School choice birthed in authoritarian racial animus and market fundamentalism

Deformed: authoritarian undercurrents in education, Part III

School Choice, the bedrock of modern education reform, was born as an educational strategy in 1954, after the US Supreme Court ruled in Brown v. Board of Education that separate but equal black and white public schools were unconstitutional. The order to desegregate public education motivated Southern racist authoritarians to search for new ways to maintain their dominance and racial apartheid. After first trying pupil-assignment schemes to maintain segregation they eventually implemented educational "freedom of choice" and public support for private whites-only schools as a way to get around the court's order, a notion immediately endorsed by free-market evangelist Milton Friedman.

"Southern states and school districts," wrote James E. Ryan in the Virginia Law Review in 2004, "relied on school choice as one tool in their strategy of massive resistance" to the school integration orders delivered by the US Supreme Court in its landmark 1954 decision Brown v. Board of Education.

"Freedom-of-choice plans, along with other resistance strategies, largely succeeded in thwarting desegregation" wrote Ryan. Following enactment of the federal Civil Rights Act of 1964 that virtually outlawed school-assignment schemes Southern states rapidly created new private, white-only schools called "segregation academies" that received significant state financial and other support.  "From 1964 to 1969...enrollment in private schools in the South grew ten-fold," writes Ryan.

Directly after after Brown v. Board of Education Southern states attempted to maintain their system of educational racial apartheid  by the use of "pupil-assignment laws and other legal subterfuges," according to Helen Hershkoff and Adam S. Cohen, writing in the Yale Law & Policy Review in 1992. But when that system became untenable due to subsequent Supreme Court decisions and congressional action, "a network of all-white private schools was established in the large cities and small towns of the South that continues to this day[ 1992]":

"The segregation academy movement was a school choice plan in that the government made its resources available to help parents to choose schools other than their child's assigned school. This governmental assistance took many forms. During this era, seven states enacted tuition-grant laws that made government money available to pay tuition at the academies.

In addition many governmental entities throughout the South provided buildings, donated educational supplies and gave other such support."

Eventually the courts and congress outlawed deliberate racial discrimination, even in private schools, but that has not solved the problem of segregated schools,
as Protestants and minorities who had resisted segregation gradually came to support school choice for other reasons. Protestants joined the movement partially in response to court decisions that outlawed religious practices at public schools, along with the political ascendance of the religious right. Racial minorities joined seeking increased academic performance and to try and escape the disinvestment in education that followed legal and de-facto segregated schools.

The flight of elite whites from public schools in the South not only re-created segregated schools, but just as importantly significantly reduced support for public education in general.

One irony of the authoritarians' resistance to court-ordered school busing to achieve racial integration in the late 20th century is that they had practiced busing themselves prior to 1954 for the exact opposite reason: to racially segregate their schools. Today, as I will show below, thanks to the school choice inheritors of those Southern whites schools across the country are again being re-segregated.

More modern education reformers have instigated an equally cynical strategy that has actually capitalized on the white Protestant majority's history of racism and disinvestment in inner cities to entice Blacks to school choice schemes.

Corporate educational  reformers of the late 20th century first offered school choice to poor Black children in Milwaukee, Wisconsin, one of the most racially segregated cities in the nation. Milwaukee is also home to the premiere right wing philanthropy in the country, the Lynde and Harry Bradley Foundation, which has been fighting for public school privatization for decades. It was there that the nation's first school voucher experiment took shape, under the close tutelage and legal defense of the foundation in the mid-1990s. Bradley was able to co-opt local Black politicians, in large measure because the inner city Black schools had been so neglected that people were willing to try anything.

But the cooperation between Blacks and the Bradley Foundation represented in some sense a deal with the devil, given that the foundation was known for its covert racism. The Allen-Bradley company, whose sale provided the foundation with its endowment, was known to closely associate with the John Birch Society, which Harry Bradley helped found. The foundation funded and supported Charles Murray, author of the notorious book The Bell Curve, which purported to scientifically show that Blacks are genetically intellectually inferior to other races.

Despite its racist reputation the Bradley Foundation and its allies slowly brought on board Black politicians, as well as paid Black political activists and scholars, who would help make their case. Gradually even liberals joined the movement.

The results of these new political and educational alliances have not lived up to the promises made at their outset. Studies have consistently shown over the past decade that although charter schools were at first touted as a way to relieve racial segregation, the reality has been just the opposite, and that "the incidence of racial isolation in [charter] schools is strikingly higher than in traditional public schools," and that students in Milwaukee's voucher schools do no better academically than their peers in regular public schools.

Ideology of education deform movement rooted in market fundamentalism

Educational discourse in the U.S. has historically been focused on its purpose and methods. Should students be taught classics and high-minded culture, or should they be prepared for the working world? Is centralization of academic administration preferable to a de-centralized power structure? Today those discussions have been displaced by a focus on market-fundamentalist ideology: Education deformers argue schools should be made to function more like business, churning out products, measuring “value-added” processes, and instilling competition. They believe ideology, not a focus on pedagogy and process, will somehow automatically improve educational outcomes.

Traditionally American education did not function according to market rules. Primary and secondary education in the US has been under the control of local elected officials. Though the system has had its problems, it at least in theory allowed for popular control. If people in a school district didn't like how their schools were run, they could change that by electing new school boards. No longer. Now, with the proliferation of privately run charter schools that displace local neighborhood schools citizens no longer control the education of their children.

Just as pernicious has been the “strong mayor” form of school governance popular with the deformers, which resembles nothing so much as the structure of a modern corporation with a tough CEO and a rubber stamp board of directors. Mayors of both Chicago and New York were given this power from their respective state legislatures, essentially vesting in one elected official the power formerly held by elected school boards. Bill Gates told the New York Post in 2009 that “The cities where our foundation has put the most money is where there is a single person responsible.”

An article in Dissent magazine earlier this year reported on how two foundations – Gates and Eli Broad – have created a “pipeline” to place their own people into the political and management structure overseeing education:

“[Secretary of Education Arne] Duncan’s first chief of staff, Margot Rogers, came from Gates; her replacement as of June 2010, Joanne Weiss, came from a major Gates grantee, the New Schools Venture Fund; Assistant Secretary for Civil Rights Russlynn Ali has worked at Broad, LA Unified School District and the Gates-funded Education Trust; general counsel Charles P. Rose was a founding board member of another major Gates grantee, Advance Illinois; and Assistant Deputy Secretary for Innovation and Improvement James Shelton has worked at both Gates and the New Schools Venture Fund. Duncan himself served on the board of directors of Broad’s education division until February 2009 (as did former treasury secretary Larry Summers).

The community is weakened by wrecking and undervaluing the long-lived neighborhood schools in exchange for new and sometimes temporary charter schools. Furthermore, the underlying notion of public education - preparing citizens to take part in their own democracy - has been replaced – especially in schools comprised of poor and minority students - with preparing children to take reading and math tests.

