Heller and the DC Gun Ban

A well-regulated militia, being necessary for the protection of a free State, the right of the people to keep and bear arms, shall not be infringed.

— Second Amendment to the Constitution of the United States of America

Last Thursday, the Supreme Court ruled in favor of individual gun ownership, and, somewhat paradoxically, in favor of state – as opposed to federal – regulation of same.

In District of Columbia v. Heller [.pdf], Justice Scalia wrote the majority opinion for Chief Justice Roberts and Justices Kennedy, Thomas, and Alito [Breyer, Stevens, Ginsberg, and Souter dissented. Quelle surprise! The minority arguments were mostly contrived and ideological, in my layman's opinion]. The ruling has been hailed as a great victory for gun rights, a return to Constitutional government, and all kinds of clap-trap.

In fact, it’s hardly laudable as Constitutional fidelity. In writing the majority opinion, Scalia said:

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist [sic] rhetoric.… John Smilie, for example, worried not only that Congress’s [sic] “control of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.”

This last, by the way, is exactly the liberal argument against gun ownership I hear most often: individual gun ownership is no longer necessary because we now have the Army and the police. What kind of blithering idiot would one have to be in order to entrust his very life into the hands of the government? I mean, an organ that cannot understand that 2 + 2, always and forever, equals 4 — not 5, and not 3 — is going to keep me safe and sound? Really?

Scalia continues:

Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. … It was understood across the political spectrum that the right helped secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

Notice that “Congress was given no power,” not “Congress has no power,” nor “Congress possesses no power.” This insignificant statement belies its importance. Buried in a typically verbose rendering of opinion are the keys to the kingdom. The fact is, the original intent of the Constitution was to circumscribe the powers of the federal government. A strict constructionist — or, as I prefer to refer to them, someone who knows what the heck the Constitution says — would understand that such a document provides an exhaustive list of governmental powers, as would have been the custom in the late eighteenth century. This is a concept which is sorely missing in modern discussion of Constitutional republican government: that the powers of Congress, the President, and the Judiciary are limited to those specifically spelled out in the text of the unamended Constitution. [In a future post, I will analyze the political and financial implications of a truly Constitutional government, and why such a government is unlikely in modern America]

Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors…” [the] petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of that right. If, as they believe, the Second Amendment is no more than the right to keep and use weapons as a member of an organized militia, — if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure a “citizens’ militia” as a safeguard against tyranny… For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force. That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. … Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation. [Emphasis in the original]

For the life of me, I can’t pin down these guys — the four “conservatives.” On the one hand, they’re doing all they can to ignore basic Constitutional concepts to the benefit of a despotic Unitary Executive, and on the other hand seemingly trying to ensure that the same despot is finally limited in his grasp, if not his reach.

We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. … It is demonstrably not true that, as JUSTICE STEVENS claims… “for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself.

Then comes the rub, the catch, the vig:

Like most rights, the right secured [not granted] by the Second Amendment is not unlimited. From Blackstone through the 19^th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [He then lists several legal prohibitions of firearms, and disclaims the list as not meant to be exhaustive] … We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” … We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

Further gun-rights minimization comes because “the conception of the militia at the time of the Second Amendment’s ratification [a time when there were no standing armies, mind you, much less machine guns, fighter jets, or ICBMs] was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”

The case was about the validity of the DC handgun ban. The narrow scope of the case, and the unique legal position of DC, makes this decision much less the “harbinger of a new era of freedom” than so many pundits would have us believe.

The DC ban consisted of the fact that residents of the District were not allowed to possess unregistered handguns; registration of handguns was not allowed; licenses for handguns could be obtained only from the Chief of Police, and would be valid for one year; and, finally, the Chief of Police had sole discretionary power to decide who would receive a license. It was, for the most part, the total caprice with which the ban was regulated that the Court took greatest issue.

As we have said, the [DC handgun law] totally bans handgun possession in the home. … As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. … The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. … [B]anning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” … would fail constitutional muster.

…It is enough to note… that the American people have considered the handgun to be the quintessential self-defense weapon.

Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

We must also address the District’s requirement (applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

We… do not address the licensing requirement.

