Category archive

Kip Crofts

Kip Crofts: Rittenhouse Verdict Was Never In Doubt

in Column/Kip Crofts

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

By C.A. “Kip” Crofts, guest columnist
(Former U. S. Attorney, Wyoming)

So, is Kyle Rittenhouse really guilty?

In the past few days countless opinions have been expressed about that.  But only one counts – the verdict by the jury.   

In our Democratic Republic the verdict of a jury of your peers as to whether or not you are guilty of a crime is a sacred right of American citizens.  Many people in the world do not enjoy that right and we should zealously protect it.  That verdict should be the end of the discussion.  

I have tried many criminal trials over the years.   I won most and lost a few.  Generally, I have found myself in perhaps grudging agreement with the verdict even when I lost.   A few times I thought the verdict was wrong.  But never once did I think it appropriate or ethical to take to the press or the airwaves or to social media to express my opinion that the verdict was wrong.  

To do so is inappropriate for all citizens, but I especially think it is inappropriate for important public figures, including President Joe Biden, and especially those who are lawyers, to express such opinions.

I’m not generally a fan of televised criminal trials.  I think too often it encourages lawyers, witnesses, and even the judge (recall Judge Ito in the O.J. Simpson trial?) to ham it up for the public rather than doing their important work.  But in the Rittenhouse case I think it was a valuable lesson for all of us.  

It was that because too often the work of criminal trials is not seen by the public. Trials are normally open, but most people don’t attend, and have to evaluate them based on a few snippets we read in the paper, colored by the bias or perhaps lack of understanding of the reporter.  But the Rittenhouse trial was available for all to see if they wished.  And if they watched it they would have seen that the verdict was clearly correct.  

In fact I found myself wondering why the kid was even charged, but recognized that public opinion can affect such decisions.  It would take a brave prosecutor to decline to charge the case, or a brave judge to dismiss the case after hearing the prosecution’s very weak case.  Both would prefer to let the jury make that call.   

And I’m OK with that – America should, and used to, accept jury verdicts as being their verdict – that of the common people. 

Or I found myself wondering why he was not charged as a juvenile, a naive young man sadly drawn into something he couldn’t pretend to fully understand nor control. Those are the kind of kids that juvenile court is designed for. But once again, charging him as a juvenile, even if justified, would no doubt have brought the same people out to criticize it that we now hear critiquing the jury verdict.  So maybe the trial was inevitable. 

Clearly, he should never have gone to that riot at all, and clearly should not have taken a rifle.   But that bad judgment does not make him guilty of murder.   Too many in the media conversation who misunderstand the law of self-defense say, “But he was the first one to be an aggressor, from the moment he showed up with a gun.”  But that is not what the law says.  You must, as the jury was instructed, look closely at the moments before the application of deadly force to see who was the aggressor.  

President Biden obviously was not one of those glued to the TV and watching the trial, including much of the prosecution case that made it clear the young man was being assaulted by the people he killed or wounded, because the President said, not only that, “We must acknowledge that the jury has spoken,” but also unfortunately said, “the verdict in Kenosha will leave many Americans feeling angry and concerned, myself included…”   

That last phrase was unnecessary and, in my view, totally inappropriate for a President who has such a huge pulpit, and a lawyer who should know better.   Do you suppose the Connecticut Bar Association will censure him for that statement?

You are not automatically an aggressor, not entitled to claim self-defense, just because you choose to be armed.  Being armed was his right and no one had legal justification to attack or even to confront him solely on that basis.  

Sadly enough, in cases having nothing to do with this one, some police officers themselves don’t understand that either, and think they are entitled to kill someone merely because he is armed, especially with a gun.   There must be more than mere possession of a gun- evidence of an intent to inflict death or bodily harm upon someone.  

In almost all States it is perfectly lawful for anyone to be armed with a gun, and no one should think that fact alone justifies a confrontation or attack upon them.  That is why the judge dismissed the charge that Rittenhouse unlawfully possessed the rifle from the start.  I have no idea why that charge was even brought.

So, is anyone guilty for what happened that night in Kenosha?  

Yes.   The public figures, elected officials, whose duty it is to maintain the peace and security of all citizens and who did not do so are guilty.  The Governor failed to send sufficient resources to maintain calm, probably for political reasons because that would make it look like he was agreeing with President Donald Trump that these riots should have been suppressed.   

Also guilty are the many politicians, media commentators, celebrities and others who fail to understand the difference between a “protest” and a violent “riot” and spent the summer making public statements in support of this and other riots.  Some of them even helped post bail for arrested rioters.   

Remember when Chris Cuomo of CNN said, “Please show me where it says that protests have to be polite and peaceful.”  Well, Chris, it says it in the First Amendment to our Constitution, where it gives the people the right to “peaceably assemble, and to petition the Government for a redress of grievances.”   You would think that media people, whose very profession is enabled by the freedom of the press also given in the First Amendment might read the rest of it!

When have violent riots accomplished anything but the destruction of property, and occasionally the lives of people, usually innocent people who have nothing to do with the grievances supposedly underlying the riot?  We burned Detroit, we burned Watts, we have been doing this for many years, and is anyone better off for it?  What about the brown-skinned immigrant in Kenosha who had his car lot destroyed?  Did he deserve that?  Did that act accomplish any good for anyone?  Why would anyone but a psychopath publicly support such riots?   Are we encouraging more now with all of the stupid comments being made about the Rittenhouse verdict?  Is that what those people want – to simply destroy as much as they can and hope something better will arise from the hot ashes?

There may be other unintentional consequences of what we now do in this country with all the issues surrounding this trial.  We have racialized everything, and too many people evaluate every such issue, but especially those having to do with police behavior, through the lens of race.  The truth is most police actions are lawful and proper, but too many are not, and too often those involve black men.  I agree we need to resolve those issues better than we usually do.  It is wrong for the police and others to say the police are always right without knowing the facts.  But it is also wrong to say that if the victim is black, he is always right as well. Each case is different, and each needs to be resolved individually, as with a jury verdict like in this case. 

I worry that what we have done with all of this careless commentary recently is to encourage people to fight or run from the police, knowing that they will be supported if not sainted by the media, politicians, and everyone else with a loud voice.   Sometimes they don’t deserve sainthood, but more important what they really don’t deserve or need is encouragement to do something that may get them killed.  We need justice but we don’t need dead martyrs.   Our country – our justice system, is supposed to work just like it did in the Rittenhouse trial.  We don’t need more riots like the one that triggered this case caused by careless and stupid comments by people who should know better about the verdict.

Kyle Rittenhouse, seventeen years old when he got drawn into that mess, with an innocent if naive motive to help people protect themselves from irrational and violent rioters who were not being controlled by the people who had that responsibility, is not the face of all that is wrong with America today.  

Not even close.  

In the few days since his acquittal he’s been called everything but the grandson of Hitler.   Even President Biden, when this first happened, accused him of being a “white supremacist,” once again without any facts to support his inappropriate commentary on things he knew nothing about.  If people who should know better keep talking this way I fear that someone might try to kill Kyle Rittenhouse.  Is that what those loudmouthed idiots wish to see?

Maybe we ought to leave the kid alone and hold the people who are really responsible to account. 

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

Kip Crofts: Why Would We Not Consider Putting A Tax On Wind And Solar?

in Column/Kip Crofts

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

By C. A. “Kip” Crofts, former US Attorney

I found a recent statewide news story that is perplexing and disturbing.  It described how Senator Cale Case proposed to the Revenue Committee what sounds like a reasonable plan for the State of Wyoming to gain some revenue from alternative energy sources like wind and solar.

  But the Committee voted against the proposal 9-4.  I can’t tell if they failed to explain their “no” votes or if the reporter failed to report that, but I am confused and concerned by that action.  Isn’t the purpose of the “Revenue” committee to find “revenue” for the State?  So, what is their plan?   

Do they intend to just hold stubbornly to our obsolete mineral severance tax and hope that someday the coal industry will be saved?  That ship has sailed and even the coal companies are making alternative plans for energy.

If Wyoming is going to be the source of wind and solar energy for California and other places, to the point where every vacant acre of Wyoming has a wind turbine, a solar farm, or a transmission line, then what is wrong with having those users of our energy pay a significant tax to us in exchange for our giving up our scenic landscapes?  

Already you can hardly find a place in Wyoming where there is not a wind turbine on the horizon.  And one day, when they learn that these energy sources are not economical without government subsidies and tax credits, or when they wear out, we may yet again see bankrupt companies who are unwilling or unable to clean up the mess they leave behind in Wyoming.   

We have seen that already with abandoned wells and mines.  We are such naive fools always looking for some magic solution, and our Legislators seem to be so rabidly “anti-tax” that they are willing to sacrifice our well-being to support that naive position come hell or high water.

Car companies are falling over themselves to convert to electric vehicles, but neither President Biden, Climate Czar John Kerry, the car companies or anyone else seems to be working on a plan to supply all that electric power that will be required, and I fear that once more Wyoming will be seen only as the power source for the rest of the country.  

That’s fine if they pay for it, but the money must not go only to the big power companies.  Wyoming and its people deserve to be paid for enduring that as well from a fair but significant tax structure. 

Next thing President Biden and that angry girl from Sweden will be demanding that Americans give up the central furnaces that heat our homes with natural gas, propane or oil, and convert those to electricity as well. 

Once again, where is all of that electric power going to come from?  Much will come from Wyoming but we won’t get anything for it if these Legislators continue to hide their heads in the coal dust and refuse to insist that we get paid a fair revenue for our huge part in filling this national need.

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

Kip Crofts: Knives, Boots, And Bats Kill More People Each Year Than ‘Assault Rifles’

in Column/Kip Crofts

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

By C.A. “Kip” Crofts, guest columnist
(Former U. S. Attorney, State of Wyoming)

We are in the midst of a rash of mass shootings and, unfortunately the same rash of angry demands for politicians to “do something.”  That, in turn, leads to the same list of gun control proposals that we trot out over and over again. 