The notion of choice itself had never entered the public discourse for primary and secondary education until the deformers appeared, for good reason: The economics just don't make sense. Schools need to be a certain size to be able to offer a quality, varied education, complete with things like art classes, advanced placement, and extracurricular activities like band and athletics. There aren't enough students in most neighborhoods to justify schools that exist only to give parents a “choice.”

The fact that there was, and is no “market” for primary and secondary schools wasn't viewed as a barrier: The plutocrats would take care of that by supplying choice schools even if it meant paying for them by themselves. The Gates foundation, for example, spent more than $100 million in New York City creating new schools so parents would have a choice, an experiment that even the Gates Foundation now admits was a failure, and has since been abandoned.

Still in most of the country there can be no “choice”: Eighty five percent of students still attend regular public schools, while only two and a half percent attend charter schools. In Minnesota, the birthplace of charter schools, there are still only about 150 charter schools, compared to 2,500 regular public schools. The experience of Minnesota shows what happens when market ideology replaces logic and common sense in education policy. Despite media reports touting “high performing” charter schools in Minnesota, the reality has been quite the opposite, with dismal results, especially for children of poverty and color.

A 2010 report by the Minnesota Department of Education cited the 32 lowest performing schools in the state. Of those, 11 were charters. That means 11 of 154 charter schools were failing, a rate of seven percent. Twenty one of the failing 32 were regular public schools, giving a failure rate of less than one percent. So by the Minnesota DOE's own numbers, charter schools in Minnesota are failing at a rate seven times greater than regular public schools. Despite these outrageous results not one media organization in the state reported the amazing contrast in failure rates between regular public schools and charters.

Even when nearly forced to choose alternative schools for their children parents rarely choose anything but their neighborhood schools. For example, under the NCLB act, after a school fails to meet Adequate Yearly Progress (AYP) goals for four years parents are given the option of removing their children from the neighborhood school and enrolling them in other, presumably more successful schools. Contrary to the ideology of choice, however, studies have shown that almost no parents moved their children from such schools. After the fifth year of not meeting AYP those supposedly failing schools are basically destroyed, which has angered parents nationwide, many of whom have had to put their kids in schools many miles from home, many without the advantages that were provided by their large neighborhood school.

In their zeal to apply the rules of business to education, corporate-style reformers have transformed the purpose of testing from a diagnostic tool to a basis for policy, resulting in the corruption of the entire process. Instead of being used to help students learn, testing is now used to judge the effectiveness of teachers and schools. This focus on measurable outcomes has escalated to the point that there is a growing call to judge and compensate teachers based on the reading and math test scores of their students, something called a “value added assessment,” another concept borrowed from business that has already been discredited in the educational context.

Even if the valued added measures could be trusted they would be meaningless for the current fad of Teach For America (TFA) teachers since there is no baseline for a particular teacher until he or she has taught for a few years, after which most TFA teachers leave the profession.

Other research has shown that 60 to 70 percent of student achievement can be linked back to the student and his family life. Only 30 to 40 percent of student achievement is even linked to the entire education establishment. Of that 30 to 40 percent, half is due to the school itself, and the other half – 15 to 20 percent of the actual total – can be linked to the classroom. How much of that remaining 15 to 20 percent can be linked to the actual teacher? Even if you assumed all of it was due to the teacher, that would still leave 80 percent of the student's performance dependent on factors outside the teacher's control.

Contrary to the deformers' concepts, children are not “products” to be produced, like so many widgets in a factory. They are unique human beings who bring all the successes and failures of the larger society to school with them. Yet because these methods are prevalent in American business, and the plutocrats who control that business are now controlling education discourse, these changes will intensify and spread.

In the conclusion of their Yale Law Review article Hershkoff and Cohen wonder if market- and competition-based educational strategies could ever work at providing a high quality education for every American student. They presciently cited realities such as "unequal access to preferred schools," "impoverishment of less-favored schools,"  "stigmatization and demoralization" of public schools and their students, and the exit of societal elites, which the authors called an "increasingly widespread phenomenon in American society" - and that was back in 1992. Rather than ameliorate racial and class differences in American society, Hershkoff and Cohen conclude "experience shows that the introduction of increased market choice often does little more than exacerbate 'a growing inequality in basic social community services.'" Given how modern educational reform was birthed in authoritarian racial animus and worship of market fundamentalism it isn't much of a surprise that it has failed to increase educational attainment.

Editorial cartoon by Avidor

Tomorrow: Education deformers' achieve political success through a strategy of repetition, marketing and compliance, not logic, reason and evidence

Part I:  Deformed: Authoritarian undercurrents in education
Part II: The danger to education and democracy posed by authoritarianism

The government created at least one job in May

May I have the envelope, please . . .

And the winner is: Craig Westover! The Cap'n is now the official mouthpiece for the MNGOP. Fresh off of his gigs as the mouthpiece for the successful Pat Anderson campaigns, first for governor, and then for state auditor -- well, not really successful, of course -- the Cap'n was undoubtedly looking for something to do -- now that he's done sandbagging, of course. (The post by Rachael Stassen Berger says that Captain Fishsticks has a libertarian "bent." And Ayatollah Khomeini had an Islamic "bent.")

No need to blush, Craig, you're still in the private sector, unlike these employees of the MNGOP caucus sheltered workshop: Michael Brodkorb, Chas Anderson, David Strom, and Margaret Martin. But there really isn't any doubt that Cap'n Fishsticks has his job because of the state government, just like all of the lobbyists, journalists, pundits and other courtiers who ply their trade at the Capitol. Without a democracy to mess with, the RPM wouldn't need Westover.

The Cap'n would undoubtedly disagree on theoretical and technical grounds. But he's always fulminating about numbers, sometimes famously, like the time he increased the top marginal tax rate in Minnesota from 7.85% to 32.88% to make a point.

The Cap'n is probably guilty of some economic displacement, though. Word is that Tony Sutton, the chair of the Republican Party was looking for a paying gig with the party, too. Apparently, the Cap'n got it.

The danger to education and democracy posed by authoritarianism

Deformed: Authoritarian undercurrents in education, Part II

Many people are perhaps not familiar with the concepts of authoritarianism and right wing authoritarianism. It is a 50 year old social science discipline that grew out of attempts to understand

The 2004 Bush campaign for president was a perfect example of authoritarian social dominators leading submissive and agressive authoritarian followers activated by fear, as expressed in this mashup of the 2004 Republican national convention. As one critic noted, the campaign was composed of "fear, slander and God."

what allowed the Germans in World War II to be so calculatingly brutal. The science took three tacks, one, understanding the personalities of the leaders, two the personalities of the followers, and three understanding the underlying psychological dynamic that allowed a society to veer so far off the tracks of humanity.

Research summed up by Bob Altemeyer in his book, The Authoritarians (free pdf), focused on three main attributes of authoritarians: authoritarian submission, authoritarian aggression, and conventionality. Later other researchers cited resistance to diversity as a fourth characteristic of authoritarians.

These concepts may seem innocuous on the surface, but in reality they add up to big trouble, especially in a democracy. One need look no further than the Bush administration, particularly after 911, to see the way Bush governed in the pattern of a social dominator - someone who leads authoritarians by whatever methods are available, including generating mass hysteria and fear, and lying and making things up out of whole cloth.

