Phishing

Crypto phishing email – 2022-12-05

Posted on by Kenneth Ballard / 0 Comment

And, of course, the buttons for “Cancel Transaction” and “Log In” go to fake login pages. Classic phishing scam email.

Text for accessibility:

Blockchain.com Wallet

Your funds have been sent

You’ve sent 0.13506102 BTC from your Private Key Wallet. Your transaction is pending confirmation from the BTC network. You can also view this transaction in your transaction history.

If this wasn’t you, please cancel the transaction immediately by clicking the button below, then follow the steps on our website.

Best,

The Blockchain.com Team

Product and service reviews

Extended warranties and repair plans

Posted on by Kenneth Ballard / 0 Comment

“Extended warranties” have a bad rep in retail. In large part because they are pushed by cashiers and sales persons who earn a commission selling them. But they do actually have a purpose. Though anymore, they aren’t called “extended warranties”, but “protection plans”.

Often what creates the bad taste in people’s mouths about these plans is the fact that taking advantage of one can be difficult. And which option you have is entirely up to the retailer selling you the item on which they’re also trying to sell the protection plan. Things have, thankfully, gotten a lot easier. But you still need to be vigilant to protect your consumer rights.

As I’ve detailed on a couple articles on this blog, I’m a photographer. And two years ago I treated myself to a new Nikon Z5 mirrorless camera as an upgrade to my D7200 DSLR. This past summer I also purchased an electric scooter to take some of the burden off my vehicle for maneuvering around to find shots to take around town.

On Sept 24, I was heading out on the scooter when I hit a bump and went down. And my Z5 went down with me. The lens, thankfully, is fine and still working. The Z5, however, showed an error on the screen: “Press shutter-release button to reset.” Except pressing the shutter release did nothing.

When I bought the Z5 from Adorama, I bought a protection plan with it. The plan went through New Leaf Service Contracts, LLC. (All plans Adorama currently sells now go through Extend.) I filed the claim online that same day, providing some basic details of what happened. In the mean time, I also looked at other repair options, including sending it directly to Nikon. (Which would’ve been $400 up front, possibly more later depending on what they found.)

New Leaf called me the following Monday to discuss the claim and get some additional details. About an hour later, I got a follow-up voice mail saying they were denying the claim because the camera was not “properly secured”.

Great…

I tried calling back the same day, but I was told the claim was denied by a manager, so I’d need to speak to a manager, but none were at the office at the time. Unfortunately I wasn’t able to call back in during the needed hours. The initial email I received when the claim was approved included a follow-up email address, so I sent this message to that email:

Good day,

I intended to call in about this to speak to a manager but didn’t have the time today, unfortunately. I received a voice mail yesterday late afternoon informing me this claim had been rejected. According to the voice mail, it was due to my camera not being “properly secured” at the time the drop occurred.

I cannot recall exactly what I said over the phone, but I do not recall being asked whether I had the camera secured in any fashion, and how it was secured if I did. Nor do I recall giving any details of such. I want to clarify that I had the camera secured on a cross-body strap. And a cross-body camera strap is a common means of carrying around a camera. Again, I do not recall ever being asked whether or how I had the camera secured, so hopefully this provides some clarification.

Please re-open this claim in light of this information.

That went on Sept 27.

There is an exception in the coverage policy for “mishandling”, which is understandable. The protection plan covers accidental damage to the camera, and I have the same protection plan over one of my lenses. So clear negligence is not covered, and that’s reasonable.

But as my email above shows, I wasn’t mishandling the camera. And I wasn’t given a chance to say that I had the camera secured let alone how I had the camera secured.

In the interim, I looked at my options for repair, even considering Best Buy’s Geek Squad. And I set up an appointment to drop off the camera body on Sept 30 for mid-afternoon. And who should call about two hours before that appointment? New Leaf.

They re-opened and approved the claim and forwarded everything off to Photo Tech Repair Services. They reached out to me on October 3rd, and I had a shipping label the next day. It went out via FedEx on October 6th and arrived at the repair center the following Monday. Their email said to expect the repairs to take about 2 to 3 weeks, depending on whether they needed to order in parts.

My only complaint with the process was never getting any kind of status update during the repair. No ETA. If they had a page where I could log in and see the repair progress, I was never informed of it. The only indication the repairs were complete came in the form of a FedEx shipping alert the camera was being sent back to me.

So are extended warranties worth it? That really depends on what you’re buying one against and how much it’ll cost to repair versus replace. I say No to a lot of inquiries to purchase repair/replacement plans simply because the device in question is inexpensive to replace.

For expensive electronics, like my aforementioned camera, and major home appliances, they make sense. The repair plan will cost less than the repair cost, especially looking at the quote from Nikon, and it’s certainly far less than the replacement cost.

So in my instance, I definitely came out ahead – once I told the insurance company I wasn’t being cavalier with the camera.

Electoral College/Fourteenth Amendment/Impeachment/Politics

Insurrection, the Fourteenth Amendment, and the President of the United States

Posted on by Kenneth Ballard / 0 Comment

The Fourteenth Amendment at Section 3 says this:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

And Section 5 gives Congress the power to “enforce, by appropriate legislation, the provisions of this article”.

