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Protests & Patriotism

Colin Kaepernick stirred up considerable controversy by protesting racial oppression in America during the national anthem. His main concern is with the oppression that he claims occurs in America.  While most of his critics acknowledge that he is within his legal rights, they believe that he should not exercise them in this manner. I will consider some of the objections against Kaepernick and also address some of the broader moral issues raised by this protest.

One tactic used against Kaepernick’s protest is to assert that his protest against oppression is invalidated because, as a rich and privileged NFL player, he is not personally oppressed. This approach is flawed in at least two ways. If the intent is to reject his claim that oppression exists by attacking him, then this is a mere ad hominem fallacy. This is a stock fallacy in which an attack on something about a person is taken as refuting a claim made by the person. This is a fallacy because the truth of a claim is independent of the qualities of a person making it. This is not to say that credibility is irrelevant, just that a person’s qualities do not bear on the actual truth of their claim.

This attack can also be seen as based on the view that only a victim of oppression or harm has the moral right to protest that oppression or harm. While this might have some appeal, it does seem fatally flawed. To illustrate, if this principle were accepted, then it would follow that only those killed by abortions would have the moral right to protest abortion. This would be absurd on the grounds that no protest of abortion would be possible because all those harmed by it would be dead and unable to protest. To add another illustration, only victims of crime could thus speak out against crime, which is also absurd. If the principle were taken somewhat more broadly, it would follow that only victims of cancer could try to raise awareness of cancer. As such, the claim that he is not himself oppressed has no bearing on the truth of his claims or his right to protest.

Another line of attack is to go after his character and allege that he is not sincere: he is protesting only to gain attention and bolster a flagging career. This approach can have merit in regards to the matter of whether or not he is a virtuous person. If he is not sincere and using the protest for personal gain, then he can be justly criticized on moral grounds. However, attacking him in this manner has no logical bearing on the truth of his assertions or the merit of his protest. This is just another ad hominem attack.

To use an analogy, a person who uses an opportunity to focus attention on cancer in order to engage in self-promotion is not a virtuous person, but this is irrelevant to whether or not cancer is a real problem. As such, his motivations are irrelevant to the validity of his protest.

There are those who take the approach that his protest is invalid because there is no oppression of blacks. Those who believe that oppression exists point to objective data regarding income, wealth, educational opportunities, hiring, sentencing, and so on that seem to show that oppression is both real and systematic.

Those who deny it either simply deny the data or explain it away. For example, the disproportionate arrest rates and harsher sentences are explained by alleging that blacks commit more and worse crimes than whites. Since this is an ideological issue tied to the social identity of many, the lines are rather solidly drawn: those who strongly deny the existence of oppression will generally never be convinced by data. Since they do not experience systematic oppression based on race, they also tend to claim that it does not exist because they have not experienced it—although some will claim that they have been mistreated for being white.

I do find the evidence for oppression convincing, but I am certain that those who disagree with me will not be convinced by any evidence or argument I can offer. Instead, they will attribute my belief to a distorted ideology. That said, perhaps an appeal can be made to the white people who believe that they are oppressed in various ways—they might be willing to admit that blacks are not excluded from this oppression. For example, Trump supporters often speak of how the system is rigged by the elites—they should be able to accept that there are many blacks who are also victims of these elites.  This might allow for some common ground in regards to accepting the existence of oppression in the United States. I now turn to the broader issue of whether or not it is morally acceptable to protest during the national anthem.

Critics of Kaepernick contend that protesting during the national anthem is disrespectful and most assert that this action is especially insulting to the troops. When considering the matter, it is well worth noting that the national anthem was first played at games as a means of attracting more paying customers. Given its use in this manner, it would seem somewhat problematic to attack Kaepernick for using it as an opportunity to protest. After all, he is using the opportunity to bring attention to injustice in America while its original use was simply to make more money. In this regard, he seems to have the moral high ground.

It could be replied that although it began as a marketing tool, it evolved into a sacred ritual that is being besmirched by protest. One line of criticism is that to protest during the national anthem is to disrespect the troops who died for the freedom of expression. This requires assuming that the purpose of playing the anthem at games is to honor the troops—which might be the case. However, if the troops did die for, among other rights, the freedom of expression then the exercise of that right would seem to be a legitimate means of honoring these troops. Endeavoring to silence people would seem to be an insult to those who are said to have died for the right of free expression. That said, there is certainly a reasonable moral concern in regards to decorum during the national anthem, just as there are also such concerns regarding behavior at any time. Kaepernick’s protest seems to be a very polite and respectful protest and thus does not seem problematic in this regard. Others, of course disagree.

Some of the critics merely want him to stop protesting in this manner. Others such as Trump, go beyond this and engage in a classic reply to those who criticize America: if you do not like how things are, then leave the country.

On the one hand, it could be argued that is a reasonable response. To use an analogy, if a person does not like their marriage or neighborhood, then leaving would be a good idea. Likewise, if a person does not like their country, then they should simply depart in search of one more to their liking. This view seems to fit well with the idea that one should be for their country “wrong or right” and not be critical. True patriotism, one might say, is simply accepting one’s country as it is and not engaging in protest. It is, of course, weirdly ironic that Trump is telling Kaepernick to leave, given that Trump relentlessly spews about how awful things are in America and how it needs to be made great again.