George Bush's political adviser Karl Rove went so far as to tell journalist Ron Suskind in 2004 that reporters would always misunderstand Republican politics because they lived in a "fact-based" world, while the Bush Administration "created their own reality." They pushed the limits of ethics and law to the point of what they could get away with without regards to norms of human decency. These are hallmarks of social dominators.

As Altemeyer points out, as dangerous as social dominators are, it is the followers of their leadership who enable authoritarianism through their authoritarian submission and aggression. They are the real threat. When authoritarian aggression is activated by fear racism and violence can be released.

This is significant because America is now one giant fear-generator. It could be argued that the country has been held in various degrees of existential panic since the onset of World War I. Reasons for the panic have varied, but the two big themes have been, first, fear of "Communism," which began after WWI and continued into the 1990s, and the fear of Terrorism since then. Things got so bad that by 2004, George W. Bush, according to scholar Henry Giroux, was able to wage and win a presidential campaign based on "fear, slander, and God."

One theory posits that the authoritarian culture of the slavery pre-civil war south, partially re-instituted after reconstruction, continues in a different form to this very day. Another theory fingers the "poisonous pedagogy" that views child-rearing as a contest of wills, where children are often subject to personal violence then forced to express their "love" for the abuser. This is a common child rearing strategy used by evangelical (fundamentalist) christian religions that make up the political religious right.

Southern whites turned to the Democratic Party after the civil war in response to the Republican Lincoln's fighting of the civil war and freeing the slaves. This antipathy to the Republicans lasted until the 1950s, when national Democrats passed civil rights laws that began to loosen the Southern whites' grip on power.

As others have written, particularly Michael A. Milburn and Sheree D. Conrad in their book The Politics of Denial, the authoritarian culture of the South was derived from the culture of slavery, and those forces have been passed from generation to generation. From the post-reconstruction era, roughly 1890, through the mid 1960s Blacks in the American South were subject to white authoritarian rule, represented in the deprivation of their civil rights, including the right to vote, systematic terrorism and violence, and legalized discrimination. Hatred of government in the South derived from the intervention of the federal government into its affairs following the civil war. Today the Southern states, despite being the biggest recipients of federal dollars, are hotbeds of anti-government sentiment.

Prior to the modern civil rights era southern Democrats were the authoritarians who enabled whites to control the Southern polity and society. As the national Democrats opened to civil rights and principles of diversity Southern whites inevitably shifted to the Republicans, who started appealing to their racism and bigotry in the 1960s with Richard Nixon and Pat Buchanan's so-called "southern strategy." So complete is the authoritarians' party switching that among congressional districts in the Deep South, there is only one white-majority district that has a Democratic Representative. John Dean famously described the authoritarians who now control the Republican Party as "Conservatives Without Conscience." Studies have shown authoritarianism to be strongest in the American South and within the Republican Party. In a time of diminished democracy and the hegemony of money in politics the last thing America needs is the extra dose of authoritarianism delivered with education reform.

Tomorrow: School choice birthed in authoritarian racial animus and market fundamentalism


Yesterday: Part I: Deformed: Authoritarian undercurrents in education

Deformed: Authoritarian undercurrents in education

When education scholar Harold Berlak paid a visit to a Knowledge is Power Program (KIPP) charter school in San Francisco he was shocked. Berlak, an education reform skeptic, found a school that reminded him of a “humane, low security prison or something resembling a locked down drug rehab program for adolescents run on reward and punishments...” Berlak reported that the KIPP school resembled the scene out of Nathaniel Hawthorne's The Scarlet Letter, in which students “...who resisted the rules or were slackers wore a large sign pinned to their clothes labeled 'miscreant.'" Other researchers have noted the authoritarian nature of a KIPP education. Instead of fostering a life-long love of learning the KIPP model promotes an atmosphere of compliance, conformity and reverence.

KIPP, a chain of about 100 charter schools, and its affiliated Educational Management Organizations (EMOs) are emblematic of the authoritarianism embodied in today's education reform movement. These schools embrace two main philosophies. The first is that they almost exclusively, serve poor, minority children, in effect creating segregated charter schools. The second is that KIPP employs an authoritarian approach to education, coercing students to bend to the pinched vision and “psychological sterilization” of the charter school manager's methods.

While scholars and commentators argue about the educational efficacy of KIPP's methods, the underlying authoritarianism floats just below the surface, like the unseen mass of an iceberg. What we can see above the surface – the corporatization, commercialization and privatization of the education process – masks a much larger effect lurking beneath: A creeping authoritarianism overtaking our public education system and simultaneously creating a populace less able to critically think in ways that might blunt the damage being done to democracy. Victories by education reformers in areas such as the implementation of high-stakes testing, replacement of regular public schools with charters, mayoral control of school districts, and attacking school teachers, are causing reverberations of increased authoritarianism that are more dangerous than the overt market-fundamentalist changes.

While KIPP and its cohorts can't be described as typical charter schools – there are too many of them of various styles – they are representative of the nature of the larger movement and its future. The authoritarianism found in schools like KIPP permeates nearly every aspect of the education reform movement – or perhaps more accurately, “deform movement,” including its genesis, theory, advocacy, promotion, implementation, and effects. It is a lose-lose proposition, destroying a functioning, if imperfect, educational system and replacing it with a worse one, while simultaneously shaping a populace less able to critically think all the while slowly removing local control of public schools.

The movement is a full-fledged attempt by plutocrats to subject public education to the kind of control and profit extraction that they enjoy over Wall Street and Washington. The methods and the effects of their efforts enhance authoritarianism and add a jolt of potency to conservative political tactics. Jonathan Kozol described the capitalists' excitement over the prospect of taking over public primary and secondary education in Harpers' magazine in August 2007:

Some years ago, a friend who works on Wall Street handed me a stock-market prospectus in which a group of analysts at an investment-banking firm known as Montgomery Securities~described the financial benefits to be derived from privatizing our public schools. "The education industry", according to these analysts, "represents, in our opinion, the final frontier of a number of sectors once under public control" that "have either voluntarily opened" or, they note in pointed terms, have "been forced" to open up to private enterprise. Indeed, they write, "the education industry represents the largest market opportunity" since health-care services were privatized during the 1970s.

It is not democracy for a handful of plutocrats, who describe the size of profits to be gained from the privatization of public education as "The Big Enchilda," to decide how we educate our children. Though cloaked in concern for the education of poor and minority children, the end game goal is far more malign: a shrunken public sector and increased corporate profits. Which raises the question: what educational good can come from a system that is rigged for private financial gain?

How to tell big lies: Social dominators and authoritarian followers

The education deformers are very rich and very smart people. They know that to argue that public primary and secondary education should be operated in the interests of Wall Street would be political death, even in today's warped media and political environments. This necessitates a giant subterfuge on their part, a mass-hypnosis they perform on the public where their true aims must be concealed, to be masked by humanitarian arguments implying a motivation of compassion, not profit. The mask of compassion has the advantage of imbuing the movement's followers with a righteous certainty in their actions, inoculating them against the reality of the policies' effects.