One must note that whatever the majority position of the Court on various issues, SCOTUS is still an institution of the state, dependent upon the President for nominating, and the Senate for confirming, its membership, and dependent upon the Congress in toto for its funding. My point is, no matter what Article III of the Constitution, or your high school civics teacher, says, the Third Branch is decidedly not independent of the other two, and when the chips are down, it will fall into line with the dictates of the state.

Scalia left the door open for just such nefarious activity — the Court rubber stamping the prohibitions of the Congress — when he wrote:

[The dissent] chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. … But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field… [a]nd there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us. [My emphasis]

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.

[…]

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

This is some reassuring rhetoric from the bench. But the fact that the Court refused to nail down absolute limits on possible prohibitions — and even refused to rule on the legitimacy of the bald-faced “infringement” of licensing, based solely on the injured party saying he “doesn’t have a problem” with being licensed [as if a police officer is the final repository of Constitutional jurisprudence; a cop has a vested interest in keeping tabs on all citizens' activities by the very nature of his job] — is true cause for concern, what with the likelihood the next President will replace sitting justices with political activists, regardless of who wins in November.

Hans-Herman Hoppe has this to say about the inherent fallacy of a limited, Constitutional government:

Because they are not subject to and bound by contracts, states typically outlaw the ownership of weapons by their “clients,” thus increasing their own security at the expense of rendering their alleged clients defenseless. In contrast, no voluntary buyer of protection insurance would agree to a contract that required him to surrender his right to self-defense and be unarmed or otherwise defenseless. To the contrary, insurance agencies would encourage the ownership of guns and other protective devices among their clients by means of selective price cuts, because the better the private protection of their clients, the lower the insurers’ protection and indemnification costs would be.

Doing the FISA Polka

Last week, the honorable members of the US House of Representatives voted on an unprecedented piece of legislation. Under the weight of a 19% approval rating [pdf, Fox News poll, question 16], our stalwart leaders, elected in 2006 in a much-touted Democratic takeover of Congress — pledged to end the war in Iraq and bring the out-of-control George Bush to heel — took the bold move of thumbing their noses at this illegal administration by caving in completely on the FISA deal.

In case you didn’t know, FISA (Foreign Intelligence Surveillance Act) is a bill passed in the Seventies in order to justify secret government collaboration against “enemies of the state”, and set the stage to side step Fourth Amendment protections in the process [If one assumes that the "inalienable human rights" enshrined in the Constitution (by derivation from the Declaration of Independence) are, in fact, considered universal.  I do.].  It allows warrantless surveillance (justified after-the-fact) and searches of “foreign agents” — agents of foreign governments.  It has been amended several times to include lone actors and non-governmental entities.  This deal is to allow warrant-less surveillance of communications originating within the US, and even has a proviso for compelling Big Telecom to act as the administration’s agent in collecting surveillance (in the form of calls, emails, and other electronic media), despite the “reasonable assurance of privacy” inherent in the use of phone lines and Internet access.

The real kicker in this, as far as I am concerned, is the amnesty offered Big Telecom for their complicity.  Should a victim of such blatant violations sue Big Telecom over such collection, the AG can just send a letter to the presiding judge explaining how the information is material evidence gathered for national security purposes, and the judge must dismiss charges.  The injured party is prevented from even being told whyhis case has been dismissed.  Did I mention that this would apply to the cases currently brought against Telecom?  That means the government can amnesty companies that did something illegal before they had the power to grant amnesty.  It’s essentially going to become legal for them to do it now, so anyone who did it before it was legal will reap the benefit of it now being legal.

I seem to remember something, somewhere about not having ex post facto laws.

Big Telecom is being amnestied for violations of basic human rights, Constitutionally protected rights.  If the government is allowed to trample the Bill of Rights with impunity, and to conscript to this end corporate players, and also exempt any and all — past or future — victims of such tyranny from their protected ability “to petition the government for a redress of grievances,” where does it end?

Paul Craig Roberts recently had some thoughts on this:

The House Democrats, led by “impeachment-is-off-the-table”Nancy Pelosi, added to the Democratic Party’s shame by passing today, June 20, a bill that shields from punishment the criminal Bush regime and the telecommunications corporations that the Bush regime coerced into committing felonies under US law by cooperating in Bush’s illegal spying on American citizens.

The great hope of the Founding Fathers, the people’s house, the House of Representatives, has passed an unconstitutional retroactive law making acts legal which were illegal when they were committed.

