Sometimes Law Not Enough

Q: Will more gun laws prevent another Virginia Tech tragedy?

A: Before beginning to offer critical comment and opinion on the thought of gun laws, Sidebar wishes convey its deepest condolences to the families of the victims in Blacksburg. Little can pacify the pain that unmasked evil has wrought upon you. May God comfort you as you grieve.

“We are a nation of laws and not of men,” said the scholar. Yet, when a lunatic stands at the opposite end of the barrel, laws seem to have little meaning. Men, meaning mankind, seem to make the nation in that moment; not the laws being flouted by the merciless.

Ever since there have been guns, the debate has swirled: who should have them and how should they be used? As our country was founded, those who kept the power wielded the weapon. The Patriots of old were oppressed by the firearms of the British Regulars. In adopting our Constitution, it became evident that sometimes it is necessary for civilians to bear arms. More than that, it was obvious that sometimes it is necessary for civilians to bear arms against the intrusion of government. Hence, our Second Amendment.

Less than a century ago, the fully automatic rifle was not yet even a dream. Black powder had given way to Remington’s cartridges, muzzleloaders to Winchester’s rapid repeater. In the last few decades, as guns became ever more efficient at their task, it was apparent that this experiment in democracy needed to take steps to regulate guns. In the recent past, bills like the Brady Bill and others have imposed stiff waiting periods upon prospective gun owners, forcing gun sellers to do extensive background checks. Gun laws have done about everything possible to prevent good guns from falling into bad hands.

And yet, we have Columbine and, now, Virginia Tech, not to mention the untold thousands of murders carried out by the pull of a trigger.

More gun laws will not prevent more murders, just as more training with guns will only increase the efficiency of loons with bullets. Pop psychologists and political pundits have been quick to call for more gun legislation, more restrictions, as if statutes, codes, or regulations could bring evil to a halt. Through it all Archie Bunker’s words to his daughter’s lament about guns killing people give voice to our internal irony, “Would it make you feel better if they was all killed by knives?” Inanimate objects, no matter how deadly, do not cause mayhem unless acted upon by the animate.

Our society has lost the concept of personal responsibility. We have, for too long, said, “It is someone else’s problem!” or “Let the government handle it.” Meanwhile, our sense of community – a guardrail against extremity – has faded. Along with it, we have become egocentric to a fault. More than that, we shift the blame. Murderers murder because they were not hugged enough as children. Juvenile criminals no longer commit crimes, they “act out.” Politicians do not lie, they “spin the truth.” All the while, the real problem is right under our nose and we refuse to smell it: evil is real, palpable, and prevalent.

Perhaps the Virginia Tech shooter exhibited signs of insanity before his inexplicable rampage, but what did his community do about it? The parents blame the school, the school blames the professors, the professors blame the judge, the judge the hospital, the hospital the government – and round and round we go shifting the blame until we exasperatingly give up and call for the easy resolution with no real lasting effect: more laws.

Sometimes this “nation of laws” needs to remember that laws are written by, and for, the governed, but laws are only as good as the humans that agree to be bound by them.

Perhaps we ought to outlaw ourselves.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Judicial Numbers Tough to Predict

Q: Should the West Virginia Legislature give Monongalia County another judge?

A: As it stands right now, the West Viginia Legislature is considering adding another judge to the 17th Judicial Circuit of West Virginia, or Monongalia County. It is appropriate that Legislature consider doing this for a variety of reasons.

The first reason that pops to mind is that it is constitutionally mandated to align the circuits once every eight years. That is, it is the unique province of the Legislature – not the Supreme Court, not the Governor – to determine whether or not the circuit courts ought to be realigned or whether more (or less) judges should occupy such circuits. Thus, it falls to the Senate and House of Delegates to consider wisely what it will do.

There are, essentially, two options. The Legislature could suggest that the circuits be realigned. Presently, there are 31 circuits throughout the State. Obviously, there are more counties than circuits, so it stands to reason that some circuits cover more than one county. Realignment suggests that one county may not have as busy of a docket as another and, so, the counties are combined to make one circuit. This involves a lot of redistricting that, for historical and political reasons, is not a favored method management.

The other option, therefore, is to add or subtract judges within the presently existing circuits. To do this, our legislators consider the circuit’s population to judge ratio, the size of the docket within the circuit (what we call, “caseload”), and other intangibles. The goal is to have enough work to keep a judge good and busy, but not so much that justice is delayed.