On the other hand, this response can be seen as tactic aimed at silencing criticism without considering whether the criticism has merit. Going back to the analogies to marriage and a neighborhood, a person who believes there are problems with either could be justly criticized for simply abandoning them without making any attempt to address what they dislike. A true patriot, it could be argued, would no more remain silent in the face of problems with their country than a true friend would remain silent when their friend needed an intervention. This view is, of course, not original to me. Henry David Thoreau noted that “A very few—as heroes, patriots, martyrs, reformers in the great sense, and men—serve the state with their consciences also, and so necessarily resist it for the most part; and they are commonly treated as enemies by it.” I do not, of course, know Kaepernick’s true motivations. But, his calling attention to the problems of the United States with the expressed desire to improve America can be reasonably regarded as a patriotic act. That is, after all, what a true patriot does: they do not remain silent in the face of evil and defects, they take action to make their country both good and great.


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CSI Overconfidence

Television shows and movies about CSI often seem to present a science fiction version of investigation that involves amazing technology and incredible inferences. While people do get that the almost magical solving of crimes is fiction, there is still considerable overconfidence in many methods used in real investigations. This overconfidence plays a significant role in some of the problems infecting the criminal justice system.

The history of criminal investigation is replete with debunked methods, such as the use of phrenology to diagnose criminal tendencies. There are also technologies that have little or no validity and are not admitted in court, yet enjoy some public confidence (such as lie detectors). There are also methods that might have some value in investigations, yet are the subject of unwarranted overconfidence in their efficacy. These include such things as bite mark analysis and fiber analysis. Other methods are reasonable useful, such as fingerprints, yet are still often accepted with an unwarranted level of confidence—especially in situations where the defendant has an ill-prepared and overworked public defender. Defendants of means or fame can, of course, purchase a better sort of justice.

In contrast with the above methods, DNA identification strikes many as a silver bullet. After all, aside from identical twins (or clones), no two people have the same DNA. This would seem to make the presence of a person’s DNA at a crime scene extremely good evidence for their involvement.

While such evidence is valuable, it is rather important to consider the limitations of and problems with this method. Contamination and transference should always be given due consideration because DNA can travel quite far. This can be illustrated with an example involving my husky.

Like all huskies, my husky generates an incredible amount of fur and this fur gets onto everything and everyone. The fur is thus transported from my house to various points around the world—I know for a fact that her fur is now in at least five states—although she has not left Florida. As such, if fur sampling was used to determine what dogs had been present, she could show up as being present in many, many locations that she did not visit. The same also holds true for humans. While humans do not shed like huskies, humans do shed hair and this can get onto people and objects that could end up in crime scenes. For example, if Sally wears a hat and it ends up in someone else’s possession, that hat will almost certainly still have Sally’s DNA on it. So, if the hat is found at a crime scene, Sally’s DNA will be found there as well, which could be trouble for Sally.

These concerns do not show that DNA testing should not be used; rather they show that is wise to maintain a degree of healthy skepticism in the face of such evidence. It also shows the importance of informing law enforcement, judges, juries and lawyers about the limitations of methods This assumes, of course, that those involved (have the time to) care about justice—which is not always the case in the criminal justice system. There is also the concern, as noted above, that the quality of a person’s defense is a function of their available resources (be they money or fame). These are, of course, concerns that go far beyond worries about particular methods.

It can be objected that educating people about the limits of such methods could create a skepticism that might undermine convictions. For example, that the possibility of “wandering DNA” could be used to create unwarranted doubt, thus allowing the guilty to go free. A skilled and well paid lawyer could exploit such doubts quite effectively and allow a lawbreaker to go free—thus preventing justice from being done.

This concern is reasonable; while overconfidence is problematic, so is under-confidence. However, the United States’ criminal justice system is supposed to operate on a presumption of innocence: it is better to err on allowing the guilty to go free than to err towards punishing the innocent. As such, the greater mistake would be overconfidence in a method. However, there is the concern that these doubts would be exploited by those who have the resources to purchase an effective defense, while the less fortunate would not benefit from them. But, as has been noted, this is a general problem with America’s pay-to-play legal system.

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Fear of Immigrants & Refugees

English: Immigrants entering the United States...

Though the United States prides itself as being a nation of immigrants and the home of the brave, base appeals to the fear of immigrants and refugees has become a stock political tool. The use of this tool is, of course, neither new nor limited to the United States.

To be fair, there is some legitimacy to the fear expressed towards allowing in immigrants and refugees. This is because almost any large group of people will contain a certain percentage of potential murderers, rapists, thieves and terrorists. As such, allowing a significant number of people into a country will almost certainly result in some increase in misdeeds. Thus, it is not untrue to say that allowing in immigrants and refugees would increase the dangers faced by the citizens of a country.

While demagogues and pundits generally do not operate on the basis of consistently applied principles, restricting immigrants and refugees can be justified by using a principle. In this case, the principle would be that people should be banned from entering a country if their arrival would result in an increase in the dangers faced by the current citizens of that country. Since allowing a significant number of refugees and immigrants would almost certainly allow in at least some who would do harm, then this principle justifies such restrictions. While this does allow for a principled basis for restriction, it runs into an interesting problem if it is applied consistently. This sort of consistency problem is a common one—which is why demagogues and pundits generally loath and avoid consistency. This specific consistency problem is as follows.

Every country faces waves of immigrants that arrive unregulated and unchecked. While most of them are not a threat, a percentage of them engage in harmful acts ranging from minor thefts to mass shootings. Oddly enough, no politician has the courage to propose restrictions on these invaders and many actually encourage the arrival of more of these potential threats. I am, of course, speaking of immigrants from the womb. Each new generation includes a certain percentage of potential murderers, rapists, thieves and terrorists and thus presents a clear and present danger to the current citizens of the country. Using the same reasoning that justifies keeping out immigrants and refugees (that a certain percentage could present a threat), these invaders should be kept out of the country.