If a Democratic House of Representatives will pass a retroactive law in order to legalize the criminal violations of a Republican regime, the same House will pass a retroactive law making illegal what you did legally yesterday. No one is any longer safe in America. By abandoning the US Constitution, Republicans and Democrats have made America as potentially unsafe as Zimbabwe for anyone who takes exception to the government. [Links and emphasis in original]

There has been discussion that the 1798 Calder v. Bull SCOTUS decision applies here.  I’m just a sea lawyer, but my read on that is that Justice Samuel Chase applied (along with Blackstone and the long precedence of English common law) the ex post facto prohibition only to laws with incur or increase punishment, not laws which mollify same.  Justice James Iredell agreed, in that ex post facto can only be applied to criminal, and not civil, law.

I’ll leave that aspect — the legality of such a proposal — to greater legal minds than mine.  There are bigger fish to fry here.  I do want to close this discussion with a thought, from Justice William Paterson in the Calder case, which I’d hazard to sum up as, “Whether or not it is legal, it is wrong“:

I had an ardent desire to have extended the provision in the Constitution to retrospective laws in general.  There is neither policy nor safety in such laws; and, therefore, I have always had a strong aversion against them.  It may, in general, be truly observed of retrospective laws of every description, that they neither accord with sound legislation, nor the fundamental principles of the social compact.

Oklahoma Secedes!

Ok-Lah-HO-Ma.  You know, the state that’s on the other side of the Red River?  Vacation destination for Texas legislatorswhen in-session?  Full of “Injuns” armed with casinos?  Sooners?  Slowpokes Cowpokes Cowboys?  Am I alone in the room?

Okay, maybe it’s not secession.  Maybe they just declared what the Constitution clearly states, no matter the claims of the Cult of Lincoln:  each of these united States is sovereign.  [The real shocker here:  politicians who can read (the Constitution)]

The text of the resolution is here. (Thanks to the LRC blog for the link)

But, hey, it’s a start.  I don’t know what is driving this, but there are certainly plenty of reasons from which to choose.  From unfunded federal mandates like Bush & Kennedy’s “No Child Left Behind,” to the NAFTA Super-de-duper Highway, to the threat of judicial tyranny in regards to OK’s anti-illegal alien laws.  Oklahoma obviously has the cojones that I wish Texas still had.

What’s the probable outcome of this?  Well, I think it’s kind of like that carnival game with all the gophers — though, in this instance, maybe “prairie dogs” would be more appropriate — where the first one to stick its head up is the first one to get whacked.

The libertarian in me kind of hopes that this ends up sparking a movement that stuffs the djinni of the federal government back into its lamp.  Let’s look at what the US would look like if there were actual respect for Constitutional limits on government:

• Most every Cabinet-level department would be gone.  The President could still have a Cabinet of advisers, but the bureaucracies those positions now represent would no longer exist.  Argument in support of a Secretary of Defense — as in, defense — could be made, but I think that would be a purely administrative position, sort of a glorified JCS.  With no powers.  All of the bureaucratic mess that is lumbering along now [largely, Congressional responsibilities that have been abdicated by Congress] would be returned to the legislative branch.  Aw, heck.  Make that “every Cabinet-level department gone.”
• No standing armies.  Look into history; any time a state has maintained standing armies, it has been because they were hegemonic or despotic, either oppressing citizens of another state, or oppressing their own citizenry.  No standing armies would mean that we’d have no need of military installations in nearly 150 countries around the world.  It would also mean the de facto  state welfare [especially in the South] provided by the military would dry up, forcing states to develop their economies.
• Gold standard; no central bank.  The Constitution gives Congress — and Congress alone — the power to mint money.  The Federal Reserve Bank is a quasi-governmental corporation, which essentially cartelizes and socializes the American banking industry.  When banks lose, you lose.  When banks win, you lose.  Real, asset-backed money and market-set interest rates would stop the ups and downs of the business cycle.  No boom, no bust, no bubbles.
• No redistribution of wealth.  Not only would there be no IRS and no income tax [or un-FAIR tax, or sales tax, or any other direct tax], but there would also be no Social Insecurity, no welfare, no subsidies.  Watch the markets boom when people become the masters of their own destinies incomes, when they are forced to work — even innovate — to eat.  Watch industry soar and prices plummet when governmental meddling in such things as wages, transportation, capital investment, resource allocation, and prices comes to an end.  No natural disasters which result in wasteful and fraudulent government aid at taxpayer expense.  No market collapses that result in criminal seizure of taxpayer monies to prop up failed, anachronistic businesses which refuse to, or simply can’t, adapt to new market conditions.  No subsidies distorting market forces and causing shortages in essential commodities.
• The role of the federal government would be circumscribed to the bare minimum:  fix what roads are not privately owned; defend our sovereign borders [against actual threats — such as being overrun by Third World socialists — not presumptively "imminent threat" paper tigers with fourth-rate militaries half a world away]; promote healthy, mutually beneficial domestic and foreign commerce [largely by staying the heck out of the way of it — no sanctions, no "free trade" agreements, no "Most Favored Nation" status given to any foreign trade partner]; promote the general welfare by protecting the rights of [inherent] minorities and enabling equality of opportunity [but not foolishly trying to guarantee equality of outcome].

