Category Archives: Law

Gun Problems

We have gun problems in the U.S. We’re not alone– many nations have gun problems. Ours are interesting in part because of our profoundly exuberant and resilient ‘gun culture’, as well as our constitutional protection of gun rights.

The right to bear arms has been argued to be both a private, individual protection of individuals against crime, of individuals and citizens against big government, and of course there’s the argument that it’s not about individuals so much as it’s a protection of the citizenry in general’s ability to form militias.

I don’t know which of these were meant to be protected by the U.S. constitution. Perhaps all of them are. I do believe that which of them is most valuable should also be weighed against the cost of fundamentally altering the original document by new amendments, or by radical reinterpretation (especially narrow interpretation) of the meaning of the 2nd amendment. Whatever the exact meaning of the 2nd amendment, it is embedded deeply in American culture, for good or for ill. Which means that discussions of gun safety, gun rights, and gun control are especially heated.

I have few ideas about ways in which discussion of guns in the U.S. can change for the better. There are 2 ways I know of to attempt to reconcile positions that are enormously different. The first is compromise. The second is innovation. They are not mutually exclusive. Gun rights advocates and gun control advocates need to stop ‘talking past each other.’

A stereotypical conversation about gun rights and problems might go like this:

Liberal: “We should really do something about these crazy shooters! Wouldn’t less guns and more difficult access to guns make it harder for them to be as violent?”
Conservative: “The 2nd amendment guarantees my rights to bear arms and defend myself from these shooters.”

These two haven’t really talked about the same thing– not yet. And usually the argument doesn’t get past this problem, although the particulars will vary and it may go on a long time. Liberals object to all the solutions conservatives propose, and vice versa. Part of this stems from the fact that gun violence is hard to study, and to some degree has been made more difficult by the attempts of the NRA to make gun studies harder to do, or to prevent funding for such studies. On the other hand, liberals are just as guilty as conservatives; they are notorious for ignoring or dodging the argument that says that CCWs, armed guards, and better police presence can reduce violence by making criminals think twice about what might happen if they attempt a crime. Conservatives and liberals both appeal to studies and statistics from various places in the world, but usually neither group accounts very well for the cultural differences or the contexts for many of these things. Conservatives will cite Switzerland as an example of a highly armed society where crime is minimal– but ignore the fact that the requirement for military service in Switzerland is very different than our military structure in the U.S., or they make the argument broader by claiming that Switzerland’s model of required military service would be beneficial. But that’s a different kind of claim. Simple small changes are easier to talk about than enormous shifts in military requirements, and the cultural differences between Switzerland’s historically (fairly) homogeneous people and the diversity of groups in the U.S. (and the ensuing cross-cultural internal struggles or lack thereof) are difficult to incorporate into a solid pro-gun argument.

Liberals on the other hand will cite countries in which firearms are effectively banned, like Japan or Britain. There are problems with these categorizations, too, the most obvious of which is Britain’s high violent crime rate– there is more to these pictures than liberals usually choose to portray. In addition, these arguments are not likely to even appeal to an audience that regards firearms as something fundamentally different from what liberals categorize them as.

Liberals see guns as a tool with a single function– and little nuance to that function. According to them, the gun is a device to kill with, and a handgun in particular is designed for killing people, not animals. And of course there are also liberal groups that don’t even recognize hunting as a valuable or legitimate activity, but that’s another argument entirely. But this is exactly where I think the divide becomes important– how we regard a tool, and the level of nuance which we give it.

Conservatives too, are guilty of ignoring nuance, as they portray firearms as simply protective devices for law-abiding citizens, and ignore virtually the entirety of the community and individual instances of the abuse of firearms in the name of justice, so-called ‘Manifest Destiny’, or again, ‘protection,’ that dominate the historical U.S. landscape, especially the mid-west, the west, and the south of the U.S. Here I refer to the attitudes that generate police militarization, a problematic development that in recent years has both libertarians and liberals outraged quite often. Some will want to dismiss this as unrelated to the issue of individual firearm ownership, but there is likely a deep connection between the issues, when one focuses on the psychology of guns.

Both conservatives and liberals ought to be more willing to attempt to grasp the values the other group has before they even begin to engage in an argument. Essentially, both groups approach the gun issue with a typically closed mindset about what they will or will not agree to as solutions for the problems we face.