Unfortunately, those proposals are usually unconstitutional, unfair because they infringe upon the rights of millions of law-abiding gun owners who have never and will never harm anyone with their guns, but worst of all, they are unworkable and will not accomplish anything. 

The compliant media never asks President Joe Biden, or any other politician or gun control advocate to explain exactly how this or that law will work to accomplish anything.  So, we are left with reams of meaningless but angrily spoken words, and a fair amount of irrational hatred toward gun owners, especially those who happen to own the notorious “assault rifles,”  but nothing that can possibly work.

I am opposed to and dismissive of most of the proposals made by President Biden in his latest rant listing all of those laws he thinks we should pass that will only apply to and inconvenience people who would obey the law anyway, while doing nothing to resolve the problem.  The ban on so-called “assault weapons” that are used in the majority of the mass shootings that make the news has some serious problems with that easy-sounding idea.

The first is that banning this gun, owned by millions of law-abiding Americans who have never and will never use it improperly is almost surely in violation of the Second Amendment that the Supreme Court ruled in the Heller case protected the right of the citizens to own common guns for protection. 

I know some Federal Courts of Appeal have ignored the Heller case and turned cartwheels of law and reason to do so, but I won’t take time here to explain why they are wrong.  They, and perhaps the Supreme Court too, are clearly terrified of ruling on Monday that the guns are protected, then reading on Tuesday that one more deranged person has killed people with one of the guns.

But that is their job –  to read the Constitution and not the opinion page of the New York Times before ruling.   They have not hesitated, even during the Democrat/liberal Warren Court years to, for example, let a guilty killer out of his conviction because the police failed to give Miranda warnings before he confessed.

Despite the horror of those mass shootings, and the 24/7 media coverage given to them, the fact remains that it is only a tiny fraction, way less than 1%, of those guns and owners who are ever involved in their criminal use. 

More people are killed each year with boots, knives and bats than with “assault rifles.”   So, Constitutional or not, how is it logical or fair to ban them from possession by everyone?   Cars kill more people than guns, but no one talks about banning cars.  Why this obsessive hatred against guns and the people who own them lawfully?

Idealists will ask, “If banning the guns would save even one child wouldn’t you approve of the ban?”   Well, yes, I would.  But such a ban can’t and won’t work for many reasons, and the word “if” is crucial in that question.  In today’s age in which everyone chooses up sides in all arguments and hates the people who think otherwise, I think it unfair and unproductive that people choose to hate all gun owners for daring to even have such an item just because an unhinged few do bad things with that inanimate object.  There is a pollyannish idea, promoted by politicians, and a compliant press that if only we lived in a world of milk and honey with no guns nothing like this could ever happen.

Recall that we had a ban in 1994, that President Biden says he single-handedly passed.  It did not work and the Department of Justice and others said that.  There are millions of these guns owned in America, probably in part because of that 1994 Ban.  Americans are a rebellious lot and if the government tells them they can’t have something, they tend to want it. 

Remember our country was formed in rebellion by people who did not like an overbearing central government led by a King.  They still don’t like that.  Millions of people do not accept the fact that Democrats want to tell them they can’t have a gun when they have never and will never, use it improperly. I think President Biden may find to his sorrow that there are many Democrats, like me, do not universally approve of his tough talk and irrational policies about guns.

Everyone lauded New Zealand when they banned most guns after the mass shooting there in the mosques, saying, “Why can’t we do that?’ 

Well, the Second Amendment is one reason, but more practically it doesn’t work.  Last report I read said New Zealand had only collected about 10% of their guns.  Does anyone think Americans will participate in some “buyback” program willingly?   They will say, “How can the government buy back something it never owned?”  There will be civil disobedience, and perhaps some people killed, or sent to prison, only because they chose to ignore what they perceive to be an unjust and meaningless law passed by a tyrannical “King.”  

To make the ban effective, will that tyrannical king be willing to try to order mass searches of people, cars and homes looking for guns?  The British searched colonists homes, and our Founders wrote a Constitution to prohibit that too. Does anyone think that people who might be most willing to misuse the guns will be at the front of those lines to turn in their property?

The Mexican cartels have made tons of money smuggling people and drugs across our Southern Border, and we can’t stop them.  Even if we were able, legally and practically,  to ban guns here, don’t you think they’d be willing to smuggle some in?

The Kalashnikov, AK-47, a gun that fits the definition of “assault rifle” written by Congress, is present in the millions all over the world, supplied by various communist bloc countries for 60 years for Communist revolutions.  

When I was in Baghdad in 2005 I saw a warehouse where several thousand of them, seized from an arms dealer trying to smuggle them into Iraq, were stored, stacked like piles of tree branches, forty feet high.    So how would it make sense to ban guns made in America only to encourage smuggling of guns from Mexico by the best smugglers in the history of the world?    

I think President Biden and the other politicians who say loud and angry things like, “Hell, yes.  We’re coming for your AR-15s,” or “We can take them because we have nukes,” are not serious people capable of leading a free people.  They are promoting rebellion and resistance, asking for trouble from decent and law-abiding Americans, many of whom are or have been the first to volunteer to defend our country in war. 

All of these politicians criticized President Donald Trump for stirring up rebellion about the election.  I don’t think what we’re hearing now is much different, and those “leaders” need to learn to speak more respectfully to and about law-abiding citizens about an issue they take very seriously.  

Politicians think they have to “talk tough” to impress their base, their voters, are only politicians looking for votes and are not responsible people capable of leading a free nation.  They want to be “king” or all powerful autocrats.  But American people don’t like autocrats, whether they be King George or executive order signing Joe Biden. 

But even a broken clock is correct twice each day.  And President Biden said some things in his April 6 press conference that I think deserve some serious consideration because they might actually work to reduce mass killings.  I’m not foolish enough to say they will eliminate them – because I’m not a politician looking for votes.  But they might help.   I think we ought to stop trying to find some easy way to regulate and ban guns, that never kill anyone unless a human is in control,  and instead concentrate on identifying, managing, and stopping the human actors, the criminals, who do these horrible things.  That direct approach is more honest and fair to those who have done nothing wrong, and has a better chance of actually working.

Almost all of the mass shooters have given some warning of their intentions.  Probably the worst example was the young man who killed seventeen at Marjory Stoneman Douglas High School in Parkland, Florida in February, 2018.  After that tragic killing it was disclosed that he had a long history of threats and violence including very specific threats on social media that he “planned to shoot up a school.”  Police, and the FBI had been notified.  And they did nothing that prevented the massacre.  That is not because they are uncaring bad people. 

It is because police, and our whole system of justice, is reactive, not proactive.  It is designed to find, investigate and prosecute people who have already committed a crime.  It is not designed to identify and stop them before the crime is committed.  Generally, a person who is simply showing dangerous or deranged behavior and thought has committed no crime.  So the police say, “There is nothing we can do,”  and close the file.   We need to create tools that can be used before the killing occurs, and make sure those tools are used.

Many states do have processes for civilly committing people to a mental health facility who have committed no crime.  And this, “Commitment to a mental institution” or “adjudicating someone a mental defective” are sufficient to bar a person from buying a gun from a gun dealer by the National Instant Check system (NICS), but there are some huge deficiencies in that.   First, that commitment or adjudication needs to be reported to NICS.  There have been improvements in that lately, but it’s far from perfect. 

But more important, it does not necessarily reach the right targets.  Too often this process is only applied to people that mental health professionals have examined and found to be suffering from a diagnosable mental disease pursuant to specific criteria used by that profession.  There is no diagnosis that fits the obsolete term “mental defective,” that is in the Statute. We layman feel that anyone who would shoot up a school and kill seventeen people is obviously “crazy” but he may well not fit that more restrictive criteria used by psychiatrists and other professionals. 

More likely he may only be filled with anger, resentment, and feelings of vengeance against other people, other groups by race or religion, or even just an institution like a school, or a former employer,  that he perceives to have “wronged” him in his life.  And, in  our modern world that values “celebrities” no matter what gained them attention, he may just want to be famous for a day.  He may want to be a martyr and go out in a blaze of glory. Even if there is a formal finding of mental disease and sale is barred by NICS, that also does not prevent the person from getting a gun from other sources.  The young killer at Sandy Hook killed his mother and stole her gun.   These people are not so mentally ill that they are incapable of planning and executing these awful attacks. 

More recently, relatives of the young man who shot people in the grocery store in Boulder, Colorado, said he had mental health issues, and the young man who killed at the Fedex building in Indianapolis had some problems obvious to others, and had also been contacted previously by police and the FBI who were able to do nothing to prevent that attack. 

His mother had told them he might attempt something called “suicide by cop,” in which a person deliberately provokes the police into killing him.  Apparently they took a shotgun away from him, but he was able to buy more guns, and escape any kind of continuing surveillance or follow up on this very troubling report by his mother. even though Indiana is a state that has a “red flag law.”

When I was a federal prosecutor, I served for years on something called a “Child Protection Team.”  Sometimes they are called “Multi-Disciplinary Teams.”  They consist of representatives of police, social workers, prosecutors, school counselors, nurses or doctors, mental health professionals, and virtually anyone who can bring any insight to the table. 

We met periodically to discuss specific children who for one reason or another had come to our attention, and try to work out a plan that would prevent injury, sexual abuse, family neglect, or whatever particular problem had been identified.  We were very proactive – there was no sitting around saying there was nothing that could be done before a crime was already committed.   Teams I am suggesting also need a representative from the Public Defender’s office to protect the rights of the targeted person.

So why could not each community form a similar Multi-Disciplinary Team to look for people with indicators they might be planning a violent act like we see too often in the news and do something to interrupt that dynamic? 

Great care would have to be taken – you can’t target some parent who at a Little League game shouts, “Kill the ref.”   And I know that some kid might post something about shooting up a school as a joke.   But if such a kid thinks that is funny, then he may well deserve some “intervention” anyway. In many of these cases, there have been significant warnings that were not acted upon. 