That brings us to Senate Bill 400. Having already passed the West Virginia Senate and now pending in a House of Delegates committee, SB 400 provides for five new judges to be added to five judicial circuits: the 24th (Wayne), the 30th (Mingo), the 9th (Mercer), the 22nd (Hampshire/Hardy/Pendleton), and the 17th (Monongalia). The House of Delegates ought to affirm the bill as presented by the Senate. Although, that is a bit more difficult now since, as of Friday, the House Judiciary Committee added another judge to Kanawha County’s present roster of seven judges.

Monongalia County is among only a few counties whose general population is trending upwards, rather than downwards. That is, more people are moving and staying in Monongalia County than anywhere else in this state, with the possible exception of the eastern panhandle. With more people, comes increased litigation. Without adding another judge to the two that already sit on the bench here, justice will be often delayed. Justice delayed is justice denied.

The numbers agree with the bill. Looking at the population to judge ratio, Monongalia County has over 41,000 people per judge. That is currently the third highest ratio. If a judge is added, as proposed by SB 400, then Monongalia County becomes the first in population per judge with almost 28,000 people per judge. With population, caseloads, and crimes trending up, it is quite clear: Monongalia County ought to receive another judge.

But, there is perhaps one consideration that is often overlooked in the arguments about judicial realignment. The West Virginia Constitution mandates that this realignment process take place every eight years. In other words, should the Legislature fail to act this year, it might not be until 2015 that this question would even be considered again.

Better forecasting than the weather channel is absolutely imperative. By 2015, which is more likely to have more people: Monongalia County or a southern West Virginia county? By 2015, whose caseload is more likely to be spiked by an increase of business disputes and criminal complaints that an increasing population brings: Monongalia County or one of some fifty counties shown to be generally declining in population? The question, therefore, becomes how good is the Legislature at forecasting?

Can Monongalia County get along without another judge? Perhaps for now it can, but now is not the timeframe to be judged. Tomorrow is. With that timeframe in mind the answer to the question is an emphatic, “yes!"

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Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

Who Pulls the Trigger on War Power?

Q: President Bush wants to send more troops to Iraq. The Democrats majority in Congress does not want more troops sent. What branch of government holds the power of war?

A: Power is all the rage lately. The out-of-shape, take “power walks.” The sleep-deprived take “power naps.” The leisurely lunch, has been replaced with “power lunches,” where “power bars” are the main course. Even, or perhaps especially, in politics, the grab for power often leaves those who matter most in a lurch. Such seems to be the state of this week’s affairs.

On Wednesday, President Bush announced his plan to send more troops to Iraq. The day before, Sen. Ted Kennedy gave a “pre-buttal” to the President’s speech. The day after the presidential prime time address, Congressmen and Senators were wagging their tongues in a flurry of speeches that say only enough to get them airtime on the major news networks. All the hullabaloo is about who has the power over the troops.

The President has laid out a plan to increase troop presence and action in Baghdad. The Democratic halls of Congress, still full of vim and vigor from November, are making empty threats to prevent such a malefaction. Sen. Harry Reid is proposing a “non-binding” Senate resolution that expresses disapproval of the President’s newest plan. Speaker Pelosi will no doubt follow suit. But who wins the power war? More importantly, who loses?

I am not going to argue the merits or detractions of the President’s plan. But, in order to sift through the rhetoric of both sides of the aisle, let me give you some power of your own; a “separation of powers,” to be precise.

The President is the Commander-in-Chief of the Armed Forces, according to Article II, Section 2 of our U.S. Constitution. Thus, he has the authority to position – without any branch of government’s approval or permission – the finest military in the world. As one of his chief duties as President, it falls to him to organize, prepare, and strategically place our military so as “to provide for the common defense.”

That brings us to Article I, Section 8 of our Constitution, which bestows the power to fund such a common defense upon the Legislative branch. What is more, if there is war to be declared, that too falls to the Legislature, as does the very raising, supporting, equipping, and regulating of the army, navy, and militia.

Hence the two seemed locked in an un-ending struggle. While the President sets the course, turns the wheel, and aims the barrel, it is the Congress that buys the gas and turns the key of the military machine that drives us into battle. Unless the two work in concert, war is not possible. Unless the two ends of Pennsylvania Avenue act in complementarity, military actions will fail before they begin.

As you listen to Senators and Congressmen huff and puff as they try to blow the White House down, remember that the side you disagree with must also be complicit in that with which you lodge your agreement. That is, if you like the idea of more troops, then you need the Legislature to adequately fund them. If you prefer fewer boots on the ground in the Green Zone, only the Executive can order them home. They may be bitter bedfellows, but for the American military to be at its most powerful, the power we often refer to as separate, must work in tandem.

In the final analysis, the most powerful weapons in our current conflict are the grunts, flyboys, leathernecks, and mates of the U.S. Armed Forces. May God bless their mission and bring them home safely. And soon.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.