The United States Code declares such at 18 USC §2383:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

Since all the discussion on this is about Donald Trump, the question comes down to this and the presumption that January 6, 2021, was an “insurrection”: could he be disqualified under the Fourteenth Amendment from holding Federal office?

Not letting him campaign

If you’re looking to disqualify him before the fact, your only option is to indict him with violating the Federal insurrection statute – 18 USC §2383 – and winning a conviction that is not then overturned on appeal. There is no other option available.

Congress can pass a resolution declaring Trump ineligible, citing what happened on January 6, 2021, as justification. But resolutions have no force of law.

Bills do have the force of law, but only if properly passed by Congress and signed by the President. So let’s say that Rep. Davide Cicilline (D-RI) gets his wish and gets a bill through the ringer declaring Trump specifically to be ineligible under the Fourteenth Amendment. What then?

It’ll die in the Court the moment Trump challenges it because it’d be a bill of attainder.

So, then, let’s say he gets on the ballot and wins reelection in 2024. What now? Is there no remedy?

Impeach him… yet again

The House always has the power to impeach the President, Vice President, or any civil officer for really… any reason they want. This means if Trump is reelected in 2024 and is sworn into office in 2025, the House could bring impeachment articles against him the moment he is sworn in.

They tried to do that in 2017, so why not? Only this time it’d be on allegation he’s disqualified under the Fourteenth Amendment. He’s already been tried twice, acquitted both times, so.. third time’s a charm?

Writ of quo warranto

There is another option. This could be exercised if the House does not impeach him or the Senate fails to convict or decides against holding a trial. It’s called a writ of quo warranto. I should elaborate first that the writ itself doesn’t remove the person from public office. It leads to a Court trial to determine, by a preponderance of the evidence, whether they should be removed.

Not long after the Fourteenth Amendment was ratified came the Enforcement Act of 1870. Section 14 of that Act required a United States District Attorney to initiate a writ of quo warranto action against any person suspected of holding an office in violation of Section 3, excluding “a member of Congress or of some State legislature”.1“That whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office, as aforesaid, to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office;”

Why that exclusion? Under the Constitution of the United States, only the House and Senate has the power to remove its own members.2Article I, Section 5: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members… Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.” And excluding members of a State legislature is about preserving the separation of sovereignty between the Federal and State governments.

That section was repealed in 1948 as being obsolete. Which it actually was by that time. The political landscape even then was far different from 1870 when the Enforcement Act was enacted. Congress chose the writ was an option to remove quickly any Confederates who may have been elected or appointed to Federal office in contradiction of the Fourteenth Amendment. The statute even provided that any writs requested by a United States District Attorney be given priority over all other entries on the docket at a Circuit or District Court.3“and any writ of quo warranto so brought, as aforesaid, shall take precedence of all other cases on the docket of the court to which it is made returnable”

The repeal left behind the existing insurrection statute enacted as part of the Confiscation Act of 1862. That Act also declared that someone guilty of those crimes is “forever incapable and disqualified to hold any office under the United States”. But Congress realized that statutes cannot expand upon the qualifications laid out in the Constitution. Meaning Congress cannot then declare their own where the Constitution is silent. Further the Act was passed in 1862, meaning under the prohibition of ex post facto laws, it couldn’t apply to anyone already engaged in insurrection before the statute was signed into law.

The repeal, though, does not mean quo warranto is not a remedy. Only that no officer of the United States is specifically charged with the “duty” of pursuing one.

The existing quo warranto statute4Chapter 35 of the Code of the District of Columbia says the Attorney General “may” bring action against a person who “unlawfully holds or exercises… a public office of the United States”.

But Trump would easily have a… trump card: insurrection is a specifically-defined crime under the United States Code. As the Fourteenth Amendment grants only Congress the power to enforce Section 3, the argument could easily be made that Congress chose the Federal criminal code as the means of enforcing it, nullifying the writ of quo warranto as an option.

That Congress previously had enacted quo warranto specifically as an option for enforcing Section 3, then later repealed it, supports that argument. That the insurrection criminal statute specifically declares disqualification from office as part of the penalty for conviction also supports it.

Congress intends for a criminal conviction to invoke the Fourteenth Amendment, not mere assertion exercised via a quo warranto action that someone engaged in an insurrection.

This means quo warranto doesn’t become an option unless the person has been previously convicted of insurrection or removed from office via impeachment.

That is, unless Congress makes it one again.

Does Section 3 even apply to Trump?

But then there’s this question: does Section 3 of the Fourteenth Amendment apply to the Office of the President of the United States? This debate is arising out of this clause: “having previously taken an oath, as a member of Congress, or as an officer of the United States”.

The President is not an “officer of the United States”. He commissions them. We see this in Article II of the Constitution at Section 2:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…

And in the same at Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The President is separately listed from “officers of the United States”. As such the President is exempt from Section 3 of the Fourteenth Amendment. That is a plain reading of the Constitution.

This also means no person who served as President who is then convicted of insurrection under 18 USC §2383 for acts undertaken while that person was President cannot be disqualified from office. The provision of 18 USC §2383 could not apply. To apply it would mean a statute enacting an additional qualification for office beyond that stated in the Constitution.

Amending the Constitution is the only way to make it stick.