Guns are a tool. Understanding what kind of tool they are, and the psychological implications they have for differing groups– these matter to the discussion, but they are seldom discussed (in my experience).

Previously I mentioned compromise and innovation as solutions to our bi-cultural impasse. Compromise is valuable, and I think with a better understanding of what each group values, all of us will be better able to come to compromises that we can settle for. But the superior component in this is innovation. Innovation tends to ask if there is another way entirely– some way that would allow both groups to have their way, or would redefine circumstances such that the problem disappears, or says both sides are wrong or insufficient– and sends them back to the drawing board. Innovation will help us. We must be imaginative if we want to come up with ways in which gun-rights and gun-control can be adequately addressed. I have ideas of my own, but I’d like to let them cook before I bring them to the table. In time, I’ll make a post on my own suggestions.

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Educational Policy Discussion Without Pedagogical Context?

Paul Manna has aptly named his book, “Collision Course: Federal Education Policy Meets State and Local Realities”– the very title reflects the haphazard propulsion of educational endeavors in the US educational system. He details a number of frustrations with the No Child Left Behind Act (NCLB), including it’s tendency to lower expectations of students, rather than maintain them, or to distort the approaches of teachers, focusing on material and testing, rather than focusing on our long-valued, well rounded liberal arts education, or teaching students as individuals. The only notable lack in his analysis is that there is no explanation of pedagogy to contextualize pedagogical strains created by NCLB. His analysis claims three major positive influences of NCLB including a push for administrators, state officials, and teachers to narrow the achievement gaps between disadvantaged student groups and the rest of the students, the forcing of “educational bureaucracies to improve their technical abilities,” and in places where NCLB was adopted fully, necessary but difficult policy and administrative changes were pushed through because of NCLB’s requirements and Federal backing. His points are very well contextualized, although they may take a careful reading by readers unfamiliar with educational policy and issues in the US. His greatest strength is the balance of sources used to illustrate his points, and show the difficulties of NCLB. He utilizes statistical data, but complements it with simple explanations, and clear anecdotes, providing not only his careful analysis of what is actually going on, but including the public’s reaction to NCLB. While the book could easily be many times larger than it is, it covers the material well, and provides readers with a far better understanding of the complex issues, as well as the benefits and drawbacks, attending the No Child Left Behind Act.

The author takes some time in getting there, but he reconstructs the frustration over the restriction of available time and resources for primary and secondary teachers alike – and he does so with remarkable concision, encompassing the issues and providing analysis based on statistics. However, he does so only after reminding the readers of the various criticisms of the act. He quotes historian David McCollough, who asserts that history as a core subject has fallen by the way side because of the heavy focus on English and math. Others referenced by the auther claim that civic education is also markedly lacking, and even President Obama was quoted, saying that the liberal arts education his generation enjoyed is rapidly becoming non-existent for our youth today.1

These reflect the common statements heard in newspapers, classrooms, and staff room discussions all over the US today, but Manna continues, explaining that these conclusions, although anecdotal, are actually well supported by most of the quantitative data available. Most school districts showed decreases in art classes as well as science and social studies, commonly dropping an entire hour or more per week in those subjects. He also details the exceptions to the general support of that quantitative data. He details the achievements of the Osmond A. Church Elementary and Middle School, showing the reader that it is possible to focus on a new, NCLB driven curriculum that is both geared toward improving English and math skills, while maintaining gains in all areas, and serving a typically disadvantaged student population.

Manna’s observations aside, the ramifications for teachers are enormous – lesson planning by itself was already a difficult task. Pedagogy as a context is never addressed within his work, but such is important to fully grasp the nature of the struggle not only in the bureaucratic circles, but in the classroom. Teachers struggle to include all students, and remember to ‘teach students and not lessons’ is complicated by these new restrictions and pressures. From a pedagogical perspective, one can note that the solution lies in complex approaches to lesson planning and presentation, as well as grading programs and individual attention to students. This raises the bar, not only for students, but for teachers. Teachers who have traditionally had the freedom to design their own lesson plans must be clever to maintain what freedom in that realm they can. If one knows anything about pedagogy at all, it is hard to avoid these conclusions, despite Manna never addressing pedagogy directly.