Some adjustment might need to be made to state laws that allow civil commitment of those with only a mental disease diagnosis.  The criteria has to be whether or not evidence, including observations of friends, relatives, employers, etc. – not just mental health professionals – shows that there is a significant chance he is a danger to himself or others. 

And there needs to be a wide range of options for dealing with him.  If it is found that he cannot be immediately arrested for some inchoate crime, he must not be abandoned to his own fantasies until he gets around to doing that terrible crime that we see too often.

In some cases, he needs to be confined. Congress made that difficult by passing such laws as the Protection and Advocacy for Individuals with Mental Illness Act of 1986.  That Act served to close many “insane asylums” and other such facilities.  No doubt Congress meant well, and no doubt many of those were not well run and inmates were not well-treated. 

But the effect was that most communities no longer have a place to confine truly dangerous people.  There was a theory that mentally ill people would be treated in the community without confinement.  And that’s no doubt true for most, but some truly dangerous people may need to be confined at least for a time in order to gain control of them.  Community Mental Health Centers are pleasant places, where, if you have insurance or Medicaid coverage, you can go and talk to a counselor.  But generally, there is no authority for confinement, nor a facility for that. 

President Biden laid the groundwork for this kind of proactive approach.  He suggested we should have “evidence based community violence intervention.”  He listed a number of existing federal programs that he said could be used for funding of various grants to accomplish these local intervention teams.  The only one of those that I’m familiar with is one called “Project Safe Neighborhood,” that existed in the Department of Justice when I was a federal prosecutor.  It generally encouraged federal and local officers to work together to identify illegal guns and get them off the streets.  For example, if a local police agency arrested a person for drugs or assault who was in possession of a gun when arrested,  they’d be encouraged to talk to Federal authorities to see if he could also be charged for some federal gun crime.

I have no objection to that program, and it worked.  But I still think there should be a team  looking at people rather than just potential gun crimes.  Getting guns off the street and away from criminals is useful, but does not prevent crimes committed by people who usually do not have a criminal record.  The awful crime they commit is all too often both their first and last.

President Biden also separately advocated the creation of a “national red flag law,” to be applied in federal jurisdictions and used as a model for states to adopt that don’t already have one.  I think a modified version of those laws can serve to give authority to Community Intervention Teams in order to effectively interrupt the plans of deranged people heading for a mass shooting. There are a number of states that already have these laws, although there is some difference in how they work. 

But generally, they all are targeted at guns, not people.  If police or family notify a court that a person has a gun and may be a danger, the court can order the police to seize the gun, and the order will provide that he cannot lawfully buy another, by providing notice to the NICS system.

These laws are well-intended but have some serious problems.  Some allow family members or citizens to initiate the process without going through the police.  That is dangerous, allowing vindictive angry wives or girl friends to abuse the system to punish a man they hate.  Any such allegation needs to be vetted and corroborated by police before any court order is sought.  

And there is no due process at the beginning of the process.  It is sort of like a court issuing a search warrant for evidence of a crime that has not yet occurred.  The gun owner is not notified or entitled to a hearing before the order is issued to tell his side of the story. He likely only learns about it when the police arrive to take his gun.  They will likely treat this as a high risk situation because of the allegations that have been made, and will execute the order very aggressively, perhaps with a SWAT team. That makes the risk high that someone will get hurt – the police or the target. 

At the very least, the person, already feeling angry and aggrieved, will only be even more angry after the police rifle through his house, dumping things out of his dresser drawers,  looking for a gun that could be hidden anywhere.  Even if they find a gun and take it, it’s easy enough for him to get another – or for the police to miss one. So it’s likely this may make things worse – not better.

So once again, I say this process should be targeted against the person – not just the gun.  It should be a part of the Violence Intervention Team the President advocates, and I support above – not some separate process.  The targeted person needs to be afforded a hearing where he has a lawyer, appointed if necessary, before any ruling is made concerning him or any gun he may own. 

Significant Constitutional rights are being affected, and he needs due process.   A court order made by a judge based on uncorroborated allegations made by anyone are inconsistent with our judicial system.   The court needs wide options to be available to fashion some plan that is likely to interrupt the march to tragedy the person may be upon.  It may be that just knowing people are watching and concerned will accomplish some deterrence.  

As a last resort, the court needs authority to detain the person, and must be required to re-visit the case periodically to make sure grounds for detention continue.  This is not a fixed sentence for some crime of conviction.  The court may still order that guns be surrendered and NICS be notified, but that is only part of the problem, and part of the solution.  But no one should just walk away from one of these cases, after only taking a gun from a person, and tell themselves, “This is over.  Case closed.”  

Family and friends need to be convinced they should “say something if they see something.”  And they need to be convinced this will be handled well if they do report.  There are far too many police officers who think an uncooperative or non-compliant person is dangerous and may be shot.  

Then the family is left feeling guilty forever that they called the police because their loved family member was in acute distress.   Families who call 911 can get a fire fighter, an EMT, or a police officer, but they never get a qualified mental health person.  Disturbed people are by definition, belligerent and non-compliant, and police need more training (perhaps by these community intervention teams) to distinguish between that and real threat of danger.  

In an ideal world, mental health people from the Team would accompany police to a call involving a person under the scrutiny of the Team, or who should be under its scrutiny.  It is not possible to keep dangerous sounding people under surveillance all the time, but the Team needs to stay in touch with him, or at least with his family, and work hard to see when trouble is coming.   When people fall through the cracks, as they certainly will, the Team and everyone in the community needs to evaluate why.  This is a never-ending process.  This work will never be finished.

There has been controversy in the past about whether or not Congress should fund medical research about gun violence.  Some of that “research” has not been medical, but rather has seen medical people using their scientific credibility to take a political stand on gun control issues, and I think the criticism of that has been valid. 

But medical researchers should be encouraged to do far more actual medical (psychiatric) research on what kind of people commit these crimes, why they do it, and what can be in done in advance to identify possible killers and to prevent or stop them.  I have read that many of these killers had been on psychotropic drugs of some kind – if true that needs to be researched carefully to see if it is relevant.  All of the past killers, even those who died, need to have their medical and behavioral past studied insofar as possible looking for clues as to why they did what the did.

This will never prevent all of these tragic events.  But I think it has a far greater chance of preventing someone from killing us than all of this  pugnacious talk about seizing guns, putting serial numbers on pieces of metal that are not yet guns (the “ghost guns” President Biden talked about), and other laws that are obeyed only by the law-abiding.  President Biden covered the whole litany of these tired old ideas in his speech, with generous portions of outrage, designed to inflame his base to action. 

But I think he needs to understand that there are also decent law-abiding Democrats in this country who know that what he is saying is nonsense, and who themselves own guns, even “assault rifles.”  We don’t need to ban guns – and only stir up more conflict in out country that accomplishes nothing. 

We need to do what is possible to prevent deadly behavior by mostly young men with grievances.  Let’s keep our eye on the ball, and not be distracted by meaningless political rhetoric.       

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

Kip Crofts: Biden’s Banning of “Pistol Braces”

in Column/Kip Crofts

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

By C. A. “Kip” Crofts
Former U.S. Attorney for Wyoming

One of the things announced by President Biden in his April 6 press conference was his assertion that the Justice Department would within 60 days issue a rule to make clear that when a device marketed as a stabilizing brace effectively turns a pistol into a short-barreled rifle subject to the requirement of the National Firearms Act it will be regulated by the NFA.

Apparently this new policy was a result of the recent shooting in the grocery supermarket in Boulder, Colorado, where news reports indicate that such a device was used by the killer.

It is difficult to express in words exactly what those devices are and how they work,  and the legal issues are complex.  

To my knowledge, no such device has ever been used in a mass shooting before, or at least its usage has not been publicized, so this is clearly not a huge or prevalent problem. But, as with everything else related to guns, politicians “must always take advantage of every tragedy for political gain.”

History of the NFA

In 1934 Congress passed the first major legislation having to do with the regulation of guns.  It was called the “National Firearms Act” (NFA)and apparently was in response to an increase of crime arising from the era of Prohibition, when criminals with well known names like John Dillinger, Pretty Boy Floyd, Machine Gun Kelly and others were roaring (“Roaring 20’s) around in fast cars, robbing banks and committing other mayhem.  Frequently they used Thompson Submachine Guns, the “Tommy Gun” or “Chicago Typewriter” as they came to be called.  Unsurprisingly then, the NFA regulated fully automatic machine guns.  

This new federal law was passed before FDR, by threatening to “pack” the Supreme Court with justices who would approve of his “New Deal” ideas, persuaded the court that almost any new federal law he proposed could be constitutionally justified under the “interstate commerce clause.”  

So thinking, as had always been the case, that most police powers belonged to the states, Congress made this new law part of Title 26, the Tax Code, and not part of Title 18, the Criminal Code.  Thus, machine guns and other firearms regulated by the Act were not actually banned, but a tax provision was enacted that required buyers to apply for a tax stamp and pay a tax of $200 before they’d be allowed to possess the machine gun.  

Nobody really intended to see a number of gun owners actually apply for the tax stamps and pay the tax. In those days, $200 was a lot of money, and clearly the intent was to make machine guns too expensive to own.

But as with all gun laws, the criminals against whom they are aimed tend to be people who ignore and violate laws routinely.  It is unlikely that John Dillinger, planning a bank robbery, would tell his associates, “OK, boys.  That’s the plan.  Make sure you check to see you have the federal tax stamps for your Tommy Guns.  We don’t want some federal revenue agent showing up in the middle of our robbery demanding to see our tax stamps.”

But the NFA also included some guns other than full auto machine guns.  It covered short-barreled rifles and shotguns.   Also requiring a tax stamp were rifles having a barrel less than 16 inches in length and shotguns having barrels less than 18 inches in length.  It is not clear to me exactly what Congress was thinking, but apparently lawmakers were mainly concerned that such guns were easier to conceal. 