State legislatures and the Electors

No one has so far described this as another remedy, so I just wanted to put it out there to get ahead of it: State legislatures declaring that the Electors they appoint cannot cast a vote for Donald Trump.

I’ve said before that the State legislatures have the sole power to determine how the Electoral Votes are cast. That they put that question before the people of that State is a mere courtesy and one that can be revoked at any time.

But I’ve also said this in arguing that the National Popular Vote Interstate Compact is unconstitutional: “If a State turns to the People therein to determine how to award the Electoral Votes, then they must not award them in such fashion that is obviously contrary to how those people vote.”

So could the State legislatures pass a binding resolution forbidding Electors from casting votes for Donald Trump? No. Not only would such be unconstitutional since it would amount to casting votes in contradiction to how the people of that State voted, it could also be construed as a bill of attainder.

Conclusion

In short, absent an amendment to the Constitution enacting otherwise, impeachment by the House and conviction by the Senate is the only way Donald Trump can be deemed ineligible by the Constitution of the United States from ever again holding any office under the United States.

References[+]

Fifth Amendment

Everything will be used against you

Posted on by Kenneth Ballard / 0 Comment

I’ve said before that we need to make it clearer than crystal that rape victims (male or female) absolutely must cooperate with law enforcement with collecting evidence to ensure the perpetrator is prosecuted.

As part of that collection, they’ll also collect a DNA sample from the victim so they can identify it within a collected evidence sample. So if the lab, for example, identifies three unique individuals within the sample, having the victim’s DNA readily available means one of those three unique DNA profiles is identified, leaving the other two – likely the perpetrators.

But what happens to the DNA profile that is collected from the victim? Is it retained only for the investigation or can the police retain it for future use?

A woman in California learned the hard way that the police will retain it for future investigations. As the DNA profile generated from a sample she provided as part of a rape kit was retained by law enforcement and later used to identify her as a perpetrator in another crime.

So is that a Fifth Amendment violation? No.

Unless there is a statute saying otherwise, when you submit fingerprints or DNA to the police, the police will record that evidence in their databases. This includes DNA evidence submitted as part of a “rape kit”.

One of the core messages in the Miranda warning is simply this: anything you give to the police will be used against you. Anything you give the police voluntarily they will retain until the police feel it is no longer useful.

DNA and fingerprints, however, are never not useful to law enforcement.

Let me repeat this for the people in the back: “Anything you say CAN and WILL be used AGAINST you!” Anything you voluntarily give to the police will also be used against you. There is nothing in the Constitution protecting you from that happening because anything you turn over to law enforcement voluntarily is pretty much fair game.

As I’ve said before, the Constitution protects you from being compelled to testify against yourself. It doesn’t protect you when you willingly (even if unwittingly) do so. And handing anything over to the police is a form of testimony. And doing so willingly exempts that from the Fifth Amendment.

That doesn’t mean this situation isn’t problematic. It absolutely is because it has the potential to dissuade sex assault victims – especially victims who are poor or a minority – from cooperating with law enforcement to avoid being the target of an in-progress or future investigation. But can anything be done about this? Absolutely. And it’s pretty simple, too.

It’ll take a statute by the State legislatures to exempt any victim DNA provided for a sex crime investigation from being retained in any database or used for any investigation beyond the one for which it was submitted. Instead the victim DNA profile should be tagged with a specific case number and not used for any other investigation – unless, by some stroke of bad luck, the victim is victimized again. Congress would need to pass a similar statute for the Federal and military jurisdiction.

And hopefully California and other States will move on making this exemption. Since the DNA evidence was turned over likely with the idea in mind of identifying her DNA in the collected sample, just so they know which is hers and which is the assailant. That they retained that DNA profile and used it against her later is… troubling for the aforementioned reasons, but perfectly allowable under the Constitution. Again only a statute can prevent that from happening in the future.

At the same time, if you know the police have your DNA or fingerprints, how does that not dissuade you from committing any crimes in the future?

Politics

Kansas remains purple

Posted on by Kenneth Ballard / 0 Comment

Four years ago, back in November 2018, two Democrats were elected in Kansas. Sharice Davids was elected to represent my district, ousting Kevin Yoder. And Laura Kelly was elected Governor, flipping the seat after being in Republican hands for two terms. Around that time, I said this in a comment on YouTube on a video by Canadian games journalist and commentator Liana Kerzner:

I really wish people would stop acting like a Democrat winning in Kansas is an earth-shaking event. I’m in the House district in Kansas that flipped. It is not anything to write home about. It’s a rather centrist district, encompassing much of the Kansas side of the Kansas City metro, and if Kevin Yoder wasn’t being a tremendous dick on the campaign trail, he probably would’ve won. But given some of the sh** he said about Sharice Davids…

Same with the governor’s mansion. Sam Brownback’s predecessor was a Democrat: Kathleen Sebelius, who famously joined the Obama administration, so another Democrat, Mark Parkinson, was chosen to replace her. We’ve actually alternated between Democrat and Republican as the Governor since… looking at Wikipedia… 1966 when Robert Docking was elected to replace William Avery. [Source: https://en.wikipedia.org/wiki/List_of_Governors_of_Kansas] As in, literally just straight alternating. If the incumbent Governor isn’t re-elected, the candidate for the opposing party is elected instead. Kansas isn’t as red a State as many like to make it out to be.