People who lead authoritarian followers, called social dominators, are uniquely qualified to orchestrate the movement. They have no compunctions against telling big lies if they think it will advantage them. The audacious strategy is to pretend to care about those they had oppressed in the past. Cloaked in compassion for the disadvantaged, the deformers cleverly push their overarching strategies of de-unionization and privatization of public education as solutions to the admittedly poor academic achievement of some poor, minority, and inner-city children.

Since the movement is not actually rooted in education, but purports to be, the longer it persists the more intense the denial of its effects must become. By now studies have shown the deleterious effects of education deform yet it only picks up steam. Some resistance is now being formed, but the deform movement has already done desperate damage, setting education back decades.

Those authoritarianism and anti-democratic attitudes present at the top of the deform movement radiate through its every facet. Democratically local elected school boards are giving way to the authoritarian governance of private corporations. Discourse surrounding education reform is warped by deceitful advocates, politicians and scholars and their paid chorus. Schools are increasingly using models more appropriate to military or prison systems.

Wrapped in its lie, education reform is bringing other aspects of authoritarianism, such as resistance to diversity. Nowhere is this more evident than in the re-segregation of American schools taking place under the banner of school choice. Other changes may be more subtle but just as damaging in their cumulative effects, such as the competition that is replacing collaboration in the classroom. Curriculum has been narrowed and teaching the art of critical thinking has been reduced. Trained, professional, unionized teachers are being replaced by disposable Teach for America recruits.

In this nine-part series I will examine the authoritarian undercurrents present in the genesis, advocacy, theory, promotion, implementation, and effects of the education reform movement, and how that authoritarianism represents a fundamental threat to democracy itself.

Editorial cartoon by Avidor

Tomorrow: The danger to education and democracy posed by authoritarianism

Feel free to shoot first IV

Rodney got his gun

Update: The companion bill in the Senate is SF1357. It appears to be word-for-word the same as the House bill discussed here. There is much more in the bill to make Minnesota more "gun friendly;" I have just focused on the Shoot First provision of the bill.

In the previous post, it was established that the "castle doctrine" already exists in Minnesota. The question that concluded Feel free to shot first III was:

Well, crikey, you say, what's the big deal then?

A clue to the difference is found in Rodney Peairs' shooting of Yoshihiro Hattori on Peair's front lawn. The shooting, which took place in the fall of 1992, involved a couple of high school kids -- one an exchange student from Japan, the victim -- who were going to a Halloween party in Baton Rouge. Hattori was dressed up like John Travolta in Saturday Night Fever; he wasn't wearing a mask, nor was his companion, a local high school boy that Hattori was staying with.

The boys got confused about the location of the party and stopped at a house with Halloween decorations and a similar address. They went to the front door and rang the bell. There was no answer, but they were observed by Peairs' wife, who actually did say, "Rodney, get your gun."


The boys were walking back to their car to leave when Peairs came out of a side door, apparently confronting the boys and shouting "Freeze!" The record is conflicted at this point, but Peairs (a 6' 2" heavily-armed man) says that the 130 pound Japanese teenager came at him, and that he was "scared to death." Peairs reported there was nothing he could do except gun down the menacing intruder.


The police agreed with him. But wouldn't you know it, the governor of Louisiana and the Japanese Consul made a stink, and Peairs was charged with manslaughter (not murder). He was acquitted, but Peairs was found liable in a civil trial and a judgment of about $600,000 was entered against him. His homeowner's insurance paid $100,000, and the rest of the judgment remains, apparently, unsatisfied.


Was this a "castle doctrine" case, or not? The Baton Rouge police apparently believed it was, and it was presented to the jury that way by the defense. But it seems pretty aggressive to me, and to a lot of other people, too. Moreover, the shooting did not take place in Peairs' dwelling, or even as Hattori and his companion were trying to enter it. This fact would probably have been a problem for Peairs if he had been tried in Minnesota.


Enter Tony Cornish and Shoot First. Recall that one of the circumstances in Cornish's bill where deadly force is authorized is: "to resist or prevent the commission of a felony in the individual's dwelling." Classic statement of the "castle doctrine," right? But not when this is your "castle":

"Dwelling" means a building defined under section 609.556, subdivision 3, an overnight stopping accommodation of any kind, or a place of abode, that an individual temporarily or permanently is occupying or intending to occupy as a habitation or home.
 A dwelling may include, but is not limited to, a building or conveyance and that building's or conveyance's curtilage and any attached or adjacent deck, porch, appurtenance, or other structure, whether the building or conveyance is used temporarily or permanently for these purposes, is mobile or immobile, or is a motor vehicle, watercraft, motor home, tent, or the equivalent.

"Curtilage" is law French for "yard" or "lawn." So when Clint Eastwood said,"Get off my curtilage!" in Gran Torino, that's what he meant. Note especially, too, a motor vehicle -- mobile or immobile! -- can also be a dwelling. This is Cornish's shout out to homeless people.


Let's say you have a little place on Mud Lake where you like to go on weekends and motor around, looking for carp in the shallows to shoot with your .22. You wake up some Saturday night, and you see someone standing on your dock. You think he might be stealing your Evinrude twenty horse, and the half-full can of gas, too. Can you get out that .22 and shoot him?


Why yes, yes you can! If Tony has his way. You don't even have to warn him. As in earlier examples of the operation of Tony's Law -- I think that's what we ought to call it -- if it's a good shooting under the law, you'd be "immunized" from any criminal responsibility, and you'd be "immunized" from any civil liability for killing the guy out in the lake doing a little night fishing for walleyes, too. Just like Rodney would have been civilly immunized for blowing away the Japanese teenager.


Tony's Law is an NRA wet dream.


Update: Once again I neglected to thank MNO for assistance in researching and preparing the series.

Feel free to shoot first III

Rodney, get your gun!

In Rodney's case, the gun was a .44 Magnum with a laser sight that killed a sixteen-year-old Japanese exchange student on the front lawn, but we'll get to that later.

But let's start out with the claim by Rep Tony "Up against the wall, little Billy!" Cornish, described in the last post in this series, that Minnesota law needs to be amended to protect people who defend themselves from home invasions. As pointed out in that post, Tony's bill -- which was actually written by the NRA -- goes a lot farther than addressing home invasions. As I said, home invasions are a dead red herring. But since Cornish brought it up, let's discuss home invasions.

As others have pointed out, Minnesota law already addresses home invasions, Minnesota law includes a specific provision adopting what is sometimes called the "castle doctrine." Minn. Stat. sec. 609.065, first adopted in 1963 (which was a continuation of prior law on the subject), as it currently exists, states:

The intentional taking of the life of another is not authorized by section 609.06 [the "general" use of force law], except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.

 Ah, they don't write 'em like they used to. It places the issue of a killing to prevent the commission of a felony (violent or not) in an actor's "place of abode" elegantly within the law of justifiable homicide. Under the 1963 statute, a defense based on Minn. Stat. sec. 609.065, like other claims of justifiable homicide, is the defendant's burden to bring forward evidence of the defense.