This suggestion should, of course, be greeted with snorts of derision and mockery: it would be absurd to impose a ban on such arrivals merely because some small percentage will become dangerous to the current citizens. The challenge is to reject restrictions on births despite the risk of allowing new potential criminals and terrorists to enter the country while insisting harsh restrictions or bans on immigrants and refugees on the basis of the slight risk they present is acceptable.

The most obvious approach is to point out that the potential rapists and terrorists who are born here are children of existing citizens and thus different from refugees and immigrants from other countries. This seems a bit unfair—where a person is born is entirely a matter of chance and is completely unearned. We do not, after all, earn or select our parents. Thus, restricting immigrants and refugees because some small percentage will present a threat while allowing unrestricted reproduction that will produce people that will present a threat seems to be grounded only in the vagaries of chance. If there is great concern about the threat presented by incoming people, then that threat must be addressed using the same standards on the pain of inconsistency.

It could be countered that immigrants and refugees present a greater threat: the percentage of murders, rapists and terrorists is higher among the vetted and reviewed immigrants than among Americans born here. However, this is clearly not the case. This should come as no surprise, given that the immigrants and refugees are vetted and checked very thoroughly by the United States. It is true, of course, that the system is not perfect—so some will slip through.

I might, at this point, be accused of wanting to impose restrictions on reproduction. This is not the case. My point is, rather, to show that the idea of putting harsh restrictions or imposing complete bans on immigrants and refugees because some tiny percentage might turn out to cause harm is as absurd as restricting or banning reproduction becomes some children will certainly grow up to be criminals or terrorists. This is not to say that there should not be screening of immigrants and refugees; there should be. After all, we generate so many domestic criminals and terrorists that it is sensible to try to avoid needlessly and carelessly importing more.


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The DNC & Fairness

U.S. Senator Bernie Sanders of Vermont

Thanks to WikiLeaks (and possibly Russia) the Democratic National Committee’s formerly secret emails are now publicly available. As should surprise no one, the emails show that the DNC looked down on Sanders and suggest that the leadership unfairly favored Hillary Clinton. The main fallout from the leak has been the resignation of Debbie Wasserman Shultz. Shultz, who represents my adopted state of Florida, is also facing a challenger to her position—a challenger endorsed by Bernie Sanders. These revelations do raise some important concerns.

While the Democratic and Republican parties are often wrongly seen as being part of the government, they are private organizations. As such, they operate by their own rules. They are also, obviously, political parties and that means that political dealing is what they do. As such, it could be argued that the partisanship and mockery of the DNC, though certainly worthy of condemnation, are well within the bounds of legitimate behavior for such an entity. After all, most of the Republican party leadership was vehemently opposed to Trump and there was extensive maneuvering to stop Trump. It is, however, to the credit of the Republicans that they conducted their opposition in the open and to Trump’s face rather than via electronic whispering in the digital shadows.

While the DNC did not do anything illegal (as far as is known now), the emails do indicate behavior that should be morally condemned. This, of course, rests on the assumption that the party machinery of the DNC should remain professional and neutral during the primary season. This is, in turn, based on the assumption that the primary process should (as Trump and Bernie both contended) be democratic and based on majority rule in selecting the candidate.

This view can be countered by arguing that the DNC (and the RNC) has purpose other than ensuring majority rule. One might be to select the candidate that has the best chance of winning, regardless of how the people vote. Another might be to select the candidate that matches the goals of the party elite. There are, of course, other possibilities.

My view, which could be quite wrong, is that the DNC and RNC should serve as neutral organizers for the decision making process on the part of the voters. That is, they should (in this very specific context) function in a way analogous to the state run election process and ensure a fair and accurate vote. This is the approach that most matches the democratic ideal.

The emails seem to indicate that the DNC did not take a neutral stance. However, it is not clear if this expressed bias had a significant impact on the outcome. That is, that Sanders would have been the candidate but for the shenanigans of the DNC. On the one hand, it can be argued that Hillary beat Bernie by such a wide margin that the alleged machinations of the DNC were not significant. On the other hand, it could be argued that Bernie was close enough to Hillary that he could have won but for these alleged machinations. If the DNC’s bias did keep Bernie from the nomination, then it could be argued that they interfered with the will of the people, thus potentially making Hillary an illegitimate candidate. This could be countered by arguing that even if the DNC sided with Hillary, the voters still picked her—thus making her legitimate, albeit a bit shady.

Even if the DNC’s alleged bias did not change the outcome (that is, Hillary would have been nominated under the auspices of a neutral DNC), such bias is still problematic. This can be illustrated by using two analogies. First, imagine a hiring committee that has been tasked with selecting a philosophy professor. Even if a biased committee selects the same candidate that a neutral committee would have selected, professional ethics requires that the committee be neutral. Second, consider a football game. Even if biased refereeing still results in a victory by the team that would have won under neutral refereeing, the bias on the part of the referees would still be morally unacceptable.

These analogies can certainly be countered—after all, hiring committees and referees are supposed to be neutral parties while the DNC can be regarded as an interested participant in the process (this takes the matter back to the purpose of the DNC in regards to primaries). If the DNC is looked at as being analogous to a coach rather than a referee, its job would be to get the best players in the game to go up against the opposing team rather than being concerned with neutrality and fairness. So, it comes down to the proper purpose of the DNC (and RNC).

As a closing point, the relevant people in DNC made two classic mistakes. The first was engaging in what seems to be reprehensible and unprofessional behavior. This is a moral flaw. The second was to engage in this behavior via email. This is a flaw in intelligence: using email is like sending a postcard—whatever is on it can be read. Also, they should have known that any target worth hacking will be hacked. If one wants to be shady and smart, then do not write down the evil plans. Better yet, don’t be shady.


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Politics & Plagiarism

English: Melania Trump at the QVC Red Carpet S...