Don’t misunderstand me.  I think human beings have an obligation to care for others who can’tcare for themselves; but charity is one thing, compulsion is another thing entirely.  And I’m not some starry-eyed Utopian; I know full well that few, if any, of the above reforms are likely to happen.

But wouldn’t it be great if they did?

Oklahoma was pretty much a leader in the illegal alien thing — a trendsetter, even — and that made them “OK” by me. [C'mon... you knew it had to happen]  Here’s to hoping that this lights off another wave:  one of forcing the Federal beast to stay within its Constitutional limits.

Canadian Superior Court Abolishes Parental Rights…

…Judge Says “Big Brother Knows Best.”

Okay, maybe not “abolishes.”  But something along the lines of “effectively abolishes,” or “paves the way for abolition of” would be more precise.  Even “thumbs its nose at.”

COURT OVERTURNS FATHER’S GROUNDING OF 12-YEAR-OLD

OTTAWA (AFP) — A Canadian court has lifted a 12-year-old girl’s grounding, overturning her father’s punishment for disobeying his orders to stay off the internet, his lawyer said Wenesday.

The girl had taken her father to Quebec Superior Court after the refused to allow her to go on a school trip for chatting on websites he tried to block, then posting “inappropriate” pictures of herself online using a friend’s computer.

[...]

According to court documents, the girl’s Internet transgression was just the latest in a string of broken house rules.  Even so, Justice Suzanne Tessier found her punishment [!!!] too severe….

I understand that the average Quebecois is superior even to the average Frenchman, who, as we all would agree, are just the best darn people on the planet.  But Heronner Tessier just takes the cake on this one.

I believe, were I this young lady’s father, not only would Ms. Tessier be the proud new parent of a froward preteen, but she also would be receiveing the forwarded bill for court costs.  This fop certainly has no right to rule on lawful parental discipline, and should be ridiculed for not throwing the case out.

On Canada’s National Post, Lorne Gunter agrees:

Ms. [Lucie] Fortin [the girl’s lawyer] and the Quebec Superior Court judge who sided with her client have stepped so far over the line of what is appropriate state intervention in family affairs it’s hard to measure their transgression. This is an appalling example of the state no longer understanding that there is a private sphere into which it must not tread.

The father was not beating his daughter. Apparently, the father and mother are in the midst of a bitter custody battle, and some experts have suggested that somehow that is a mitigating circumstance that explains why the girl going to court is not as outrageous as it seems. But if anything, that makes the court’s actions worse. Here is a father who has full-time custody struggling to keep his daughter from getting caught up in the whole world of Internet predators, while also dealing with all the issues of discipline and conflicted loyalties that arise from divorce, and now the court has made his task far more difficult.

Even if his punishment is an overreaction, unless the judge wants to take over raising his daughter directly, calling all the shots, making all the emotional, on-the-ground, late-night decisions, the judge should butt out.

If the state has no place in the bedrooms of the nation, it also has no place in its family rooms.

Ah, Canadia!  Where the men are men [until effectively castrated by a woefully overreaching judiciary]!

At least that kind of naked government intrusion can never happen here in America!

Fear and Loathing in West Texas

[What follows is something I was working on prior to taking more than a weeks' vacation in an area with no internet access... And yet, we still managed to have a great time. (Yes, kids, it's true: there IS life without technology!) I have not even checked to verify any of this is still timely... Live with it. Or don't. ]

Contrary to my predictions, and totally surprising to me, the Constitution actually won recently… sorta.