In the case entitled State v. Carothers, 594 N.W.2d 897 (Sup. Ct. 1999), the Minnesota Supreme Court held, citing a string of earlier cases, that there is no duty to retreat before defending yourself in your own home; I am not aware of any retreat (so to speak) from that holding.

In State v. Pendelton, 567 N.W.2d 265 (Sup. Ct. 1997), the Minnesota Supreme Court said that you could resist the commission of a felony in your dwelling with deadly force, whether it was a violent felony or not:

Based on the language of the statute itself, it is clear that one does not have to fear great bodily harm or death to justify the use of deadly force to defend against the commission of a felony in one's home. The language of the statute requiring fear of great bodily harm or death is contained in the clause relating to self defense. In contrast, the "defense of dwelling" clause simply states that deadly force is justified in "preventing the commission of a felony in the actor's place of abode." Minn.Stat. § 609.065.

We can see that Cornish's claim that the bill is necessary to protect the rape victim he described in this video and described in the earlier post in this series is just wrong.

Well, crikey, you say, what's the big deal then? Well, a couple of things, and Rodney will help us understand them.

Feel free to shoot first II

Update: Be sure to read the comment thread.

Tony Cornish's Shoot First bill got a hearing yesterday, and as expected, it passed out of his committee. Here is a photo of a proponent of the bill taken by a Strib photographer at the hearing:

This is proof that a guy can masturbate with his clothes on. (I mean, really, does this guy look like he can actually reach around his back and get his gun, anyway?)

Much of the commentary surrounding this NRA-sponsored bill is about the poster child for legislation like this: home invasions. In an interview given prior to the hearing, and while sitting in his Capitol office among his collection of dead animals, Cornish himself used the home invasion as the justification for the bill. Here's the WCCO interview.

Cornish cites the case of a woman in St. Paul who called the police about an intruder, but was raped before the police arrived. "Can't rape a .38," Tony Cornish says.

But it's a dead red herring. The so-called Castle Doctrine already exists in Minnesota. One of the things this NRA beauty does, though, is permit you to take the Castle Doctrine on the road, and not merely in your car, either. Here are the circumstances in the Cornish bill when deadly force is authorized:

    Subd. 2. Circumstances when authorized. (a) The use of deadly force by an individual is justified under this section when the act is undertaken: (1) to resist or prevent the commission of a felony in the individual's dwelling; (2) to resist or prevent what the individual reasonably believes is an offense or attempted offense that imminently exposes the individual or another person to substantial bodily harm, great bodily harm, or death; or (3) to resist or prevent what the individual reasonably believes is the commission or imminent commission of a forcible felony. 

(b) The use of deadly force is not authorized under this section if the individual knows that the person against whom force is being used is a licensed peace officer from this state, another state, the United States, or any subordinate jurisdiction of the United States, who is acting lawfully.

 Note that condition (1) is tied to an individual's dwelling; the other two conditions are not. Condition (1) is the Castle Doctrine; conditions (2) and (3) permit you to take the doctrine on the road. We'll come back to home invasions later. But let's take Shoot First out for a spin first.

What makes conditions (2) and (3) especially dangerous is the next section of the bill:

    Subd. 3. Degree of force; retreat. An individual taking defensive action pursuant to subdivision 2 [that's the one quoted above] may use all force and means, including deadly force, that the individual honestly and in good faith believes is required to succeed in defense. The individual may meet force with superior force when the individual's objective is defensive; the individual is not required to retreat; and the individual may continue defensive actions against an assailant until the danger is eliminated.

This is the part of the bill closest to the heart of the NRA; that's why gun enthusiasts call the bill "stand your ground." But it's not only your ground; it's somebody else's ground, too. Whether they asked you or not. Plainly, this is a call to vigilantism. Consider:

You are standing on line at the bank. In the line next to you, a person says to the teller, "Fill this with $100 bills; I've got a gun." The guy (because it almost certainly will be a guy) behind you yells, "Freeze suckah!" and pulls a gun. The robber wheels, but the hero behind you gets off a premature shot before the robber pumps a couple of rounds into the would-be vigilante's chest.

Unfortunately, our hero's round severs your spine, perhaps high enough that you can't even breathe on your own for the rest of your tortured life. Our hero is dead, so he's beyond caring, but you've got legal recourse against the hero's estate, to help you pay for electricity for your respirator, don't you?

Or consider this:

Your neighbor sees somebody breaking into your house, a really scary guy. Rather than call the cops -- Rep. Cornish mocks a call to the police in the video linked above -- or even calling you, your neighbor squeezes off a round at the burglar. But your neighbor isn't much of a shot, and he drinks a little to boot; his shot goes wide and kills your child as she sleeps. Certainly, you can recover something against your neighbor for her wrongful death, right?

And finally, here's one more:

Two guys are in a bar and get into an argument. They aren't supposed to have guns in a bar, but never mind, they do. Neither will back down (retreat), and the argument escalates when one of them starts to pull his gun. The second man is quicker, though, and reasonably fearing for his life, pulls his gun and shoots the first guy. The bullet passes through him and kills you. Your family can certainly sue to help pay the bills after you're gone, right?

The answer to all three questions is found in another section of the act:

   Subd. 5. Criminal investigation; immunity from prosecution. (a) An individual who uses force, including deadly force, according to this section or as otherwise provided by law in defense of the individual, the individual's dwelling, or another individual is justified in using such force and is immune from any civil liability [emphasis is mine] or criminal prosecution for that act. 

(b) A law enforcement agency may arrest an individual using force under circumstances described in this section only after considering any claims or circumstances supporting self-defense or lawful defense of another individual.

Aw, you say, that can't be right; there can't be immunity from civil liability in the scenarios you mention. But there is. Regardless of how stupid, drunken, or illegal the carrying of the gun, the bill on its face immunizes the act as long as the shooter "reasonably" believes the act is defensive of him or someone else.

Update: The reasonableness is applied to the belief, not the response.

I'll write more about home invasions in a later post.

The first post in this series is here.

Soapbox Night at Drinking Liberally

It's a Mad Mad Mad Mad World

It's as if the Tenthers, the shooters, the church ladies, the gamblers, the stadium confidence men, and every other two-bit grifter in Minnesota descended on the Capitol this week. You know what that means, don't you?

It's Soapbox Night at Drinking Liberally. Bring along something you want to vent about -- or praise; you can do that, too -- and I'll record some of the remarks for publication here as a podcast.

That's tonight, Thursday, April 28th, from six to nine PM at the 331 Club in northeast Minneapolis.

The best defense is a good offense

I am so tired of playing defense on marriage equality. Raise your hand if you're with me on that.

So let's stop playing defense, and propose a competing constitutional amendment that would guarantee civil marriage rights to all couples regardless of gender.

One of the most demoralizing aspects of debates around "Marriage Protection Amendments" is that there's nobody out there articulating the value of marriage equality, just defending a broken status quo. Consider the landscape in Minnesota today. We have a DOMA statute. Unlike many states, the Minnesota Supreme Court has a 1972 precedent upholding the constitutionality of laws limiting marriage to opposite-sex couples. Despite that, author Warren Limmer knows there's a need to act now:

Same-sex marriage already is banned under decades-old Minnesota law upheld by the state Supreme Court, so the amendment, if passed, would have no practical effect on anyone.