Manna also points out that despite many conflicts and “tensions” generated by the legislation, NCLB has also driven some positive changes, assisting the reader in understanding complex political and educational interconnections. The positive benefits from NCLB include a focus on what has been called in educational circles ‘the achievement gap’. It has been tackled again and again, but students from lower socioeconomic positions have consistently scored poorly on tests, done poorly in school, and often fail to continue their education after high school. Central to NCLB’s attempt to narrow this gap in performance is the requirement for states to divide their reports on testing results into student categories, including minority groups, students with disability, students from low-income homes, and ESL students.2 This allows various government agencies, as well as local administration and educators, to monitor this achievement gap closely. Various looming consequences for failing to improve all (or the vast majority) of these groups from year to year (the term used here is Adequate Yearly Progress, or AYP) ensures quite a focus on the achievement gap, although that focus may or may not be effectively utilized toward improving student performance. His writing indicates that the legislation and the accountability measures in particular are flawed, but that the overall effect is a tension is generated within the educational system that is slowly changing our attitudes about how to go about education, testing, pedagogy, and administration.

Manna explains some of the nature of educational bureaucracies. These state and local administrative components to our educational system are varied across the nation, and examining the impact of NCLB requires that one look at each state individually. The act’s requirement for AYP meant that each state had to have a new accountability system, either in addition to, or as a replacement or adaptation of, their original system. Each state chose their own plan, and most, in seeking a way to measure this progress, actually contracted out that process. This complicated matters, because the testing agencies, while paid to do this, are certainly not perfect, indeed, they may not even be considered experts. This caused many school districts and states concern when inaccuracies in testing materials or grading processes resulted in problems with NCLB, namely inaccurate sanctions or poor ratings. Despite all of this, or rather because of these problems originating within state bureaucracies and their adjuvant contracts, the states have taken closer looks at how they measure performance, and who is doing the measuring. Most states concluded that their own systems were disconnected, disparate pieces, with little effective capacity for “tracking and integrating sometimes even basic information about their students and teachers.” Manna says that 39 states reported better data tracking systems because of NCLB’s influence. Some of these changes came with difficulty, as administrative and policy changes often do. This point, with connections throughout the book, is perhaps the best illustrated point, and the most necessary of discussions, if NCLB is continue in any effective direction.

Policy changes and administrative changes were also goals, for schools whose educational ‘culture’ was ‘broken’. On pages 85 and 86, Manna relates the common ‘restructuring’ moves made by many schools: replacing a principle, and occasionally other administrative staff, along with various teachers and other employees. He notes that the attempts made at restructuring were varied, some schools attempted very little, but others were able to use Federal backing to push through big changes. The explanation follows about a school shutdown and restart in Michigan. Manna draws a heavy contrast between schools’ typical actions (or lack thereof), and what NCLB actually seemed to call for – which few school districts utilized. Bureaucracies and state employees are notoriously difficult to change, or fire, yet NCLB attempts to change that. Manna is effective in explaining how NCLB makes that possible, primarily through the use of these anecdotes.

Smooth transitions and clear connections, here and throughout the work, exemplify Manna’s ability for tying examples and stories to the theoretical framework and interactions at the policy level itself. To create his framework, assumptions about human nature are made, but are never clearly articulated in a broad, philosophical sense; rather, they are exemplified through the various anecdotes utilized. The stories are wide and varied, and range over a variety of human behavior, pointing to a view that says humans are flexible and varied. Such is integral to his analysis, as discussion of human nature never enters the conversation. Instead, his analysis tells us that the way we structure accountability systems, conflict and confrontation, education and the classroom, not to mention testing for proficiency, all can have marked impacts not only on the students in the education system, but on the adults administrating it and teaching within in it.

1 Paul Manna, Collision Course: Federal Education Policy Meets State and Local Realities (Washington D.C.: CQ Press, 2011), 116.

2 Ibid, 23.

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Fighting Police-State tendencies… Utah’s House Bill 59

Recently, Utah State Representative Stephen G. Handy has  proposed a bill to, in his own words: “allow for police officers to perform their duties in pursuing arrests for criminal activity that did not occur in their presence. This may sound alarming . However, there are many instances in which we allow police to pursue arrests in this manner.”