The ability to conceal a firearm has been a factor in many gun laws.  For years in most jurisdictions it was illegal to carry a gun of any kind concealed unless one had a permit from law enforcement.   This has been changing in recent years and many states now allow concealed carry, with or without a permit.  A few jurisdictions continue to forbid concealed carry, or make the permits impossible to obtain.  

One can ask what is the effect of this?  I suppose if bank robbers don’t want to be seen outside carrying guns, to avoid having a citizen call the police before they enter the bank, then they will conceal their guns.  Supposedly some gangsters carried Tommy Guns in violin cases.  

But, as with all other gun laws, they mostly applied to law-abiding people.  Does anyone think a gangster, intent upon robbing a bank, will hesitate to conceal his gun while walking down the street because of some law?  That is a bit like thinking that a person intent upon shooting up a school will be deterred by a law that says schools are “gun free zones.”   

But pistols are clearly easier to conceal than any rifle or shotgun, including those illegal ones with barrels shorter than are specified in the NFA, so why would it even matter? Even a short-barreled shotgun or rifle could not be readily concealed unless the person carrying it was wearing a long trench coat or something. And why did Congress specify 16 inches for rifles, but 18 for shotguns? The law seems kind of silly on its face.  

And it is very easy for anyone with a hacksaw to cut a few inches off his shotgun or rifle barrel, so this is not a law that can be effectively applied to licensed manufacturers or dealers.

Today’s Problem

The current problem arises because the NFA defines a “rifle” as “a weapon designed  and intended to be fired from the shoulder.”    No one defined a “pistol” or “handgun” in the NFA, because they were not affected.  But later Congress did adopt a statutory definition of “handgun” as “a firearm which has a short stock and is designed to be held and fired by the use of a single hand.”  

That definition is problematic by itself.  It used to be that soldiers and police were trained to hold a handgun with one hand, often advised to keep the other hand in a pocket.  But modern training and practice teaches the use of both hands on conventional handguns to have a steadier, more accurate hold on the gun, and you’d be hard-pressed to find anyone shooting a handgun today with only one hand.

So these laws collide in application to a special kind of gun that is the offspring of the “assault weapon” described in the 1994 ban that President Biden brags about fathering. The unintended consequence of that law was that it stimulated a whole industry of innovators and manufacturers working to invent and make guns similar to the Colt AR-15, but enough different from it to escape ban by the law.  

One of those developments was the production of shortened versions of the typical AR platform – shorter on both ends, with a barrel shorter than 16 inches and no buttstock at all.  Among the intended customers/users of these short little guns were wounded or disabled soldiers and others who wanted to shoot the guns, but because of amputation or injury had no ability to hold a rifle in the conventional way with both hands.  

The guns were intended to be held by the pistol grip, with one hand, seemingly in compliance with the statutory definition of “handgun” provided just above.  They could even be fired from a wheelchair.

But, as I said, Americans are creative folks, and soon people looking for a way to make one-handed shooting easier and more accurate came up with a way to brace the gun.  

The AR-15 has a unique design feature that made this possible.  Semi-automatic guns are semi-automatic because the gun loads and unloads itself, unlike, for example, a bolt action rifle that requires the shooter to manipulate the bolt with his hand, extracting and ejecting the fired round, and loading a fresh one from the top of the magazine.  

Semi-automatics use the energy generated by the exploding cartridge to force the bolt back several inches, sufficient to extract the fired cartridge case, eject it from the gun, and perhaps cock the firing mechanism for the next shot.  But then a spring is required to move the bolt back forward, stripping a new unfired cartridge off the top of the magazine and inserting it into the firing chamber of the gun.

In most traditional semi-automatic firearms, such as the old M-1 Garand, this spring is housed in the front part of the rifle, in front of the bolt, and the spring is connected to the bolt by a rod that extends back from the spring to the bolt inside the wooden stock that you see.  

The aircraft engineers who designed the AR-15 decided, correctly, that it would be more efficient to put the spring directly behind the bolt so it could push it closed directly.  And they were able to do this because they were working with a plastic stock, easily molded into any shape they wanted, unlike the old wooden stock on the M-1 and other conventional rifles.  Those stocks were “bent” downward slightly behind the bolt to provide a comfortable grip for the firing hand and a place upon which the shooter could rest his cheek to look down the barrel through the sights. The shape of that stock did not allow the placement of a spring directly behind the bolt.

The spring is contained on the AR-15 (and the full auto M-16) within a buffer tube (which looks a bit like the tubes in which expensive cigars are sold) within the plastic stock so on a regular full-size rifle, it cannot be seen.  The shooter resting his cheek on the stock can hear the spring and piston moving when he fires the gun.  

So when the innovators decided to make the “handgun” they wanted, they cut off both ends of the gun.  They shortened the barrel to less than 16 inches required by the NFA, but claimed the gun was no longer a “rifle” covered by the NFA, but was instead a “handgun.”  

They also removed the buttstock, that is usually snugged up against the shoulder when a rifle is fired.  But the buffer tube for the spring had to remain in order to move the bolt forward after firing.  The standard buffer tube on a full-size AR-15 or M-16 is nearly 10 inches long.  For pistols or carbines with telescoping stocks, that can be shortened, usually to about seven inches.

So creative people designed and manufactured various devices to attach to that metal tube that could be used to help “stabilize” the gun while firing it with one hand.  The most common was simply a sort of half-circle of some metal or plastic that would be attached to the tube and would cradle from above the shooter’s forearm that was beneath the tube. In some cases a velcro strap, or a belt, might be used to actually fasten the tube to the forearm.   

Some gun manufacturers made these for their guns and sold them with the devices attached.  Other companies made the devices separately and sold them to be attached to a gun someone already had.  The tubes are generally the same diameter and it was no problem making them fit.  

Some people continued to make their own – they are that simple. And it’s impossible to say they are an integral part of the gun. They can be easily removed, and the gun fires with or without them.

Another variation of the devices that appeared was what looked a bit like the buttstock of a conventional rifle stock, at the end where it is normally snugged up against the shoulder when firing the rifle.  

It also fastens on the buffer tube in some fashion, and is not an integral part of the gun.   It can be snugged up against the shoulder, in much the same fashion as a conventional rifle, but because the buffer tube is shorter than a normal buttstock, the shooter’s face and eye will be closer to the bolt of the gun than with a rifle.  It is possible to use the weak (left) hand to steady the forearm of the gun, and shoot it much like a rifle, even though it is technically much shorter on both ends than a convention rifle.

These innovations perplexed the Bureau of Alcohol, Tobacco and Firearms (BATF), the agency charged with administering the National Firearms Act and other gun laws, for several years.  They asked, were these guns, with these devices attached, still under the definition of “handgun” — designed to be fired from one hand — or were they in fact rifles, with barrels shorter than 16 inches, that needed to be registered under the NFA.

And the two devices were not the same when it came to that determination, since the arm brace left the shooter firing with only one hand, albeit one that was braced a bit by the forearm, compared to the buttstock device that generally allowed the shooter to use both hands to hold the gun if he wanted to.  

BATF went back and forth about this issue, and at various times has offered advice to the industry and shooters about how to treat the matter.  At one time they said it depended on the shooter’s actual usage, and told them if they actually used the weak hand to hold the gun with both hands, it was a rifle that needed to be registered.  

But this advice was, of course, not capable of any kind of actual enforcement.  You’d need BATF agents at every shooting range, and in every hunting venue, to observe how the devices were actually used.  BATF quickly recognized how silly and impossible this was, and abandoned the effort.

That was the state of the law when the wacko decided to take one of these short guns, apparently with an arm brace attached, to the grocery market in Boulder and kill people.  I have not seen any news information as to whether the shooter actually used the device or how — whether he had both hands on the gun or just one.

A Fool’s Errand

But those news stories brought the issue to the attention of politicians and President Biden, and once again not wanting to waste a tragedy, he decided to order the Department of Justice to write some new rules to cover this.

I’d hate to be the DOJ or BATF lawyer who gets that job.  It is an impossible task.  You can’t say a handgun is now a rifle just because some device that can be easily removed is attached to it.  And you can’t say the device itself can be regulated, because it clearly is not a firearm.  

The devices themselves may or may not be manufactured by the company that made the gun.  There are many companies that make them, but not guns.  And anyone reasonably handy with tools can easily fabricate one in his garage.  You could just go buy a strip of velcro strap and tie your arm to the gun with it and you’d have a crude but workable equivalent.

Once again I think this is a silly fool’s errand with Democrats and our president, who want their base to think they are “tough on guns” without caring one whit whether the law actually accomplishes something.  

 As I said, I’ve never heard before about one of these gizmos being present in any criminal shooting, but if so, I ask “so what?”  I suppose if you did a comparison test, you could determine that someone shooting one of these short little pistols could achieve slightly better accuracy with the devices than without.   But there are so many variables involved I don’t know how that could be meaningful, or legally relevant.  

Most mass shootings take place at very short range with large numbers of helpless victims, and pinpoint accuracy is not an issue.  These are not sniper guns, with or without the devices, used for long range shooting.

But, if President Biden has his way, the original users of these devices, crippled veterans in wheelchairs, may find that they have to apply to BATF and pay a $200 tax to register … what? The short “handgun” that seemingly doesn’t meet the definition of a “rifle,” or the device itself, which is certainly not any kind of firearm?  

I can’t imagine even the liberal Federal Courts of Appeal that think AR-15s are machine guns are going to swallow this nonsense, but we may have to go through the motions to find out.  

But even that has its legal issues – the Second Amendment applies to “arms.”  Is a velcro strap an “arm” entitled to Second Amendment protection.  Maybe it is if you wrap it around your “arm.” (Sorry, but this is just so silly I’m having trouble restraining myself.)