But Sen. Warren Limmer, R-Maple Grove, said nothing would be as iron-clad as defining marriage as exclusively between a man and a woman in the Minnesota Constitution. Without it, there's still a risk, he said, of "allowing a number of politicians or, heaven forbid, activist judges to decide what marriage should be.

It's pretty hard to get fired up to fight against a constitutional amendment, when a "win" leaves discrimination enshrined in law and upheld as constitutional by the state Supreme Court.

But here's the line that opens the door, should we choose to walk through it:

"Let the people decide."

Indeed, let's make this a real choice, and put both constitutional marriage discrimination and constitutional marriage equality alongside each other on the ballot.

Every plebiscite on the question of marriage equality is framed as a choice between "activist judges" imposing gay marriage on the populace or the populace voting. Until that changes, referenda will always be tools to deny marriage equality. Every year, opinion is shifting away from discrimination toward equality. Imagine the passion, energy, and resources that people would devote to a campaign to make Minnesota the first state that enshrines marriage equality as a state constitutional right. The framing of equality vs. discrimination would be a powerful contrast. "No on both" would still be a tenable position for some voters, and should actually help defeat Limmer's amendment.

Besides, we will not defeat this attempt to enshrine discrimination in the constitution by hemming and hawing about how it's "not necessary because we already have a law (Yay!)," "a distraction from real issues," "shouldn't be a constitutional issue," etc. These are fine arguments in the legislative budget debate, I guess, but are weak arguments in an election campaign.

Proposing a marriage equality amendment would put the Republicans in an untenable position. Their "let the people decide" tagline will ring hollow should they deny it a place on the ballot, and it will gut their argument that this is a choice between the people's voice and activist judges. Republicans would probably be happy to put it on the ballot, figuring that a real potential for same-sex marriage would galvanize their base. But that sword has two edges.

The strategy of waiting for a court case is a losing strategy. It will be public opinion that will bring durable marriage equality, not constitutional law. 2012 is the time to stop playing defense. It was popular opinion that finally dragged Congress kicking and screaming to end Don't Ask Don't Tell. We can win, and we should "let the people decide."

Follow me on Twitter @aaronklemz

Obama's miscalculation

Close political watchers know that the right wing fringe that has captured the Republican Party is President Obama's best friend. When liberals, union members and non-authoritarians point out the harm Obama has done to progressivism all the corporate Democrats had to do was point out that, yes, Obama hasn't been that hot, but look at the crazies he's up against. That strategy, called Peak Wingnut Theory by Spot, holds that Democrats should do all they can to drive up the "legitimate" crazy element in the Republican Party, in effect ghettoizing Republicans within their own minority mindset. The crazies on the right enable Obama to drive more knives into the backs of his supporters, while creating space he can move into to his political right.

The status quo ante before Obama released his long-form birth certificate was a perfect balance for both dividing the Republicans and marginalizing them with the general electorate. Rational people knew that Obama was born in the U.S., and the president had the documents to prove it. But wingnuts like Donald Trump could find enough wiggle room (The president hasn't released his long form birth certificate! Why not?) to keep the rabid right riled up. This was forcing other Republican presidential aspirants to toe a thin line on the birther issue, not really embracing it, but not really repudiating it either.

Establishment Republicans have already tried to ostracize the birthers.  Today the president did the Republicans' dirty work for them, saving them from having to savage candidates of their own party. With the release of his original birth certificate the birther issue has been marginalized even within Republican circles. Sure, there will always be parts of the crazy right who deny the president's legitimacy no matter what, but that faction has been reduced because of Obama's action today, opening the door to more moderate-looking candidates like Mitt Romney or Tim Pawlenty. To the extent that more serious Republican candidates not tainted by the loony birtherism are more appealing to conservative to moderate Democrats and Independents Obama has just ensured that he will face a more formidable candidate in 2012.

Don't matter; he's still Kenyan

The true believers will not be moved by the release of this document.

For insight as to why, we return to Frank Schaeffer, quoted earlier in a post about Katherine Kersten:

Respect for religious stupidity is -- by extension -- why the media gives Trump, Bachmann et al platforms from which they can spread falsehoods. Trump isn't remotely religious but the sort of people ready to believe in someone like him (or the Tea Party) have been fed a steady diet of mythology that has literally altered the way their brains work. If a scientist, an expert or the "liberal media" says something is true then ipso facto the opposite -- no matter how harebrained must be true! Actually believing that the Palins, Becks, Trumps of this world are serious people is just the political version of giving creationists a "serious" place on textbook committees.

 The title of Schaeffer's post is The "Biblical" Root of America's Political Stupidity.

Kersten: It's me and God and screw the rest of you! III

Katie's Easter cudgel

Here are parts one and two. Here's the cudgel.

When you read the column -- you all did read it, right? -- some of you undoubtedly noticed how Kersten went directly from telling us how important the "Judeo-Christian heritage" was in informing the Founders about freedom and equality, a warm and fuzzy metaphorical kind of thing, to this:

[T]hey [the left and the opinion elites] don't like the idea of truth -- the idea that there is, in the nature of things, a blueprint for human flourishing. They don't like the notion of moral parameters that limit our actions on matters such as cloning, stem cell use, abortion or marriage. They believe that man can make himself: that there is no "floor" to the universe.

Whatever you think the Declaration of Independence says, you will look unsuccessfully for the clauses that talk about cloning, or stem cells, or even abortion or marriage. But it's a leap of faith, so to speak, that Katie makes, and expects the rest of us to as well, landing in the same spot exactly as Katie does. Even Katie admits it's irrational. Where does this come from?

Frank Schaeffer has some ideas in a post entitled The "Biblical" Root of American Political Stupidity:

One group that has perfected the art of special pleading for respect for non-reality-based "ideas" are the religious fundamentalists otherwise called Evangelicals. They train their families from birth to be the sort of gullible dupes the Palin/Trump/Bachmann/Becks of this world manipulate.

Evangelicals are a group to which no idea is too farfetched. From birth they are told that facts are lies and that "true believers" like them -- and they only -- have access to the actual and only truth: the Bible.

And not just any Bible, says Schaeffer, it's the every-word-is-true Bible. Kersten is a Palin/Trump/Bachmann/Beck acolyte, a true altar girl. Schaeffer observes that people living in the reality-based community are called "God-hating elites" by fundies like Katie and the rest of the above-named charlatans, and by golly, that's exactly what Katie calls them. It's almost like she's writing from a script.

Gee, ya think?

Schaeffer, who grew up in one of the granddaddy of all evangelical households, says it's a mistake to humor these clucks:

One of America's great sins is our respect for any and all religion. Note: the irony is that religious gullibility even prepares many religious believers to accept greedy evangelists and crass tycoons like Trump because they -- like the believers -- are perceived as "outsiders" bucking the educated culturally savvy "elite's" facts. 