During the 2016 Republican National Convention Melania Trump delivered a speech that plagiarized the speech given by Michelle Obama at the Democratic National Convention in 2008. As always, the responses tended to correspond with ideology: the left largely condemned and mocked it; some on the right downplayed and even defended it. As a professor and an author, I condemn plagiarism and have a few students fail themselves each year by doing what Melania’s speechwriter did. I do not fail students; I merely record their failure.

After my initial mild condemnation of the plagiarism, I came to what is an obvious realization: almost all political speeches are acts of plagiarism. I am not claiming that the vast majority of speechwriters are stealing the words and ideas of others; the plagiarism is of a different sort and this will be clear with a bit of explanation. Put a bit roughly, plagiarism occurs when someone tries to claim that substantial words and ideas are their own when they actually belong to another. By this simplistic definition, when a politician (or spouse) delivers a political speech that was written by someone else as if they were presenting their own words and ideas, then they are plagiarizing. Unless, of course, they engage in proper citation practices. As such, Melania Trump was engaged in double plagiarism: trying to pass off as her own the words stolen from Michelle Obama’s speech by the speechwriter.

An obvious reply to my assertion is that nearly all politicians have speechwriters and the commonness of the practice thus makes it acceptable. This is, obviously enough, the classic fallacy of appeal to common practice: the mere fact that something is commonly done does not make it right. It is, however, fair to point out that if nearly all politicians engage in this practice, then it follows that it would be unfair to single out any particular politician for special criticism.

Another, and better, reply is that speechwriters merely assist the politician in presenting their ideas and words. To use the obvious analogy, when the editors suggest changes to my writing and I follow them, I am not plagiarizing from the editors—this is a legitimate and proper part of the writing process. To use another analogy, if a student goes to a university writing center and gets assistance with improving their paper, that is not plagiarism.  Likewise, if a politician has others edit their speech, then that is also legitimate.

This is a point both fair and just, provided that the speechwriters are actually speech editors who assist the politician in crafting their speech. While there is considerable gray area between assistance and plagiarism, there is also a clear zone of plagiarism—the most obvious being a speech written entirely by another. While I cannot draw a clear line that would apply in all cases, a sensible consideration of amount contributed by the alleged author can resolve questions about plagiarism.

While plagiarism is condemned in academics and copyright violations are illegal, it might be claimed that it does not really matter that politicians almost never write their own speeches. After all, only the most naïve or ignorant would think that the words a politician reads from a teleprompter or paper are their own. However, I contend that it does matter and especially matters when a politician is running for office. I will focus on that specific scenario in the discussion that follows.

In theory, one point of a speech by a political candidate is to inform the voters of their views, ideas and policies. As such, the politician should write their speech, Otherwise, the politician is like an actor in a commercial who is endeavoring to sell someone else’s product using a script written by another. This can be countered by contending that a person could have excellent ideas and policies, yet lack the writing skills to craft an effective speech—thus the need for speechwriters.

While I would certainly put an “F” on a paper written this way, it does seem acceptable in the case of politics. To use an analogy, if a skilled doctor who was a poor communicator had her more eloquent assistant explain things to me, then there would be no problem: what matters is not who crafts the exact words, but the information behind them.

That said, there is more to a campaign speech than just putting forth ideas—it also supposed to reveal more about the politician such as wit, skill and character. While it is obviously true that the audience does get to see the politician’s skill at delivering words and timing, this merely reveals the politician’s skill as an actor and orator if the words are not their own. This creates the Cyrano de Bergerac problem: the voters are won over by the fine words of the writer, yet think they “love” the person speaking them. The voters are not, as Trump would rightly say, getting authenticity—they are getting an actor mouthing the words of another. Thus, when a politician reads a speech written by another, voters learn about the actor’s skills and not the actual person.

Some might counter this view by pointing out that what matters is actions—what a person does. After all, a politician could be a skilled writer, yet awful at the job. This is certainly a reasonable point: no one should be judged by words alone (especially when the words are not their own). It is also reasonable to point out that reading a prepared speech is relatively easy—the real challenge lies in a Socratic engagement. This is something that the vast majority of politicians are loath to do for they know how it would go for them. This is why the presidential debates in the United States are not actual debates—just people giving short speeches that have probably been pre-written for them. What, in general, the voters see is a spokesperson for a product that is themselves spewing advertising copy written by someone else. So, the voters have no clear idea of what they are actually buying.


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The Ethics of Trump Denial

speaking at CPAC in Washington D.C. on Februar...

Brian Ballsun-Stanton suggested that I address the question of whether or not it would be legitimate to deny Trump the nomination and to do so in the context of the article by Conor Friedersdorf of the Atlantic. In the course of raising question, Friedersdorf presented three stock positions and I will consider each in turn.

The first option is grounded in a basic principle of democracy, majority rule. Since Trump won the majority of the votes, he has earned the nomination. John Locke laid out the justification for this, which is quite reasonable: in a democracy, majority rule needs to be accepted to avoid destroying society. If the numerical minority refuses to accept the decision of the numerical majority, then the social system would be torn to pieces and, as Locke claimed, social systems are not formed to be torn asunder.

One obvious counter to this view is to point out that while Trump won the majority of the votes and delegates, only a small percentage of Republicans actually voted in the primaries. As such, Trump is not really the choice of the majority of the Republicans and denying him the nomination would be acceptable.

While this counter has some appeal, the easy reply is that voting is like running a race: it does not matter who might win based on who might show up; winning is a matter of who actually shows up. As such, since Trump won the majority, he is entitled to the nomination.

Accepting majority rule does leave open the possibility of Trump not getting the nomination—provided that the process is taken to include the voting of the delegates at the convention. This leads to the second option, that of the delegates voting the conscience and possibly against Trump.