Or is this just an administrative law issue – would such regulation be simply called “arbitrary and capricious” with no demonstrable purpose, and rejected on that basis? 

No matter how they do it, surely the courts will throw this out and restrain themselves from outright laughter while they do it.  

But who knows?  Mass media coverage of these rare but terrible shooting events creates hysteria, and not all of it is within the place where the shooter does his evil. 

Kip Crofts: Stolen Election? We Cannot Accept The Word Of Trump, Biden, Or . . . The Press

in Column/Kip Crofts

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

By C. A. “Kip” Crofts
Former U.S. Attorney for Wyoming

President Donald Trump and his supporters proclaimed loudly in the months leading up to the 2020 election that the election would be “rigged” and there would be widespread fraud.  

Then, after Nov. 3, he said that he really won the election. This, along with some specific statements he made just before a violent mob attacked our Capitol, has led to his impeachment for incitement of that mob.   

On the other hand, the corporate media and half the people in America have insisted the election was fair and just, and that Trump and his supporters are lying.  I have not counted, but I’d guess the word “false” or “falsely” has been inserted in thousands of media comments just before they told us what Trump had said about the election.  

When I studied journalism many years ago, I learned that unless I’d been assigned to write on the opinion page, I should keep judgmental adjectives and adverbs out of my story and just report the facts. Apparently, the teaching in J schools has changed since then, because every writer wanted us all to be sure we knew what he thought of President Trump’s assertions.

I would guess that everyone in America over the age of six now has a firmly fixed opinion about this.  They either agree with President Trump that there was fraud and without it he’d have been re-elected, or they believe he is lying.

So, which is right?  

What really happened?

I don’t think we know. As someone who has been involved in the criminal court system for many years, I’m used to having to meet a burden of proof beyond a reasonable doubt, so maybe my standards are too high.  But I think in something this important, the questions of who is going to be President and whether an election was stolen, we should know what we’re talking about and not be just asserting what we wish were true.  

Everybody knows that politicians aren’t always careful with the truth. Trump is a showman and knew that something said loudly, repeatedly, and with gusto might not be questioned too closely, at least by people who wanted to believe it. (“Mexico will pay for the beautiful wall!”).  

But Joe Biden, albeit in a softer voice, does the same thing. Maybe it’s a harmless gaffe (“I’m running for the U.S. Senate”) or a big whopper (his gross exaggeration of his educational record or his statement that the stories about his son and China were just Russian disinformation). He dropped out of a presidential race once after he was caught plagiarizing. So, none of us, Republican or Democrat, should just assume that our guy is telling the truth and the other is not.

We can’t always rely upon the modern media to let us know what is to be believed either.  They used to be called the “Fourth Estate” or even the Fourth Branch of Government and I think there was a time when they took that neutral role seriously. But they didn’t even try to hide their bias in this case – they hated Trump and liked Biden, ignoring or downplaying all of Biden’s stretches of the truth while highlighting Trump’s.  

There was a time that investigative journalists would work hard to dig out the truth about something, but now they seem to prefer to just quote anonymous sources or make statements without any source at all. It’s easier and cheaper than real investigative reporting.  They attack people for saying something “without evidence” when everything reported in the press now is “without evidence” for the most part.

I wonder if, now that Trump is gone, the “mainstream media” can go back to its traditional role as the neutral and fair arbiter of politics in the US — or has it fundamentally lost its way, only to continue as the unofficial media outlet of the liberal wing of the Democratic Party?  I hope they find their way, but am not optimistic.

So, my point is we cannot simply accept the word of Trump, Biden, or the press on this terribly important issue.   The howling mob that invaded our Capitol was not justified in doing so even if Trump was right that the election was “rigged” and he won.  That would be no defense to what the invaders did.  

But still as a nation, I think we need and deserve to know, “the truth, the whole truth, and nothing but the truth.”  It may be essential to calm the troubled waters and try to move on.  But if we find the election was rigged, that could lead to more trouble.  I think it’s unlikely that will happen, but it could.  We just simply do not know.

Loud accusations of election fraud have been hurled during many past elections, but eventually the fuss dies down and we just wait for the next one.  Since the assertion this time resulted in a violent attack upon Congress, perhaps it is time to get to the bottom of the argument.  

If there is no large amount of fraud (there will always be some) then we should say so and move on.  If we find significant problems we should say so publicly and fix them before the next election.  

I know that the winners, the Democrats, would prefer to just slam the door on this controversy and move on.  But I’m not sure they can, and I’m sure they should not. If we do that it will leave a festering wound in the body politic that will continue to fuel outrage and perhaps more violence.  And if there were problems and we ignore them, it will encourage more of the same in the next election, and soon we will join those countries in the world who pretend to have elections and go through the motions, but everyone knows they are neither free nor fair.

Why don’t we know for sure what the truth is, and what can we do to figure it out before we are again faced with a situation like this?

First inkling of trouble

When I was young, I didn’t think too much about voting and elections – I just took them for granted and assumed they were done effectively and lawfully.  I loved JFK and was proud to cast my first vote for him.  I first began to have serious questions about American elections when I worked for the Division of Criminal Investigation in the Wyoming Attorney General’s office.  

I think it was in the early 1980’s that we were asked to investigate a case of “election fraud.”  As we all know, when you show up at your polling place, you are greeted by a table of workers, usually volunteers, who ask your name.  If they verify that the name you give is on the list of registered voters, you are given a ballot and allowed to vote.  Sounds simple – right?   And it is if everyone is honest and truthful.

In this case a man had walked in and said a name.  The election worker replied, “You are not (the name he gave).  I knew him.  He died last year.”   The man immediately turned around and left.   The election worker was able to give a general description of the man who tried to vote, but it would fit many people and there was no surveillance camera, so we really couldn’t do anything to identify who he was and the investigation went nowhere.  He had been prevented from voting, so no real harm was done.  Or was it?

That was only one vote, of course, and would not have changed election results – at least not in state or national races.  But in local races in sparsely populated Wyoming, a few such people willing to vote improperly could make a difference. And I think any such fraudulent intrusion into our sacred system should be concerning to all of us. This experience started me thinking about how vulnerable this system was to fraud.  If the man had chosen another election worker who did not happen to know the deceased voter, the imposter would have been allowed to vote, and no one would ever have known.

It occurred to me then that this simple system, based on the assumption that all voters were honest, was not a very good one, even back then when things were generally more honest in our country.   The analogy is not perfect, but what if we had a law that required all banks to open their lobbies to the public every four years, and to have bank employees sitting there with computer printout lists of all the banks’ depositors, like the poll workers who sit with lists of registered voters.  

The public would be allowed to come in and give a name and if the clerk found that name on the depositor list, he or she would then be required to give the person all the money on deposit in the bank for that name, without regard or inquiry as to whether he was entitled to it.  Perhaps the person had found your bank statement blowing in the wind on trash day, and knew you had an account in that bank. There would be no requirement for production of a photo ID, and in some states the law would actually prohibit the request for an ID.

So, what did I learn from this that bears on the pending question about the 2020 election?   We hear all the time from many sources a statement that sounds like this:  “There are no reports of voter fraud.  There are no investigations of voter fraud.  No one is convicted of voter fraud. So therefore, there must not be any voter fraud.”   That statement is meaningless nonsense.  

Some crimes, like murder for example, tend to be self-reporting, or obvious, as when a dead body is found.  Most frauds are not evident.  They depend upon stealth and trickery.  That is the whole point.   To detect and prosecute this crime, it requires an aggressive and proactive investigation – to find that a crime occurred and who did it.  That almost never happens with elections.

Fraud prevention

One obvious lesson is that it is better to have procedures in place to prevent, or at least detect fraud, rather than to rely upon investigations after the fact.  And as with money fraud, where the money is often long gone by the time the fraud is detected, it is impossible to “fix” election fraud after the fact.  In the little case I saw in Wyoming, if the man had been allowed to vote, and we’d caught him, would we be able to rely upon the word of a man willing to commit fraud to tell us honestly who he’d voted for, so we could subtract that one vote from the total?

In my more than 40 years in the criminal justice system, as a county judge, as director of the Wyoming Division of Criminal Investigation, as a federal prosecutor, and then as U.S. Attorney, that one case is the only one I can recall ever being reported concerning election fraud.   Do I think that is because voting is always honest in Wyoming, and no one tries to game the system?  No – those 40 years have made me a bit cynical.  

I think that if any system concerning something of value to people — whether it be banking, credit cards,  unemployment benefits, taxation, or voting — can be fooled, someone can and will figure out a way to do it. And if they are good at concealing what they’ve done, no one will be able to report it.

Unfortunately voting is an “once in a while” occurrence.  It requires many people to put it all together, public employees and volunteers who are engaged in a huge project every few years. I think almost always they are honest people. but even an honest person cannot make a poorly designed process work properly. It’s like management of money, whether in banks or in gaming casinos — procedures must be in place to check and double-check, and no one person should have exclusive control of everything.  

This is particularly true when there is a lot of cash, where no paper trail will be left. Votes/ballots are like cash.  Once the ballot is allowed into the system there is no way to track it and withdraw bad ones after the fact.   After the election, as with the 2020 presidential election, there may be a few grumblings, but no one has the resources or the inclination to perform a total audit to see if it was fair.  Mostly, people go back to what they were doing and just wait for the next election.  

And people charged with conducting elections are generally elected, perhaps making it unlikely they will be motivated to do an audit that might reveal that they failed to conduct a free and fair election.  Law enforcement agencies have other things to do.  They will react to a specific report, as we did that one time, but they won’t go out looking for fraud unless someone gives them that assignment and makes it a priority.    

People place great stock in the pronouncement by Attorney General Bill Barr that his Department of Justice saw no widespread fraud in 2020.  All the time I was in the U.S. Attorney’s office we were required during election season to appoint a prosecutor to react to reports of election fraud.  