And 2022 was pretty much a repeat of that.

August presented Kansans with a choice on whether we were going to grant the Kansas legislature the power to ban abortion in the State. And by a near 60/40 margin, Kansas overwhelmingly rejected that amendment to our Constitution. Queue the celebration from Democrats.

But was Kansas going blue? As we saw on November 8, that answer is an overwhelming No.

Laura Kelly is the incumbent governor, and she’s a Democrat. Our Attorney General was running against her this year and lost by under 18,000 votes. Under our Constitution, she can only be elected twice in a row. So since she won re-election, she’s out in 2026 regardless. And if prior pattern continues, a Republican will be elected to replace her.

Sharice Davids (KS-3) is the incumbent member of the House of Representatives for my district. She’s a Democrat as well, and won by a slightly greater margin than 2020, defeating Amanda Adkins both times.

Both of our Senators are Republicans, though. And Jerry Moran was the one up for re-election this year. And he won. By a near 60/40 margin. His challenger, Mark Holland, won in only 3 counties in the State: Wyandotte, Douglass, and Johnson. And he barely won Johnson County, too. Which shows that the Kansas side of the KC metro isn’t solid blue either.

The other three Republican members of the House of Representatives also won re-election: Tracy Mann (KS-1), Jake LaTurner (KS-2), and Ron Estes (KS-4). And all of them by larger margins than Sharice Davids.

Which is interesting when you look at the Estes and LaTurner’s wins since their districts include Wichita and Topeka, respectively. Both helped re-elect Laura Kelly. So those counties – Sedgwick (Wichita) and Shawnee (Topeka) – went blue for the Governor (Shawnee more so than Sedgwick) but red for the House and Senate.

So despite an overwhelming rejection of the Kansas abortion amendment in August, voters otherwise re-elected our existing slate of incumbents. A mix of Democrats and Republicans. So while people thought Kansas was going blue, we proved on November 8 that we’re still a fairly purple State.

Technology

Revisiting “Gadgets you can keep”

Posted on by Kenneth Ballard / 0 Comment

Back over 10 years ago, I wrote a couple articles responding to various technology “predictions” wherein authors made an attempt to predict what technology would be gone… pretty much by now.

Back in 2011 I wrote the first such response called “Gadgets you can keep” wherein I responded to Sam Grobart of the New York Times. So let’s revisit that one first and whether my recommendations still hold up today given how much things have changed over the last 11 years.

1. Desktop computer

I said then: Wait a second…

I say now: Wait a second…

This really depends on your requirements. Most can work fine off a laptop, possibly even a tablet.

Laptops have really come along in terms of performance and power requirements over the last 10 years. Laptops can even power 4K displays without breaking a sweat. But they still cannot keep pace with desktops merely because desktops offer a LOT more flexibility in terms of parts and the performance that can offer.

So the question really comes down to what you need.

Many gamers will probably be fine as well with a laptop, depending on what games you are playing. eSports titles are also developed in a way to allow as many people as possible to play them, so they target much looser hardware requirements compared to trying to play a triple-A title at moderate settings, let alone at 4K 60Hz at maxed out settings.

So if eSports titles is all you play – Rocket League, Valorant, League of Legends, etc. – a laptop should easily meet your requirements. Your peripherals will matter more here.

But you cannot ignore the limitations laptops have. Photographers (such as yours truly) and videographers will be much better served with a dedicated desktop over a laptop. That isn’t to say a laptop isn’t capable of handling photo editing and video editing. But you’ll fast run into a ceiling of what a laptop can handle compared to the upgrade and expansion options you get with a dedicated desktop system.

And tablets and cell phones have significant limitations on top of that. And I know over the last decade a lot of people expected tablets to eventually replace desktops and laptops, and that just will never happen.

2. High speed Internet at home

I said then: Keep it

I say now: Keep it

While wireless and cellular Internet service for home has certainly become much more available and capable over the last 10 years, it will never match what a dedicated, wired home Internet connection can bring.

At the time of the original article, I was on Time Warner (now Spectrum) with, I think, 20Mb service. In 2015 I would be one of Google Fiber’s early adopters with their Gigabit home Internet, never looking back. And today I have Google Fiber’s 2Gb service (it’s 2Gb down, 1Gb up). Wireless isn’t even close to that, and likely will never be able to match it.

And with video streaming and video conferencing happening a lot more now than it did 10 years ago and the bandwidth requirements that go with it, again, wired home Internet service is the way to go if you have the option.

3. Cable TV

I said then: Depends

I say now: Lose it

Just don’t bother with cable home TV anymore. Virtually everything is available for streaming anymore, even to mobile devices, at a much better value compared to cable. For years being able to select channels a la carte was the most demanded feature for cable TV. And they never gave it to us. I fully understand why it never happened. But if we had that option, on-demand streaming services probably wouldn’t have gained the dominance they did when they did.

Sure on-demand streaming will still eventually replaced cable TV and DVR set-top boxes the way it is today. And they’d probably still have the dominance they enjoy today. But it likely would not have come about nearly as soon as it did.

Unless you live in an area where your Internet connection does not allow for video streaming, don’t bother with cable or satellite TV service.