This is an unintended spinoff of our commitment to free speech. Since we're all free to say or believe anything then, the thinking goes, we should respect whatever it is our neighbor says he or she believes. 

This is a mistake: Just because we're all equal before the law doesn't make everything said or thought of equal value, let alone deserving of respect.

That's a better valedictory that I could have written about Katie's Easter cudgel, but I adopt and second the sentiment.

Thanks to Andy Birkey for the link.

Republicans playing with constitutions IV

He's a tough one to shame; I'll give you that. Within days of claiming that the right to vote is a mere privilege, Kurt Zellers is back to champion a resolution in the Minnesota House to urge the Congress to draft a constitutional amendment to permit states to act and unadopt federal law. Read the entire resolution at the link, paying especial attention to the whining recitals (the WHEREAS clauses), but here's the core of the resolution:

The Speaker is joined by several of the usual suspects.

I will say in Zellers' defense that the resolution is not quite as crazy as the bills championed last year by Tom Emmer to permit the Legislature, or a triumvirate of legislative leaders and the governor, to simply declare a federal law somehow "inapplicable" to the state. But that's a pretty low bar.

What Zellers and Co. offer is a virtual return to the Articles of Confederation. So successful were the Articles of Confederation that they lasted a full ten years or so after the Revolution. It would work even less well now in a modern, integrated (commercially) nation of 300 million people.

I mean really, where do these people think that Congress comes from? The moon?

It's lunacy, brought to you by the same confederation of dunces who think that defaulting on the national debt is an idea whose time has come.

Kersten: It's me and God and screw the rest of you! II

If we turn away from God, we're Frenchmen and collectivists

Part one is here.


You know that Katie is serious when she hauls out the epithets (second definition) "Frenchman" and "collective."

America was founded on the belief that God is the source of [liberty and equality].

The political philosophy that inspired our nation's democratic revolution was very different from the Continental European philosophy that produced the French Revolution. 

That bloody tradition grounded its political thinking in autonomous human reason. America's founders, on the other hand, looked "to the sovereignty of God as to the first principle of its organization," as the theologian John Courtney Murray [link is mine] has written.

The brief article at the link reveals that Murray was a Jesuit -- the Jesuits are, in fact, the big thinkers (seriously) in the Catholic Church -- and that he was clearly a "natural law" guy:

[Murray] was an American Jesuit priest and theologian, who was especially known for his efforts to reconcile Catholicism and religious pluralism, particularly focusing on the relationship between religious freedom and the institutions of a democratically structured modern state.

But I don't think that Murray said, as Kersten suggests, "Well, we have the French Revolution on the one hand, and the American Revolution on the other." That's a little sleight of hand on Kersten's part; you will note that the quote is only the second part of the sentence.


As we all know, Katie got a minor in taking quotes out of context.


Kersten tells us that the "left" and the "opinion-making elite" don't like religion because:

First, they don't like the idea of truth -- the idea that there is, in the nature of things, a blueprint for human flourishing. They don't like the notion of moral parameters that limit our actions on matters such as cloning, stem cell use, abortion or marriage. They believe that man can make himself: that there is no "floor" to the universe. 

Second, our elite's fundamental political impulse is toward collectivism. They believe the state holds the solution to every problem, and that wise social engineers can be trusted to do what's best for the rest of us.

I've observed before that Katie wants to make God in Katie's own image, so that God will hate the same people she does, kind of a theological transference.

"Collectivism" is the dirtiest word that Katie knows. She -- and her tag team partner Jason Lewis, too -- hurl it much as an adolescent might shout, "Your mother wears combat boots!" It is laughable to think, much less say, that believing that we should not be ruled by a priestly class is "collectivist."

Using your religious background, and whatever other moral or ethical teaching you have received (perhaps by ancient philosophers, mystics, or other religious traditions) to inform your political opinions is a good thing. (Update: But it's another to think it is actually the law of the land.)

But it is mean and rotten and foul to write a polemic to beat people over the head with a cross on Easter Day.

What about the incumbents?

The most important issue of this legislative session that isn't the budget is finally surfacing. At 12:30, a House committee will finally hear a bill on redistricting. The House media services and the Uptake will cover this hearing and you can watch it live. I find it interesting that while the racino bill hearing was rescheduled to avoid competing with Jeb Bush's appearance, the redisticting hearing will happen under the cover of that media circus.

EDIT AFTER PUBLISHING: In the welter of amendments posted to the delete all amendment, I missed one that inserts the incumbency language. Nothing like writing something and realizing nearly immediately that you're wrong. Sorry about that, readers.

The section about prioritization below is correct.

You can read all of the amendments for yourself here.

You should watch the 12:30 hearing.

Governor Dayton sent a letter to legislative leadership outlining the principles he believes must be followed in drawing new legislative maps. These principles were laid out by the courts after the process between the Legislature and Governor deadlocked in 2001. They include:

5. Not be drawn for the purpose of protecting or defeating an incumbent.

Dayton's letter noted that the redistricting bill did not include principles for redistricting. Now, in the form of an amendment, the GOP redistricting principles are finally out. And while there is substantial overlap between the Governor's letter and these principles, there is one notable omission; the GOP principles don't include the incumbency provision.

The GOP principles are, in order of priority:

1. Nesting (MN House districts must nest inside of MN Senate districts)

2. Equal population

3. Contiguity and Compactness

4. Minority representation (cannot concentrate or disperse minority communities)

5. Avoiding division of cities, counties

6. Preserving communities of interest

While that seems rather banal, prioritizing compactness over minority representation is a sticky wicket that might be litigated. In fact, the amendment notes that the prioritization can't violate federal laws like the Voting Rights Act. In practice, it will be a court that decides that, but it's most likely that courts will draw the map due to a deadlock between the Governor and Legislature.

Follow me on Twitter @aaronklemz

Kersten: It's me and God and screw the rest of you!

St. Katie of the cornfields delivers her Easter homily: a giant Easter egg

Before heading out to check out the supermarket specials, and pick up her Easter "we're not Jews!" ham, Katherine Kersten penned her column for Easter Day. And it's a humdinger.

America was founded on the belief that God is the source of [liberty and equality].

*  *  *

 Think of the Liberty Bell, emblazoned with an inscription from the book of Leviticus in the Old Testament, the Hebrew Bible: "Proclaim Liberty Throughout All the Land Unto All the Inhabitants Thereof."

Think of the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Think of the Constitution, the founding document of our current republic, which doesn't mention the word "God," much less identify a deity as a source of the law. In fact, in Article VI, the Constitution specifically prohibits any religious test for public office in the United States. And, of course, the First Amendment allows the free exercise of religion, but prohibits the establishment of one by the federal government, and via the Fourteenth Amendment, one by a state.

It is highly ironic to me that perhaps the most important statement by a presidential candidate disclaiming the influence of a religious persuasion on government was John Kennedy, who said in September of 1960:

[N]either do I look with favor upon those who would work to subvert Article VI of the Constitution by requiring a religious test, even by indirection. For if they disagree with that safeguard, they should be openly working to repeal it.

