21 January 2011

TJIC, pt 2

Jeffrey Ellis, always worth listening to, weighs in:
Now, my kneejerk reaction here was one of outrage, and an assumption that Travis’s second amendment rights had been egregiously violated. (In fact, I wrote many paragraphs to that effect that I ended up deleting after I dug a little deeper and thought about it some more…)

But, digging a little deeper, it turns out that the police’s actions may have been legit, at least superficially. Here’s the relevant passage from Massachusetts gun laws (emphasis mine):
A license issued under this section shall be revoked or suspended by the licensing authority, or his designee, upon the occurrence of any event that would have disqualified the holder from being issued such license or from having such license renewed. A license may be revoked or suspended by the licensing authority if it appears that the holder is no longer a suitable person to possess such license. Any revocation or suspension of a license shall be in writing and shall state the reasons therefor. Upon revocation or suspension, the licensing authority shall take possession of such license and the person whose license is so revoked or suspended shall take all actions required under the provisions of section 129D. No appeal or post-judgment motion shall operate to stay such revocation or suspension. Notices of revocation and suspension shall be forwarded to the commissioner of the department of criminal justice information services and the commissioner of probation and shall be included in the criminal justice information system. A revoked or suspended license may be reinstated only upon the termination of all disqualifying conditions, if any.
[...] So the confiscation of Travis’s guns seems legal given the fact they have suspended his license. The question remains whether the suspension is justifiable under Massachusetts’ laws; I cannot find a concrete definition of what constitutes “suitable” in these laws. I see passages that indicate documented mental illness, criminal records, etc. are grounds for suspension or revocation, but I can’t find anything granting the police the power to decide on their own that someone’s expressed opinions renders them “unsuitable” for a gun license.
To me the absence of a definition of "suitable" makes this legislation nigh illegitimate. "Suitable" is one of those mealy words -- like "reasonable" and "appropriate" -- that legislators use to abdicate responsibility for putting their ideas in writing. Such legislation violates the very purpose of having codified laws because it pushes us right back into a Rule of Men state.
I think this is one of those stories where the most prudent thing to do is not jump to conclusions, but rather hold one’s initial opinion at arm’s length unless and until more information comes along. The questions I’d like to get answered are:

  • How, specifically, does Massachusetts law define “suitability” for a gun license? And does Travis indeed violate that definition of suitability?
  • What authority does Massachusetts law give police in determining that suitability?
  • Do the Massachusetts gun laws comply with the Constitution?
  • What does the law say, specifically, about the kind of speech Travis engages in, advocating violence against politicians?

And I would encourage others in the blogosphere not to be so quick to jump on the “I Am TJIC” bandwagon unless they have some pretty good answers to these questions. I know I don’t.
It is the very fact that those questions have to be asked that bothers me, specifically the first two. (The first should probably not be "How does..." but "Does Massachusetts law define 'suitability'"?)  The point of a code of laws is that the consequences of actions are predictable in advance.  The fact that we have to sit around scratching out heads wondering who is empowered to determine something as vague as "suitability" and how they might define it is ... how to put this politely? ... undesirable for a free and just society.

Readers will note I posted that "I am TJIC" image.  Maybe I'm just bandwagoning.  I don't know.  But I had in mind a very specific notion.  Corcoran blogged an utterly ugly comment about Tucson.  Then he reblogged thirteen of my (I think reasonable) ideas about Tucson.  The way I see it that puts me and him pretty close together by some metrics, even though I fully reject his initial post.

Like Ellis I disagree with Corcoran often enough.  But he and I are close enough together than it's more than a little discomforting seeing his property seized when the authorities don't like what he has to say.  This seize assets first, adjudicate later is all too common.  Maybe it's legal of them.  Maybe is reasonable.  But it's definitely distressing.

I will bet dollars to donuts that this has way more to do with TJIC being perpetually, caustically critical of local law enforcement than it does with anything he had to say about Giffors or congress.  That's deeply frightening to me.

~ ~ ~

Edited to add [22 Jan]: Ellis has another post about this that is also worth checking out.

Also, as he points out in the comments below, it may just be that he did not find the definition of suitable, not that it is missing entirely. This is entirely true, and I should have accounted for that. However it is just the sort of word I would not be surprised to find left undefined. Furthermore it reflects poorly on our republic that people must go searching vigorously through the code to figure out what the legality of certain actions are — or worse, what the legality of certain words are — and that even after they do so they can still be unsure about whether they have missed something like a definition of a crucial modifier.

Finally, Ellis concludes with this:
But, for this speech to be illegal, there must be (a) true intent to incite violence, and (b) a real likelihood that violence will in fact be incited. In the case of Travis’s opinions as expressed on his blog, I’m not sure either of these conditions have been met. Travis, if nothing else, is a man of GOALS, and he pursues his stated goals with incredibly tenacity. Readers of “Dispatches from TJICistan”, I need say no more, am I right? If Travis truly intended for congresscritters to die, the steps of the Capitol Building would be stained red and Travis would be posting about the best places to order more ammo from. Since this is not the case, I think Travis is engaging in hyperbole.
If all you know about TJIC comes from the one ugly blog post that made the news it makes sense to think he's a dangerous lunatic. But if you know anything else about him, if you read the follow up post in which he explained his unified theory of politics and the appropriateness of violence, assassination and revolution, if you read the post of mine he reblogged, if you read any of his year long series of posts about his goals and resolutions and progress towards them, if you had any other familiarity with the man, it would be very hard to reach those same conclusions.


  1. Just to be clear, I'm not sure their legal definition of "suitability" is absent -- just that I couldn't find it. It might be defined on one of the pages I didn't read. (I could not, for example, find the "chapter 209A" section that is referred to in one passage on suitability, and it might be defined there.) IF truly absent, then I agree with you that this should render MA. gun laws as illegitimate in any reasonable person's view.

    Agree with you, and voiced the same opinion, that this may just be opportunistic retaliation against TJIC for the things he's said about abuses of police power.

  2. Yes, good point. I should have included an "If absent..." disclaimer in the first 'graph of my comments. Leaving such a definition out would be entirely in character for most lawmakers, so perhaps that is why I jumped to that conclusion. Too often they exhibit the same "Well *I* know what I meant!" thinking of the Intro to Programming students I have taught and feel like making their ideas explicit is too much trouble.

  3. I posted some comments on that thread you might find worth reading.

  4. Good comments. Thanks for the pointer.

    I think TJIC may have a nonzero chance at demonstrating capriciousness though. If he could demonstrate, for instance, that there are other people the Arlington PD have not applied the same standard to, that would be an indication of capriciousness, AFAIK. Of course the deck is stacked for the PD, so even if he could do that the judicial review might ignore it, but it's not theoretically at least, impossible to demonstrate that this was capricious.