4. Point-and-shoot cameras

I said then: Wait a sec…

I say now: Wait a sec…

The point and shoot market has virtually disappeared. Photographers are the only ones buying them because they make great cameras for scouting locations and for quick photos when taking photos on the go. And they’re indispensable when it comes to street photography.

I can’t ignore how good cell phones have become. But a cell phone still has two significant limitations: tiny sensors compared to even the cheapest point and shoots, and they’re entirely software controlled. Sure dedicated cameras are still firmware controlled, but it’s a dedicated firmware instead of an app running on top of a general-purpose mobile operating system.

The question really comes down to how much you care about your photos. Note: if you’re taking photos for Instagram or social media with the intent to build a following, you’ll get much better results with a dedicated point and shoot compared to your cell phone.

5. Camcorder

I said then: Not so fast…

I say now: Don’t bother

Dedicated camcorders like what existed 10 years ago are no longer around. Point and shoots cameras, DSLRs, and mirrorless cameras have pretty much taken over here and allow generally for a lot more flexibility compared to what home camcorders could ever give.

6. USB thumb drive

I said then: Keep plenty of them

I say now: Keep plenty of them

As I write this, 512GB thumb drives are available for around $50 or less, depending on brand and where you buy them. Meaning 256GB and smaller drives are going for much less. Need I say more? They’re great options for backing up files from your desktop or laptop. And with a compatible cable, they can be plugged into your cell phone for dumping photos or viewing files.

7. Digital music player

I said then: Lose it

I say now: Lose it

My entire FLAC-encoded music library will fit onto a 128GB storage medium without a problem. This means having a dedicated music player, even one with expandable storage, is largely not necessary. And I can stream my music from my NAS over the Plex app on my cell phone using a VPN connection.

And for those times where I won’t have a cell or WiFi connection to tap into my home VPN, I can plan ahead by dumping the music library to a USB drive and connecting it to my phone using an OTG cable.

8. Alarm clock

I said then: Keep it

I say now: Don’t bother

Unless you’re always getting rid of your old cell phones, this one is a tough sell anymore. Since your old cell phone can still double as an alarm clock with your current cell phone being used as a backup. And the travelers who actually use the dedicated alarm clocks in hotel rooms are likely very few in number anymore.

9. GPS Unit

I said then: Not so fast

I say now: It depends

This really depends on where you’re going. Dedicated GPS units have the benefit of not needing a constant Internet connection. But even Google Maps caches your most frequently-used maps to your phone in case you lose your Internet connection. And you can cache maps ahead of time based on where you’re going.

10. Books

I said then: Keep them (no exceptions)

I say now: Keep them (no exceptions)

My wife has a Kindle Unlimited subscription, but even she’ll tell you that nothing beats a physical book. For the simple fact that physical books don’t need batteries or an Internet connection.

And with cookbooks, I still stand by this sentiment:

Plus would you rather walk into a kitchen with shelves lined with cookbooks and other assorted recipe books, or one with an iPad or e-reader and few, if any, cookbooks? The cookbooks tell you you’re walking into the kitchen of someone who loves to cook, and that’s the kind of kitchen I’d like to walk into.

Conclusions and verdict

So a few of my my conclusions have changed over the years. Technology has improved significantly over the last 11 years since I wrote the original response article, no doubt.

But technology will never get to the point that desktop computers, dedicated cameras, and wired Internet connections become obsolete. And physical storage media like USB thumb drives and optical media can never go away either since it’s never a good idea to put full reliance in your Internet connection for… anything mission critical.

Movies

On Don Bluth (and Gary Goldman)

Posted on by Kenneth Ballard / 0 Comment

Okay I’m just going to come out and say it, since I still see a lot of people praising him: Don Bluth was a horrible film maker. He was a great animator. But when it came to making movies, he just couldn’t cut it. Same with Gary Goldman, who was Bluth’s co-director on most of his films.

I grew up with Don Bluth and Disney. I watched An American Tail when I was in 7th grade as part of my history class. I watched Land Before Time with my friends. I’ve yet to see All Dogs Go To Heaven. And I still count Anastasia as one of my favorites, and the soundtrack for it is still my favorite.

I haven’t seen any of his other films.

But I don’t need to.

So how can I say Bluth was a horrible film maker without seeing all of his films? The numbers speak for themselves.

Starting with this: he made only 10 major motion pictures between Secret of NIHM and Titan A.E. Just 10 within 18 years. (Bartok the Magnificent was a direct-to-video release, so not counted here.) He hasn’t made a major motion picture since 2000.

An American Tail was easily his biggest success. Released in 1986, it made nearly 10x its budget at the box office. But that was mostly because of Stephen Spielberg. I wonder how many of you reading this remember the movie poster for it? Don Bluth’s name wasn’t prominent on the poster. The movie was advertised as “Stephen Spielberg Presents“.