But as I’ve explained, the people who had committed the fraud were not inclined to report it, and no one else could because they didn’t know about it.   And no one is usually proactively looking.  So, AG Barr’s comment is essentially meaningless — all it means is he emailed the U.S. Attorneys across the country, and they all said, “Nobody reported anything here, boss.”  So that pronouncement, coming from the Attorney General, sounds like the end of the discussion, and is constantly cited by those trying to put an end to questions, but it really means almost nothing as we look for “the whole truth” of this matter.

Courts not the place for resolution

Part of the basis for those arguing the election was just fine is that there have been numerous lawsuits filed across the country by Trump’s agents and no judge anywhere has found any significant fraud.  Once again, I think it is misleading to read too much into that.  Courts are not the places to resolve this, despite President Trump’s assertions that they would.  No judge is going to want to wade into this political controversy if he can avoid it.  

Courts are charged to resolve specific and finite “cases or controversies” between people or parties.  It is not their job to establish political policy for elections. So usually before the election courts will say that speculation about allegedly poor election procedures that have been adopted by a state will not be ruled upon just because they may theoretically cause problems in the future.   And after the election there is too short a time for anyone to conduct an adequate investigation of all of it in time to gather sufficient evidence to convince a judge that the whole election was fraudulent and must be overturned.   

There is no time for anyone, even if they had the resources and the authority, to conduct a thorough investigation to see if the election had sufficient problems to justify a drastic remedy like ordering a new election.

Judges need to be told even if they see problems what an appropriate remedy might be. No judge is going to order a completely new election just because he hears a few anecdotes of bad procedures that are a tiny fraction of the whole number of votes cast.  He would have to order the state to fix all the procedural defects and then conduct a new election in a short period of time because there is no practical way to parse out the votes that might have been bad, that might have been affected by the problems the judge has been shown, and decide how to adjust the reported totals.  

Even if he ordered the state to fix the problems and hold a new election, no state could actually do that in the time allowed.  How likely is it that any judge is going to order such a remedy even if he agrees that problems with some small percentage of the total votes cast have been proven?

And I think the chances that some judge, based on that small sample of proven problems, is going to issue an order that reverses the findings of the election — declaring Trump to be the winner without a new election — are exactly zero.  No reasonable person would ever think they should do that.  No lawyer who knows how courts work would consider that to be a likely outcome and could with credibility advise his client that it might happen.  

I cannot imagine any lawyer advising President Trump that might happen.  And it turned out to be a terrible tragedy that many people besides Trump apparently believed that was actually going to happen if they made enough noise.  I’m a registered Democrat but, likely because I subscribe to a conservative magazine, I was getting four or five emails a day asking for donations to support those lawsuits.  It sounds to me like there might have been a bit of fraud there — like asking for money to help turn coal into gold.  I was still getting those requests after the Congress voted to accept the election.  I wonder what happened to all that money? But unfortunately, enough smoke — allegations and some facts that likely were true — leaked out of these lawsuits to give just a bit of credibility to the claims of Trump and others that there were problems with the election, and that fanned the fire of controversy and eventually led to the assault on the Capitol by people who really believed the election was stolen.  But in addition to the people in the mob that stormed the Capitol, I think there are reasonable citizens, who would never join such a mob, who also heard the stories of what seem to be problems with the election coming out of those states, and who are concerned and would like to learn the whole truth. 

President Trump is not a lawyer, has not worked in government, and seems to be incredibly naive about how things really work in government and in the courts.   He may have honestly believed what he was saying, and, unfortunately, his 600-pound ego may have prevented him from listening to more reasonable people, if any were left on his staff by then. Whipping people up into a frenzy was what he was good at — what he always did at his rallies. But even if he did not intend to send his followers to commit violence at the Capitol, he should have been smart enough to realize what they might do in response to his words.

We are told there have been recounts, and manual counts to verify voting machine tallies and it is said those prove the election was legitimate.  That may be an accurate measure of how well the machines work, or how accurately the original count was made, but it says nothing about whether or not fraud or mistakes have occurred in the process that controls who gets to vote — before the tally, manual or machine-made ever occurs.  It cannot tell us if dead people, non-residents, non-citizens, people in comas, or others not qualified to vote, for whatever reason, have been allowed to cast ballots.  

The statements by the Homeland Security official who said there was no hacking are, for the same reason, useful, but not dispositive of the entire question.  He knew nothing about who had been allowed to vote in the normal way.  All he really claimed to know was that no foreign power had hacked into the machines to alter the count. Unfortunately, he, and some others, when a microphone was pushed in their face, and, disliking Trump, made what sounded like far-reaching pronouncements that the entire election was valid when they actually did not know that to be true.  

Complete Examination Needed

What we need is a complete examination of the entire process.  Someone needs to go, especially to the battleground states, wherever the vote was close, and audit the entire election.   They need to get a list of everyone who voted and then they need to go out and do the necessary field work to verify that each voter exists and was qualified to vote.    

I suspect most would be fine.  But I also suspect you’d find a significant number, which would vary from one jurisdiction to another depending upon procedures in place, where fraud, or at least mistakes, had been made.   You would find dead people who had voted.  You would find people who had voted twice.  You would find addresses for the voter that were vacant lots, empty buildings, or just places where the person was not known, You would find nursing homes where the voter was in a coma or otherwise incapable of voting.

In places that allow others to collect votes (vote “harvesting”) you may find situations where someone showed up and collected a large number of ballots that may or may not have been completed.  Nursing homes, retirement homes, public housing, and large apartment buildings – anywhere mail is delivered not to each door but to a central mail room — would be especially susceptible to fraud in this manner. If someone shows up at such a place and says he’s there from the election office to collect all ballots, he likely will not be challenged.  And then he is free to fill out blank ballots and discard completed ones that don’t vote the way he wants.

Some states mailed out huge numbers of ballots to people on old and outdated registration lists, having no idea if the person was still a qualified voter, still alive, still in the jurisdiction.  I assume many of those ballots ended up lying around in various places, just as junk mail does, but in this case, there would be a huge incentive for someone to collect that junk and use it. 

You might find voters who were homeless and hear stories about someone who came and paid $10 for completed or blank ballots.  There were stories in the news about voters being paid with gift cards to vote, and you’d have to be naive to think the person making the payment did not also strongly suggest for whom the vote should be cast.

I think they’d also find votes that, while not intentionally fraudulent perhaps, were certainly questionable, and that procedures intended to make voting “easier” because of the pandemic created the path for fraud or mistake.  There were news reports in at least one state that when mailed-in ballots were defective, perhaps lacking a signature, date or some other procedural thing required by state law, the voter would be called and allowed to come in to “correct” the ballot so it could be counted.  

On its face that seems innocuous enough and certainly well-intentioned to make voting easier during the pandemic, but it isn’t fair.  What if there were 10 such defective ballots and only three people could be reached by phone before the ballot had to be discarded or counted?  Is it fair to allow some, but not all, to correct their ballots after they are cast?   And if the person who determined the ballot was defective learned in that process for whom the person tried to vote, isn’t that a huge invitation for fraud – to only call the voters you agreed with to invite them to come in and correct the ballot and to not call the voters whose vote you didn’t like? 

There is a huge difference between the long-standing absentee ballot process, where limited numbers of qualified voters are allowed to specifically request that a ballot be sent to them by mail, and the pandemic-inspired practice of mailing ballots to everyone included on what are too often old registration lists where no effort is made to keep them up to date.  

So, what if a person on the registration list has moved out of state, but left a forwarding address at the Post Office, and thus receives a ballot in the mail?  The person may not have even thought about going back to his former residence to vote unlawfully, but if he gets a ballot in the mail and it takes him 10 minutes to fill it out and mail it back, he may think, “They sent me a ballot, so it must be legal. Why not send it in?”  That process — mass mailing — was well-intended, but was a huge invitation for fraud in my opinion, and to that extent at least I think President Trump was right in warning the process could be abused.  

At the very least we need to make sure those procedures are not allowed to take root and become regular aspects of voting in the future unless some means can be devised to verify what happens.  Perhaps a means could be found to submit the chip information from a Real ID Act drivers’ license with the ballot to verify it.  We have an 18th Century voting system that simply isn’t up to the challenges of modern life.

Ironically it may be that President Trump guaranteed his own defeat by telling his supporters, truthfully enough, that mail ballot procedures were not fair, thus discouraging them from voting that way.  I wonder how many Trump supporters may have voted for him by mail but were discouraged from doing so by his loud and frequent statements against the system and then did not to the voting place, for whatever reason, on election day to vote in person?

Audit a huge undertaking

It would be a huge and expensive undertaking to honestly audit the election, and it may be necessary to confine it to just a representative sample of voters large enough to statistically guarantee reliability.  Who would do such a thing and who would pay for it? Obviously, we need to try to achieve objectivity if any truly unbiased entity could be found in America today.  Elections are primarily a state responsibility but obviously the Congress has an interest in elections for president. So, there would be a mix of state and federal law involved in those aspects of the investigation that were criminal, and the state’s election office would be involved in the procedural questions. There was a day when some honest news entity might have done such an investigation, so they could have claimed Trump was lying about a rigged election “with credible evidence” rather than just repeating the party line.  But journalists don’t seem to do that anymore.  They, just like Trump, loudly proclaim what they believe, or hope is true, and leave it at that.  If they cite any source at all it is just another like-minded publication, perhaps an “anonymous official” or just an official-sounding person who really can’t know “the whole truth.”

After the debacle of the 2000 election, with the images of election workers examining “hanging chads” with magnifying glasses, we had a commission, chaired by former President Jimmy Carter and James Baker, a Republican official in the Reagan and George H.W. Bush administrations, that embarked upon an examination of voting procedures.  They made a number of recommendations.  

One was to improve voter registration lists, with procedures to keep them accurate and up-to-date, purging the dead, people who had moved away, etc.  And most significant was a recommendation that a photo ID be required to vote, and that steps be made to insure everyone qualified to vote could easily get one.

