under the command of their respective national governments.

The American Civil War ended with a Union victory and a flurry of anti-slavery amendments to the Constitution. The most important of these was the 13th Amendment, which prohibits slavery or involuntary servitude. In the years after the American Civil War that wasn’t much of a problem. The Indian Wars didn’t require a large number of soldiers, there was rarely more than 10,000 soldiers deployed to the West. The Spanish-American War similarly didn’t require huge amounts of troops — the decrepit Spanish Empire had only a handful of troops in Puerto Rico, Cuba, and the Philippines, and the decrepit Spanish Navy was totally incapable of dealing with the increasingly powerful U.S. Navy and thus unable to reinforce their troops even if they’d had the manpower and money to do so. The Filipino-American War and Moro War that followed never had more than 10,000 American troops in the field, well within the realm of what was easy to staff with volunteers. But then 1914 happened, and massive armies with millions of men started marching across Europe and engaging in battles with mass slaughter. The death tolls in some single battles of the Great War exceeded the size of the entire U.S. Army in 1916. And it was clear by then that the United States was going to end up being dragged into the war. The Germans were getting desperate and using their U-boats to try to blockade Britain, the biggest trading partner of the United States, and the U.S. public was not going to long tolerate them sinking U.S. ships. Yet the tiny U.S. Army clearly was incapable of contributing much to the war effort. It needed to be vastly expanded. And the only way to put the millions of men under arms was a draft.

Which was involuntary servitude.

Which was illegal under the 13th Amendment to the United States.

So the Democrats in Congress, and the President, passed the National Defense Act of 1916, which started the process of buying arms and equipment for this vastly expanded military, professionalizing and increasing the funding for the National Guard and bringing it up to national standards, and otherwise prepare the country for war. And oh yeah, that pesky 13th Amendment. Clause 15 says Congress can call up the militia for national service under the command of the Federal government. So if we define the militia as every single military age man in America… gosh, we can call them up for national service!

In other words, by doing this, the Federal government could use Clause 15 of Article 1 of the Constitution to draft soldiers even if a 13th Amendment argument was made and upheld by the Supreme Court. When a draft was actually imposed in 1917 and resulted in lawsuits, they never had to fall back on this, because the Supreme Court ruled that the power to raise armies granted in Article 1 Clauses 11, 12, 13, and 14 was sufficient to make the draft legal. But if the Supreme Court had ruled that the 13th Amendment outlawed the draft even so, then there was the additional power that the Federal government could have used — they could have federalized “the militia”, i.e., selected military-age males amongst the whole population of military-age males defined as “the militia”.

And that’s how that clause ended up in the National Defense Act of 1916 — it was an attempt to defend the power to draft armies, nothing more. It had nothing to do with the original intent of the Founding Fathers, who intended the various state militias to be a subset of the male population that was well trained and well armed by the Federal government, and in no way wanted an armed rabble. George Washington would have thrown his hat on the ground and cursed at you if you told him you wanted armed rabble as the militia — “they’re useless!” basically said. The founding fathers had plenty of experience with armed rabble to tell them it was a bad idea — even providing ammunition for the rabble proved an almost insurmountable task, they ended up having to give out blocks of lead to the militia because no two rifles or muskets took the same size bullets, the men had to cast their own bullets out of those blocks of lead. At least black powder was black powder, but the British system of “cartridges” (paper tubes of powder and a bullet) obviously wasn’t going to work because no two guns took the same size charge, meaning that the militia was always excruciatingly slow at reloading compared to professional soldiers armed with professional weapons. No, Washington and Hamilton wanted professionally armed and trained militia under the aegis of the states, not rabble, and that’s what they wrote into the Constitution. The fact that 250 years later you find grown men and even a few historians arguing that the Founding Fathers intended every single man to have a military weapon and be part of the militia would have sent them into guffaws of laughter… right after they informed you as to why that was a hilariously bad idea.

— Badtux the History Penguin

Sixty years ago, the city-state of Singapore faced a housing crisis. There was insufficient housing for all its citizens, and much of the housing that did exist was dilapidated and substandard and overcrowded, little more than one-room tar-paper shacks that entire extended families were crammed into.

Singapore’s response was to build massive government housing projects. I mean *MASSIVE* government housing projects, to the point where 80% of Singapore’s population lives in government-built housing. And these housing projects are, like the rest of Singapore, clean, safe, and pleasant places, if a bit bland.

Meanwhile, here in the United States, what government housing projects exist are decrepit, dilapidated, filled with rats and crime and trash, definitely *not* anything like the Singapore projects. So: Why are the Singapore government housing projects so different from the U.S. housing projects?

Well,three reasons:

1) Race. Most residents of Singapore housing projects are ethnic Chinese, just like most residents of Singapore itself, and the racial composition of each housing block is carefully managed to reflect the racial balance of Singapore itself. Meanwhile, most residents of U.S. housing projects are blacks, which are only 12% of the U.S. population and are a hated and discriminated-against minority. The white majority in the U.S. is loath to spend resources on what they view as a disgusting and filthy minority.