The Land Before Time was advertised as “Lucas/Spielberg Present”, referring to George Lucas (yes, that George Lucas):

Bluth severed ties with Spielberg before making All Dogs Go to Heaven. The box office results speak for themselves:

BudgetBox office
An American Tail$9 Million$84 million (9.3x)
The Land Before Time$12.3 Million$84.5 million (6.8x)
All Dogs Go To Heaven$13 Million$27.1 million (2.1x)

From there, Bluth would go on to have a string of 4. Flops. In A. Row. Let me repeat that. Bluth would have FOUR. FLOPS. IN. A. ROW after All Dogs Go To Heaven. How he was even able to make Anastasia after that is beyond me. But it would be his last success. And while it would surpass All Dogs Go To Heaven on the Box Office/Budget ratio, making back nearly 3x its budget, it wouldn’t come close to Land Before Time or An American Tail.

Don Bluth just could not cut it as a filmmaker. And Titan A.E., which ended his career, showed he couldn’t be trusted to make a profitable film.

And anyone who says Don Bluth is a great filmmaker, or even just a “good” filmmaker, is engaging in cherry-picking.

Constitution/Marriage and Relationships/Supreme Court

The “Respect for Marriage Act” does NOT “codify” gay marriage

Posted on by Kenneth Ballard / 0 Comment

Rcently the House of Representatives passed the “Respect for Marriage Act” – H.R.8404. And the bill was moved through under fears the Supreme Court could revisit and overturn Obergefelle.

This fear comes from Justice Thomas’s concurrence where he wants to revisit the entire concept of substantive due process and determine whether any cases decided on that could instead be upheld under the Privileges and Immunities Clause. The late Justice Scalia was also no friend to substantive due process and the incorporation doctrine.

But we’re not going to get into that here.

Instead let’s get into the bill itself since it does NOT do what proponents think. Instead it’s nothing more than a repeal and replace for the Defense of Marriage Act of 1996.

Repeal and replace the Defense of Marriage Act of 1996

The Defense of Marriage Act was part of what was ruled unconstitutional in the Obergefelle decision. So if it was ruled unconstitutional, why is Congress moving to repeal it? Because ruling a law unconstitutional doesn’t remove it from the books. So if Obergefelle is overturned in full, the Defense of Marriage Act is again enforceable unless repealed.

The Defense of Marriage Act made it so gay marriages enacted in one State were not automatically recognized in another. The statute in question is 28 USC § 1738C:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

It also created the Federal definition of “marriage” and “spouse” at 1 USC § 7:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

So while rendered unenforceable by Obergefelle, they are still on the books. Overturn Obergefelle and they become the law of the land again. So the Democrats in Congress are wanting solidify the Obergefelle decision as best they can.

The Act does this by replacing §1738C:

(a) IN GENERAL.—No person acting under color of State law may deny—

(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or

(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.

(b) ENFORCEMENT BY ATTORNEY GENERAL.—The Attorney General may bring a civil action in the appropriate United States district court against any person who violates subsection (a) for declaratory and injunctive relief.

(c) PRIVATE RIGHT OF ACTION.—Any person who is harmed by a violation of subsection (a) may bring a civil action in the appropriate United States district court against the person who violated such subsection for declaratory and injunctive relief.

(d) STATE DEFINED.—In this section, the term ‘State’ has the meaning given such term under section 7 of title 1.

Given the language of this bill, it makes me wonder if they fear the Supreme Court will revisit and overrule Loving v. Virginia. Anyway… the bill also replaces 1 USC §7 – though the bill says it amends it. Hopefully someone in the Senate will catch that.

(a) For the purposes of any Federal law, rule, or regulation in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

(b) In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

(c) For purposes of subsection (a), in determining whether a marriage is valid in a State or the place where entered into, if outside of any State, only the law of the jurisdiction applicable at the time the marriage was entered into may be considered.

And all of this is fully within Congress’s powers under the Full Faith and Credit Clause in Article IV of the Constitution.

What’s missing?

Pretty straightforward bill. I really wish most of what Congress passed is this short and to the point. But there’s one significant omission from this bill, and it’s missing because Congress doesn’t have any power over this: making gay marriage universal.

As such this bill doesn’t “codify” gay marriage in any way. Congress cannot force States to allow gay marriage by statute. Doing so would violate State sovereignty. Congress has no power over the actual solemnization of marriages in the United States. To grant that power, the Constitution must be amended.

But it’s not necessary. Since interstate recognition of gay marriages is enough.

What if Obergefelle is overruled?

So the big question is what would happen if Obergefelle is overruled. Do all gay marriages suddenly become invalid overnight? No. In his concurrence in Dobbs, Kavanaugh pointed out how the ex post facto provision of the Constitution works in mentioning that overturning Roe doesn’t mean every woman who has ever had an abortion and every physician who has ever performed one is now exposed to risk of prosecution.

The same would be with Obergefelle. Even if they overruled it tomorrow, all existing gay marriages would still be valid in the State in which they were solemnized. It’s future attempts to obtain licenses for a gay marriage that would be in jeopardy.

But if the “Respect for Marriage Act” is successfully enacted, that would mean all States must recognize any gay marriage lawfully performed in the United States. This would mean that any homosexual couples who want to get married can go to States where they can be lawfully performed and they’ll be recognized across the board.

The only way for that to not be the case would be if the Federal Courts ruled that marriages are not “public Acts” under the Constitution. But I don’t see that happening.

Concealed carry/Second Amendment

Over-selling hand-to-hand combat

Posted on by Kenneth Ballard / 0 Comment

Article: I Carry a Gun. I Don’t Need That H2H Crap!