Broadly speaking, there are two ways to look at the obligation of convention delegates. One is that they are obligated to vote based on who won them as delegates (at least on the first vote). The foundation for this obligation is the acceptance of the rules of the process—that is, the participants agreed with the rules and are now bound by them because of their agreement. To use a sports analogy, if one team is winning under the rules of the game and the results are not pleasing to the other team, then this hardly gives then the right to start changing the rules that everyone accepted. However, there are many cautionary tales of simply following the rules just because they are rules—there remains the question of whether the rules are good or not.

The other view of the obligation is that the delegates are not automatons—each, as Henry David Thoreau would say, has a conscience. As Jiminy Cricket said, they should let their conscience be their guide. On the positive side, a person’s conscience can play a critical rule in distinguishing good rules from bad. On the negative side, a person’s conscience can be in error. While there is often the assumption that the conscience is a reliable indicator of right and wrong, a person can have a bad conscience. This leads to a serious problem: if one uses his conscience to judge the rightness of rules, then what does the person use to assess the correctness of his conscience? One possible answer to this is the utilitarian/consequentialist approach—weighing the likely costs and benefits of an action to determine whether it is right or wrong.

In the case of Trump, one utilitarian calculation involves weighing harms and benefits of denying Trump the nomination he has earned in accord with the established rules. This would mostly be a calculation within the confines of the Republican party rather than in terms of the entire country. My inclination is that denying Trump the nomination would have profoundly negative consequences for the Republican party as an institution. As many others have noted, denying Trump the nomination would be rightly perceived as breaking the rules and a betrayal of the voters. This, of course, could be seen as a benefit for those who are opposed to this party.

A second utilitarian calculation involves weighing the harms and benefits of denying Trump the nomination in the context of the entire country (or perhaps even the world). Trump has no experience in political office, seems to lack interest in the complexities of political positions, has little concern about truth, and there are grave concerns about his ethics. As such, a solid case could be made on utilitarian grounds for denying him the nomination—assuming that his replacement would be better for the country. Hillary Clinton must also be considered in these calculations—would it be better or worse for the country if she ran against Trump rather than someone else? As I see it, Trump would be worse than Hillary Clinton; but there are presumably Republicans that would be better than her. If so, a utilitarian approach would seem to point towards the delegates nominating a candidate that is better than Trump and Hillary and who could beat Hillary. At this point, it seems unlikely that such a candidate could be found—then again, there are still months to go before the election.

In closing, my position is that Trump won the nomination and is thus morally entitled to it; that is the way the process works and it would be unjust to betray the voters and Trump. However, I think that people should not vote for Trump in the general election.


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English: NRA (National Recovery Administration...

Put a bit simply, a silencer is a device attached to a gun for the purpose of suppressing the sound it makes. This is usually done to avoid drawing attention to the shooter. This makes an excellent analogy for what happens to proposals for gun regulation: the sound is quickly suppressed so as to ensure that attention moves on to something new.

Part of this suppression is deliberate. After each mass shooting, the NRA and other similar groups step up pressure on the politicians they influence to ensure that new regulations are delayed, defeated or defanged. While it is tempting to cast the NRA as a nefarious player that subverts democracy, the truth seems to be that the NRA has mastered the democratic process: it organizes and guides very motivated citizens to give money (which is used to lobby politicians) and to contact their representatives in the government. This has proven vastly more effective than protests, sit-ins and drum circles. While it is true that the NRA represents but a fraction of the population, politics is rather like any sport: you have to participate to win. While most citizens do not even bother to vote, NRA member turnout is apparently quite good—thus they gain influence by voting. This is, of course, democracy. Naturally, another tale could be told of the NRA and its power and influence. A tale that presents the NRA and its members as subverting the will of the majority.

Certain pundits and politicians also engage in suppression. One standard tactic is, after a shooting, to claim that it is “too soon” to engage in discussion and lawmaking. Rather, the appropriate response involves moments of silence and prayer. While it is appropriate to pay respects to the wounded and dead, there is a difference between doing this and trying to run out the clock with this delaying tactic. Those that use it know quite well that if the discussion can be delayed, interest will fade and along with it the chances of any action being taken.

It is, in fact, appropriate to take action as soon as possible. To use the obvious analogy, if a fire is ravaging through a neighborhood, then the time to put out that fire is now. This way there will be less need of moments of silence and prayers for victims.

Another stock tactic is to accuse those proposing gun regulation of playing politics and exploiting the tragedy for political points or to advance an agenda. This approach can have some moral merit—if a person is engaged in a Machiavellian exploitation of some awful event (be it a mass shooting, a terrorist attack or a wave of food poisoning) without any real concern for the suffering of others, then that person would be morally awful. That said, the person could still be acting rightly, albeit for all the wrong reasons. This would be in terms of the consequences, which could be quite good despite the problematic motivations. For example, if a politician cynically exploited the harm inflicted by lead contaminated water in order to gain national attention, then that person would hardly be a good person. However, if this resulted in changes that significantly reduced lead poisoning in the United States, then consequences would certainly seem good and desirable.

It is also worth considering that using an awful event to motivate change for the better could result from laudable motives and a recognition of how human psychology generally works. To use an analogy, a person who loves someone who just suffered from a lifestyle inflicted heart attack could use that event to get the person to change her lifestyle and do so for commendable reasons. After all, people are most likely to do something when an awful event is fresh in their minds; hence this is actually the ideal time to address a problem—which leads to the final part of the discussion.

Although active suppression can be an effective tactic, it often relies on the fact that interest in a matter fades as time passes—this is why those opposed to new gun regulation use delaying tactics. They know that public attention will shift and fade.