 . . . [C]ontrary to common newspaper usage, I am not the Catholic candidate for President.

I am the Democratic Party's candidate for President who happens also to be a Catholic.I do not speak for my church on public matters; and the church does not speak for me. Whatever issue may come before me as President, if I should be elected, on birth control, divorce, censorship, gambling or any other subject, I will make my decision in accordance with these views -- in accordance with what my conscience tells me to be in the national interest, and without regard to outside religious pressure or dictates. And no power or threat of punishment could cause me to decide otherwise.

 But if the time should ever come -- and I do not concede any conflict to be remotely possible -- when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do likewise.

But I do not intend to apologize for these views to my critics of either Catholic or Protestant faith; nor do I intend to disavow either my views or my church in order to win this election.If I should lose on the real issues, I shall return to my seat in the Senate, satisfied that I'd tried my best and was fairly judged.

 But if this election is decided on the basis that 40 million Americans lost their chance of being President on the day they were baptized, then it is the whole nation that will be the loser, in the eyes of Catholics and non-Catholics around the world, in the eyes of history, and in the eyes of our own people.

 We got another lesson about Article VI when Keith Ellison was elected in 2006 and decided to take his oath of office on (Thomas Jefferson's as it turns out) a Qur'an; Dennis Prager and many other right wingers howled. The law cannot prohibit or require either a Bible or a Qur'an -- or any other religious tract of any faith for that matter -- when taking office, nor can the person taking the office be required to utter the words "so help me God."

There is so much coloring book history in Kersten's column that it will take another post or two to finish up.

The most fundamentally misguided notion in her homily, though, is that we governed by natural law. But make no mistake about it: every law that you or I must obey was made by people.

"Who is this Downey fellow?"

That's former governor Arne's Carlson's reaction to hearing a quite from Keith Downey (R - 41A) saying that the time for government reform was "now." Here's more of the exchange between Doug Grow and Carlson in a MinnPost article:

"We've been putting off reforms for 15 years," Downey said. "The time to act is now." 

 That's the line that upset Carlson. 

"Who's this Downey fellow?" he asked me.  

A representative from Edina starting his second term, the governor was told. 

 "If he's starting his second term, he's probably part of the problem," Carlson said. 

Carlson contends that his administration didn't just point out the long-term structural problems in the 1995 report that Downey was referring to. Rather, it made the "reforms" necessary to correct the problems.

 Carlson also contends that Tim Pawlenty, as majority leader of the House and then as governor, undid most of the changes the Carlson administration instituted. Along the way, Pawlenty got a little help from Gov. Jesse Ventura and some DFLers.

I commend the entire article to you.

Feel free to shoot first

But officer, I felt so threatened

Update: Please read Heather Martens' article about the bill on the Minnesota Public Radio website. A thump of the tail to Bill Gleason for the link.

- o O o -

Sir, I see you standing over the dead body of that man, and you're holding a gun. Care to explain yourself?

Well, officer, I shot him.

I figured that. But can you tell me why?

He threatened me.

What did he say?

Well he didn't say anything, actually.

Did he pull a gun or a knife, or take a swing at your?

No, not really.

What do you mean, "not really?" What did he do that you felt justified in killing him?

He gave me the stink eye and well, he kind of sucked his teeth. It really scared me.

Okay then. Sorry to bother you. Say, can you move aside so we can get at this guy? We have to take him to the morgue and call his family and stuff; I need to pull his wallet.

Sure; no prob.

- o O o -

This may be a scenario coming to a corner near you. That is, if Tony "up against the wall little Billy" Cornish (shown here; the photo is on his legislator's web page; aren't the baby's handcuffs really cute?) has his way. He's one -- among several; I'm just picking on Cornish because's he the Chairman of the Public Safety Committee in the House -- of the chief authors of HF 1467, a bill that, inter alia, removes the obligation of a person to retreat from a threatening situation, if possible, before opening fire.

Under the bill, if an individual "reasonably" (ah, the devil is in the details, isn't it?) believes there is a threat to him or her or a third person, they'll be justified in using deadly force to meet the threat. It's a little more complicated than that, but you can read the whole bill at the link. And here are some of the key sections of the bill. It's in pdf format, so these are just images of the sections; the underscoring means the language is to be added to existing law. The bill would be an amendment to Minn. Stat. 609.065.

Here are the circumstances when deadly force is authorized. The first subsection is already permitted under Minnesota law, the second probably is, too, save for the issue of a safe retreat. The third subsection is quite vague, and it is a complete departure from current Minnesota law. A "forcible felony" might include something like breaking and entering (burglary) on property that is not occupied, and which is not even yours. This is the true vigilante section of the bill.

Update: As commenter Stoo point out, forcible entry is defined in subd. 1 as felony level violence against a person. So you probably couldn't use you gun to break up a shoving match between other people, but you probably could use you gun on the one you "reasonably believed" was beating the other one up pretty good. I'll put the subdivision one definition in the comments.

The next subdivision of the proposed statute is the part that eliminates the duty to retreat if you can. The law has always permitted you to defend yourself, with deadly force if necessary, if you can't retreat. But you do have a duty to avoid violence if you can.

And  here are two subdivisions that deal with the consequences to the user of deadly force after the event.

The bill says that if some one even claims self defense, they are immune from arrest -- which might include even detention at the place of an incident of the use of deadly force -- until an arresting officer weighs all of the circumstances. The would be hard to gainsay the absurdity of subdivision five and the complete impracticality of its application. It makes the police into arraignment judges. I cannot believe that even Tony Cornish thinks this is a good idea; he's a small town cop, remember?

The bill also immunizes the vigilante from civil liability -- to anybody, including bystanders waiting at the bus stop or walking down the street. The police don't even have that.

But subdivision six contains the most monumental change in the criminal law. Under current law, in both federal and state courts in Minnesota, a defendant has the burden of establishing self defense (Update: or at least coming forward with some evidence to establish the defense). Once the acts are established beyond a reasonable doubt, i.e., the weapon was used by the defendant, the defendant must show that the killing or wounding was justified. The proposed statute flips that burden around, placing it on the prosecution (Update: and apparently relieving the defendant of any obligation to come forward with any evidence supporting the defense).

The practical effect is that if a defendant says "I felt threatened," it is the prosecutor's burden to show that the defendant was not "reasonably" threatened.

The burden of proof for demonstrating, for example, insanity or diminished capacity as a defense to a crime also rests with the defendant. If this bill becomes law, it would give the user of deadly force a procedural advantage not shared by any other defendant seeking to use an affirmative defense.

Update: To put it a little more colloquially, on a claim of self defense, or the defense of another, the tie goes to the shooter.

Under the bill, if an insane man shot somebody, he would have a better chance of beating the rap by claiming he used the gun in self defense than defending on the basis that was insane.

And for my money, if you shoot somebody, or knife them, it ought to be you who has some explaining to do.

Cornish's bill is scheduled for a hearing -- in his own committee -- on Thursday.

Update: Forgetful old dog that I am, I neglected to mention that the post was prepared with the able editorial assistance of MNO.