Setting aside for a moment that directly hand-to-hand engaging an assailant is beyond stupid, hand-to-hand combat trainers seem to rely on fear, uncertainty, and doubt (FUD) to sell their training.

“You may not have your gun”. “You may not be able to access your gun.”

Missing from the discussion? Risk.

Starting just with the probability you’d actually need to defend yourself, whether using hand-to-hand or deadly force, along with the risk of injury or death from doing so. Doing so in any fashion means you invite the risk of a criminal prosecution, but one should never let that dissuade them from actually defending themselves.

And, more importantly, there are some situations where the legal standard for deadly force may be met, but you will still suffer consequences of your actions that may be worse than a legal punishment.

And the same would be true even in a hand-to-hand situation. You cannot use more force than necessary to neutralize a threat. Indeed, you may face greater liability attempting to engage someone hand-to-hand, especially if you go so far as to gravely injure or kill the other person because you “couldn’t stop yourself” from doing so. Don’t pretend that hand-to-hand means you won’t kill someone. Remember that more people are killed each year from kicks and punches than rifles.

And don’t pretend that a pistol means you always will. Contrary to popular belief, successful use of deadly force with a pistol – meaning the intended target is killed – is uncommon. Stories abound of someone taking several shots from a pistol and acting like nothing happened. Shot placement is what matters. And under stress, you’re actually quite unlikely to put rounds within any of the critical zones, even if you’re well trained.

Hand to hand requires a bit more awareness and control over your actions to avoid going too far.

Also missing from the discussion? Whether it’s in a person’s best interest to actually train for hand-to-hand, let alone use it. “Of course it’s always in a person’s best interest” I can hear someone already saying. And… no, no it isn’t. To think such is myopic and asinine.

I’m approaching 42 years old. I’m 6’2″ tall (188cm). I’ve had various problems with my musculoskeletal system since I was in middle school. (Read: nearly 30 years.) Trying to learn any kind of martial art or hand-to-hand combat would likely lead to injury. Meaning trying to use it in real life is more likely to lead to injury.

And that is something I really want to avoid. There have been numerous days since the start of my 30s where I’ve been pretty-well incapacitated due to pain in my back, shoulder, and/or hip. Unconnected to any kind of strenuous activity, I might add. I remember one particularly bad day several years ago while at my previous job where I left work early due to back pain, even saying in my email to my managers that I should never have come in to begin with.

I also can’t run or sprint worth a damn, haven’t been able to since college, so my ability to put worthwhile distance between me and an assailant in quick time is, in practicality, nonexistent.

That’s why I carry a firearm. My only other option is pepper spray or a melee weapon. Both of which have a maximum effective range far closer to your person than a firearm can reach. And with pepper spray you have to be mindful of the wind to avoid droplets flying back at you. Meaning if you personally are allergic to capsaicin, the active ingredient in pepper spray, the risk of a reaction should any of it fly back at you eliminates it as an option.

But even for someone who is reasonably fit, engaging in hand-to-hand combat with any assailant is unwise, in the kindest terms. Okay, I’ll stop being kind: it’s downright stupid. It’s in your best interest to keep distance from an assailant as best as possible. And the best way is with a ranged weapon – e.g., a firearm.

Let me put it this way: if your assailant closes distance to you enough to grapple, whether they do or not, you’ve already lost. As the saying goes, there are no winners in a street fight.

You also can’t know whether the person is armed with… anything they haven’t already presented. Grappling with an assailant leaves you open to all kinds of ways you can be attacked. And the amount of energy needed to defend yourself via hand-to-hand is far greater than that needed with a firearm.

Especially since, in most situations, all you have to do is brandish. And brandishing a firearm is not the same as using it. I’ve said that time and again to the anti-gun crowd, so I’m surprised I’m having to say it here.

And the standard for brandishing a firearm is a bit more lenient than using it. But I know the ready retort from hand-to-hand advocates and instructors about brandishing a firearm, since it’s the same one that comes from anti-gun advocates and was seen during the Kyle Rittenhouse trial: “escalation”. That brandishing a firearm in response to someone you perceive as a threat – even if not immediately perceptible and articulable as one of great bodily harm or death – is escalation under the law and immediately puts you in the wrong. Except it doesn’t.

But rather than brandishing your firearm… engage in hand-to-hand combat instead?

Another consideration as well: training environment versus wherever you end up engaging in hand-to-hand. Unless your training environment includes the kind of hazards you’ll find in alleys and other common urban or suburban areas, your training is inadequate.

Your environment can be used to your advantage and it can be used against you. Remember that.

Speaking of… This part of the article is rather telling:

Does anyone want to trade places with George Zimmerman? He was eventually found not guilty, but how much money did he have to spend to defend himself, and how much of an emotional toll did he endure? There was absolutely a valid and functional H2H solution for his problem that could have easily avoided the need to employ deadly force

Wow… How arrogant can you get?

Remember how I said your environment can be used against you? Yeah, the George Zimmerman incident is evidence of that.

Since, last I checked, it’s pretty well established that Trayvon Martin surprised Zimmerman, sucker-punching him in the nose and forcing him to the ground, where he then proceeded to bash Zimmerman’s skull into the concrete. There is no “valid and functional H2H solution” in that situation.