After 9/11, because the hijackers who flew into the Twin Towers and the Pentagon had obtained drivers’ licenses that allowed them to board the planes — from a state that freely issued them, without question or verification, to anyone who asked — Congress passed the “Real ID Act” that required states to take steps to verify identifying data before issuing a drivers’ license.  That is the sort of ID that should be required.

Sadly, no one paid much attention to the recommendations they made, and many bitterly opposed requiring a photo ID to vote, saying such a restriction was voter suppression.  That is a false argument.  It is voter suppression only if the government makes it hard for a legitimate citizen to get the ID.  States should ensure that it is easy, and free if needed by some citizens, for them to obtain a valid ID card.  They can use it for other common purposes – like boarding airplanes and cashing checks.  

Remember my silly analogy above about the free-money-day banks might be required to hold?  Do you really think banks would actually disburse money without verifying identity?   Isn’t honest voting, the bedrock of our democracy, at least that important?  

Some election officials say a photo ID is not required because election workers verify voters by comparing signatures.  I think that is mostly another meaningless statement that may make some people feel good, but that cannot withstand examination of the reality.  

When I was Director of DCI, we worked for about two years to get one of our Crime Lab people certified as a handwriting examiner who could testify in court in forgery cases.    He underwent many weeks of training at the FBI lab, and was ultimately tested by having to achieve a perfect score in correctly sorting a large number of known handwriting exemples, some of which were correct and some that were not.  To suggest that some lay person who works in the voting office, or a citizen volunteer, can accurately verify ballots by quickly looking at a signature strains credulity to say the least.  

What results?

What do I think will be the result of an honest examination of the election?  I may be the only person in the U.S. who is willing to say that I really don’t know. Everyone else seems to have made up their minds one way or the other. I suspect such an audit would find way more errors and fraud than we should have in this important part of our democracy. But, and I emphasize that I have no way of knowing for sure — I suspect we won’t find enough fraud to have changed the outcome of the election for president.   

We had a bizarre set of circumstances this time.  COVID gave many reasons to encourage mail balloting, which obviously, even if it was the hated Trump who said it, does make for more opportunity for fraud and error.  But neither he nor the people who opposed him have any way to truthfully say whether the problems were significant enough to have made a difference, and his assertions otherwise are likely wrong — but we still need to know rather than to just say that loudly and repeatedly. No matter how many people call him a liar, they, like he, say that “without evidence.”

During the campaign I really thought Trump was going to win. I wasn’t going to vote for him – I wrote in Tulsi Gabbard.   In 2016 I wrote in Jim Webb.  As a veteran I’m never going to vote for a commander-in-chief who has chosen to avoid military service — just a quirk of mine as a veteran who’s served in a couple of wars.  

But Trump seemed to draw incredible energy.  He had huge rallies with loud supporters.  By contrast, Joe Biden hardly campaigned at all, and when he did he seemed to always do or say something goofy, lying about his education, dismissing rare questions about his son’s bizarre doings in China, Ukraine, and elsewhere, and sometimes offering to go in the alley to fight people who disagreed with him.

He threatened to ban a rifle that does not exist.  He seldom talked about his policies, and when he did, they sounded pretty moderate and extremely vague. He seemed like an amiable old guy who was frankly past his prime.  I’m his age, and I need my nap after lunch.  I would never presume to take on the awesome responsibility of being President.

But I, along with others, underestimated the huge number of people, including, I suspect, some Republicans, who were just tired of all of Trump’s BS and didn’t want to listen to him for another four years.  Biden wasn’t so much a great candidate so much as he was just “anyone but Trump.”  One of the things that suggests to me that Trump did not in fact win is the fact that many Republicans down-ballot did fine.  Except for Georgia, likely lost for Republicans by Trump’s loud talk about not trusting the election, Republicans did pretty well, making significant gains in the House.  If the Democrats really did rig the election why would they have chosen to defeat Trump, but not all those other Republicans?

I find myself wondering if Trump could have ever become “presidential” and learned to speak with courtesy and without insulting people.  And, if so, would he have won a second term?  I, along with many, thought he never really had a chance to be a good President.  Certainly, he brought much of that on himself, with his big mouth and his flying twitter thumbs. But he was immediately attacked and many Democrats who now say he’s lying about the 2020 election being “rigged” were the ones casting aspersions about his win in 2016 – that the Russians elected him. There were people talking about the “resistance” and impeachment before he was even inaugurated. His call to Ukraine was ill-advised and clumsy for sure, but was it really any worse than Biden bragging about how he’d used tax dollars to extort the same Ukrainian government to fire a prosecutor who was investigating the company Biden’s son “worked” for?  

The people who “testified” at Trump’s impeachment trial sounded to me like minor bureaucrats who thought their view of foreign policy was correct, and they seemed to be mostly saying that an elected President had no right to ignore their advice or act in a way they deemed inappropriate.   It sounded like they had hurt feelings. They had apparently not read the Constitution and not realized that an elected president, whether they like him or not, has some Constitutional powers over foreign policy that they were obliged to follow, or, if they couldn’t, to resign.   Rather than resigning on principle, they chose to try to get Trump fired. As inappropriate and rude as Trump could be, he was the president, and all of this seemed petty and unnecessary and unfair to a lot of people.  

Trump was like the bull in the arena with the mounted picadors riding in to stick him with lances in order to enrage him enough to put on a good fight for the matador and the audience who came to see violence and gore.  And Trump reacted just as the bulls do.

However the audit turns out, we need to find out what the truth is, and to fix problems if they exist.  If the auditors find out Trump was right it will create a hell of a mess and likely more riots by his supporters.  But despite that risk we need to know the truth before we can ever put this behind us.  

Even if it turns out as I suspect — that there were fraud and mistakes and bad election policy indeed, but not enough to have elected Trump — then we still need to know.  And we need to change procedures before we have another election so that this argument will not happen again.  

Elections will never be perfect, but I think they need to be, and can be, a heck of lot better than this one.    

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

Kip Crofts: Thinking About DC Riot: ‘Sometimes I Am Glad That I Am Old’

in Column/Kip Crofts

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

By C.A. “Kip” Crofts, guest columnist

My old Lander friend, Bill Sniffin, asked me if I would write an opinion column about the recent “events” in Washington, D.C.  I replied that I had served in three war zones (Dominican Republic, Vietnam and Iraq) and in none of those did I have such a dangerous assignment.  No matter what I say someone will be angry, and if I had a Twitter account, I’d likely be “untwittered.”

But I do have some opinions.  I recall seeing a political cartoon right after 9/11 in which Uncle Sam was portrayed as being heartbroken, with tears streaming down his face.  If I were a cartoonist rather than an opinion writer, I’d portray him with anger and disgust.  And it’s bipartisan, aimed at many actors and entities across the political spectrum who have said and done things they shouldn’t, and continue to do so.   

At age 28, long before he was President, reacting to a lynching of a black man who’d committed serious crimes for which he’d likely have been executed — along with other lynch mob crimes that seemed too common in the land — Abraham Lincoln said:

“Good men, men who love tranquility, who desire to abide by the laws, and enjoy their benefits, who would gladly spill their blood in the defense of their country; seeing their property destroyed; their families insulted, and their lives endangered; their persons injured; and seeing nothing in prospect that forebodes a change for the better; become tired of, and disgusted with, a government that offers them no protection; and are not much averse to a change in which they imagine they have nothing to lose.  Thus, then, by the operation of this mobocratic spirit (emphasis mine), which all must admit, is now abroad in the land, the strongest bulwark of any Government, and particularly of those constituted like ours, may effectually be broken down and destroyed.”

He could have been writing today.  But lest you think I’m talking only about Donald Trump and the riotous mob that invaded our Capitol, I’m also talking about the riotous mobs that invaded and took over many of our cities last summer.

I know there are people of both political persuasions who try to make some distinction between these lynch mobs,  saying that riots in the interest of racial justice are acceptable while those in defense of Donald Trump and his minions are not.  But I reject that distinction.  

A lynch mob is a lynch mob and should not be allowed or encouraged or defended in our great republic.   Some say it is worse to assail the seat of our government than to burn private property in some American city.  That’s not right.  I saw a video of a man, an immigrant from India who had built a business that was destroyed, burned to the ground.  He said, “If you have a problem with the police, why did you burn me down?”  That’s a good question.  His insurance had an exception for riots so he would not be compensated.  

I suspect Congress will dedicate whatever of our resources are needed so that our Capitol will be as good as before in a short time.   So, isn’t killing innocent people and destroying property equally bad no matter the place or the motive?  There are things we can and should do about racism and inappropriate police actions, but to riot and shout “Defund the police” is not going to change anything. 

So, what got us to this place where we have a “mobocratic spirit” that allows and encourages these things to happen.  I suppose books could be written about that.  But I think the short answer is that our government, especially the Congress, has pretty much ceased to function — ceased to govern.   It used to be that we had hearings in Congress on proposed bills, and citizens could come in and be heard.  This is especially important with the budget.   Now that never happens.  

The only hearings we see on TV are for impeachment and confirmation of judges, angry affairs where all rules of civility and consideration are gone, and they too are almost “lynchings.”  I worked in the US Attorney’s office for many years.  At first we had regular budgets, passed on time by the beginning of the new fiscal year as they were supposed to be.  But then, and still, it became the custom instead to pass a huge “omnibus” budget at the last minute, just before the government shut down, and to include in it all sorts of things that were never known to many, or carefully considered before the vote. That’s no way to run a government. 

So how do we get almost half of Americans voting for Donald Trump, a rude, insolent, foul-mouthed person whose parents never taught him any manners?  We get him, including me on some issues, because of his stances on topics like immigration and foreign trade. We have seen all our jobs and manufacturing exported overseas.  We don’t make anything in America any more and the pandemic shows us how vulnerable that can make us.  I looked in my house for something not made in China, and the only thing I found were Band Aids – an old American trademark, except now the box says they are made in Brazil!  