On the one hand, the human tendency to lose interest can be regarded as a bad thing. As Merlin said in Excalibur, “for it is the doom of men that they forget.” In the case of mass shootings and gun violence, people quickly forget an incident—at least until another incident reminds them. This allows a problem to persist and is why action needs to be taken as soon as possible.

On the other hand, our forgetting is often our salvation. If the memory of fear and pain did not fade over time, they would be as wounds that did not heal. Just as a person would bleed to death physically from wounds that never healed, a person would bleed out emotionally if memory did not fade.

To use another analogy, if the mind is like a ship and memory is like a cargo, just as a ship that could never lighten its load would plunge to the ocean floor, a person that could never lighten her emotional load would be dragged into the great abyss of emotions and thus be ruined. Thus, forgetting is both our doom and our salvation. Of course, we would have far less need to forget if we remembered what we need to fix. And fixed it.


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No Fly, No Buy

Departing BFI as BOE008 Heavy

In the wake of the mass shooting in Orlando, there has been a push for the idea of “no fly, no buy.” This is the sound bite slogan for banning people on the No Fly List from buying guns. There are two main versions of this proposal. One, backed by Democrats, is that the No Fly List data would become part of the background check to purchase a firearm and would prevent a person on the list from buying a gun legally. The other, backed by Republicans, gives the government a limited time frame to establish probable cause for banning a person on the list from buying a gun. For the sake of this discussion, I am oversimplifying the fine distinctions between the various lists. Fortunately, the general discussion does not require such fine distinctions.

Both parties agree with the fundamental justification for the proposal: guns should be kept out of the hands of terrorists. This is often described in the media as a “no brainer.” While I agree that it is best if terrorists do not have guns, this justification is something of a deceit: being on the No Fly List is not the same as being a terrorist. Rather, being on the list means that a person (might be) suspected of having some connection to terrorism. To use the obvious analogy, it is a “no brainer” to want to keep guns out of the hands of criminals—but it is another matter to want to keep guns out of the hands of people who are suspected of maybe having some connection to crime. As such, the “keeping guns out of the hands of terrorists” is a rhetorical point that has a very limited connection to the actual facts. This leads to my concerns about using the No Fly List as a no-buy list.

The first point of concern, one shared by the ACLU, is that the No Fly List seems to be poorly managed. The reason this is a problem is that a person can end up on the list who actually has no connection to terrorism at all. Since the program is secret, the mechanics of ending up on the list are known only to a few—but it has been clearly established that the list is “riddled with errors.” Using such a flawed list is clearly problematic. This could, of course, be addressed by improving list management.

The second point of concern, also shared by the ACLU, is that the No Fly List seems to be a clear violation of the right to due process. As such, the list itself seems to be unconstitutional. It was, of course, accepted as part of the grand sacrifice of rights to the delusion and illusion of security following 9/11. Unfortunately, the fires of fear are relentlessly stoked, making addressing these violations unlikely. Obviously enough, using an unconstitutional process as the basis for forbidding people from buying guns is problematic. This could be addressed by revising the process to follow due process or amending the constitution to change due process.

The third point of concern is that the current interpretation of the Second Amendment is as an individual right to keep and bear arms. A look back at the history of the Second Amendment shows that this has not always been the case; but what matters legally is the current interpretation. Given that the No Fly List is flawed and seems to be unconstitutional, to deny a person his Second Amendment rights on such a basis would be unacceptable. To use an analogy, imagine that in addition to “no fly, no buy” there was a proposal for “no seating, no tweeting.” On this proposal, people on the No Fly List would be banned from exercising their First Amendment right to free speech. This would be absurd. By parity of reasoning, using the list to violate the Second Amendment right would be just as absurd.

It could be objected that the danger presented by guns is far greater than the danger presented by words. While this does have some appeal, the saying “the pen is mightier than the sword” exists for a reason. While it is true that guns can kill, words have great power—after all, when people discuss terrorism they often focus on the process of radicalization—and expression (propaganda in various forms) is a large part of this. There is also the fact that, once again, being on the No Fly List is not the same as being an actual terrorist—so a person’s rights would be denied on the basis of an unreliable violation of due process.

It could be objected that there should not be an individual right to keep and bear arms. That is, the Second Amendment should be repealed or reinterpreted. While this could be done, it does not address the actual issue at hand. After all, the issue is not about what the Second Amendment should be, but about whether or not the “no fly, no buy” proposal is a good one or not. If no one could buy, then the “no buy” would make “no fly, no buy” pointless.

Another objection is the “low impact” counter. This is a general tactic in which it is argued that a proposal is acceptable because it would not really have much of an impact. In the case of “no fly, no buy”, people point to the fact that of the 192,956,397 background checks between February 2004 and May, 2016 there have been 2,477 matches with a watch list and only 212 denied transactions. As such, the argument goes, there should be no real objection to “no fly, no buy” because it will almost certainly have a miniscule impact on citizens.

There are two easy and obvious replies to the “low impact” counter. The first is that just because a policy is likely to have low impact, it does not follow that it is thus acceptable. As argued above, the “no fly, no buy” proposal is highly problematic and the fact that it will not deny too many people their rights is hardly good grounds for accepting it.

The second is that the “low impact” shows that the proposal will not be very effective at achieving the results that are supposed to motivate its acceptance. To be specific, the proposal would seem to have little or no impact on gun violence in the United States. As it stands, it seems that there have been no mass shootings that would have been prevented by “no fly, no buy.” While the Orlando shooter was on a list, he was removed—so the proposal would not have prevented that shooting. Unless, of course, there was also a proposal passed into law that would prevent people from being removed from the list or imposing a permanent gun buying ban on anyone who is ever on the list. These would certainly be problematic.