This is misleading. While there may be problematic language with what is currently on the books and what policemen should be able to do, as evidenced by three examples Handy provides, the proposed legislation is dangerous and risky. Currently policemen have authority to arrest someone upon probable cause of a Felony or a Class A Misdemeanor. These seem like relatively reasonable lines to draw, but the bill that has been proposed would change these limits. The first change is from probable cause to reasonable cause or reasonable suspicion, as it is more commonly called. This might bother me, but I’ll hold off judgement on this portion of the bill, because I haven’t studied law, and I’d have to study that and think about it for a bit to decide if that’s a reasonable change.

The other change is what troubles me– and, in the common vernacular: It is not cool. The bill “amends a peace officer’s authority to make an arrest without a warrant upon reasonable cause by providing that this authority includes any misdemeanor, rather than current law which grants the authority to arrest upon reasonable cause to class A misdemeanors and felonies.” Given what Class B and C Misdemeanors include, this makes me very opposed to the bill, because police authority could then be abused far too easily.

In the Deseret News comments section online, one ‘John C.C.’ from Payson says:

Sample Class B misdemeanors: Illegal fireworks, gambling, writing a bad check, possessing a keg of beer, retail theft, possession of marijuana, road racing, failure of public official to disclose conflict of interest, disturb the legislature, do business without a license, damage a government survey marker, damage a road sign, fornication, false fire alarm, minor graffiti, let your kids sluff school, fishing w/o license.

Sample Class C misdemeanor: speed, leave your neighbors gate open, use vulgar language on a bus, misnumber your written checks, lie to avoid jury duty, abandon your campfire and it reignites without hurting, anything, give cigarettes to a minor, public urination, public intoxication.

A website leaning toward the ‘blue’ side discusses the unacceptable risk for abuse of this law here. A friend of mine on Facebook commented on the issue, saying:

It strikes me as a misunderstanding here – Congr. Handy probably doesn’t really understand the difference between arresting someone and charging them with a crime. Nothing would stop a Utah policeman, under existing law, from issuing a citation for these minor, though unwitnessed, misdemeanors – and it’d be up to a judge to decide whether the evidence, if any, deserved further proescution. This has nothing to do with making an arrest. Making an arrest is a matter of keeping public order. There’s no reason to do it otherwise, in the absence of a specific warrant. It’s as if Handy imagines that arrest and conviction are the same thing.

While I certainly don’t expect that officers will immediately begin abusing this authority to some intolerable degree, but I’m certain that the change in law creates a tenor which requires less proof from the state– less burden on them before they can detain, arrest, and interfere with the lives of the average citizen. Where there is less requirement for proof, accountability suffers, and in this case, civil liberties could easily come under assault by individual officers who misinterpret situations, deliberately or not. In short, this bill is a subtle threat to our civil liberties and should be resisted vigorously by the population. We can and should be vocal– email your state representative today. If you live in Utah County, your rep is Patrick Painter. If not, you can find out who your Representative is by searching at www.utah.gov.

Finally, I include a sample letter, written by my friend Kevin:

With the rising cost of incarceration 2008 statistics show at about $30,594 per inmate (http://nicic.gov/features/statestats/?State=UT) and a proposed 7 percent cut in the Utah State Prison that could potentially prematurely release about 850 prison inmates along with the job loss of approximately 175 Corrections staff members (http://www.sltrib.com/sltrib/home/51145440-76/cuts-proposed-budget-prison.html.csp).

According to the same Salt Lake Tribune article there would be a need to curtail DUI enforcement.  All of this at a time that the Utah Legislator is choosing to submit, HB 59 on Arrest and Requirements with or without Warrants by Stephen G. Handy.  The bill “amends a peace officer’s authority to make an arrest without a warrant upon reasonable cause by providing that this authority includes any misdemeanor. . .”

If during a time of budgetary shrinkage why on earth would we want to allow police officers the ability to arrest people for any “misdemeanor”, i.e.: J-Walking, Spiting in public, vulgar language, etc.  It seems this would require tax payers to pay more dollars for less effective government and create more bureaucracy.

Please help stop the passing of this bill.

Sincerely, ______________

 

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