We can’t go to war with China because they make much of what our defense industry needs.  I see photos of huge modern road projects in China, and we can’t even repair our own bridges. The only business left in America is management of money — the huge profits so-called “American” companies make on goods made somewhere else. The American worker has been ignored and sacrificed, because those big companies lobby Congress and make big campaign contributions.  

So, as Lincoln warned, a man sees a government that offers him nothing, and looks elsewhere for someone to look after him.   He looks to a man like Trump, and then when he sees that stewardship is eroding too, he looks to violence — to mob rule.  It makes no sense.  The mob in D.C. could not change anything, but that the mob formed and performed violent acts should not surprise anyone. 

Reasonable people can differ about what our legal immigration policy should be, but surely no one can say the total lack of any immigration enforcement is a good policy.  Democrats want voters, and Republicans want cheap labor, so neither insists upon or votes for a coherent policy.  I’m not just saying, as Trump did, that we need to control our borders, because perhaps the worst harm, the biggest victims of that incoherence are 20 million or so people living here with no legal status and no certainly about what might happen to them.  

We, and they, just muddle along from one year to the next and no one fixes it. And once again American citizens, and legal immigrants, can only conclude their government won’t care for them.

We have no coherent policy for climate change – no coherent plan to move away from carbon fuels gradually while developing alternatives, all the while knowing that wind and solar cannot possibly fill our needs yet, if they ever can.  The wind doesn’t always blow and the sun doesn’t shine at night.  Still, we see nice ads on TV for places to plug electric cars in, and politicians telling us they’ll require that all cars be electric one of these days.  

But no one tells us how they’ll generate the electricity for those nice clean cars. A slow and well-planned withdrawal from coal and oil perhaps made sense — but the quick destruction of those industries with no  long-term plan makes no sense to anyone. Nobody even discusses nuclear power despite the fact that it’s generally pretty safe.  I guess they’re afraid that if they discuss facts and reality, another mob will show up.  And once again the American worker doesn’t see anyone looking out for him. 

The total abdication of government by our Congress and their long-serving “leaders” has encouraged presidents, not just Trump, to move into the vacuum and try to do things by executive fiat.  President Obama tried to solve the problem of the undocumented young people here unlawfully with his DACA orders, and President Trump tried to undo it the same way — all while Congress, which has the actual responsibility to do something, sat on its hands.  After all, how can you keep getting reelected if you actually cast a vote on some controversial bill?  At least we have term limits for presidents so they are motivated to actually try to do things while in office.  

So, what is needed?  

Our leaders in Washington need to stop playing silly, and dangerous, political games.   All of us need to stop choosing up sides and learning to hate the other.  We need to stop trying to just write a sharp or clever angry reply to the other people on Twitter or Facebook, but actually consider that they might have a valid point worth considering. We’re all in this together.  

We are all “Americans” before we are anything else.  Benjamin Franklin too warned us — “We have a Republic – if we can keep it.”  

I’m not optimistic.  If we keep doing what we’re doing China or Russia won’t have to defeat us.  We’ll defeat ourselves.  We have allowed the extremists and crazies on both ends of the political spectrum to control what happens.  I fear we have come a long way down a path to self-destruction in recent years.   

I hope we can wake up and get back to where we need to be.  Sometimes I get discouraged and find myself glad I’m old – but then I worry about my children and grandchildren.  We all should be worried about them.

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

Kip Crofts is a former U. S. Attorney for Wyoming

The Second Amendment In A World Of President Biden, VP Harris, And Justice Barrett

in Column/Kip Crofts

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

By C.A. “Kip” Crofts, guest columnist
Crofts is a former U.S. Attorney for Wyoming

In the public policy debate in America today, probably no issues are more controversial than abortion and gun control.  

Generally, views on the gun issue follow red/blue lines, with the red side believing they have a right to defend themselves and their families and businesses, while blue folks seem to hate and fear guns more than they do the people who pulled the trigger.  

Although this seems to be changing with even blue folks buying guns now when they hear about riots, calls to defund the police, and news about police who fail or refuse to respond to 911 calls.

Both President-elect Biden and Vice-President elect Kamala Harris made it clear that they want more gun control.  On the Joe Biden website they include fifteen pages of a plan for all the gun control laws they plan to pass. 

Former U. S. Rep. Beto O’Rourke, who competed in the early primaries for President said, “Hell yeah, we’re going to take your AR-15.  If it’s a weapon that was designed to kill people on the battlefield, we’re going to buy it back.”  Later, when Beto dropped out of the race and endorsed Biden, Biden said to Beto, “You’re going take care of the gun problem with me.  You’re going to be the one who leads this effort.” 

Kamala Harris said over and over that, “Weapons of war have no place in a civil society.”  

It is important to point out for these folks that the semiautomatic AR-15 type rifle that they are talking about, owned by millions of law-abiding Americans, has never been used as a “weapon of war” by the US Military or any other military force in the world. They seem to be talking about the M-16 military rifle that is already illegal for civilian use because it is a fully automatic (machine gun). This is a common falsehood used by gun control advocates, and even some federal judges, who either don’t know the difference or are willing to lie about it to support their position.   

The Biden platform proposes to reinstall the 1994 Assault Weapons Ban, which everyone agrees had no measurable effect on crime. The old law allowed continued possession of guns already owned but now he goes further and says he will also get rid of existing rifles with a “buy back” program.   This sounds friendly enough, but it is clear the owner would not have a choice in the matter, and it also does not explain how the government can “buy back” something it never owned.

There are a number of other proposals in the platform that are less well-known but equally concerning to the millions of law-abiding gun owners in America. 

I have written a book entitled, “A Few Commonsense Gun Laws – Is There Such a Thing and Can They Work?”  This is based on a lifetime of experience with guns and gun laws as an Army officer with service in two wars, a law enforcement officer, a federal prosecutor and US Attorney.  

Generally, my answer to both questions is “no.”  In that book I discuss current and proposed gun control laws, and explain why they either don’t work or are unconstitutional, and usually are both. If we spent more time identifying and controlling dangerous or mentally ill people, and less time worrying about inanimate objects, such as guns, cars, hammers, knives, shoes and golf clubs, all of which can and have been used as dangerous weapons, we’d be more effective, more intelligent, and more honest.  If we take a gun away from a dangerous person all he has to do is get another. We arrest drunk drivers – not the cars they drive.

It is futile to try to manage human behavior (violence) by trying to control inanimate objects (guns).   It just doesn’t work. 

These laws “infringe” (the operative word in the Second Amendment) upon the rights of the millions of gun owners who do not commit crimes with their guns, while doing nothing to prevent criminal violence by a tiny minority of criminals who are willing to ignore all laws, including those regulating guns.   

For example, does anyone think that a person planning to go to a school and kill children will be deterred by a sign announcing, “Gun Free School Zone?” 

Or does anyone think that a violent fugitive will try to buy a gun knowing that he will have to provide a photo ID and submit to an FBI background check?  

Of course, not – he’ll steal it or pay someone to buy it for him. These laws are not only unworkable, but unjust because too often they punish people severely for mere possession of a gun when it is clear that they had no intention of doing any harm to anyone with the gun. 

With a diminished majority in the House and at best a tie in the Senate, is there any likelihood President Biden will have any success in tilting this windmill? And if he does, what will happen when the laws get to the Supreme Court? 

Since the landmark opinion by Justice Scalia in 2008 in the Heller case held that citizens have a right to possess guns for personal defense, the Court has been strangely silent on a host of subordinate issues deciding the limits of that right.  I don’t know but suspect Chief Justice Roberts, who joined Scalia in the Heller decision, does not want to rule again in favor of gun rights, then read about a school shooting the next day.  But judges do that all the time, as when they hold that a confession by a murderer was taken in violation of the Constitution and may not be used in his trial. It is their job to follow the Constitution – not the opinion page of the New York Times.  

It is embarrassing the way the Supreme Court has allowed the lower courts to fly all over the map on those issues.  The worst example may be laws allowing the police to decide who has a “need” to exercise this constitutional right by carrying a gun for defense of self and family.  

Some states say that a general desire for protection, without some specific threat, is not sufficient.  So, I guess you call the police office that approves gun permits while the person is breaking down your door when you can describe a “need?”  What other provision of the Bill of Rights is subject to such arbitrary control by police?  Would we tolerate this government intrusion in any other context?

I suspect this may change with the confirmation of Justice Amy Coney Barrett to the Court.   She has demonstrated in at least one case that she takes the Second Amendment seriously.   

Wyoming prohibits felons from possessing firearms, as does federal law.  But the Wyoming law limits that prohibition for a short list of violent felonies, whereas the federal law prohibits all felons from having guns.   I argued in my book that federal law was not constitutional.  

To abridge a clearly stated constitutional right, the government must show at least that the law has a “rational basis.”  Conviction of a violent felony shows a predisposition for violence.  But conviction of some innocuous white-collar crime proves no such thing.  

There is simply no good reason for keeping Martha Stewart from having a skeet gun.  

I’m sure Justice Barrett never heard of me or read my book, but in a dissenting opinion she wrote while still a judge on the Seventh Circuit Court of Appeals, Judge Barrett expressed that same opinion, arguing that a person convicted of mail fraud has not demonstrated that he is dangerous.  This opinion greatly disturbed the Democrats on the Senate Judiciary Committee considering her nomination who will not be happy until no American citizen has any right to bear arms.  

That opinion by Justice Barrett shows that there are now five justices who take the Second Amendment seriously and I believe the amendment will do just fine now unless Democrats are successful in stacking the Supreme Court to put Justice Barrett in the minority.  

But Sen. Joe Manchin, Democrat from West Virginia, has already said he’ll vote against that and any change in the filibuster rule.  So, it looks like the Second Amendment may survive another onslaught by politicians who haven’t read the Constitution or thought much about what it says, why it says it, and how important it is to sustain a free nation. 

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

Go to Top