Plus engaging someone hand-to-hand doesn’t mean escaping interaction with the criminal justice system, so stop pretending that’s the case.

Instead there’s another possibility: hospitalization or death from knife wounds. Since, again, you can’t know if the person you’re grappling has another weapon they haven’t yet presented.

And being ambushed in the same fashion as Zimmerman is a possibility one must account for. Again, your environment can be used against you. And that’s the case whether you’re carrying a firearm or simply going to try standing your ground and fighting hand-to-hand.

In all seriousness, train for hand-to-hand if you desire. But situational awareness along with competent risk assessment so you avoid the need to defend yourself will take you much further.

Crime/Economics/Eighth Amendment

Imposing fines based on income

Posted on by Kenneth Ballard / 0 Comment

I’ve seen this idea crop up every now and again. And a lot of people are wanting this because 1. it sticks it to the rich and 2. it’s from Europe, so obviously it not only a. must be a good idea, but b. is going to be easy to implement in the 3rd largest country… Ugh. And there’s one thing in the US that makes this a no-go from the outset that I’ll get to at the end since… no on seems to bring it up.

So what’s the idea? Fines imposed by a Court should be based on your income:

fines (sic) should hurt people equally. $50 to a person living paycheck to paycheck is a huge setback; to someone earning six figures, it’s almost nothing. to people earning more than that, a drop in the ocean. a lot of rich people just park in disabled spots because the fine is nothing and it makes their life more convenient. Finland has done this with speeding tickets, and a Nokia executive paid around 100k for going 15 above the speed limit. i think this is the most fair and best way to enforce the law. if we decided fines on percentages, people would suffer proportionately equal to everyone else who broke said law. making fines dependent on income would make crime a financial risk for EVERYONE.

Now a lot of people brought up a lot of good points, so I’m only going to add a couple others to the discussion.

Income vs Cash Flow

Before getting into this, let’s address the idea that $50 “to someone making six figures, it’s almost nothing”. And I’ll use this specific point to clarify a couple terms many people either get confused in their mind, use interchangeably, or never knew were separate ideas to begin with.

And those terms are “income” and “cash flow”.

What’s the difference? As I’ve pointed out before: income doesn’t include only cash. That is what makes imposing fines based on income as opposed to cash flow extremely difficult.

Forgiven debts are income. Market value increases in a person’s retirement or investment accounts are, technically, income. (I have an account in my accounting system called “Change in Market Value” to account for this.) The same with the annual appraisals of my home’s value. Gifts, whether cash or otherwise, are income.

There is so much that is considered “income”, both in accounting and the tax code, that this idea becomes difficult from the outset. It’s one hell of a sliding scale. And if the person in question owns a small business, things become even more complicated. Since a lot of small business owners merely look rich on paper.

But again, there’s also the confusion between income and cash flow. A person’s income isn’t the whole story.

And if you impose fines based purely on income, you’ll essentially give a free pass to nearly half the country to just do what they want without any kind of penalty because they don’t have an income under IRS rules. Basing it on cash flow would, at least, capture those receiving government benefits such as welfare.

Policing for profit

One person in the Reddit thread I quoted above said this:

What stops high income people from being constantly pulled over and harassed by police to get the department gigantic paydays? I mean, I know people don’t exactly have a whole lot of pity for people who make a ton of money, but I don’t think it’s fair to let police go on fishing expeditions against them.

And it’s a valid point.

Now there are a lot of wealthy individuals who don’t drive fancy cars. They’ll drive a Toyota Corolla or another mid-range sedan or SUV – like my Honda CR-V – and hang onto it for years, getting as much utility out of it before getting something new.

A lot of people try to look wealthier than they actually are. Hands up if you know someone who is a middle-income earner (so NOT 6-figures) who drives a Camaro or other sports car.

And along with “policing for profit” comes civil asset forfeiture and the can of worms that creates that is only now starting to be rolled back by the Courts. Since fines are revenue to the government, and police do get rewarded based on tickets and arrests, this would end up shifting police attention away from the more serious crimes because they don’t pad the government’s bottom line and won’t be nearly as rewarding to the police departments.

Eighth Amendment

One last point no one brings up in these discussions with regard to the United States: the Eighth Amendment’s protection against “excessive fines”.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

And plenty of States have similar or the exact same language mirrored in their own constitutions. In the Kansas Constitution it is in our Bill of Rights at Section 9 (though it says “cruel and unusual punishment”, not the plural “punishments” in the Eighth Amendment.)

As much as you might like to see fines imposed based on income, wealth, cash flow, or what have you, the first attempt at such in the United States would be quashed as violating the Eighth Amendment or the State Constitution. Imposing a fine of tens of thousands of dollars for a speeding ticket would be excessive under most everyone’s definition – except perhaps the “stick it to the rich” types.

The rich may not only have the money to pay the fine, but they also have the money to fight it. And it wouldn’t take much to get not just the fine declared unconstitutional, but the law that imposed it.

And in my instance, if Kansas law declared that I should pay $1000 for going 10 over the limit merely because of my AGI last year, I’d plead not guilty on the ticket to file a motion to have the law quashed under the Kansas Bill of Rights.