Overall, “no fly, no buy” seems to be a case of political theater—the illusion of trying to address a very real problem in a way that actually fails to address that problem while also violating rights. As such, I am against “no fly, no buy.”


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Guns & Negligence

Remington Arms

After each mass shooting in America, there is a push to do something about gun violence. After the slaughter at Sandy Hook Elementary School, some family members of the victims brought a lawsuit against Remington Arms. Remington manufactured the Bushmaster rifle used by the shooter. The lawsuit also includes Camfour (a firearm distributor) and Riverview Gun Sales (which sold the gun).

On the face of it, the case would seem to have no legal merit—the main reason being the 2005 Protection of Lawful Commerce in Arms Act, a 2005 federal law. This law serves as a protection for liability in regards to the legal sales of firearms. While what a law means amounts to the opinions of the adjudicators and enforcers, there would seem to be little grounds for a lawsuit in this case: a legal product, the Bushmaster, was manufactured, distributed and sold in accord with the laws. The only criminal activity was on the part of the shooter.

Interestingly, the case seems to be going forward. The attorney for the victims’ families, Joshua Koskoff, has contended that there is a legal foundation for the case. To be specific, he claims that the “negligent entrustment” exception of the Protection of Lawful Commerce in Arms Act and the Connecticut Unfair Trade Practices Act provide the opening needed.

One clear problem with using the negligent entrustment exception is that it seems to have been clearly intended for cases in which a gun is sold to a person who is threatening to do harm to others or visibly intoxicated. The situation in question does not meet this condition: the person who legally purchased the weapon was neither intoxicated nor threatening others.

Koskoff is taking an intriguing approach to the matter. He is not claiming that the person who bought the weapon was intoxicated or threatening; instead he is trying a rather different tactic.

His line of reasoning begins with the assertion that the semiautomatic AR-15 type rifles (the Bushmaster is one specific version) are essentially the same as the burst fire M-16 military rifle. His next step was to assert that, “It was Remington’s choice to entrust the most notorious military American killing machine to the public and to continue doing so in the face of mounting evidence of its association with mass murder of innocent civilians.”

One way to look at the argument is that Remington and the others were negligent because they were well aware that these weapons are dangerous and, more specifically, that they are linked to mass shootings. The obvious concern with this sort of reasoning is that it would seem to lay the foundation for a very broad principle of negligence. Under such a principle, anyone who manufactured or sold a product that has been used to create significant harm would be liable, to a degree, for that harm. Computer manufacturers could, for example, be held liable for hacking, phishing and other computer based crimes. As another example, alcohol manufacturers could be held accountable for crimes committed by drunks. As an extreme example, the manufacturers of the planes used on 9/11 could be taken as liable for the misuse of their products. This all seems absurd: manufacturers, distributors and sellers have little (or no) control over the use of their products and hence they cannot be held accountable. There are, of course exceptions—such as liability for selling drinks to someone already drunk. Obviously, the matter is quite different when people are harmed by defects or other problems with the products—the manufacturer is, for example, morally responsible for hazards presented by automobile ignitions that fail.  This leads to a second possible interpretation of the argument.

Koskoff could also be taking as advancing the notion that the negligence arose not simply because the product has been misused by some to create significant harm, but that the product is so dangerous that allowing it to be sold at all constitutes negligence. While this might seem similar to the first interpretation, they are actually quite different. To illustrate this, consider the case of the computer. Under the first principle (that of potential misuse), making and selling computers could be seen as negligent because they are often used in various crimes. Under this principle (that of inherent danger), making and selling computers would not be seen as negligent because they are not inherently harmful (this could, of course, be argued). One way to view the danger is in terms of a defective product. However, the concern is not that the guns are defective—rather, the worry is that they work all too well. A more plausible approach would be that the harm arises not from any defect in the product, but from the product itself when it is working properly and used correctly. On this view, manufacturing, distributing and selling AR-15 style weapons would be analogous to making, distributing a lighting system that illuminated an area via dangerous radiation: it would be working as designed and defect free, yet would be a harmful product. The challenge would be, of course, to show that the weapons are inherently harmful to a degree that to manufacture, distribute and sell them would constitute negligence.

While I am not a lawyer, I Koskoff faces an “upmountain” battle. Even if his argument worked and showed that such guns are inherently dangerous to the public, the fact remains that the gun used in the shooting was manufactured, distributed and sold legally. As such, while this sort of argument would support the assertion that it should be made illegal to manufacture, distribute and sell such weapons, it does not support the claim of legal negligence on the part of the defendants: they fulfilled all their legal obligations. Naturally, the question of whether they were morally negligent or not is another issue.


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Gun Control

Colt AR-15 Sporter SP1 Carbine

The June, 2016 mass shooting in Orlando has thrown gasoline on the political fire of gun control. While people on the left and right both agree that mass shootings should be prevented, they disagree about what steps should be taken to reduce the chances that another one will occur.

As would be expected, people on the left (and broad center) favor efforts focused on guns. While this is normally called “gun control”, this is a phrase that should no longer be used. This is not as a matter of duplicity, to present proposals under a false guise. Rather, this is because “gun control” has become so emotionally charged that the use of the phrase interferes with a rational discussion of proposals. If a proposal is labeled as “gun control”, this will tend to trigger immediate opposition from people who might otherwise support a specific proposal, such as one aimed precisely at preventing criminals and potential terrorists from acquiring guns.

Coming up with a new phrase might be problematic. “Gun safety” is already taken and deals with the safe handling of weapons. “Gun regulation” is a possibility, but “regulation” has become an emotional trigger word as well. The phrase should certainly not be a euphemism or sugar coated—doing so would certainly open the usage up to a charge of duplicity. Since I do not have a good enough phrase, I will continue to use the loaded “gun control” and hope that the reader is not too influenced by the connotation of the phrase.