The victims of Texas tyranny were told (some of them, anyway) by the Texas Supreme Court that they could collect their kids and go home.

In the words of Cinderella’s wicked Stepmother, “If.“

[And can ya' tell I have young daughters?]

The Yearning for Zion Ranch is a 1,700-acre complex near Eldorado, Texas, that is home to a large community associated with the Fundamentalist Church of Jesus Christ of Latter Day Saints. On March 29, 2008, the Texas Department of Family Protective Services received a telephone call reporting that a sixteen-year-old girl named Sarah was being physically and sexually abused at the Ranch. On April 3, about 9:00 p.m., Department investigators and law enforcement officials entered the Ranch, and throughout the night they interviewed adults and children and searched for documents. Concerned that the community had a culture of polygamy and of directing girls younger than eighteen to enter spiritual unions with older men and have children, the Department took possession of all 468 children at the Ranch without a court order.[1] The Department calls this “the largest child protection case documented in the history of the United States.” It never located the girl Sarah who was the subject of the March 29 call.

^[1] See Tex. Fam. Code § 262.104(a) (“If there is no time to obtain a temporary restraining order or attachment before taking possession of a child consistent with the health and safety of that child, an authorized representative of the Department of Family and Protective Services . . . may take possession of a child without a court order under the following conditions, only: (1) on personal knowledge of facts that would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child; (2) on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child; (3) on personal knowledge of facts that would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse; (4) on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse . . . .”).

[Forgive me for being thick, but which, exactly, of the four situations described in the Family Code above, existed in Eldorado on 3 April? I'm counting none....]

While the Wally and the Supremes didn’t actually lay down any additional requirements, they also didn’t clearly reprimand the CPS fascisti, either. Enter Texas District Judge Barbara Walther [a.k.a. "the source of all that is unholy in West Texas" -- okay, maybe not allthat's unholy], once again winner of the “Brownshirt of the Week” award (with multiple gold stars in lieu of additional ribbons).

When SCOTex handed down its ruling, it left a lot of grey area in it. The decision states that they are intentionally not addressing anything outside the precise confines of the request before them, and supporting the appellate ruling.

The Department petitioned this Court for review by mandamus. [Funny, CPS knows about common law when it works for them. Selective amnesia?] Having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision. On the record before us, removal of the children was not warranted. The Department argues without explanation that the court of appeals’ decision leaves the Department unable to protect the children’s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care. The court may make and modify temporary orders “for the safety and welfare of the child,” including an order “restraining a party from removing the child beyond a geographical area identified by the court.” The court may also order the removal of an alleged perpetrator from the child’s home and may issue orders to assist the Department in its investigation. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense.

While the district court must vacate the current temporary custody orders as directed by the court of appeals, it need not do so without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede in response to the Department’s motion for emergency relief. The court of appeals’ decision does not conclude the SAPCR [Suit Affecting the Parent-Child Relationship] proceedings.

Although the SAPCRs involve important, fundamental issues concerning parental rights and the State’s interest in protecting children, it is premature for us to address those issues. The Department’s petition for mandamus is denied.

Walther decided that these lucky people –

• against whom no charges have been brought,
• who remain free of taint of wrong-doing,
• whose one public sin is that of being visibly different from the general populace

these more-or-less upstanding members of the community, if not precisely pillars thereof, must:

• present themselves to the state in order to retrieve their kidnapped children (after having gone to the four corners of the State across which their children were scattered — on their own dime)
• promise not to leave the State of Texas with their kids
• submit to the humility of having no less well-qualified guardian of children than Oz, the Great and Terrible for parental re-education
• endure the further insult and injury of making themselves available at all hours for inspection by the same agency that illegally and unconstitutionally seized their children and defamed both their character and their morality [as popularly defined, anyway].

All of which falls within the scope of the decision handed down by Wally and the Supremes. No big deal, right? Kids are back to their homes and better off than they were before, even though th parents are foaming-at-the-mouth sexual deviants anyway, right?

Not so much.