2) Income. The Singapore housing projects are open to all Singapore citizens, and the residents of the Singapore housing projects reflect the full range of socioeconomic classes from poor to well-off other than the ultra-rich. Meanwhile, American housing projects are reserved for the most hated and despised minority of all in a land whose real religion is the Almighty Dollar– the utterly impoverished. The not-impoverished majority in the U.S. is loath to spend resources on what they view as a disgusting and filthy minority.

3) Ownership. While technically the flats in a Singapore housing project remain the property of the government, the 99 year leases for those flats are considered property and can be bought and sold with some restrictions (e.g. only citizens can buy a resale flat, and you have to live in it for a certain number of years before you can sell it). Furthermore, the buildings themselves are run by a “town council” comprised of a selection of residents of the buildings comprising a “town”. The result is that people want to keep their properties well maintained and allocate the resources to do so. Thus the government housing projects in Singapore remain clean, safe, and pleasant places.

Now, some of this is unique to Singapore. But other parts of it are not. Any built-out area with a housing crisis could benefit from executing a Singapore-style plan. Not that it would ever happen in the United States, because ideology, not pragmatism, is what rules in the United States. You’d hear GOP shouting “socialism!” You’d see NIMBY’s who worship the Almighty Dollar above all gods shouting “it’ll decrease my property values!” You’d hear liberals saying “it’s a subsidy for the rich!” Ideology would crush it. It could happen in Singapore because Singapore is a Confucian dictatorship run by the members of one family and thus there’s nothing stopping them from taking pragmatic measures to improve their city-state. It would never happen in San Francisco. Ideology would kill it.

And thus we end up with working people living in cars and vans on the streets, and Singapore… doesn’t. It’s ideology versus pragmatism. For those who claim that Singapore being a dicatorship is why they could do it, there’s no end of dictatorships that have taken the same route as San Francisco, letting people live and die in misery and squalor despite having the resources to do something about it. The difference is that Singapore chose the path of pragmatism rather than clinging to an ideology. The city-state started out as a place of refuge for Malaysia’s Chinese minority and did not have the luxury of ideology at the beginning, when its very survival was iffy. Sticking with pragmatism as its primary guiding principle not only let it survive, but let it become an economic powerhouse in Southeast Asia despite its total lack of resources. As versus, say, Alabama, which sticks to ideology as its guiding principle… and is a total hellhole.

-Badtux the Pragmatic Penguin

That new California law is, of course, a law requiring all candidates for President and Governor to provide 5 years of tax returns in order to appear on the ballot. And they’re screaming, “This adds qualifications for president beyond what’s in the Constitution!”

No. Donald Trump can still run for President. Nothing bars him from running for President. He just has to file all the required paperwork. Which has been expanded a bit, but there’s nothing physically preventing him from filing it, it’s not as if the state passed a law saying that no person who is orange can run for President in the state of California. Furthermore, the Constitution gives the states the right to set how electors for President shall be selected, via Article II, Section 1, Clause 3.

The biggest argument is going to be that the State of California cannot tell the Republican Party how they will select their candidate. That is true. Freedom of association says that the Republican Party can select their candidate any way they wish. If they want to select a candidate via party delegates meeting in a smoky room, or via holding party-sponsored caucuses, or any other method they determine, they can do so — as long as they don’t use state money to do it. But if they want to participate in the state-funded primaries they have to abide by the rules the state lays down. The candidate has to pay a filing fee, provide the signatures of X number of registered voters, provide the name and address of his campaign organization, and otherwise provide information that — oh yeah — now includes 5 years of income tax forms too.

And if the Republican Party doesn’t want to abide by those rules, nobody is forcing them to do so. They can hold their own party-funded caucuses like Nevada does. But if you’re going to accept the state’s money, you abide by the state’s rules. That’s just how it is.

– Badtux the Law Penguin

So serial dipstick and frothy rectal ooze Ricky Santorum says that the solution to mass shootings like in El Paso is moar gunz.

More guns than in Texas? For real? Has this frothy ass ooze even looked at gun stats for the state of Texas? They practically hand you a gun at the state border! 6.5% of Texans are concealed carry permit holders. There were at least 1,000 people in that store at the time the shooting happened. What that means is that there were at least 65 Texans in that store who had a concealed weapon.

And not a single one of them engaged the shooter.

So what were they doing instead? Well, what everybody else was doing — they were screaming and running. Because that’s what untrained people do when confronted with someone shooting at them — they run as fast as they can to leave that person’s presence. That’s behavior built deep into the human genome, we were prey, not predators, for millions of years before evolving to the point where we could use spears and clubs to become predators ourselves, and prey doesn’t run toward predators. It takes training and balls of steel to actually run toward someone who’s shooting at you, which is what would have been necessary in order engage someone with a rifle when you’re armed only with a handgun. Cops have that training and even they sometimes freeze or run away, like the school resource officer at Parkland High, who was a trained and certified Sheriff’s deputy and now is a former cop because he couldn’t overcome the natural instinct to run like hell when someone is shooting at you.

Sixty-five concealed weapons holders in that store, and not one of them engaged the shooter.

Can we drown this whole “moar gunz will solve mass shootings” bullshit forever now? Because clearly if even 65 people with concealed weapons can’t stop a mass shooting, the chances of even more people with concealed weapons stopping a mass shooting is…. well, what’s zero times anything? Hint: Zero.

– Badtux the Numbers Penguin