Positions on gun control are largely set by emotions rather than a logical analysis of the matter. In my case, I am emotionally pro-gun. This is because, as a boy in Maine, I grew up with guns. All my gun experiences are positive: hunting with my dad and target shooting with friends. I am well aware that guns are lethal, but I have no more fear of guns than I have of other lethal machines, such as automobiles and table saws. No close friend or relative has been a victim of gun violence. Fortunately, I have enough empathy that I can feel for people who loath guns because of some awful experience. But, as with all complicated problems, one cannot feel a way to a solution. This requires rational thought.

Being a professional philosopher, I have some skill at considering the matter of gun control in rational terms. While there are many possible approaches to gun control, there are currently to main proposals. As is always the case, these proposals are arising from the specifics of the latest incident rather than a broad consideration of the general problem of gun violence.

The first type of proposal involves banning people on the no fly list from purchasing guns. This has been proposed because of the belief that the Orlando shooter was on this list and if this proposal had been enacted, then the shooting would have not taken place. On the face of it, this seems to make sense: people who are evaluated as too much of a threat to fly would seem to also be too much of a threat to buy guns. There are, however, a few problems with this proposal. The first is that the no fly list has been a mess, with people ending up on the list who should not be there. This can be addressed by improving the quality of list management—though there will always be mistakes. The second problem is a matter of rights. While there is no constitutional right to fly, there is the Second Amendment and banning a person from buying guns because they have been put on such a list is certainly problematic. It could be countered that felons and mentally incompetent people are denied the right to buy guns, so it is no more problematic to ban potential terrorists. The problem is, however, that a person can end up on the no fly list without going through much in the way of due process. That is, a basic constitutional right can be denied far too easily. This can, of course, be addressed by making the process of being on the list more robust or developing an alternative list with stricter requirements and far better management. There would still be the legitimate concern about denying people a right on the basis of suspicion of what they might do rather than as a response to what they have actually done. There is also the fact that the overwhelming majority of gun violence in the United States is committed by people who are not on that list. So, this proposal would have rather limited impact.

The second type of proposal is a return to the ban on assault weapons and high capacity clips (what a friend of mine calls “the ‘scary gun’ ban”). This proposal is based on the belief that if only the Orlando shooter had not been able to acquire a semiautomatic assault rifle and high capacity clips, then the casualties would have been far less.

For those not familiar with weapons, a semiautomatic fires one round with each pull of the trigger and will do so until the magazine is exhausted. Each shot “cocks” the gun again, allowing rapid fire. This is in contrast with, for example, a bolt, pump or lever action weapon. These weapons require the operator to manually move a round from the magazine to the chamber for each shot. These weapons fire considerably slower than semiautomatics, although a skilled user can still fire quite rapidly. There are also weapons that fire in bursts (firing a certain number of rounds with each trigger pull) and those that are fully automatic (firing for as long as the trigger is held and ammunition remains).

While many people believe otherwise, it is often perfectly legal to buy an automatic weapon—a person just has to go through a fairly complicated process including a thorough background check. I know people who own such weapons—legally and above board. The strict process of acquisition and high cost of such weapons generally keeps them out of hands of most people. As such, this could serve as a model for placing stronger limitations on other weapons.

While many people fear what are called “assault rifles” because they look scary to them (merely firing one gave timid journalist Gersh Kuntzman PTSD), the appearance of a gun does not determine its lethality. The typical assault rifle fires a 5.56mm round (though some fire the 7.62mm round) and they are less powerful than the typical hunting rifle. This is not surprising: assault rifles were developed to kill medium sized mammals (humans) and many hunting rifles were designed to kill larger mammals (such as moose and bears). While assault rifles are generally not “high powered”, they do suffice to kill people.

Assault rifles are more of a threat than other rifles for two reasons. The first is that the assault rifle is semi-automatic, which allows a far more rapid rate of fire relative to lever, bolt and pump action weapons. The slower a person fires, the slower they kill—thus allowing a greater chance they can be stopped. However, there are also plenty of semiautomatic non-assault rifles, which leads to the second factor, magazine size. Assault rifles of the sort sold to civilians typically have 20 or 30 round magazines, while typical hunting rifle (non-assault) holds far less. Maine, for example, sets a legal magazine limit of 5 rounds (plus one in the chamber) for hunting rifles.

A ban on semiautomatic rifles sales could have an impact on mass shootings, provided that the shooter had to purchase the rifle after the ban and did not already have access to a semiautomatic weapon. While some hunters do prefer semiautomatic weapons, it is possible to hunt as effectively with pump, lever and bolt action weapons. When I went duck hunting, I used a pump shotgun (which I actually prefer, having seen semiautomatic shotguns jam from time to time) and for deer hunting I used a bolt action rifle.

The main impact of such a ban would be that shooters who have to acquire new weapons for their shooting would have weapons with a lower rate of fire. They could still kill many people, but the kill rate would be slower—thus the death toll should be lower in such cases.

A ban on high capacity clips would also have an impact on the kill rate of shooters who have to buy new clips for their mass shooting. If magazines were limited to 10 rounds, a shooter would need to reload more often and reloading time would afford a chance to stop the shooter.

Combining the two bans would mean that shooters who had to acquire new weapons for their mass shooting would be limited to low capacity, slower firing weapons. This could significantly reduce the death toll of future shootings.

As has been noted, these sorts of bans would only affect a shooter who had to acquire a new weapon or clips. Shooters who already have their weapons would not be impacted by the ban. As such, what would be needed would be to remove existing semiautomatic weapons and high capacity clips—something that seems politically impossible in the United States.


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