Unless you believe that the severity of the accusation outweighs the preponderance of the evidence, or that the fact that they’re “just weird” justifies any possible actions the State may take against them. The fact that they were not even formally charged with a crime means that:

1. CPS was entirely unjustified in entering the compound
2. The various state and county organs involved in the kidnapping were entirely unjustified in seizing any YFZ records or persons
3. Any “evidence” generated as a result of such seizures, contrary to the grandstanding of career politicians masquerading as executors of justice, is invalid and must be dismissed
4. Any cases being developed against any individuals involved with YFZ, based on such illegal evidence, must be thrown out

[My Lovely Bride has always had a weakness for cop dramas: NYPD Blue, Law & Order, etc. So we have watched our fair share of such. Ergo, I know all about the "poison fruit of the poison tree" argument in discovery. Maybe it doesn't translate when the cops are defrauded into a raid, but it certainly seems like it should. If "Sarah" hadn't called, after all, we wouldn't be having this conversation. But that's logical; common law, though common sensical, is not necessarily logical. Any professional barristers who can, please point out any mistakes in my reasoning.]

I feel compelled to interject here my utter disgust with “Christian” groups and people who have been cheering on this Orwellian nightmare. In my own congregation of believers, I incredulously found myself defending potential polygamists and child abusers, based entirely on the fact that the initial phone call from “Sarah” had proven to be a hoax… and this was the Sunday after the raid, over a month ago. Why is it that a sea lawyer like me could see with perfect clarity the root of the issue, but career jurists still can’t find the noses on their faces?

The (somewhat) dissenting opinion:

The testimony of Dr. William John Walsh, the families’ expert witness, confirmed that the Fundamentalist Church of Jesus Christ of Latter Day Saints accepts the age of “physical development” (that is, first menstruation) as the age of eligibility for “marriage.” Finally, child psychologist Dr. Bruce Duncan Perry testified that the pregnancy of the underage children on the Ranch was the result of sexual abuse because children of the age of fourteen, fifteen, or sixteen are not sufficiently emotionally mature to enter a healthy consensual sexual relationship or a “marriage.”

Evidence presented thus indicated a pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, on the Ranch — evidence sufficient to satisfy a “person of ordinary prudence and caution” that other such girls were at risk of sexual abuse as well. Id. § 262.201(b). This evidence supports the trial court’s finding that “there was a danger to the physical health or safety” of pubescent girls on the Ranch. Id. § 262.201(b)(1); see id. § 101.009 (“‘Danger to the physical health or safety of a child’ includes exposure of the child to loss or injury that jeopardizes the physical health or safety of the child without regard to whether there has been an actual prior injury to the child.”); cf. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (affirming the termination of parental rights for “endanger[ing] . . . the physical well-being of [a] child,” and holding: “While we agree that ‘endanger’ means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury. Rather, ‘endanger’ means to expose to loss or injury; to jeopardize.”). Thus, the trial court did not abuse its discretion in finding that the Department met section 262.201(b)(1)’s requirements.

What can we learn from the two opinions? The minority of the SCOTEx look at the situation, see that no crime was committed (or at least can be proven), and says, “But we knowthey did something, and the ends justify the means, so these kids shoulda been taken, regardless of the facts!” The majority of the Court looks at he situation, and says, “There was no crime, and the kidnapping was illegal, so the kids must be returned to their parents. However, since we’re pretty sure something has to be going on out there — those people are just weird!– we’re going to allow further intrusion into and disruption of your lives, make sure you’re stomped under our jack boots, just in case. I seriously don’t know which one was worse — okay, the minority Supremes woulda not let the kids go home, so I guess that tips the scales. Either way, none of these yahoos needs to be re-elected again. Or the idiot that started it all in Tom Green county.

Why do I have such a low opinion of the state’s ability to raise children, or oversee such activities? Aside from the obvious, I mean? In 2004, State Comptroller Carol Keeton Strayhorn issued a special report [follow links for text of the report] detailing abuses in the Texas foster care system. The graph below provides food for thought on whether the State of Texas is the best bet for kids, even, arguably, those who are known to be in abusive situations at home. The State’s record for abuse is certainly not much better than that of the general populace.

[And bear in mind, many of those abused in the system are already victims of abuse by their families, the justification the State used to throw them into the grist mill of ...the State. Imagine how damaging that must be, to find yourself being treated as badly or worse than the situation from which you were lately rescued!]